[Senate Hearing 109-736]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-736
 
                NUCLEAR FUEL MANAGEMENT AND DISPOSAL ACT

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

                                HEARING

                               before the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                                   on

                                S. 2589

 TO ENHANCE THE MANAGEMENT AND DISPOSAL OF SPENT NUCLEAR FUEL AND HIGH-
  LEVEL RADIOACTIVE WASTE, TO ENSURE PROTECTION OF PUBLIC HEALTH AND 
    SAFETY, TO ENSURE THE TERRITORIAL INTEGRITY AND SECURITY OF THE 
          REPOSITORY AT YUCCA MOUNTAIN, AND FOR OTHER PURPOSES

                               __________

                             AUGUST 3, 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 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
                  Frank J. Macchiarola, Staff Director
                   Judith K. Pensabene, Chief Counsel
               Robert M. Simon, Democratic Staff Director
                Sam E. Fowler, Democratic Chief Counsel
              Clint Williamson, Professional Staff Member


                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Beasley, Jr., J. Barnie, President and Chief Executive Officer, 
  Southern Nuclear Operating Company.............................    24
Bingaman, Hon. Jeff, U.S. Senator from New Mexico................     3
Domenici, Hon. Pete V., U.S. Senator from New Mexico.............     1
Ensign, Hon. John, U.S. Senator from Nevada......................     7
Fettus, Geoffrey H., Senior Project Attorney, Natural Resources 
  Defense Council................................................    37
Koppendrayer, LeRoy, Chairman, Minnesota Public Utilities 
  Commission and Chairman, Nuclear Waste Strategy Coalition......    55
Loux, Robert R., Executive Director, Nevada Agency for Nuclear 
  Projects, Office of the Governor...............................    31
Reid, Hon. Harry, U.S. Senator from Nevada.......................     4
Sproat, III, Edward F., Director for the Office of Civilian 
  Radioactive Waste, Department of Energy........................    12
Virgilio, Martin J., Deputy Executive Director for Materials, 
  Research, State and Compliance Programs, Office of the 
  Executive Director for Operations, U.S. Nuclear Regulatory 
  Commission.....................................................    16
Wright, David A., Commissioner, South Carolina Public Service 
  Commission, on behalf of the National Association of Regulatory 
  Utility Commissioners..........................................    18

                                APPENDIX

Responses to additional questions................................    59


                NUCLEAR FUEL MANAGEMENT AND DISPOSAL ACT

                              ----------                              


                        THURSDAY, AUGUST 3, 2006

                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:15 a.m., in 
room SD-628, 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. Now, with the committee's permission, we are 
going to proceed with the hearing that we have scheduled. We 
have two distinguished Senators from Wyoming before us.
    Senators, even though I know you are both busy, I have some 
opening remarks that I have not been able to give on this 
subject for a long time, to put in perspective where we are, 
and I would like to give those and then yield. If Senator 
Bingaman wants to follow me, fine, and if not, we'll proceed to 
the two distinguished visitors. Good morning to both of you, 
Senators.
    The purpose of this hearing is to receive testimony on S. 
2589, the Nuclear Fuel Management and Disposal Act. The 
administration proposed this legislation, which I introduced 
with Chairman Inhofe, who has the jurisdiction over many 
portions of it in his committee.
    This legislation provides a number of critical authorities 
needed to make Yucca Mountain operational: land and water 
transfer, withdrawal and transfer; waste confidence; Nuclear 
Waste Fund; environmental and regulatory requirements; raising 
the cap from 70,000 metric tons; and taking the Nuclear Waste 
Fund off-budget.
    Two weeks ago the Department of Energy released a new 
timetable for submitting a license application to the Nuclear 
Regulatory Commission, NRC, for the Yucca Mountain project by 
June 2008. DOE anticipates opening Yucca Mountain in March 
2017, to begin acceptance of spent fuel and high level defense 
waste. With this, the Department established a schedule by 
which regulators, consumers, and Congress can monitor the 
progress for the transportation and the storage of commercial 
waste, spent fuel, and defense-related fuel.
    Yucca Mountain is the cornerstone of a comprehensive spent 
fuel management strategy for this country, and let me be clear: 
We need Yucca Mountain, whatever its shortcomings may be. I 
want to fix this program as best I can and try to make it work, 
with the help of the committee and the Congress.
    However, experience has shown that the schedule for Yucca 
Mountain is a very slippery thing. My concern is that the new 
timetable does not include any margin for any further project 
delays by DOE, its contractors, or legal action by the State of 
Nevada, all of which would cause the DOE to miss these new 
deadlines. Nor does the schedule establish a total time frame 
by which all commercial fuel will be moved to the repository.
    Meanwhile, the Government's liability is piling up. The 
Nation's electric ratepayers are paying twice--for Yucca, and 
for storing the waste at the reactor sites. From my estimates, 
if Yucca Mountain were to open by the goal of December 2017--
and I invite the Department or anyone else to show me that what 
I am just going to say is not correct--ratepayers will be 
paying until late in the century to keep spent fuel onsite, not 
because Yucca will not be open but because under current plans 
this is the fastest that waste can be moved.
    DOE plans to send 3,000 metric tons per year to Yucca 
Mountain, those are the plans, and that is all that the 
Department thinks they can move there per year, 3,000 metric 
tons. At that pace, it will be 2040 before DOE transports all 
the spent fuel that exists today to Yucca Mountain. In the 
meantime, we will continue to generate additional spent fuel 
that is destined for Yucca.
    So I would like to repeat, for those who don't think we 
need to address temporary storage, if everything goes 
perfectly, it will take over 30 years--longer than I have been 
in the Senate, and that's pretty long--to eliminate the 
existing backlog of spent fuel. In light of that, it only makes 
sense to look for additional ways for the Government to meet 
its obligations.
    To address that part of the puzzle, the Senate 
Appropriations Committee approved the fiscal year 2007 Energy 
and Water Appropriations bill with a new approach to nuclear 
waste consolidation. That proposal offers utility ratepayers 
relief and fulfills the Federal Government's obligation to take 
spent fuel while the Government works off the enormous backlog.
    Furthermore, I have done the math to understand whether 
Yucca Mountain can address all of the spent fuel needs. As 
proposed by the administration's bill, we must lift the 70,000 
metric ton cap on Yucca Mountain because by 2010 there will 
already be 63,000 metric tons of spent fuel at commercial 
sites. We will have in excess of 2,500 tons of spent fuel from 
our national defense and research efforts, and we will have in 
excess of 10,000 metric tons awaiting processing and disposal 
at Hanford and Savannah and Idaho.
    Unless we take action to raise the cap, it will be 7 years 
before Yucca Mountain is projected to be open. We must raise 
the authorized limit, as DOE has proposed. However, even with 
that increase in the limit to 120,000 metric tons, by the year 
2050 DOE will have shipped enough fuel to Yucca Mountain to 
fill it up, leaving an additional 40,000 metric tons at reactor 
sites. This is without any increase in the size of the current 
nuclear fleet.
    The Energy Information Agency estimates that by 2030 our 
Nation will need an additional 347 gigawatts of electricity 
brought on line to just keep up with demand. What are we going 
to build? Natural gas is expensive, stocks are hard to come by, 
even though we are looking. The United States is the Saudi 
Arabia of coal, but until proven coal technology comes online 
that demonstrates sequestration of carbon emissions, nuclear is 
the clean air solution. We must and we should build new nuclear 
powerplants.
    So I have reached a few conclusions: One, Yucca must be 
opened. Two, even if Yucca is opened, significant quantities of 
spent fuel will remain at reactor sites for many decades, thus 
the need for practical interim solutions. And, third, 
continuing to increase the authorized limit at Yucca Mountain, 
while a necessary step, is not a complete solution.
    That's where GNEP comes in. That is recycling. This year 
the Bush administration took what I believe is the correct 
path. It proposed to close the nuclear fuel cycle and recycle 
spent fuel, leaving a reduced amount of material that must be 
disposed of in Yucca. The fact is that unless we recycle, Yucca 
can't contain everything.
    We must use that time, the time we have before Yucca 
Mountain opens, to take serious looks and take serious 
opportunities that are before us to use the terrific new 
technologies that can reduce the volume and toxicity of spent 
fuel. It is no great shock that I urge everyone to support the 
GNEP, the Global National Energy Partnership, and it should be 
included as part of our nuclear waste solution.
    The three pieces to the puzzle that we have discussed are 
Yucca Mountain, GNEP, and interim storage, and those will 
establish a program that will provide confidence that our 
nuclear Nation's waste will be managed, and we ought to proceed 
on all three fronts with dispatch. We can solve the problem, 
and I hope we can solve it together. I look forward to a frank 
discussion with witnesses today, of this difficult and 
complicated subject, and to move ahead as rapidly as we can 
from that point.
    Senator Bingaman.

         STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR 
                        FROM NEW MEXICO

    Senator Bingaman. Thank you very much for having the 
hearing, Mr. Chairman. Let me just mention two or three things.
    First, I'm interested in finding out from the 
administration why they believe we need to move with this 
legislation at this point, this legislation that they have 
presented. As I understand it, the Department of Energy has 
said it's not going to be ready to file a license application 
for another 2 years, and there's nothing that I have detected 
in this bill that would change that or speed it up. I would be 
anxious to get clarification on that.
    I also think we need clarification as to what the different 
actions are that are authorized by the language of this bill. I 
know that there is authorization for ``infrastructure 
activities'' and that's not defined. I gather that means the 
billion dollar, 300-mile-long railroad that is contemplated, 
and also the interim storage facilities, but I think if so, we 
need to understand that. I think we need to explicitly 
authorize items of that size, if that's what the administration 
intends for us to do with this bill.
    I think the main thrust of the bill as I read it, is to 
limit the authority of the Nuclear Regulatory Commission, the 
Department of Transportation, and the State of Nevada, to 
oversee the repository. I'm not sure how that is going to 
ensure the safety of the repository or the public confidence in 
the repository. I'm sure that our witnesses and Senators Reid 
and Ensign may have thoughts about that.
    Finally, I would just say you made reference to the 
legislation that you and Senator Reid have developed as part of 
the Energy and Water Appropriation bill. I think that is 
obviously far-reaching, and I hope that we can have a hearing 
on that legislation before we are faced with consideration of 
it on the Senate floor. I think this committee should be able 
to understand that legislation, and obviously that's not the 
primary thrust or focus of this hearing, but it should be the 
primary focus of a future hearing.
    Thank you very much.
    The Chairman. Thank you, Senator Bingaman.
    All right, Senators, we're going to proceed with you in 
order of seniority, obviously. Senator Reid, we're glad to have 
you here. We are always considering Yucca matters, and we very 
infrequently get to hear from you about your views, so it's 
good to hear from you today.

          STATEMENT OF HON. HARRY REID, U.S. SENATOR 
                          FROM NEVADA

    Senator Reid. Mr. Chairman, I'm very impressed with the 
attendance at this hearing. This is very, very unusual, at 
least as far as I've been able to determine with other 
committees, so this is great.
    Everyone knows that the proposed Yucca Mountain nuclear 
waste dump can be described in many different ways, but it is 
certainly on a life support system. Some have said it's a dying 
beast, and it should die. It's a scientifically unsound project 
that would needlessly threaten the public health and safety of 
all Americans.
    Even the administration knows this is flawed and dangerous. 
We can see this in the legislation that they have submitted to 
us. It tells you everything the administration knows that's 
wrong with Yucca. They have sent us this legislation to change 
the rules, to break the law and prevent States from protecting 
their citizens--not Nevada, States.
    If Yucca were scientifically sound, if it generally was a 
safe place to store nuclear waste, the administration would not 
need to gut the laws that regulate hazardous waste handling and 
transportation, clean air, water rights, public land laws, and 
environmental policy. If Yucca were scientifically sound, the 
administration would not need to preempt States' rights. If 
Yucca were scientifically sound, if it was genuinely safe, we 
wouldn't have this bill and we wouldn't be here today.
    So, to be honest, the administration is trying to prevent 
the States from protecting themselves and their citizens--I 
repeat, not Nevada only, the States. It's important to remember 
that this proposal does not affect or preempt Nevada only, but 
your States as well, and not just in the area of 
transportation.
    For instance, the administration also wants to preempt the 
Resource Conservation and Recovery Act for any Department of 
Energy facility where waste is transported or stored in Nuclear 
Regulatory Commission-licensed casks, for example, the Waste 
Isolation Pilot Project in New Mexico. If Yucca were 
scientifically sound and safe, the DOE would not need to remove 
control of the project from agencies with expertise: the 
Department of Transportation, the Environmental Protection 
Agency, the Department of Fish and Wildlife, Bureau of Land 
Management, and the Department of Defense.
    Do members of this committee know that this bill 
subordinates the authority of the Department of Defense to the 
Department of Energy? No longer does DOD get to determine when, 
where, and how our flights are conducted in Nellis AFB. Think 
about that. The number one Air Force fighter training facility 
in the world, without question, and in the future they'll need 
to get permission from the DOE as to whether those airplanes 
can take off from Nellis and where they go. If this legislation 
passes, it would be a tremendous detriment to our military. We 
can't sacrifice the Nation's security for this shortsighted 
proposal.
    What may even be worse is that Congress is being asked to 
approve the gutting of all these laws and authorities for a 
project with no details, no assurances of its safety, no 
assurance of its viability, and no assurance of its long-term 
integrity. In fact, the administration has not even done the 
impact analysis of this proposed project as required by the 
National Environmental Protection Act.
    We have been trying and trying to get this analysis and 
clarification of what the administration is or is not doing, 
but we have been given the runaround. I don't think it exists. 
Maybe that's partly because DOE doesn't have a final design for 
the facility. That's right. DOE has announced that it is 
completely redesigning the surface facilities, transportation 
methods, and storage requirements. What are the details? Who 
knows? We don't know. No one knows.
    The truth is, DOE has never said what they're going to be. 
They've never said whether the Department truly intends to 
increase the amount of waste that can be stored at the 
mountain. If they do, DOE will have to redesign the facility 
itself. They're just saying, ``Trust us. Don't ask questions. 
Trust us.''
    Trust DOE? The Department has had more than 20 years of 
quality assurance and control problems on this project alone, 
with contractors who have the same problems, both of which have 
been ignored, but they let them continue. Trust DOE, the agency 
that does not care that data on water infiltration was 
falsified? Falsified. Trust DOE? I don't think so.
    Let me just address that incident. DOE likes to make a lot 
of noise about the fact that the Department of Justice did not 
bring criminal charges against the employees who falsified the 
data. Avoiding a criminal indictment is not an exoneration. It 
just means that DOE didn't push the Justice Department into 
doing something. They lied. They acknowledged they falsified 
scientific records, and it's in writing.
    To meet the high burden of a criminal case--I don't know 
what the prosecutors thought, but they weren't pushed by DOE--
prosecutors would have had to prove the employees made these 
false statements, and I think they could have done that. They 
decided not to do it. The employees knew that the statements 
were false. We know that. They bragged about it. They bragged 
about lying and falsifying documents. We have those.
    So these employees averted Federal felony charges. Does 
that mean the data is accurate? Of course not. They admitted 
lying, falsifying the documents. False data is false data. 
Worst of all, DOE has no intention of redoing the data. The 
threat of criminal prosecution has passed, but the threat to 
public health remains. It's not surprising.
    Ward Sproat, who oversees the Yucca Mountain project, 
admitted in testimony before the House just last month that DOE 
does not have the expertise to design and construct Yucca 
Mountain. They must rely on their contractor, Bechtel.
    Bechtel, to whom DOE has given bonuses for substandard and 
incomplete work. Bechtel, the contractor that was under a stop 
work order because it ignored these problems. Bechtel, the same 
company that ignored problems with the Big Dig, an action that 
led to the continuing safety problems and, tragically, the 
death of a motorist from a falling three-ton piece of metal 
from the roof of the Big Dig.
    The Governor of Massachusetts said the design of the Big 
Dig was incompetent. The designer? Bechtel. So now we're having 
DOE rely on them for their expertise? This is really a metaphor 
for this entire project.
    Mr. Chairman, you know, we have had conversations, I'm not 
opposed to nuclear power. I'm opposed to nuclear power unless 
we find something to do with the waste. I believe we can handle 
this. I have faith in American ingenuity. America has the best 
minds in the world, and I believe if we truly focus on solving 
the real problems of spent nuclear fuel, we could solve our 
problems.
    So we should stop wasting time and money researching and 
designing Yucca Mountain. After more than 20 years, we know 
that it won't work, so we really should start trying to solve 
the problem of nuclear waste.
    What are we to do with the waste in the interim? Leave it 
onsite in dry cask storage containers, where it is safely and 
securely stored now, would be for 100 years, and where the 
nuclear industry estimates it will continue to be safely stored 
for the next 100 years. According to the Nuclear Energy 
Institute--not my best friend--dry cask storage is here to 
stay. And according to the Nuclear Regulatory Commission, it's 
safe, they say, for up to 200 years, and onsite storage saves 
money.
    DOE's last estimate for Yucca Mountain, very low-balled at 
about $60 billion--$60 billion. Other outside experts say it 
will never be done for less than $100 billion. Dry cask 
storage, a few billion, way less than $5 billion at most, and 
that's the Cadillac. NEI has shown us, with or without Yucca 
Mountain, onsite storage will be widespread. It is right now. 
Calvert Cliffs, right out here in Baltimore, they have been 
doing it for years.
    So we should embrace this option, and search for other 
alternatives, and save the ratepayers and the Government tens 
of billions of dollars. We should stop wasting our time and 
money on Yucca Mountain, and on an administration proposal that 
even Mr. Sproat himself said they don't need right now. We have 
too much.
    So I challenge all my colleagues to look at this. Let's go 
with dry cask storage containment. Let's forget about this 
boondoggle. That's really what it is. Let's take the focus away 
from this dead project and find real solutions, and secure our 
energy future by doing something reasonable with nuclear power.
    The Chairman. Thank you very much, Senator.
    Now we're going to proceed to Senator Ensign. Thank you for 
being so patient, Senator.

          STATEMENT OF HON. JOHN ENSIGN, U.S. SENATOR 
                          FROM NEVADA

    Senator Ensign. Mr. Chairman, just to save the committee 
some time, if I may ask that my full statement be made part of 
the record, and I'll try to summarize this as briefly and as 
succinctly as possible.
    The Chairman. Absolutely. It's done.
    Senator Ensign. Mr. Chairman, you mentioned in your 
testimony the fact that interim storage is necessary because 
there's going to be storage all over the country, simply 
because you can't bring the waste to Yucca Mountain fast 
enough.
    In the past the Energy Secretary, right after 9/11, talked 
about the security. We need one site. That was a big issue. We 
need one site. It's obvious we're not going to have one site. 
We will never have one site, so that security argument I think 
is a bogus argument.
    There are many problems with this legislation. I think my 
testimony, written testimony, and Senator Reid's testimony 
talks about a lot of the environmental laws and some of the 
problems we have, but I want to look at this thing as maybe a 
little bigger picture.
    The new proposal, first of all, because we realize that 
Yucca Mountain doesn't store enough waste, the old number was 
somewhere around $60 billion. That number, by the way, is a 
2000 number. With all the problems of Yucca Mountain, we know 
that that number has to be a lot higher just today, without 
expanding, dramatically expanding, what is going to happen. We 
don't know what the cost of this proposal is going to be, and 
certainly the way any other government projects have gone, the 
costs continue to skyrocket.
    Is it something that America can afford? Is it something 
nuclear power can afford, to make it viable for the future? I'm 
a believer in nuclear power. I think it's important that we 
have nuclear power for the future energy needs of the United 
States.
    I think Yucca Mountain makes nuclear power less financially 
viable because it's going to have to come out of the taxpayers. 
The Nuclear Waste Trust Fund will in no way pay for Yucca 
Mountain, especially with a new design. There is not enough 
money in the Nuclear Waste Trust Fund, or not enough money into 
the future with the Nuclear Waste Trust Fund.
    Mr. Chairman, you mentioned recycling technology, and I 
really believe that that's a big part of the answer for the 
United States. What Senator Reid mentioned about leaving the 
stuff where it is, dry cask storage technology works. It solves 
a lot of the other problems that we have as far as 
transportation, the controversy.
    And recycling technology I believe is a big part of the 
answer, because it's going to decrease the amount of the waste, 
it's going to decrease the toxicity. It decreases the half-
lives of the waste, and obviously it produces a little bit of 
energy along with it. Now, there's still some technology that 
has to be worked out there, but that I believe is where we 
should be putting our money and our efforts, is into developing 
the recycling technology.
    Senator Reid mentioned something very important that this 
legislation talks about, and actually it's with Yucca Mountain 
or even with the expanded part of it, and that is the ranges 
for the Nellis Air Force Base, the most valuable ranges in the 
United States. You talk to the Air Force, the most valuable 
ranges in the United States are the Nellis ranges. No question. 
The ranges above Nevada, they mimic the Middle East. They are 
the most wide open. The rules, what they can do in the flying 
up there is incredibly important to our national security.
    The legislation that we have before us would make the DOD, 
would make the Air Force second fiddle to the Department of 
Energy, and I think that that is a very dangerous precedent to 
start, and not knowing the full implications of what that would 
bring is very dangerous for the national security of the United 
States.
    So, Mr. Chairman, nuclear waste, everybody agrees that the 
big problem with nuclear power is nuclear waste, and what are 
we going to do? How are we going to solve this? It is mostly a 
perception problem, because everybody wants to get it out of 
their State, knowing that they aren't getting it out of their 
State.
    Well, actually they don't know that. That is part of the 
problem. Just because there's Yucca Mountain does not mean that 
people get nuclear waste, all of the waste, out of their State. 
They get some of the waste out of their State. If they 
understood that they're only getting some of it out of their 
State, I think that there would be much more public acceptance 
to onsite dry cask storage.
    We have 100 to 200 years to work out the technical problems 
of recycling, of doing some of the other things. Building a 
boondoggle in the Nevada desert I believe is wrongheaded, it's 
the wrong financial policy, and it's the wrong nuclear waste 
policy for the United States. We really should be putting our 
efforts into modern, forward thinking so that we can make 
nuclear power viable for the future of the United States.
    We see the problems that we have with fossil fuels. You 
know, we're doing some things about that. But the bottom line 
is, nuclear has to be an important part of the future, and for 
it to be an important part of the future, I think that we have 
to solve this in a way that we can afford, in a way that allays 
some of the people's safety concerns that we have around the 
country, and this legislation is certainly the wrongheaded 
approach.
    So I know Senator Reid and I both appreciate you allowing 
us to be here and share some of our thoughts with you, and we 
look forward to working with you on some of these proposals for 
the future.
    [The prepared statement of Senator Ensign follows:]

    Prepared Statement of Hon. John Ensign, U.S. Senator From Nevada

    I want to thank the Chair, the Ranking, and other members of the 
Committee for the opportunity to present testimony on S. 2589, the 
Nuclear Fuel Management and Disposal Act.
    I find the stated purpose of the bill to be outrageous--considering 
its content. The stated purpose of this bill is to enhance the 
management and disposal of nuclear fuel and high level radioactive 
waste, to ensure protection of public health and safety, and to ensure 
the territorial integrity and security of the repository at Yucca 
Mountain. This bill fails on all three fronts.
    First, this bill doesn't enhance the management and disposal of 
nuclear waste--it simply expedites it. The bill tries to legislate 
around the scientific and safety flaws of Yucca Mountain because 
supporters of the project know that it will never be opened if current 
laws and regulations remain in place. Congress has heard repeatedly 
from experts who acknowledge that the 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, is incomplete or moot due to constantly changing 
repository designs and plans which do not meet scientific standards.
    This legislation does nothing to correct those problems; it merely 
attempts to circumvent them. In fact, the bill changes the funding 
mechanism to remove Congressional control and eliminates much needed 
oversight of how taxpayer dollars are being spent on this project. It 
also scales back NRC licensing requirements and eliminates regulations 
with the idea of getting nuclear waste to Yucca Mountain as fast as 
possible, regardless of the potential consequences. With all the flaws 
apparent in the project to date, I believe it is disingenuous to claim 
that management and disposal will be enhanced by cutting corners and 
taking a ``make it work'' approach to the nations' most hazardous 
waste.
    Second, this bill doesn't ensure protection of public health and 
safety--it erodes it. It undercuts safeguards for both the 
transportation and storage of nuclear waste, leaving the public more 
vulnerable than ever. It removes all Department of Transportation 
(DOT), Nuclear Regulatory Commission (NRC), Surface Transportation 
Board, and state authority over nuclear waste transport so that DOE has 
sole control over a nuclear transportation scheme of unprecedented 
magnitude. Shipments of waste would be exempt from present and future 
DOT safe-routing regulations, from DOT safety regulations, and from NRC 
safeguards regulations.
    Furthermore, the bill would exempt material that is transported or 
stored in NRC-licensed containers or located at Yucca Mountain from 
federal, state, and local environmental requirements under the Resource 
Conservation and Recovery Act (RCRA). This would eliminate the 
requirement that hazardous non-nuclear contaminants mixed with the 
nuclear waste be identified and treated according to RCRA. Clearly this 
evasion of RCRA could serve as a precedent that would impact future 
transuranic waste shipments to the WIPP facility, as well as DOE 
environmental clean-up and legacy management sites across our nation.
    In February of this year, the National Academy of Sciences (NAS) 
released its report on the dangers associated with transporting nuclear 
waste and advocated that states and local governments have a central 
role in any successful waste transportation program. This legislation 
directly contradicts that recommendation. It abolishes state, local, 
and tribal government transportation authority and circumvents 
involvement from other federal agencies, such as NRC, DOT and the 
Department of Homeland Security, which is currently called for under 
exiting law. According to DOE, 45 states, 700 counties, and 50 Native 
American tribes will be affected by the transport of nuclear waste to 
Yucca Mountain. Common sense would dictate that giving away all 
transportation authority to DOE, rather than the agencies and 
communities directly affected, does not protect the almost 11 million 
people within a half mile of the transportation route.
    Third, this bill does not ensure the territorial integrity and 
security of Yucca Mountain. Instead, it jeopardizes national security 
by withdrawing land currently controlled by the Air Force and the 
Nevada Test Site. One of the premier test and training sites in the 
country, Nellis Air Force Base has a varied mission portfolio that is 
met only by the size and diversity of its ranges and capabilities. 
Similarly, the Nevada Test Site is the only location that offers safe, 
secure, and remote testing for defense systems and high-hazard 
operations. Not only does this legislation call for a land withdrawal 
from these two sites, it also hands DOE the rights to the airspace, 
giving a non-defense agency the right to dictate what missions and 
operations can be conducted. This is not a zero-sum game. Withdrawing 
land to ensure the proposed repository at Yucca Mountain meets NRC 
licensing guidelines would erode the integrity of Nellis and the Test 
Site. It is not prudent to risk our national security by limiting the 
ability of these unique assets for a project like Yucca Mountain, which 
remains riddled with problems and questions and is doomed for failure.
    We need to find another solution to our nuclear waste problem and 
this legislation is not it. Instead, we need to amend the Nuclear Waste 
Policy Act of 1982 to require the title to all spent nuclear fuel, 
stored in dry casks, to be passed to the DOE upon on-site transfer from 
storage pools to casks. Senator Reid and I introduced legislation to 
allow the DOE to assume liability of the waste onsite before it is 
transferred to Yucca Mountain. Conveying the title means that the DOE 
will have full responsibility for the possession, stewardship, 
maintenance, and monitoring of all spent nuclear fuel. The DOE would 
also be made responsible for various maintenance and oversight that 
would be associated with implementation.
    The fact remains that if Yucca Mountain was a workable, safe, and 
scientifically sound plan, it would not require legislation to move it 
forward. This bill only makes Yucca seem workable on paper by rolling 
back the many laws and regulations designed to protect the public 
health and safety of all Americans.

