[Senate Hearing 109-523]
[From the U.S. Government Printing Office]



                                                        S. Hrg. 109-523
 
                   YUCCA MOUNTAIN REPOSITORY PROJECT

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

                                HEARING

                               before the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                                   TO

RECEIVE TESTIMONY REGARDING THE STATUS OF THE YUCCA MOUNTAIN REPOSITORY 
 PROJECT WITHIN THE OFFICE OF CIVILIAN RADIOACTIVE WASTE MANAGEMENT AT 
                        THE DEPARTMENT OF ENERGY

                               __________

                              MAY 16, 2006


                       Printed for the use of the
               Committee on Energy and Natural Resources



                                 ______

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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                 PETE V. DOMENICI, New Mexico, Chairman
LARRY E. CRAIG, Idaho                JEFF BINGAMAN, New Mexico
CRAIG THOMAS, Wyoming                DANIEL K. AKAKA, Hawaii
LAMAR ALEXANDER, Tennessee           BYRON L. DORGAN, North Dakota
LISA MURKOWSKI, Alaska               RON WYDEN, Oregon
RICHARD M. BURR, North Carolina,     TIM JOHNSON, South Dakota
MEL MARTINEZ, Florida                MARY L. LANDRIEU, Louisiana
JAMES M. TALENT, Missouri            DIANNE FEINSTEIN, California
CONRAD BURNS, Montana                MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia               KEN SALAZAR, Colorado
GORDON SMITH, Oregon                 ROBERT MENENDEZ, New Jersey
JIM BUNNING, Kentucky

                     Bruce M. Evans, Staff Director
                   Judith K. Pensabene, Chief Counsel
                  Bob Simon, Democratic Staff Director
                  Sam Fowler, Democratic Chief Counsel
              Clint Williamson, Professional Staff Member
            Jonathan Epstein, Democratic Legislative Fellow


                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Bunning, Hon. Jim, U.S. Senator from Kentucky....................    29
Burr, Hon. Richard M., U.S. Senator from North Carolina..........    27
Domenici, Hon. Pete V., U.S. Senator from New Mexico.............     1
Ensign, Hon. John, U.S. Senator from Nevada......................    32
Garrick, B. John, Chairman, U.S. Nuclear Waste Technical Review 
  Board..........................................................     3
Golan, Paul M., Acting Director for the Office of Civilian 
  Radioactive Waste Management, Department of Energy.............     9
Loux, Robert R., Executive Director, Nevada Agency for Nuclear 
  Projects.......................................................    16
Reid, Hon. Harry, U.S. Senator from Nevada.......................    32
Thomas, Hon. Craig, U.S. Senator from Wyoming....................     3
Wehrum, William, Acting Assistant Administrator for Air and 
  Radiation, Environmental Protection Agency.....................    13

                               APPENDIXES
                               Appendix I

Responses to additional questions................................    37

                              Appendix II

Additional material submitted for the record.....................    55


                   YUCCA MOUNTAIN REPOSITORY PROJECT

                              ----------                              


                         TUESDAY, MAY 16, 2006

                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10 a.m., in room 
SD-366, Dirksen Senate Office Building, Hon. Pete V. Domenici, 
chairman, presiding.

          OPENING STATEMENT OF HON. PETE V. DOMENICI, 
                  U.S. SENATOR FROM NEW MEXICO

    The Chairman. Good morning. The purpose of this hearing is 
to evaluate the progress, or lack of progress, of the 
Department of Energy's Yucca Mountain program and to get a 
sense of where the project is today.
    I would dare say that it is no secret to anyone that I am a 
zealous proponent of expanding our Nation's nuclear power 
generation.
    Currently, we're at 20 percent of our electricity from 
nuclear power. But in this age of concern over our Nation's 
energy security and worry about the destructive results of 
climate change, we ought to promote more and more development 
of this limitless domestic resource of energy that produces no 
air emissions and no problems with reference to climate change 
and many other problems.
    But as we do that, we also agree to get on with a plan for 
the spent fuel. Each year, American commercial reactors 
continue to produce 2,000 more metric tons of spent fuel. And 
right now, more than 55,000 metric tons of spent nuclear fuel 
and high-level radioactive waste is now stored at more than 121 
sites in 39 States. These reactors sit rather quietly and 
produce clean emissions of free electricity. Americans get the 
benefit of clean air and can always depend on lights coming on 
in their homes.
    Beyond the need to maintain a high standard of living for 
Americans and a robust economy that is largely energy driven, 
we must consider the national security element that is also 
related to the spent fuel project. It is important to keep in 
mind that 40 percent of our Nation's warships are powered by 
nuclear fuel, which eventually becomes spent fuel and needs to 
be disposed of in Yucca Mountain supposedly. At least that was 
the plan.
    Additionally, final disposition is also needed for the 
spent fuel from the foreign research reactor programs. Under 
these research programs, the United States provides nuclear 
fuel for foreign research reactors and the programs attendant 
therewith, with the requirement that participating countries 
must return the fuel to the United States; that is, return it 
to the United States for disposition. Repatriating this spent 
fuel to the United States is essential to prevent proliferation 
of nuclear materials around the world.
    The Yucca Mountain project has a very long and extensive 
pedigree, starting back in the late 1950's when the National 
Academy of Sciences, which reported to the Atomic Energy 
Commission, suggested that burying radioactive high-level waste 
in geologic formations should receive consideration.
    The Nuclear Waste Policy Act of 1982 established a system 
for selecting the geologic repository for the permanent 
disposal of up to 70,000 metric tons of spent nuclear fuel and 
high-level waste. The Department of Energy, shortly thereafter, 
entered into contracts with utilities that owned nuclear 
reactors with the expectation to begin high--to begin taking 
spent fuel by 1998.
    However, it wasn't until 2002 that the Congress passed and 
President Bush signed H.J. Res. 87, approving the site at Yucca 
Mountain, NV, for the development of a geologic repository for 
the disposal of the fuel. The viewpoint in 2002 of many in the 
Congress was that this issue was considered ``closed.''
    But we have found that isn't the case at all. I believe 
many of my colleagues today would ask, ``Why are we here? 
Wasn't this issue solved in 2002? What needs to be done to get 
this program back on track?''
    Well, I would like the answers to these questions today and 
to explore with the witnesses how to make this program work if 
we can.
    Testifying before the committee today are: Mr. Paul Golan, 
acting director of the Office of Civilian Radioactive Waste at 
the Department of Energy. We thank you very much for being here 
and for your continued persistence and knowledge in this area.
    Mr. William Wehrum, Jr., acting assistant administrator of 
the Office of Air and Radiation at the Environmental Protection 
Agency. We thank you very much for your being here and for all 
of the highly technical work that you and your people do 
regarding this issue.
    Dr. John Garrick, chairman, U.S. Nuclear Waste Technical 
Review Board. Doctor, thank you very much for being here.
    And then we have Mr. Bob Loux, executive director, Agency 
of Nuclear Projects, Nuclear Waste Project Office within the 
Office of the Governor of Nevada. We welcome you. You have been 
in your position for quite some time. How many years now?
    Mr. Loux. Over 25.
    The Chairman. You are growing old with the project, right? 
I don't know what else to say. I have other things going 
through my mind that I won't say. Having said that, we will 
proceed. We're going to start now with the witnesses and 
proceed right on through.
    OK, Dr. John Garrick, chairman of the U.S. Nuclear Waste 
Technical Review Board, from Arlington, VA. Your statement is 
available and we will make it part of the record in its 
entirety as if read. Now, we would like to hear from you, sir.
    [The prepared statement of Senator Thomas follows:]

   Prepared Statement of Hon. Craig Thomas, U.S. Senator From Wyoming

    Good morning.
    I want to thank all of the witnesses for their participation in 
this important hearing. I will be brief, but I think there are some 
important points to be made here today.
    First of all, I want to emphasize the importance of nuclear power. 
This fuel accounts for roughly 20 percent of our nation's electricity. 
This Committee met yesterday to discuss reliability. A big part of that 
effort is having enough power to meet demand. At 20 percent, nuclear 
power is certainly doing its share.
    Nuclear Energy is also clean. Unlike coal, which provides more than 
half of our electricity, we do not have to worry about carbon dioxide, 
nitrogen oxide, sulfur dioxide, particulate matter, and all of the 
other emissions that we worry about.
    It is also safe. Of all the industries in the United States, 
Nuclear has one of the most impressive safety records out there.
    As a result of all these things, we included significant support 
for increased nuclear generation in the Energy bill. The Federal 
Government has an obligation to deal with the leftover fuel from those 
operations.
    Yucca Mountain is an essential part of that obligation.
    Massive amounts of time, money, and effort have gone into making 
sure that we have gotten this project right. We need to do this the 
right way, and I believe we have, but patience is wearing thin on some 
of the delays we've seen. I would really like to know what the 
realistic timeline is for this project.
    I look forward to hearing from our witnesses the progress that has 
been made in this project, and what needs to be done to begin shipping 
spent fuel to that repository.
    I thank you, Mr. Chairman, for convening this important hearing.

  STATEMENT OF B. JOHN GARRICK, CHAIRMAN, U.S. NUCLEAR WASTE 
                     TECHNICAL REVIEW BOARD

    Mr. Garrick. Mr. Chairman and members of the committee, 
good morning.
    The 11 members of the board are appointed by the President 
and serve on a part-time basis. Most of us have full-time 
occupations. In my case, I am a consultant in the nuclear 
science and engineering fields, specializing in the application 
of the risk sciences to complex technological systems. I am 
very pleased to be here today and to represent the board at 
this hearing on the status of the Yucca Mountain project.
    As you know, Mr. Chairman, the board was created by 
Congress in the 1987 amendments to the Nuclear Waste Policy Act 
and charged with independently evaluating the technical and 
scientific validity of the Department of Energy, DOE, 
activities related to disposing of, packaging, and transporting 
high-level radioactive waste and spent fuel.
    The board's technical evaluation focuses on pre-closure and 
post-closure issues, including the operational, safety and 
security performance of the proposed repository and the overall 
performance of the integrated waste management system. The 
board believes that an important part of its mandate is 
providing technical information to policymakers.
    For that reason, I am especially pleased to participate in 
the hearing. I will summarize the major points from my 
testimony and ask that my full testimony be added into the 
hearing record.
    Mr. Chairman, the board believes that the Department of 
Energy has made meaningful progress over the last year, 
especially in obtaining information on the capability of the 
engineered barrier system and on groundwater flow in the 
repository. DOE has also increased its ability to evaluate pre-
closure and post-closure performance as an integrated system.
    In addition, the acting director, Paul Golan, has 
reorganized the program and a canister-based system that can be 
used for storage, transportation and disposal of spent fuel has 
been proposed. As a result, the board is reasonably confident 
that the project can develop the additional evidence for the 
board to credibly evaluate how the entire waste management 
system will perform.
    The additional evidence referred to involves a few specific 
areas. For example, given the claims of conservatism by DOE in 
source term and radionuclide transport models, the board 
believes that carrying out realistic performance assessments, 
perhaps in parallel with DOE's efforts to develop a compliance 
case, could establish a baseline for measuring how conservative 
DOE's repository performance estimates are. The idea is to get 
from the experts their best shot at just how well they believe 
the repository can perform.
    We also have encouraged DOE to focus on improving the 
understanding of the chemical form of the radionuclide source 
term and the tracking of the radionuclides most significant to 
dose through the engineered and natural systems. The Department 
of Energy Science and Technology Program is conducting 
investigations on the source term and the board believes this 
important work should continue.
    Another important issue that needs to be resolved is the 
potential for corrosion of the waste packages. DOE maintains 
that the localized corrosion of alloy 22 at elevated 
temperatures can be excluded from its performance assessment 
calculations. The board believes that the technical basis for 
the conclusion is not compelling and that it is important to 
obtain better experimental information on localized corrosion 
and the likely waste package environment after repository 
closure. The board will hold a workshop in September to discuss 
these issues.
    The board continues to question DOE's understanding of the 
potential for retarding and retaining radionuclides in the 
unsaturated and saturated zones under the proposed repository 
and believes that additional work on radionuclide transport is 
warranted, especially for the condition of a more realistic 
source term that considers possible secondary phases of the 
dose contributing radionuclides. If source term investigations 
show that neptunium and plutonium exiting the engineered 
barrier system are captured in secondary mineral phases, the 
possibility exists that estimates of the natural system's 
capability to isolate dose-contributing radionuclides could be 
increased.
    The Department of Energy's new proposal involving a 
canister system for transporting, aging and disposing of spent-
fuel holds promise. However, the board believes that the 
project should fully evaluate the range of consequences 
associated with its implementation.
    An issue that affects pre-closure operations, as well as 
post-closure for repository performance, is thermal management. 
For example, the new canister system will have implications for 
DOE's thermal management strategy and DOE's above-boiling 
repository design will affect the potential for corrosion of 
the waste packages.
    The board believes that DOE needs to consider the system-
wide implications of heat on the waste management system and 
strengthen the technical basis for its thermal management 
strategy.
    Mr. Chairman, the board believes that the work that I have 
just discussed is doable and necessary for enhancing confidence 
in estimates of the repository and waste management system 
performance.
    On behalf of the board, I thank the committee for inviting 
us to participate in this hearing. We hope that the information 
that we have furnished today will be helpful in providing 
context for important decisions you will make on disposing of 
and managing spent nuclear fuel and high-level radioactive 
waste.
    I will be pleased to respond to any questions you may have.
    [The prepared statement of Mr. Garrick follows:]

  Prepared Statement of B. John Garrick, Chairman, U.S. Nuclear Waste 
                         Technical Review Board

    Mr. Chairman and members of the Committee, good morning. My name is 
John Garrick. I am Chairman of the U.S. Nuclear Waste Technical Review 
Board. The 11 members of the Board are appointed by the President and 
serve on a part-time basis. Most of us have full-time occupations. In 
my case, I am a consultant specializing in the application of the risk 
sciences to complex technological systems in the space, defense, 
chemical, marine, and nuclear fields. I am pleased to represent the 
Board at this hearing on the status of the Yucca Mountain program.
    As you know, Mr. Chairman, the Board was created by Congress in the 
1987 amendments to the Nuclear Waste Policy Act and charged with 
performing an ongoing and independent evaluation of the technical and 
scientific validity of Department of Energy (DOE) activities related to 
disposing of, packaging, and transporting high-level radioactive waste 
and spent nuclear fuel. The Board began its work in 1989 and has 
continuously reviewed the technical and scientific validity of DOE 
activities since that time.
    The Board's technical evaluation focuses on pre-closure and post-
closure issues, including (1) the operational, safety, and security 
performance of the proposed repository and (2) the overall performance 
of the integrated waste management system. The Board believes that a 
central part of its mandate is providing information on its technical 
evaluation to members of Congress who will make important decisions on 
the management and disposal of spent nuclear fuel and high-level 
radioactive waste. For that reason, the Board is especially pleased to 
participate today in this hearing on the status of the proposed 
repository at Yucca Mountain in Nevada.
    Mr. Chairman, over the last 18 months or so, the Board held a 
series of meetings with the DOE that enabled the Board to engage in 
detailed technical discussions of methods of analysis used by the 
program. The Board will soon release a report to Congress and the 
Secretary of Energy that summarizes the Board's activities over the 
last year and that includes details of its evaluation of the DOE's 
technical and scientific work. In my testimony today, I will highlight 
some of the key issues discussed in that report and other issues that 
have emerged in the last few weeks.
    Before I discuss in more detail the Board's technical evaluation of 
DOE activities related to Yucca Mountain, I want to make clear that, in 
general, the Board believes that the DOE has made meaningful progress 
over the last year, especially in obtaining information on the 
performance capability of the engineered barrier system and on the 
chemistry, magnitude, and rates of mountain-scale groundwater flow in 
the unsaturated and saturated zones under ambient temperature 
conditions. Using sophisticated simulation models, the DOE also has 
improved its ability to evaluate pre-closure and post-closure 
performance as an integrated system. In addition, efforts have been 
made to reorganize the program, and a major proposal for implementing a 
canister-based system that can accommodate storage, transportation, and 
disposal of spent nuclear fuel has been proposed. As a result, the 
Board believes that additional evidence necessary for credibly 
evaluating the performance of the entire waste system can be developed. 
I will now discuss in more detail the status of some important 
technical issues.

                    REALISTIC PERFORMANCE ASSESSMENT

    Mr. Chairman, as you would expect, the DOE's efforts to prepare a 
license application have dominated its work for the last several years. 
The primary tool used by the DOE to evaluate the performance of the 
repository is total system performance assessment, or TSPA. TSPA is a 
comprehensive set of computer models that uses experience, available 
data, assumptions, and probabilities to estimate potential dose and 
compliance with the regulatory standard. Uncertainty is necessarily 
associated with these projections that are made for periods of up to 
one million years. To deal with uncertainty or gaps in understanding, 
the DOE often uses what it considers conservative assumptions about the 
features or processes being modeled. Examples of this are the ways that 
the DOE models the temperature dependence of generalized corrosion 
rates, sorption in the saturated zone, and the containment capability 
of some parts of the engineered barrier system.
    However, because the DOE's assumptions are not always conservative, 
the overall degree of conservatism is hard to assess. Consequently, 
TSPA may not give a realistic picture of how a proposed repository 
would perform. The Board believes that carrying out realistic 
performance analyses, perhaps in parallel with efforts to develop a 
compliance case, could establish a ``baseline'' for measuring how 
conservative--or nonconservative--the DOE's repository performance 
estimates might be. Having this information would provide decision-
makers, the scientific community, and affected parties with important 
and relevant information.
    In addition, the Board believes that there is considerable 
uncertainty about the source term incorporated in TSPA. (The source 
term refers to the compositions, kinds, and amounts of radionuclides 
that make up the source of a potential release of radioactivity from 
the engineered bather system to the host rock.) To increase confidence 
in performance estimates, the Board has suggested that the DOE focus on 
analyzing the source term and tracking the radionuclides most 
significant to dose (neptunium-237 and plutonium-242) through the 
engineered and natural systems. The DOE is trying to increase its 
understanding of the source term through work sponsored by its Science 
and Technology Program. The Board believes that this important work 
should continue.

                         THE ENGINEERED SYSTEM

    The outer barrier of the waste package is made of a corrosion-
resistant material known as Alloy 22. Alloy 22 will not corrode 
significantly unless liquid water is present on the waste package 
surface. The higher the temperature at which liquid water is present, 
the greater the concern because metals corrode faster and are more 
susceptible to corrosion at higher temperatures. The DOE maintains that 
potential localized corrosion of Alloy 22 at elevated temperatures 
under aqueous conditions can be excluded from its TSPA calculations. In 
the Board's view, the technical basis for the exclusion is not 
compelling. The Board continues to believe that obtaining experimental 
data on localized corrosion should be a high priority, especially given 
the DOE's current high-temperature repository design. In addition, 
future performance assessments should not exclude general corrosion at 
elevated temperatures when aqueous conditions are predicted to be 
present. The Board will hold a workshop in September at which issues 
related to localized corrosion will be discussed.

                           THE NATURAL SYSTEM

    The natural geologic system at Yucca Mountain will play an 
important role as a barrier to radionuclide transport. Properties of 
the natural system will affect the speed of transport and the 
effectiveness of the engineered barriers. Over time, the DOE has 
continued to refine and update its model for flow and transport in the 
unsaturated zone. At this point, no evidence has been developed that 
calls into question the DOE's long-held view that flow in the 
unsaturated zone is dominated by fractures and faults. In addition, the 
Project's findings on the chemistry of water in the unsaturated and 
saturated zones appear broadly consistent with a large body of 
empirical data and experience. However, the Board continues to question 
the DOE's understanding of the unsaturated zone beneath the proposed 
repository in relation to retarding and retaining radionuclides. The 
Board believes that obtaining additional information on radionuclide 
transport is warranted, especially on secondary minerals and on 
colloid-facilitated radionuclide transport. Such information could be 
important for assessing repository performance. For example, if future 
investigations confirm that neptunium is captured in secondary mineral 
phases, estimates of the natural system's capability to isolate dose-
contributing radionuclides could increase.

                      THE WASTE MANAGEMENT SYSTEM

    The Board believes that the DOE's new proposal for a canister-based 
system for transporting, aging, and disposing of (TAD) spent fuel holds 
promise as a way of minimizing the handling of bare spent-fuel 
assemblies and simplifying the design of surface facilities at Yucca 
Mountain. However, the success of such an approach depends on a number 
of factors, including close cooperation and coordination among the DOE, 
nuclear utilities, and cask vendors. The DOE also must consider the 
range of consequences associated with implementing the TAD concept for 
pre-closure and post-closure performance. The DOE's evaluation of TAD 
should include a more complete set of scenarios for waste acceptance, 
waste transportation, repository operations, design of repository 
surface facilities, and waste emplacement in the repository.
    The DOE has developed the Total System Model (TSM), which can be 
used as a tool for analyzing a variety of pre-closure scenarios and the 
performance of the entire waste management system. The TSM can be used 
to examine system throughput and to identify possible choke points; it 
can assess the effects of delayed construction of a rail spur; and it 
can evaluate conditions that contribute to efficient operation of the 
surface facilities. For the TSM to be used most effectively, it should 
have the ability to represent ``upset'' conditions and to analyze all 
waste management components, including emplacement. The TSM also should 
be based on the most up-to-date information, and the assumptions 
underlying the model should be confirmed.
    Because of funding constraints, much of the Project's anticipated 
work on establishing a transportation network has been deferred. 
Nonetheless, the Board believes that the Project should perform a 
comparative risk analysis of rail corridors that might be used for 
moving spent fuel and high-level radioactive waste to Yucca Mountain, 
and, once that analysis has been completed, should inform all 
interested and affected parties of what routes it prefers. The DOE also 
should develop a contingency plan for greater use of legal-weight and 
heavy-haul trucking.

                          CROSS-CUTTING ISSUES

    An issue that permeates pre-closure operations as well as post-
closure repository performance is the DOE's strategy for managing the 
heat generated by radioactive decay. For example, post-closure thermal 
requirements create constraints on plans for pre-closure operations and 
the design of surface facilities at Yucca Mountain. Moreover, 
implementation of TAD will have implications for the thermal management 
strategy that do not appear to have been fully considered. As mentioned 
earlier, after the repository is closed, above-boiling repository 
temperatures that will last for about 1,000 years (the so-called 
thermal pulse) will affect the performance of the engineered system, 
including the waste packages. In particular, the potential for 
localized corrosion to initiate during the thermal pulse has yet to be 
resolved. In general, the Board believes that the DOE should consider 
the systemwide implications of and strengthen the technical basis for 
its thermal-management strategy, which also will be important for 
licensing.
    I have referred several times in my statement to one or another 
``system.'' The Board often uses this term to emphasize that all the 
elements involved in packaging, transporting, and disposing of spent 
nuclear fuel and high-level radioactive waste are connected, so the 
assessment of the behavior and performance of one element may strongly 
depend on or affect the behavior and performance of others. The Board 
believes that the DOE's pre-closure and post-closure plans for the 
repository should recognize and accommodate those interdependencies. 
That is the reason that, over the years, the Board has strongly 
recommended integration of program elements across the broad range of 
scientific and engineering activities. The Board believes that any 
program reorganization should reflect the need to facilitate this 
essential integration.
    Finally, Mr. Chairman, the Board believes that the technical work I 
have just discussed is doable and will enhance confidence in estimates 
of the performance of the repository and the waste-management system. 
The Board thanks the Committee for inviting it to participate in this 
hearing and hopes that the information we have furnished today will be 
helpful in providing a technical context for important decisions that 
you will make on disposing of and managing spent nuclear fuel and high-
level radioactive waste.
    I will be pleased to respond to questions.
                                 ______
                                 
          Supplementary Information on the U.S. Nuclear Waste 
                         Technical Review Board

                            ABOUT THE BOARD

    The U.S. Nuclear Waste Technical Review Board was established on 
December 22, 1987, in the Nuclear Waste Policy Amendments Act (NWPAA) 
as an independent agency in the executive branch of the federal 
government. The Board is charged with evaluating the technical and 
scientific validity of activities undertaken by the Secretary of 
Energy, including the following:

   site characterization
   activities related to packaging and transporting high-level 
        radioactive waste and spent nuclear fuel.

    The Board was given broad latitude to review activities undertaken 
by the Secretary of Energy in implementing the Nuclear Waste Policy 
Act. However, the Board was not given authority to require the DOE to 
implement Board recommendations.\1\ The Board is required to report its 
findings and recommendations at least twice each year to Congress and 
the Secretary of Energy.
---------------------------------------------------------------------------
    \1\ Taken from Legislative History of the Nuclear Waste Policy 
Amendments Act of 1987; February 26, 1998.
---------------------------------------------------------------------------
                             BOARD MEMBERS

    The NWPAA authorized a Board of 11 members. All the members serve 
on a part-time basis; are eminent in a field of science or engineering, 
including environmental sciences; and are selected solely on the basis 
of distinguished professional service. The law stipulates that the 
Board shall represent a broad range of scientific and engineering 
disciplines relevant to nuclear waste management. Board members are 
appointed by the President from a list of candidates recommended by the 
National Academy of Sciences. To prevent gaps in the Board's 
comprehensive technical review, Board members whose terms have expired 
continue serving until they are reappointed or their replacements 
assume office. The first members were appointed to the Board on January 
18, 1989. Current members were appointed by President George W. Bush.
    The names and affiliations of the current 11 Board members are 
listed below.