    The Chairman. Thank you very much, Senators. I might ask, 
there are a number of Senators here, and I know you're in a 
hurry, but----
    Senator Reid. If you have any questions, Senator Ensign 
will answer them.
    The Chairman. All right, he's got your proxy.
    Any questions of either Senator?
    Senator Craig. Mr. Chairman?
    The Chairman. Yes, Senator Craig?
    Senator Craig. Mr. Chairman, I thank you both for being 
here, and I appreciate the passion that you have always 
approached this issue on. I also understand that all politics 
is local, and this is important politics for your State. I 
don't dispute that.
    I have to agree with you, John, perception is everything. 
There is a perception in Nevada, probably not different than 
perceptions in other States as it relates to waste. That's part 
of what drives this issue.
    Senator Reid, my only observation, when one relates those 
who constructed the Big Dig and those who are operatives at the 
site at Yucca Mountain today, there are two other fine 
facilities in your State that that same company built. One is 
called Hoover Dam, and the other was the Las Vegas Airport, 
McCarran. I don't think in any way anybody implies that those 
are less than safe.
    Design is critical. Those who build it need to have good 
designs. That's what all of this is about at this moment. And 
your due diligence, I suspect, if this ever happens, will cause 
it to be a safe place that we can hold up to the citizens of 
the State of Nevada not to impair their health. Without 
question, that has to be a primary concern of all of us. To 
date, our history of storing nuclear waste is excellent. I see 
no reason why it would change.
    Thank you, gentlemen, very much.
    Senator Reid. My only response, I say to my friend from 
Idaho, Hoover Dam was built with a number of companies, of 
course, 75 years ago, and I don't think--we love McCarran 
Field, a nice airport--but the Big Dig and Yucca Mountain are a 
little more difficult to construct than some runways on the 
flat desert.
    Senator Craig. I'm only referencing the comparatives that 
you gave. I found them to be interesting.
    The Chairman. Senators, could I just ask, in my statement, 
because I have a follow-up hearing soon on GNEP, that is, 
recycling, I only touched on it as kind of the third part of 
this. You know, I mentioned onsite storing, I mentioned Yucca, 
which you disagree on, but I also mentioned then GNEP.
    I have not asked heretofore, and perhaps I should wait, but 
would it be fair to assume, first, Senator Reid, that you 
support a major American effort to move toward recycling with 
new and innovative technology?
    Senator Reid. Senator Ensign and I have talked about that. 
I have spoken to you about it. That's something I'm happy to 
take a look at, but as far as signing off on it, I'm not going 
to do that.
    The Chairman. Oh, I understand.
    Senator Reid. But sure, I'm interested. I'm interested in 
anything to make the production of nuclear power safe.
    The Chairman. Senator Ensign.
    Senator Ensign. I have actually, since my very first time 
looking at running for office, have been exploring and meeting 
with scientists from around the country on the whole idea of 
recycling. You know, there is obviously the reprocessing that 
some of the other countries do, but there is modern recycling 
that can be a lot better into the future because it reduces the 
toxicity and half-lives dramatically without producing, for one 
thing, weapons-grade plutonium, which has always been a problem 
with reprocessing.
    So I'm actually a big supporter in pursuing that research, 
because I think that if that research can be perfected to a 
commercial level, that it will be a bit part of our answer on 
reducing the length of time you need to store the waste, the 
amount of waste that will be there, and the cost of the waste 
as well.
    Senator Reid. And we may, Mr. Chairman, look back as 
history books are written, as having made a very, very big 
mistake in closing the facility at Clinch River in Tennessee. 
That was there, it was ongoing, and the reasons as I understand 
historically for stopping it was, they were afraid that the 
plutonium would get out into other people's hands. Well, 
certainly if we couldn't guard against that, we're not very 
good at guarding against anything.
    The Chairman. But the next step down the line is going to 
be, Clinch River reactor is going to be in the engineering 
picture when it comes to recycling. That's the point. Thank you 
very much, Senator Reid.
    Senator Cantwell. Mr. Chairman? Mr. Chairman, if I could 
just thank the Nevada Senators for testifying, and certainly 
for bringing up the specific information about under the 
current proposal how much waste is left at various sites, I 
think for the Hanford site under the Yucca Mountain proposal it 
was somewhere between 13 and 18 percent would be moved. The 
rest, under that current proposal, would stay. So I think 
you're right in making sure that people are aware of what the 
proposal actually means going forward and what the alternatives 
are. So I thank them for their statements this morning.
    Senator Reid. Mr. Chairman, in just brief response, one of 
the things that you and I have had a very difficult time doing, 
but we have done it, is look at the waste removal that is 
absolutely necessary at Hanford. It takes a huge chunk of money 
every year out of our energy and water bill, and I think this 
year we met the expectations of the Washington delegation, 
that's the House and Senate members. I have been there. We have 
created some significant problems around the country with 
nuclear waste, and Washington is a prime example of that. 
Hopefully we are addressing it appropriately with the money we 
are doing for removal.
    The Chairman. Anything else?
    [No response.]
    The Chairman. Thank you, Senators.
    We're going to proceed now with our next group of witnesses 
here. Two roll call votes are going to come up very shortly, 
but let's get started here.
    Let's take panel number one: Hon. Edward Sproat, III, 
Director of the Office of Civilian Radioactive Waste 
Management, Department of Energy; Martin Virgilio, Deputy 
Executive Director for Materials, Research, State and 
Compliance Programs, U.S. Nuclear Regulatory Commission; J. 
Barnie Beasley, Southern Nuclear Company, Birmingham; Robert 
Loux, executive director, Agency for Nuclear Projects, from the 
Governor's office in Nevada; Geoff Fettus, Esq., Natural 
Resource Defense Council, thank you for coming. David Wright, 
commissioner, South Carolina Public Service Commission.
    That's it. We're going to start at this side and move this 
way. You can lead off for us, please, sir.

STATEMENT OF EDWARD F. SPROAT, III, DIRECTOR FOR THE OFFICE OF 
  CIVILIAN RADIOACTIVE WASTE MANAGEMENT, DEPARTMENT OF ENERGY

    Mr. Sproat. Good morning, Mr. Chairman, Senator Bingaman, 
and other members of the committee. My name is Edward Sproat. 
I'm the Director of the Office of Civilian Radioactive Waste 
Management at DOE, and I'm in my seventh week on the job. I'd 
like to thank you for the opportunity to appear this morning in 
front of the committee. On behalf of the President and the 
Secretary, I'd like to thank Senator Domenici and Senator 
Inhofe for taking up this critical issue and introducing the 
legislation, S. 2589, to consider these important issues 
associated with Yucca Mountain.
    I would ask that my written testimony be submitted for the 
record, and I would just like to make a few summary comments, 
if I could.
    Two weeks ago I announced the best achievable schedule for 
the Yucca Mountain project, the two key milestones being the 
submittal of a license application to the USNRC by June 30, 
2008, and based on that milestone, the best achievable opening 
of the repository in March 2017. There has been a lot of 
discussion among people all over about the reality or the 
achievability of that schedule.
    I want to make it very clear I did not say that was the 
most probable schedule, I said it was the best achievable 
schedule. And I want to make it very clear, as I did when I 
made that announcement, that the probability of making that 
schedule without this legislation is zero. That's how important 
this legislation is to making that schedule happen.
    There are several key provisions in this legislation that 
the administration has proposed. I would just like to summarize 
very quickly because I know there's a lot of misunderstanding 
around them and what's being asked for.
    The first issue is around the Waste Fund itself, and we 
believe we need stability of funding to support the cash flows 
for the design and the construction of the Yucca Mountain 
project. By giving us access to the receipts into that Nuclear 
Waste Fund on an annual basis, that will certainly help us and 
go a long way in providing that stability.
    I want to make it very clear, our proposal does not remove 
congressional oversight or appropriations from those annual 
decisions to fund the Yucca Mountain project. The congressional 
appropriations are still a part of the project, a part of the 
process, even with this legislation. If we don't get this 
legislation and access to the Waste Fund, we won't have the 
cash flows needed on an annual basis to construct the project 
to the schedule that I have proposed.
    The second issue is around land withdrawal in the State of 
Nevada. The proposal removes about 147,000 acres around the 
Yucca Mountain project from public use, and gives the Secretary 
of Energy the authority to deem the appropriate use of that 
land. If the Secretary decides he still wants to allow grazing, 
he can.
    The issue was raised a couple times about the impact on the 
Air Force. I want to make it very clear the amount of land in 
the Nellis Air Force range that's being withdrawn under this 
proposal is less than 1 percent of the total area of the Nellis 
Air Force range, and the no-fly zone that would be established 
by this is 4 miles in radius, a very, very small issue. And 
from our discussions with the Air Force, they don't have a 
problem and don't see an operational impact by this withdrawal 
on their operations.
    Without this, if we don't get this land withdrawal, I can't 
demonstrate to the NRC that we have permanent control of the 
repository area, which is a requirement to get the operating 
license for Yucca Mountain. So basically, if I don't get this 
land withdrawal, I can't get a license to operate Yucca 
Mountain. It's that simple.
    The third issue is about removing the 70,000 metric ton 
limit on the mountain. That limit was established by the 
Nuclear Waste Policy Act as an administrative limit. When the 
Government performed its environmental impact statement looking 
at the Yucca Mountain project, it examined a 120,000 metric ton 
impact for that, so we've already examined what would happen if 
we expanded the limit.
    What we're asking for in this legislation is the ability to 
analyze the mountain scientifically, present to the NRC what we 
believe is a licensable upper limit for capacity of Yucca 
Mountain, and allow the NRC to make that determination. Without 
getting this 70,000 metric ton limit lifted, we will need a 
second repository in this country, and the Nuclear Waste Policy 
Act requires the Department to present a recommendation to the 
Congress between 2007 and 2010 on the need for that second 
repository. If we don't lift this limit and allow the NRC to 
decide the technical license limit for the repository, I will 
give Congress a report while I'm in this position that says we 
need a second repository in this country and need to start that 
process right away.
    The fourth issue I would just like to summarize is about 
water, and this is obviously a major issue to all States out in 
the West. What we're asking for is for the Congress to declare 
the Yucca Mountain project to be in the public interest. We are 
not asking to bypass the Nevada water rights granting process. 
What we're asking to do is to supersede the Nevada legislative 
law that's currently in place, that declares the Yucca Mountain 
project not in the public interest, and therefore the State 
will not grant a water withdrawal right to the Department of 
Energy. And without that, we have no water to either operate or 
construct Yucca Mountain.
    The fifth area is waste confidence, which we've already 
talked about earlier today, and the importance of establishing 
the waste confidence for the Nuclear Regulatory Commission to 
allow the licensing of new plants and the extension of licenses 
for existing plants.
    The sixth and final area that covers a broad range of 
issues is clarification of Federal authority and duplicative 
regulatory review processes, and what we're trying to do is 
provide needed clarification of Federal authority over some 
issues that are currently subject to State review and approval: 
air quality, transportation, the Resource Conservation and 
Recovery Act, and infrastructure improvement. I'll be glad to 
talk about those in more detail as needed to satisfy the 
committee.
    In summary, the President, the Secretary and I firmly 
believe that this legislation is critical to the Yucca Mountain 
moving forward, and moving forward with new nuclear generation 
capacity, and I respectfully request the Congress to pass this 
legislation. Thank you.
    [The prepared statement of Mr. Sproat follows:]

Prepared Statement of Edward F. Sproat, III, Director for the Office of 
      Civilian Radioactive Waste Management, Department of Energy

    Mr. Chairman and Members of the Committee, thank you for the 
opportunity to appear before you today to discuss S. 2589 entitled the 
``Nuclear Fuel Management and Disposal Act.'' Enactment of this bill 
would significantly enhance the Nation's ability to manage and dispose 
of spent nuclear fuel and high-level radioactive waste. I thank the 
Chairman and Senator Inhofe for taking up the critical issue and 
introducing the legislation.
    Over the last 50 years, our country has benefited greatly from 
nuclear energy and the power of the atom. We need to ensure a strong 
and diversified energy mix to fuel our Nation's economy, and nuclear 
power is an important component of that mix. Currently more than 50,000 
metric tons of spent nuclear fuel is located at more than 100 above-
ground sites in 39 states, and every year, reactors in the United 
States produce an additional approximately 2,000 metric tons of spent 
fuel. In order to ensure the future viability of our nuclear generating 
capacity, we need a safe, permanent, geologic repository for spent 
nuclear fuel at Yucca Mountain.
    Recently the Department announced its plans to submit a License 
Application for the repository to the Nuclear Regulatory Commission 
(NRC) by June 30, 2008, and to initiate repository operations in 2017. 
This opening date of 2017 is a ``best-achievable schedule'' and is 
predicated upon enactment of the pending legislation. This proposed 
legislation addresses many of the uncertainties that are currently 
beyond the control of the Department that have the potential to 
significantly delay the opening date for the repository, and I would 
like to briefly summarize the bill's provisions for the Committee.
    First, the most important factor in moving the Yucca Mountain 
Project forward is the ability of the Department to have access to the 
Nuclear Waste Fund to support the cash flows needed to implement the 
Project. By making a technical budgetary scoring change, the proposed 
legislation would correct a structural budget problem that currently 
prevents use of the Fund as it was intended. This change would allow 
the Fund to be used to provide consistent and sufficient funding for 
the construction and operations of the repository. Funding for the 
Program would still have to be requested by the President and 
Congressional appropriations from the Fund would still be required.
    Second, to meet NRC licensing requirements it will also be 
necessary for Congress to approve the permanent withdrawal of the lands 
needed for the operational area of the repository. The bill would 
withdraw permanently from public use approximately 147,000 acres of 
land in Nye County, Nevada. The Department is confident that the 
permanent withdrawal of land would meet the NRC licensing requirement 
for the Yucca Mountain repository and would help assure protection of 
public health and the environment.
    Third, to promote efficient management and disposal of the current 
and projected future inventories of commercial spent nuclear fuel 
located at reactors throughout the United States, the proposed 
legislation would eliminate the current statutory 70,000 metric ton cap 
on disposal capacity at Yucca Mountain and allow for maximum use of the 
mountain's true technical capacity. By eliminating an artificial 
statutory limit and allowing NRC to evaluate the actual capacity at 
Yucca Mountain, this provision would help provide for safe isolation of 
the Nation's entire commercial spent nuclear fuel inventory from 
existing reactors, including life extensions, and may postpone the need 
for a second repository elsewhere until the next century.
    In addition the proposed legislation includes a number of 
provisions that would promote prompt consideration of issues associated 
with the Yucca Mountain repository or would address other matters that 
have the potential to cause delays in moving forward with the Yucca 
Mountain Project.
    First, the proposed legislation contains provisions that would 
provide for a more streamlined NRC licensing process by amending the 
licensing process in several respects. In particular, it would make 
clear that an application for construction authorization need not 
include information on surface facilities other than those facilities 
necessary for initial operations. The bill would also establish an 
expedited one-year schedule and a simplified, informal process for use 
by the NRC to consider the license amendment for the Department to be 
able to receive and possess nuclear materials as well as applications 
for other future license amendment actions. The bill would also direct 
that the NRC, consistent with other provisions under the Nuclear Waste 
Policy Act of 1982, need not consider in its environmental review any 
actions taken outside of the geologic repository operations area; this 
will help focus the licensing process.
    Second, the proposed legislation would permit early initiation of 
infrastructure and pre-construction activities at the Yucca Mountain 
site for utility, communications, and safety upgrades, and the 
construction of a rail line to connect the Yucca Mountain site with the 
national rail network. Construction of repository surface and sub-
surface nuclear facilities would still require a construction 
authorization from the NRC.
    Third, the proposed legislation includes additional provisions that 
would simplify the regulatory framework for the repository. In 
particular, the legislation would designate the Environmental 
Protection Agency as the appropriate agency to issue, administer, and 
enforce any air quality permits required in connection with the Yucca 
Mountain repository. Material owned, transported and stored in NRC-
licensed containers and NRC-licensed materials at Yucca Mountain would 
also be exempt from Federal, State, and local environmental 
requirements under the Resource Conservation and Recovery Act.
    Fourth, the proposed legislation would address the use of water 
needed to carry out the authorized functions under the Nuclear Waste 
Policy Act of 1982. This legislation would allow the Department to be 
treated like a private business in requesting water access, resulting 
in a non-discriminatory treatment of the Department. The State of 
Nevada would still review and administer water allocation to the 
Department under this provision.
    Fifth, the proposed legislation would address transportation and 
ensure the expedited movement of shipments to Yucca Mountain. In this 
regard, the legislation would provide the flexibility for the DOE to 
regulate the transport of spent nuclear fuel and high-level radioactive 
waste to the repository in the same manner that we currently move 
nuclear weapons. The Department has been transporting such nuclear 
materials safely for many years. In addressing this issue, we are not 
proposing to change in any way our route planning activities with 
State, Tribal and local authorities or how we work with them on 
emergency planning, training and education. This provision would not 
affect our longstanding commitment to transporting nuclear material in 
a manner that meets or exceeds NRC and Department of Transportation 
requirements for transportation of comparable material. Likewise, it 
would not affect our longstanding practice of working with State, 
Tribal and local governments, transportation service providers, and 
other Federal agencies to utilize their resources and expertise to the 
maximum extent practicable.
    Finally, the proposed legislation would promote the licensing of 
new nuclear facilities by addressing the need for a regulatory 
determination of waste confidence by the NRC in connection with 
proceedings for those new nuclear facilities. This provision directs 
the Commission to deem that sufficient capacity will be available to 
dispose of spent nuclear fuel in considering whether to permit the 
construction and operation of a nuclear reactor or a related facility.

                               CONCLUSION

    Nuclear power has been demonstrated to be a safe, reliable, and 
efficient source of power. Enactment of the proposed legislation is 
necessary to allow the Yucca Mountain Project to move forward and to 
advance the Nation's energy independence, energy security, and national 
security objectives. Mr. Chairman, I look forward to working with you 
and the Members of this Committee on this legislation to facilitate the 
construction and operation of the repository and ensuring the continued 
development of safe, clean, and efficient nuclear power in this 
country. I would be pleased to answer any questions at this time.

    The Chairman. Thank you very much.
    Mr. Virgilio.

STATEMENT OF MARTIN J. VIRGILIO, DEPUTY EXECUTIVE DIRECTOR FOR 
 MATERIALS, RESEARCH, STATE AND COMPLIANCE PROGRAMS, OFFICE OF 
THE EXECUTIVE DIRECTOR FOR OPERATIONS, U.S. NUCLEAR REGULATORY 
                           COMMISSION

    Mr. Virgilio. Good morning. My name is Martin Virgilio. I'm 
the Deputy Executive Director for Operations at the Nuclear 
Regulatory Commission, with responsibility for this project.
    Mr. Chairman, members of the committee, it's a pleasure to 
appear here before you today to talk about the Nuclear Fuel 
Management and Disposal Act. I'd like to briefly summarize my 
testimony and request that the record reflect a full statement 
that I presented to you.
    It's important to make clear at the outset that because of 
NRC's licensing and adjudicatory responsibilities, the NRC is 
not taking a position on most of the provisions of the 
legislation, which appear aimed at facilitating the eventual 
operation of the proposed repository at Yucca Mountain. 
However, some of these provisions, if enacted, could adversely 
impact NRC's ability to meet its statutory obligations. These 
provisions are included in a letter we sent to the committee on 
June 30 of this year, and the points that we're going to make 
here today are points we made in that letter.
    Our experience in dealing with applications for major 
nuclear projects such as this make us keenly aware of the level 
of effort that's required to conduct a thorough licensing 
review and meet all our statutory obligations to protect the 
public health and safety, promote common defense and security. 
Our main concern here is that NRC be given sufficient time and 
adequate resources to conduct a comprehensive review of the 
DOE's proposal.
    Accordingly, we are concerned with section 4(b) because it 
appears to give the NRC insufficient time in order to conduct a 
review of the application to license. Section 4(b) imposes a 1-
year limit, with the possibility of a 6-month extension, on the 
NRC's licensing decision. This deadline does not appear 
achievable to us.
    NRC must conduct a thorough technical, environmental, and 
legal review, and this is likely going to take us more than a 
year. NRC would urge that the time for deciding on the 
application to receive and possess waste be increased to 2 
years after the docketing of the application, with the 
possibility of an extension for 6 months.
    We appreciate the opportunity to appear before you today, 
and the Commission looks forward to continuing to work with 
this committee on the proposed legislation. We welcome your 
questions and comments. Thank you.
    [The prepared statement of Mr. Virgilio follows:]

Prepared Statement of Martin J. Virgilio, Deputy Executive Director for 
   Materials, Research, State and Compliance Programs, Office of the 
 Executive Director for Operations, U.S. Nuclear Regulatory Commission

                              INTRODUCTION

    Mr. Chairman and Members of the Committee, it is a pleasure to 
appear before you today to discuss S. 2589, the Nuclear Fuel Management 
and Disposal Act, which has several provisions that affect the Nuclear 
Regulatory Commission (NRC).
    It is important to make clear at the outset that, because of the 
NRC's licensing and adjudicatory role in the national repository 
program, the NRC is not taking a position on most of the provisions in 
the legislation, which appear to be aimed at facilitating eventual 
operation of the proposed repository at Yucca Mountain.
    However, some of those provisions, if enacted, could adversely 
impact the NRC's ability to meet its statutory obligations with respect 
to radioactive high-level waste. The Commission offers the following 
comments on provisions in the bill that would affect the timing of the 
Commission's review of a Department of Energy (DOE) application for a 
license to receive and store waste at the proposed Yucca Mountain high-
level waste repository. These provisions are the subject of a letter we 
sent the Committee on June 30, 2006, and the points we are going to 
make here today are the points that we made in that letter.

                    TIME NEEDED FOR ADEQUATE REVIEW

    The Commission fully understands the importance of addressing the 
storage and disposal of high-level radioactive waste in a manner that 
is both safe and timely. The Commission has a record of moving 
responsibly and promptly to meet its obligations under the Nuclear 
Waste Policy Act. We continue our preparations for conducting an 
independent safety review of a Yucca Mountain application. We are 
confident that we will be ready to receive an application that DOE now 
says it will submit to us in 2008. We are also confident that we will 
reach a decision on the application within the time constraints set 
forth in the Nuclear Waste Policy Act assuming DOE submits a high-
quality license application.
    At the same time, our long experience in dealing with applications 
for major nuclear projects has made us keenly aware of the level of 
effort required to conduct a thorough licensing review that meets our 
statutory obligations to protect public health and safety, and to 
promote the common defense and security. Our main concern here is that 
the NRC be given sufficient time to conduct a comprehensive review of 
DOE's applications.
    Accordingly, we are concerned with Section 4(b) because it appears 
to give the NRC insufficient time to review an application to license 
receipt and possession of waste at the proposed repository. Section 
4(b) imposes a 1-year limit (with the possibility of a six-month 
extension) on the NRC's licensing decision. This deadline does not 
appear achievable to us for at least three reasons.
    First, the NRC staffs technical, environmental, and legal reviews 
are likely to take more than a year, particularly because the staff is 
almost certain to ask questions about the application, and to ask for 
additional information in support of the application. Even the staffs 
reactor renewal reviews, which are widely recognized as efficient, have 
required about two years for each application (22-30 months, depending 
upon whether a hearing is requested and granted), and yet those reviews 
focus on a relatively narrow range of issues at facilities we have 
regulated for several decades.
    Second, even the informal adjudicatory proceeding called for in the 
bill would contain certain necessary processes that cannot be carried 
out quickly. For example, the bill provides for limited discovery; add 
to this the Commission's own default proceedings, which, though less 
formal than trial-type proceedings, nonetheless call for written 
testimony, allow for questioning by the presiding officer, and allow 
for appeal of the presiding officer's decision to the Commission. The 
NRC cannot complete, in one year, both the staff's safety review and 
the adjudicatory proceeding.
    Third, another provision in Section 4 might increase the scope of 
the licensing decision, and thus the time needed to make the decision: 
Section 4(a) of the bill provides that an application for construction 
authorization ``need not contain information on surface facilities 
other than surface facilities necessary for initial operation of the 
repository.'' This provision might be read simply to place certain 
surface facilities outside the NRC's jurisdiction, in which case the 
provision would reduce the time licensing might take; on the other 
hand, the provision might be read to provide for staged consideration 
of surface facilities. Under this latter interpretation, the NRC would 
review certain facilities as part of its decision on construction 
authorization, but review others during the later receipt and 
possession phase, with the result that Section 4(a) would increase the 
scope of the receipt and possession review, and yet Section 4(b) would 
decrease the time allowed for that review. The intent of this provision 
needs to be clarified. Section 4(b) also should be revised to make 
clear whether the use of informal proceedings in hearings is intended 
to apply to the multiple amendments to the license to receive and 
possess that are envisioned with a phased approach for the potential 
repository.
    For these reasons, the NRC would urge that the time for deciding on 
the application to receive and possess waste be increased to two years 
after the docketing of the application, with the possibility of an 
extension of six months.
    We appreciate the opportunity to appear before you today, and the 
Commission looks forward to continuing to work with the Committee on 
this proposed legislation. We welcome your comments and questions.

    The Chairman. Thank you very much.
    Mr. Wright.

  STATEMENT OF DAVID A. WRIGHT, COMMISSIONER, SOUTH CAROLINA 
     PUBLIC SERVICE COMMISSION, ON BEHALF OF THE NATIONAL 
        ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS

    Mr. Wright. Good morning, Mr. Chairman and committee 
members. My name is David Wright, and I am an elected 
commissioner of the South Carolina Public Service Commission.
    I also serve on the Subcommittee on Nuclear Issues and 
Waste Disposal of the Electric Committee of the National 
Association of Regulatory Utility Commissioners, most often 
referred to as NARUC. I'm testifying today on behalf of that 
organization. On behalf of NARUC and my commission, I very much 
appreciate the opportunity to appear before you this morning. 
In fact, I flew all night from our NARUC meeting in San 
Francisco just so I could be here this morning.
    Mr. Chairman, I want to thank you for your work on this 
issue. Our questions are not meant to be construed as 
opposition, but instead as an effort to gain more insight into 
the details of the interim storage proposal. We generally 
support the provisions found in S. 2589, and we want to be 
involved and work with you on this issue throughout the 
legislative process.
    The issues that you are addressing in this hearing are very 
important to NARUC's membership and to my State, and I'm 
grateful to have this opportunity to present our views 
concerning the disposition of spent nuclear fuel at nuclear 
powerplant sites that is intended for ultimate disposal at the 
Yucca Mountain geologic repository. I would like to summarize 
my testimony and have the full statement entered into the 
record.
    As I stated earlier, NARUC just concluded a meeting in San 
Francisco yesterday, at which the Board of Directors adopted a 
resolution addressing interim storage. I ask permission today 
that it also be made part of the record of this hearing, and I 
brought a copy with me.*
---------------------------------------------------------------------------
    * The resolution has been retained in committee files.
---------------------------------------------------------------------------
    Now, Mr. Chairman, if you will let me, I would like to 
summarize what we support in the nuclear waste program. First, 
we urge reform of the Nuclear Waste Fund so collected fees are 
available for their intended purpose, as proposed in S. 2589. 
Second, DOE needs to press on with licensing the Yucca Mountain 
repository. Third, we support central interim storage, away 
from reactor sites, and that does not interfere with developing 
the repository and meets a cost/benefit test. Fourth, we 
support research and further study of all aspects of advanced 
reprocessing as proposed in the GNEP initiative. Fifth, we 
support infusing a sense of urgency in spent fuel repository 
development, as the other provisions of S. 2589 support.
    And, to be emphatic, let me summarize what we oppose. We 
oppose continued diversion of the Nuclear Waste Fund fee 
payments. Second, we oppose having DOE take title to spent fuel 
to be retained at reactor storage sites. Third, we oppose the 
use of the Nuclear Waste Fund for interim storage, certainly 
not so long as appropriations for interim storage means less 
appropriations for the repository. And, last, we oppose putting 
as many as 31 States through a concurrent site search for 
interim storage before the cost/benefits of the proposed 
consolidation and preparation facilities have been determined.
    Mr. Chairman, thank you for the opportunity to appear 
before you today and testify. This concludes my testimony.
    [The prepared statement of Mr. Wright follows:]

  Prepared Statement of David A. Wright, Commissioner, South Carolina 
  Public Service Commission, on Behalf of the National Association of 
                    Regulatory Utility Commissioners

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

          1. Will these changes further delay the license application 
        and how will that affect eventual repository operational dates? 
        The schedule announced last month showing initial waste 
        disposal in 2017 is predicated on a number of variables 
        including adequate funding.
          2. How will DOE and the utilities be able to ensure that all 
        spent fuel presently stored at reactor sites (up to the current 
        planned amount of 63,000 metric tons) will be able to be 
        transferred into the standardized canisters? Spent fuel is 
        increasingly being stored in sealed canisters in dry casks that 
        will either have to be accepted as is or have the contents 
        transferred to the standard canisters.

    Finally, NARUC has not taken any strong position on the other 
elements of the proposed Nuclear Fuel Management and Disposal Act, 
aside from our support for the Nuclear Waste Fund reclassification 
proposal. In general, we find the other provisions to be helpful for 
the overall goal of licensing, building and operating the repository. 
We agree that the 70,000 metric ton statutory limit on the repository 
capacity is arbitrary and the proposal to have the capacity be among 
the elements of the license review by the Nuclear Regulatory Commission 
makes sense. We have always urged DOE to plan and eventually conduct 
the spent fuel transportation in cooperation with other federal, State, 
tribal and local governments and, to the best of our knowledge the 
Department is planning to do that as required by the NWPA and as has 
been done successfully in previous nuclear waste shipments.
    Let me summarize what we support:

          1. Reform of the Nuclear Waste Fund so that collected fees 
        are available for their intended purpose, as proposed in S. 
        2589.
          2. DOE needs to press on with licensing the Yucca Mountain 
        repository.
          3. Central interim storage away from reactor sites that does 
        not interfere with developing the repository.
          4. Research of advanced reprocessing and further study of all 
        aspects of the GNEP initiative.
          5. Infusing a sense of urgency in spent fuel repository 
        development.

    And, let me summarize what we strongly oppose:

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

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

    The Chairman. Thank you very much.
    Mr. Beasley.

   STATEMENT OF J. BARNIE BEASLEY, JR., PRESIDENT AND CHIEF 
     EXECUTIVE OFFICER, SOUTHERN NUCLEAR OPERATING COMPANY

    Mr. Beasley. Mr. Chairman and members of the committee, my 
name is Barnie Beasley. I'm president and CEO of Southern 
Nuclear Operating Company, and it's indeed a privilege to be 
here this morning on behalf of the nuclear energy industry's 
support of this bill. The nuclear industry is grateful, Mr. 
Chairman, for your strong leadership on this important issue, 
and for calling this hearing, and for your commitment to 
nuclear power.
    We believe this bill is a good start toward comprehensive 
legislation to reform the Nation's nuclear waste program. And 
my testimony will also address additional provisions that we 
believe would strengthen the legislation to enhance the 
management and disposal of the used nuclear fuel and high-level 
radioactive waste. And I have also submitted written testimony 
for the record this morning. In keeping with the scope of this 
hearing, I'll focus my testimony on the following key issues:
    First, the need for real progress in licensing and 
development of the Yucca Mountain repository is critical. 
Second, the key role that this bill can play in establishing a 
solid basis for making the necessary progress toward addressing 
the challenges facing the Yucca Mountain project, as well as 
helping set the stage for new nuclear plants. Third, additional 
legislative provisions that we urge the committee to consider 
in addition to those in this bill. The Federal Government 
should initiate actions that will lead to the removal of used 
fuel from commercial nuclear plant sites as expeditiously as 
practicable.
    Based on many years of experience in operating nuclear 
powerplants, I am convinced that nuclear power is and offers a 
safe, clean, and cost-effective answer to many of our Nation's 
current and future energy needs. Maintaining even the 20 
percent contribution that nuclear power currently makes to the 
Nation's electricity needs will require construction of a 
significant number of new nuclear plants beginning in the next 
decade.
    In order to fully realize the benefits that nuclear power 
offers, however, a solution to the problem of disposal of used 
nuclear fuel must be found. Since the enactment of the Nuclear 
Waste Policy Act in 1982, our customers in Georgia and Alabama 
have paid almost $900 million into the Nuclear Waste Fund.
    In total, ratepayers across America have paid over $27 
billion into the Nuclear Waste Fund, and continue to pay at the 
rate of approximately three-quarters of a billion per year, yet 
no used fuel has been removed from reactor sites as required by 
this Waste Policy Act. Moreover, those same customers have had 
to finance costly onsite storage facilities, and these 
facilities expose the Federal Government to growing liability 
that has already resulted in hundreds of millions of dollars in 
judgments and settlements.
    The nuclear industry is encouraged by DOE's recent 
publication of a schedule for the licensing and development of 
the repository at Yucca Mountain. We recognize, however, that 
DOE's most optimistic schedule would leave used fuel at reactor 
sites for some 20 years longer than the deadline that was 
mandated by the Waste Policy Act, and that past DOE schedules 
have not been realized.
    DOE's failure to comply with statutory mandates and 
previous schedules demonstrates that more than new authorizing 
legislation is needed to make real progress toward the removal 
of the used fuel from our reactor sites, and it will also take 
a firm commitment from the Congress and the administration to 
adequately fund and implement the legislation. The industry 
believes comprehensive new legislation can expedite DOE's 
performance of its existing legal obligations, and this bill is 
a very good start.
    In particular, the provisions in the bill that eliminate 
artificial constraints on the capacity of the repository, the 
reform of the Nuclear Waste Fund, and the codification of the 
waste confidence rule are all very important. The industry 
fully supports this bill, and believes its enactment would be a 
major milestone in implementing our national strategy for 
managing used nuclear fuel.
    Notwithstanding our strong support for the proposal, we 
believe there are a number of additional issues that Congress 
should consider. In particular, we believe that legislation 
should require DOE to move used fuel from reactor sites to 
existing Federal facilities on an expedited basis. The United 
States currently stores foreign and defense reactor fuel at 
such sites, and there is no good reason why one or two 
centrally located Federal facilities should not be made 
available for domestic fuel.
    Second, we believe that any temporary storage solutions 
should be economical, efficient, and should not unnecessarily 
divert attention and resources from the repository development. 
We are concerned that so-called take title provisions in bill 
S. 2099 would both deplete resources of the Nuclear Waste Fund 
and do nothing to materially impact the current situation.
    And, finally, the execution of new contracts for the 
disposal of used fuel is on the critical path for licensing of 
new plants. We believe that direction from Congress would be 
helpful in implementing contracts for new plants.
    Again, Mr. Chairman, we thank you for this opportunity to 
be here, and we'll entertain questions at the appropriate time.
    [The prepared statement of Mr. Beasley follows:]

   Prepared Statement of J. Barnie Beasley, Jr., President and Chief 
         Executive Officer, Southern Nuclear Operating Company

    Mr. Chairman and members of the Committee, my name is Barnie 
Beasley. I am President and Chief Executive Officer of Southern Nuclear 
Operating Company. I also serve on the Executive Committee of the 
Nuclear Energy Institute. I have attached a brief resume to my 
testimony as Exhibit 1. Thank you for this opportunity to express the 
nuclear energy industry's strong support of S. 2589, the Nuclear Fuel 
Management and Disposal Act. I will also address additional provisions 
that we believe would strengthen the legislation's role to enhance the 
management and disposal of used nuclear fuel and high-level radioactive 
waste, to ensure protection of public health and safety, to ensure the 
territorial integrity and security of the repository at Yucca Mountain.
    Southern Nuclear is headquartered in Birmingham, Alabama, and is a 
subsidiary of Southern Company. Southern Company is a public utility 
holding company with its principal office in Atlanta, Georgia. In 
addition to Southern Nuclear, Southern Company is the corporate parent 
of five electric utilities: Alabama Power Company, Georgia Power 
Company, Gulf Power Company, Mississippi Power Company, as well as 
Southern Power Company and Southern Company Services, Inc. Southern 
Company's subsidiaries provide reliable and affordable electric service 
to 4.2 million retail and wholesale customers across the southeastern 
United States.
    Southern Nuclear is the licensed operator of the Alvin W. Vogtle 
Electric Generating Plant and the Edwin I. Hatch Nuclear Plant, which 
are both two-unit nuclear plants partially owned by Georgia Power 
Company, and the Joseph M. Farley Nuclear Plant, which is a two-unit 
nuclear plant owned by Alabama Power Company. The six nuclear units 
operated by Southern Nuclear comprise over 6000 megawatts of generating 
capacity and represent approximately 17% of the total annual generation 
of the Southern Company system. Both Plants Hatch and Farley have 
extended their operating licenses for 20 years. The application for the 
extension of Plant Vogtle's operating license will be filed with the 
Nuclear Regulatory Commission (NRC) next year. These plants provide our 
customers with reliable and reasonably priced electric energy.
    Southern Nuclear will file an application for an Early Site Permit 
this month in order to determine the suitability of the Vogtle site for 
potentially two additional nuclear units at Plant Vogtle and is on a 
schedule to submit an application for a Combined Operating License 
(``COL'') by early 2008.

                                SUMMARY

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

   The Department of Energy (DOE) must make visible and 
        measurable progress in implementing an integrated national used 
        nuclear fuel management strategy. The Yucca Mountain, Nevada, 
        repository is a critical component of any such integrated 
        strategy. This progress will help ensure that the expanded use 
        of nuclear energy will play a key role in our nation's strategy 
        for meeting growing electricity demand.
   The key role that S. 2589 can play in establishing a solid 
        basis for making the necessary progress towards addressing the 
        challenges facing the Yucca Mountain project, as well as 
        helping set the stage for new nuclear plants.
   Additional legislative provisions that we urge the Committee 
        to consider supplementing the solid foundation established in 
        S. 2589. The federal government must initiate actions that will 
        lead to beginning to remove used fuel from commercial nuclear 
        plant sites as soon as possible.
        nuclear energy must play a key role in our energy future
    In the 2006 State of the Union address, President Bush affirmed the 
nation's commitment to ``safe, clean nuclear energy'' as part of a 
diverse portfolio that will meet America's future electricity needs. A 
long-term commitment to nuclear energy will make the United States more 
energy independent and 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.
    Based on many years of experience in operating nuclear power 
plants, I am convinced that nuclear power offers a clean and cost-
effective answer to many of our nation's current and future energy 
needs. Although our nation must continue to employ a mix of fuel 
sources for generating electricity, 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. The 
industry appreciates the recognition of 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 more than 200 members.

                    THE NEED FOR LEGISLATIVE ACTION

    In order to fully realize the benefits that nuclear power offers, 
however, a solution for the problem of disposal of used nuclear fuel 
must be found. Since the enactment of the Nuclear Waste Policy Act of 
1982, the customers of Alabama and Georgia Power Companies have paid 
over $897 million into the Nuclear Waste Fund. In total, rate payers 
across America have paid over $27 billion into the Nuclear Waste Fund, 
and continue to pay an additional $750 million each year. Yet, no used 
fuel has been removed from reactor sites as required by the NWPA. 
Moreover, those same customers have had to finance costly on-site 
storage facilities. Southern has had to construct two such facilities 
to date.
    The causes for the failure of the federal used nuclear fuel program 
to date are well documented. The fundamental problem with the failure 
of the federal government to remove used fuel from our plant sites has 
not been the lack of authorizing legislation. It has been the failure 
to implement the legislation that has been enacted for almost 25 years 
by appropriating sufficient funds and by a consistent commitment to 
execute plans to develop the repository. While new legislation to amend 
the Nuclear Waste Policy Act is important, it is even more critical 
that the federal government commit itself to the implementation of 
existing law.
    The nuclear industry is encouraged by the ambitious schedule 
announced by DOE on July 19, 2006, for submission of the license 
application by June 30, 2008, and the ``Best-Achievable'' construction 
schedule that could have the repository begin receipt of used fuel in 
March 2017. The industry encourages DOE to submit the application as 
soon as possible so NRC review can begin.
    While DOE's announcement of a schedule for licensing the repository 
is a significant development, past experience suggests that the 
schedule will be difficult to achieve without congressional action in a 
number of areas:

   The Congress providing appropriations consistent with 
        Administration requests;
   An NRC construction authorization decision consistent with 
        the timelines contained in the Nuclear Waste Policy Act;
   Obtaining any necessary Federal or state authorizations or 
        permits for the repository and the transportation system; and
   The DOE achieving a nuclear culture consistent with that 
        needed to be a successful NRC licensee.

    Enactment of the Nuclear Fuel Management Disposal Act, S. 2589, 
will help advance several of these important objectives.

       S. 2589 SUPPORTS THE FUTURE ROLE FOR NUCLEAR POWER IN OUR 
                        NATIONAL ENERGY STRATEGY

Waste Confidence Is 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 NRC 
rules that support various licensing actions. Section 9 of S. 2589 
takes the very important step of codifying the waste confidence rule. 
This will help to avoid potential contentions in individual plant 
licensing proceedings over the timing and certainty of the performance 
by DOE of its responsibilities under the Nuclear Waste Policy Act. We 
strongly support this important step in creating certainty for major 
new investments by the nuclear industry in response to Congress's 
Energy Policy Act of 2005.
    Managing the nation's used fuel is a firmly established federal 
obligation and, as such, is a matter of broad national policy. 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, DOE has safely operated a geologic disposal site 
for transuranic radioactive waste near Carlsbad, N.M.--the Waste 
Isolation Pilot Project (WIPP).
    Issues regarding the timing and certainty of performance by DOE of 
its used fuel management obligations should be resolved in proceedings 
on the repository, or in Congress. Litigation of such issues in 
individual plant licensing proceedings is neither efficient nor 
appropriate. NRC has long recognized that individual plant licensing 
proceedings should not be burdened with debates over DOE's development 
of the repository. Congress should codify ``waste confidence'' as 
called for in S. 2589, so that the NRC need not address this broad 
public policy matter in routine licensing proceedings.
Artificial Constraints on Repository Operations Are Eliminated
    Currently, there is a statutory limit of 70,000 metric tons (MT) 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 105,000 MTs of commercial used fuel in the 
repository. Additional scientific analyses suggest significantly higher 
capacity could easily be achieved with changes in the repository 
configuration that use only geology that has already been characterized 
and do not deviate from existing design parameters. Advanced nuclear 
fuel cycle technologies could provide significant additional capacity 
for disposing of waste products in Yucca Mountain.
    Decisions on licensing and operations of a deep geologic repository 
at Yucca Mountain should be based on scientific and engineering 
considerations through DOE technical analyses and the NRC licensing 
process, not on artificial constraints. Given the decades of study and 
the billions of dollars invested in Yucca Mountain, it makes sense that 
we fully and safely utilize its potential capacity, rather than 
developing multiple repositories when there is no technical reason to 
do so. S. 2589 will allow the nation to do just that by lifting the 
artificial 70,000 MT capacity limit.

      S. 2589 INCLUDES KEY PROVISIONS FOR YUCCA MOUNTAIN PROGRESS

Offsetting Collections Reclassification Will Enhance Funding 
        Predictability
    Congress established the Nuclear Waste Fund to cover costs 
associated with disposal of commercial used nuclear fuel. This fund is 
paid for by a one-tenth-of-a-cent-per-kilowatt-hour fee on electricity 
used by consumers of nuclear energy. Congress has routinely failed to 
appropriate to the repository program the total fees paid into the 
Waste Fund in that year. Further, restrictions on the federal budget 
have prevented fees collected, but not appropriated, in one year from 
being appropriated in subsequent years.
    As a result, Yucca Mountain budget requests have been cut by more 
than $1 billion over the 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.
    It is my understanding that S. 2589 would reclassify prospective 
annual fees so that appropriations up to the full amount of fee 
revenues for any year would not be limited by discretionary spending 
caps. While this approach would be a major step forward, we believe 
that the Congress should also reaffirm the compact with ratepayers in 
the Nuclear Waste Policy Act and provide that any appropriation for the 
program could be offset by balances in the Nuclear Waste Fund whether 
derived from prospective fees or past fees and interest.
    In addition, we believe it is important for the Congress to act to 
maintain the integrity of the Nuclear Waste Fund. We support amending 
S. 2589 to clearly define that only activities that directly contribute 
to meeting the federal government's obligation under the NWPA can be 
supported from the Nuclear Waste Fund. This includes expenditures 
related to transportation, storage, and disposal of used fuel and high-
level waste.
    Advanced research on energy technologies has consistently been 
funded through general revenues, and there is no reason research on 
advanced fuel processing nuclear technologies--such as those 
contemplated under the President's Global Nuclear Energy partnership 
program--should be financed any differently.
    Also, Congress should reaffirm its authority over any changes in 
the Nuclear Waste Fee by requiring such changes be made by statutory 
amendment.

S. 2589 WILL ENHANCE CLARITY AND STABILITY IN THE LICENSING PROCESS

    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. Regulatory authority for the transportation system needs to be 
clarified as well.
    Third, the hearing process for the authorization to receive and 
possess fuel should be simplified to provide for clear and concise 
decision making.
    Finally, clarification is needed with respect to land management, 
what regulations will apply to repository construction and operations, 
and which agencies will administer those regulations.
    S. 2589 addresses each of these issues to increase the prospect 
that the ``best achievable'' schedule announced by DOE can be met.

  CONGRESS SHOULD CONSIDER ADDITIONAL STEPS TO PROMOTE COMPREHENSIVE 
                      USED NUCLEAR FUEL MANAGEMENT

    While industry fully supports S. 2589 and believes its enactment 
would be a major milestone in implementing our national strategy for 
managing used nuclear fuel, we believe there are a number of additional 
issues that Congress should consider in comprehensive legislation.

DOE Should Move Used Nuclear Fuel from Reactor Sites As Soon As 
        Possible
    The industry's top priority is for the federal government to meet 
its statutory and contractual obligation to move used fuel 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.
    These lawsuits potentially expose the federal government to 
billions of dollars of judgments and settlements.
    Further delays in federal receipt and movement of used nuclear fuel 
and defense waste products will only add to utility damage claims, and, 
according to DOE, will increase taxpayer liability for defense waste 
site life-cycle costs and Yucca Mountain fixed costs.
    While DOE moves forward to license, construct and operate the Yucca 
Mountain repository, the government must take title to used fuel and 
move it to secure federal facilities as soon as practicable. A number 
of proposals have been made to address the issue of ``interim 
storage.''
    The best approach would be for the federal government to begin to 
move fuel in proximity to the planned repository. Both House and Senate 
appropriations bills for FY 2007 have provided direction on this issue. 
While there is clear interest in looking at options for early movement 
of fuel, none of the options has yet demonstrated that it is 
politically and technically workable and could be accomplished in a 
timely manner. A cooperative and supportive host site is critical to 
meeting these criteria.
    It appears that one or two interim storage sites that provide 
benefits desired by the host state and community are the appropriate 
approach. Industry experience demonstrates that such facilities can be 
sited, licensed, and constructed on an expedited schedule. We are 
encouraged that DOE has advised the Congress, in its solicitation for 
prospective sites for nuclear fuel recycling facilities, that there 
will of necessity be some interim storage of used nuclear fuel 
involved. A number of communities have expressed initial interest in 
participating in such a project. We believe Congress should work with 
DOE, industry and potential host sites to determine what steps will 
best facilitate the movement of used fuel from utility sites, and 
incorporate appropriate provisions into S. 2589.
    The industry does not believe that the ``take title'' approach 
suggested in S. 2099 either meets the federal obligation or provides 
any benefit. The requirement in that legislation that all used fuel at 
reactor sites be moved immediately into dry cask storage could add up 
to $800 million a year over five years to the costs of producing 
nuclear energy. Regardless of the interim storage strategy chosen, it 
is critical that those activities--not divert attention and resources 
from repository development.

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

  THE YUCCA MOUNTAIN LICENSING PROCESS SHOULD PROVIDE FLEXIBILITY TO 
                      ADDRESS FUTURE DEVELOPMENTS

    As provided by existing regulations, Congress should direct DOE to 
incorporate features into its repository development plans that 
maintain flexibility for future generations to make informed decisions 
based on operational experience, changing energy economics, and 
technological developments. It should be made clear that it was always 
the intent that the repository design retains the ability to monitor 
and, if needed or desired, retrieve the used fuel.
    The nuclear energy industry supports enhancements to the Yucca 
Mountain repository that would provide greater long-term assurance of 
safety and permit DOE to apply innovative technology at the repository 
as it is developed. These enhancements include:

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

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

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 
waste by-products regardless of which 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 related to fuel supply, long-term 
radioactive waste management, and proliferation concerns. It may be 
possible that currently available technologies could be used creatively 
to jump-start the development of the needed advanced nuclear fuel cycle 
technologies.
    We recognize that the Congress has important questions regarding 
this program. DOE's near-term focus for GNEP is 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 to develop the Yucca 
Mountain repository.

A Constructive Role for Nevadans
    The nuclear energy industry supports an active and constructive 
role for Nevada in the development of Yucca Mountain to help ensure the 
safety of its citizens. The industry also supports compensation for the 
State to account for the program's socioeconomic impact, as called for 
in the Nuclear Waste Policy Act. This model is consistent with the 
siting and operation of the Waste Isolation Pilot Plant.
    The industry is encouraged by the steps DOE has taken to work with 
affected local governments in the State, and we further encourage DOE 
to expand its interactions with Nevadans interested in constructive 
engagement in the project. The industry urges the Congress to include 
provisions in S. 2589 to foster these developments.

                               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 
an eminently suitable site for such a facility.
    A viable used fuel management strategy is necessary to retain long-
term public confidence in operating existing nuclear power plants and 
in building new nuclear power plants to meet our nation's growing 
electricity needs, and to fuel our economic growth. The public 
confidence necessary to support construction of new nuclear plants is 
linked to successful implementation of an integrated national used fuel 
policy, which includes a continued commitment for the long-term 
disposition of used nuclear fuel. This requires a commitment from the 
Administration, Congress, and other stakeholders to ensure that DOE 
makes an effective transition from a scientific program to a licensing 
and construction program, with the same commitment to safety. New waste 
management approaches, including interim storage and nuclear fuel 
recycling, are consistent with timely development of Yucca Mountain.
    Enactment of S. 2589 is the critical pre-requisite to implementing 
our national policy for used fuel management.

    The Chairman. Thank you very much.
    I want to just inform the Senators and witnesses that I 
just received notice that we have just started voting on the 
floor, and there will be three votes, one after another, which 
means that will be a long time, and I don't know quite what 
will happen, what we'll do. But we're going to go right on to 
you, Mr. Loux, right now, and then we'll go over to you, and 
see if we can get one round in before we leave. If you can make 
it brief, we would be greatly appreciative, sir.

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

    Mr. Loux. I will do so, Mr. Chairman. I wanted to thank you 
for your invitation. As you know, my name is Robert Loux, and 
I'm here on behalf of the Governor of Nevada.
    The Chairman. Thank you.
    Mr. Loux. I would like to also request not only my 
statement but some additional materials I would like to make 
available for the record, and give them to the committee this 
afternoon, if that----
    The Chairman. That will be done.
    Mr. Loux. Thank you very much.
    We have viewed, obviously, the provisions of this bill, and 
we find it's the most extraordinary piece of proposed 
legislation, even when viewed in the highly politicized and 
conflict-laden context of the last 19 years of this program. 
During that time we have witnessed the unraveling of scientific 
screening and characterization of candidate sites, only to have 
Yucca Mountain picked in a political process. We have seen the 
Congress prohibit the study of crystalline rock sites for a 
potential repository in order to avoid political troubles in 
the Eastern part of the United States.
    The 1992 Energy Policy Act was Congress' rescue vehicle for 
Yucca Mountain when it was discovered that the site could not 
meet the EPA's general standards for repositories, and DOE's 
site recommendation guidelines and NRC licensing rules were 
adjusted to assure the site would not be disqualified for 
specific technical safety reasons. And in 2002, as you know, 
the Secretary recommended, the President approved, and Congress 
designated the Yucca Mountain site for a repository, even 
though Department of Energy was totally unprepared to submit an 
application to the NRC.
    Now you have before you a bill that attempts, like a 
cowcatcher on a locomotive, to anticipate and sweep aside every 
potential health and safety obstacle that could upset the 
relentless drive to begin receiving waste at Yucca Mountain 11 
years from now. The bill is so dismissive of American 
democratic values that it's not worthy of this committee or the 
Congress' attention.
    Each of the noted historical actions above is the result of 
an incremental reduction of safety and an increased risk in the 
Nation's program. This bill before you today is a continuation 
of that process, in that it weakens or eliminates regulatory 
processes and controls both for the repository and the 
transportation arena.
    Exempting waste transportation, storage, and disposal from 
the requirements of the Resource Conservation Act, and relying 
instead on the regulations adopted under the Atomic Energy Act, 
is an unprecedented compromise of well-understood, long-held 
and accepted protection to the public from risk of hazardous 
materials in the environment. This bill's provisions would 
allow the unprecedented release of hundreds of millions of 
pounds of hazardous chromium, molybdenum, vanadium, and nickel 
into the currently potable groundwater supply without any 
regulatory review whatsoever.
    The Secretary of Energy should not be permitted to exempt 
waste transportation to the repository from external 
regulation. These provisions constitute an unnecessary, 
undesirable trading of public safety for an unspecified 
increase in convenience for the Department of Energy.
    The bill mandates both substantive and procedural measures 
for the NRC license application review process, that curtail 
the existing rights of parties to review the complete 
application and take part in an adjudicatory hearing of the 
entire proposed project. This also is an unacceptable 
compromise of safety.
    The bill usurps the State's traditional authority to 
administer waters by commandeering the State to grant 
extraordinary rights to the Department of Energy. The State's 
constitutional authority and implementing laws, under which the 
State Engineer makes water appropriation decisions, are ignored 
when the bill declares the Department's use of any amount of 
water it decides is necessary for Yucca Mountain is beneficial 
to interstate commerce and not detrimental to the public 
interest. The department, under this bill, would have no 
obligation to protect the water resources of the State. This 
too is unacceptable.
    The proposed land withdrawal of 147,000 acres for land at 
the Yucca Mountain project is premature. Without a construction 
authorization by the NRC, which the Department is not expecting 
until at least 2011, there is no need or basis for the 
withdrawal.
    The bill also gives the Secretary of Energy, as you have 
heard, the authority to close airspace over the repository 
withdrawal area, despite objections from the Secretary of the 
Air Force. The Air Force Secretary has already objected to any 
Yucca Mountain activity that would compromise the national 
defense mission of the Air Force, and our conversations with 
the Air Force indicate that an expansion of their range in the 
area of Yucca Mountain is in the planning for future Air Force 
missions with new fighters.
    The bill's provisions for infrastructure improvement and 
construction prior to the NRC construction authorization are 
also premature and imprudent. Without a construction 
authorization from the NRC, the proposed new and replacement 
construction is not needed, not authorized by the act, and 
certainly not prudent.
    In concluding, the many provisions of the bill that are 
aimed at eliminating health and safety requirements the 
Department perceives as obstacles to meeting its latest 
schedule for opening the Yucca Mountain repository have the 
appearance of being a litany of excuses for continued poor 
performance. Virtually all the issues raised in the bill 
involve actions that are outside of the control of the 
Department, yet the real obstacles the Department must deal 
with are ones of its own making.
    None of the provisions of S. 2589 are needed by the 
Department to carry out the primary task at hand, and that is 
to prepare a complete, high-quality license application and 
submit to the NRC for review and hearing. The bill gathers the 
power of numerous State and Federal agencies, local 
authorities, and Indian tribes into the hands of the Department 
of Energy, probably the most distrusted Federal agency in the 
human health and environmental arena. It boldly does this for 
the sole purpose of attempting to force a faltering Yucca 
Mountain repository into becoming a reality.
    Thank you, Mr. Chairman, for your time.
    [The prepared statement of Mr. Loux follows:]

Prepared Statement of Robert R. Loux, Executive Director, Nevada Agency 
              for Nuclear Projects, Office of the Governor

    I am Robert Loux, Executive Director of the Nevada Agency for 
Nuclear Projects. The Agency was established in 1985 by the Nevada 
Legislature to carry out the State's oversight duties under the Nuclear 
Waste Policy Act.
    We have reviewed the provisions of the bill S. 2589 entitled 
``Nuclear Fuel Management and Disposal Act.'' It is a most 
extraordinary piece of proposed legislation, even when viewed in the 
highly politicized and conflict-laden context of the past nineteen 
years of this nation's high-level nuclear waste disposal program. 
During that time we have witnessed the unraveling of the scientific 
screening and characterization of candidate repository sites, as set 
out in the Nuclear Waste Policy Act of 1982, to be replaced with the 
unabashed, politically driven naming of Yucca Mountain, in Nevada, as 
the only potential repository site to be studied.
    We have seen Congress prohibit the study of crystalline rock sites 
for a potential repository in order to avoid the brewing political 
turmoil over siting a second repository in any of the populous states 
of the northern mid-west and the eastern seaboard, where a large number 
of the nation's nuclear power reactors are located.
    The 1992 Energy Policy Act was Congress' rescue vehicle for the 
Yucca Mountain repository site when it was discovered that Yucca 
Mountain could not meet the EPA's general safety standard for 
repositories. EPA's subsequent standard, aimed at protecting the 
viability of the Yucca Mountain site, was thrown out by the court, and 
its proposed replacement, if adopted, will likely meet the same fate.
    DOE's site recommendation guidelines and NRC's licensing rule were 
adjusted to assure the site would not be disqualified for specific 
technical safety deficiencies.
    And, in 2002, the Secretary of Energy recommended, the President 
approved, and Congress designated the Yucca Mountain site for 
development of a repository despite the fact that the Department of 
Energy was unprepared to submit an acceptable license application to 
NRC. Just last month, Congress was told that a license application is 
planned to be submitted in 2008, six years later than the Nuclear Waste 
Policy Act's required 90 days after site designation by Congress.
    Now you have before you a bill that attempts, like a cowcatcher on 
a locomotive, to anticipate and sweep aside every potential health and 
safety obstacle that could upset the relentless drive to begin 
receiving highly radioactive waste and spent nuclear fuel at Yucca 
Mountain in 2017--eleven years from now. (Ironically, in 1987, when 
Congress singled out Yucca Mountain, in an attempt to anticipate and 
fix the burgeoning waste program problems, the planned opening date 
also was then eleven years in the future--in 1998.) The bill is so 
dismissive of American democratic values that it is not worthy of this 
Committee's or the Congress' consideration.
    Removal of potential health and safety obstacles to expedite 
licensing and operation of a Yucca Mountain repository does nothing to 
advance the primary safety finding of the Nuclear Waste Policy Act: 
``high-level radioactive waste and spent nuclear fuel have become major 
subjects of public concern, and appropriate precautions must be taken 
to ensure that such waste and spent fuel do not adversely affect the 
public health and safety and the environment for this or future 
generations.'' (Sec. 111(a)(7)). Each of the historical actions noted 
above has resulted in incremental reductions of safety (and increased 
risk) in the national nuclear waste program. This bill before you today 
is a continuation of that trend to the extent that it weakens or 
eliminates regulatory processes and controls, both for the repository 
and in the nuclear waste transportation arena.

                             RCRA EXEMPTION

    Exempting waste transportation, storage, and disposal from the 
requirements of the Resource Conservation and Recovery Act (RCRA) and 
relying on regulations adopted under the Atomic Energy Act is an 
unprecedented compromise of well-understood, long-held and accepted 
protection of the public from the risks of hazardous materials in the 
environment. This is a step backward, away from the accepted policy. 
The Department of Energy's activities associated with hazardous 
materials are currently subject to external environmental regulatory 
oversight, more comprehensive in scope than that afforded under the 
Atomic Energy Act. This bill's provision would allow the unprecedented 
release of hundreds of millions of pounds of hazardous chromium, 
molybdenum, vanadium, and nickel into the currently potable groundwater 
supply without any regulatory review. The amount of hazardous metals 
released would vastly increase if the repository's nuclear waste 
capacity limit was lifted, as proposed by this bill.

                       TRANSPORTATION PREEMPTIONS

    The Secretary of Energy should not be permitted to exempt waste 
transportation to the repository from external regulation. Also, the 
Secretary should not be given the ability to take the initiative in 
preempting State, local, and Indian tribal transportation requirements 
``irrespective of whether the transportation otherwise is or would be 
subject to regulation under the Hazardous Materials Transportation 
Authorization Act of 1994.'' These provisions severely compromise these 
entities' ability to be informed and knowledgeable of sources of risk 
passing through their jurisdictions and take measures required of 
public officials to protect public safety. They constitute an 
unnecessary and undesirable trading of public safety for an unspecified 
increase in convenience for the Department of Energy. They also ignore 
a recent National Academy of Sciences study that found, in part, that 
nuclear waste transportation can be acceptably safe if all existing 
regulatory requirements are rigorously enforced.

                         NRC LICENSING AND EIS

    The bill mandates both substantive and procedural measures for the 
NRC license application and review process that curtail the existing 
rights of parties to review a complete application and take part in an 
adjudicatory hearing of the entirety of the proposed project. 
Permission to limit the information in the application for construction 
authorization to ``surface facilities necessary for initial operation 
of the repository,'' coupled with the elimination of formal proceedings 
for license amendments following the construction authorization, 
greatly inhibits the ability of parties to participate in a 
comprehensive safety review of the facility.
    Furthermore, any Environmental Impact Statement (EIS) written to 
accompany a construction authorization decision will be insufficient in 
its required description of the project and evaluation of potential 
impacts if the complete planned surface facility and its operations are 
not available for analysis. The surface facility design concept is 
currently undergoing a major revision because of operational safety 
concerns that could not be mitigated. This provision allowing the 
complete surface facility design and operation to avoid full formal 
safety review during initial licensing proceedings invites unknown 
future safety and operational issues to arise, putting the public and 
workers at increased risk.