   B. John Garrick, Ph.D., P.E., is Chairman of the Board. A 
        founder of PLG, Inc., he retired from the firm in 1997 and is 
        an executive consultant. His areas of expertise include 
        applications of the risk sciences to complex technological 
        systems in the space, defense, chemical, marine, and nuclear 
        fields.
   Mark D. Abkowitz, Ph.D., is professor of civil and 
        environmental engineering and director of the Vanderbilt Center 
        for Environmental Management studies at Vanderbilt University. 
        His areas of expertise include transportation safety and 
        security, systems analysis, all-hazards risk management, and 
        applications of advanced information technologies.
   William Howard Arnold, Ph.D., P.E., a private consultant, 
        retired from Louisiana Energy Services in 1996. He holds a 
        doctorate in experimental physics and has special expertise in 
        nuclear project management, organization, and operations.
   Thure E. Cerling, Ph.D., is Distinguished Professor of 
        Geology and Geophysics and professor of biology at the 
        University of Utah. His areas of expertise include terrestrial 
        geochemistry and geochemistry processes.
   David J. Duquette, Ph.D., is department head and professor 
        of materials engineering at Rensselaer Polytechnic Institute. 
        His areas of expertise include the physical, chemical, and 
        mechanical properties of metals and alloys.
   George M. Homberger, Ph.D., is Ernest H. Emeritus Professor 
        of Environmental Sciences in the Department of Environmental 
        Sciences at the University of Virginia. His areas of expertise 
        include catchment hydrology and hydrochemistry and transport of 
        colloids in geologic media.
   Andrew C. Kadak, Ph.D., is Professor of the Practice in the 
        Nuclear Science and Engineering Department at the Massachusetts 
        Institute of Technology. His areas of expertise include nuclear 
        engineering and the development of advanced reactors.
   Ronald M. Latanision, Ph.D., is emeritus professor of 
        materials science and engineering at the Massachusetts 
        Institute of Technology and a principal in Exponent, a science 
        and engineering firm. His areas of expertise include materials 
        processing and corrosion of metals and other materials in 
        aqueous environments.
   Ali Mosleh, Ph.D., is Nicole J. Kim Professor of 
        Engineering, director of the Reliability Engineering Program, 
        and director of the Center for Risk and Reliability at the 
        University of Maryland. His areas of expertise include methods 
        for probabilistic risk analysis and reliability of complex 
        systems.
   William M. Murphy is associate professor in the Department 
        of Geological and Environmental Sciences at California State 
        University, Chico. His research focuses on geochemistry, 
        including the interactions of nuclear wastes and geologic 
        media.
   Henry Petroski, Ph.D., P.E., is Aleksandar S. Vesic 
        Professor of Civil Engineering and professor of history at Duke 
        University. His areas of expertise include the 
        interrelationship between success and failure in engineering 
        design. He also has a strong interest in invention and in the 
        history of evolution of technology.

    The Chairman. Thank you very much, sir. Your written 
testimony has been submitted.
    Paul Golan, acting director of the Office of Civilian and 
Radioactive Waste, U.S. Department of Energy, we thank you for 
being here, sir.

 STATEMENT OF PAUL M. GOLAN, ACTING DIRECTOR FOR THE OFFICE OF 
  CIVILIAN RADIOACTIVE WASTE MANAGEMENT, DEPARTMENT OF ENERGY

    Mr. Golan. Thank you, Mr. Chairman. I appreciate the 
opportunity to come before this committee to provide a status 
update of the Yucca Mountain Project.
    A year ago, Secretary Bodman gave me rather explicit 
direction to make Yucca Mountain safer, make it simpler and 
make it more reliable. Today, I would like to provide a project 
status update on actions we have taken.
    In October 2005, the Department announced a redirection to 
a primarily clean-canistered approach to spent-fuel handling. A 
single canister, also called the ``TAD'', would be used to 
transport, age and dispose of waste without the need to reopen 
the waste package and handle spent nuclear fuel. We are working 
with industry to develop the specifications for this canister, 
and envision that the spent fuel will be primarily packaged by 
the utilities.
    The Department would take advantage of existing commercial 
fuel-handling and packaging capability while eliminating the 
need to construct and operate two massive dry fuel handling 
facilities that had been planned.
    We are reviewing the design for this approach and, with 
approval by the Secretary, will incorporate it into our 
baseline. Later this summer, the Department intends to put 
forward its licensing schedule and we will then come back and 
brief the committee and its staff.
    In March 2005, the Department became aware of project e-
mails between some employees of the U.S. Geological Survey that 
indicated non-compliance with QA requirements associated with 
infiltration modeling work. Infiltration is an important 
parameter as it helps predict water flow through Yucca Mountain 
over time.
    In February 2006, the Department issued its technical 
report, which I have a copy of here, which found out that the 
USGS infiltration rate estimates were consistent with the 
conclusions of work completed by scientists independent of this 
project. Our review also confirmed that the USGS infiltration 
rate estimates were consistent with arid and semi-arid region 
hydrology from around the United States, including estimates 
from the Nevada's Engineering Office.
    Because our QA requirements were not met, we decided to 
replace the affected work and directed Sandia National 
Laboratories to redevelop pertinent computer codes. We will 
replace the USGS estimates after Sandia's work has been 
completed and independently--after it has been completed and 
independently reviewed, and expect to complete that work by the 
end of this year.
    We are working to improve our quality and culture and fix 
problems while they are small and, as a result, have directed 
several work suspensions and work stoppages over the last 
several months. We will take whatever action is necessary to 
ensure our work products meet our QA requirements. Our goal is 
to have all of our work done right the first time, every time.
    We're working to establish a ``trust but verify'' culture 
and ensure that we have the ability to independently review key 
areas of our technical work. We have tasked a university-based 
consortium, the Oak Ridge Institute for Science and Education, 
ORISE, to perform this function.
    Also, in bringing the best and brightest to this project, 
in January we designated Sandia as our lead lab to coordinate 
and organize our scientific work. In choosing Sandia, we take 
full advantage of the great resource of our national 
laboratories and Sandia stands out as one of our Nation's 
finest labs. Sandia, as you will recall, performed similar work 
for the very successful waste isolation pilot plant. We expect 
to take full advantage of the lessons they have learned. 
Transition is underway and we're expecting it completed by 
year-end.
    In August 2005, the EPA revised--issued revised Draft 
Radiation Protection Standards for Yucca Mountain in response 
to a U.S. Court of Appeals decision to extend peak dose to one-
million years following waste disposal operations. The proposed 
rule contains the existing 10,000-year protection standard of 
15 millirems and supplements it with an additional 350 millirem 
per year standard at the time of peak dose.
    The Department supports this approach. Clearly, there are 
health effects associated with radiation exposure and we should 
work to ensure that any exposure is as low as reasonably 
achievable. We believe the proposed standards are protective 
and the health effects of such exposures are quite low when 
compared to other risks that society normally and routinely 
accepts today.
    For example, the allowable dose for an individual at the 
location of peak dose at Yucca Mountain, several hundred 
thousand years into the future, will be similar to the dose a 
resident of Denver, or similarly high-altitude areas, receive 
today.
    Further studies have not detected differences in cancer 
rates in populations for people living in areas with higher 
levels of background radiation compared to populations that 
live in areas of lower background levels of radiation.
    Last, in accordance with section 161 of the Nuclear Waste 
Policy Act, the Department has formed a task team to evaluate 
the need for a second repository, and will prepare the required 
report to the President and Congress.
    Yucca Mountain is important for our Nation. Yucca Mountain 
will receive the waste from commercial nuclear power plants, 
which today provide 20 percent of our Nation's electricity, and 
over time has precluded the mining and consumption of over five 
billion tons of coal.
    The Defense waste at Savannah helped our Nation develop a 
strategic deterrent to fight and win the cold war. The spent 
nuclear fuel from the Navy has powered frontline nuclear-
powered submarines and aircraft carriers defending our freedom 
for more than 50 years.
    Yucca Mountain is a good site. I believe that our license 
application will provide the necessary assurance that we can 
operate Yucca Mountain safely and in compliance with the 
requirements from both the EPA and NRC.
    That concludes my opening statement.
    [The prepared statement of Mr. Golan follows:]

Prepared Statement of Paul M. Golan, Acting Director for the Office of 
      Civilian Radioactive Waste Management, Department of Energy

    Mr. Chairman and members of the Committee, my name is Paul Golan 
and I am the Acting Director of the Department of Energy (DOE) Office 
of Civilian Radioactive Waste Management (OCRWM). I appreciate the 
opportunity to provide an update of the Yucca Mountain Project to the 
Committee.
    About a year ago, Secretary Bodman asked us to take a hard look at 
Yucca Mountain to find ways in his words to ``make it safer, make it 
simpler, and make it more reliable.'' With that direction, we have 
taken actions to improve our operations and processes. I would like to 
discuss those actions today, including:

          1. The clean-canistered approach to waste handling
          2. Resolution of concerns associated with infiltration 
        modeling done by the U.S. Geological Survey (USGS)
          3. Designation of Sandia National Laboratories as the 
        Project's lead laboratory
          4. Use of independent scientific review
          5. Environmental Protection Agency (EPA) Radiation Protection 
        Standards
          6. Need for a second repository
          7. Licensing schedule

             1. CLEAN-CANISTERED APPROACH TO WASTE HANDLING

    In October 2005, the Department announced a redirection for the 
Project to a primarily clean-canistered approach to spent nuclear fuel 
handling operations. A single canister would be used to transport, age, 
and dispose of the spent nuclear fuel without needing to re-open the 
waste package and handle individual fuel assemblies. While a 
transportation, aging, and disposal canister, or TAD, is not certified 
today, we believe that the technical challenges of this approach can be 
resolved and will result in simpler, safer, and more reliable 
operations. We are working with industry to develop canister 
specifications and working diligently on an acquisition strategy. Under 
this approach, the spent nuclear fuel will be packaged for disposal 
primarily by the utilities. This would allow the Department to take 
advantage of existing commercial capability and to reduce the risks of 
radiation exposure and contamination from spent nuclear fuel handling 
operations at the repository by reducing the need to handle individual 
fuel assemblies several times prior to packaging for final disposal.
    The clean-canistered approach requires an examination of the 
existing repository design and operations. Additional time is required 
to develop and revise portions of the license application in support of 
this new approach. The Department is currently reviewing the existing 
design and developing the appropriate documentation to support a 
Secretarial decision on the clean-canistered approach. A decision is 
expected later this summer.

               2. INFILTRATION WORK PERFORMED BY THE USGS

    In March 2005, the Department became aware of Project emails 
between some employees of the USGS that suggested non-compliance with 
certain quality assurance (QA) requirements associated with their work 
in preparing the water infiltration model and maps. Infiltration is a 
parameter in the Total System Performance Model predicting the flow of 
water through the mountain over time.
    In February 2006, the Department issued a technical report, 
evaluating the infiltration estimates developed by the USGS. The 
independent technical evaluation found the infiltration work completed 
by the USGS to be consistent with the conclusions of infiltration work 
completed by scientists independent of this Project, including the 
State of Nevada's Engineering Officer, under present and future 
predicted climate conditions. Our review also confirmed that the net 
infiltration rate of precipitation into Yucca Mountain is very small, 
in the range of one to six percent of annual precipitation (which 
itself is a very small amount, approximately 7.5 inches per year).
    While we found that the science was sound, some of our QA 
requirements were not met, and consequently we are expending time and 
resources to replace the affected work. We have directed Sandia 
National Laboratories to develop computer codes that will generate new 
infiltration rate estimates---in accordance with our QA requirements---
and then replace the infiltration rate estimates. The Sandia 
infiltration rates will be independently reviewed prior to 
incorporation into the Total System Performance Model.

                      3. LEAD NATIONAL LABORATORY

    In January 2006, the OCRWM designated Sandia National Laboratories 
in Albuquerque, New Mexico the lead laboratory to coordinate and 
organize all scientific work on the Yucca Mountain Project. Since this 
Program represents a major scientific and technical challenge, we want 
to ensure the Program takes full advantage of the resources that reside 
in our national laboratories.
    Today we are working to transition the scientific work to Sandia 
and expect to complete that transition by the end of the year.

                4. USE OF INDEPENDENT SCIENTIFIC REVIEW

    To further ensure the highest quality and objectivity of the 
science and technology supporting the Yucca Mountain Project, we are 
working to instill a culture of ``trust but verify.'' As part of this 
effort, we will use a University-based consortium to independently 
review key aspects of the Project to ensure we stay objective and 
without bias. In April, the Department selected the Oak Ridge Institute 
for Science and Education to perform this work. Additionally, we are in 
the process of implementing the Safety Conscious Work Environment 
across the entire Yucca Mountain Project.

                 5. EPA RADIATION PROTECTION STANDARDS

    In August 2005, the EPA proposed revised standards for Yucca 
Mountain in response to a decision by the U.S. Court of Appeals for the 
District of Columbia which vacated portions of the existing EPA 
radiation protection standards. Specifically, in response to the 
decision, EPA proposed a radiological exposure limit for the time of 
peak dose to the general public for a one-million year period following 
the disposal of waste at Yucca Mountain. This new evaluation period is 
100 times longer than the previous period of 10,000 years, and it is 
longer than any other regulatory period involving quantitative limits.
    The proposed EPA rule retains the existing 10,000-year individual 
protection standard of 15 milliRem per year, and supplements it with an 
additional standard of 350 milliRem per year at the time of peak dose.
    The Department supports the EPA approach.
    A rule with two compliance periods recognizes the extraordinary 
challenges in making quantitative predictions of effects a million 
years from now. It recognizes:

   The limitations of bounding analyses,
   The greater uncertainties at the time of peak risk, as well 
        as
   The lessened precision in calculated results as time and 
        uncertainties increase.

    Retaining the existing 15 milliRem per year standard for the 
initial 10,000-years ensures that the repository design will include 
prudent steps, including the use of engineered and natural barriers to 
limit offsite doses.
    Through the one-million year performance period, the natural and 
engineered barriers will continue to keep exposure levels low, below 
what many people receive today, depending on where they work or where 
they live. The proposed 350 milliRem annual limit for the out years 
reflects a level of risk that society normally lives with today. The 
allowable dose for an individual at the location of peak dose at Yucca 
Mountain, several hundred thousand years in the future, for example, 
would be no greater than the average dose a resident of Denver, 
Colorado, or other similar high-altitude location receives today.
    Further, studies have not detected that people living in areas with 
higher levels of natural background radiation have a higher rate of 
cancer or other radiation-linked illnesses than do those living in 
areas with lower levels of natural background radiation.

                    6. NEED FOR A SECOND REPOSITORY

    The Department will form a task team to evaluate the need for a 
second repository. The Department will provide its report, as required 
by the Nuclear Waste Policy Act of 1982 (NWPA), to the President and 
Congress between 2007 and 2010. The Department has projected that more 
than one hundred thousand metric tons of spent nuclear fuel will be 
generated by the current licensed commercial reactor fleet, there will 
be a need for capacity in excess of 70,000 metric tons which is the 
administrative limit currently imposed by the NWPA on the Yucca 
Mountain repository.

                         7. LICENSING SCHEDULE

    The Department is committed to developing a realistic schedule that 
will result in the submission of a robust license application. Later 
this summer, we will publish our schedule and strategy for submittal of 
the license application to the NRC which will be consistent with 
Section 114 (e) of the Act that directs the Secretary to develop a plan 
``that portrays the optimum way to attain the operation of the 
repository.'' After we publish this schedule, we will provide the 
Committee and its staff briefings.

                               CONCLUSION

    Over the last 50 years, our Nation has benefited greatly from 
nuclear energy and the power of the atom, but we have been left with a 
legacy marked by the generation and accumulation of more than 50,000 
metric tons of commercially generated spent nuclear fuel, 2,500 metric 
tons of DOE spent nuclear fuel, and an estimated 20,000 or more 
canisters of DOE high-level radioactive waste. Additionally, 2,000 
metric tons of commercial spent nuclear fuel will be generated this 
year and in every succeeding year by the current fleet of commercial 
electrical power generating reactors as they supply 20% of our Nation's 
electricity.
    There is a clear national need for Yucca Mountain, even if we could 
reduce our national electricity consumption by 20% and were able to 
shut down every commercial reactor and nuclear project in the country 
today. We are taking steps to ensure that we develop and construct the 
safest, simplest repository that we possible can, based on sound 
science and quality work.
    There is a strong international scientific consensus that the best 
and safest option for dealing with this waste is geologic isolation. 
This consensus includes the National Academy of Sciences which has 
generally endorsed the geologic disposal option as far back as 1957.
    To conclude, I believe that our license application will provide 
the necessary assurances that we can operate Yucca Mountain in 
compliance with the performance requirements of the EPA and the NRC. We 
will also demonstrate that our approach to operations will be carefully 
planned, logical, and methodical.
    That completes my prepared statement.

        STATEMENT OF WILLILAM WEHRUM, ACTING ASSISTANT 
    ADMINISTRATOR FOR AIR AND RADIATION U.S. ENVIRONMENTAL 
                       PROTECTION AGENCY

    Mr. Wehrum. Thank you, Mr. Chairman and members of the 
committee.
    Good morning. My name is Bill Wehrum. I am the acting 
assistant administrator for the Office of Air and Radiation at 
the USEPA.
    I'm pleased to be here today to provide you with an update 
on the status of EPA's public health and safety standards for 
the proposed spent nuclear fuel and high-level radioactive 
waste repository at Yucca Mountain, NV.
    I would like to begin by providing the committee with a 
short history of EPA's responsibilities and why we have 
proposed revised standards. The Nuclear Waste Policy Act of 
1982 described the roles and responsibilities of Federal 
agencies in the development of disposal facilities for spent 
nuclear fuel and high-level waste. EPA was identified as the 
agency responsible for establishing standards to protect the 
general environment from such facilities.
    In the Energy Policy Act of 1992, Congress delineated EPA's 
roles and responsibilities specific to the Federal Government's 
establishment of the potential repository at Yucca Mountain. 
EPA's role is to determine how the Yucca Mountain high-level 
waste facility must perform to protect public health and the 
environment.
    Congress directed EPA to develop public health and safety 
standards that would be incorporated into the NRC licensing 
requirements for the Yucca Mountain facility. DOE would apply 
for the license to construct and operate the facility, and the 
facility would open only if NRC determines that DOE can meet 
EPA's standards.
    In establishing EPA's role, Congress also stated that EPA's 
safety standards are to be based upon and consistent with the 
expert advice of the National Academy of Sciences.
    EPA established its Yucca Mountain standards in June 2001. 
As required by the Energy Policy Act, these standards addressed 
releases of radioactive material during storage at the site and 
after final disposal.
    The storage standard set a dose limit of 15 millirem per 
year for the public outside the Yucca Mountain site. The 
disposal standards consisted of three components: an individual 
dose standard, a standard evaluating the impacts of human 
intrusion into the repository, and a ground-water protection 
standard.
    The individual-protection and human intrusion standard set 
a limit of 15 millirem per year to the reasonably maximally 
exposed individual, who would be among the most highly exposed 
members of the public.
    The ground-water protection standard is consistent with 
EPA's drinking water standards, which the Agency applies in 
many situations as a pollution prevention measure. The disposal 
standards were to apply for a period of 10,000 years after the 
facility closed. Dose assessments were to continue beyond 
10,000 years and be placed in DOE's Environmental Impact 
Statement, but were not subject to a compliance standard.
    The 10,000-year period for compliance assessment is 
consistent with EPA's generally applicable standards developed 
under the Nuclear Waste Policy Act. It also reflects 
international guidance regarding the level of confidence that 
can be placed in numeric projections over very long periods of 
time.
    Shortly after the EPA first established these standards in 
2001, the nuclear industry, several environmental and public 
interest groups, and the State of Nevada challenged the 
standards in court. In July 2004, the Court of Appeals for the 
DC Circuit found in favor of the agency in all issues except 
one: the 10,000-year regulatory timeframe. The court did not 
rule on whether EPA's standards were protective, but did find 
that the timeframe of EPA's standards was not consistent with 
the NAS recommendations.
    The NAS, in a report to EPA, stated that EPA's standards 
should cover at least the time period when highest releases of 
radiation are most likely to occur within the limits imposed by 
the geologic stability of the Yucca Mountain site. It judged 
this period of geologic stability for purposes of projecting 
releases from the repository to be on the order of one million 
years.
    EPA's 2001 standards required DOE to evaluate the 
performance of the site for this period, but did not establish 
a specific dose limit beyond the first 10,000 years.
    EPA proposed a revised rule in August 2005, to address the 
issues raised by the appeals court. The new proposed rule 
limits radiation doses from Yucca Mountain for up to one 
million years after it closes. No other rules in the United 
States for any risks have ever attempted to regulate for such a 
long period of time.
    Within that regulatory timeframe, we have proposed two dose 
standards that would apply based on the number of years from 
the time that the facility is closed.
    For the first 10,000 years, we would retain the 2001 final 
rule's dose limit of 15 millirem per year. This is protection 
at the level of the most stringent radiation regulations in the 
United States today.
    From ten thousand years to one million years, we propose a 
dose limit of 350 millirem per year. This represents a total 
radiation exposure for people near Yucca Mountain that is no 
higher than natural levels people live with routinely in other 
parts of the country.
    One million years, which represents 25,000 generations, 
includes the time at which the highest doses of radiation from 
the facility are expected to occur.
    Our proposal requires the DOE to show that Yucca Mountain 
can safely contain wastes, even considering the effects of 
earthquakes, volcanic activity, climate change, and container 
corrosion over one million years.
    The public comment period for the proposed rule closed 
November 21. We are currently reviewing and considering 
comments as we develop the final rule. We held public hearings 
in Las Vegas and Amargosa Valley, NV, and in Washington, DC.
    We are considering comments from these hearings, as well as 
all the comments submitted to the Agency's rulemaking docket. A 
document describing our responses to all comments will be 
published along with the final rule. We are making every effort 
to finalize the rule by end of this year.
    Thank you again for the opportunity to appear before the 
committee and present this update on our standards. This 
concludes my statement. I would be happy to answer any 
questions you may have.
    The Chairman. Thank you very much for your testimony. And 
what a job you have.
    Now, having said that, we will take Mr. Loux from Nevada, 
the 25-year veteran.

STATEMENT OF ROBERT R. LOUX, EXECUTIVE DIRECTOR, NEVADA AGENCY 
                      FOR NUCLEAR PROJECTS

    Mr. Loux. Thank you, Mr. Chairman. It's a pleasure to be 
here and thank you for the invitation. As you know, I am here 
on behalf of Governor Guinn.
    The Chairman. Yes, indeed.
    Mr. Loux. I am Robert Loux and I am the director of the 
Agency for Nuclear Projects, which is, as you mentioned, part 
of the Office of the Governor.
    The current status of the Yucca Mountain high-level waste 
repository project can be described in a single word: unknown--
not even uncertain, but unknown. You have heard from the 
Department of Energy that it cannot provide a schedule for 
submittal of a license application of the NRC for its review, 
but the Department representative said it will not take place 
in 2007.
    You've also watched the progression of a potential 
repository opening date go from the statutory 1998 date to more 
recent estimates of 2010, maybe 2015, or maybe even 2020.
    More recently, just last week at the TRB meeting, one of 
the Department of Energy representatives indicated that the 
clean canister or TAD approach, final design will not be 
available for at least 6 years. And since that design is 
integral to the design of the repository, it is hard to believe 
that a license application could be submitted before 6 or 7 
years from now. Multiple episodes of redirection of the 
program, both from within the Department of Energy and 
Congress, defined the last 20 years of the Yucca Mountain 
project history.
    The current status of the Yucca Mountain project is a 
product of fundamental, persistent unresolved problems with 
both the site and project execution, overlain by layers of 
redirection that wrongly assume the problems have been, or will 
be resolved. It is bogged down in the morass of technical, 
legal and managerial problems and it is unrealistic to imagine 
the project can pull itself out. It is unlikely that any 
legislative easing of the regulatory rules can alter this 
prospect.
    The technical problems stem ultimately from the fundamental 
unsuitability of the site. The Department of Energy has been 
struggling with this since the early 1990's when it discovered 
there is a lot more water at the site and it was moving much 
faster than expected from when it settled on the site. Instead 
of coming back to Congress with the bad news, DOE decided to 
compensate for the bad site with better packaging, which also 
doesn't solve the problem.
    Since then, billions of dollars of so-called scientific 
investigation have been directed at rationalizing this 
decision. In our estimation, much of it is not really science 
at all. It is not surprising, at least in some cases, that the 
scientists working the project just made stuff up, as revealed 
by the e-mail affair involving staff of the USGS working on 
waterflow through Yucca Mountain. Much of this work--much of 
the other work now has to be redone at considerable cost.
    The quality flag went down in the middle 1990's, too, as 
revealed in the recent report by the Government Accountability 
Office. DOE has a long history of chronic quality assurance 
problems. The latest problems involve Lawrence Livermore Lab. 
The Department and its contractors were never imbued with the 
sense of doing things right. They apparently thought that it's, 
quote, ``all political'', and that they would get their way in 
the end no matter what. Rest assured that should the 
application be submitted to the Nuclear Regulatory Commission, 
Nevada will challenge and question DOE's fitness as an 
applicant and as a licensee.
    Legal problems are exemplified by the current litigation in 
which DOE is desperately fighting to prevent the public release 
of key licensing documents, documents paid for by the 
taxpayers.
    It is a strange position for a Government agency supposedly 
devoted to openness in making sound decisions in the public 
interest. The truth is it is devoted to secrecy and special 
protection of the bureaucratic and contractor-interest involved 
in the project.
    The main trouble with this approach is secrecy leads to 
poor decisions and mistakes, and fortunately, secrecy and 
bullying do not work well in the Federal courts. These legal 
and technical problems exemplify the poor direction DOE top 
management has given to the project. Beyond that, however, the 
Department has been beset with unceasing managerial problems at 
all level. The latest GAO report lays this out clearly. It 
describes incompetent, changing managerial personnel, key 
positions unfilled and poor tracking of problems.
    Mr. Chairman, in my own 25 years of personal experience and 
observation, I believe the project is bogged down by technical 
problems that stem from the fundamental unsuitability of the 
site, by inadequate scientific evaluation by DOE, and by DOE's 
poor direction and inability to manage its contractors. At this 
point, it is unrealistic to imagine the project can pull itself 
out of this morass.
    With that, Mr. Chairman, I'll conclude and be happy to 
answer any questions.
    [The prepared statement of Mr. Loux follows:]

       Prepared Statement of Robert R. Loux, Executive Director, 
                   Nevada Agency For Nuclear Projects

    Thank you for the opportunity to appear before you today. I am 
Robert Loux, Executive Director of the Nevada Agency for Nuclear 
Projects, which is a branch of the Office of the Governor of the State 
of Nevada. The Agency was established by the Nevada Legislature in 
1985, to carry out the State's oversight duties under the Nuclear Waste 
Policy Act. I have served as the Agency director since it was 
established. Our Agency also serves as staff for the Nevada Commission 
on Nuclear Projects.
    The current status of the Yucca Mountain high-level nuclear waste 
repository project can be described in a single word: unknown--not even 
uncertain, but unknown. You have heard from the Department of Energy's 
Office of Civilian Radioactive Waste Management that it cannot provide 
a schedule for submittal of a Yucca Mountain repository license 
application to the Nuclear Regulatory Commission (NRC) for its review. 
But, Department representatives have said that it will not take place 
in FY 07. You also have watched the progression of potential repository 
opening dates go from the statutory 1998 date to a more recent estimate 
of 2010, and now to maybe 2015 to 2020. Multiple episodes of 
``redirection'' of the program, both from within the Department of 
Energy and from the Congress, define the past twenty years of the Yucca 
Mountain project history. The current status of the Yucca Mountain 
project, within the Office of Civilian Radioactive Waste Management, is 
a product of fundamental, persistent and unresolved problems, with both 
the site and the project execution, overlain by layers of redirection 
that wrongly assume the problems have been, or will be resolved.
    site recommendation and technical basis for license application
    At the time of the Secretary of Energy's Site Recommendation for 
development of a Yucca Mountain repository on February 14, 2002, it was 
stated that a license application would be submitted to NRC in late 
2004. This plan was announced despite the Nuclear Waste Policy Act 
requirement that a license application be submitted not later than 90 
days after the site designation becomes effective by an act of 
Congress, which occurred in July 2002. In November 2004, it was 
announced that the license application would not be submitted during 
the following month, and it was not known when it would be submitted.
    This failure to submit the license application in 2004 came as no 
surprise, since a regulatory prerequisite for license application 
submittal had not been met. The Nuclear Regulatory Commission Licensing 
Support Network Rule requires that DOE certify it has made all 
documentary material in its possession on the proposed Yucca Mountain 
high-level waste repository publicly available, in a prescribed manner, 
at least six months prior to submission of a license application. The 
intent of this is to expedite the discovery phase of the licensing 
hearing to meet the tight statutory schedule for a licensing decision 
by the NRC. On August 31, 2004, the NRC Atomic Safety and Licensing 
Board ruled that the DOE's June 30, 2004 certification was based on 
incomplete documentation, and the manner in which DOE made the material 
publicly available on its own internet web site failed to satisfy the 
regulations. Nevada's July 12, 2004 motion to strike the certification 
was granted. This all transpired two years after the Yucca Mountain 
site designation became effective. DOE has not tendered a new 
certification, and in its monthly status reports to the Atomic Safety 
and Licensing Board, as late as this month, stated that it does not 
have a schedule for resumption of the process.
    At the time of the Site Recommendation, DOE announced its 
priorities for FY 03 were to:

          a) ``continue vigorous scientific investigation of repository 
        system behavior;
          b) develop a repository license application; and
          c) accelerate the transportation program.''