                      STATE DELEGATED AUTHORITIES

    Nevada exercises lawfully-delegated authority to regulate emissions 
affecting air quality. This bill would usurp that authority for any 
activity or facility associated with the Yucca Mountain project, which 
according to provisions of the bill, could include construction and 
operation of a 319 mile-long new rail line to Yucca Mountain. Effective 
air quality management relies on familiarity with local conditions, and 
the public benefit of this valuable experience, especially related to 
construction in essentially pristine areas, would be lost under this 
bill.

                      STATE GROUNDWATER AUTHORITY

    The bill usurps the State's traditional authority to administer its 
waters by commandeering the State to grant extraordinary rights to the 
Department of Energy. The State's constitutional authority and 
implementing laws, under which the State Engineer makes water 
appropriation decisions, are ignored when the bill declares that the 
Department's use of any amount of water it decides is necessary for the 
Yucca Mountain project is beneficial to interstate commerce, and not 
detrimental to the public interest. The commandeering of the State 
Engineer's authority would extend to water needed for the proposed 
rail, line which, in some places, passes through basins where the safe 
yield of the groundwater is already fully appropriated. The Department, 
under this bill, would have no obligation to protect the water 
resources of the State.

             LAND WITHDRAWAL, LAND USE AND AIR SPACE ISSUES

    The proposed withdrawal of 147,000 acres (approximately 230 square 
miles) of land for the Yucca Mountain project, which could include land 
for the 319 mile-long rail access to the site, is premature. Without a 
construction authorization by NRC, which the Department does not expect 
until at least 2011, there is no need or basis for the withdrawal. In 
order to receive a repository license, the Department must demonstrate 
ownership and control of the repository site, but this is not necessary 
prior to submitting a license application. DOE could simply agree to a 
condition that, if construction authorization is granted, a land 
withdrawal will be accomplished.
    The proposed withdrawal unnecessarily limits public entry and use 
of current Public Land for at least the next five years, a period 
during which the Department has not demonstrated a need for the Public 
Land portion of the withdrawal.
    The bill also gives the Secretary of Energy the authority to close 
airspace over the repository withdrawal area, despite any objection 
from the Secretary of the Air Force, whose aircraft currently use the 
airspace for thousands of training missions each year, with the 
frequency of use expected to increase in future years. The Air Force 
Secretary already has objected to any Yucca Mountain associated 
activity that would compromise the national defense mission of the Air 
Force.
    And, the withdrawal would give the Department authority to exchange 
land within the withdrawal for federal land outside the withdrawal. 
With the various limitations for use of withdrawal lands, if exchanges 
were made to acquire land for the rail access line, this could greatly 
disrupt, without recourse, public use and access to lands currently 
used for grazing, mining and mineral exploration, and recreation.

                        PRE-LICENSE CONSTRUCTION

    The bill's provisions for infrastructure improvement and 
construction prior to NRC construction authorization are also premature 
and imprudent. The Department recently has released for review and 
comment, an Environmental Assessment outlining the six new buildings 
and many miles of new road and electrical power line construction and 
replacement, it plans over a two year period prior to construction 
authorization. In the EA, the Department claims the approximately $100 
million worth of new and replacement construction is not intended to 
support repository construction and operation, yet the bill gives a 
green light for just that purpose, even though, according to the 
Department's recently announced plans, the anticipated construction 
authorization is just five years away. Without a construction 
authorization from the NRC, the proposed new and replacement 
construction is not needed, not authorized by the Nuclear Waste Policy 
Act, and certainly not prudent, despite the thin claims in the EA that 
it will improve safety for workers, visitors, and regulators, and 
support continuing scientific work and testing.

                            PROGRAM FUNDING

    Opening the annual receipts of the Nuclear Waste Fund as 
discretionary offsetting collections to fund the program is not an 
entirely new concept. Well over a decade ago, then Energy Secretary 
Hazel O'Leary made the plea to Congress, ``Untie my hands,'' when 
seeking full access to the Nuclear Waste Fund. Since that time, we all 
have come to see that full access to the waste fund would not have been 
the solution to the problems that the program has inflicted on itself, 
and are beyond the scope of the anticipated and potential problems that 
this bill seeks to sweep aside.

                           QUALITY ASSURANCE

    Throughout its history, the inability of the program to implement a 
satisfactory quality assurance program has been chronicled by the 
General Accounting Office (now Government Accountability Office) and 
the NRC, yet to date the problems persist. But, according to Department 
managers, as always, they are on the verge of being solved. Quality 
assurance failures were at the core of the now infamous e-mail incident 
whose fallout has caused millions of dollars of expense and 
immeasurable loss of credibility that still is ongoing. Open access to 
the Nuclear Waste Fund would not have provided an obvious solution to 
the persistent quality assurance failures. Instead, the Department sees 
it as a ``culture'' issue and is now (after more than 20 years) 
claiming to be implementing measures to make individual managers more 
accountable for their work and the work they supervise. In the 
licensing proceeding, the Department must demonstrate that it has 
management systems in place and functioning that would support an NRC 
finding that the Department would be a qualified and competent 
licensee. The Department itself does not seem to believe that it yet 
passes this test, but is confident that it will by the time of license 
application.

                           CONCLUDING REMARKS

    The many provisions of this bill that are aimed at eliminating 
administrative and regulatory requirements the Department perceives as 
obstacles to meeting its latest schedule for opening a Yucca Mountain 
repository have the appearance of being a litany of excuses for 
continued poor performance. Virtually all of the issues raised in the 
bill involve actions that are outside of the control of the Department. 
Yet the real obstacles that the Department must deal with are of it own 
making. A most telling example was the Department's inability to comply 
with the NRC's requirement to provide an adequate and acceptable 
documentary record to support its then-anticipated 2004 license 
application. The Department's recently announced fantasy schedule calls 
for its next effort to provide such a record to take place on December 
21, 2007, providing just a few days more than the required six months 
prior to submitting a repository license application, which is 
scheduled by the Department for June 30, 2008.
    None of the provisions of S. 2589 are needed by the Department of 
Energy to carry out the primary task at hand--prepare a complete, high 
quality license application and submit it to the Nuclear Regulatory 
Commission for review and hearing. This bill gathers the powers of 
numerous federal and state agencies, local authorities, and Indian 
tribes into the hands of the Department of Energy, probably the most 
distrusted federal agency in the human health and environmental arena. 
It boldly does this for the sole purpose of attempting to force a 
faltering Yucca Mountain nuclear waste repository into becoming a 
reality.

    The Chairman. Thank you, Mr. Loux.
    Mr. Fettus.

   STATEMENT OF GEOFFREY H. FETTUS, SENIOR PROJECT ATTORNEY, 
               NATURAL RESOURCES DEFENSE COUNCIL

    Mr. Fettus. Good morning, Mr. Chairman, thank you very 
much. My name is Geoffrey Fettus, and I'm a senior attorney 
with the Natural Resources Defense Council. I'd like to thank 
the committee for inviting me to testify on this bill, and I 
will be very brief and request that my more extensive written 
comments be submitted into the record.
    As this committee with its expertise is well aware, Yucca 
Mountain is a project of monumental importance. It knows that 
nuclear waste permanently buried in a Federal geologic 
repository will be lethal for hundreds of thousands of years. 
Rather than treading carefully with these issues, this bill 
undercuts external regulatory oversight and protective 
environmental laws.
    If Yucca Mountain is to meet the twin goals of protecting 
human health and, most importantly, public acceptance of the 
Federal solution, then this bill is a misguided effort. For the 
entire 35-year history of NRDC, we have supported deep geologic 
disposal of nuclear waste, but any repository must rely 
primarily on geologic isolation and meet protective public 
health standards. We have worked to ensure that the Government 
agencies charged with developing and regulating a geologic 
repository set strict standards to protect public health.
    In contrast with S. 2589, our national focus should be on 
promulgating adequate environmental standards, then testing 
whether Yucca Mountain meets those standard through a thorough 
and transparent licensing process. That process currently 
exists in law. The public will not have confidence in the 
safety of the repository if the law has to be changed in order 
to make the site licensable.
    My focus is on three objectionable sections of the bill: 
the severe dilution of the NRC licensing procedures; the 
blanket preemption of State environmental regulation; and the 
codification of the waste confidence rule. And I again will be 
very, very brief.
    The licensing process is not without its flaws, but it 
still retains portions of the original and coherent vision of 
the Nuclear Waste Policy Act. There is opportunity for a 
careful adjudicatory process.
    However, section 4 of the bill would dramatically undercut 
the current legal framework as it does away with the current 
deliberative proceedings. It would require the NRC to use 
expedited, informal procedures which limit discovery and the 
NRC's oversight. It would require the NRC to act on any 
application within 1 year after the application has been filed. 
The NRC has stated that this is not an achievable standard, and 
we agree. Moreover, limiting discovery and weakening oversight 
is unwise, as it further degrades the transparency and rigor 
needed for one-of-a-kind projects like this.
    Section 4 also removes from the NRC any meaningful 
regulation of surface facilities, including any proposed 
facilities built for interim storage, an act that could 
essentially make the use of the repository a fait accompli 
regardless of the outcome of any construction license.
    The bill undercuts the National Environmental Policy Act. 
The bill waives the requirement that DOE consider alternatives 
for a range of activities. The discussion and presentation of 
alternatives is the heart of the NEPA process, and to waive 
those obligations removes the fundamental meaning of the law.
    Section 6 of the bill nullifies the application of 
hazardous waste laws. The same section amends the Clean Air Act 
to nullify Nevada's air permitting authority. And I cite 
several other examples in my written testimony.
    Finally, the issue of whether or not the availability of 
permanent geologic disposal should factor into nuclear 
powerplant licensing has been with us for decades. A compromise 
on how the issue would be addressed in a scientific and 
publicly acceptable manner was reached. Section 9 of this bill 
would undo that decades-old compromise.
    Section 9 would require that the NRC must ``deem, without 
any further consideration,'' that there is sufficient capacity 
to dispose of nuclear waste now, without hearing scientific 
debate or any meaningful inquiry into a problem that will last 
for tens of thousands of years. This bill directs the NRC to 
potentially ignore any new analysis, regardless of what the 
future holds. Such provision would stand the NRC's waste 
confidence rule on its head and run counter to the D.C. 
Circuit's careful designation of where scientific expertise 
should reside.
    Respectfully, Congress should not be deciding issues of 
ultimate certainty in health and safety judgments, nor should 
it be resolving technical disagreements with the stroke of a 
pen. If we are ever to have a robust repository program that 
both follows the original intent of the Nuclear Waste Policy 
Act and gains the trust of the American public, then the 
Federal Government must cease efforts to weaken meaningful and 
protective health and environmental standards for Yucca 
Mountain.
    Thank you for allowing me to testify, and I look forward to 
your questions.
    [The prepared statement of Mr. Fettus follows:]

  Prepared Statement of Geoffrey H. Fettus, Senior Project Attorney, 
                   Natural Resources Defense Council

    Good morning. My name is Geoffrey Fettus and I am a senior attorney 
with the Natural Resources Defense Council (NRDC). I have been the lead 
attorney on nuclear matters at NRDC for five years, but I have worked 
on nuclear waste and fuel cycle issues for nearly a decade. Before my 
current job I was an Assistant Attorney General for the State of New 
Mexico and subsequently practiced for the New Mexico Environmental Law 
Center. I thank the Committee for inviting me to testify on S. 2589, 
Nuclear Fuel Management and Disposal Act.
    S. 2589 was submitted to the Committee by Department of Energy 
(DOE) Secretary Bodman and introduced by Senator Domenici at the 
Administration's request. The bill is designed to ``facilitate the 
licensing, construction and operation'' of the repository. The bill 
would perform a broad array of what DOE envisions as necessary tasks 
from land withdrawal to changes in the regulatory structure governing 
the proposed repository.
    Unfortunately, S. 2589 is yet another effort to relax or remove 
appropriate environmental oversight and standards that must apply if 
the proposed repository is to meet the twin goals of protecting human 
health for the length of time the waste is dangerous and public 
acceptance of the federal solution to the nuclear waste problem. This 
is a project of monumental importance and unprecedented complexity. The 
nuclear waste to be permanently buried in a federal geologic repository 
will be lethal for hundreds of thousands of years. If this waste is 
inadvertently accessed or leaks uncontrolled into the environment, 
incalculable damage could result. Rather than grappling carefully with 
those issues, this bill would undercut external regulatory oversight 
and protective environmental laws.
    Respectfully, this bill overreaches and should be withdrawn. If it 
is not withdrawn, it should be defeated. For the entire 35 year history 
of NRDC, we have supported deep geologic disposal for nuclear waste as 
long as any repository relies primarily on geologic isolation and meets 
protective environmental and public health standards. Our litigation on 
this matter has been to ensure that the government agencies charged 
with developing and regulating a geologic repository set strict 
standards protect public health and complied with the original 
intentions of the Nuclear Waste Policy Act (NWPA), 42 U.S.C. Sec. 10101 
et seq. and other applicable laws.
    In contrast with the provisions of S. 2589, our national focus 
should be on promulgating adequate environmental standards and then 
testing whether Yucca Mountain meets those standards through a fair, 
thorough and transparent licensing process. That process is required by 
existing law. The environmental community and the public will not have 
confidence in the safety of the repository if the law has to be changed 
in order to make the site licensable.
    To understand the many objectionable components of S. 2589 and its 
proposals to weaken regulatory oversight over the proposed Yucca 
project, what follows is a short summary of federal action on geologic 
repositories and the many previous efforts to weaken regulatory 
standards applicable to the project. Then I turn to some of the 
specific objectionable sections of the bill.

                  BACKGROUND ON GEOLOGIC REPOSITORIES

    Efforts to geologically isolate high-level nuclear waste began more 
than 40 years ago. The National Academy of Sciences in 1957 reported 
that a number of geologic disposal alternatives were possible, but 
indicated a preference for disposal in salt. In 1967 the Atomic Energy 
Commission (AEC) proposed Project Salt Vault, a plan to develop a 
geologic repository in the Carey salt mine at Lyons, Kansas. This plan 
was abandoned by the AEC in the early-1970s after the Kansas Geological 
Survey mounted a strong campaign against the site, pointing out that 
the area had been subjected to extensive exploratory drilling for oil 
and gas deposits, and noting that an adjacent salt mine could not 
account for the loss of a large volume of water used during solution 
mining of the salt.
    In 1974 the Energy Research and Development Agency (ERDA), formed 
out of the AEC and the predecessor to the DOE, retreated from 
geological disposal by proposing a Retrievable Surface Storage Facility 
(RSSF) for interim storage of high-level waste while pursuing geologic 
disposal at a more leisurely pace. This idea was rejected by 
environmentalists and the Environmental Protection Agency (EPA) on the 
grounds that it would delay permanent disposal.
    In the mid-1970s it also became clear that commercial spent fuel 
reprocessing was uneconomical, environmentally unsound and represented 
a serious proliferation risk. President Gerald Ford refused to 
subsidize the completion of the Barnwell reprocessing plant, and then 
President Jimmy Carter pulled the plug on reprocessing. This gave a new 
urgency to finding a site suitable for geologic disposal of both spent 
fuel and high-level nuclear waste. In the late 1970s President Carter 
initiated an Interagency Review Group (IRG) process to solve once and 
for all the nuclear waste problem in the United States. The IRG process 
involved numerous scientists, extensive public involvement, and a 
consultation and concurrence role for the states. The outcome of the 
IRG effort was a two-track program. The DOE was tasked with the 
responsibility for identifying the best repository site in the country, 
and the EPA and the NRC were tasked with developing nuclear waste 
disposal criteria against which the selection and development of the 
final repository site would be judged.

                      THE NUCLEAR WASTE POLICY ACT

    In 1982, Congress enacted the NWPA, which embodied in law the 
principal recommendations that grew out of the IRG process, including a 
commitment to geologic disposal, two repositories, and characterization 
of three sites before final selection of the first repository. The NWPA 
established a comprehensive program for the disposal of spent nuclear 
fuel and high-level radioactive waste (HLW) from the nation's 
commercial reactors and nuclear weapons complex.
    At the time the NWPA was passed nearly 25 years ago, the U.S. 
Government enjoyed fairly widespread support from within the Congress, 
the environmental community and state governments for the site 
selection and development process proposed by the IRG. Now, twenty 
years later the U.S. Government has little, if any, support from the 
State of Nevada, and virtually no public support from the environment 
and public health community for the Yucca Mountain project.

                            WHAT WENT WRONG?

    A whole host of things, but suffice to say that over the last 
twenty years, a substantial segment of the environmental community 
believes the process of developing, licensing, and setting 
environmental and oversight standards for the proposed repository have 
been, and continue to be rigged or dramatically weakened to ensure the 
licensability of the site rather than provide safety for the length of 
time the waste is dangerous. This bill, S. 2589, is yet another example 
of that continuing effort. The site selection process and the radiation 
standards are examples that illuminate this perspective.

                             SITE SELECTION

    First, DOE and then the Congress corrupted the site selection 
process. The original strategy contemplated DOE choosing the best four 
or five geologic media, then selecting a best candidate site in each 
media alternative, then narrowing the choices to the best three 
alternatives, and then picking a preferred site for the first of two 
repositories. Site selection guidelines were strongly criticized as DOE 
was accused of selecting sites that they had previously planned to 
pick. In May of 1986 DOE announced that it was abandoning a search for 
a second repository, and it had narrowed the candidate sites from nine 
to three, leaving in the mix the Hanford Reservation in Washington (in 
basalt), Deaf Smith Co., Texas (in bedded salt) and Yucca Mountain in 
Nevada (in unsaturated volcanic tuff).
    All equity in the site selection process was lost in 1987, when the 
Congress, confronted with a potentially huge cost of characterizing 
three sites, amended the NWPA of 1982, directing DOE to abandon the 
two-repository strategy and to develop only the Yucca Mountain site. At 
the time, Yucca Mountain was DOE's preferred site. The abandonment of 
the NWPA site selection process led directly to the loss of support 
from the State of Nevada, diminished Congressional support (except to 
ensure that the proposed Yucca site remains the sole site), and less 
meaningful public support for the Yucca Mountain project.

                          RADIATION STANDARDS

    The second track of the process has, if possible, fared worse. 
Section 121 of the NWPA of 1982 directs EPA to establish generally 
applicable standards to protect the general environment from offsite 
releases from radioactive materials in repositories and directs the NRC 
to issue technical requirements and criteria. Unfortunately, it has 
been clear for years that the projected failures of the geologic 
isolation at Yucca Mountain are the determining factor in EPA's 
standards.
    EPA has repeatedly issued standards that are concerned more with 
licensing the site than establishing protective standards. EPA's 
original 1985 standards were vacated in part because the EPA had failed 
to fulfill its separate duty under the Safe Drinking Water Act; 42 
U.S.C. Sec. 300h, to assure that underground sources of water will not 
be ``endangered'' by any underground injection. Natural Resources 
Defense Council v. Environmental Protection Agency (NRDC v. EPA), 824 
F.2d 1258 (1st Cir. 1987).
    EPA's second attempt at setting standards that allow for a 
projected failure of geological isolation was again vacated, this time 
by the United States Court of Appeals for the D.C. Circuit. The D.C. 
Circuit found that EPA's Yucca Mountain rule (and the corresponding NRC 
standard), which ended its period required compliance with the terms of 
those rules at 10,000 years was not ``based upon or consistent with'' 
the recommendations of the National Academy of Sciences (``NAS'') as 
required by the 1992 Energy Policy Act and therefore must be vacated. 
Nuclear Energy Institute, Inc. v. EPA, 373 F.3d 1251 (2004).\1\
---------------------------------------------------------------------------
    \1\ In August 1995, the National Research Council of the NAS 
published the study referenced under section 801 of the Energy Policy 
Act of 1992, entitled Technical Bases for Yucca Mountain Standards 
(``NAS Report''). Among other findings, the NAS Report found that it 
would be scientifically unsupportable for the EPA to limit the period 
of performance for its Yucca Mountain site standards to the 10,000-year 
period used in its generic standards under 40 C.F.R. Part 191. 
Concluding that peak radiation risks at the Yucca Mountain site were 
likely to exceed that time limitation, the NAS panel recommended that 
the standards for individual risk apply at the time of peak doses. Id. 
at 55. Drawing on its own prior research, the NAS Report instructed EPA 
that adopting the 10,000-year limitation ``might be inconsistent with 
protection of public health.'' Ibid.
---------------------------------------------------------------------------
    Giving significant deference to the agency, the D.C. Circuit did 
not vacate EPA's strangely configured compliance boundary for the Yucca 
Mountain site. See Appendix A * to this testimony for a map of EPA's 
compliance boundary (inside the oddly drawn line, the repository need 
not protect water quality and radiation can leak in any amount). The 
dramatically irregular line that represents the point of compliance has 
little precedent in the realm of environmental protection, and its 
shape is perhaps more reminiscent of gerrymandered political districts. 
Rather than promulgate protective groundwater standards, EPA pieced 
together a ``controlled area'' that both anticipates and allows for a 
plume of radioactive contamination that will spread several miles from 
the repository toward existing farming communities that depend solely 
on groundwater and perhaps through future communities closer to the 
site.
---------------------------------------------------------------------------
    * Appendix A has been retained in committee files.
---------------------------------------------------------------------------
    EPA's next proposed and revised rule, issued in 2005, retains the 
15 millirem/year and groundwater standards for the first 10,000 years, 
but then establishes 350 millirem/year standard for the period after 
10,000 years and does away with the groundwater standard entirely. This 
two-tiered standard fails to comply with the law and fails to protect 
public health, especially if the repository's engineered barriers were 
to fail earlier than DOE predicts. But fundamentally, NRDC's objection 
to EPA's proposed is not a dispute about what happens between the years 
10,000 and 10,001 after the repository is opened for business. Rather, 
EPA has once again proposed a rule that allows for faulty geologic 
isolation rather than setting a protective standard that will ensure 
the waste is isolated for the length of time it is dangerous.

                      SPECIFIC COMMENTS ON S. 2859

    Turning to the bill before the Committee, we comment on three 
primary areas: the severe dilution of NRC licensing procedures, the 
blanket preemption of state environmental regulation, and the 
codification of the ``waste confidence'' rule.

1. Dilution and Limiting NRC Licensing Authority
    The licensing process for the repository, though not without its 
flaws, still retains portions of the original, coherent vision of the 
NWPA in licensing an unprecedented project that must last for tens of 
thousands of years. There is opportunity for a careful, deliberative 
adjudicatory process in licensing the project.
    For example, under current law, the NRC will use formal 
adjudicatory rulemaking procedures to (1) license DOE to construct the 
repository; and (2) license DOE to receive and possess nuclear waste at 
the repository. Under the construction license, the NRC must grant a 
permit for the entirety of the proposed facility, i.e. ``both surface 
and subsurface areas at which high-level radioactive waste and spent 
nuclear fuel handling activities are conducted.'' Along with this, the 
NRC has strict licensing authority over the entirety of the complex. 
Statutory limits are placed on the repository, such as a 70,000 metric 
ton cap on the amount of waste. And under the NRC's current rules, 
``DOE may not begin construction of a geological repository operations 
area at the. Yucca Mountain site unless it has filed an application 
with the Commission and has obtained construction authorization.'' If 
DOE fails to comply with this requirement, the NRC may deny DOE a 
license. And finally, the National Environmental Policy Act (NEPA) 
remains fully applicable to federal actions related to the site. If 
followed carefully and deliberately, this current legal framework could 
lead to a decision on the site the public could accept.

            Section 4 of S. 2859 Undercuts Protective Standards and 
                    Applicable Environmental Law
    If enacted into law, Section 4 of S. 2859 would dramatically 
undercut the current legal framework by removing meaningful NRC 
oversight and compliance with NEPA. First, Section 4(b)(2) of the bill 
does away with transparent, deliberative proceedings and requires the 
NRC to use ``expedited, informal'' procedures (which limit discovery 
and NRC's ability to ensure safety) with respect to the authorization 
to receive and possess nuclear waste at the repository or ``to 
undertake any other action concerning the repository.'' It also 
requires the NRC to act on any application within one year after the 
application has been filed. In a June 30, 2006 letter from NRC 
Commissioner Diaz to Congressman Porter of the U.S. House of 
Representatives, Committee on Government Reform, the NRC stated that it 
believes such a standard to be ``unachievable.'' We believe the 
standard is not only ``unachievable,'' but limiting discovery and 
weakening the oversight process is unwise as it further degrades the 
transparency and rigor needed for licensing a one-of-a-kind nuclear 
waste repository that will be dangerous for hundreds of thousands of 
years. And if, as is quite likely, the DOE license application is 
inadequate and incomplete and the NRC must respond within one year, do 
the authors of this bill really mean to say that the NRC can only 
reject the application and rule that Yucca Mountain cannot be used?
    Undercutting NRC authority continues. Section 4 of the bill 
eliminates the need for DOE to include in its license application any 
``information regarding any surface facility other than surface 
facilities necessary for initial operation of the repository.'' Such a 
rewrite removes the NRC from any meaningful regulation of surface 
facilities, including any proposed facilities built for the interim 
storage of nuclear waste--an act that could essentially make the use of 
the repository a fait accompli, regardless of the outcome of the 
construction license. Section 4 also authorizes DOE to ``undertake 
infrastructure activities,'' on its own, without NRC approval and even 
before, the NRC authorizes construction of the repository, if DOE finds 
the activity ``necessary or appropriate.'' This provision sets the 
stage for creating an interim storage facility at Yucca Mountain and 
allows DOE to commence huge transportation projects without meaningful 
NRC oversight.
    Ignoring the years and millions of dollars spent on modeling the 
facility for a proscribed amount of waste, Section 4(b)(2) eliminates 
the 70,000 metric ton repository limit. Ostensibly, this is to (1) 
allow for all of the waste from the current generation of nuclear power 
plants (and perhaps some relatively larger but still inadequate portion 
of the repository for defense HLW) and (2) ``postpone indefinitely the 
need to initiate a second repository program.'' In reality, this 
section takes no notice of the years of modeling that have demonstrated 
that the proposed repository may not be able to adequately isolate 
70,000 metric tons of waste, much less two or three times that amount.
    The bill undercuts the application of NEPA to the site as well. 
Section 4(b)(2) commences with the appropriate statement that DOE must 
``comply with all applicable requirements under the National 
Environmental Policy Act of 1969 . . . with respect to an 
infrastructure activity,'' but then waives the requirement that DOE 
``consider the need for the action, alternative actions, or a no-action 
alternative.'' The discussion and presentation of alternatives and 
options to mitigate environmental harm is the heart of the NEPA process 
and to waive those obligations is to do violence to the law.
    Section 4(c) requires other federal agencies to adopt DOE's EIS 
``to the maximum extent practicable''; which will have the effect of 
halting other federal entities from complying with NEPA with respect to 
Yucca Mountain. This runs counter to well-established federal law as 
NEPA's implementing regulations encourage agencies to adopt EISs 
authored by sister agencies, but only if the reviewing agency finds, 
after an ``independent review of the statement,'' that the EIS in 
question ``meets the standards for an adequate statement.'' 40 C.F.R. 
Sec. 1506. NRDC can point to numerous examples where federal agencies 
have responsibly disagreed with one another over the environmental 
impacts of a major federal action, and it is wrong to relieve federal 
agencies of their NEPA obligations in order to increase the likelihood 
of licensing Yucca Mountain.
    And finally, Section 4(c) relieves the NRC of the obligation to 
consider under NEPA any ``action connected or otherwise relating to the 
repository, to the extent the action is undertaken outside the geologic 
repository operations area and does not require a license from the 
Commission.'' Broadly read, such an exemption would allow NRC to avoid 
any NEPA review of DOE transportation projects and even facilities that 
may be used to transition the site toward an interim storage facility 
were DOE to argue such work is outside geologic repository operations 
areas or related to infrastructure activities that do not require NRC 
license.

2. Preempting State Environmental Regulation
    Under current law, the Resource Conservation and Recovery Act 
(RCRA), 42 U.S.C. Sec. 6901 et seq., prohibits the treatment, storage, 
or disposal of hazardous waste at DOE facilities (and at all other 
private or federal facilities) without an EPA or State permit. Certain 
radioactive materials are excluded from the definition of hazardous 
waste under RCRA, but EPA or a delegated state may regulate the 
hazardous constituents in the waste that contains both hazardous and 
radioactive constituents (i.e., mixed waste). See L.E.A.F. v. Hodel, 
586 F.Supp. 1163 (D.Tenn. 1984). This issue of mixed waste has broad 
and important application to DOE facilities. State regulation of mixed 
waste has been one of the key drivers in ensuring that the DOE cleans 
up the radioactive and toxic legacy of the nuclear weapons complex.
    Section 6 of S. 2589 nullifies the application of hazardous waste 
laws at Yucca Mountain, and if the provision is read broadly, it could 
nullify state oversight of a great deal of mixed waste at DOE generator 
sites. Specifically, Section 6(a), in pertinent part, bars the 
application of any part of RCRA Sec. 6001(a) from ``applying to any 
material owned by the Secretary if the material is transported or 
stored in a package, cask, or other container that the Commission has 
certified for transportation or storage of that type of material; or 
any material located at the Yucca Mountain site for disposal if the 
management and disposal of the material is subject to a license issued 
by the Commission.''
    This is a dramatic exemption. RCRA 6001(a) states in pertinent 
part:

          Each department, agency and instrumentality of the executive, 
        legislative, and judicial branches of the Federal government . 
        . . engaged in any activity resulting, or which may result, in 
        the disposal or management of solid waste or hazardous waste 
        shall be subject to, and comply with, all Federal, State, 
        interstate and local requirements, both substantive and 
        procedural (including any requirements for permits or reporting 
        or any provisions for injunctive relief) respecting control or 
        abatement of solid waste or hazardous waste disposal in the 
        same manner, and to the same extent, as any person is subject 
        to such requirements . . . Neither the United States, nor any 
        agent, employee, or officer thereof, shall be immune to or 
        exempt from any process or sanction of any State or Federal 
        Court with respect to the enforcement of any such injunctive 
        relief.