    This confirms that, contrary to statements by then Secretary 
Abraham and President Bush, the repository program managers were not 
prepared to move forward with the licensing process, since by law, site 
characterization, i.e. scientific work, is complete at the time of Site 
Recommendation with respect to the sufficiency of information for a 
license application. President Bush, in a February 15, 2002 letter to 
the President of the Senate and the Speaker of the House, said, ``This 
recommendation . . . will permit commencement of the next rigorous 
stage of scientific review of the repository program through formal 
licensing proceedings before the Nuclear Regulatory Commission.'' 
(emphasis added).
    Even the Nuclear Regulatory Commission understood that at the time 
of Site Recommendation, the information for a license application was 
insufficient because, in its statutorily required statement to the 
President of its view on whether the ``at depth site characterization 
and waste form proposal seem to be sufficient for inclusion'' in the 
license application, its response was a forecast, not a finding. The 
Commission indicated confidence that the information would be 
sufficient at the time of license application, but still pending with 
the Commission was the resolution of 293 Key Technical Issues that DOE 
had agreed with the NRC staff to have resolved prior to submission of a 
license application.
    The Nuclear Waste Policy Act also required that a Final 
Environmental Impact Statement (FEIS) for a Yucca Mountain repository 
accompany the Site Recommendation by the Secretary to the President. 
The FEIS is the primary document that explains and describes the 
Proposed Action and the analyses of the impacts of that action. It 
included some (although far from complete) analysis of the plans to 
transport the waste to Yucca Mountain from sites in 35 states where the 
waste is currently generated and stored. However, a Record of Decision, 
the mandatory document which records a federal decision based upon the 
FEIS process, did not accompany the Site Recommendation, as it must 
have if DOE was ready to proceed with the licensing and development 
phase of the repository project. It was not until April 2004 that DOE 
issued a Record of Decision that adopted the preferred alternative of 
mostly rail transportation to Yucca Mountain and selected the 319 mile-
long Caliente Corridor as the Nevada rail construction route to Yucca 
Mountain--the most costly and difficult of the five alternatives 
reviewed in the FEIS. Since then DOE has been in the process of 
preparing a Draft EIS for the alignment and construction of that rail 
line, which is now estimated to cost, not the originally estimated just 
under $1 billion, but $2 billion.
    In February 2004, the Yucca Mountain project, after at least three 
drafts of a license application had been developed, began a 
comprehensive evaluation of the key building blocks of the license 
application, referred to as Analysis Model Reports (AMRs) that are 
intended to cover all safety and performance aspects of the post-
closure repository. This was followed by a critical review of a few 
selected AMRs by NRC staff, the results of which forecast to observers 
a difficult and uncertain license application review if both 
substantive and procedural (including Quality Assurance) remediation 
was not undertaken. The Project's Regulatory Integration Team (RIT), 
consisting of 150 scientists and regulatory experts, was created to 
address problems of traceability and transparency in the documents to 
ensure they met NRC requirements and expectations. The RIT identified 
3,733 Action Items in its review of 117 AMRs (which were later 
consolidated into 89 AMRs). The large majority of items in need of 
revision were in the area of insufficient or unclear justification of 
scientific conclusions (73%). Technical issues made up 7 percent, and 
procedural inadequacies were the remaining 20 percent. The result was 
that 89 documents were in need of either significant updating or total 
revision. The RIT completed its work in an 8-month period, at a cost of 
about $20 million. After completion, other AMRs not in the original 
scope of review were found to need similar scrutiny. The Total System 
Performance Assessment, the composite model that projects safety 
compliance of the repository, was undergoing subsequent revision in 
2005 and will continue to be revised, based on new developments in late 
2005 that will be discussed below.

                           QUALITY ASSURANCE

    An acceptable Quality Assurance program and requirements, 
procedures, and the demonstration of its effective implementation are 
integral and indispensable elements of a license application. The Yucca 
Mountain project has been plagued by Quality Assurance deficiencies 
since its inception. Even before the 1987 Nuclear Waste Policy 
Amendments Act, DOE was aware of Quality Assurance problems and the 
long-term implications of not correcting them and assuring that an 
acceptable Quality Assurance program was persistent and enduring. In 
its June 1987 OCRWM Mission Plan Amendment (DOE/RW-0128), DOE wrote:

          ``As a result of quality-assurance audits performed by the 
        DOE, ``stop-work'' orders were issued to contractors working on 
        the Hanford and the Yucca Mountain projects. The DOE found that 
        the technical and management controls for work performed before 
        site characterization were not adequate for site 
        characterization activities. A general upgrading of procedures 
        and controls is being implemented to satisfy NRC requirements 
        for establishing a licensing basis and DOE requirements for a 
        major system acquisition. Personnel associated with the stopped 
        work were immediately assigned to develop the required 
        procedures and controls and were given intensified training in 
        quality assurance. The ``stop-work'' orders were gradually 
        being lifted on certain activities at both sites as the DOE 
        receives evidence that the quality assurance requirements are 
        satisfied.'' (Page 5).

    Since 1988, the General Accounting Office, now the Government 
Accountability Office, has identified Quality Assurance problems in the 
Yucca Mountain project in at least 8 reports, some devoted solely to 
the issue of Quality Assurance (QA). In 1988, GAO warned that the 
project should not proceed until it had an adequate QA program in 
place. GAO found, in 1990, that the project did not comply with NRC QA 
requirements. In 1992, GAO again pointed out the need for an adequate 
QA program. Reports in 2003 and 2004 spoke to the persistent QA 
problems. In testimony just last month, on April 25, 2006, to the House 
of Representatives Committee on Government Reform, Subcommittee on the 
Federal Workforce and Agency Organization, the GAO Director for Natural 
Resources and the Environment concluded, based on GAO's most recent 
report, the following:

          ``DOE has a long history of trying to resolve quality 
        assurance problems in its Yucca Mountain project. Now, after 
        more than 20 years of work, DOE once again faces serious 
        quality assurance and other challenges while seeking a new path 
        forward to a fully defensible license application. Even as DOE 
        faces new quality assurance challenges, it cannot be certain 
        that it has resolved past problems. It is clear that DOE has 
        not been well served by management tools that have not 
        effectively identified and tracked progress on significant and 
        recurring problems. As a result, DOE has not had a strong basis 
        to assess progress in addressing management weaknesses or to 
        direct management attention to significant and recurrent 
        problems as needed. Unless these quality assurance problems are 
        addressed, further delays on the project are likely.''

    The GAO Director was testifying in the hearing as part of an 
ongoing House Subcommittee investigation of possible data and Quality 
Assurance documentation falsification by a few United States Geological 
Survey scientists modeling groundwater infiltration for the Yucca 
Mountain project. Groundwater infiltration is key to the repository 
safety projection in that it affects first the corrosion and failure 
rate of the metal waste containers, and then the rate of release of 
radionuclides to the environment.
    The investigation stemmed from the revelation of e-mails exchanged 
among the scientists between 1998 and 2000, but only first discovered 
by DOE contractor reviewers in late 2004 and revealed to DOE in March 
2005. Inspectors General of both the Department of Energy and the 
Department of Interior investigated the case extensively, looking at e-
mail records from the identified time period and later. The reports of 
the field investigations were forwarded to the United States Attorney's 
Office for the District of Nevada, which, on April 24, 2006, declined 
to pursue criminal prosecution in the matter.
    After closing his investigation, in an unusual move, the DOE 
Inspector General wrote to the Secretary of Energy of his findings and 
concerns because, during the course of the investigation, ``certain 
internal control deficiencies were identified which were pertinent to 
the core allegations we were pursuing.'' The concerns were over three 
specific matters: 1) ``The nearly six-year delay in surfacing and 
appropriately dealing with the controversial e-mails was inconsistent 
with sound quality assurance protocols'' (this was the subject of a 
November 9, 2005 Inspector General Report, Quality Assurance Weaknesses 
in the Review of Yucca Mountain Electronic Mail for Relevancy to the 
Licensing Process, DOE/IG-0708); 2) ``Compromise of scientific notebook 
requirements'' (which, in this case were waived to resolve the fact 
that, contrary to requirements, no scientific notebook had been 
initiated or kept for the infiltration model work); and 3) ``Critical 
control files relating to the ``Simulation of Net Infiltration for 
Modern and Potential Future Climates'' AMR were not maintained in 
accordance with data management system requirements.'' The Inspector 
General concluded:

          ``The discovery of the e-mails that prompted the Office of 
        Inspector General Criminal Investigation understandably raised 
        concerns over the Yucca Mountain Project's quality assurance 
        process. The Department has announced that, in order to address 
        these concerns, it has initiated steps to remediate or replace 
        certain work of the Geological Survey and that the quality of 
        the results of this effort will be reviewed by a body of 
        scientists independent of the Yucca Mountain Project. We 
        concluded that these steps are essential in the Yucca Mountain 
        Project is to overcome historical and current quality assurance 
        concerns.''

    That the e-mail situation was not an isolated problem seems to have 
been accepted even by Energy Secretary Bodman, who said, on April 12, 
that the culture of the Yucca Mountain organization was ``reflected 
in'' the USGS e-mail affair. This would suggest the question of whether 
the scientific underpinnings of the entire Yucca Mountain project merit 
confidence. For example, the GAO Director's testimony also described a 
February 2006 stop-work order on Yucca Mountain work at the Lawrence 
Livermore National Laboratory:

          ``We believe this incident is an example of how the project's 
        management tools have not been effective in bringing quality 
        assurance problems to top management's attention. After 
        observing a DOE quality assurance audit at the Lawrence 
        Livermore National Laboratory in August 2005, NRC expressed 
        concern that humidity gauges used in scientific experiments at 
        the project were not properly calibrated--an apparent violation 
        of quality assurance requirements. According to an NRC 
        official, NRC communicated these findings to BSC [Bechtel-SAIC] 
        and DOE project officials on six occasions between August and 
        December 2005, and issued a formal report and letter to DOE on 
        January 9, 2006. However, despite these communications and the 
        potentially serious quality assurance problems involved, the 
        project's acting director did not become aware of the issue 
        until. January 2006, after reading about it in a news 
        article.'' (emphasis added).

    The deficient calibration of the gauges, and other experiment 
execution problems with Quality Assurance connections and sound science 
implications, discovered in the audit relate to work that is key to the 
safety assessment for the repository, because it leads to the 
engineered barrier corrosion rate data that are included in the Yucca 
Mountain Total System Performance Assessment.

                          THE ``PATH FORWARD''

    A few of the issues currently confronting the Yucca Mountain 
project were mentioned in the March 21, 2006 Quarterly Management 
Meeting between DOE and NRC:

Spent fuel handling, transport, storage, and disposal:
    A key element of the Energy Secretary's new ``simpler, safer'' 
approach is the major redesign of the waste handling facilities, based 
on a changed operational concept for receipt and handling of waste at 
the Yucca Mountain site. The concept for receiving commercial spent 
nuclear fuel and packaging it for underground emplacement has changed 
significantly through the past 15 years, and just recently has taken 
yet another turn.
    At first the spent fuel assemblies were to have been packaged at 
the reactor in conventional transport containers, brought to the 
repository site where a few assemblies were to have been placed in a 
stainless steel container that then would be emplaced in vertical 
boreholes in the floor of the repository drifts.
    The idea of the Multipurpose Container (MPC) then took hold, trying 
to capitalize on the idea of a large rail container that would increase 
the payload per container and have the advantage of bringing some 
uniformity to the cask designs, though the more it was studied, the 
less uniformity seemed possible because of the variability in fuel 
types. The MPC, certified for transport, storage, and disposal, would 
be loaded with spent fuel assemblies and welded closed at the reactor. 
The large containers then would be emplaced horizontally in drifts 
underground at Yucca Mountain. This concept was terminated in 1996 for 
policy reasons, but also for an important technical reason. Because of 
the provisions of the DOE's Standard Contract with utilities (10 CFR 
Part 961) requiring accepting ``oldest fuel first'' (which actually 
means only the oldest reactors were served first), DOE would have no 
control over the thermal output of the MPCs as they arrived at the 
repository for underground emplacement. Thermal output of individual 
assemblies varies as a function of original uranium enrichment 
percentage, bum-up time in the reactor, and age out-of-reactor. For 
technical reasons associated with Yucca Mountain repository rock 
stability and waste form integrity, DOE had to be able to set limits 
on, and control the thermal characteristics of the stream of waste 
packages placed in a repository drift. The MPC represented an 
unsolvable logistics problem for repository loading and thermal 
management.
    The next idea was to bring the spent fuel assemblies to the Yucca 
Mountain surface facility in newly designed high-payload shipping 
containers, offload the assemblies into a large, 5,000 metric ton 
capacity lag storage pool, and then select individual assemblies, based 
on their thermal characteristics, to be grouped into a disposal 
container for underground emplacement. In this way, the thermal output 
of individual containers and the emplacement stream into a disposal 
drift could be ``tailored.''
    But, concerns over the safety of the lag storage pool and other 
transfer pools at the Yucca Mountain surface facility led to a 
conceptual change in which hot cells would be used for fuel assembly 
transfers from transportation containers either directly to disposal 
containers or to storage containers for later assembly selection to 
maintain the flexibility for thermal ``tailoring'' of the individual 
containers and the stream of containers. This is operationally complex 
and requires rigid controls--but is not impossible.
    Then, an analysis indicated the possibility of severe radionuclide 
contamination and worker safety problems from handling damaged fuel 
assemblies in the hot cells. Some existing spent fuel is known to be 
damaged and is a potential contamination source. Also, the expectation 
is that there is other damaged fuel, though its condition is unknown, 
and fuel could also be damaged from vibration during transport. This 
leaves the uncertainty of hot cell contamination and worker safety 
essentially unknowable for purposes of a safety analysis.
    Attempts to resolve this contamination problem apparently were not 
satisfactory, because the most recent conceptual change, resulting in 
the current redesign effort, involves elimination of normal operation 
bare fuel assembly handling in hot cells at the repository surface 
facility. Instead, the plan is that commercial spent fuel will be 
loaded into canisters that are welded closed at the reactors, then 
placed in a transportation overpack for delivery to Yucca Mountain. In 
the so-called ``clean'' facility, the welded canisters would then be 
placed in disposal overpacks for direct emplacement or in storage 
overpacks for later selection for emplacement. This concept is called 
``TAD'' (Transport, Aging, and Disposal). It has all the same 
logistical drawbacks as the MPC concept, but adds an ``aging,'' i.e. 
storage, facility of at least 21,000 metric ton capacity.
    Once the current redesign is complete, it will have to meet the 
DOE's administrative review requirements and process in order to be 
incorporated into the project baseline. It will have to be integrated 
into the project design and safety case, and its effect on the Total 
System Performance Assessment will need to be evaluated, because a 
change in the waste package would be a result of the conceptual change.
    In effect, this concept not only revives the failed concept of the 
MPC program, but calls for the equivalent of a Monitored Retrievable 
Storage facility at Yucca Mountain, despite the fact that placement of 
such a facility in Nevada is prohibited by the Nuclear Waste Policy Act 
as Amended, as long as a repository site is under consideration in the 
State. Nevada, in the past, has rejected such an attempt, by Congress, 
and the Presidential veto of the bill to develop Interim Storage at the 
Nevada Test Site, Yucca Mountain's front door, was sustained.
Uncertainty about the EPA standard:
    Nearly nineteen years ago, on June 29, 1987, the DOE Project 
Manager for the Yucca Mountain site told this Committee:

          ``The process of doing the modeling and calculations that 
        estimate the radioactive releases from the [Yucca Mountain] 
        repository tells us that we may be five orders of magnitude 
        below a very conservative EPA standard.'' He added, ``[I]t is 
        not conceivable to me that we would discover something of a 
        major nature that would cause us to change our mind about it 
        [suitability of the site].''

    Just five years later, it was clear that the Yucca Mountain site 
could not meet the EPA standard with respect to atmospheric releases of 
radioactive carbon-14. After efforts to have EPA relax its standard 
failed, DOE appealed to Congress, which resulted in a mandate for a new 
EPA standard, specific to the Yucca Mountain site, as part of the 
Energy Policy Act of 1992. The direction to EPA is as follows:

          ``[EPA] Administrator shall, based upon and consistent with 
        the findings and recommendations of the National Academy of 
        Sciences, promulgate, by rule, public health and safety 
        standards for protection of the public from releases from 
        radioactive materials stored or disposed of in the repository 
        at the Yucca Mountain site. Such standards shall prescribe the 
        maximum annual effective dose equivalent to individual members 
        of the public from releases to the accessible environment from 
        radioactive materials stored or disposed of in the 
        repository.'' Section 801(a).

    As instructed, EPA contracted with the National Academy of Sciences 
(NAS) for a report of findings and recommendations to be titled A 
Technical Bases for Yucca Mountain Standards, which was published in 
1995. Among other things, the report found that there is no scientific 
basis to limit the repository compliance period to 10,000 years as had 
been done in the original EPA standard; and, its recommendation: ``We 
recommend calculation of the maximum risks of radiation releases 
whenever they occur as long as the geologic characteristics of the 
repository environment do not change significantly. The time scale for 
long-term geologic processes at Yucca Mountain is on the order of 
approximately one million years.'' Page 71-72. The one million year 
period is referred to in the report as the period of geologic stability 
during which, the report concluded, it is feasible to make a compliance 
assessment. The report also noted that, ``In the case of Yucca 
Mountain, at least, some potentially important exposures might not 
occur until after several hundred thousand years.'' Page 55.
    In June 2001, EPA promulgated its rule, Public Health and 
Environmental Radiation Protection Standards for Yucca Mountain, Nevada 
(40 CFR Part 197). The rule set a regulatory period of 10,000 years for 
compliance with EPA's maximum individual dose standard, which was set 
at 15 millirems per year. A separate groundwater protection standard 
was also set for the 10,000 year regulatory period, with dose and 
radionuclide concentration limits consistent with Safe Drinking Water 
Act standards that apply to all of the nation's public drinking water 
supplies. The rule did acknowledge that peak expected doses could occur 
after the 10,000 year regulatory period and required DOE to calculate 
the peak individual dose during the period of geologic stability after 
10,000 years and include the results in the Yucca Mountain 
Environmental Impact Statement ``as an indicator of long-term disposal 
system performance.'' But, the rule further states, ``No regulatory 
standard applies to the results of this analysis.'' Sec. 197.35.
    Nevada and others (Nuclear Energy Institute, Natural Resources 
Defense Council, and several other environmental and public interest 
organizations) challenged the EPA standard in lawsuits filed in the 
U.S. Court of Appeals for the District of Columbia Circuit in summer 
2001. Among Nevada's and others' issues was that the setting of a 
10,000 year regulatory period was not ``based upon and consistent 
with'' the findings and recommendations of the NAS, as required by the 
Energy Policy Act of 1992. The Court upheld this challenge and vacated 
that portion of the EPA standard that applied a 10,000 year regulatory 
period, as well as the portions of the NRC licensing rule (10 CFR Part 
63) that adopted EPA's 10,000 year regulatory period. Nuclear Energy 
Institute v. Environmental Protection Agency, 373 F.3d 1251 (D.C. Cir. 
2004).
    The premise of the NAS Technical Bases report is simple and 
straightforward--humans must be protected from the maximum radiation 
risk from a nuclear waste repository, whenever. that risk is projected 
to occur. If this protection cannot be reasonably assured at the 
outset, the problem is with the selected repository site and design, 
not with the premise. EPA's selection of a one million year regulatory 
period is a reflection of the NAS finding that compliance assessment is 
feasible through that time period for most physical and geologic 
aspects of a repository at Yucca Mountain, given our knowledge and 
understanding of the natural characteristics, features, and processes 
at Yucca Mountain and in the surrounding area. The wide range of 
possible assumptions about the longevity of the metal waste containers 
coupled with our current understanding of the physical and hydrologic 
characteristics of Yucca Mountain indicate it is very likely that the 
calculated peak individual dose will occur sometime during the million 
year period of geologic stability.
    If there were no metal containers and shields protecting the waste 
from infiltrating water, DOE's calculations for time of peak dose (in 
the Site Recommendation performance assessment) put the average peak at 
about 2,000 years after repository closure. Using DOE's optimistic 
projections of the rate of container failure, the performance 
calculation shows the time of peak dose at between 200,000 and 300,000 
years after closure. The magnitude of the calculated peak dose, in-both 
cases, is , approximately the same, and both far exceed 15 millirems 
per year. In the case with no metal waste containers or shields, a 15 
millirem per year standard would be exceeded within 500 years after 
closure of the repository.
    The compliance test for a repository is whether there is reasonable 
expectation that the statistical maximum dose (or risk) to humans from 
releases from the repository fall within a pre-established regulatory 
dose limit. It is of great importance that the complex performance 
calculation is scientifically credible because the compliance decision 
is to be made prior to waste emplacement. After the waste is disposed 
and the repository is sealed, the performance calculation has no 
relevance as to how the repository will actually perform and when the 
maximum dose to individuals will occur. It could appear in as little as 
a few thousand years. The wide range of uncertainty in projected 
repository performance is dominated by the great uncertainty in the 
failure rate of the metal waste containers, not the geology and 
hydrology. Once the waste containers begin failing by corrosion, the 
contamination of the groundwater will be relatively rapid, far 
reaching, and irreversible. Radionuclides from. waste disposed at Yucca 
Mountain will eventually reach the land surface both through 
groundwater pumping and through natural playas and springs where 
groundwater that has traveled beneath Yucca Mountain reaches the land 
surface today.
    EPA has indicated it would like to have its final Yucca Mountain 
standard in place before the end of this calendar year. But this does 
not alleviate DOE's uncertainty about the final rule, as it relates to 
the need for revisions in its Total System Performance Assessment. If 
the EPA standard were to become final in the form proposed, DOE would 
need to revisit the features, events, and processes that previously 
were excluded from consideration based on their possible effect on 
performance, or their likelihood of occurring during the 10,000 year 
compliance period. A credible climate representation also would need to 
be constructed for a 1 million year compliance period. And the great 
uncertainty is whether the final EPA rule will withstand legal 
challenge, should the numerous vastly unprecedented elements of the 
Proposed Rule be promulgated as the final standard.
    Early in EPA's rulemaking process, Nevada proposed a 
straightforward approach to meeting the Court's ruling: simply extend 
the 10,000 year compliance period for the standard as written to the 
time of expected maximum dose (risk), whenever that occurs in DOE's 
Total System Performance Assessment. From the Court's perspective, this 
is what should, have been done in the first place. Nevada's proposal 
was notably absent from the list of alternative approaches considered 
by EPA for its rulemaking, and EPA exacerbated the uncertainty about a 
final Yucca Mountain standard by introducing a two-tier, bifurcated 
compliance standard and time period.
Improve the ``nuclear culture'' of the Yucca Mountain Project:
    In order to be considered for a license from NRC, DOE must 
demonstrate that it will be a fit and responsible licensee. This 
requires that protection of human health and safety, and the 
environment must consistently be held as the highest priority in 
decision-making. This attribute can only be judged on the decisions and 
actions of the entire Yucca Mountain organization, as demonstrated in 
its pre-license application behavior. Given the high level of verbal 
importance applied to this matter by top DOE managers, along with the 
observations of the DOE Inspector General, and consistent 20-year 
history of GAO's finding of persistent managerial deficiencies in the 
project, it is clear that the goal is, at least, elusive for the Yucca 
Mountain project organization.

                               CONCLUSION

    Energy Secretary Bodman recently said that the nation's high-level 
nuclear waste program is ``broken.'' This invites some important 
questions. When did it break, and when was the break detected? What 
broke--was there a weak link, or a system failure? Can the break be 
patched or repaired, or is it beyond repair? If it is beyond repair, is 
there a need to replace it--and, if so, with what?
    Assuming the answers to the above questions led to the crafting of 
plans for resuscitation, rehabilitation, and remediation of the Yucca 
Mountain project, a problem remains for which no resolution can exist. 
The site does not have the necessary geologic and hydrologic attributes 
to support a demonstration of the capability for safe, permanent 
disposal of the-nation's high-level nuclear wastes--the goal of the 
Nuclear Waste Policy Act.
    Three times in the past 15 years, Nevada Governors have advised 
Secretaries of Energy and finally the Congress that the site should be 
disqualified under DOE's original Site Recommendation Guidelines, 
because of its geologic and hydrologic deficiencies. Despite DOE's own 
analyses finally vindicating Nevada's basis for this claim, the DOE's 
response was to eliminate relevant disqualification factors through 
issuance of new guidelines just prior to its Yucca Mountain repository 
Site Recommendation to the President. The Yucca Mountain site model, 
upon which the Project Manager expressed such confidence to the 
Committee in 1987, was shown to be wrong, first in 1992, and again in 
1996, both times through data collected at the site. The Yucca Mountain 
site so optimistically portrayed to Congress in 1987 is scientifically 
not the same site before you today. Yucca Mountain cannot meet any 
reasonable test for long-term safety.
    You asked for testimony in this hearing on the status of the Yucca 
Mountain Repository Project within the Office of Civilian Radioactive 
Management at the Department of Energy. The request, in more practical 
terms is for information on how the Yucca Mountain project is doing in 
trying to make a convincing case for a safe repository at an unsafe 
site. The answer is, ``Very poorly--because, even without all the 
problems described above, it is an impossible job.''
    Thank you for the opportunity to present our views before this 
Committee.

    The Chairman. Thank you very much for your testimony. Now 
we will have questions from the Senators. We will start with 
Senator Bingaman.
    Senator Bingaman. I want to thank you all very much. Thank 
you, Mr. Chairman. Let me go to Mr. Golan and ask you if 
DOE's--I know that this law, as signed 4 years ago, in 2002, 
contemplated the Department would be able to file a license 
application quickly, and that obviously hasn't happened. Could 
you explain a little better as to why you understand it's 
taking so long to get to a point where an application could be 
filed? Are there any statutory impediments to your going ahead 
and filing an application, or is this strictly a matter of 
internal administrative work that needs to be done?
    Mr. Golan. Yes, sir, in terms of why this is so hard, the 
simple fact is that this has never been done anyplace around 
the world, and the requirements that the Department is expected 
to meet are a good set of requirements that we have to make 
sure that we meet.
    If we look at some of the recent things that we need to 
resolve in submitting a license application, the first is we 
are developing the design and the license application to 
support the clean-canister approach. We received the conceptual 
design from our contractor. We are reviewing it right now. We 
have a formal structure process to take that through our 
Secretary of Energy's Acquisition Advisory Board, and we are 
going to incorporate that into our baseline. So, we are--
instead of handling their spent nuclear fuel, our intent is to 
handle most of the fuel in a canistered way.
    Senator Bingaman. Let me just interrupt there. About a 
decade ago, there was a program called the multi-purpose 
canister and that was canceled, and now you have the 
Transportation, Aging and Disposal canister; how do those 
differ?
    Mr. Golan. At the heart of it, they are basically the same. 
A multi-purpose canister would allow the canister to be used 
for a number of different functions: for transportation, for 
aging, and potentially, and ultimately, for disposal. The 
Transportation, Aging and Disposal canister seeks to add 
disposal to what we have today.
    We have canisters that have been licensed for aging, spent 
nuclear fuel to be aged in, and we have--the same canisters are 
licensed to be transported, and we are seeking to extend that 
license to allow that canister to actually be licensed for 
disposal, where we wouldn't have to open it up.
    Mr. Bingaman. I'm still unclear as to why we canceled the 
multi-purpose canister a decade ago. It seems like we have now 
come up with a multi-purpose canister as the solution to the 
problem we've got.
    Mr. Golan. Sir, there was a report issued by EPRI around 
the time the multi-purpose canister project was canceled. Their 
conclusion was that the canister in that approach was not 
canceled for any technical or financial reason. I would be 
happy to submit that report to the committee for the record.
    Senator Bingaman. But if it wasn't a technical or financial 
reason, what kind of reason was it?
    Mr. Golan. There was some indecision that the team pointed 
to that allowed this process not to go forward. But I think if 
you go back to the industry, if you just go back to the people 
who are familiar with this project, most of the folks who are 
familiar with nuclear material handling and waste handling look 
at this and say, ``This is the right way to do it.''
    So, in a sense, we are going to take advantages of the 
lessons we learned from the multi-purpose canister approach, 
factor those in so we do have a canister that we don't have to 
be handling bare spent fuel several times, and that the 
utilities can actually pack once, and we don't have to open it 
up and repack it and unpack it. Then we can use this as a means 
to just dispose.
    Senator Bingaman. But, in fact, we are not learning lessons 
from that experience. We are essentially starting up again 
where we left off. Is that right? I mean, we had a multi-
purpose canister program and you say for indecision reasons we 
canceled it a decade ago. We now have essentially a multi-
purpose canister program again and it is basically the same 
thing, we are just at the conclusion this time; is that 
accurate or not?
    Mr. Golan. That is one way to look at it, sir. This time, 
what we are doing is we are involving industry and we are 
involving the utilities early-on, up front. We are confident 
that this approach is going to end up with fewer times that we 
handle the spent fuel. It is going to involve a safer operation 
at Yucca, so we are confident that we can take the 
Transportation, Aging and Disposal canister and make it work.
    Senator Bingaman. My time is up, Mr. Chairman. Thank you.
    The Chairman. Thank you, Senator. We will stay with you, 
Mr. Golan.
    The fuel from our nuclear Navy is destined to be disposed 
of at Yucca Mountain; is that correct?
    Mr. Golan. Yes, sir, it is.
    The Chairman. How much waste is currently planned for 
permanent disposition at Yucca Mountain?
    Mr. Golan. The legislative cap on Yucca Mountain is 70,000 
metric tons. There is a Defense portion which includes the 
Navy. The Defense portion right now consists of 7,000 tons of 
Defense waste which would go to Yucca Mountain. There is, 
however, 14,000 tons of Defense waste, which has been 
generated, or will be generated, that is not only from the 
Navy, which represents less than 100 tons, but also from the 
spent nuclear fuel and reprocessed waste that is at Savannah 
River, Idaho and at Hanford.
    So there is 14,000 tons of defense waste, and 7,000 of 
those tons would go into Yucca Mountain. All the Navy's waste 
would be planned to go into Yucca Mountain, which again 
represents less than 100 tons.
    The Chairman. Their current schedule--when would this waste 
be ready for shipment to Yucca?
    Mr. Golan. Sir, there is some waste that is more ready for 
shipment and there is some waste that is going to require 
additional steps before it would be ready for shipment.
    Some of the fuel that is at Hanford today, which is in 
multi-canister overpacks, the glass waste, the vitrified waste 
which has been produced down in Savannah River through the 
Defense Waste Processing System, and the waste that--the spent 
nuclear fuel that has been generated by the Navy's nuclear 
propulsion program could be ready to be shipped as early as the 
first part of the next decade.
    Some of the other waste is at Hanford and at Idaho, which 
is the reprocessed waste which still requires a next step. In a 
lot of cases, some of that waste is in liquid form today. It 
needs to be vitrified or solidified before it is going to be 
ready to be shipped, and until we get some more visibility on 
that front, Mr. Chairman, I don't want to necessarily speculate 
on when those wastes would be ready to ship.
    The Chairman. Well, if Yucca was not available, how would 
this waste be handled?
    Mr. Golan. As you mentioned in your opening statement, sir, 
the scientific community--the international scientific 
community has generally endorsed geological repository since 
1957. Absent a geological repository, the only alternative, or 
one of the alternatives I think we have to look at, would be 
perpetual on-site storage.
    Now the Department has initiated the Global Nuclear Energy 
Partnership, which looks at using some of this waste and 
recycling it. Some of that waste though, sir, can't be recycled 
because it already has been recycled one time, and that is a 
lot of the Defense waste.
    The Chairman. A lot of which?
    Mr. Golan. A lot of the Defense waste that's at Hanford and 
at Savannah River. It has already gone through the reprocessing 
for the weapons production mission.
    The Chairman. And it can't be recycled, one of the modern 
concepts of recycling?
    Mr. Golan. Maybe it can, but under current technology--
remember this waste has already been reprocessed once, so it 
represents the glass waste, the vitrified waste that's at 
Savannah River, sir.
    The Chairman. I have many additional questions, but I am 
going to yield and stick around here awhile anyway.
    Senator Burr, you have been here a long time. I am going to 
yield to you now for your questions.

        STATEMENT OF HON. RICHARD M. BURR, U.S. SENATOR 
                      FROM NORTH CAROLINA

    Senator Burr. Thank you, Mr. Chairman. Let me thank all the 
witnesses for being here. Mr. Golan, thank you for a very, very 
difficult job.
    Mr. Wehrum, I think it is likely that your plan will be 
litigated as well; do you agree?
    Mr. Wehrum. I agree, Senator.
    Senator Burr. And I think Mr. Loux, as I understood your 
statement, you will litigate--the State of Nevada will litigate 
when DOE files an application?
    Mr. Loux. We will challenge the application, that is 
correct.
    Senator Burr. Sure. Now, we are back in a situation where 
we are focused on canisters. We have no firm date for our 
expectations of the license application. We are at 55,000 
metric tons of waste, today, of on-site storage. An additional 
7,000-metric-tons-plus of DOE waste. We have a limit, 70,000 
metric tons, but by my calculations of about 2,200 metric tons 
a year, we are reaching 2010.
    By 2010, the likelihood is we haven't finished the 
litigation on the final rule; we probably haven't filed the 
application, so you haven't litigated yet, and the current 
waste will fill the capacity design of Yucca Mountain. In 1987, 
Congress selected Yucca Mountain, 19 years and $18 billion of 
rate-payer money later, not one canister is in the ground. We 
are here with a similar set of issues that I think probably 
they thought about very early on in this project.
    A State like mine in North Carolina, where the population 
is expected to explode, and we are beginning to see it, has 
tremendous demands in the future for electricity generation. I 
can't see how that happens in North Carolina, or any other 
State, without the majority of that being new nuclear 
generation.
    It is impossible for me to believe today that we will have 
a commitment to new nuclear generation if we have not settled 
the question of what we are going to do with that spent fuel. 
The likelihood is that we are not going to settle it by 2010, 
based upon the scenario I just gave you. If my calculations are 
right, were we to settle this tomorrow, we have got enough 
waste already to fill it up. Then, potentially, shareholders 
will not be too excited if their companies go out and commit to 
their new nuclear plants.
    I would suggest to you, Mr. Golan, that maybe the single 
most important thing is not necessarily the work that we are 
currently doing on Yucca, it is what's next. Are we going to be 
here 20 years from now--and I realize you won't be here. I will 
promise you, I will not be here.
    Dr. Garrick, you are unbelievably generous to commit to be 
on a project that I think at times must seem like it spins its 
wheels to some degree. The same with everybody else.
    The challenge is where do we go from here? I am not here to 
pour water on anybody's parade. I am here to say, at what point 
do we collectively--not just Members of Congress, but do we 
collectively look at this and say, ``You know what, we have got 
to think of something else.'' Should we, as the chairman 
suggested, look at reprocessing the nuclear waste within? We 
understand the 7,000 metric tons that may have already been 
reprocessed. Technologically, aren't we at a different level 
than we were in 1987 when we selected Yucca Mountain, many 
years after we designated some type of in-the-ground depository 
for this?
    You are the experts, several of you. I challenge you to be 
leaders and not necessarily just to continue to head down the 
road that many have headed down before. They continued in the 
same direction because they knew they wouldn't be here when 
this happened.
    My fear is it is never going to happen if, in fact, we 
don't think about all the components to it.
    Mr. Chairman, there are obstacles that we have yet to 
address in this hearing. I am not going to get into the 
details. I think that for those that have been involved in it 
for a long time, they certainly know what those obstacles are.
    I think the No. 1 issue is how long the litigation is going 
to take as it relates to this project. I am not excited that 
Mr. Loux and the State of Nevada would choose to litigate. They 
are not the only ones, so I can't single them out and chastise 
them in any way. This is a national problem, and if we don't 
solve this problem, the needs that we have for electric 
generation in the future, we will not be able to make.
    So, I certainly do encourage you to try to find quick 
resolution to the canister issue, try to find quick resolution 
as to when the application process will proceed, and a timeline 
that we might be able to use with some degree of confidence. It 
might be presented to us, but more importantly, that which you 
have been charged with and that is what is next. I will tell 
you, we are there. Now is the time for that.
    Mr. Chairman, I thank you.
    Senator Domenici. Well, you were right on, and there is no 
doubt about it, and I'm sure Mr. Golan knows that. One of the 
questions that should be asked, obviously is, ``Is it already 
time to be looking at the next repository, under the statute?'' 
I was going to ask the question, ``How are we going about that 
at this point?'' It is kind of ludicrous. We are looking at 
another repository under the statute of the same kind, under 
the same circumstances--or just what are we looking at? In any 
event, you placed the issues right before us, and I think we 
are going to have to get the answers sooner or later.
    If you are finished, we are now going to go to Senator 
Bunning, then Senator Craig, then I will wrap it up in a half-
hour or so.
    Senator Bunning. Thank you, Mr. Chairman. I would like my 
opening statement to be put into the record.
    [The prepared statement of Senator Bunning follows:]
   Prepared Statement of Hon. Jim Bunning, U.S. Senator From Kentucky
    Nuclear energy accounts for nearly 20 percent of America's 
electricity. Looking at Energy Information Administration forecasts, it 
is clear we are going to need large growth in coal, nuclear, hydropower 
and other sources of energy to fuel our economy and provide reliable 
power for our citizens.
    Since the Three Mile Island accident in 1979, no new nuclear plants 
have come online in America.
    Yet recently, utility and nuclear energy companies have entered 
into partnerships planning nearly 20 new, nuclear power plants. The 
Energy Policy Act we passed last year had incentives for nuclear energy 
and I'm proud that we are already stimulating investment.
    These new power plants--as well as the many already operating--were 
promised a national repository for spent fuel. The Federal Government 
collects nearly $750 million a year from nuclear power plants to pay 
for this proposed storage.
    Last month, Secretary Bodman sent proposed legislation on this 
issue to Congress. I look forward to working with the Department of 
Energy to ensure that we have safe storage and sage transport of 
nuclear waste. We owe it to people in the 39 states that currently 
store nuclear waste and their neighbors who will help shipments move to 
Yucca Mountain to finish this project as safely as possible,
    The bottom line is we need to complete this project. We have spent 
too long mired in debate.
    We made a promise to the states and nuclear industry to store the 
nation's nuclear waste safely. it is time we deliver on that promise.
    I look forward to the testimony of the witnesses before us today.
    Thank you, Mr. Chairman.

    The Chairman. It will be made a part of the record. Thank 
you, Senator.
    Senator Bunning. Richard, I couldn't have expressed a more 
similar pattern. I have been here since we have been talking 
about Yucca Mountain in the Congress of the United States, and 
I am not going to lay blame on this group that is at the table 
because a different group has been at the table many times and 
given us many excuses for not getting the job done.
    The Congress of the United States has an obligation to get 
the job done, and we don't need bureaucrats getting in the way, 
constantly, of the law that was passed in 1987 and expanded on.
    I've heard a lot of excuses come out of the table. The same 
excuses came out of the prior tables that were before the 
Congress. If you want to accomplish the goal of a depository 
that we can actually put things into, I would question the 
State of Nevada's legitimacy, because they don't want this 
place there, and the fact of the matter is if they don't want 
it, where is it going, because all of the representatives that 
represent the 50 States have voted to put it there?
    The Department of Energy has dragged their feet. And you 
are not the one that has dragged your feet, but from the 
beginning, they have dragged their feet. The EPA has dragged 
their feet. All of the people involved at the table have found 
reasons for not completing the project.
    Switching from one canister to another just because it 
wasn't storable and using that excuse, saying, ``Now we are 
going to start over, and now we are going to do X, Y and Z with 
the canister.'' I mean, give me a break. That is not even 
feasible if you are looking from our side of the table and 
looking to get the job done for the United States of America 
and the American people.
    We are to the limit of what we can even put in Yucca 
Mountain, and it isn't even open to do it. And now you are 
talking about a second depository. I mean, do you know how 
foolish that looks to the American people?
    And Mr. Loux, you complained in the testimony that the 
Yucca Mountain project has been continually delayed. I just 
said that. I am frustrated with these delays, but ultimately, 
many of these delays are a direct result of the effort to 
ensure that the people of Nevada and all Americans are as safe 
as possible.
    Rather than go back through these changes, do you think it 
would be more productive for all of us to work with DOE to 
complete this project as safely and quickly as possible?
    Mr. Loux. Senator, I don't believe that Nevada is doing 
anything that Kentucky, North Carolina, or any other State 
would not do, given the same circumstances of seeing an out-of-
control agency that has a blatant disregard for public health 
and safety.
    Senator Bunning. Unfortunately, you are wrong, because 
Kentucky didn't resist. We had a Superfund project, and now we 
are charged with the responsibility of taking care of it for 
the first--the Federal Government is for the first 25 years and 
then Kentucky inherits the responsibility even longer than a 
million years, as long as the planet exists. So you are wrong.
    I understand you still have concerns to address. How is the 
State of Nevada working with DOE to get Yucca Mountain on-line 
safely? And what, if anything, do you need from Congress to 
help make your partnership work?
    Mr. Loux. The answer to the question is the State is not 
working with the Department of Energy to make the project work.
    Senator Bunning. That is the 20-year process. I yield, Mr. 
Chairman. I have had my time.
    Mr. Craig. Well, thank you, Mr. Chairman. I have as much 
reason as the Senator from North Carolina or the Senator from 
Kentucky to be pessimistic or frustrated. I am going to try and 
remain optimistic, because I believe Yucca is needed and I 
think that based on all of the legacy waste and those that have 
been spelled out, as are current and available for being 
identified, conditioned and placed in a permanent repository, 
that we need Yucca, even though we move forward with new 
approaches to new waste coming in and this next generation of 
nuclear reactor that we are talking about.
    Mr. Loux, I read your testimony. I have always been 
fascinated by Nevada. I understand the politics of your State 
reasonably well. I also understand that when you use rhetoric 
like ``out of control agency,'' that is good rhetoric in 
Nevada, because that is what you are giving us today.
    It is bad rhetoric here, as far as I am concerned, because 
I don't see DOE as an out-of-control agency or the Nuclear 
Regulatory Commission as out-of-control. They are probably the 
most controlled we have, for all of the obvious reasons.
    I must tell you, though, that when you talk about 
milestones missed and short-falls in funding and all of this 
kind of thing, that's largely been a direct result of Nevada's 
delegation effort here.
    When DOE didn't get its work done, in part it was 
underfunded, in part because--and so I am sitting here and I 
try to do this with a smile on my face. It is kind of like a 
child killing his parents and then throwing himself on the 
mercy of the court now that he is an orphan. It really doesn't 
track very well here. I know your mission--you just said it--to 
deny Yucca to ever come on-line. That is reality. That is the 
politics of your state. I understand that. So, we will try to 
work around you, but in the process of working around you, 
Yucca Mountain will be by far the safest repository every 
designed by man.
    In fact, the design that has been proposed probably is 
beyond man's capability. I am not sure that we get to the 
10,000-year mark.
    Senator Domenici. A million.
    Mr. Craig. No, a million. The odds are out there. Anyway, 
Mr. Golan, part of the waste that the Chairman was talking 
about and the waste that is in Idaho in part is conditioned for 
exit on an agreement that Idaho has with DOE. And this is Navy 
waste. It is what we have. It's Three Mile Island waste. We 
have old reactor waste, about 65 metric tons of it slated at 
the INL to move to Yucca when completed. The agreement says 
that will be done by 2035. Are we on schedule?
    Mr. Golan. Sir, I am very familiar with the settlement 
agreement regarding the waste at your site and the fact that 
the settlement agreement requires the waste be removed by 2035. 
We also have a sodium-bearing waste and the calcine waste, 
which is also covered in the settlement agreement. We are 
working right now--first things first--to put together a 
technical basis to operate Yucca Mountain, and that is with the 
clean canister approach.
    Later this summer, we intend to come back to this committee 
and provide a licensing schedule on when we are going to get 
the license application filed for the NRC. You know, clearly 
2035 is 30 years away. I will say that the waste that comes out 
of Idaho has some unique characteristics about it which makes 
it very good for early placement into Yucca Mountain. So what I 
would like to do before we talk about shipment schedule is, 
let's talk about a licensing schedule, and then let's talk 
about an opening schedule and then we can talk intelligently 
about how it is that we are going to take the waste out of your 
State and meet the requirements of the settlement agreement.
    Senator Craig. Well, that is good to hear. Based on the 
history of this issue, I hope we've rounded the corner. I know 
that there are great many things on line to be done as it 
relates to your licensing application and licensing that allows 
us to do that.
    It is my belief, and I think the belief of some, that Yucca 
is necessary, and a new approach is necessary down the road, 
partly because many of us don't believe that a geological 
repository in the future is the direction we ought to go in. We 
have seen a proposal out of the Department known as GNEP to 
develop a reprocessing burning approach to this waste.
    How important is interim storage to the success of Yucca 
Mountain and does the Department see a need to tie interim 
storage with participation in the GNEP program?
    Mr. Golan. Interim storage of waste, sir, is less 
important, moving Yucca Mountain forward and, I believe, more 
important for the future of nuclear energy in this country. If 
you just look at the timeframes required for us to have a 
license submitted, adjudicated by the NRC, the construction 
authorization, followed by the construction, and then the 
license to receive and possess, that is going to take several 
years under the best case scenario here.
    We do understand that within the commercial utilities, they 
are running to capacity limitations for on-site, continued 
storage. We did--the Department has done two things recently. 
The first is the Global Nuclear Energy Partnership, which I 
think addresses a lot of the concerns about recycling the 
waste. Even going through recycling, you are still going to 
need Yucca Mountain. You are still going to need a geological 
repository because no recycling is ever perfect, and there is 
going to be a waste by-product.
    The other thing that the Department recently did is 
introduce legislation. Senator Domenici, I believe, introduced 
that by request. One of the things that the proposal didn't 
include was interim storage. The Department continues to have 
an open mind on interim storage, and the House of 
Representatives, in their subcommittee mark-out did provide, at 
least in their initial mark, some $30 million to this program 
to look at interim storage in 2007. So, the Department has an 
open-mind on that and will continue to work with both Houses on 
that.
    Senator Craig. Well I thank you.
    Mr. Chairman, let me turn this back to you. I understand we 
have votes at or around noon and you have a good number of 
questions. I have a few that I may submit in writing. But 
again, thank you for the hearing. It is critical that we stay 
abreast of this issue as we work with all of you and the State 
of Nevada, and I mean that most sincerely.
    We know that Nevada is a reluctant host at this time, but 
they have been the large beneficiary, historically, of DOE and 
our nuclear programs. It is a legacy that I guess now has found 
the State in denial. That is understandable and we thank you.
    And I thank you, Mr. Chairman.
    The Chairman. Senator Craig, thank you for your 
observations, sir. We do have a vote at 12. I have about 25 
questions. I am going to submit all of them to you even though 
I wasn't going to. I am going to ask you to answer all of them. 
There are many technical ones. There are others that are 
philosophical.
    I believe that we are going to receive statements from 
Senators Reid and Ensign, and I would request that they be made 
part of the record as if they were here and as if they were 
read.
    [The prepared statement of Senators Reid and Ensign 
follow:]
      Prepared Statement of Hon. Harry Reid and Hon. John Ensign, 
                       U.S. Senators From Nevada
    We want to thank the Chair, the Ranking member, and other members 
of the Committee for the opportunity present testimony on this issue, 
which is very important to us, our home State of Nevada, and the rest 
of the country.
    The proposed Yucca Mountain nuclear waste repository will never be 
built because of the numerous and insurmountable scientific, safety and 
technical problems with the site. In addition, nearly three decades of 
poor management and oversight have demonstrated that the vast body of 
scientific and technical work done by the Department of Energy (DOE) 
and its contractors, much of which is incomplete or moot due to 
constantly changing designs of, and plans for, the repository, do not 
meet scientific standards.
    In 1982, Congress passed the Nuclear Waste Policy Act to address 
the difficult issue of storing such waste. The Act called for disposal 
of nuclear waste in a deep geological repository that would remain 
stable for thousands of years and directed the Department of Energy 
(DOE) to study a number of sites in detail and pick the most suitable 
site based on the natural features of the site. The Act instructed DOE 
to develop a list of natural, geologic features that constitute a safe 
repository, including factors pertaining to rock characteristics, 
hydrology, proximity to water supplies and population, and seismic 
activity. Some of these criteria specifically disqualified any site 
that would require complex engineered measures to prevent groundwater 
flow through the repository or damage from earthquake activity, both of 
which are concerns at Yucca Mountain.
    In 1987, Congress took action based on political expediency and 
limited DOE's studies to Yucca Mountain, in spite of the criteria in 
the Act that would disqualify the Yucca Mountain site. DOE has been 
studying the site for 20 years. While these studies are incomplete, 
what they have shown thus far is that Yucca Mountain is not a safe site 
for storing nuclear waste. Nor have they shown that spent nuclear fuel 
can be transported safely and securely across America's highways and 
railways and through our communities, past our schools and hospitals 
and through major metropolitan areas.
    Transportation of nuclear waste around the country and to Yucca 
poses hazards to public health, economic and national security and 
environmental safety from accidents and terrorist attacks, which DOE 
has not addressed. Moving 77,000 tons of waste to Yucca would involve 
about 53,000 truck shipments or 10,000 rail shipments over 24 years, 
through counties in which nearly 250 million people live, including 
Sacramento, Buffalo, including Denver, Chicago, Washington, D.C., and 
Las Vegas. That is an average of approximately 2,800 shipments of 
deadly radioactive waste each year, will be rolling through 
neighborhoods in 43 states and hundreds of major metropolitan areas on 
its way to Nevada for the next several decades.
    A few of the scientific problems that we have seen the last year 
and a half are:

   In 2004, the Court of Appeals threw out the Environmental 
        Protection Agency's (EPA's) first radiation protection 
        standards for Yucca because they were not strong enough to 
        protect the public from radiation exposure and failed to follow 
        the recommendations of the National Academy of Sciences. In 
        2005, EPA published its revised standards for the proposed 
        Yucca Mountain high-level waste dump, which are wholly 
        inadequate, do not meet the law's requirements and do not 
        protect public health and safety. In fact, EPA is proposing the 
        least protective public health radiation standard in the world. 
        It would allow 1 in 10 women to contract cancer, and 1 in 20 to 
        die from it.
   Nearly three decades of scientific and quality assurance 
        problems with transportation plans, corrosion of casks, the 
        effectiveness of materials, etc., causing DOE suspend work on 
        the surface facilities and NRC to issue a stop work order on 
        the containers.
   In addition, DOE revealed that documents and models about 
        water infiltration at Yucca Mountain had been falsified. While 
        the individuals who falsified this date were not criminally 
        prosecuted, the DOE Inspector General's report and numerous 
        reports from the General Accounting Office demonstrate that DOE 
        continues to ignore falsification of technical and scientific 
        data on the project.
   Nearly 10 years past its congressionally mandated deadline, 
        DOE has still not submitted a license application, and DOE has 
        not set a date except to say that one is not expected for 
        several years, at the earliest.