42 USC Sec. 6961 (emphasis added).

    Thus, under S. 2589, any waste ``owned'' by DOE that is 
``transported or stored in a package, cask, or other container that the 
Commission has certified for transportation or storage of that type of 
material'' is exempt from ``all Federal, State, interstate and local 
requirements, both substantive and procedural (including any 
requirements for permits or reporting or any provisions for injunctive 
relief) respecting control or abatement of solid waste or hazardous 
waste disposal.'' Such an exemption could include not just waste DOE 
plans to send to Yucca Mountain (and thus ending Nevada's RCRA 
authority over the mixed portion of the waste), but even mixed waste at 
DOE generator sites where DOE manages that waste in containers that the 
NRC has certified for storage or transportation. Properly used, DOE 
could game the system and obtain a complete cradle-to-grave exemption 
for some undefined portion of mixed waste and highly contaminated DOE 
sites around the country.
    In short, any application of state law to DOE mixed waste could be 
potentially be preempted, ignoring decades of established state 
prerogatives to protect public health and the environment.
    Section 6(b) in essence amends the Clean Air Act, 42 U.S.C. 
Sec. 7401 et seq in a discriminatory manner, only applicable to Nevada 
by taking away state and local government air permitting authority. 
NRDC also strongly opposes that provision.
    And finally, Section 7 of S. 2589 would abolish state, local and 
tribal government transportation authority over the shipment of spent 
nuclear fuel by highway and rail from around the country to Yucca 
Mountain, and gives this authority to DOE. Specifically, this provision 
would eliminate any decision or appeal by non-federal (and mostly non-
DOE) jurisdictions on highway transport. The provision does this in two 
ways. First, it puts issues that are regulated now by the Hazardous 
Materials Transportation Authorization Act of 1994, such as the ability 
of states to designate alternative highway routes, under the 
jurisdiction of DOE as regulated by the Atomic Energy Act. Second, it 
gives the Secretary of Energy the ability to ask the Secretary of 
Transportation to preempt any state, local or tribal requirements, for 
example time of day restrictions.
    This provision directly contradicts the February 2006 National 
Academy of Sciences (NAS) report on nuclear waste transportation that 
advocated a central role for state and tribal governments. According to 
DOE, shipments to Yucca Mountain will affect 45 states, 700 counties, 
and 50 Native American tribes. As many as 120 million people live in 
the counties that would be crossed by rail and truck routes and between 
8 million and 11 million people live within half a mile of a potential 
truck or rail route to the site. The NAS study concluded that a 
successful transportation program requires the active involvement of 
other federal agencies, including the NRC, the Department of Homeland 
Security, and the Department of Transportation, ``in strict adherence 
to regulations.'' The NAS found that states and tribal governments must 
also play a central role in any waste transportation program. In 
particular, the report found that ``state- and tribal-supplied 
information on local transport conditions is an essential element in 
route selection decisions.'' Relieving states, tribes and local 
government's of their transportation authority is unwise and will 
further diminish public acceptance of the project.

3. Codifying the Potential Fiction of the Waste Confidence Rule
    The issue of whether or not the availability of permanent geologic 
disposal should factor into the NRC licensing of commercial nuclear 
power plants has been with us for decades. As I explain below, a 
compromise on how the issue would be addressed in a scientific and 
publicly acceptable manner was reached over twenty years ago. Section 9 
of S. 2589 would undo that compromise and seeks to codify what very 
well may be a fiction. This is an inappropriate exercise of legislative 
power over a matter that should be left up to the licensing body, the 
NRC, and the continued advancement of science as we learn more about 
how to dispose of nuclear waste in a manner that does not leave the 
risk to future generations.
    In June of 1977, the NRC denied NRDC's petition for (1) a 
rulemaking proceeding to determine whether high-level radioactive 
wastes generated in nuclear power reactors can be permanently disposed 
of without undue risk to public health and safety; and (2) withholding 
of action on pending and future applications for operating licenses for 
nuclear power reactors until such time as an affirmative determination 
has been made. We then petitioned the United States Court of Appeals 
for the Second Circuit to review the NRC decision. The 2nd Circuit 
found in part:

        it is neither necessary nor reasonable for the Commission to 
        insist on proof that a means of permanent waste disposal is on 
        hand at the time reactor operation begins, so long as the 
        Commission can be reasonably confident that permanent disposal 
        (as distinguished from continued storage under surveillance) 
        can be accomplished safely when it is likely to become 
        necessary. Reasonable progress towards the development of 
        permanent disposal facilities is presently being accomplished. 
        Under these circumstances a halt in licensing of nuclear power 
        plants is not required to protect public health and safety.

582 F.2d 166, 169 (2nd Cir. 1978). And so it was in 1978.

    In a parallel action only one year later, the State of Minnesota 
challenged an NRC decision granting two operators of nuclear, plants 
amendments to licenses to expand on-site spent fuel storage without 
first determining whether the federal government could permanently 
dispose of the nuclear waste. The United States Court of Appeals for 
the D.C. Circuit held that NRC could properly consider the complex 
issue of nuclear waste disposal in generic proceeding such as a 
rulemaking and then apply its determinations in subsequent adjudicatory 
proceedings, noting the NRC's ``reasonable assurance'' a permanent 
solution would be found. Minnesota v. NRC, 602 F.2d 412, 416 (D.C. Cir. 
1979). However, the D.C. Circuit remanded the matter before the 
particular parties to the NRC for further proceedings to determine 
whether those reasonable assurances existed. Id. at 419.
    These cases gave rise to the NRC's ``waste confidence'' rulemaking. 
In 1984, after varying rounds of development, the NRC made the five 
following findings that constituted the waste confidence rule:

          (1) The Commission finds reasonable assurance that safe 
        disposal of high level radioactive waste and spent fuel in a 
        mined geologic repository is technically feasible.
          (2) The Commission finds reasonable assurance that one or 
        more mined geologic repositories for commercial high-level 
        radioactive waste and spent fuel will be available by the years 
        2007-09, and that sufficient repository capacity will be 
        available within 30 years beyond expiration of any reactor 
        operating license to dispose of existing commercial high level 
        radioactive waste and spent fuel originating in such reactor 
        and generated up to that time.
          (3) The Commission finds reasonable assurance that high-level 
        radioactive waste and spent fuel will be managed in a safe 
        manner until sufficient repository capacity is available to 
        assure the safe disposal of all high-level radioactive waste 
        and spent fuel.
          (4) The Commission finds reasonable assurance that, if 
        necessary, spent fuel generated in any reactor can be stored 
        safely and without significant environmental impacts for at 
        least 30 years beyond the expiration of that reactor's 
        operating licenses at that reactor's spent fuel storage basin, 
        or at either onsite or offsite independent spent fuel storage 
        installations.
          (5) The Commission finds reasonable assurance that safe 
        independent onsite or offset spent fuel storage will be made 
        available if such storage capacity is needed.

49 Fed. Reg. 34659 (Aug. 31, 1984) (emphasis added).

    The NRC last revised the waste confidence rule in 1990, when it 
amended the second and fourth findings as follows:

          Finding 2: The Commission finds reasonable assurance that at 
        least one mined geologic repository will be available within 
        the first quarter of the twenty-first century, and that 
        sufficient repository capacity will be available within 30 
        years beyond the licensed life for operation (which may include 
        the term of a revised or renewed license), of any reactor to 
        dispose of the commercial high-level radioactive waste and 
        spent fuel originating in such reactor and generated up to that 
        time.
          Finding 4: The Commission finds reasonable assurance that, if 
        necessary, spent fuel generated in any reactor can be stored 
        safely and without significant environmental impacts for at 
        least 30 years beyond the licensed life for operation (which 
        may include the term of a revised or renewed license) of that 
        reactor at its spent fuel storage basin, or at either onsite or 
        offsite independent spent fuel storage installations.

55 Fed. Reg. 38474 (Sept. 18, 1990) (emphasis added).

    It is now 2006 and the Yucca Mountain process has been fraught with 
problems--among them massive cost overruns, a finding of moderate to 
weak technical support from the Nuclear Waste Technical Review Board, 
falsification of quality assurance data, and continuing litigation over 
weakening the applicable human health and environmental standards. 
Section 9 of S. 2589, would require the NRC ``deem, without further 
consideration, that sufficient capacity will be available in a timely 
manner to dispose of spent nuclear fuel and high-level radioactive 
waste resulting from the operation of the reactor and related 
facilities.''
    Such a provision would stand the NRC's waste confidence rule on its 
head and run counter to the D.C. Circuit's careful designation of where 
scientific expertise should reside. Discussing the 2nd Circuit opinion 
in NRDC v. NRC, the D.C. Circuit noted:

          We do not read that opinion, however, to hold as a matter of 
        law that storage and disposal concerns are never relevant to 
        the licensing of nuclear plants. Rather, as the NRC itself 
        recognized, Congress has chosen to rely on the NRC's (and its 
        predecessor's) assurances of confidence that a solution will be 
        reached. There is no implication that Congress intended that 
        the NRC ignore new knowledge or analysis in its licensing 
        decisions. As the Supreme Court implicitly recognized by 
        remanding for a review of the sufficiency of the S-3 evidence 
        in Vermont Yankee, this court does not exceed its judicial 
        province by inquiring into the basis of those assurances of 
        confidence. As Commission counsel rightly notes, it is for the 
        Commission to decide the ultimate question of certainty 
        implicit in health and safety judgments and to resolve 
        technical disagreements, but that is not to say that these 
        matters are totally immune from judicial review.

602 F.2d at 419 (emphasis added and citations omitted).

    Congress should not be deciding issues of ultimate certainty in 
health and safety judgments, nor should it be resolving technical 
disagreements with the stroke of a pen. To allow the waste confidence 
rule to be thus legislated into permanent existence does away with any 
concerns about relative amounts of nuclear waste that can be produced 
and disposed of, and all the concomitant matters that must be resolved. 
Without hearing, scientific debate, or any meaningful inquiry into a 
problem that will last for tens of thousands of years, this bill 
proposes to codify that an adequate geologic repository to isolate 
nuclear waste is a certainty. If the technical and legal disputes of 
the last twenty years have taught us anything, it is that very little 
to do with Yucca Mountain is a certainty. To enact Section 9's waste 
confidence presumption would only serve to further validate the widely 
held view that federal efforts on the Yucca Mountain project have been 
about making sure the site is licensed, regardless of its scientific or 
technical merits.

                               CONCLUSION

    The legislative history of the NWPA of 1982 includes the following 
admonition:

          The Committee strongly recommends that the focus of the 
        Federal waste management program remain, as it is today, on the 
        development of facilities for disposal of high-level nuclear 
        waste which do not rely on human monitoring and maintenance to 
        keep the waste from entering the biosphere.

    This wise legislative direction has been ignored over the past 
several years. A central problem with the process for developing a 
geologic repository, and especially Yucca Mountain, has been that the 
site conditions have driven the standard. We observed this years ago 
when EPA abandoned its collective dose standard when it appeared that 
Yucca Mountain could not meet it. We observed this in 2001 when DOE 
placed all its hopes on engineered barriers rather than the geology of 
the site. We observed this again in 2001 when EPA limited the period of 
compliance to 10,000 years and gerrymandered the area of site 
compliance to allow for a massive (and diluting) spread of radioactive 
contaminants, and we're observing the same dynamic now with S. 2589. It 
is essential that this not continue.
    The bill before this Committee is just another symptom of what has 
been going wrong with the program for nearly two decades. From a 
technical stand point, the current analysis appears to show: a) well 
designed canisters may be able to safely sequester the waste for 
several hundred or a few thousand years, but not nearly the length of 
time the waste will be dangerous; b) there is not a great deal of water 
flowing through Yucca Mountain; but c) the repository leaks like a 
sieve. Ultimately, it is apparent that the proposed repository will not 
keep nuclear waste out of the biosphere.
    If we are ever to have a robust repository program that both 
follows the original intent of the NWPA and gains the trust of the 
American public, then the federal government, in both its executive and 
legislative incarnations, must cease efforts to weaken meaningful and 
protective health and environmental standards applicable to the 
program.
    Thank you for allowing me to testify and I look forward to your 
questions.

    The Chairman. Thank you very much.
    Now, what we're going to try to do, to accommodate you in 
the best way, the vote is just about up. We're going to leave 
and we're going to vote, and I think the way we're going to 
arrange it, we'll have a minimal amount of time on the floor 
and return, and we'll put you back there and we'll each have 
some questions. So if you'll wait, we'll appreciate it greatly. 
Thank you very much.
    We stand in recess until our return from voting.
    [Recess.]
    The Chairman. I think we have adequate time now to take a 
few questions, and what we don't get completed, we'll submit. 
What we submit, we'll ask you to answer as expeditiously as you 
can.
    I'm going to start by asking if Senator Bingaman has any 
questions. Senator Craig, we'll ask if you have any, and then I 
will follow up.
    Senator Bingaman. Thank you very much, Mr. Chairman. Thank 
you all for being here.
    Let me start with a couple of questions for you, Mr. 
Sproat. I understood your testimony where you said that if we 
don't enact this legislation, your ability to meet this 
schedule that you laid out is zero, I believe you said.
    Mr. Sproat. That's correct.
    Senator Bingaman. But I'm not clear what in this 
legislation relates to your ability to file the license 
application on time. Will the enactment of this legislation 
allow you to file it sooner? Is that what you're contending? Or 
is it not related to the timing for your filing of that 
application?
    Mr. Sproat. Senator, this legislation is not related to the 
filing of the license application itself. Assuming that the 
program receives essentially the President's requested budget 
funding for fiscal year 2007 and fiscal year 2008, even without 
this legislation I will make that milestone of submitting that 
license application by June 2008.
    What we did, though, as we were trying to put together the 
schedule, to really answer the requirements of the Congress to 
put together a credible schedule for the project, we took a 
look at all of the issues that were out there that we had 
identified, that would impact the ability to open Yucca 
Mountain: land withdrawal, water rights, and the other issues 
we have put in there. And so we said based on our looking at 
this project at this time, this is what we need. This is what 
we think makes sense to allow us to move forward with the 
project, with an aggressive schedule to get it open as soon as 
possible.
    Senator Bingaman. Section 4(b) of this proposed legislation 
authorizes the Department of Energy to ``undertake 
infrastructure activities'' at Yucca Mountain without NRC 
approval.
    Mr. Sproat. Yes.
    Senator Bingaman. Could you specify what infrastructure 
activities that authorizes, in your view? Does it authorize the 
construction of the railroad? Does it authorize interim storage 
facilities? What else?
    Mr. Sproat. This legislation does not authorize any of 
those. What it does, its intent is to clarify the regulatory 
regime under which the approval that the Department needs to 
get to execute those projects would be received. And let me 
just give you an example.
    When we talk about infrastructure at the site, we're 
talking about roadways, we're talking about water systems, 
we're talking about electrical power systems. We're not talking 
about building any permanent safety-related systems, 
structures, or components which would require an NRC 
construction license.

    [Clarification from the Department of Energy: On page 62 of 
the transcript, line 3, and page 79, line 20, Senator Bingaman 
asked if the proposed legislation S. 2589 entitled the 
``Nuclear Fuel Management and Disposal Act'' would authorize 
the construction of the railroad. The proposed legislation does 
not authorize construction of the rail line to Yucca Mountain, 
it merely clarifies that receipt of the repository construction 
authorization from the Nuclear Regulatory Commission is not a 
prerequisite for commencing construction of the rail line. The 
Department still would need to comply with all applicable legal 
requirements, including those established by the National 
Environmental Policy Act, in order to proceed with construction 
and operation of the rail line.]

    Senator Bingaman. What about an interim storage facility?
    Mr. Sproat. There is nothing in this legislation that would 
allow us to build an interim storage facility at Yucca 
Mountain. We have not requested that.
    Senator Bingaman. And nothing that would allow you to build 
the railroad that I've mentioned?
    Mr. Sproat. No. This would be--I'm trying to be very clear 
that the railroad is what's considered as a connected activity 
to the Yucca Mountain repository. And what we want to make 
clear is that any environmental reviews of that railroad would 
be conducted under EPA regulations, not NRC, as connected 
activities, and that's what we're trying to get clear.
    Senator Bingaman. Section 5 of your proposed bill allows 
the Department of Energy to use money in the Nuclear Waste Fund 
for ``infrastructure activities.''
    Mr. Sproat. Yes.
    Senator Bingaman. As I understand the Nuclear Waste Policy 
Act that's already on the books, it authorizes the use of the 
fund for facilities that are ``necessary or incident to'' the 
repository and to the transportation of waste for disposal at 
the repository, so I'm not clear. What does section 5 authorize 
you to use Nuclear Waste Fund monies for that is not already 
authorized by the Nuclear Waste Policy Act?
    Mr. Sproat. As I understand it, when the Department 
reviewed the existing Nuclear Waste Policy Act and looked at 
areas that were in contention in the past--and one of the 
issues, one of the areas that has been in contention in the 
past is the allowed uses of the Nuclear Waste Fund associated 
with Yucca Mountain. For example, there has been litigation and 
case law about how could the Nuclear Waste Fund be used for 
interim storage, either onsite at utilities or offsite at 
another location?
    So this was an attempt to remove some ambiguities, at least 
as viewed by some people, around clarifying that the Nuclear 
Waste Fund could be used not only for constructing the 
repository but the infrastructure associated with the 
repository and the transportation systems needed to get the 
fuel from the plants to the repository.

    [Clarification from the Department of Energy: On page 63 of 
the transcript, line 11, Senator Bingaman questioned what 
authority the proposed legislation provides the Secretary as it 
relates to the use of the Nuclear Waste Fund that is not 
already authorized under the Nuclear Waste Policy Act. The 
proposed legislation would not expand the activities for which 
the Nuclear Waste Fund may be used. It would clarify, however, 
that ``infrastructure activities'' are included in the set of 
activities for which the Nuclear Waste Fund currently can be 
used. The proposed legislation does not identify interim 
storage as an infrastructure activity.]

    Senator Bingaman. So the interim storage facilities that 
would be decided upon would be an appropriate use under this 
new language, whereas that was not clear before?
    Mr. Sproat. I don't want to say that. I wouldn't say that, 
Senator. Let me make that clear. First of all, we're not asking 
for interim storage authority in this legislation.
    Senator Bingaman. I understand that.
    Mr. Sproat. And we're not including interim storage 
capability as part of infrastructure as we're defining it here. 
The issue of whether or not the Nuclear Waste Fund could be 
used for interim storage I think is--quite frankly, I just 
don't know what the current case law is regarding the 
acceptability of use for that. I know that that has been the 
subject of----
    Senator Bingaman. But are you saying that if we pass this 
proposed bill, that will be clarified----
    Mr. Sproat. Yes.
    Senator Bingaman [continuing]. That those funds will be 
usable for interim storage?
    Mr. Sproat. No. That point would not be clarified because 
we're not asking for interim storage capability or authority 
under this legislation. This is for what I call the auxiliary 
infrastructure around Yucca Mountain: the roads, the water, the 
electricity, that type of thing.
    Senator Bingaman. If the Congress were to enact the spent 
fuel storage provisions that are in the Energy and Water 
Appropriation bill that's coming to the Senate floor at some 
stage, how would that affect, if at all, your schedule for work 
on this repository?
    Mr. Sproat. It would depend on a couple different factors. 
One would be if the responsibility to site and build those 
facilities would come into my organization. Clearly that would 
divert a lot of management attention and technical attention 
away from the Yucca Mountain project, if we were given that 
responsibility, and I have no idea whether that would come to 
us or to a different part of the Department.
    The second issue would be regarding the impact on the Waste 
Fund, and depending on how that interim storage capacity and 
capability was designed, built, how many different facilities 
were to be built, and if that was to be funded by the Waste 
Fund, as I believe the appropriations language currently reads, 
the financial impact on the long-term viability of the Waste 
Fund would have to be looked at. We just haven't looked at that 
yet.
    Senator Bingaman. My time is up. Mr. Chairman, thank you.
    The Chairman. Senator Bingaman, your last questions had to 
do with the appropriations bill?
    Senator Bingaman. Just that last question, yes.
    The Chairman. That last question, yes. Thank you.
    Senator Craig.
    Senator Craig. Thank you, Mr. Chairman. Let me make an 
observation and then I'll ask one question.
    Within the last couple of months oil has surged to $75 a 
barrel, gas has soared to $3.25. I was out Tuesday evening 
filling my car at $3.25 a gallon. I guess that's the bad news, 
but ironically enough, in that we have found some good news.
    Mr. Chairman, gas prices soared to $3 a gallon and this 
week you, the Senate, we passed a bipartisan piece of 
legislation to allow drilling in an area that a year ago was 
totally and politically off limits to touch, out in the gulf; 
something that a year ago, if we had been debating EPAct on the 
floor and that were an issue within it, there would have been 
an amendment to block it, it might have passed.
    It has been an extremely hot few weeks that we're now into. 
PEPCO just announced that it had metered the largest amount of 
use of power in this region in its history yesterday. Is that 
good news or bad news?
    What I am trying to suggest to this committee and for the 
record, Mr. Chairman, is that times change and situations 
change, and right now we're struggling with the reality of this 
country awakening to our failure to bring about the levels of 
energy that it expects and it needs.
    And because of the two of you, and I mean that most 
sincerely, last year with the very forward-looking effort that 
you produced in EPAct, we are now having more movement toward 
getting this country back into production than we ever have, 
and part of that is nuclear, a very large part of that. Twenty-
five reactors on the drawing boards. A year ago we couldn't 
have even dreamed of that happening, but it's out there today.
    And, as a result of that, I'm suggesting that the 
circumstances of today are changing the political realities of 
tomorrow. Circumstances of the last 12 months changed the 
political reality on the floor of the U.S. Senate just this 
week. Mr. Chairman, you were far-sighted enough to grab that 
opportunity and move us in the right direction and build a 
majority to do that.
    As we march down this road toward a greater nuclear future 
for our country, I'm extremely concerned about the issue at 
hand that is reflective of where we go with licensing, and the 
issue of waste confidence and how we get there, and what's real 
and what isn't real, and what is expected of us, and more 
importantly what the public and the interests involved expect.
    The minority leader was just before us a few moments ago 
and he ultimately said no to Yucca Mountain. Can we write 
legislation then, Mr. Chairman, that says that the Congress is 
convinced that there will be a solution to nuclear waste? I 
think we can, but that's a struggle, and we all know that. I 
don't know if tomorrow or if next year the answer will move 
from no to maybe on the part of the minority leader, but I 
doubt it. But clearly I think the public, if they are saying no 
today, after this summer will be ready to say maybe.
    $3 gas changed the politics on the floor of the Senate this 
week. Unprecedented heat across America today and yesterday and 
the last couple of weeks, and an unprecedentedly hot summer 
around the world, I think are going to allow some of our 
environmental friends who are concerned, as most of us are, 
about climate change, to be much more willing to work with 
Congress in a positive and productive way to resolve the issue 
and to make sure that we have a clear path forward.
    I am suggesting that in what has been proposed to us in the 
bill that we have before us today is something that we have to 
work on in a very progressive fashion, and I applaud your 
leadership, Mr. Chairman, not only in finding a permanent 
geologic repository but pushing ahead the reprocessing that is 
necessary in the long term. And in the long term reprocessing 
has a waste stream, and that will have to go somewhere. That 
may be an opportunity that even the Governor of Nevada would 
see as less threatening than he sees it today, as expressed by 
his representative before the committee.
    So what I think you're doing and what I appreciate you 
doing for our future energy needs is to have both the Congress 
ready and the issues ready, because the public attitudes are 
changing out there as America tries to figure out what went 
wrong and why all of a sudden they're having to reallocate 
their personal household budgets beyond where they thought they 
would have to go.
    With that, my question, and I ask this of the panelists: 
Lack of waste confidence is seen by the industry as a potential 
impediment in licensing new nuclear reactors. Do you believe 
that legislating waste confidence will be enough to license new 
reactors, or do you think it is important for Yucca Mountain to 
be a more certain path in that combination of issues?
    Mr. Beasley. If I could, Senator, I'd like to begin with 
that question.
    Senator Craig. Mr. Beasley.
    Mr. Beasley. From an industry point of view, I think it's 
going to take two things. First of all, this bill I think makes 
a very positive step in the direction of waste confidence, but 
I also think that we need to couple that with significant 
progress, sufficient progress toward bringing Yucca Mountain to 
fruition, toward bringing Yucca Mountain to the final 
repository that we have said it was going to be since 1982.
    Mr. Sproat. I would say the Department agrees with Mr. 
Beasley on this point, exactly.
    Senator Craig. I didn't hear you.
    Mr. Sproat. I would say the Department agrees with Mr. 
Beasley on this point, exactly. It requires both.
    Senator Craig. Anyone else wish to comment on that 
question? If not--yes?
    Mr. Fettus. Senator, thank you. The problem that we have 
with S. 2589's deeming that the waste confidence rule is now 
essentially codified and in law, what it would do, it would 
essentially say Congress says there will be this, X. And that 
codifies something that may be true, or it codifies what may be 
a fiction. We don't know. But it takes it out of the hands of 
any scientific or potential debate or new analysis.
    In the original decision that elicited the waste confidence 
rulemaking by the NRC, the D.C. Circuit very, very carefully 
did not insert itself into matters that were beyond its 
technical competence. It said Congress has decided to trust 
these technical disputes to the NRC, and they remanded it back 
to the agency to deliberately and carefully go forward.
    Senator Craig. What issue was that? What case was that?
    Mr. Fettus. This case was, the original case, I'm giving 
you the cite, was a Minnesota case, the State of Minnesota 
versus the NRC, and I will provide your staff with the cite 
promptly after the hearing. It was a 1979 case. Sorry, 602 F.2d 
at 412. And it was a D.C. Circuit case.
    The Chairman. What's the purpose of your discussion in that 
regard? What were you telling us?
    Mr. Fettus. I'm telling you that the good Senator was 
asking what kind of confidence do you need, and I'm saying 
Congress shouldn't be in the business of arbitrarily providing 
that confidence. That confidence should remain where it is 
right now, with the NRC looking at the science and making a 
decision.
    Senator Craig. Okay. Thank you, Mr. Chairman. Gentlemen, 
thank you. Oh, excuse me. Yes, Mr. Virgilio?
    Mr. Virgilio. Thank you, Senator. I would just say, on 
behalf of the NRC, we believe that Congress has the 
information, the capacity, and the opportunity and authority to 
make the decision on waste confidence. The basis that we see in 
section 9 of the legislation is consistent with some of our own 
staff thinking, and we would not object.
    Senator Craig. Thank you.
    Mr. Loux. Senator, I guess we would like to associate 
ourselves with Mr. Fettus' remarks. We believe it's better left 
to the agency that knows best about health and safety, and not 
the Congress.
    Senator Craig. My only comment back to you on that 
statement, and I say this in as nice a way as I can.
    Mr. Loux. I'm sure.
    Senator Craig. I don't know that you have credibility 
before this committee. Your job description is such, and you so 
stated it before the committee last time, your purpose is to 
kill Yucca Mountain, period.
    Mr. Loux. True.
    Senator Craig. In that status, can you have any objectivity 
at all? I doubt it, because you have a mission.
    Mr. Loux. Certainly as much as anyone who is advocating it, 
Senator.
    Senator Craig. I see. Well, that's how I believe your 
testimony to be. If your mission and your job and your paycheck 
is for one purpose only, your objectivity is tied to that. 
Thank you.
    Gentlemen, thank you all very much for your testimony as we 
work our way through this issue. Mr. Chairman, thank you.
    The Chairman. Senator Craig, did Mr. Virgilio respond? He 
had his hand up. Did he have an answer?
    Mr. Virgilio. Yes, I did. Thank you, sir.
    The Chairman. I thank you for your comment. I heard what 
you said. I didn't hear the question. Yes, I understand.
    Let me see. I have a lot of questions. I'm going to submit 
them to you all. But I'm beginning to, the more I look at the 
cost for interim storage, whether you call it interim storage 
by virtue of it being a plan for interim storage or whether 
it's just interim storage because you have not changed it from 
where it is up alongside a reactor to something else, that time 
frame is getting longer and longer no matter which plan you 
talk about, in that the waste is going to be around a long time 
for people to have to pay for it, and the consumer is the one 
paying for it now.
    That's what prompted us to do something in the 
appropriation bill, to see if we could move in the direction of 
something that was not a huge new interim storage that was 
unachievable, where you had to go out and find three sites and 
plow up the country, but rather to look at it from the 
standpoint as we did in the bill.
    Mr. Sproat, you know we said that we're going to take it 
all over and own it, so immediately the consumer is not going 
to pay for it anymore. We got rid of that, right? The U.S. 
Federal Government is responsible for that. We took the cap off 
the trust fund, so we had the trust fund to spend. And then we 
said let's see if we can move around within States and make 
some readjustments here and there.
    In any event, even if this plan works, which there is more 
and more negative testimony about whether we could get it done, 
we're going to be 40 years moving it because we can only move 
3,000 tons a year, as a matter of what has been told to us. 
That's the capacity of the United States, on its railroads and 
other things, to move it. Is that a correct statement?
    Mr. Sproat. I believe it is, Senator.
    The Chairman. So that's a long, long time. In my opening 
remarks, I said we'd still be moving it, if everything went 
well, and even if we expanded the capacity to 240,000 tons 
instead of 70,000, we would still be moving it past the year 
40, which means it would be in an interim status for a huge, 
long, long period of time.
    Now, Mr. Sproat, as an expert, doesn't that fact that 
that's going to happen in all events give some life to the 
notion that recycling is really important?
    Mr. Sproat. Yes, Senator, it does. I believe recycling is 
very important for a number of reasons. Interim storage, the 
need for interim storage, when you look at the issue of 
reducing the Government and the taxpayers' liability associated 
with nonperformance, is obviously one consideration. Obviously 
the economics of nuclear power in the future is really, in my 
mind, is the key driving issue around recycling and making sure 
we have enough uranium and enough nuclear fuel to power the 
future reactors. That's probably the major driver, I would 
think, in terms of----
    The Chairman. Well, a secondary if not major driver is, you 
dramatically alter the waste load, too. You don't have the same 
kind of waste, right?
    Mr. Sproat. No, that's correct, you would not have the same 
type of waste.
    The Chairman. Much smaller quantity, much smaller in 
toxicity. You need to establish in between there, which you 
would have to, a breeder reactor, which I note the 
distinguished Senator from Nevada today said we probably made a 
mistake. He was alluding to the breeder reactor. I think he's 
understanding what's going on here. If we had had the breeder 
reactor, the Clinch River breeder reactor, we would be looking 
at a real fix in terms of the technology for changing waste to 
a much smaller quantity to put in this facility you're 
licensing.
    Mr. Sproat. Well, the technology to transmute is still 
somewhat theoretical and undemonstrated, so there's questions 
of how long that will take to allow us to get the point where 
we have a commercially viable process that will allow us to 
transmute and actually come up with a smaller volume out of the 
waste stream.
    And so I just want to make sure that as we look at the 
issues associated with recycling and interim storage, 
anticipation of recycling and volume reduction, that it really 
is an economic discussion that has to be based on the time 
frames that we can reasonably expect to get to commercially 
viable processes which allow us to do this, because those 
processes are not commercially available today.
    The Chairman. Mr. Sproat, you are not correct in what you 
say. Transmutation, I am not talking about transmutation. I'm 
talking about the French process using MOX as a source, as a 
means. That's not transmutation. They are able to handle 3,000 
tons a day. By accident, it's the same equivalent amount. You 
run it through their machine, it comes out as a different 
process.
    Mr. Sproat. Yes, it does.
    The Chairman. And that process, the thing that comes out 
there does not require transmutation.
    Mr. Sproat. That's correct, but the volume reduction, 
significant volume reduction, does require some transmutation.
    The Chairman. Well, the volume reduction can come from 
reusing that fuel that comes out of that MOX facility, plus 
having a----
    Mr. Sproat. A chemical process that can----
    The Chairman. Yes, plus a breeder reactor attached onto it. 
That's not transmutation, and that reduces it dramatically, 
doesn't it?
    Mr. Sproat. That's correct.
    The Chairman. I think that will be the proposal that will 
be forthcoming, believe it or not, this year, with the $250 
million that we have appropriated for GNEP, Senator Craig. I 
think the administration plans to ask for a plan for what you 
called transmutation, I would call it recycling.
    Mr. Sproat. I understand.
    The Chairman. That would be over on the side. You ought not 
be objecting.
    Mr. Sproat. Certainly not. I'm not objecting to that at 
all.
    The Chairman. It doesn't take the place of this, but it 
sure is an interim storage--it says to interim storage, there 
may be a solution for that interim storage, for a lot of it, 
besides Yucca, at some point in time.
    Mr. Sproat. Yes.
    The Chairman. It may go another way.
    Mr. Sproat. That's absolutely correct.
    The Chairman. I think it will. I mean, if it doesn't, we're 
in bad shape, in my opinion.
    Let me see. I had one for Mr. Wright. This week FERC 
approved a $16 million increase for the owners of Yankee, a 
shut-down reactor, to reflect the cost of the spent fuel 
storage before 2010. I guess you might get that soon. It will 
cross your desk when you read the news.
    In 2004 Yankee Rowe estimated that its damage for 
government failure to meet its 1998 deadline to move fuel would 
be $231 million if Yucca Mountain opened in 2010 and all the 
fuel moved by 2020. Today we have heard that Yucca will open in 
2017. That's the earliest date, and this is just one plant I'm 
talking about.
    Mr. Wright. Yes.
    The Chairman. So, Mr. Wright, today FERC is passing those 
costs along to the consumer. Is this an acceptable solution? If 
not, what do you suggest we do about it?
    Mr. Wright. Well, Mr. Chairman, I have not read about that 
yet because I haven't been in the office.
    The Chairman. I hope it's understandable, what I said.
    Mr. Wright. I would like to make just a couple of points. 
In South Carolina already, the Savannah River sites there, I 
kind of think we know a little bit about what interim storage 
is, not that we want to be permanent, but we do understand that 
we do have the waste there.
    I think that what you're trying to accomplish is to turn 
waste into a resource, which we're for. And I believe that the 
association that I'm speaking for and my State would agree with 
that, whether it be a MOX facility or any other type, because 
it would reduce ultimately the waste that would go into Yucca 
Mountain.
    I think that what we're curious about is that while you're 
talking about the interim storage facilities proposed, there 
are two facilities that haven't been addressed. One is actually 
at Yucca, and the second is the private fuel storage facility 
in Utah, that haven't made the discussion, and we're just 
curious as to that. We'd like to maybe see some discussion take 
place there, too.
    But for the ratepayer it's all about keeping costs low. 
That's what it's about, and anything that you, this committee 
can do and the Congress can do to affect that is going to be 
well received by utility commissioners and by customers around 
the country. So, I mean, not to dodge your question 
specifically about the Maine Yankee thing, but it doesn't have 
a lot for me in South Carolina.
    The Chairman. All right. I think that some of you asked 
that your statements be made a part of the record as you 
talked, and I didn't do it as a matter of record. I'll do that 
now, for all those statements.
    I yield now to Senator Bingaman.
    Senator Bingaman. Thank you, Mr. Chairman. I just wanted to 
do a followup question. I asked you, Mr. Sproat, about whether 
this legislation authorized the construction of this railroad, 
and I think you said it did not.
    Mr. Sproat. That is correct.