    Because the scientific, technical and safety problems with the 
proposed Yucca Mountain repository cannot be fixed, DOE prepared a 
legislative package that will remove these health, safety, scientific 
and safety requirements. Senators Domenici and Inhofe introduced this 
proposal, S. 2589, The Nuclear Fuel Management and Disposal Act, at the 
request of DOE in April. This bill is a complete admission that the 
project is a complete public health, safety and scientific failure.
    However, DOE has not yet provided Congress with its detailed 
statement on this legislation as required by the National Environmental 
Policy Act Section 102(C) (43 U.S.C. 4332(C)). Today, we are sending a 
letter to DOE requesting this analysis. We expect that DOE will supply 
us with this analysis as it is required to do by law in order to enable 
Congress to impartially analyze the impact of DOE's proposal before any 
action is taken on it.
    It should be clear to anyone that the proposed Yucca Mountain 
project is not going anywhere. Yucca Mountain will never open. Yet we 
must safely store spent nuclear fuel. It is time to look at other 
nuclear waste alternatives. Fortunately, scientists agree that the 
technology to realize a viable, safe and secure alternative is readily 
available and can be fully implemented within a decade if we act now. 
That technology is on-site dry cask storage. Dry casks are being safely 
used at 34 sites throughout the country. NEI projects 83 of the 103 
active reactors will have dry storage by 2050.
    That is why we have introduced a bill that would safely store 
nuclear waste while we look for a scientifically-based, safe solution: 
The Spent Fuel On-Site Storage and Security Act of 2006, S. 2099. Our 
bill requires commercial nuclear utilities to secure waste in licensed, 
on-site dry cask storage facilities.
    There is absolutely no justification for endangering the public by 
rushing headlong towards a repository that is fraught with scientific, 
technical and geological problems when it can be stored safely and 
securely in dry casks. Our bill guarantees all Americans that our 
nation's nuclear waste will be stored in the safest way possible.
    It is time we addressed to problem at hand--the safe storage of 
spent nuclear fuel--and stopped pouring taxpayers' money down the drain 
on a project that could endanger all of our citizens.
    The Yucca Mountain project is a failure. We vow to continue to 
fight this project.

    The Chairman. I am intrigued by the fact that the United 
States of America is obviously going to have to engage in 
recycling. And the question now is going to be, during the next 
24 months, in my opinion, what the level of interest and gusto 
the United States has in recycling, because recycling is going 
to determine which way--what kind of an ultimate repository we 
need. It won't solve the problem of the interim storage, but 
clearly, if we are going to have a robust recycling program, 
then clearly we need a completely different Yucca Mountain 
configuration with reference to what we put into Yucca Mountain 
and what we need of a Yucca Mountain. And it may very well be a 
man at the table that we generally look to as our--not our 
friend, maybe--looking with us at what happens to the recycled 
product when we, 25, 30 or 40 years from now, have to place it 
somewhere and probably will be putting it in Yucca Mountain.
    My informed guess today is that it will not be so 
objectionable to Nevada when that time comes. But who knows. We 
will wait and see. That is such a different world that it might 
give us a chance to start over and rethink what we are going to 
do.
    In the meantime, confusion is rampant, timeframes are out 
of whack, and the administration's bill, which I introduced 
because they asked me to, has a big vacuum in it, as it does 
not address interim storage. And besides, it addresses the 
licensing of a process which may not be relevant, as I 
indicated, because it is completely different from what I am 
talking about here when we speak of reprocessed material. And 
because it is not talking about that kind of a program--and 
indeed, we have to really seriously think about whether we can 
reduce to legislation what I am talking about, because it will 
be in such a long term that it will be hard to put that 
together.
    Nonetheless, I thank all of you for your testimony. I don't 
know how informative the hearing has been, but determinative, 
obviously, it has not been, for we have completed little or 
nothing today except that things are very confused and are not 
anywhere near a conclusion. And last month, I introduced, at 
the President's request, his package to begin a dialog putting 
it back on track. Taking from what we have learned today, and 
in reviewing the testimony, and obviously the answers to the 
questions, coupled with the administration's proposal, I am 
going to work very hard with Senator Bingaman and our joint 
staff to see if we can come up with some common ground to move 
forward on answering the spent fuel questions.
    I am very hopeful that we can. It is delicate and it is 
extremely hard to think legislatively in the lengths of time 
that are going to be needed for this recycling to take effect 
and produce the type of substance that we need and the 
quantities we need to take the place of spent fuel rods. And I 
guess I will close the hearing by saying it ought to be pretty 
clear to everybody that we are not going to be putting spent 
fuel rods in Yucca Mountain. I don't know whether that is the 
way to end the hearing, but to me it is quite obvious that that 
isn't going to work for many reasons.
    So, we are kind of kidding ourselves, but we don't want to 
give up, because there is somewhere in this a solution that 
does involve a Yucca Mountain. It will certainly be a different 
Yucca Mountain than we have been talking about, but it will be 
a Yucca Mountain nonetheless.
    Having said that, I am going to recess. Thank you 
everybody. We stand adjourned.
    [Whereupon, at 11:57 a.m., the hearing was adjourned.]

                               APPENDIXES

                              ----------                              


                               Appendix I

                   Responses to Additional Questions

                              ----------                              

                 U.S. Nuclear Waste Technical Review Board,
                                       Arlington, VA, June 8, 2006.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Senator Domenici: On behalf of the U.S. Nuclear Waste 
Technical Review Board, I want to thank you and the members of the 
Energy and Natural Resources Committee for inviting the Board to 
testify at a hearing on the status of Yucca Mountain on May 16, 2006. 
As I mentioned in my testimony, an important part of the Board's 
mandate is providing information on the Board's technical and 
scientific evaluation of DOE activities to decision-makers in Congress.
    Enclosed are the Board's answers to questions submitted for the 
record that were forwarded to the Board with your letter of May 18, 
2006. The Board hopes that the technical information in the answers 
will be useful to the Committee.
            Sincerely,
                                           B. John Garrick,
                                                          Chairman.
[Enclosure.]

    Responses of B. John Garrick to Questions From Senator Domenici

    Question 1. The Nuclear Waste Technical Review Board has, on many 
occasions, pressed DOE to better address uncertainties in its long term 
analysis of Yucca Mountain.
    Answer. Over the years, the Board has acknowledged that 
uncertainties in predicting repository performance are inevitable 
because of the first-of-a-kind nature of the endeavor, the complexity 
of the site geology, the implications of high temperatures from 
radioactive decay of spent nuclear fuel and high-level radioactive 
waste, and the long timeframes involved. The Board also has indicated 
the need for understanding better the potential behavior of the 
repository system and for the Department of Energy to (DOE) to 
supplement its understanding with additional lines of evidence.
    DOE uses a probabilistic approach in estimating repository 
performance that incorporates uncertainties and sensitivity analyses in 
its performance assessments. However, the Board is not yet convinced 
that the assessments are realistic. The Board has asked for a realistic 
analysis of repository performance so that it can judge the extent of 
conservatism and uncertainty in DOE's total system performance 
assessment (TSPA). In addition, the Board has recommended that DOE make 
its uncertainty analyses more transparent to better expose specific 
contributions to uncertainty, such as the effect on performance of 
localized corrosion of the waste packages.
    Question 2. You have not seen the final license application, but, 
in your opinion, what are the greatest uncertainties with the 
application? Are these the result of the quality or absence of data, or 
the fundamental difficulty in predicting the behavior of the mountain 
over these incredibly long time periods?
    Answer. The Board evaluates the technical validity of work 
undertaken by DOE. On the basis of that evaluation, the Board's view is 
that the most important technical and scientific uncertainties related 
to the post-closure performance of the repository are the release rate 
and chemical form of dose-contributing radionuclides leaving the 
engineered barrier system, the extent to which components of the 
natural system contribute to waste isolation, and the implications of 
high temperatures for repository performance, including the potential 
for localized corrosion of the waste packages.
    There also are logistical and practical challenges, as well as 
temperature considerations, associated with pre-closure activities, 
including implementation of DOE's transportation, aging, and disposal 
canister concept; designs for repository surface facilities; and 
operational plans.
    More data could help address some of these uncertainties. It is 
important to note that new information may show that the various 
repository components perform better or less well than currently 
projected. Either way, performance estimates would be more realistic 
and therefore would engender more confidence. Estimating repository 
performance over long time periods can be a challenge. However, as the 
National Academy of Sciences pointed out in its report, Technical Bases 
for Yucca Mountain Standards, some uncertainties would increase over 
time and others would decrease. The key is to manage uncertainty so 
that it does not significantly affect the performance of the 
repository.
    Question 3. Given these uncertainties, do you believe it is more 
likely that DOE's analysis over or under estimates radiation exposures 
in the distant future?
    Answer. DOE uses TSPA as a tool for estimating whether a Yucca 
Mountain repository would comply with the regulatory standard. DOE 
believes that the performance estimates in its TSPA are conservative 
(i.e., that they underestimate how well Yucca Mountain would perform). 
The Board believes that the assumptions underlying DOE's performance 
estimates are a mix--most are conservative, others are realistic, and a 
few may be optimistic. Although this makes it difficult to assess just 
how conservative DOE's repository performance estimates are overall, 
the Board believes that the results taken as a whole may be shown to be 
conservative. The Board has urged DOE to develop a realistic 
performance analysis so that important information on this question can 
be provided to the public, decision-makers, and other affected parties.
    Question 4. Can you tell us how the risks of disposing of used 
nuclear fuel in Yucca Mountain compare to the risks of leaving the 
material where it is for thousands of years?
    Answer. It is the opinion of the Board that storing spent nuclear 
fuel at existing sites for thousands of years is not a desirable option 
when compared with permanent deep geologic disposal. Although temporary 
storage can be accomplished safely for decades, storing the waste 
indefinitely at reactor sites would require storage facilities to be 
monitored and maintained constantly and would require periodic 
replacement as facilities and components degrade with age. If those 
activities are not carried out faithfully for very long periods, the 
resulting risks to health and the environment could be significant. 
Having to manage a large number of high-level-waste sites also raises 
security issues. Disposing of spent nuclear fuel and high-level 
radioactive waste in a deep geologic repository would eliminate these 
concerns.

       Response of B. John Garrick to Question From Senator Craig

    Question 1. Does the Board believe that there are outstanding 
scientific or technical issues so serious as to prevent the DOE from 
submitting a license application?
    Answer. The Board has not explicitly addressed the question of what 
constitutes a reasonable basis for a license application. The Board's 
focus is on the soundness of the science and engineering supporting 
DOE's assessment of the performance of the total waste management 
system, including pre-closure and post-closure activities.
    On the basis of its ongoing technical and scientific evaluation, 
the Board's view is that the most important technical and scientific 
uncertainties related to the post-closure performance of the repository 
are the release rate and chemical form of dose-contributing 
radionuclides leaving the engineered barrier system, the extent to 
which components of the natural system contribute to waste isolation, 
and the implications of high temperatures for repository performance, 
including the potential for localized corrosion of the waste packages. 
In addition, although DOE's new canister-based concept for 
transportation, disposal, and aging of spent nuclear fuel may have 
potential to reduce handling of the waste, the Board wants to 
understand better the feasibility of the concept, given the status of 
spent nuclear fuel in storage at utilities and post-closure temperature 
limits on the waste packages.
    The Board has stated that resolving these issues appears 
``doable,'' provided that selected analyses and investigations are made 
to confirm the performance and operation of the repository. 
Furthermore, resolving all the issues before submitting a license 
application may not be necessary. However, addressing the issues might 
substantially increase confidence in DOE's operational plans and 
estimates of repository performance.

     Response of B. John Garrick to Question From Senator Bingaman

    Question 1. You testified that while the DOE has made meaningful 
progress, serious technical issues remain unresolved. How long, in you 
opinion, will it take the Department of Energy to resolve those issues 
and be able to submit a defensible license application to the Nuclear 
Regulatory Commission?
    Answer. The Board is on record indicating that resolving the issues 
appears ``doable,'' provided that selected analyses and investigations 
are made to confirm the performance and operation of the repository. 
Some unofficial schedules have indicated that DOE will submit a license 
application sometime in fiscal year 2008. Although resolving all these 
issues before submitting a license application may not be necessary, 
addressing the issues has the potential for substantially increasing 
confidence in DOE's operational plans and estimates of repository 
performance. The Board has encouraged DOE to continue its technical and 
scientific investigations after the submittal of a license application 
to increase confidence in DOE's estimates of repository performance.
    Question 2. Does the Board have any reason to believe that Yucca 
Mountain is not a technically suitable site for the repository?
    Answer. The Board is not aware of any single condition that would 
automatically make the site unsuitable; however, the engineered 
components of the repository have to be integrated with the 
capabilities of the natural system so that they work together to 
isolate radionuclides. For example, if localized corrosion of the waste 
packages is shown to occur at high temperatures, it could have 
implications for repository design and performance. On the other hand, 
a more realistic model for mobilizing dose-contributing radionuclides 
following the penetration of the waste packages could reduce 
uncertainties in the timing and magnitude of the projected peak dose 
and could enhance the credibility of repository performance 
calculations.
    Question 3a. As an authority on risk assessment, what is your view 
of the EPA's proposed radiation protections standards? Specifically
    What is your view of EPA's decision to use a deterministic exposure 
scenario instead of the probabilistic approach recommended by the 
National Academy of Sciences?
    Answer. EPA's and NRC's regulation of the program is outside the 
Board's purview, so I will answer the three questions as they were 
posed (as the personal opinion of John Garrick).
    It is true that the prescriptive features of the regulations with 
respect to the dose calculations preclude a completely probabilistic or 
risk-based approach. This is why the Board has repeatedly asked for a 
realistic--that is, a traditional--``risk assessment'' of the 
repository. I believe, however, that where the regulations are 
prescriptive, they are conservatively prescriptive. It should be noted 
that the EPA's individual protection standard is, to some extent, 
probabilistic. As the EPA stated when it finalized its revised 
environmental standards in 2001 (66 FR 32125), ``By specifying the mean 
as the performance measure and probability limits for the processes and 
events to be considered ( 197.36), and in concert with the intent of 
our `reasonable expectation' approach in general, we have implied that 
probabilistic approaches for the disposal system performance 
assessments are expected.''
    Question 3b. What is the difference between the probabilistic and 
deterministic approaches?
    Answer. Deterministic approaches are scenario-based and rely on 
single-valued choices of models and sets of parameters to estimate 
performance. Probabilistic approaches incorporate the likelihood that 
each of these and alternative models and sets of parameters are 
appropriate. The major advantage of a probabilistic approach is the 
ability to explicitly incorporate uncertainties and variabilities in 
the analyses. An analysis that incorporates uncertainties is essential 
to understanding risk.
    Question 3c. How does EPA's 350 millirem standard between 10,000 
and 1,000,000 years compare with other radiation protection standards 
adopted in this and other countries?
    Answer. The Board is not aware of any countries that require a 
quantitative risk assessment to be carried out to the time of peak dose 
or one million years; typical periods for numerical analyses are on the 
order of 10,000 years. For today's activities and facilities, the 
International Commission on Radiological Protection and the National 
Council on Radiation Protection and Measurements both have recommended 
that radiation exposures to members of the public be limited to 100 
mrem/yr from all sources (excluding medical and natural background). My 
personal opinion is that the EPA standard is reasonable.
                                 ______
                                 
                              Department of Energy,
               Congressional and Intergovernmental Affairs,
                                     Washington, DC, July 21, 2006.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Mr. Chairman: On May 16, 2006, Paul Golan, then Acting 
Director, Office of Civilian Radioactive Waste Management, testified 
regarding the Yucca Mountain Project.
    Enclosed are the answers to 27 questions that were submitted by you 
and Senators Thomas, Craig, and Bingaman to complete the hearing 
record.
    If we can be of further assistance, please have your staff contact 
our Congressional Hearing Coordinator, Lillian Owen, at (202) 586-2031.
            Sincerely,
                                             Jill L. Sigal,
                                               Assistant Secretary.
[Enclosures.]

          Responses of the Department of Energy to Questions 
                         From Senator Domenici

    Question 1a. In your testimony, you mention that the department is 
forming a task force to begin the process of looking for a second 
repository as required by the Nuclear Waste Policy Act.
    When will this task force be formed?
    Answer. The task force was established on May 19, 2006.
    Question 1b. What is their criteria in selecting the second 
repository site?
    Answer. The Nuclear Waste Policy Act (NWPA) directs the Secretary 
to evaluate the need for a second repository and report to the 
President and Congress between January 1, 2007 and January 1, 2010. The 
NWPA states that the Secretary may not conduct site-specific activities 
with respect to a second repository unless Congress has specifically 
authorized and appropriated funds for such activities.
    Question 1c. What other factors will you take into consideration in 
preparing this report?
    Answer. The specific factors that the Department of Energy will 
take into consideration in preparing the report are currently being 
developed. The focus of the task force will be on determining the need 
for a second repository. Some of the factors that will be considered 
include determining when the volume of spent nuclear fuel generated by 
commercial power plants will exceed the statutory limitation of 70,000 
metric ton of heavy metal (MTHM) established by section 114 of the 
NWPA; assessing the reasonably expected disposal capability of Yucca 
Mountain considering current and projected future volume of spent 
nuclear fuel (SNF) inventories and its characteristics; and potential 
for waste minimization under advanced recycling technologies being 
evaluated in connection with the Global Nuclear Energy Partnership 
(GNEP).
    Question 2a. Yucca Mountain currently has a legislated capacity 
limit of 70,000 metric tons.
    Is this limit sufficient to accommodate spent fuel expected to be 
generated by the current fleet of reactors through their anticipated 
operations?
    Answer. No, the 70,000 MTHM legislative limit will not accommodate 
all spent fuel expected to be generated by the current fleet of 
reactors through their anticipated operations.
    Question 2b. How much spent fuel waste from government sources do 
you currently plan to emplace in the Yucca Mountain repository?
    Answer. Approximately 2,333 MTHM.
    Question 2c. What portion of the DOE inventory of spent nuclear 
fuel does this represent?
    Answer. The estimated 2,333 MTHM represents over 95 per cent of the 
DOE inventory.
    Question 2d. How many canisters of vitrified high-level nuclear 
waste does DOE expect to produce and how many canisters of that waste 
do you plan to emplace in the Yucca Mountain repository?
    Answer. The Department expects to produce approximately 20,000 
canisters of high-level radioactive waste (HLW). Estimates of HLW 
canister production at Idaho National Engineering Laboratory and 
Hanford may change, since facilities to immobilize HLW have not yet 
been constructed or operated. Under current plans for emplacement, the 
defense HLW allocation for Yucca Mountain is 4,667 MTHM or 
approximately 9,334 canisters, which represents about half of the 
defense HLW.
    The fuel from our nuclear navy is destined to be disposed of at 
Yucca Mountain.
    Question 3a. How much defense waste is currently planned for 
permanent disposition at Yucca Mountain?
    Answer. Under current plans, approximately 7,000 MTHM of defense 
waste is to be emplaced at Yucca Mountain; 65 MTHM of the 7,000 MTHM 
would come from the Naval Nuclear Propulsion Program (NNPP), which 
represents the entire inventory of NNPP SNF.
    Question 3b. Under current schedules, when will this waste be ready 
for shipment to Yucca?
    Answer. Defense materials are anticipated to be available when 
repository operations begin and will be among the early materials 
provided to the repository.
    Question 3c. If Yucca were not available, how would this waste be 
handled?
    Answer. If Yucca Mountain were not available, DOE would continue to 
manage the storage of the waste at its current location in a safe and 
secure manner until a new path forward was selected.
    Question 4. The federal government has a court settlement agreement 
with the state of Idaho regarding temporary storage of naval reactor 
spent fuel.
    When must fuel be moved under this agreement?
    Answer. Under the Agreement with Idaho, all SNF is required to be 
moved out of the State of Idaho by 2035.
    Question 5. Six months prior to docketing a license application, 
DOE must have certified by NRC an internet based License Support 
Network of relevant documents. NRC denied certification of the draft 
LSN submitted in 2004.
    What is the Department doing to address the deficiencies in the 
initial LSN and are you confident that these actions will result in a 
certifiable LSN?
    Answer. The Department has evaluated the Pre-License Application 
Presiding Officer Board's order striking the Department's June 2004 
certification. In response, the Department has reviewed approximately 
4.8 million emails from inactive and external accounts to determine the 
relevance of each email. In 2004, there were approximately 1 million 
privileged documents included in the Licensing Support Network (LSN) 
database. All these documents have been reviewed, and the inventory of 
privileged documents has been reduced by more than 95%. The June 2004 
certification included documents available up to February 2004. The 
Program has continued to collect relevant documents and add them to the 
DOE collection. The LSN project team has performed assessments to 
ensure the LSN will meet the Nuclear Regulatory Commission's (NRC) 
requirements and will continue to do assessments until the LSN is 
recertified.
    Question 6a. In the past year, a decision was made to redirect the 
approach taken to fuel handling at the repository to a ``clean'' 
approach utilizing a single canister for transportation, aging and 
disposal (TAD).
    What impact has this redirection had on preparing the license 
application?
    Answer. The canistered approach to fuel handling at Yucca Mountain 
requires that portions of the license application (LA) and supporting 
information be revised to reflect this approach. The Department 
believes the benefits of the canistered approach justify the time 
needed for these revisions and will result in greater efficiency and 
timeliness on constructing and operating the repository.
    Question 6b. What is the cost of TAD development?
    Answer. The cost of adopting the transport, aging and disposal 
(TAD) approach to the repository system is still being evaluated.
    Question 6c. Who will cover those costs?
    Answer. The overall cost of procuring TADs for the repository 
system is expected to be paid from the Nuclear Waste Fund.
    Question 7. How much have we spent on cask development (transport 
and storage) through the history of the program?
    Answer. Since the Program began in 1983, we have been engaged in 
spent fuel storage and transportation cask development activities, 
including but not limited to costs expended in the 1980s and 1990s 
associated with siting and conducting assessments for a monitored 
retrievable storage facility and with studies on the interim storage of 
spent fuel. Concurrent with these activities, the Program also pursued 
the development of transportation and storage casks to support waste 
acceptance and handling operations at both storage facilities and the 
geologic repository. The Department estimates that costs associated 
with these activities which occurred primarily in the 1980s and 1990s 
have been approximately $287 million.
    Question 8. Have you analyzed the impact that this redirection 
could have on the timing and cost of license review, program 
construction and operations?
    Answer. The Department is currently analyzing the impacts. However, 
it believes the new approach will greatly contribute to the overall 
success and timeliness of licensing, constructing and operating the 
repository. In particular, this approach will both reduce the risks of 
repository worker radiation exposure during surface operations at the 
site and eliminate the need for large repository surface facilities 
required to handle individual spent fuel assemblies several times prior 
to packaging for disposal.
    Question 9. Please describe the improvements to site 
infrastructure, the planning facilities for receipt of spent fuel and 
transportation infrastructure that you plan to accomplish with the FY 
2007 budget request.
    Answer. Over the next two years, and subject to appropriate 
National Environmental Policy Act (NEPA) review, the Department plans 
to undertake improvements to certain facilities, structures, roads, and 
utilities (collectively referred to as infrastructure) for the Yucca 
Mountain Project to enhance safety at the site and to continue 
conducting scientific activities, testing, and maintenance until such 
time as the Nuclear Regulatory Commission decides whether to authorize 
construction of a repository.
    The Program's Site Plan identifies the upgrades to site systems and 
utilities that are planned for fiscal year (FY) 2006 to FY 2008. Site 
safety upgrades address code and safety compliance issues through the 
disposition of non-operational systems, structures and/or facilities; 
and the modification, upgrade, and/or replacement of potentially 
obsolete critical and operational systems and structures which are 
necessary to provide a safe and functional facility for continued 
support of experiments as well as site tours. These systems include 
power distribution, water supply, sanitation, fire protection, and 
communications.
    In FY 2007, the Program anticipates that it will initiate 
procurements for transportation casks, and for the development of a 
prototype and testing of new rail rolling stock designs. Funding will 
also support awarding of contracts to start design of a security escort 
car prototype, review and comment on other new rail car preliminary 
designs, and preparation of test plans for the new designs.
    Question 10. What additional steps are you taking to reaffirm 
confidence in the technical work done in support of repository 
performance? Have any of these reviews uncovered any information that 
would call into question the site suitability of Yucca Mountain?
    Answer. The Department is taking aggressive steps to ensure the 
highest level of expertise and credibility, and to reaffirm confidence 
in the technical work in support of the repository performance as we 
move the Project forward. For example, in January 2006, the Department 
designated Sandia National Laboratories the lead laboratory to 
coordinate and organize all scientific work on the Project. The 
independent, expert review that the scientists at Sandia will perform 
will help ensure that the technical and scientific basis for the Yucca 
Mountain repository meets the requirements of 10 CFR 63 and NUREG 1804. 
Designating Sandia as the lead laboratory will provide the Program with 
centralized leadership for its science program and will increase 
technical credibility with the scientific community, as well as the 
Project's regulators and stakeholders.
    In February 2006, the Department issued a technical report 
evaluating the infiltration estimates that were used in the site 
recommendation. The technical evaluation found that the infiltration 
results that had been completed are consistent with the conclusions of 
infiltration and recharge results from scientists independent of the 
Project, including the State of Nevada's Engineering Officer. This data 
fully supported the site suitability of Yucca Mountain. While we found 
that the science was sound, because some of our quality assurance (QA) 
requirements were not met, we are expending time and resources to 
replace the infiltration models and perform the analyses. We''.ave 
directed Sandia National Laboratories to develop computer codes that 
will generate new infiltration rate estimates developed in accordance 
with our QA requirements, and will then replace the infiltration rate 
estimates for future analyses. The Sandia infiltration rates will be 
independently reviewed prior to incorporation into the Total System 
Performance Model.
    To further ensure the highest quality and objectivity of the 
science and technology supporting the Yucca Mountain Project, in April 
2006, the Department also selected the Oak Ridge Institute for Science 
and Education to perform independent review of key aspects of the 
Project. By bringing in Oak Ridge for independent reviews to assess our 
technical work, we will ensure a high level of expertise and 
credibility as the Project moves forward.
    Question 11. Please summarize the transportation planning 
activities you are undertaking this year and what you plan to 
accomplish under the FY 2007 budget request.
    Answer. In FY 2006, the Nevada Transportation Project anticipates 
it will complete the data collection and analyses necessary to support 
the pending environmental review pursuant to NEPA, and complete the 
rail security escort car conceptual design. The Department will 
continue to consult with States and Tribes as the transportation 
program is developed and plans to complete the Transportation Design 
Basis Threat and the Concept of Operations Document. In FY 2007, the 
Department anticipates further actions to complete its NEPA review and 
related activities. The Department also will issue the draft Section 
180(c) policy and grant application process for comment.
    Also in FY 2007, the National Transportation Project will establish 
the protocols needed to integrate, manage and safely operate the 
transportation system. The Project will continue the procurement 
process for casks and associated specialized equipment. The Department 
will also begin development of rail cars for transporting SNF and HLW. 
This hardware development will include a limited purchase of cask 
systems and prototype rail cars. These initial procurements will 
support emergency preparedness and security training efforts, as well 
as provide opportunities to test communications and tracking systems 
and establish relationships with transportation service providers.
    The National Transportation Project will also continue to fund 
cooperative agreements with State regional groups and other key parties 
involved in transportation planning. Section 180(c) pilot grants will 
also be awarded to a few states and tribes in each region in order to 
support operational testing and to refine the Section 180(c) program. 
DOE will also work to integrate safety, security, and emergency 
response activities into all shipment plans.
    Question 12. What is the status of developing the rail line in the 
state of Nevada?
    Answer. Work in 2006 has focused mainly on completing the data 
gathering and engineering necessary to support the publishing of the 
Draft Rail Alignment environmental impact statement.
    On May 4, 2006, the Department received a letter from the Walker 
River Paiute Tribe indicating they are now willing to permit the 
Department to evaluate the impacts of potential shipments of SNF and 
HLW across their Reservation. DOE is currently gathering data and 
information related to the feasibility of a route across the Tribe's 
Reservation, and is evaluating related programmatic, regulatory, and 
legal issues.
    Question 13. Does the Department continue to support a mostly rail 
transportation strategy for the movement of civilian spent fuel?
    Answer. Yes, the Department continues to support a mostly rail 
transportation strategy for the movement of civilian spent nuclear 
fuel.

 Responses of the Department of Energy to Questions From Senator Thomas

    Question 1. Because of an ongoing failure to meet contractual 
agreements with utilities and the expense of storing defense waste, 
each year this project is delayed adds over $1 billion to the cost. 
When will we realistically be able to start shipping spent fuel to the 
Yucca Mountain repository?
    Answer. The Nuclear Waste Policy Act provides for the Nuclear 
Regulatory Commission (NRC) to decide whether to issue a license that 
authorizes construction within 3 years of submission of the license 
application with the possibility of a 1 year extension. Construction of 
the initial facilities is expected to take 2 to 3 years. There are 
factors outside the control of the Department, however, that greatly 
influence when we will be able to begin receiving spent nuclear fuel 
(SNF) at Yucca Mountain. These include the issuance of the final 
Environmental Protection Agency radiation protection standards, funding 
levels, the NRC licensing process including issuance of a license 
amendment to receive and possess SNF and potential legislation.
    Question 2. We have spent 20 years and $8 billion on a scientific 
evaluation of Yucca Mountain as a suitable site for a nuclear waste 
repository. Will all that time and effort reduce the additional hurdles 
that exist for getting the site licensed?
    Answer. The Department has engaged in over 20 years of scientific 
and technical investigation of the suitability of the Yucca Mountain 
site. As part of this investigation, some of the world's best 
scientists have been examining every aspect of the natural processes--
past, present and future--that could affect the ability of Yucca 
Mountain to isolate radioactive waste. Additionally, there has been 
extensive work and investigation in the area of engineered barriers 
that are expected to contribute to successful radioactive waste 
isolation. The result is an extensive body of scientific work that 
supports site selection and the Administration's site recommendation. 
The time and effort invested over the last 20 years will support the 
submittal of a high quality license application to the NRC.
    Question 3. The Administration has developed the Global Nuclear 
Energy Partnership based largely on the idea that re-processing our 
spent fuel in an international and cooperative manner is beneficial. 
Will we eventually be able to remove the fuel that is stored at Yucca 
Mountain and re-process it?
    Answer. While there are no plans to remove SNF from the repository, 
it is being designed to allow the retrieval of waste for up to 300 
years after emplacement.
    Question 4. If we opened Yucca Mountain tomorrow, how long would it 
take to ship and store all of the waste we have committed to dealing 
with already?
    Answer. Under the current planned acceptance rates, the Department 
estimates that it would take 25 years to accept the 70,000 metric ton 
of heavy metal (MTHM) authorized for Yucca Mountain.

 Responses of the Department of Energy to Questions From Senator Craig

    Question 1. Will the DOE have the infrastructure and applicable 
licenses (for shipping casks, rolling stock, etc.) in place in time to 
begin shipping spent fuel as soon as Yucca Mountain (or an interim 
storage site, if applicable) is open and ready to accept such waste? 
Could DOE begin shipping fuel quickly in the case of a national 
emergency?
    Answer. The low level of funding has made it difficult to undertake 
planning, acquisition and construction in an orderly manner. The 
Department is proceeding with is transportation plans and expects to 
have transportation capability available when the repository opens.
    Question 2. How will DOE prioritize spent fuel shipments to the 
repository once Yucca Mountain is open? More specifically, does DOE 
plan to begin shipping fuel out of Idaho as soon as the repository can 
begin accepting waste? Please explain how the various types of fuel 
will be prioritized for shipment out of Idaho, providing a breakdown 
according to fuel type (Navy, TMI, etc.). Where in the department's 
priorities does fuel from other sites fit?
    Answer. DOE high-level radioactive materials are expected to be 
part of the initial shipments to Yucca Mountain, including the DOE 
spent nuclear fuel in Idaho. The currently planned schedule for 
shipping DOE waste is outlined in the Integrated Acceptance Schedule 
between the Office of Environment Management and the Office of Civilian 
Radioactive Waste Management. The commercial spent nuclear fuel 
acceptance priority is outlined in the Department's Acceptance Priority 
Ranking Report.
    Question 3. I understand the department's decision to select Sandia 
National Laboratory as the lead lab to oversee the Yucca Mountain 
Project's science programs reflects, at least in part, Sandia's 
previous success with helping to open the Waste Isolation Pilot Plant 
(WIPP) in New Mexico, the world's first permanent geologic repository 
for transuranic waste. Mr. Golan: Can you please elaborate on the 
department's choice of Sandia Laboratory to fulfill this role?
    Answer. Establishing Sandia National Laboratories as our lead 
laboratory is an important step in our new path forward. The experience 
that Sandia brings to the Project will help ensure that the technical 
and scientific basis for the Yucca Mountain repository meets the 
requirements of 10 CFR 63 and NUREG 1804. Sandia has unique experience 
in managing scientific investigations in support of a Federally 
licensed geologic disposal facility having served in that role to the 
Waste Isolation Pilot Plant (WIPP). Designating Sandia builds on DOE's 
successful experience at WIPP, where a single national laboratory 
coordinated ``post-closure'' science work while a contractor performed 
work on the design of ``pre-closure,'' or above ground facilities. This 
move more clearly aligns responsibilities within the competencies of 
the Project's participants and will more effectively leverage the 
capabilities of Sandia's experience with repository science issues. 
Designating Sandia as the lead laboratory will provide the Program with 
centralized leadership for its science program and will increase 
technical credibility with the scientific community, as well as the 
Project's regulators and stakeholders.
    Question 4. Please provide an estimate for when DOE plans to submit 
a license application to the NRC, and explain the reasons for continued 
delays.
    Answer. The Department will publish its license application (LA) 
schedule this summer. The canistered approach to fuel handling at Yucca 
Mountain requires that portions of the LA and supporting information be 
revised to reflect this approach. The Department believes the benefits 
of the canistered approach justify the time needed for these revisions 
and will result in greater efficiency and timeliness on constructing 
and operating the repository.
    Question 5. Please provide the current status of programs related 
to rail infrastructure and to truck infrastructure, including projected 
expenditures for the remainder of this fiscal year (FY2006).
    Answer. None of the constrained FY 2006 funds have been invested in 
the development of truck infrastructure since the equipment needed to 
perform this work already exists. The commercial sector has the 
hardware and the manpower capacity to accommodate a large number of 
legal weight truck shipments of spent nuclear fuel. Although less 
extensive, the commercial capacity for ``heavy haul'' truck shipments 
also exists. It is expected that the DOE will negotiate contracts for 
these trucking services closer to the time shipments are scheduled and 
will rely on the private sector to provide the hardware assets.
    Question 6a. Please provide a breakdown of projected expenditures 
for the Yucca Mountain program during this fiscal year (FY2006); that 
is, out of the approximately $450M appropriated. Please specify 
expenditures for each of the following:
    Federal workforce.
    Answer. $79.2 M is projected in FY 2006 for the Federal workforce.
    Question 6b. National Laboratories (break-down for each).
    Answer. The break-down for national laboratories is as follows:

------------------------------------------------------------------------
                                                                FY 2006
                                                               (dollars
                                                                  in
                                                              thousands)
------------------------------------------------------------------------
Argonne National Laboratory.................................      893
Idaho National Laboratory...................................    9,534
Lawrence Berkeley National Laboratory.......................    4,591
Lawrence Livermore National Laboratory......................    5,971
Los Alamos National Laboratory..............................    7,547
Nevada Test Site............................................    5,972
Sandia National Laboratories................................   16,058
Pacific Northwest National Laboratory.......................      790
                                                             -----------
    Total, Nuclear Waste Disposal and Defense Nuclear Waste    51,356
     Disposal Laboratory Funding............................
------------------------------------------------------------------------

    Question 6c. Federal-support contractors (again, for each major: 
notably, Bechtel-SAIC & Booz-Allen).
    Answer. The break-down for Federal-support contractors is as 
follows:

------------------------------------------------------------------------
                                                              FY 2006
                        Contractor                         Appropriation
                                                              in 000s
------------------------------------------------------------------------
Bechtel SAIC Company, LLC................................    235,356
Booz, Allen, & Hamilton, Inc. (OP).......................      4,839
Booz, Allen, & Hamilton, Inc. (PD).......................     20,888
CATAPULT (OP)............................................        690
CATAPULT (PD)............................................     10,372
Potomac-Hudson Engineering Inc...........................      7,000
ALPHA (PD)...............................................      1,210
BECHTEL NEVADA INC.......................................        924
AECL.....................................................        415
AGEISS Environmental Inc.................................      1,242
LECHEL...................................................        450
WSI......................................................      1,418
KPMG, LLP................................................        525
------------------------------------------------------------------------

    Question 6d. Private-sector contractors (i.e., exclusive of 
federal-support entities).
    Answer. The Office of Civilian Radioactive Waste Management has no 
contracts that fit this description.
    Question 7. What initiatives has the department undertaken to 
ensure meaningful participation by the private sector for developing 
the TAD canister, including new incentives and lessons-learned from the 
old MPC program? Please provide a schedule (with milestones) for 
completing the conceptual TAD design, as well as other important 
program steps (e.g. licensing & fabrication), please include critical 
TAD-system components (e.g. transport cask, transfer cask, ancillary 
equipment, disposal overpack).
    Answer. The transport, aging and disposal (TAD) canister based 
system is an integral part of the Program's new approach. On April 26, 
the Department published in FedBizOps a Notice of Program Interest 
soliciting notice from qualified cask vendors of their interest in 
participating in the conceptual design of a TAD-based system. The 
Department is in the process of evaluating the responses received. The 
Department believes that it is necessary to have participation from all 
qualified cask vendors in order for the TAD development effort to be 
successful.
    To stimulate the timely development of TAD-based systems while 
relying upon the private sector to perform the detailed design and 
licensing required for TAD system deployment, the Department is 
considering utilizing a dual path approach to incentivize both the cask 
designer/manufacturer industry and nuclear utilities.
    The Program is currently developing a timeline for TAD 
implementation and is evaluating appropriate measures to incentivize 
cask designer/manufacturer industry and utilities. The specifics are 
still under development.

          Responses of the Department of Energy to Questions 
                         From Senator Bingaman

        POTENTIAL LIABILITY TO UTILITIES FOR MITIGATION DAMAGES 
                       OF THE STANDARD CONTRACTS

    In April 2005, the United States Court of Federal Claims ordered 
the parties in Sacramento Municipal Utility District v. United States 
``to show cause why the court should not hold that the . . . Standard 
Contract . . . is void'' and order the Government ``to refund all 
monies paid to date by plaintiff into the Nuclear Waste Fund as 
restitution.'' 68 Fed. Cl. 180,183 (2005). SMUD declined the court's 
invitation to seek restitution, however, and, on March 31, 2006, ruled 
that SMUD was entitled to insist on the legal remedy of mitigation 
damages. Nonetheless, the court expressed its opinion ``that 
restitution would be a much more efficient, fair, and final resolution 
of the Government's breach'' of the nuclear waste contracts.
    It may make sense for the utilities to hold the Government to the 
Standard Contracts as long as there is hope that the Department will be 
able to open the Yucca Mountain repository and fulfill its contractual 
obligations to the utilities in the foreseeable future. It appears to 
make much less sense to continue ``the status quo of litigating ad hoc 
damage claims and appeals'' and ``to issue rolling damage awards ad 
infinitum,'' as the Court of Federal Claims said, if Congress abandons 
the nuclear waste management policy embodied in the Standard Contracts 
and embarks upon a new policy dependent upon a fuel ``recycling'' 
scheme that is dependent upon a new, yet-to-be-developed reprocessing 
technology and a fleet of new, yet-to-be-built fast reactors 25 or 30 
years from now.
    Question 1a. Please provide your best estimate of the Government's 
potential liability to the utilities for mitigation damages for partial 
breach of the Standard Contracts in each of the following cases:
    Yucca Mountain is licensed for the disposal of spent nuclear fuel 
and begins accepting spent fuel in 2015.
    Answer. The Department's best estimate of the Government's 
potential liability to the utilities for mitigation damages for partial 
breach of the Standard Contract if Yucca Mountain is licensed for the 
disposal of spent nuclear fuel and begins accepting spent fuel in 2015 
is approximately $5 billion.
    Question 1b. Yucca Mountain is licensed for the disposal of spent 
nuclear fuel and begins accepting spent fuel in 2020.
    Answer. The Department's best estimate of the Government's 
potential liability to the utilities for mitigation damages for partial 
breach of the Standard Contract if Yucca Mountain is licensed for the 
disposal of spent nuclear fuel and begins accepting spent fuel in 2020 
is approximately $11 billion.
    Question 1c. Yucca Mountain is licensed for the disposal of high-
level radioactive waste from GNEP and the defense program and begins 
accepting those wastes in 2035.
    Answer. Because this scenario provides no information regarding 
timing, i.e., when spent nuclear fuel would have left utility sites, 
nor is there information regarding rate, i.e., how much spent nuclear 
fuel is picked up at a time, there is not enough information to provide 
a meaningful response to this question.
      refund amounts paid by utilities into the nuclear waste fund
    Question 2. At what point is it in the best interest of the U.S. 
Treasury for the Government to ask the courts to void the Standard 
Contracts for mutual mistake, as the Court of Federal Claims has 
suggested and simply refund the amounts paid by the utilities into the 
Nuclear Waste Fund?
    Answer. The Department and the Administration are firmly committed 
to moving forward with the Yucca Mountain project and do not believe it 
would be in the best interest of the U.S. Treasury or the Federal 
Government to void the Standard Contracts. As the Government argued in 
its response brief to the show cause order issued by the court in the 
Sacramento Municipal Utility case, the Government has identified no 
basis to conclude that the Standard Contract is voidable based on the 
mutual mistake doctrine since mistake of fact cannot be a fact 
regarding a future event. Additionally, the Government has been unable 
to identify any mistaken belief of facts at the time of the Standard 
Contract's formation. Restitution is an improper remedy in this 
instance given that there is no basis to conclude the Standard Contract 
is void or is voidable.
    Practically speaking, if DOE no longer can collect quarterly fee 
payments, there is no Nuclear Waste Fund to support the Department's 
spent nuclear fuel waste disposal program. One consequence of the 
program's failure to operate would be that the Nuclear Regulatory 
Commission (NRC) likely could be forced to revisit its waste confidence 
rule-making, jeopardizing the continuation of nuclear power in the 
country if there is no foreseeable plan to remove spent fuel from 
utility sites. Finally, even if the Standard Contract were deemed void, 
the Department would still have a statutory obligation to develop a 
Federal radioactive waste disposal program as directed by the Nuclear 
Waste Policy Act of 1982, as amended.
    Question 3. You stated that the Department has hired the Oak Ridge 
Institute for Science and Education to provide an independent review of 
the project's scientific and technical work. Congress has already 
established the Nuclear Waste Technical Review Board to ``evaluate the 
technical and scientific validity'' of the project. How does the Oak 
Ridge Institute's role differ from that of the statutory Technical 
Review Board?
    Answer. The Nuclear Waste Technical Review Board was established by 
Congress in the Nuclear Waste Policy Act as an independent 
establishment within the executive branch to evaluate the technical and 
scientific validity of activities undertaken by the Secretary and 
report to Congress and the Secretary its findings, conclusions, and 
recommendations.
    The Oak Ridge Associated Universities/Oak Ridge Institute for 
Science and Education was contracted by, and reports to, the Office of 
Civilian Radioactive Waste Management (OCRWM) to provide independent 
expert reviews of specific scientific and technical issues and provides 
OCRWM access to a broad range of independent experts from around the 
country to evaluate and review our work products.
                                 ______
                                 
                      U.S. Environmental Protection Agency,
                                      Washington, DC, June 8, 2006.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Chairman Domenici: Thank you for the opportunity to testify 
before the Senate Energy a d Natural Resources Committee on the status 
of the Yucca Mountain project on May 16, 2006. Please find enclosed the 
Environmental Protection Agency's responses to the questions for the 
record I hope this information will e useful to you and the members of 
the Committee.
    If you have any questions, please call me or your staff may call 
Ronna Landy, in the Office of Congressional Intergovernmental 
Relations, at (202) 564-3109.
            Sincerely,
                                         William L. Wehrum,
                                    Acting Assistant Administrator.
[Enclosure.]

   Responses of William L. Wehrum to Questions From Senator Domenici

    Question 1. In July 2004, the Court of Appeals for the District of 
Columbia Circuit found that the timeframe of EPA's standards were not 
consistent with the National Academy of Sciences' recommendations.
    Answer. The Court ruled that EPA's policy justifications for the 
10,000-year compliance period were not sufficiently consistent with or 
based upon the National Academy of Sciences (NAS) recommendation. 
Specifically, the Court stated that ``The 10,000-year compliance period 
selected by EPA violates section 801 of the Energy Policy Act (EnPA) 
because it is not, as EnPA requires, `based upon and consistent with 
the findings and recommendations of the National Academy of Sciences,'' 
NEI v. EPA, 373 F.3d 1 (D.C. Circuit 2004) at 4.
    Question 2. What were the academies' recommendations?
    Answer. NAS presented a number of recommendations on the form and 
content of the Yucca Mountain standards. Specifically, NAS recommended 
that the standards:

   Set a limit on the risk individuals of au terse health 
        effects fro releases from the repository;
   Measure compliance at the time of peak (maximum) risk, 
        whenever it occurs;
   Evaluate the adverse effect of human intrusion into the 
        repository;
   Set a limit for the assumed intrusion scenario that is no 
        greater than the risk limit adopted for the undisturbed-
        repository case; and
   Use the critical-group approach to identity the individual 
        for whom the risk calculation is to be made.