    [Clarification from the Department of Energy: On page 62 of 
the transcript, line 3, and page 79, line 20, Senator Bingaman 
asked if the proposed legislation S. 2589 entitled the 
``Nuclear Fuel Management and Disposal Act'' would authorize 
the construction of the railroad. The proposed legislation does 
not authorize construction of the rail line to Yucca Mountain, 
it merely clarifies that receipt of the repository construction 
authorization from the Nuclear Regulatory Commission is not a 
prerequisite for commencing construction of the rail line. The 
Department still would need to comply with all applicable legal 
requirements, including those established by the National 
Environmental Policy Act, in order to proceed with construction 
and operation of the rail line.]

    Senator Bingaman. I'm reading over on page 14 and 15 of the 
bill, and it seems to me to say very specifically that it does. 
It says at any time before or after the Commission issues a 
final decision on an application from the Secretary, under this 
subsection, ``the Secretary may undertake infrastructure 
activities,'' and then it goes on to say ``including 
infrastructure activities such as'' and the third one down is 
the construction of a rail line to connect Yucca Mountain with 
the national rail network.
    Mr. Sproat. Senator, the intent of that section is to make 
it clear that the environmental review associated with building 
that railroad is a connected activity associated with licensing 
Yucca Mountain, and it is not under the purview of the NRC. In 
other words, we don't need an NRC license to build the 
railroad, and the NRC doesn't need to conduct the environmental 
review of the railroad. It is not intended as an authorization 
to build the railroad.
    Senator Bingaman. I see.
    Mr. Sproat. That's the intent. I can't speak to whether or 
not the words are--what they do or don't do, since I'm not an 
attorney.
    Senator Bingaman. Okay. Well, we'll need to look at that 
and be sure that it does not in fact constitute an 
authorization for construction of the railroad, because I would 
read it the other way right now, but I appreciate that.
    That's all I had. Thank you very much.
    Senator Craig [presiding]. There are no further questions 
from those of us of the committee, and we thank all of you 
again for being with us. We will be submitting some questions 
to you for response in writing, for the record, and again we 
thank all of you for your focus on this issue.
    With that, the committee will stand adjourned.
    [Whereupon, at 12:28 p.m., the hearing was adjourned.]

    [The following statement was received for the record:]

 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 S. 2589, to 
enhance the management and disposal of spent nuclear fuel and high-
level radioactive waste, to ensure protection of public health and 
safety, to ensure the territorial integrity and security of the 
repository at Yucca Mountain, and for other purposes.

                             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 fast track 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. 2589 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 be 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.
    The DOE recently announced a new schedule to begin receiving SNF 
and HLRW at the permanent repository by March 31, 2017. As stated by 
Ward Sproat, Director, Office of Civilian Radioactive Waste Management 
during recent hearings, this schedule can only be achieved by, ``. . . 
the enactment of pending legislation proposed by the Administration,'' 
that includes the reclassification of 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' 
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 
conservatively 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.
---------------------------------------------------------------------------
    \1\ National Conference of State Legislatures' Report, January 
2000.
    \2\ U.S. Department of Energy Report to the Committees on 
Appropriations, January 2001.
---------------------------------------------------------------------------
    Furthermore, the DOE has safely and successfully made more than 
4,835 shipments to the Waste Isolation Pilot Plant (WIPP) in New Mexico 
as of July 24, 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 WIPP 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.
---------------------------------------------------------------------------
    \3\ Waste Isolation Pilot Plant Information Center, May 8, 2006.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \4\ Nuclear Regulatory Commission Testing Requirements, 10 CFR 
Sections, 71.61, 71.71, and 71.73.
---------------------------------------------------------------------------
                               CONCLUSION

    Chairman Domenici, we respect your long standing leadership in 
addressing nuclear issues and nuclear waste policy. The viability of 
the nuclear waste disposal program will only succeed with your 
continued support and strong leadership in the U.S. Senate.
    The members of the NWSC strongly urge you to work with House Energy 
and Commerce Committee, Chairman Joe Barton, to implement a long-term 
solution by fast tracking S. 2589 and H.R. 5360 in the 109th Congress 
that helps to ensure the DOE meets the 2017 deadline; reform the annual 
funding mechanism; implement a timely solution to the development of 
transportation infrastructure system plans and a repository facility 
that accepts material in existing and future NRC-licensed canisters and 
Greater-Than-Class-C waste. Taking title of and stranding SNF and HLRW 
indefinitely across the nation is not an option. The members of the 
NWSC are supportive of a recycling program and new nuclear power 
plants. However, these programs do not diminish in any way the need 
for, or the urgency of, a permanent geologic repository at Yucca 
Mountain. On the contrary, the Yucca Mountain permanent repository is 
still vitally important to moving SNF and HLRW from defense and 
commercial sites that cannot be recycled. Additionally, 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.
    We urge members of Congress 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 fast track S. 2589 and H.R. 
5360 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.

                                APPENDIX

                   Responses to Additional Questions

                              ----------                              

          Responses of DOE to Questions From Senator Domenici

                            PROGRAM SCHEDULE

    Question 1. In your testimony you state that the ``Department 
announced its plans to submit a License Application for the repository 
to the NRC by June 30, 2008, and to initiate repository operations in 
2017. This opening date of 2017 is a ``best-achievable schedule'' and 
is predicated upon enactment of the pending legislation.''
    Does the Department's plan account for litigation by the State of 
Nevada?
    Answer. No. The Department's schedule is the ``best achievable 
schedule'' for the licensing, construction, and start of operations of 
Yucca Mountain and does not account for litigation by the State of 
Nevada. The Administration's proposed legislation contains provisions 
that would limit the potential for delays.

                           NUCLEAR WASTE FUND

    In your testimony you state that the ``most important factor in 
moving the Yucca Mountain Project forward is the ability of the 
Department to have access to the Nuclear Waste Fund to support the cash 
flows needed to implement the Project.''
    Question 2a. If the Congress were to take the Nuclear Waste Fund 
off-budget, in the department's view, would Congress be forfeiting its 
oversight responsibility as many have said, yes or no?
    Explain your answer.
    Answer. No. If Congress were to take the Nuclear Waste Fund off 
budget it would not forfeit its oversight responsibility. How Congress 
would exercise that responsibility would be dependent on the details of 
the statutory provision that took the Nuclear Waste Fund off budget. 
However, the funding reform provisions outlined in the Administration's 
legislation do not propose to take the Nuclear Waste Fund off budget. 
The Administration's proposal would still require an annual request of 
funds by the Department, and Congress would retain authority to 
annually appropriate funds, above or below the request. The proposal 
would permit fees annually paid by utilities to offset the funds 
appropriated, which is consistent with the intent of the Nuclear Waste 
Policy Act. By offsetting the appropriation with a direct revenue 
source, the Department's request would not have to compete for limited 
discretionary resources.
    Question 2b. If you had access to the corpus of the Nuclear Waste 
Fund, would Congress be forfeiting its oversight responsibility?
    Explain your answer.
    Answer. No. The Department would expect Congress to provide access 
to the corpus in a manner that provided for Congressional oversight.

          S. 2589 ``NUCLEAR FUEL MANAGEMENT AND DISPOSAL ACT''

    In your testimony you state ``the bill would withdraw permanently 
from public use approximately 147,000 acres of land in Nye County, 
Nevada.''
    Question 3a. In developing the land withdrawal language, did the 
department consult with the Department of Defense?
    Answer. Yes. The Department consulted the Department of Defense, 
along with other affected Federal agencies, during the development of 
the Administration's legislative proposal.
    Question 3b. In the departments communications with the DOD were 
you told that the land withdrawal would interfere with training at 
Nellis Air Force Base?
    Answer. The Department of Defense did not express concern that the 
land withdrawal would negatively impact or interfere with training 
activities at Nellis Air Force Base.
    The committee has received more input on the transportation 
section, section 7 of S. 2589 than any other section. This 
transportation section would make clear that the Secretary of Energy 
can make the determine the extent to which any transportation done in 
carrying out the Secretary of Energy's functions under the Nuclear 
Waste Policy Act would be regulated exclusively under the Atomic Energy 
Act of 1954.
    Question 4a. Isn't it true that the Department has a long history 
of cooperation with the states on transportation issues?
    Answer. Yes. The Department has successfully transported nuclear 
and other hazardous materials for decades and has actively involved 
States and Tribes in the planning and execution of those shipments.
    Question 4b. If the transportation provision in this bill was 
passed, do you plan to do business any differently in terms of 
cooperation with the states?
    Answer. No. The Department intends to continue its current 
collaborative process with States and Tribes in the planning and 
execution of shipment of spent nuclear fuel to Yucca Mountain.
    Question 4c. Will [sic] provide to this committee in the next two 
weeks a budget estimate for the Yucca Mountain project?
    Answer. We anticipate having the revised budget estimate and cash 
flow available to provide to the Committee by the end of calendar year 
2006.

            Responses of DOE to Questions From Senator Craig

                          NEW NUCLEAR REACTORS

    Question 1. How many states currently prohibit construction of new 
nuclear reactors before a repository is completed?
    Answer. The Department is aware of eight States which currently 
prohibit the construction of new nuclear power plants until there is an 
approved Federal disposal facility. These States are California, 
Connecticut, Illinois, Kentucky, Maine, Oregon, Wisconsin and West 
Virginia.

                            INTERIM STORAGE

    Question 2. Could the DOE successfully implement a storage program 
well before YM could begin accepting waste? At what cost?
    Answer. The cost and the time required to site, license and build 
an interim storage facility (ies) would depend on the size, location, 
number, and available appropriations for funding these projects, as 
well as the transportation routes available to those locations. If such 
an effort were to be pursued in addition to the reforms contained in 
the Administration's proposed legislation, however, it is unlikely that 
such a facility would be available appreciably before the repository. 
Moreover, without separate and additional funding for interim storage 
siting, design, licensing, construction and operations and overall 
funding reform for the Program, the Department would not have 
sufficient resources, both human and financial, to establish interim 
storage facilities and still meet its 2017 target for beginning to 
accept waste for disposal at the Yucca Mountain repository.
    The Nuclear Waste Policy Act (NWPA) limits the manner in which it 
can undertake interim storage of commercial spent nuclear fuel (SNF) 
destined for the Yucca Mountain repository. Subtitle B (Interim Storage 
Program) of the NWPA provides authority for interim storage of SNF. 
That provision, however, limits the quantity of SNF that the Department 
could store on an interim basis to 1,900 metric tons and cannot be 
used, because the authority under Section 136 of the NWPA to contract 
for interim storage expired in the early 1990s.
    Under Subtitle C of the NWPA, the Department presently has 
authority to establish a monitored retrievable storage (MRS) facility, 
but the construction of an MRS cannot begin until the Nuclear 
Regulatory Commission issues the construction authorization for a 
repository at Yucca Mountain and the capacity of the MRS is limited to 
no more than 10,000 MTU until the repository is operational with a 
maximum capacity of no more than 15,000 MTU. As a result, the 
development of an MRS would not allow DOE to begin storage appreciably 
before Yucca Mountain could begin accepting waste. If Congress were to 
consider changing these limitations on interim storage, we would look 
forward to working with Congress in evaluating interim storage 
alternatives as part of a comprehensive approach to addressing the 
Nation's nuclear waste storage needs. The Department continues to 
emphasize, however, that interim storage is a temporary solution and is 
not a substitute for permanent geologic disposal.
    Question 3. Do you think that establishing a storage program, 
whether under the direction of OCRWM or as a separate directorate 
within DOE [as proposed by Domenici-Reid for CAP], would divert 
attention and resources away from YM?
    Answer. See response to Q2 above.
    Question 4. Do you know of any states that have expressed interest 
in hosting a CAP facility?
    Answer. The Department is not aware of any State that has expressed 
an interest in hosting a Consolidation and Preparation (CAP) facility 
as proposed under the Domenici-Reid legislation.

                             ANNUAL FUNDING

    Question 5. What level of annual funding do you estimate OCRWM will 
need to open the repository at Yucca Mountain by 2017?
    Answer. We are currently re-evaluating the cash flows required for 
meeting the March 2017 ``best achievable schedule'' and anticipate 
providing revised cash flows to the Committee by the end of calendar 
year 2006.

               GNEP AND YUCCA MOUNTAIN 70,000 MTHM LIMIT

    Question 6. Would you please explain the connection between GNEP 
and the legislated limit of 70,000 metric tonnes of waste to be 
disposed at Yucca Mountain?
    Answer. The Nuclear Waste Policy Act limits the repository to the 
70,000 metric tons of heavy metal that were contained in the original 
spent nuclear fuel (SNF) assemblies prior to and regardless of 
reductions in volume (size) that may result from recycling through the 
Global Nuclear Energy Partnership (GNEP) processes. Without a change in 
this provision, such as that proposed by the Department, recycling 
would have no effect on the amount of SNF that could be disposed of in 
the Yucca Mountain repository.

                        YUCCA MOUNTAIN SCHEDULE

    Question 7. The DOE has received a great deal of criticism for 
missed deadlines and inadequate planning. What do you believe is 
necessary to prevent such problems from recurring?
    Answer. Passage of the Administration's proposed legislation will 
provide stability, clarity, and predictability for the Program to meet 
the 2017 repository operating schedule. The legislation simplifies and 
expedites the regulatory framework and provides adequate and 
predictable funding source, and authorizes the timely development of 
vital infrastructure activities to start operations in 2017.
    Question 8. To what degree do you think opposition from the state 
of Nevada has delayed this project?
    Answer. While opposition by the State of Nevada certainly has 
impeded progress of the Yucca Mountain Project, it is hard to quantify 
the delay attributable to such opposition.
    Question 9. Where do you think the project would be at this time if 
adequate funding had been provided for the last ten or fifteen years?
    Answer. It is likely that the Department would have commenced the 
Nuclear Regulatory Commission licensing process for the repository and 
possibly would have begun or even completed construction of the 
repository.

               SCHEDULE FOR TRANSPORTATION INFRASTRUCTURE

    Question 10. Do you believe DOE will have the necessary 
transportation infrastructure in place when YM is ready to accept waste 
as early as 2017? Can you do so with your existing resources?
    Answer. The Department's recently announced schedule includes the 
development of the necessary transportation infrastructure to support 
waste acceptance operations at Yucca Mountain in 2017, assuming the 
adoption of the Administration's legislation. Without adoption of the 
Administration's legislation the Department will not have the stable 
and predictable funding needed for large transportation procurements 
such as the rail line.

                     WORKING WITH STATES AND TRIBES

    Question 11. If the regulatory provisions in this bill were passed, 
would DOE do business any differently in terms of cooperation with the 
states, tribes and local governments?
    Answer. No. The Department intends to continue its current 
collaborative process with States, Tribal and local governments on the 
planning and execution of shipment of spent nuclear fuel to Yucca 
Mountain.

                            WASTE ACCEPTANCE

    Question 12. Will Navy & DOE Spent Nuclear Fuel and High-level 
waste currently being stored in Idaho be received at the Initial Fuel 
Handling Facility as soon as it opens?
    Answer. The Initial Fuel Handing Facility is being designed to 
handle Navy and most forms of DOE and high-level waste. The 1995 
settlement agreement between DOE, the Navy, and the State of Idaho 
provides that naval spent fuel stored in Idaho shall be among the early 
shipments of spent fuel to the first repository or interim storage 
facility.

                                  TADS

    Question 13. Are there any R&D needs that must be addressed before 
deploying the Transport, Aging, and Disposal (TAD) canister, and if so 
what is the schedule for addressing these needs, and are adequate funds 
available?
    Answer. No, the Department does not believe there are any R&D 
issues to be addressed before deploying the transport, aging, and 
disposal canister.

            Responses of DOE to Questions From Senator Allen

    Mr. Sproat, as you are aware, the Department is facing over 60 
lawsuits by current and former nuclear power plant operators seeking 
damages caused by the Government's failure to construct a permanent 
nuclear waste repository and place it into operation by 1998, as the 
Government had contractually agreed to do. The Government has settled a 
couple of these suits, lost a couple of these suits, and has yet a 
[sic] win a single one. As I understand it, most (if not all) of these 
lawsuits have withstood motions to dismiss by the Government, and 
therefore all that remains is the determination of damages.

    [Note: These questions were submitted at the request of a Virginia 
constituent:]

                               LIABILITY

    Question 1. Assuming DOE were to lose all of the suits currently 
pending on this topic in the Claims Court, what is the Government's 
projected aggregate liability as of today?
    Answer. The plaintiffs in the litigation have not fully quantified 
damages claimed in these cases nor has the Government estimated what 
amount may be awarded by the Court should the Government not prevail in 
any of these cases.
    Question 2. Assuming, as has been projected, that the permanent 
repository is not completed until 2017, what would the Government's 
projected aggregate liability be as of 2017?
    Answer. Based upon the settlements entered into by the Government 
to date, the Department has estimated the Government's potential 
liability in the spent fuel lawsuits to be on the order of $7 billion, 
assuming the Yucca Mountain repository begins operation in 2017.
    Question 3. Has the Department formally assessed this contingent 
liability, i.e. ``handicapped'' its chances of losing or prevailing in 
these lawsuits and estimated what the Government's losses might be?
    Answer. The government assumes it will prevail in all its cases and 
does not ``handicap'' its chances of losing or prevailing in lawsuits. 
For potential liability purposes, Department has estimated the 
Government's liability in the spent fuel lawsuits, as noted in the 
previous answer.
    Question 4. What steps has the Department taken to mitigate this 
contingent liability, either retrospectively by exploring settlement 
options, or prospectively, by exploring ways to at least stay the 
mounting bill such as interim storage until the permanent repository is 
completed?
    Answer. The Department of Justice represents the United States in 
defending these lawsuits. The Department has actively supported the 
Department of Justice in the ongoing litigation, as well as in 
negotiating settlements of the spent fuel lawsuits as an effort to 
limit the liability. The Department of Justice has entered into three 
settlement agreements and negotiations are underway with several other 
contract holders.
    Question 5. You've stated publicly that you want to settle these 
cases. How exactly does a plaintiff in one of these Claims Court suits 
go about initiating a settlement process with the Government?
    Answer. The plaintiffs should have their attorneys contact the 
Government's attorneys at the Department of Justice to express an 
interest in entering into settlement discussions.
    Question 6. In your opinion, what impact does the Government's 
failure to resolve these outstanding claims have on the development of 
new nuclear construction?
    Answer. The ongoing litigation over the delay in spent fuel 
acceptance should have little or no impact on the development of new 
nuclear power plants. The Government's commitment to accept and dispose 
of all spent nuclear fuel generated by existing nuclear power plants 
remains unaffected by the temporary delay. The Government is prepared 
to enter into new contracts with owners of new nuclear power plants to 
dispose of spent nuclear fuel generated by these new facilities.

          Responses of DOE to Questions From Senator Bingaman

          S. 2589 ``NUCLEAR FUEL MANAGEMENT AND DISPOSAL ACT''

    Question 1. Please provide the Committee with a copy of each of the 
Public Land Orders and accompanying conditions or memoranda of 
understanding referred to in section 3(b)(1), the project right-of-way 
reservations N-48602 and N-47748 referred to section 3(b)(2), and the 
map referred to in section 3(c)(1).
    Answer. The following have been retained in committee files:

          1. Public Land Orders 6802 (best available copy) and 7534. 
        (Enclosure 1)
          2. Copies of Right-of-Way Reservations N-47748 (dated January 
        5, 2001) and N-48602 (please note that the most recent renewal 
        of ROWR N-48602 is dated April 8, 2004). (Enclosure 2)
          3. Map YMP-03-024.2, dated July 21, 2005, and entitled 
        ``Proposed Land Withdrawal.'' This map generally depicts the 
        proposed land withdrawal area boundaries. An electronic copy of 
        this map is also provided. (Enclosure 3)