    Regarding the regulatory compliance period, the NAS committee 
further stated that ``there is no scientific basis for limiting the 
time period of the individual-risk standard to 10,000 years or any 
other value,'' while also stating that the compliance period should be 
confined ``within the limits imposed by the long-term stability of the 
geologic environment, which is on the order of one million years.''
    The NAS committee recognized that, while its focus was on science 
and technical aspects, ``the selection of a time period of 
applicability . . . also has policy aspects that we have not 
addressed.'' For policy reasons, EPA led the compliance period to 
10,000 years. EPA also required that DOE perform longer-term 
projections and place them in the EIS, but did not specify a compliance 
standard. The Court ruled that EPA's policy justifications did not 
provide sufficient consistency with the NAS recommendation.
    Question 3. Can you briefly walk the committee through how the EPA 
arrived at the 15 millirem standard for the first 10,000 years at Yucca 
Mountain?
    Answer. The 15 millirem per year standard is consistent with the 
level established in EPA's generally applicable standards for land 
disposal of spent nuclear fuel, high-level waste, and transuranic 
radioactive waste in 40 CFR part 191. As such, this level has been 
successfully used as the basis of EPA regulatory approval for a 10,000-
year compliance period at the Waste Isolation Pilot Plant (WIPP). It is 
also consistent with EPA's lifetime cancer risk range of 
10-4 to 10-6, which provides a risk and 
protectiveness context across EPA programs and pollutants. Further, 15 
mrem/yr is within the range identified by NAS as an appropriate 
``starting point'' for rulemaking, which is approximately 2 to 20 mrem/
yr.
    Question 4. And on the issue of predicting and setting standards on 
anything for one million years--how is this possible to do?
    Answer. EPA has significant concerns regarding the use of 
mathematical calculations of projected performance over periods lasting 
hundreds of thousands of years as a basis for regulatory decision-
making. EPA does not believe that such projections can be viewed with 
the same level of confidence as projections for even such relatively 
``short'' times as 10,000 years, The uncertainties inherent in such 
projections led EPA to restrict the compliance period to 10,000 years 
in its 2001 standards, although projections were required beyond that 
point because they can still provide useful insights, even if they are 
not of sufficient quality to serve as a basis for regulatory decision-
making.
    EPA believes the approach recommended internationally, y the 
International Atomic Energy Agency (IAEA), among others, is 
appropriate. This approach places more emphasis on numerical 
projections for the initial period after closure, but gives more 
emphasis to other ``qualitative'' factors as the performance period 
increases. Qualitative factors that provide confidence in the 
robustness of the disposal system include such elements as engineering 
and design specifications, estimates of radionuclide movement through 
engineered and natural barriers, comparison with natural analogues 
(e.g., uranium ore bodies), radiotoxicity of waste remaining in the 
repository, extent of site characterization, and quality assurance 
programs.
    Ten thousand years is commonly considered a period of significance, 
during which projections are generally considered more reliable for 
decision-making. EPA's 2001 rule incorporated this approach by leaving 
the Nuclear Regulatory Commission (NRC) with discretion in evaluating 
the significance of the performance calculations. NRC was therefore not 
required to base its licensing decision on whether the projected peak 
dose satisfied a specific limit; rather, NRC could use the projections 
to inform its evaluation of other aspects of DOE's license application 
that directly affect overall safety, such as assumptions regarding 
engineered barrier performance. NRC could assign the dose projections 
greater or lesser weight in the licensing derision, as it deemed 
appropriate.
    EPA's 2005 proposed rule, which was drafted to respond to the 
decision from the Court of Appeals for the District of Columbia 
Circuit, adds an additional standard to the 10,000-year standard to 
cover the period from 10,000 to 1 million years. However, EPA has 
proposed a higher long-term dose limit as a way of emphasizing other 
factors important to safety, such as those mentioned above, and 
recognizing the significant uncertainties in projections covering 
hundreds of thousands of years. EPA chose to base this proposed higher 
limit on comparisons of natural background radiation rates within the 
United States. The range of variation in natural background radiation 
illustrates the levels of radiation exposure with which people live 
safely today and provides a reasonable benchmark or judging the overall 
safety of the Yucca Mountain disposal system over times approaching 1 
million years. No other regulations have ever been contemplated for 
such regulatory timeframes.

     Responses of William L. Wehrum to Questions From Senator Craig

    Question 1. How does EPA's revised standard compare with how other 
countries plan to regulate their spent fuel repositories?
    Answer. EPA'S overall approach is generally consistent with the 
approach taken internationally, which views numeric dose projections as 
less reliable for regulatory decisionmaking at very long times. 
Guidance from the International Atomic Energy Agency (IAEA), among 
others, suggests that other ``qualitative'' factors should be given 
more emphasis in reaching a decision regarding the overall safety of a 
disposal system. Qualitative factors that provide confidence in the 
robustness of the disposal system include such elements as engineering 
and design specifications, estimates of radionuclide movement through 
engineered and natural barriers, comparison with natural analogues 
(e.g., uranium ore bodies), radiotoxicity of waste remaining in the 
repository, extent of site characterization and quality assurance 
programs.
    While this view is widely accepted, individual countries lave 
adopted different methods to implement For example, France establishes 
a dose limit for the first 10,000 years that ``will be applied for 
determining the acceptability of the radiological consequences.'' 
Beyond that point, however, the dose limit is a ``reference value'' 
that ``may be supplemented, by more qualitative assessments of the 
results of these estimates.'' The Finnish standard requires dose 
assessments for ``at least several thousands of years.'' In the longer 
term, the standard for compliance is based on radionuclide-specific 
release limits, with the stipulation that ``at their maximum, the 
radiation impacts arising from disposal can be comparable to those 
arising from natural radioactive substances.''
    Both EPA'S 2001 rule and its proposed amendments incorporate this 
viewpoint. However. we believe the 2005 proposal is the only example 
that that would set a numerical standard for a compliance period of one 
million years.
    Question 2. How meaningful is it to estimate potential radiation 
doses one million year into the future? And what is EPA perspective on 
the one million year timeframe?
    Answer. EPA has significant concerns regarding the use of 
mathematical calculations of projected performance over periods lasting 
hundreds of thousands of years as a basis for regulatory decision-
making. EPA does not believe that such projections can he viewed with 
the same level of confidence as projections for even such relatively 
``short'' times as 10,000 years. The uncertainties inherent in such 
projections led EPA to restrict the compliance period to 10,000 years 
in its 2001 standards, although projections were required beyond that 
point because they can still provide useful insights, even if they are 
not of sufficient quality to serve as a basis for regulatory decision-
making.
    EPA believes the approach recommended internationally, by the 
International Atomic Energy Agency (IAEA), among others, is 
appropriate. This approach places more emphasis on numerical 
projections for the initial period after closure, but gives more 
emphasis to other ``qualitative'' factors as the performance period 
increases. Qualitative factors that provide confidence in the 
robustness of the disposal system include such elements as engineering 
and design specifications, estimates of radionuclide movement through 
engineered and natural barriers, comparison with natural analogues 
(e.g., uranium ore bodies), radiotoxicity of waste remaining in the 
repository, extent of site characterization, and quality assurance 
programs.
    Ten thousand years is commonly considered a period of significance, 
during whit projections are generally considered more reliable for 
decision-making. EPA's 2001 rule incorporated this approach by leaving 
the Nuclear Regulatory Commission (NRC) with. discretion in evaluating 
the significance of the performance calculations. NRC was therefore not 
required to base its licensing decision on whether the projected peak 
dose satisfied a specific limit; rather, could use the projections to 
inform its evaluation of other aspects of DOE's license application 
that directly affect overall safety, such as assumptions regarding 
engineered barrier performance. NRC could assign the dose projections 
greater or lesser weight in the licensing decision, as it deemed 
appropriate.
    EPA's 2005 proposed rule, which was drafted to respond to the 
decision from the Court of Appeals for the District of Columbia 
Circuit, adds an additional standard to the 10,000-year standard to 
cover the period from 10,000 to 1 million years. However, EPA has 
proposed a higher long-term dose limit as a way of emphasizing other 
factors important to safety, such as those mentioned above, and 
recognizing the significant uncertainties in projections covering 
hundreds of thousands of years. EPA chose to base this proposed higher 
limit on comparisons of natural background radiation rates within the 
United States. The range of variation in natural background radiation 
illustrates the levels of radiation exposure with which people five 
safely today and provides a reasonable benchmark for judging the 
overall safety of the Yucca Mountain disposal system over times 
approaching 1 million years. No other U.S. regulations have ever been 
contemplated for such regulatory timeframes.
    Question 3. What factors did EPA consider when revising its 2001 
radiation standard?
    Answer. The major factor that EPA considered was the main subject 
of the court remand--the compliance period. Other factors that were 
considered include: NAS findings and recommendations; the level of the 
peak dose limit (the additional standard applicable from 10,000 to 1 
million years); the uncertainties involved in extremely long-term 
performance projections and how they can be addressed to make the 
standards implementable; international guidance and regulations; and 
implications for the human-intrusion and ground-water protection 
standards.
    Question 4. When will the EPA issue its revised Radiation 
Protection Standard for Yucca Mountain?
    Answer. EPA is making every effort to issue the final revised 
standards by the end of calendar year 2006.

   Responses of William L. Wehrum to Questions From Senator Bingaman

    Question 1. The U.S. Court of Appeals or the District of Columbia 
struck down EPA's original radiation protection standards for Yucca 
Mountain because they were not ``based upon and consistent with'' the 
findings and recommendations of the National Academy of Sciences, as 
required by the Energy Policy Act of 1992.
    Answer. The Court ruled that the 10,000-year compliance period, 
combined with the requirement that longer-term projections be performed 
and placed in the Department of Energy's (DOE) Environmental Impact 
Statement (EIS), did not provide sufficient consistency with the NAS 
recommendation.
    Question 2. The Academy's recommendation, as understand it, 
involved 2 variables. One was the time scale. The Academy recommended a 
million year time scale, and EPA's original standards adopted a 10,000-
year period. That was the discrepancy the court focused on, and that is 
the discrepancy that your proposed rule would remedy.
    Answer. Regarding the regulatory compliance period, the NAS 
committee recommended ``that compliance with the standard be measured 
at the time of peak risk, whenever it occurs.'' The committee further 
stated that ``there is no scientific basis for limiting the time period 
of the individual-risk standard to 10,000 years or any other value,'' 
while also stating that the compliance period should be confined 
``within the limits imposed by the long-term stability of the geologic 
environment, which is on the order of one million years.''
    The NAS committee recognized that, while its focus was on 
scientific and technical aspects, ``the selection of a time period of 
applicability . . . also has policy aspects that we have not 
addressed.'' For policy reasons, EPA limited the compliance period to 
10,000 years. EPA also required that DOE perform longer-term 
projections and place them in the EIS, but did not specify a compliance 
standard. The Court ruled that EPA's policy justifications did not 
provide sufficient consistency with the NAS recommendation.
    Question 3. The other variable was the so-called exposure scenario. 
The Academy said that the chance that people would be exposed to 
radiation from the repository ought to be modeled on a statistical or 
``probabilistic'' basis. EPA opted instead for a ``deterministic'' 
exposure scenario, based on a hypothetical ``Reasonably Maximally 
Exposed Individual.''

   Why did EPA reject the Academy's recommendation that it use 
        a probabilistic scenario?
   Is EPA's deterministic scenario ``based upon and consistent 
        with'' the probabilistic scenario recommended by the Academy if 
        the Academy specifically considered and rejected EPA's 
        deterministic approach when it prepared its report?

    Answer. NAS recommended that EPA adopt a critical-group approach 
but recognized that such an approach could be implemented in many ways. 
The NAS committee offered the ``probabilistic critical group'' as one 
method that would meet the overall protectiveness goals while avoiding 
``unreasonable assumptions regarding habits and sensitivities affecting 
risk.'' Ultimately, however, NAS emphasized ``that specification of 
exposure-scenario assumptions is a matter for policy decision.''
    EPA selected the RMEI as both a simpler and more conservative 
alternative to the ``probabilistic critical group'' preferred by NAS, 
The RMEI is. deterministic only in the sense that this hypothetical 
individual is always located above the point of highest contamination 
in ground water in the accessible environment and is assumed to drink 2 
liters of ground water per day from that location. However, other 
exposure factors, such diet, are representative of the current 
population and lifestyles in the Town of Amargosa Valley. In its 
comments on EPA's 1999 proposal, NAS stated its belief that the RMEI 
was ``broadly consistent'' with the recommended critical group 
approach. The RMEI approach was not at issue in the 2004 Court of 
Appeals ruling, and EPA has not proposed to modify it,
    Question 4. How do the radiation protection standards EPA is 
proposing for Yucca Mountain compare with those in effect for WIPP?
    Answer. The level of protection for the first 10,000 years after 
disposal at both locations is 15 mrem/yr, and the ground-water 
protection standards for both are based on EPA's drinking water 
standards. The differences in the two regulations stem primarily from 
the site-specific nature of the Yucca Mountain standards, as well as 
consideration of the NAS Report. These differences include the size of 
the controlled area (point of compliance), description of the RMEI 
(compared to ``any member of the public'' for WIPP), and the framing of 
the human intrusion standard. WIPP must also comply with radionuclide-
specific release limits, which are not included in the Yucca Mountain 
standards. EPA has also proposed to update the method for calculating 
doses for the Yucca Mountain standards.
                                 ______
                                 
                            Office of the Governor,
                               Agency for Nuclear Projects,
                                    Carson City, NV, June 13, 2006.
Hon. Pete V, Domenici,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Senator Domenici: Enclosed please find responses to the 
questions that both you and Senator Craig provided following your 
hearing on the status of the Yucca Mountain project. Should you have 
additional questions, please do not hesitate to contact me.
            Sincerely,
                                            Robert R. Loux,
                                                Executive Director.
[Enclosure.]

      Responses of Robert Loux to Questions From Senator Domenici

    Question 1. DOE recently released an independent study which was 
reviewed by the Colorado School of Mines, the University of Arizona, 
and the U.S. Dept of Agriculture regarding the water infiltration work 
conducted by the United States Geological Survey that was the subject 
of the questionable e-mails. This report confirmed that the data in 
question was correct. Do you dispute this conclusion? If so, on what 
basis?
    Answer. The report referenced in this question is: Evaluation of 
Technical Impact on the Yucca Mountain Project Technical Basis 
Resulting From Issues Raised by E-Mails of Former Project Participants, 
Office of Civilian Radioactive Waste Management, DOE/RW-0583, February, 
2006. The report does not confirm that the data in question was 
correct. The following are the conclusions of the report (page 24):

          ``From this evaluation. the following conclusions can be 
        drawn:
          1. The net infiltration rate estimates for Yucca Mountain are 
        developed from, a strong conceptual and hydrologic basis, 
        including regional and site investigations dating back to the 
        1970s. The concepts, principles, and methods applied at Yucca 
        Mountain are consistent with standard scientific practice as 
        documented in the scientific literature,
          2. Corroborating data on long-term net infiltration and 
        groundwater recharge are publicly available in the scientific 
        and technical literature. These data, surveyed for Nevada and 
        the Western United States, are consistent with current 
        estimates of net infiltration for Yucca Mountain, both under 
        the modern climate and for potential future climate scenarios.
          3. Data plots demonstrate that the net infiltration rate 
        estimates for Yucca Mountain provide reasonable inputs to 
        unsaturated zone flow modeling and the total system performance 
        assessment modeling for the Site Recommendation. Figure 4-5 
        presents a compilation of all data discussed in this 
        evaluation, showing that the Yucca Mountain net infiltration 
        rate estimates are within the ranges of these data.
          4. The net infiltration rate estimates and the conceptual 
        models from which they were developed were published in peer-
        reviewed scientific journals and were the subject of an expert 
        elicitation.
          5. Net infiltration at Yucca Mountain is a small fraction of 
        average annual precipitation, representing between about 1 
        percent and about 6 percent, meaning that, on average, between 
        1 and 10 mm/yr infiltrates into Yucca Mountain.''

    Based on our review of the report, we generally agree with and do 
not dispute these conclusions. But, additional future analysis may 
result in revision of the average annual net infiltration into Yucca 
Mountain stated in Conclusion 5 above.
    Question 2. You have indicated that an aging facility or ``fuel 
cooling facility'' would be the same thing as interim storage. However, 
if such a facility were simply an operational component of a repository 
licensed for permanent disposal, wouldn't this be something very 
different from interim storage?
    Answer. Fuel cooling is not integral to the operation of a 
repository licensed for permanent disposal. Fuel cooling begins with 
the removal of irradiated fuel from an operating reactor, and continues 
throughout the decay period of the radionuclides contained in the fuel. 
Thermal limits for a particular repository geologic setting and design 
may require control of the thermal impact of the irradiated fuel within 
the repository, but this can be accomplished in various ways, none of 
which require ``aging'' the fuel at the repository site. For example, 
adjusting the areal mass loading of the fuel to meet repository thermal 
limits would eliminate the need for ``aging'' the fuel, thus 
eliminating the need for any aging facility prior to emplacement in the 
repository.
    The ``aging facility'' as conceived for a Yucca Mountain repository 
is interim storage of commercial spent nuclear fuel interim between 
removal from the reactor site and emplacement in the repository. If the 
purpose of the facility was to optimize repository loading operations, 
a relatively small lag storage facility could be planned, instead of a 
facility intended to store from 21,000 to 40,000 metric tonnes of heavy 
metal for an indefinite period of time.
    The NRC is withholding judgment on whether the ``aging facility'' 
would need to be licensed as an Independent Spent Fuel Storage 
Installation, under 10 CFR Part 72, rather than as part of the 
repository, pursuant to 10 CFR Part 63. The issue, according to NRC, is 
whether DOE can demonstrate that the facility is integral to the 
repository operation in its License Application. By calling it an 
``wing facility'' DOE has defined its purpose, which is distinctly 
separate from the operation of the repository, and will be accomplished 
any place the fuel resides, and in whatever amount is stored at any 
location.
    Question 3. You have indicated that without metal waste containers, 
peak radiation doses would exceed the EPA 15 millirem limit within 500 
years. Can you please describe the basis for this conclusion?
    The source document for this information is: FY01 Supplemental 
Science and Performance Analyses, Volume 2: Performance Analyses, July 
2001, Bechtel SAIL Company, LLC, TDR-MGR-PA-000001 REV 00. Figure 
3.2.2-9, Annual Dose Histories with and without Seepage during the 
Boiling Period for the Case with Neutralized Waste Package and Drip 
Shields, shows the mean annual dose curve intersecting the 15 millirem 
per year dose level at approximately 500 years. The same figure 
indicates the mean peak dose, at about 600 millirems per year, occurs 
at approximately 2,000 years.

        Responses of Robert Loux to Questions From Senator Craig

    Question 1. Does Nevada support GNEP? Would Nevada seek to 
participate in GNEP if hosting an interim storage site is a required 
part of that?
    Answer. Nevada does not support GNEP and does not seek to 
participate in any way.
    Question 2. Given that nuclear waste must eventually be dealt with 
in a safe and responsible manner, even with GNEP, do you see[n] any 
practical alternative to eventual permanent geologic disposal of 
nuclear spent fuel, as endorsed by the National. Research Council?
    Answer. At this time, Nevada does not know of any technical reason 
to reject the concept of deep geologic disposal of high-level 
radioactive waste, whether the waste form is spent nuclear fuel or some 
other configuration, Of course, implementation of the concept requires 
a suite of rigorous pre-established siting, licensing, and safety 
standards that assure the ability to disqualify a proposed repository 
at any time prior to closure,
    Question 3. From your experience with these issues, could you name 
any sites in the U.S. that you feel should be investigated as a 
potential repository location[s] that are better suited than Yucca 
Mountain?
    Answer. For reasons stated in Governor Guinn's Notice of 
Disapproval of the Yucca Mountain Site Recommendation, submitted to the 
Congress in 2002, Yucca Mountain is not technically acceptable as a 
permanent repository location. Sufficient information does not exist to 
suggest any specific sites in the U.S. that should be investigated, 
especially under the current regulatory and policy regime that is 
driven by mission zealots who show little regard for the safety of 
affected citizens. It also should be noted that the Congressional 
prohibition of investigation of granite sites in the 1987 Nuclear Waste 
Policy Act Amendments is scientifically unsupportable and a policy 
travesty.
    Question 4. If the scientific & technical community can demonstrate 
the safety of Yucca Mountain, and the regulatory authority accepts it, 
is there any reason why the country should not go forward with Yucca 
Mountain?
    Answer. With the current state of regulations and safety standards 
for a Yucca Mountain repository, there is no basis for demonstration of 
the safety of the site. What has been demonstrated is the opposite--
that the site does not meet even a minimal expectation for geologic 
isolation of radioactive wastes. See our response above to Question 3 
from Senator Domenici. If the original DOE Site Recommendation 
Guidelines and process, NRC licensing regulations, and EPA safety 
standards were applicable, the Yucca Mountain site would have been 
disqualified for technical reasons, as recommended by Nevada Governors 
to Secretaries of Energy, first in 1989 and again in 1999.
    Question 5. Do you have reason to believe that the NRC is not 
capable of granting a license and regulating Yucca Mountain competently 
and fairly and with the health and safety of Nevadans being of 
paramount importance?
    Answer. We have reason to believe that the NRC staff has been 
diligent in its effort to convince DOE that its Yucca Mountain License 
Application, if submitted, must be complete and of high quality. We 
also have reason to believe that, if a license application is 
submitted, the NRC review and hearing process is capable of denial of a 
license, which it should do, and Nevada will make every effort to 
secure such a result.

                              Appendix II

              Additional Material Submitted for the Record

                              ----------                              

  Statement of Admiral Frank L. ``Skip'' Bowman, U.S. Navy (Retired), 
    President and Chief Executive Officer, Nuclear Energy Institute
    Mr. Chairman and members of the committee, I am Frank L. ``Skip'' 
Bowman, president and chief executive officer, at the Nuclear Energy 
Institute (NEI). Thank you for this opportunity to share the nuclear 
energy industry's assessment of the Department of Energy's civilian 
radioactive waste management policies and of the Yucca Mountain 
project. Having served 38 years in our United States Navy, I am 
convinced that our country's national security is inextricably linked 
to our energy security, and that nuclear energy must be a large part of 
that energy security.
    NEI is responsible for developing policy for the commercial nuclear 
industry. NEI's 250 members represent a broad spectrum of interests, 
including every U.S. electric company that operates a nuclear power 
plant. NEI's membership also includes nuclear fuel cycle companies, 
suppliers, engineering and consulting firms, national research 
laboratories, manufacturers of radiopharmaceuticals, universities, 
labor unions and law firms.

                                SUMMARY

    In keeping with the scope of this hearing, I will focus my 
testimony on the following key issues:


   DOE must make visible and measurable progress in 
        implementing an integrated national used nuclear fuel 
        management strategy, which has as an integral component the 
        Yucca Mountain, Nev., repository. This progress will help 
        ensure that the expanded use of nuclear energy will play a key 
        role in our nation's strategy for meeting growing electricity 
        demand.

   The industry's evaluation of DOE's civilian used nuclear 
        fuel program's actions to address challenges so that the 
        federal government meets its statutory and contractual 
        obligations to remove used nuclear fuel from utility sites and 
        dispose of it in a timely manner.

    The industry believes that the provisions of the Nuclear Fuel 
Management and Disposal Act, S. 2589, provide a solid basis for making 
the necessary progress towards addressing the challenges. We urge the 
Committee to hold a subsequent hearing on the, details of this 
legislation as soon as possible and report to the Senate its 
legislative recommendations to move forward on implementing our 
national policy during this session of Congress.

        NUCLEAR ENERGY MUST PLAY A KEY ROLE IN OUR ENERGY FUTURE

    In the 2005 State of the Union address, President Bush affirmed the 
nation's commitment to ``safe, clean nuclear energy'' as part of a 
diverse portfolio that Will meet America's future electricity needs. A 
long-term commitment to nuclear energy will make the United States more 
energy independent and energy efficient. The Administration and 
Congress demonstrated strong leadership by enacting the Energy Policy 
Act of 2005, which encourages diversity of energy sources, including 
emission-free-sources of electricity, such as nuclear energy.
    The nation must focus on clean, reliable and affordable energy 
sources, such as nuclear, that are available today. Nuclear energy 
offers several unique advantages. It is the only expandable baseload 
energy source that does not. emit carbon or other greenhouse gases into 
the atmosphere. Nuclear energy safely and reliably provides price 
stability for electricity customers as the prices for fossil fuels 
fluctuate. It also provides exciting new opportunities in areas such as 
hydrogen production. Although our nation must continue, to employ a mix 
of fuel sources for generating electricity, we believe it is important 
that nuclear energy maintain at least the current 20 percent 
contribution to U.S. electricity production. Maintaining that level of 
production will require construction of a significant number of new 
nuclear plants beginning in the next decade.
    There is strong, bipartisan support for a continuing significant 
role for nuclear power. More than two thirds of the public supports 
keeping nuclear energy as a key component of our energy portfolio. Many 
in the environmental community recognize the key role that nuclear 
energy can play in controlling greenhouse gas emissions. The industry 
appreciates the recognition of the nuclear energy's importance that 
Congress and the Administration demonstrated in the last year's 
comprehensive Energy Policy Act of 2005.
    Recently, a new coalition of diverse organizations and individuals 
has been formed to educate the public on nuclear energy and participate 
in policy discussions on U.S. energy issues. The Clean and Safe Energy 
coalition, co-chaired by Greenpeace co-founder Patrick Moore and former 
Environmental Protection Agency Administrator Christine Todd Whitman 
includes business, environmental, labor, health and community leaders 
among its 120 members.

 PROGRESS ON USED FUEL MANAGEMENT MUST MOVE HAND-IN-HAND WITH INDUSTRY 
                              DEVELOPMENT

    The provisions of the Energy Policy Act of 2005 clearly stimulated 
interest among electric utilities in constructing new nuclear plants. 
This increased interest requires progress on the federal government's 
used fuel management policies; The federal government must meet its 
contractual responsibility to accept, transport and dispose of used 
nuclear fuel through a comprehensive radioactive waste management 
program including continued progress toward a federal used nuclear fuel 
repository.
    While it is important to recognize that the industry and other key 
stakeholders are not satisfied with the extent of progress made by the 
federal government in meeting the requirements of the NWPA as amended, 
progress. has been made.

   There is long-standing international scientific consensus 
        that a deep geologic repository is the best solution for long-
        term disposition of commercial used nuclear fuel and high-level 
        radioactive byproducts of our nation's defense programs.
   The Bush Administration and Congress affirmed the scientific 
        suitability of Yucca Mountain for a repository in 2002 after 
        nearly 20 years of scientific study. Over the past three years, 
        DOE and its contractors have provided further confirmation that 
        Yucca Mountain is an appropriate site for a national 
        repository. Federal courts have rejected significant legal 
        challenges by Nevada and others to the Nuclear Waste Policy Act 
        and the 2002 Yucca Mountain site suitability determination. A 
        federal. court also affirmed that the Yucca Mountain 
        Development Act is constitutional and DOE's repository system 
        design, which incorporates both natural and engineered barriers 
        to contain radioactive material safely, is consistent with the 
        law.
   Suggestions that DOE postpone Yucca Mountain indefinitely 
        and leave used fuel at reactor sites for a century or more 
        while waiting for some ``magic bullet'' solution ignores the 
        significant safety and security advantages of centralized 
        storage at a federal facility and the monumental additional 
        costs that taxpayers would ultimately bear waiting for this 
        ``solution.'' Even if such a solution were found, there is 
        still a near-term need for the repository to provide disposal 
        of high-level radioactive waste from defense programs.
   The industry believes that DOE has the authority to take 
        advantage of significant. opportunities to advance its 
        comprehensive used fuel management program and the Yucca 
        Mountain project in particular. The industry also believes that 
        S. 2589 best addresses many of the issues limiting progress at 
        Yucca Mountain.

         PROGRESS TOWARD LICENSING YUCCA MOUNTAIN MUST CONTINUE

    The industry, is encouraged by the leadership and management 
provided to the program by Energy Secretary Samuel Bodman, Deputy 
Secretary Clay Sell and Acting Director of the Office of Civilian 
Radioactive Waste Management, Paul Golan.
    They are leading the transition from a purely scientific program, 
focused on site characterization and site approval at Yucca Mountain, 
to one that is preparing to enter a rigorous Nuclear Regulatory 
Commission licensing process. This progress has continued as the 
department addresses challenges, such as the revised Environmental 
Protection Agency radiation protection standard. DOE has made 
significant progress toward resolving key technical issues with the NRC 
before it submits a license application for Yucca Mountain. DOE is also 
adopting industry best practices to ensure that it will submit a 
quality application to the NRC. It plans to include in this application 
a revised surface facility design that will handle fuel in standardized 
multipurpose canisters. Using transportation, aging and disposal (TAD) 
canisters in combination with associated surface facilities will reduce 
the need to handle used fuel at Yucca Mountain and increase safety. It 
is important that DOE complete these efforts, file a high quality 
repository license application in a timely manner and, ultimately, 
complete the transition to a design, engineering and construction 
project.
    The recently announced design changes involving use of standardized 
containers can assist the industry in meeting important goals for 
management of used fuel at a geologic repository with the potential to 
retrieve it if that becomes desirable. The industry is appropriately 
engaged with DOE to ensure that these standardized canisters can be 
loaded and transported from our facilities safely and efficiently. In 
addition, the industry is committed to helping DOE address technical 
issues at Yucca Mountain in the same effective, high quality manner 
that has become the expected norm at the Nation's 103 reactors. The 
industry is encouraged by DOE'S recent progress towards the alignment 
of a rail spur to Yucca Mountain. The development of necessary 
transportation infrastructure and planning should continue to be a high 
priority.
    As part of this committee's ongoing review of the DOE repository 
program, the industry urges Congress to exercise careful oversight of 
the licensing process, starting with the quality and timeliness of the 
filing of the license application by DOE. This can ensure that the 
program is not further delayed. This Committee should challenge DOE to 
show how it will incorporate the proposed design changes into the 
license application in a manner that will allow for its submission in a 
timely fashion. DOE should provide Congress detailed program 
milestones, a revised five-year funding profile for the program, and an 
updated life-cycle cost estimate for the repository, in conjunction 
with the updated program schedule that DOE officials have promised this 
summer.
    Legislative deliberations should not preclude DOE from filing a 
license application. The NRC should begin reviewing the repository 
license application, when it is submitted with the knowledge that DOE 
can amend it to address changes, if any, resulting from new 
legislation.

       THE YUCCA MOUNTAIN LICENSING PROCESS PROVIDES FLEXIBILITY 
                     TO ADDRESS FUTURE DEVELOPMENTS

    DOE should incorporate, as provided by existing regulations, 
features into its repository development plans that maintain 
flexibility for future generations to make informed decisions, based on 
operational experience, changing energy economics, and technological 
developments.
    The nuclear energy industry supports enhancements to the Yucca 
Mountain repository that would provide greater long-term assurance of 
safety and permit DOE to apply innovative technology at the repository 
as it is developed. These enhancements include:

   extensive monitoring of the used nuclear fuel placed in the 
        repository and its effects on the surrounding geology for 300 
        or more years
   the ability to retrieve the used nuclear fuel from the 
        facility for an extended period
   periodic review of updates to the repository license that 
        takes into account monitoring results and ensures that the 
        facility is operating properly.

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

           CHALLENGES REMAIN FOR MEETING FEDERAL OBLIGATIONS

    DOE must address a number of issues to provide stability, clarity 
and predictability of our national used nuclear fuel policy. Conditions 
must be in place to' facilitate near-term movement of used fuel, 
assurance of transportation safety and security, licensing and 
construction of the repository, and permanent disposal of used fuel in 
the repository. The following are the industry's priorities for meeting 
the federal obligation.
DOE Should Move Used Nuclear Fuel From Reactor Sites
    The industry's top priority is for the federal government to meet 
its statutory and contractual obligation to move used fuel away from 
operating and decommissioned reactor sites. The government already is 
eight years in arrears in meeting this obligation, and it will be at 
least another decade before the repository is completed. That failure 
is the subject of more than 60 lawsuits. Three of these suits, 
representing only a fraction of the reactor sites, have resulted in 
settlements or judgments totaling $340 million for costs incurred.
    Further. delays in federal receipt and movement of used nuclear 
fuel and defense waste products could cost taxpayers over $1 billion 
per year in defense waste site life-cycle costs, operating costs at 
utilities and Yucca Mountain fixed costs, exclusive of litigation 
damages already incurred, according to DOE.
    While DOE moves forward to license, construct and operate the Yucca 
Mountain repository, the government must take title to used fuel and 
move it to a secure federal facility as soon as practicable. The 
industry recognizes that there are different interpretations as to the 
department's authority to undertake such an action. Therefore, Congress 
should work with DOE to take steps that will facilitate the movement of 
used fuel from utility sites.

Waste Confidence Should Be Affirmed
    The nation's policymakers must be confident that policies are in 
place to ensure the safe and secure storage and disposal of used 
nuclear fuel. This waste confidence determination is reflected in 
Nuclear Regulatory Commission rules that support various licensing 
actions. However, such an approach creates uncertainty, because NRC 
regulations and licensing decisions are subject to litigation.
    Managing the nation's used fuel is a firmly established federal 
obligation and, as such, is a matter of broad national policy. There is 
solid scientific and technical justification to affirm waste 
confidence. In 2001, the National Academy of Sciences confirmed four 
decades of international scientific consensus that geologic disposal is 
the best method for managing used nuclear fuel. Congress approved a 
geologic disposal site at Yucca Mountain in 2002.
    In the Energy Policy Act, Congress included provisions that 
encourage the construction of new nuclear power plants, illustrating 
confidence in the nation's ability to manage used reactor fuel in the 
future. In addition, the Energy Department has safely operated a 
geologic disposal site for transuranic radioactive waste near Carlsbad, 
N.M., and 34 temporary dry-cask storage facilities for used nuclear 
fuel have been licensed at nuclear power plants. The first such 
facility has been operating since 1986. Congress should codify ``waste 
confidence'' so that the NRC need not address this broad public policy 
matter as a routine regulatory matter.

Funding Predictability Should Be Established
    Congress established the Nuclear Waste Fund to cover costs 
associated with disposal of commercial used nuclear fuel. This fund is 
paid for by a one-tenth-of-a-cent-per-kilowatt-hour fee on electricity 
used by consumers of nuclear energy. Initially, expenditures from the 
fund were not scored in the budget as part of the discretionary 
spending totals. This was similar to budget treatment of other user 
fees, including those for the NRC. More than a decade ago, Congress 
deviated from this principle and forced Nuclear Waste Fund expenditures 
for Yucca Mountain to compete in the federal budget with unrelated 
programs, despite this dedicated source of revenue.
    As a result, Yucca Mountain budget requests have been cut by more 
than $1 billion over the last decade. Program funding requirements are 
forecast to increase substantially over the next few years. If overall 
spending totals remain flat, even more significant delays could result 
not because nuclear power consumers have not provided the funds 
necessary to support the program, but because of inappropriate federal 
budget accounting.
    To date, consumers of nuclear power have committed more than $27 
billion in fees and accrued interest into the fund, and continue to pay 
at a rate of $750. million each year. However, only some $9 billion has 
been spent on the project, leaving a balance in excess of $18-billion. 
In recent years, fee income has been five times as high as annual 
spending from the fund.

Artificial Constraints on Repository Operations Should Be Eliminated
    Currently, there is a statutory limit of 70,000 metric tons on the 
amount of nuclear waste materials that can be accepted at Yucca 
Mountain. The Environmental Impact Statement for the project analyzed 
emplacement of up to 120,000 metric tons of nuclear waste products in 
the repository. Additional scientific analyses suggest significantly 
higher capacity could be achieved with changes in the repository 
configuration that use only geology that has already been characterized 
and do not deviate from existing design parameters.
    Decisions on licensing and operations of a deep geologic repository 
at Yucca Mountain should be based on scientific and engineering 
considerations through the NRC licensing process, not on artificial 
constraints. Given the decades of study and the billions of dollars 
invested in Yucca Mountain, it makes sense that we fully and safely 
utilize its potential capacity.

Clarity and Stability in the Licensing Process Should Be Provided
    The NRC repository licensing process should be restructured to 
ensure that the proceedings are prioritized. First, there must be a 
reasonable, but finite, schedule for review of the authority to 
``receive and possess'' fuel that would follow approval of the 
construction license. This would be consistent with an established 
schedule for the initial review of the construction license application 
and could avoid dilatory procedural challenges that would undermine the 
government's ability to meet its contractual obligations and avoid the 
significant costs of delay.
    Second, clarification must be provided as to what activities are 
authorized to develop used fuel management infrastructure prior to the 
NRC granting a construction license, including the construction of a 
rail line to connect the Yucca Mountain site with the national rail 
network.
    Third, the hearing process for the authorization to receive and 
possess fuel should be simplified to provide for clear and concise 
decision making.
    Finally, clarification is needed with respect to land management, 
what regulations will apply to repository construction and operations, 
and which agencies will administer those regulations.

                  ADDITIONAL FACTORS FOR CONSIDERATION

Used Nuclear. Fuel Recycling
    The nuclear energy industry has shown consistent and strong support 
for research and development of advanced fuel cycle technologies 
incorporated in the Advanced Fuel Cycle Initiative (AFCI). In 
anticipation of a major expansion of nuclear power in the United States 
and globally, it is appropriate to accelerate activities in this 
program. The resurgence in development of nuclear energy is expected to 
require advanced fuel cycles. However, a repository will be necessary 
to handle defense wastes, legacy commercial used nuclear fuel and by-
products regardless of whatever fuel cycle is ultimately developed.
    President Bush has presented a compelling vision for a global 
nuclear renaissance through the Global Nuclear Energy Partnership 
(GNEP). This initiative provides an important framework to satisfy U.S. 
and world needs for an abundant source of clean, safe nuclear energy 
while addressing challenges for related to fuel supply, long-term 
radioactive waste management and proliferation concerns.
    We recognize that the Congress has important questions regarding 
this program. The near-term focus for GNEP is for DOE to determine, by 
2008, how to proceed with demonstration of advanced recycling 
technologies and other technological challenges. Consequently, the 
industry fully supports increased funding for AFCI in fiscal 2007. 
However, neither AFCI nor GNEP, reduces the near-term imperative of 
developing the Yucca Mountain repository.

A Constructive Role for Nevadans
    The nuclear energy industry supports an active and constructive 
role for Nevada in the development of Yucca Mountain to help ensure the 
safety of its citizens. The industry also supports compensation for the 
state to account for the program's socioeconomic impact, as called for 
in the Nuclear Waste Policy Act. This model is consistent with the 
siting and operation of the Waste Isolation Pilot Project.
    The industry is encouraged that Nevadans at the local level share a 
common goal with DOE, the NRC and industry to ensure safe development 
of Yucca Mountain and the related transportation infrastructure. One 
recent example of this activity is a cooperative agreement initiated in 
2004 among three impacted counties, the city of Caliente and DOE. 
Another example is the coalition of Nevada business, labor and 
community leaders that formed ``For a Better Nevada to promote the 
interests of Nevadans with respect to the Yucca Mountain project. The 
coalition has particularly identified its interest in incorporating 
enhanced monitoring and retrievability into the repository program.
    The work of this coalition is particularly important in view of 
Nevada public opinion. Most Nevadans believe that the facility will 
ultimately be built and that the governor and U.S. Senators of Nevada 
should negotiate with the federal government so that the state can 
receive millions of dollars in special annual payments to reduce taxes, 
help expand the economic diversity of Nevada, improve education, and 
for highway improvement, if the Yucca Mountain project is approved for 
a disposal facility.
    The industry is encouraged by the steps DOE has taken to work with 
affected local governments in the state, and we further encourage the 
department to expand its interactions with Nevadans interested in being 
constructively engaged in the project.

                               CONCLUSION

    We must never lose sight of the federal government's responsibility 
for civilian used nuclear fuel disposal, as stated by Congress in the 
Atomic Energy Act of 1954 and the Nuclear Waste Policy Act of 1982. The 
industry fully supports the fundamental need for a repository so used 
nuclear fuel and the byproducts of the nation's nuclear weapons program 
are safely and securely managed in a specially designed, underground 
facility. World-class science has demonstrated that Yucca Mountain is 
the best site for such a facility. A public works project of this 
magnitude--the largest ever of its kind will inevitably face setbacks. 
Yet, none is insurmountable. DOE and its contractors have made 
significant progress on the project and will continue. to do so as the 
department prepares to submit a license application to the NRC. 
However, DOE is eight years late in meeting its commitment to begin 
accepting reactor fuel and must proceed without further delay with an 
integrated used fuel management strategy.
    A viable used fuel management strategy is necessary to. retain 
long-term public confidence in operating existing nuclear power plants 
and build new facilities. The public confidence necessary to support 
construction of new nuclear plants is linked to successful 
implementation of an integrated national used fuel policy, which 
includes a continued commitment for the long-term disposition of used 
nuclear fuel. This requires a commitment from the Administration, 
Congress and other stakeholders to ensure that DOE makes an effective 
transition from a scientific program to a licensing and construction 
program, with the same commitment to safety. New waste management 
approaches, including interim storage and nuclear fuel recycling, are 
consistent with timely development of Yucca Mountain.
    The challenge before the Administration and Congress is to 
implement our national policy for used fuel management, which includes 
resolving the near-term difficulties facing Yucca Mountain and setting 
the project on a path to success. The nuclear energy industry urges 
this Committee to continue to work with the Administration, the 
citizens of Nevada, the industry and other stakeholders as DOE 
continues its important work to develop a safe, secure repository for 
used nuclear fuel at Yucca Mountain. It is our responsibility to 
America today and to future generations, to ensure timely successful 
completion of Yucca Mountain.
                                 ______
                                 
 Statement of LeRoy Koppendrayer, Chairman, Minnesota Public Utilities 
       Commission, and Chairman, Nuclear Waste Strategy Coalition

    Mr. Chairman, and distinguished members of the Committee, the 
Nuclear Waste Strategy Coalition (NWSC) appreciates this opportunity to 
present a Statement for the Record regarding a hearing on the status of 
the Yucca Mountain Repository Project within the Office of Civilian 
Radioactive Waste Management, the Department of Energy (DOE).

                             ABOUT THE NWSC

    The Nuclear Waste Strategy Coalition. (NWSC) is an ad hoc group of 
state utility regulators, state attorneys general, electric utilities 
and associate members representing 46 member organizations in 26 
states, The NWSC was formed in 1993 out of frustration at the lack of 
progress DOE had made in developing a permanent repository for spent 
nuclear fuel (SNF) and high-level radioactive waste (HLRW), as well as 
Congress's failure to sufficiently fund the nuclear waste disposal 
program (Program). The mission and purpose of the NWSC is to seek on 
behalf of the ratepayers of the United States:

          1) The removal of commercial spent nuclear fuel from more 
        than 73 temporary commercial storage sites located in 33 
        states.
          2) The authorization of a temporary, centralized commercial 
        spent nuclear fuel storage facility.
          3) The allocation of appropriate funds from the Nuclear Waste 
        Fund (NWF) by the U.S. Congress to the DOE so that it will 
        fulfill its statutory and contractual obligations.
          4) The augmentation of transportation planning and 
        regulations to facilitate transportation systems.
          5) The capping of the NWF payments at the present one-tenth 
        of a cent per kilowatt-hour by the U.S. Congress.
          6) The operation of the permanent repository as soon as 
        possible.

                       NUCLEAR WASTE FUND REFORM

    NWSC members believe it is vitally important that Congress and the 
Administration work together to ensure the Program is funded in a 
manner that will allow the DOE to implement the Federal Program in 
accordance with the 1982 Nuclear Waste Policy Act, amended (NWPA). The 
Program is already in default of its requirement to open a facility by 
1998, and is slipping further behind schedule. It is imperative that a 
long-term fix of the current funding process be implemented and we urge 
Congress to support legislation that reclassifies the fees paid into 
the NWF as offsetting collections in the 109th Congress.
    The NWSC is not calling for carte blanche funds for the DOE without 
Program oversight. Over the years, the NWSC has been very supportive of 
the OCRWM program and worked to ensure that Congress appropriate 
sufficient funds for the nuclear waste transportation and disposal 
program. We continue those efforts today as we are working very hard 
for passage of comprehensive legislation that reforms the NWPA. 
Congress has an opportunity to fast track comprehensive legislation in 
the 109th Congressional session to enhance the management and disposal 
of SNF and HLRW, ensure protection of public health and safety and 
territorial integrity and security of the permanent repository. 
Moreover, reforming the annual funding for the Program, assures the 41 
states ratepayers that their payments into the NWF are being used for 
their intended purpose--the removal of SNF and HLRW from commercial 
nuclear power plants.
    The members of the NWSC are supportive of S. 2589, the Nuclear Fuel 
Management and Disposal Act of 2006, introduced by Chairman Domenici at 
the request of the Administration. We note that S. 2539 would provide 
funds Through the end of the fiscal year during which construction is 
completed for the Nevada rail line and surface facilities for the fully 
operational permanent repository. In addition, fees collected by the 
DOE and deposited in the NWF, shall he credited to the NWF as 
discretionary offsetting collections each year in amounts not to exceed 
the amounts appropriated From the NWF for that year. Most importantly, 
Congressional oversight of the Program funding will continue, similar 
to the annual appropriations process of the Nuclear Regulatory 
Commission and the Corps of Engineers.
    As several members of Congress commented, ``This Program has been 
starved for funding'' . . . the 2010 deadline for waste fuel acceptance 
at Yucca Mountain was, ``a pipe dream at existing funding levels.'' The 
only way that the DOE will ever achieve its objectives is for Congress 
to reclassify the NWF receipts as offsetting collections. Only a long-
term funding fix will enable the DOE to stay on schedule; submit a 
high-quality licensing application; foster exemplary standards of 
quality assurance, accountability and integrity in the Program's 
activities; and implement a transportation infrastructure systems plan 
that meets the deadlines it sets.

                           NUCLEAR WASTE FUND

    There are adequate funds available to implement the Federal policy 
for permanent disposal of SNF and HLRW. That statement is conditioned 
on the premise that Congress will vote to support its own legislation--
Congress has failed to support the NWPA. Since 1983, ratepayers from 41 
states have paid more than $27 billion, including interest, into the 
NWF to fund the DOE's establishment of a safe, timely, and cost-
effective centralized storage and permanent disposal of SNF and HLRW. 
The nation's ratepayers pay more than $750 million per year into the 
NWF, and with interest credits, this amount exceeds $1 billion 
annually. After deducting expenses to date, the fund now holds 
approximately $18 billion, including interest. This account balance has 
been used to support other programs and camouflage the Federal deficit 
rather than the development of the permanent repository. Consequently, 
more than 50,000 metric tones of SNF and HLRW are presently stranded at 
more than 100 sites (commercial and defense) in 39 states. Congress's 
support to codify the NWF annual receipts will ensure that every cent 
collected from the ratepayers will be delivered to the Program, as 
intended by the NWPA.

                                LAWSUITS

    It is more than eight years since the DOE defaulted on its 
obligations, as stated in the Nuclear Waste Policy Act of 1982, to 
remove SNF from the nation's nuclear power plants. In its 1996 Indiana-
Michigan decision, the U.S. Court of Appeals affirmed that the DOE was 
obligated to start moving waste on January 31, 1998, ``without 
qualifications or condition.'' The DOE ignored the Court, prompting 46 
state agencies and 36 utilities to again seek relief through the 
Courts. The DOE has meanwhile ignored repeated Court orders to begin 
moving waste from commercial nuclear plant sites on the grounds that it 
has yet to build a permanent repository and has no authority to provide 
an interim storage and transport of high-level nuclear material from 
plant sites. Several lawsuits are currently being heard in the U.S. 
Court of Claims and could find the DOE liable for several billions of 
dollars in damages due to its failure to meet its 1998 obligations. 
Further, the 11th Circuit Court of the U.S. Court of Appeals has 
already ruled that these damage payments will not come from the Nuclear 
Waste Fund. Consequently, Congress will have to choose where the funds 
should come from and which programs will be affected. If the DOE fails 
to meet the deadlines it sets, the financial liability the DOE faces 
through lawsuits will continue to mount. As the DOE continues to delay 
honoring its contracts with the utilities to remove spent nuclear fuel 
from plant sites, both the amount of SNF and HLRW stored and the costs 
associated with storing it increase. A DOE contractor has estimated 
that each year's delay will escalate Program costs by approximately $1 
billion per year for the civilian and defense nuclear waste disposal 
programs. The longer Congress refuses to fully fund the DOE 
requirements, the greater the potential liability will be to the 
nation's taxpayers.

               TRANSPORTATION--RIGOROUS SAFETY STANDARDS

    The DOE has proven that it can safely transport SNF and HLRW from 
plant sites across the nation. Since the 1960s, more than 3,000 
shipments of spent nuclear fuel from nuclear power plants, government 
research facilities, universities and industrial facilities traveling 
over 1,6 million miles, ``without a single death or injury due to the 
radioactive nature of the cargo.'' \1\ This equates to more than 70,000 
metric tons of SNF, an amount equal to what the NWPA authorizes for 
Yucca Mountain. Shipments include 719 containers from the Naval Nuclear 
Propulsion program between 1957 and 1999, and 2,426 highway shipments 
and 301 railway shipments from the U.S. nuclear industry from 1964 to 
1997. In addition, since 1996, shipments of spent nuclear fuel have 
been safely transported to the United States from 41 countries to the 
DOE facilities;\2\ again, without a single death or injury--not one. If 
a repository is licensed at Yucca Mountain, the DOE projects 
approximately 4,300 shipments over a 24-year period, averaging 175 
shipments of spent nuclear fuel per year, a relatively small amount 
compared with the approximately 300 million annual shipments of 
hazardous materials (explosives, chemicals, flammable liquids, 
corrosive materials, and other types of radioactive materials) that are 
currently transported around the country every day.
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    \1\ National Conference of State Legislatures' Report, January 
2000.
    \2\ U.S. Department of Energy Report to the Committees on 
Appropriations, January 2001.
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    Furthermore, the DOE has safely and successfully made more than 
4,581 shipments to the Waste Isolation Pilot Plant (WIPP) in New Mexico 
as of May 8, 2006.\3\ The Western Governors' Association (WGA) signed 
an agreement with the DOE in April 1996 that affirmed regional planning 
processes for safe transportation of radioactive material. All regional 
high-level radioactive waste transportation committees also endorsed 
the WGA approach. The WTPP transportation planning system is setting 
the standard for safety and proving to be a critical step toward 
solving the nations spent nuclear waste disposal transportation 
program.
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    \3\ Waste Isolation Pilot Plant Information Center, May 8, 2006.
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    To ensure safety at on-site spent fuel storage facilities and 
during transportation, the material is stored in containers that meet 
the NRC's rigorous engineering and safety standards testing. To satisfy 
the NRC's rigorous standards for subsequent transportation approval, 
these containers have been dropped 30-feet onto an unyielding surface, 
dropped 40 inches onto a 6-inch vertical steel rod, exposed for 30 
minutes to a 1,475 F fire, submerged under 3 feet of water for eight 
hours, immersed in 50 feet of water for at least eight hours (performed 
in a separate cask), and immersed in 656 feet of water for at least one 
hour.\4\
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    \4\ Nuclear Regulatory Commission Testing Requirements, 10 CFR 
Sections, 71.61, 71.71, and 71.73.
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                               CONCLUSION

    For the last 20 years or so, those who want to derail commercial 
nuclear power in this country have used this program as a political 
tool. In fact, the Federal government's failure to deliver extends back 
several decades, The U.S. Congress must immediately address the growing 
problem of SNF and HLRW that now exists. We can no longer pretend that 
stranded waste at plant sites does not exist and is without economic 
consequence to the nation's energy supply as witnessed in August 2003 
and presently. We can no longer pretend that the problem of stranded 
SNF and HLRW is going away. It is vitally important that the leadership 
in Congress fast track legislation for the continued progress of the 
permanent repository. While the Program continues to face complex 
challenges, passage of legislation will allow the Program to remain 
viable and ultimately succeed. Legislation has already been introduced 
by the opposition for the DOE to take title of SNF at plant sites. 
Their bill proposes stranding fuel indefinitely throughout the nation 
while the nation's ratepayers continue to pay in perpetuity into the 
NWF. it is vitally important that members of Congress place this nation 
interest first. Taking title of and stranding SNF and HLRW indefinitely 
throughout the nation is not an acceptable option, and it does not 
diminish in any way the need for, or the urgency of, a geologic 
permanent repository at Yucca Mountain. Under Section 160 (b) of the 
NWPA, the Secretary will report to the President and Congress on or 
after January 1, 2007, but not later than January 1, 2010, on the need 
for a second repository. The DOE has already stated that they would 
start with the two-dozen candidate sites that they looked at the first 
time.
    Those members of Congress that oppose reform of the NWPA are 
supporting a short-term political issue. They are urged to take a long-
term view for the best interests of their own state and our country. 
The members of the NWSC reiterate the importance for Congress to keep 
the DOE on target and schedule by reclassifying the NWF annual receipts 
as offsetting collections to bring the nuclear waste disposal program 
to fruition as promised and mandated by the Nuclear Waste Policy Act of 
1982, amended.