    Question 2. Please provide the Committee with a list of the mining 
claims referred to in section 3(e)(2)(F)(ii).
    Answer. A copy of the Bureau of Land Management Mining Claim 
Geographic Report, dated August 15, 2006, is provided. This report was 
obtained from the Bureau of Land Management's LR-2000 on-line database.
    The Mining Law of 1872 is administered by the U.S. Department of 
the Interior, Bureau of Land Management. The official records related 
to mining claims are maintained by the Bureau of Land Management. 
(Enclosure 4)
    Question 3. Please explain the purpose and intended effect of 
section 3(e)(2)(F)(iv) [sec]. Is the Cind-R-Lite mining claim a ``valid 
existing right'' protected by section 3(a)(1)? If so, is it necessary 
to say that the claim ``shall not be affected by establishment of the 
Withdrawal''? Or is clause (iv) simply intended to exempt the Cind-R-
Lite mine from the mining prohibition in section 3(e)(2)(F)(I)?
    Answer. The proposed legislation recognized that valid existing 
mining rights occurred within the land withdrawal area. Section 
3(e)(2)(F) addresses mining rights. Subsection (i) precludes any new 
mining claim applications and provides a process for disposition of any 
existing non-patented mining claims. Subsection (ii) addresses the sole 
patented mining claim, belonging to Cind-R-Lite, which occurs within 
the land withdrawal area. Cind-R-Lite, a manufacturer of cinder blocks, 
holds Patent 27-83-0002 which is a 203-acre patented mining claim, the 
approximate location of which is shown on Map YMP-03-024.2. A patented 
mining claim is the result of the conveyance of fee title (surface and 
subsurface) to a parcel of land from the United States to a private 
claimant. As a result, the Federal government no longer holds title to 
this parcel. If necessary to meet repository mission, Subsection (ii) 
allows the Secretary, following consultation with the Secretary of the 
Interior, to acquire the mine through providing just compensation.
    As a ``patented'' mining claim, the operational Cind-R-Lite mine 
would be a ``valid existing right'' protected by section 3(a)(1). For 
that reason Section (e)(2)(f)(ii) is intended to protect that existing 
claim so that it ``shall not be affected by establishment of the 
Withdrawal.'' The mining prohibition in Section 3(e)(2)(F)(ii) is 
intended both to protect that existing operation and to exempt it from 
the mining prohibition.
    Question 4. Please explain the need for section 3(f). Why does the 
legislation need to hold the United States harmless from damages 
suffered in the course of mining activities in subsection (f), if 
mining is prohibited in subsection (e)?
    Answer. The mining prohibition in section 3(e)(2)(F)(i) is not 
absolute. It is subject to section 3(e)(2)(B), under which the 
Secretary, in theory, could authorize mining. Several unpatented mining 
claims exist within the Withdrawal's boundaries. The immunity provision 
in section 3(f) (which is fairly standard in other land withdrawal 
legislation) is intended to prevent taxpayer dollars from being used to 
pay for injury or damages resulting from any private mining, mineral 
leasing, or geothermal leasing activities that conceivably could be 
authorized within the Withdrawal.
    Question 5. Please explain the need for general land acquisition 
authority within the Withdrawal under section 3(g) if the Withdrawal is 
already owned by the United States.
    Answer. To the extent that there are private in-holdings within the 
Withdrawal, the land acquisition authority would permit the Secretary 
to acquire them. Such authority may be particularly important if the 
Secretary determines, among other things, that these private interests 
conflict with the construction and operation of the repository or that 
these interests interfere with the repository's ability to isolate 
waste from the human environment. Land acquisition authority is a 
useful tool that appears in other land withdrawal legislation.
    Question 6. Please identify the ``surface facilities'' that section 
4(a)(2) would exclude from the application for construction 
authorization. Would a storage or ``aging'' pad be a ``surface 
facility''?
    Answer. The term ``surface facilities'' is intended to include 
those facilities at the Yucca Mountain site that must be licensed by 
NRC and thus would include a storage or ``aging'' pad. The proposed 
legislation would not eliminate the need for these facilities to be 
licensed before they could be constructed and operated. It would merely 
make clear that they need not be included in the initial license 
application if not needed for initial operation of the repository.
    Question 7. Please define the term ``infrastructure activities.'' 
Are the items listed in clauses (i) through (iv) meant to be exclusive? 
Could a storage or ``aging'' pad be considered an ``infrastructure 
activity.''
    Answer. The term ``infrastructure activities'' refers to actions to 
support the construction or operation of the repository and which do 
not themselves require an NRC license. The items listed in section 
4(b)(3)(A)(i)-(iv) are examples. The list is not intended to be 
exclusive. Aging pads are not ``infrastructure activities.''
    Question 8. Please reconcile section 4(b)(3)(A)(iii), which lists 
``the construction of a rail line to connect the Yucca Mountain site 
with the national rail network,'' and the sectional analysis 
accompanying the bill, which said that ``section 4 would authorize the 
Secretary to undertake infrastructure activities . . . including the 
construction of a rail line . . .,'' with your statements at the 
hearing that section 4 would not authorize construction of the rail 
line.
    Answer. Section 4 does not authorize construction of the rail line. 
Rather, it makes clear that construction of the rail line may commence 
prior to the granting of a construction authorization for the 
repository.
    Question 9. Please explain the purpose and intended effect of 
section 4(c). What actions ``connected or otherwise relating to the 
repository'' does the Department anticipate taking ``outside the 
geologic repository operations are [sic]'' that will not require a 
license from the NRC?
    Answer. Section 4(c) would focus NRC's responsibilities under NEPA 
to all activities and facilities inside the Geologic Repository 
Operations Area (GROA) and to activities and the facilities outside the 
GROA requiring a license rather than non-nuclear matters outside the 
GROA that do not require an NRC license, such as the listed 
infrastructure activities. This section would not affect the NEPA 
responsibilities of DOE and other agencies with respect to these 
facilities and activities.
    Question 10. Please identify any conceivable ``infrastructure 
activities'' that may be ``necessary or appropriate to support 
construction or operation'' of the repository under section 5(b) of the 
bill that are not also ``necessary or incident to such repository'' 
within the meaning of section 302(d)(5) of the Nuclear Waste Policy Act 
of 1982.
    Answer. The proposed language in Section 5(b) is not intended to 
expand the scope of facilities and activities for which the Waste Fund 
may be used under the Nuclear Waste Policy Act. Rather, it makes clear 
that the Waste Fund can be used for infrastructure activities.
    Question 11. Please identify any transportation expenses that would 
be covered under the amendment proposed to be made by section 5(b) that 
are not already covered under section 302(d)(4) of the Nuclear Waste 
Policy Act.
    Answer. There are no transportation expenses that are not covered 
under the amendment or under Section 302(d)(4) of the Nuclear Waste 
Policy Act. The proposed language clarifies that costs incurred for 
transportation may include development of transportation infrastructure 
(i.e. a rail line) as well as costs associated with transportation 
operations. No new transportation infrastructure is contemplated by the 
amendment proposed by section 5(b) that was not implicit in section 
302(d)(4).
    Question 12. Please identify all waste streams ``owned by the 
Secretary'' that may now be subject to regulation under the Resource 
Conservation and Recovery Act or state hazardous waste laws, but would 
be exempt from such regulation if section 6(a)(1) is enacted.
    Answer. All Navy and DOE SNF, as well as DOE HLW, are potentially 
subject to claims that it is covered by RCRA. The intent of proposed 
section 6(a)(1) is to eliminate litigation over whether such material 
is covered by RCRA, because the use of NRC certified canisters and NRC 
regulation of the SNF and HLW at Yucca Mountain site makes RCRA 
regulations unnecessary to ensure safety.
    Question 13. Please identify all waste streams that may be covered 
by section 6(a)(2).
    Answer. Section 6(a)(2) is limited to waste streams during their 
transport to the Yucca Mountain site and during their storage and 
disposal at the Yucca Mountain site.
    Question 14. Please describe the status of the Department's efforts 
to obtain any air quality permits that may be needed for the repository 
from the State of Nevada.
    Answer. The Department has not filed applications for air quality 
permits to support repository construction. According to State of 
Nevada regulations, these applications can be filed no later than 12 
months prior to the requested start of construction. For repository 
construction, similar to other large construction projects, the 
Department expects to file a Class I Air Quality Permit application 
because of the projected emissions from air quality point sources 
(e.g., batch plants, generators, and various other diesel equipments). 
Under Nevada air quality regulations, actual assembly of this equipment 
can not proceed until issuance of the permit and equipment assembly 
must be completed no later than 12 months after permit issuance. The 
Department intends to file air quality applications approximately 18 
months prior to the anticipated repository Construction Authorization. 
To meet the Department's License Application and waste receipt 
schedule, the air quality permit must be issued prior to Construction 
Authorization. An additional permit, a Title V Air Quality Operating 
permit, must be obtained to support repository operation. Considering 
the delays, permit denials, and litigation that the Department has 
encountered in water right applications with the State of Nevada, the 
Department seeks to have air quality permitting actions remanded to the 
U.S. Environmental Protection Agency.
    Question 15. Please describe the status of the Department's efforts 
to acquire water rights that may be necessary for the repository from 
the State of Nevada.
    Answer. In 1992, the Department secured temporary water rights in 
the amount of 430 acre-feet per year expiring in April 2002. In 1997, 
the Department submitted to the Nevada State Engineer five applications 
for permits to permanently appropriate water in the amount of 430 acre-
feet per year. The State of Nevada requires the applicant to prove that 
adequate ground water resources are available, that there is no 
conflict with other existing water rights, and that the application is 
not detrimental to the public interest. In February 2000, the State 
denied the Department's permit applications on the basis that state law 
effectively prohibited the development of the repository and that, as a 
result, the requested use was detrimental to the public interest. The 
Department successfully appealed this decision, and the U.S. District 
Court remanded the issue to the Nevada State Engineer for further 
hearing. In 2003, the Nevada State Engineer again denied the 
Department's application based on a determination that the development 
of a repository was detrimental to the public interest. The 
Department's appeal of these decisions continues.
    It is also important to note that in 2002 the Nevada State Engineer 
denied the Department's request to extend its temporary water rights 
while the litigation was pending on the permanent rights. As a result, 
the Department's field activities at Yucca Mountain were significantly 
impacted for nine months. During this nine month period, the Department 
was forced to utilize only water that had been previously stored in 
tanks on site. Only limited operations were allowed to continue at the 
site. Additionally, other restrictions were put into place including 
the prohibition of site worker use of restrooms in favor of porta-johns 
and hand-wash stations, and limited field activities due to the 
inability to provide water for dust suppression as required under the 
State of Nevada issued Air Quality permit. The State Engineer at this 
same time also revoked a previously issued approval for a major aquifer 
test planned at the Alluvial Tracer Complex, approximately 15 miles 
south of the Exploratory Studies Facility. This test would have 
provided additional information on saturated zone flow and transport at 
the connection of the shallow alluvial and the volcanic water tables.
    In December 2002, the court recognized the Department's right to 
maintain the status quo during litigation and imposed a Joint 
Stipulation allowing for ground water pumping supporting potable water 
use. A similar agreement in June 2003 secured ground water for non-
potable use (e.g., scientific testing, and air quality dust abatement). 
To meet the requirements of 10 CFR 63.121, the Department must 
demonstrate to the NRC that water rights adequate to support 
construction and operation of a geologic repository have been secured. 
While the Department has affirmed that existing water is available, and 
that there are no apparent conflicts with other right holders, it is 
unlikely that the Nevada State Engineer will reverse previous rulings 
that a geologic repository is detrimental to the public interest of the 
people of Nevada.
    Question 16. In his prepared statement, Mr. Wright stated that 
``ratepayers have paid $25 billion in fees and interest'' into the 
Nuclear Waste Fund. Mr. Beasley stated that ``ratepayers . . . have 
paid over $27 billion into the Nuclear Waste Fund. . . .'' The 
Department has previously indicated that the ratepayers have paid 
$14.276 billion in fees, and interest on the balance has accrued in the 
amount of $10.572 billion. How much have the ratepayers paid? Who pays 
the interest? Is it fair to count the interest payments as ratepayer 
contributions?
    Answer. As of December 31, 2005, ratepayers have paid $14.276 
billion in fees, and interest on the balance has accrued in the amount 
of $10.572 billion. Interest is earned by the Nuclear Waste Fund 
through investment in Government securities. The interest earned by the 
fund is not considered a ratepayer contribution. Expenditures from the 
fund through December 31, 2005, have totaled $6.576 billion leaving a 
balance in the fund of $18.272 billion.
                                 ______
                                 
      Responses of David Wright to Questions From Senator Domenici

    Question 1. In your testimony you state that ``without the 
repository, spent nuclear fuel continues to accumulate and be stored in 
places that were never designed or permitted for indefinite storage. 
Spent fuel would be stored at 72 locations along rivers and lakes in 34 
States instead of in a more secure, well-designed repository.''
    Given the history of the program, are you confident that Yucca 
Mountain will open according to the new schedule in 2017?
    Answer. Sadly, based on past history of the repository program, we 
are not confident the repository will open in 2017. In the April 18, 
1983 Federal Register, DOE made this statement, ``The 1998 date (to 
begin permanent disposal of spent nuclear fuel) is called for in the 
Act, and we believe it to be a realistic date. Our performance will be 
judged by meeting that date.'' We are pleased and encouraged to have 
the new Director of the Office of Civilian Radioactive Waste Management 
so enthusiastic and committed to submitting the construction license to 
the NRC in 2008, but we have seen similar schedules before that were 
not met, for one reason or another. We have confidence he will do his 
best to be ready to submit the license in 2008. We agree with his 
cautionary forecast that there is ``zero probability that the 
repository will open in 2017 without the pending legislation,'' 
referring to S. 2589.
    Likewise, although we support the reform of the NWF appropriations 
process provided for in Section 5 of S. 2589, we are not optimistic of 
its enactment. There are two reasons for that outlook:

   Legislation pertaining to nuclear waste disposal tends to 
        not get passed in the Senate.
   We have concluded that many members of Congress like the 
        status quo in which, for example in FY 2006, 87 percent of the 
        NWF fee revenue gets to be used for other government purposes 
        unrelated to the Nuclear Waste Policy Act.

    Even if S. 2589 were to be enacted, we note the DOE disclaimer that 
the 2017 date is the ``best-achievable schedule.'' For example, it 
assumes the NRC license review will be complete in the three years 
provided for in the NWPA (a fourth year can be requested if needed.) 
Although there is a commendable pre-licensure exchange between DOE and 
the NRC, this will be a complex license such as has never been done 
before and we know there will be sustained involvement in the process 
by parties to the license that could lengthen the review. As a 
reference point, the license action for the existing technology spent 
fuel storage proposed by PFS in Utah, took eight years to be completed.
    We have yet to see the latest surface facility design for the 
repository, but both surface and subsurface construction will need to 
be well planned, executed and subject to licensing inspection 
requirements and could encounter any number of delays. Maybe it is 
possible to complete construction for initial repository operations in 
four and one-half years, as the latest schedule shows, but there is no 
history of building a geologic repository to give us confidence that 
that will be how long it takes at Yucca Mountain. We do not know, for 
example, whether the State of Nevada will cease to oppose the project 
once it is licensed by the NRC or it will continue its present policies 
unabated. That could make a difference, regardless of whether the 
construction proceeds smoothly or not.
    Question 2. What's NARUC's back-up plan should the project not open 
to receive spent fuel in 2017?
    Answer. NARUC and its utility commission members are not direct 
parties in spent fuel management. The parties directly involved are 
DOE, the owners and operators of the reactors and the Nuclear 
Regulatory Commission which licenses both reactors and on-site spent 
fuel storage. There is potentially a fourth party at the federal level. 
The Department of Homeland Security has maintained an interest in spent 
fuel storage at both active and shutdown reactor sites. The National 
Academy of Sciences has studied safety of spent fuel storage at reactor 
sites and has made recommendations to the NRC. There may be reasons 
that we are not privy to that may warrant certain actions to further 
protect spent fuel storage.
    We imagine the utilities would continue to add more dry cask 
storage if DOE does not meet the 2017 date. That simply means more 
liability for the government to pay damages with the open-ended 
lawsuits that have had judgments and the others that are still in 
litigation.
    Some State utility commissions have looked into some means of 
escrowing NWF fee payments in view of the government's partial breach, 
but the utilities that actually make the fee payments, have been 
reluctant to take such steps that might complicate the ongoing waste 
acceptance delay litigation with DOE or which might place their 
operating license in jeopardy. With over $25 billion having been added 
to the NWF in fees and interest, some State may want to press the 
escrow notion further. You can understand how helpless some States 
might seem in this.
    Question 3. If Yucca Mountain opens to receive spent fuel in 2017, 
how long can you (states) await shipment? 40 years? 50 years? 90 years?
    Answer. As stated earlier, this would be a matter among the 
utilities, the NRC and DOE. There may also be site-specific limits on 
how much spent fuel can accumulate. There is also the question of the 
service life of the reactors themselves that may have a bearing on 
decisions by the utility owners. From what we understand of the next 
generation of nuclear plants being considered, the new plant designs 
offer considerable technological and economic advantages that would 
likely be weighed by the owners. As far as the States are concerned, 
there would be at least two considerations. We would want to have the 
benefits of reliable and economic electricity generation, while having 
assurance that the legacy of spent fuel is well managed by the utility 
until the federal government fulfills its obligation to accept the fuel 
for either interim storage elsewhere, reprocessing or disposal--all of 
which are to be performed away from current reactor sites.
    I cannot forecast how all States and the public may feel about how 
long they can wait for spent fuel to be removed from present reactor 
sites if the repository is ready to accept spent fuel in 2017, but it 
would seem that if the repository does open then, it will show some 
promise that the disposal process has at last begun and then other 
measures might be taken. By then, we will know more about the technical 
and economic prospects for reprocessing. By then, DOE and NRC might 
have concluded that the full physical capacity of Yucca Mountain can be 
utilized if the 70,000 MT statutory limit is lifted.
    Looking 40 to 90 years ahead, it may become a matter of national 
security to consolidate spent fuel storage in a few government secured 
and operated central storage facilities to protect against future 
threat conditions that may arise.
    Question 4. How would you handle accumulations while waiting?
    Answer. Subject to site limitations and public concerns or 
acceptance, the utilities might continue to incur added costs to add 
additional dry cask storage (with the likelihood that the government 
will eventually be financially liable.) Some utilities might relocate 
and consolidate spent fuel storage at the PFS site or another that 
might be developed elsewhere. We would foster having the federal 
government take responsibility for its failure and develop and operate 
an interim storage facility.
    Maybe the Consolidation and Preparation facilities proposed in the 
FY 2007 Energy and Water Development appropriations bill in the Senate 
will have led to the establishment of State or regional interim storage 
facilities. That would put DOE more in charge of spent fuel management, 
but we are unable to foresee how Congress could authorize use of the 
Nuclear Waste Fund to pay for those interim storage costs --as the bill 
proposes--and still provide sufficient annual appropriations to make 
progress on the repository. We know the forecast revenue with 
confidence--short of some industry-wide reversal of production success. 
We do not know either the cost of the CAP program nor have we seen yet 
a projection of repository program needs to make 2017. Our hunch is 
that by around 2010, if the CAP approach meets some success, there will 
come a point at which simultaneous execution of the repository and some 
CAP storage will require more funds than the annual NWF revenue and the 
Congress will have to tap the NWF balance.

       Responses of David Wright to Questions From Senator Craig

    Question 1. Do you believe interim storage should be a priority for 
DOE?
    Answer. Yes, however it should be managed by a separate DOE 
organizational unit other than the Office of Civilian Radioactive Waste 
Management to avoid distracting OCRWM from developing the repository.
    It seems to us that DOE presently lacks a sense of obligation to 
mitigate the effects of its failure to begin waste acceptance in 1998 
and its partial breach of contracts. It is as though the matter has 
been turned over to the courts, whereas in the business world if a 
service provider is not meeting agreed performance terms of a contract 
there is a best practice by most responsible contractors to try to 
provide mitigation to help their customer work around the delay and the 
inconvenience it causes. Where that does not occur, there is always the 
threat or actual stopping of payments. Here we have a ``contractor'' 
(DOE) which is going to be at least 19 years late in meeting a 
contracted obligation, yet the customers are compelled by law to 
continue to make payments in advance of the promised service.
    We found the suggestion by the House Energy and Water Development 
Subcommittee two years ago to develop interim storage on DOE 
installations attractive and could have provided some storage relief on 
a timely and economic basis. The physical practicalities of setting up 
such a stopgap accommodation seem to be subordinate to political and 
financial considerations. We note that DOE seems able to ship and store 
foreign research reactor fuel at DOE sites rather routinely. Yet, DOE 
has foreclosed the possibility of doing the same for its utility 
``customers'' with which it has signed contracts.
    The failure to meet the NWPA 1998 waste acceptance mandate may not 
rise to the crisis proportions that DOE sometimes is drawn into to 
address, such as post-Katrina gas and oil supply disruption, the 2003 
electric blackout or the BP North Slope oil field pipeline shutdown. 
That may be because the nuclear industry is almost coping too well: it 
has not let the government's failure disrupt its ability to continue 
providing 20 percent of the Nation's electricity. That does not mean 
DOE should not seek to take reasonable (and not logistically difficult) 
measures to mitigate the consequences of the continued repository 
delay.
    Question 2. Do you believe that an interim storage plan can be 
implemented in a timely manner--that is, before Yucca opens and begins 
to accept waste?
    Answer. There is one possibility that would seem able to begin 
interim storage within this decade. The Private Fuel Storage LLC 
proposed spent fuel storage facility in Skull Valley, Utah was licensed 
in 2005 to provide temporary storage for up to 40,000 tons of spent 
fuel. In December 2005, PFS Chairman Parkyn wrote to Chairman Domenici 
and other congressional leaders offering to either have DOE take title 
to spent fuel now at commercial reactors and enter into a storage 
contract with DOE or have the utilities retain title to their fuel 
which would be stored at PFS with DOE reimbursing the utilities for 
their costs. The offer was made to provide storage for around $60 
million per year and to start in three years.
    PFS followed up by sending the offer to DOE. There has been no 
response that we are aware of, but the Deputy Secretary of Energy was 
quoted in a Utah newspaper in March 2006, saying, ``We have never 
really considered Private Fuel Storage as something consistent with our 
obligations to take spent fuel under the Nuclear Waste Policy Act.''
    While Sec. 313 of the Senate Energy and Water Development 
Appropriations bill seeks to develop interim storage in each State with 
a commercial nuclear reactor, the bill excludes from consideration 
storage in any State in which the NRC has authorized the construction 
and operation of a commercial spent fuel storage facility, which 
eliminates PFS. PFS is the only such facility that meets the conditions 
for exclusion. We recommend that exclusion be stricken and DOE be 
directed to investigate the possibility of using the PFS facility for 
interim storage.
    Can interim storage be put in place in a timely manner? Yes, it 
can. There are already 35 licensed dry-cask facilities around the 
country. The cask industry seems to have been readying to meet the 
expected orders to provide shipping and storage containers ever since 
the NWPA was enacted. The storage facilities themselves are not 
particularly complicated. Site selection is likely to be contentious, 
as it was in Skull Valley and even in some instances of adding dry 
storage at reactor sites, as recently in Vermont and Diablo Canyon in 
California. The public will want assurances that the interim storage 
will not somehow become de facto permanent which is why it is important 
that credible progress continue in developing the permanent repository.
    Question 3. What can the utilities do to renew a sense of urgency 
needed to push for timely repository development?
    Answer. It remains awkward for those utilities still in litigation 
to communicate directly with DOE on matters subject to litigation, but 
it might be illuminating to all stakeholders, including Congress, to 
have an order-of-magnitude estimate developed of the additional cost of 
delay in spent fuel acceptance from the previously forecast repository 
opening of 2010 to 2017. We don't know where the $500 million per year 
delay cost estimate came from, but if it is still valid, there is an 
additional $3.5 billion.
    It would seem beneficial to tap the nuclear industry's technical 
and management expertise from its cumulative experience as NRC 
licensees. Perhaps DOE could develop a loaned executive program with 
industry to augment the current government employee and contractor 
repository development team. Congress may not realize the destabilizing 
effects of nearly routine budget cuts or uncertainties of operating a 
professional workforce under continuing resolutions. If there were more 
stable appropriations available to the repository development, such as 
would be provided by Section 5 of S. 2589, DOE could sustain a focused 
sense of urgency.
    It is totally outside the cautious and conservative ``nuclear 
culture'' for the nuclear industry to threaten or engage in 
brinksmanship as a tactic to stir a sense of urgency in developing the 
repository. If anything, the industry's ``defense in depth'' in nuclear 
operations works against them: if the ``primary'' spent fuel strategy 
is for the government remove spent fuel from reactor sites carries a 
risk of failure, then the industry norm is to have a ``secondary'' plan 
as back-up. That is why, even before DOE conceded it would be unable to 
meet the 1998 NWPA-mandated waste acceptance schedule, the industry 
already was expanding the capacity of its cooling pools and later 
installing dry-cask storage. It was not their preferred way to use 
their resources, but it was the prudent course to continue their 
ability to maintain operations and continue to serve their electric 
customers. It is also a common trait for utilities to honor their 
``obligation to serve'' the public.
    I regret to say that the lack of a sense of urgency in spent fuel 
disposal starts with Congress. Congress continues to ``cash the 
checks,'' sent faithfully each year by the utilities, and appropriates 
only a small fraction of that amount to the repository program while 
freely distributing the balance for other unrelated government 
purposes. Efforts, such as the reclassification of the NWF fees as 
offsetting collections as proposed in S. 2589, have been made to assure 
the NWF fee revenue is used solely for its intended purposes year after 
year, yet the result is to continue the status quo.
                                 ______
                                 
      Responses of Robert Loux to Questions From Senator Domenici

    Question 1. You have said before this committee earlier this summer 
that the State of Nevada never intends to work with the Department of 
Energy in getting Yucca Mountain open.
    Are there any circumstances where you would work collaboratively, 
side-by-side if you will, with the Department--yes or no?
    Answer. We would certainly work with the Department to take 
reasonable and necessary steps to reclaim the site and to mitigate any 
significant adverse environmental impacts caused by site 
characterization activities at the site. Other than that, no.
    Question 1a. If the Department submits a high quality license 
application that the NRC dockets and that meets or exceeds all of the 
local, state and federal requirements, is the State of Nevada prepared 
to grant DOE the permits needed to construct the repository?
    Answer. Mere submission of a high quality license application, in 
and of itself doesn't mean that the site will necessarily receive a 
construction authorization. Until such time it is premature to respond.
    Question 2. Can you confirm the following data:

   The Yucca Mountain Repository Program employs approximately 
        200 federal employees and approximately 1800 contractor 
        employees today?
   The annual payroll for the federal employees plus benefits 
        is approximately $40 million?
   The annual payroll for contractors is $300 million?
   According to DOE, the construction of Yucca Mountain to 
        begin operations is expected to employee up to 2500 contractor 
        employees for the construction of the site, and the average 
        salary for construction employees will be $100,000 per year?
   It is estimated that there will continue to be approximately 
        200 federal employees with an average salary of $100,000?
   DOE estimates that the peak employment for the Nevada Rail 
        Project (railroad construction) is expected to be up to 2200 
        employees, with an average of 1400 employees over the 4-year 
        construction period?
   After opening of the facilities the project is assumed an 
        estimated 1900 contractor employees with an estimated average 
        base salary of $125,000?
   The anticipated number of federal staff that will be at the 
        site for operating the repository is 200 with an average salary 
        of $100,000?

    Answer. We cannot confirm any of this data, as DOE doesn't share or 
provide any information to the State of Nevada. Even the most modest 
request is denied and requires a Freedom of Information Act request. 
The Department even routinely denies most of these requests. The data 
you cite appears consistent with DOE's Environmental Impact Statement 
for Yucca Mountain. It is worth nothing that the Clark County, Nevada 
economy is creating over 3000 news jobs per month.

        Responses of Robert Loux to Questions From Senator Craig

    Question 1. Do you think it would be in the best interest of this 
country, the state of Nevada--and the taxpayers--to allow the DOE and 
the NRC to expeditiously perform their duties, rather than continuing 
to stall the project at every opportunity?
    Answer. DOE's inability to submit a high quality license 
application to the Nuclear Regulatory Commission is a problem of the 
Department's own making. Their failure to adhere to the requirements of 
the NRC to comply with the Licensing Support System is an example of 
the Department's incompetence that keeps it from following the law and 
other regulatory requirements. It isn't the State of Nevada that keeps 
DOE from proceeding.
    Question 2. Would we be wrong to assume that you will never be 
satisfied with the scientific work done at Yucca Mountain?
    Answer. As long as the data and the process to collect that data is 
flawed, Nevada will continue to challenge the scientific work at Yucca 
Mountain. What scientific work that has been done suggests the site is 
flawed and should abandoned, and as long as the Federal government 
persists to attempting to move this scientifically unsafe site forward, 
we will continue to challenge it.
    Question 3. If the NRC licenses the repository will you abide by 
their decision, or will you and the state of Nevada continue to impede 
the Department's construction and operation of the facility?
    Answer. Depending on the decision itself, we will whatever action 
we deem appropriate to protect the health and safety of Nevada 
citizens.
    Question 4. The Nuclear Waste Policy Act directs the Secretary to 
enter into a consultation and cooperation agreement with the state of 
Nevada. To date, the State has consistently refused to enter into such 
an agreement with the Department. Does the state have any intention of 
ever entering such an agreement with the Department?
    Answer. When the Department refuses to follow the law, as passed by 
Congress, what value would any written agreement have?
    Question 5. Are there any circumstances under which you would be 
willing to work collaboratively with the Department of Energy to open a 
repository at Yucca Mountain?
    Answer. We would certainly work with the Department to take 
reasonable and necessary steps to reclaim the site and to mitigate any 
significant adverse environmental impacts caused by site 
characterization activities at the site. Other than that, no.
    Question 6. If the Department submits applications that meet or 
exceed all local, state and federal requirements, is the State prepared 
to grant DOE the permits needed to construct the repository?
    Answer. Mere submission of a high quality license application, in 
and of itself doesn't mean that the site will necessarily receive a 
construction authorization. Until such time it is premature to respond.
    Question 7. Is it not true that under this bill the State Engineer 
of Nevada could still deny the Department's application for water--
based on availability and competing uses, for example--if that was 
appropriate?
    Answer. Preempting the State Engineer's authority, by limiting two 
of the three the statutory prongs of his authority is unconstitutional 
and will be challenged. Federal case law strongly supports Nevada is 
this arena. The three prongs of the state engineer's authority are 
intertwined and cannot be separated.
                                 ______
                                 
                                                September 14, 2006.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Mr. Chairman: The U.S. Nuclear Regulatory Commission appeared 
before your Committee on August 3, 2006. As a result of that hearing, 
you forwarded questions that were submitted for the hearing record by 
Senator Jeff Bingaman. The Commission's responses to those questions 
are enclosed. Under separate letter, Commissioner Gregory B. Jaczko 
intends to provide additional views.
    If I can be of further assistance, please do not hesitate to 
contact me.
            Sincerely,
                                        Rebecca L. Schmidt,
                          Director Office of Congressional Affairs.
[Enclosure: As stated]
        Responses of the NRC to Questions From Senator Bingaman
    Question 1. The Nuclear Waste Policy Act defines a ``repository'' 
to include ``both surface and subsurface'' areas, but section 4(a) of 
S. 2589 would exclude any ``surface facility'' that is not ``necessary 
for initial operation of the repository'' from consideration as part of 
the license application. The Commission has said, both in Chairman 
Diaz's June 30 letter and in Mr. Virgilio's statement, that this 
provision can be read to ``place certain surface facilities outside the 
NRC's jurisdiction.''
    Question 1a. Please identify the types of facilities that this 
provision may exclude from the Commission's jurisdiction.
    Answer. Because the terms ``necessary for initial operation,'' 
``infrastructure activities,'' ``safety upgrades,'' and ``site 
preparation'' are not defined within S. 2589, the Commission is unable 
to determine what additional facilities might also not be necessary for 
initial operation. Under this provision, the Department of Energy would 
make such determinations. Section 4(a) provides that an application for 
construction authorization shall not be required to contain information 
regarding any surface facility other than those necessary for initial 
operation of the repository. Facilities other than those necessary for 
initial operation would result from some of the infrastructure 
activities discussed in Section 4(b) of S. 2589. Examples of 
``infrastructure'' activities given in Section 4(a)(B)(3)(A) include, 
but are not limited to:

          (i) safety upgrades;
          (ii) site preparation;
          (iii) rail line construction and facilities to facilitate 
        rail operations; and
          (iv) construction, upgrade, acquisition, or operation of 
        electrical grids or facilities, other utilities, communication 
        facilities, access roads, rail lines, and non-nuclear support 
        facilities.

    Question 1b. Would the provision enable the Department to exclude 
plans to construct spent fuel storage facilities from the license 
application on the grounds that interim storage facilities are not 
``necessary for initial operation of the repository''?
    Answer. Yes, one possible reading of section 4(a) is that 
information about any surface facilities the Department of Energy 
decides it does not need for initial operation of a repository at Yucca 
Mountain, such as interim facilities for surface storage, or ``aging'' 
of spent fuel, could be excluded from the license application under 
Section 4(a) of S. 2589.
    Question 1c. How might this provision affect the Commission's 
statutory responsibility to protect the health and safety of the 
public?
    Answer. If the Department of Energy determines, under Section 4(a) 
of S. 2589, that interim storage or ``aging'' of spent fuel is not 
essential to operations of a repository, then the Nuclear Regulatory 
Commission may not have full jurisdiction over some of the surface 
facilities.
    Question 2. Section 4(b) of S. 2589 authorizes DOE to ``undertake 
infrastructure activities'' at the repository without NRC's prior 
approval.
    Question 2a. How does this provision compare with the NRC's 
``limited work authorization'' rule for nuclear power plants? The 
limited work authorization rule requires an NRC licensing board to make 
a preliminary safety determination and environmental findings and the 
NRC regulatory staff to approve the activity before the applicant can 
begin work, does it not? Where are the similar protections in Section 
4(b)?
    Answer. The Nuclear Regulatory Commission's (NRC) ``limited work 
authorization'' rule, 10 CFR 50.10(e), does contain the provisions 
paraphrased in the question. Section 4(b) of S. 2589 does not contain 
similar provisions and authorizes the Department of Energy to undertake 
certain activities without NRC review or approval. Of course, section 
50.10(e) of NRC's regulations does not apply to Yucca Mountain. The 
current NRC regulations for Yucca Mountain contemplate some work at the 
site (see 10 CFR 63.2, definition of ``commencement of construction'') 
without NRC approval, but not as much work as the bill would allow.
    Question 2b. Would section 4(b) enable the Department to construct 
spent fuel storage facilities at the repository before applying to the 
Commission for a license to receive and possess spent fuel at the site?
    Answer. Yes. If the Department of Energy (DOE) determines that 
spent fuel storage facilities are necessary or appropriate to support 
construction or operation of a repository at the Yucca Mountain site, 
or to transport wastes to the site, DOE may designate such facilities 
as ``infrastructure activities,'' and construct them pursuant to 
Section 4(b)(3). During the hearing on S. 2589, DOE said that the bill 
was not intended to allow DOE to build unregulated storage facilities, 
but the bill's language does not make DOE's stated intent clear.
    Question 3. As I understand it, the NRC generally regulates 
transportation packaging and security, and the Department of Energy 
regulates shippers and routing.
    Question 3a. How does Section 7 affect this division of authority?
    Answer. The Nuclear Regulatory Commission's (NRC) role for Yucca 
Mountain shipments is the review and approval of spent fuel and high-
level waste shipping packages, as required under Section 180(a) of the 
Nuclear Waste Policy Act of 1982, as amended (NWPA). We have also 
developed requirements calling for advance notification of State and 
local governments prior to the transportation of spent fuel and high-
level waste under Section 180(b) of NWPA. Adoption of Section 7 would 
not affect these provisions of the Nuclear Waste Policy Act, and 
therefore, Section 7 does not appear to affect the existing division of 
authority between the NRC and the Department of Transportation (DOT). 
Since the Department of Energy (DOE) plans to take title and possession 
of the spent fuel at commercial reactor sites prior to shipment to 
Yucca Mountain, DOE would be responsible for safety and security of the 
shipments outside of NRC regulatory oversight (except for use of NRC 
certified package designs). DOE has stated its intention to follow 
NRC's security regulations for its shipments to Yucca Mountain.
    The DOE's stated policy is also to follow the DOT regulations 
governing shippers, carriers, and routing. Shipping routes are selected 
by the shippers or carriers in accordance with DOT regulations. The NRC 
has a role in reviewing and approving the security of selected shipping 
routes for commercial spent fuel shipments, but not for shipment of 
DOE-titled spent fuel.
    Question 3b. Does the Atomic Energy Act give the NRC the authority, 
and does it have the expertise, to regulate shipping routes?
    Answer. While the Nuclear Regulatory Commission (NRC) has broad 
authority to regulate shipment of commercial radioactive material under 
the Atomic Energy Act (AEA), including the routing of NRC-licensed 
materials, this authority does not extend to shipments by or for the 
Department of Energy (DOE).
    To avoid duplication with Department of Transportation (DOT) 
regulations, NRC requires, under a memorandum of understanding (MOU), 
that its licensees follow DOT regulations for routing and carrier 
safety. In implementing this MOU, the NRC has exempted public and 
contract carriers making commercial shipments from the requirement to 
have an NRC license, with the exception of carriers shipping spent fuel 
and special nuclear materials. In these cases, public and contract 
carriers are granted a limited general license under 10 CFR 70.20b as a 
way of ensuring that physical protection measures are being implemented 
during spent fuel shipments.
    This has resulted in a system in which highway routes for 
commercial spent fuel shipments are selected by shippers and carriers 
based on DOT safety requirements, and subsequently reviewed and 
approved by NRC for implementation of its security requirements. The 
DOT has not implemented routing requirements for rail shipments. 
However, rail routes used for commercial (not DOE) shipments of NRC-
licensed materials are reviewed and approved by NRC for compliance with 
NRC security requirements. Thus, NRC's primary expertise and experience 
in reviewing shipping routes for NRC licensed material is focused on 
security concerns.
    Question 4. Under current law, the NRC can license new nuclear 
power plants, even though a nuclear waste repository is still not 
available, on the basis of the Commission's ``waste confidence'' rule, 
which says that the Commission has a reasonable assurance that a 
repository will be available soon. Section 9 requires the Commission to 
``deem'' that sufficient disposal capacity will be available ``without 
further consideration.''
    Question 4a. Does the Commission support Section 9?
    Answer. The NRC does not object to this provision of the 
legislation.
    Question 4b. The Court decision that gave rise to the Commission's 
waste confidence rulemaking found ``no implication that Congress 
intended that the NRC ignore new knowledge or analysis in its licensing 
decisions.'' Minnesota v. NRC, 602 F.2d 412, 419 (D.C. Cir. 1979). 
Section 9 would require the Commission to ignore new knowledge or 
analysis on the availability of waste disposal capacity in its reactor 
licensing decisions, would it not?
    Answer. Section 9 of S. 2589 would direct the Commission to deem, 
without further consideration, that sufficient capacity will be 
available in a timely manner to dispose of the spent fuel and high-
level waste from the operation of new reactors and related facilities. 
In its 1990 Waste Confidence decision, the Commission concluded that 
spent nuclear fuel can be safely stored without significant 
environmental impact for at least 100 years, if necessary. Spent 
nuclear fuel is being managed safely today and the Commission has every 
expectation that it can and will be managed safely in the future with 
at least the same level of protection as is in place today.
    ``Waste Confidence'' is a consideration in the Commission's 
environmental review when deciding whether to permit the construction 
or operation of a new reactor or related facility. It is not unusual 
for Congress to specify the bounds of environmental reviews. Moreover, 
Congress has the authority to impose such bounds. Of course, the NRC 
would retain the authority to inform Congress of all relevant new 
knowledge or analyses.
    Question 4c. How can the Commission discharge its statutory 
responsibility to ensure adequate protection of the health and safety 
of the public if it is forbidden to consider whether there is 
reasonable assurance that adequate waste disposal capacity will be 
available in the foreseeable future?
    Answer. The NRC has a statutory responsibility only with respect to 
facilities within its jurisdiction, and that jurisdiction does not 
include all nuclear facilities. Congress has chosen to assign 
responsibility for some decisions on nuclear activities to other 
agencies, and even to Congress itself. The Commission has expressed 
confidence that spent fuel and high-level waste produced by nuclear 
facilities can be safely disposed of and safely stored until disposal 
is available. In its 1990 Waste Confidence decision, the Commission 
concluded that spent nuclear fuel can be safely stored without 
significant environmental impact for at least 100 years, if necessary. 
Spent nuclear fuel is being managed safely today and the Commission has 
every expectation that it can be and will be managed safely in the 
future with at least the same level of protection in place today.
    The Commission does not read Section 9 of S. 2589 as forbidding all 
future consideration of the availability of future disposal capacity. 
Instead, Section 9 appears to apply only in the context of decisions 
about permitting construction of new reactors or related facilities. 
For example, the issue of safe disposal of spent nuclear fuel and high-
level waste will be considered in the licensing proceeding for a 
geologic repository.
                                 ______
                                 
                                                 September 8, 2006.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Mr. Chairman: On August 3, 2006, Mr. Martin Virgilio, of the 
Nuclear Regulatory Commission staff, appeared before the Committee on 
Energy and Natural Resources to give testimony regarding S. 2589, 
``Nuclear Fuel Management and Disposal Act.'' From that hearing, you 
forwarded questions that were submitted for the hearing record. In 
particular, you asked the Commission for its views on Section 9, which 
presumes that sufficient capacity to dispose of spent nuclear fuel and 
high-level radioactive waste resulting from reactor and related nuclear 
facilities will be available in the future. This provision would 
obviate the need for the Commission to make future policy decisions 
regarding waste confidence.
    The Commission has determined as part of the so-called ``waste 
confidence rule'' at 10 CFR 51.23 that commercial spent nuclear fuel 
can be safely managed at either onsite or offsite independent spent 
fuel storage installations. I believe that the Commission should 
continue to have the authority to make such determinations in the 
future to ensure public health and safety and increase public 
confidence. As a result, I believe that Section 9 should not be 
retained.
            Sincerely,
                                                 Gregory B. Jaczko.
                                 ______
                                 
                         Natural Resources Defense Council,
                                   Washington, DC, August 30, 2006.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Chairman Domenici: Thank you again for the opportunity to 
testify before the Senate Committee on Energy and Natural Resources on 
August 3, 2006 on S. 2589. Please find attached my responses to the 
Committee's questions for the record.
    If you have any questions, please do not hesitate to call me at 
(202) 289-2371. Thank you again for the opportunity to testify and for 
including these responses in the record.
            Sincerely,
                                        Geoffrey H. Fettus,
                                           Senior Project Attorney.

              Responses to Questions From Senator Domenici

    Question 1. Your testimony reviews the ``waste confidence'' 
rulemaking and describes NRC's findings related to the safety of spent 
fuel generated at the reactor and its ultimate disposal.
    What impact would consolidated dry cask storage at a location other 
than the reactor site, have on your assessment of a ``waste 
confidence'' determination? Interim Storage?
    Answer. The consolidation of spent fuel at an interim storage site 
would have no impact on our assessment of Congress codifying the 
``waste confidence rule.''
    First, as I stated in my testimony before the Committee, whether or 
not there is adequate confidence that there will be available a 
permanent solution for disposal of high-level radioactive waste and 
spent nuclear fuel should be a decision made by technical experts via a 
public process. A compromise on how the issue would be addressed in a 
scientific and publicly acceptable manner was reached over twenty years 
ago. The bill currently under consideration, S. 2589, would do away 
with that carefully created process and would legislate a potential 
fiction into permanent existence. Just because Congress has codified 
that there will be a final, safe resting place for nuclear waste does 
not necessarily mean that this is true. Put more bluntly, simply 
legislating the ``waste confidence'' rule into existence does not 
change the reality that the proposed Yucca Mountain is not yet 
licensed, and may never be, and the fact that at this time our nation 
does not currently have in place a viable, permanent solution for 
commercial and defense nuclear waste.
    Second, we agree with the long-held scientific consensus that the 
best option for nuclear waste disposal is a deep geologic repository 
that meets strict, protective environmental and public health 
standards. By contrast, spending significant amounts of time and money 
on ``interim'' measures could have the misguided and inappropriate 
effect of distracting the nation's attention from permanent, publicly 
acceptable solutions. Consolidating dry cask storage at existing sites, 
under a strict security regime, would certainly be an improvement over 
more years of spent fuel rods sitting in pools long after they have 
cooled. But creation of an interim site, or multiple interim storage 
sites, will ensure high costs and greatly increase nuclear waste 
transportation prior to a final disposal solution. In short, it is an 
unnecessary distraction.
    Question 1a. What impact would spent fuel recycling have on your 
assessment of a waste confidence determination?
    Answer. None. The question of ``waste confidence'' is, again, 
whether a permanent location for final disposal of defense and 
commercial nuclear waste is certain within a reasonable time frame. 
Even if the historically dysfunctional technologies of reprocessing 
spent nuclear fuel and plutonium fast reactors could be instituted some 
time in the next half century (a prospect we doubt will transpire), our 
nation will still require at least one deep geologic repository.
    Indeed, the current Administration has been very clear that it is 
pursuing both a plutonium reprocessing and fast reactor program (the 
Global Nuclear Energy Partnership of GNEP) and Yucca Mountain. Even if 
the U.S. Department of Energy (DOE) is able to develop the necessary 
reprocessing, fuel fabrication, and reactor technologies required for 
GNEP, the resulting waste would still include long-lived radionuclides 
that would need disposal in a geologic repository. For example, 
technetium, which has a half-life of 212,000 years and poses one of 
greatest public health risks at the proposed Yucca Mountain site, would 
be part of the resulting reprocessing waste under DOE's current plans. 
DOE has indicated that they intend to store the shorter-lived 
radioactive waste above ground for hundreds of years in order to put 
more long-lived radioactive waste into Yucca Mountain.
    Reprocessing and plutonium recycle programs in other countries have 
not solved their nuclear waste problem either, and those few countries 
that have adopted the technology recognize that they need deep geologic 
disposal. To achieve GNEP's claimed reduction in the radioactivity of 
future nuclear waste, every fourth or fifth reactor in the United 
States would have to be a fast reactor. Yet, fast reactors have proved 
to be highly unreliable and prone to fires from leaks of their highly 
corrosive liquid sodium coolant. Fast reactors are also uneconomical, 
and would cost $80 to $100 billion for the 20 to 25 fast reactors 
needed to transmute the fuel annually discharged from existing U.S. 
power reactors. Globally, this would add hundreds of billions to a 
trillion dollars to the cost of nuclear-generated electricity and in no 
way resolve the long-term waste problem.
    Moreover, approximately $100 billion has already been spent 
globally trying to develop a plutonium economy, but no country has 
successfully commercialized reprocessing and transmutation 
technologies. On the contrary, reprocessing programs in the UK, France, 
Japan and the other countries are heavily dependent on overt and hidden 
government subsidies and ownership. The U.S. National Academy of 
Sciences estimated in 1996 that reprocessing would ``easily'' cost $100 
billion just for the backlog of waste that had been produced up to that 
time. Meanwhile, wastes from past defense and commercial reprocessing 
in the U.S. continue to threaten major water resources, including the 
Savannah River, the Columbia River, the Snake River Plain Aquifer, and 
Lake Erie. Tens of billions of taxpayer dollars will ultimately be 
required over several decades to cleanup nuclear weapons sites and the 
failed commercial reprocessing site at West Valley, New York. This 
reprocessing waste cannot be reused and is slated for deep geologic 
disposal.
    Thus, a misguided national program for plutonium reprocessing and 
fast reactors would not alter our assessment that the ``waste 
confidence rule'' should be addressed in a scientific and publicly 
acceptable process, not by legislative fiat.
    Question 2. Your testimony mentions that nuclear recycling in the 
mid-1970's was uneconomical, environmentally unsound and represented a 
serious proliferation risk.
    Are you familiar with recent study by the Boston Consulting that 
shows that the economics of recycling and disposal of high level waste 
in Yucca Mountain are comparable to the economics of the targeted once-
through U.S. fuel cycle?
    Answer. Yes, NRDC is familiar with the July 2006 study by the 
Boston Consulting Group (BCG), Economic Assessment of Used Nuclear Fuel 
Management in the United States. We have reviewed the study in detail 
and also include herein the comments of Matthew Bunn at Harvard 
University. NRDC's assessment is that the study lacked the necessary 
independence and expertise to be credible, its conclusions are 
therefore biased and overly optimistic, and not even its authors will 
stand by its assertion that the economics of plutonium reprocessing are 
cost-competitive with other forms of power generation. For example, the 
report commences with a disclaimer that essentially states that the 
authors stand by nothing in their report. Quoting from the first page 
of the report in pertinent part:

        Disclaimer: This report was prepared by The Boston Consulting 
        Group at the request of AREVA. BCG reviewed publicly available 
        information and proprietary data provided by AREVA, but did not 
        undertake any independent verification of the facts contained 
        in those source materials. Changes in these facts or underlying 
        assumptions could change the results reported in this study. 
        Any other party using this report for any purpose, or relying 
        on this report in any way, does so at their own risk No 
        representation or warranty, express or implied, is made in 
        relation to the accuracy or completeness of the information 
        presented herein or its suitability for any particular purpose.

    Economic Assessment of Used Nuclear Fuel Management in the United 
States, at ii (emphasis added). This disclaimer makes perfectly clear 
the degree of attention readers should give to the study, but we went 
ahead and assessed the document anyway.
    We corresponded with Matthew Bunn at Harvard University and his 
analysis and comments follow, designated by the indented bullets:
    The study is replete with optimistic assumptions.

   BCG assumes a unit cost for plutonium reprocessing and 
        mixed-oxide fuel fabrication (MOX) of $520/kgHM, far lower than 
        AREVA has ever managed to achieve for either process. Page 17 
        of the Executive Summary, for instance, includes a chart 
        showing BCG estimates costs per kilogram for reprocessing at 
        roughly one-third the costs actually achieved in France. As the 
        BCG authors put it, one of the ``key differentiating elements'' 
        between their study and other studies are ``integrated plant 
        costs significantly lower than previously published data.'' See 
        Executive Summary at 14.
   By contrast, the current effort to use AREVA technology and 
        plant designs in the United States--i.e., the construction of a 
        MOX plant at the Savannah River Site in South Carolina--is 
        leading to unit costs several times higher than those cited by 
        the report and achieved in France. This experience is not 
        mentioned in the BCG report, and no argument is offered as to 
        why the projected facility will have a cost result that is the 
        opposite of the real experience in this country.

    Mr. Bunn continued with more specifics, addressing the specifics, 
BCG arrives at its low unit cost estimates for their projected plant by 
using a number of dubious assumptions:

   BCG assumes that plant capacity can be scaled up 
        dramatically with only a minor increase in capital or operating 
        cost. On p. 16, for example, BCG notes that the capital cost of 
        the existing French facilities was $17.8 billion (in 2006 
        dollars), but then assumes that the capacity can be increased 
        by more than 50% (assuming, generously, that the two La Hague 
        plants should be considered to have a combined capacity of 1600 
        tHM/yr) with an additional capital cost of only $1.5 billion, 
        less than 10% of the original capital cost.
   BCG assumes that the plant will always operate at full 
        capacity with no technical problems, no contract delays, etc. 
        No reprocessing plant or mixed oxide (MOX) plant in the world 
        has ever done so.
   BCG assumes that there will never be any substantial lag in 
        fuel fabrication, since, to save money, the plan cuts out all 
        funding for having a plutonium storage area. In France, by 
        contrast with this wishful scenario, tens of tons of plutonium 
        have built up in storage as a result of lags in the use of this 
        plutonium as fuel. [NRDC Comment: This is a significant cost 
        that is simply ignored. In fact, DOE's revised GNEP plan 
        assumes and indeed requires a major capacity for on-site 
        storage of separated product at its newly proposed commercial-
        scale ``Consolidated Fuel Treatment Center,'' as the revised 
        plan would provide 2000-3000 MTHM/yr of separation capacity 
        well in advance of the capacity to fabricate transmutation 
        fuels and burn them in a sufficient number of fast reactors].
   BCG assumes government financing at a 3% rate. As in the 
        2003 Harvard analysis of reprocessing economics (The Economics 
        of Reprocessing Vs. The Direct Disposal of Spent Nuclear Fuel, 
        Belfer Center for Science and International Affairs, Project on 
        Managing the Atom, December 2003), a plant with the same 
        capital and operating costs and nameplate capacity as the 
        British reprocessing plant, THORP (whose costs are generally 
        similar to those of UP3), financed at such a government rate, 
        which successfully operated at its full nameplate capacity 
        throughout its life with no interruptions (a far cry from the 
        real experience) would have a unit cost for reprocessing alone 
        of roughly $1000/kgHM. By contrast to this real world 
        experience, BCG assumes $520/kgHM for BOTH reprocessing and MOX 
        fabrication combined. But if the exact same plant were financed 
        privately, at the rates EPRI recommends assuming for power 
        plants owned by regulated utilities with a guaranteed rate of 
        return, the unit cost would be over $2000/kgHM. If financed by 
        a fully private entity with no guaranteed rate of return, the 
        cost for the same facility would be over $3000/kgHM. For the 
        government to own and operate a facility that would not only 
        reprocess spent fuel but manufacture new MOX fuel on the scale 
        BCG envisions would represent an immense government intrusion 
        on the private nuclear fuel industry.
   In the 1996 National Academy of Sciences (NAS) review of 
        plutonium recycling and transmutation technologies, the NAS 
        concluded that estimates like this effort by BCG of unit costs 
        for a new plant were unrealistically low, and that the actual 
        costs of real plants provided the best guide for future costs. 
        BCG appears to have ignored that advice.
   Notably, the capital cost BCG acknowledges for the existing 
        French plants is higher than the estimates used in the 2003 MIT 
        study; had BCG taken this actual experience as the basis for 
        estimating future costs, BCG would have found reprocessing and 
        MOX prices higher than those used in the 2003 study, not lower.

    Moving on from the specifics provided by Mr. Bunn, the reduction in 
repository capacity touted in the conclusion of the BCG report requires 
the introduction of fast reactors on a massive scale. We believe this 
to be an unwise policy for a number of reasons. The United States, 
Europe and Japan spent tens of billions of dollars in the 1970s and 
1980s trying to develop plutonium fast-breeder reactors (like the 
proposed GNEP ``advanced burner reactors,'' but with uranium 
``blankets'' added to ``breed'' more plutonium than is consumed in the 
reactor). These fast reactors proved to be uneconomical, highly 
unreliable, and prone to fires due to leaking liquid sodium coolant, 
which burns spontaneously when it comes in contact with air or water. 
Thus, we have little faith there will be a ``fleet'' of fast reactors 
and any meaningful reduction in what must eventually be sent to a 
repository.
    Reprocessing proved to be uneconomical in the U.S., U.K, Japan and 
France. Implementing just the initial demonstration phase of the GNEP 
as described by the DOE in its Advanced Notice of Intent to Prepare an 
Environmental Impact Statement (May 2005), will cost taxpayers $30 
billion to $40 billion over the next 15 years without generating a 
single kilowatt of commercially available electric power. Even with 
newly announced orientations of the program--frontloading some of the 
more expensive items like a commercial scale Fast Burner Reactor--we 
doubt that initial 15 year estimate will be any less than what we 
calculated in May of this year. Equally troubling, DOE has, to date, 
refused to make public any detailed cost studies.
    And there are immediate budgetary concerns. Funding requests for 
plutonium recycle related programs total more than $1 billion dollars 
in fiscal year 2007 (this figure includes not only GNEP, but DOE's 
Advanced Fuel Cycle Initiative and spending on a MOX plutonium fuel 
plant, among other items). In short, the entire scheme represents a 
bizarre departure for an administration professing abhorrence of 
excessive federal spending and reverence for the workings of the free 
market. Only the plutonium lobby would be so bold as to propose that 
the blueprint for meeting our electricity needs be based on the 
marriage of two technologies that are proven commercial failures. For a 
more detailed presentation of our concerns with the GNEP program, 
please see our document, Peddling Plutonium, An Analysis of the 
President's Global Nuclear Energy Partnership, found on our website at 
http://www.nrdc.org/nuclear/gnep/agnep.asp.

               Responses to Questions From Senator Craig

    Question 1. Do you believe that new nuclear plants are needed to 
help reduce greenhouse gas emissions?
    Answer. The threat of climate change is sufficiently dire that all 
low-carbon technologies should be intensively reviewed for their 
potential to effect a timely response to the challenge of swiftly 
stabilizing and then reducing global carbon emissions. Unfortunately, 
the nuclear power industry in its present state suffers from excessive 
costs and too many security, safety, and environmental problems to 
qualify as a leading means to combat global warming pollution. The vast 
majority of expert forecasts suggest that nuclear power will likely 
play at best a modest role in generating the world's future electrical 
output, and that the industry will be doing well if it manages to 
maintain its current 16% share of global electricity production
    Large-scale nuclear plants remain uneconomic to build. And while 
the nuclear fuel cycle emits little global warming pollution, nuclear 
power still poses globally significant risks that need to be further 
reduced, including:

   Diversion of ``peaceful'' nuclear facilities and materials 
        to secret nuclear weapons programs;
   Theft and terrorist use of nuclear materials;
   Accidental releases of radioactivity, ranging from locally 
        harmful to potentially catastrophic;
   The vulnerability of some spent nuclear fuel storage pools 
        to terrorist attack;
   Occupational and public health risks associated with uranium 
        mining and milling; and
   Long-term leakage from underground repositories intended to 
        isolate high-level radioactive waste and spent fuel from the 
        human and natural environment for tens to hundreds of thousands 
        of years
   Dependence on fluctuating inland water bodies for cooling in 
        a future of characterized by more frequent droughts and higher 
        surface water temperatures, leading to more frequent shutdowns 
        or requirements for less efficient, higher cost dry-air cooling 
        systems

    The underlying facts of energy economics have not changed--there is 
still no ``nuclear renaissance.'' Rather, there is a renaissance of 
federal subsidies for the industry. The nuclear industry has 
historically received over $80 billion in development support and 
subsidies, in today's dollars. And recently, Congress granted 
approximately $10 billion in new subsidies and regulatory assistance in 
the 2005 Energy Policy Act, affecting the first 6000 megawatts of new 
nuclear generation to be constructed. But a ``nuclear renaissance'' 
depends on the economics of the next 1000 megawatts of new capacity 
after the subsidies, and so far we see nothing that indicates the 
nuclear industry will be able to reduce its capital costs to 
competitive levels. To gain sufficient economies of scale to compete, 
nuclear reactors need to be large--typically 1000 MW. This makes their 
capital requirements ($2.5-$4 billion each) quite daunting, and these 
reactors require a long investment recovery period, so in the absence 
of continuing subsidies, we believe private capital will continue to 
look unfavorably on this option. A mandatory and declining carbon cap 
that results in pricing carbon emissions allowances at $50-100 per ton 
would significantly aid nuclear's ability to compete with fossil fueled 
plants, but such a cap would also advantage nuclear's decentralized and 
renewable generation competitors, so it remains to be seen who will win 
that race.
    Even if a few new nuclear plants managed to get underway with the 
assistance of the subsidies provided in the 2005 Energy Policy Act, the 
economics of wind, solar, efficiency and combined cycle generation are 
a moving target, and continually improving. Unless the cost of natural 
gas rises above $14/MMBtu and stays there for a prolonged period, and 
renewable and efficiency options are stymied by misguided policies, we 
do not believe private capital will have substantial interest in 
financing new nuclear plants.
    Indeed, the most we would get under the current 2005 Energy Policy 
Act level of subsidies is 6,000 megawatts (MW) of new capacity, divided 
into 4-5 big units. For the build cost of one 1,000 MW reactor $2.9 
billion--the State of California thinks it can use tax credits to 
leverage in 10 years some 3,000 megawatts of private investment in net-
metered solar-rooftop distributed generation, with payback periods 
after subsidy on the order of five years, rather than the 25-40 years 
needed for a nuclear reactor.
    Throw in similarly enlightened public policies to encourage easily 
achieved efficiency improvements, and nuclear could have a very hard 
time competing after the first few heavily subsidized units. NRDC's 
energy efficiency expert David Goldstein notes that the $2.9 billion 
California subsidy could also leverage 1,500 MW of efficiency at end 
use operating 8,760 hours per year, with zero or lower continuing 
operational costs and no incremental costs for transmission, based on 
10 years of California measured results. After accounting for reserve 
margins, transmission losses, and system load factors, meeting this 
much additional demand through nuclear additions to baseload would 
likely require on the order of 2000-2500 megawatts of new capacity, or 
roughly two nuclear power plants at a cost of $5.8 billion.
    In short, subsidizing detailed engineering design, licensing, and 
construction of a few large nuclear power plants will cost the 
taxpayers billions of dollars, but will not significantly reduce the 
high capital cost of subsequent nuclear plants relative to alternative 
sources. Hence these subsidies are unlikely to stimulate the widespread 
deployment of non-carbon emitting technology needed to make a dent in 
reducing global warming emissions, and may even be counterproductive by 
siphoning scarce government resources away from more productive 
investments that have the actual potential to transform energy markets 
on a global scale.
    Looking at the problem on a global scale, for nuclear power to have 
any appreciable impact on global warming, nuclear capacity globally-now 
about 440 plants-would have to be increased several-fold over the next 
few decades. This would mean adding a dozen or so new uranium 
enrichment plants worldwide, a similar number of Yucca Mountain--type 
geologic repositories for spent nuclear fuel, and a significant 
expansion of uranium mining. Current international arrangements are 
insufficient to prevent a non-weapon state, such as Iran or Japan, from 
suddenly changing course and using ``peaceful'' uranium enrichment or 
spent-fuel reprocessing plants to separate nuclear material for 
weapons. Finally, there is not one single long-term geologic repository 
for spent nuclear fuel in operation anywhere in the world.
    All of these problems have solutions, but for nuclear power to 
qualify as a significant global carbon reducer, the international 
nuclear industry, the respective governments, and the International 
Atomic Energy Agency must insure that:

   Nuclear fuel cycles do not afford access, or the technical 
        capabilities for access, to nuclear explosive materials, 
        principally separated plutonium and highly enriched uranium;
   The Nuclear Nonproliferation Treaty regulating nuclear 
        power's peaceful use is reinterpreted to prohibit the spread of 
        latent as well as overt nuclear weapons capabilities, by 
        barring national ownership and control of uranium enrichment 
        (or reprocessing) plants in non-weapon states;
   The occupational and public health risks associated with 
        uranium mining, milling, and the nuclear fuel cycle are 
        remedied; and
   Existing and planned discharges of spent nuclear fuel and 
        high-level radioactive waste will be safely sequestered in 
        geologic repositories.

    Until such time as the nuclear industry is able to meet these 
requirements, NRDC favors more practical, economical, and 
environmentally sustainable approaches to reducing both U.S. and global 
carbon emissions, including clean, flexible, renewable energy and 
efficiency technologies.
    In sum, the most economically efficient way to address these risks 
is to internalize their costs in the market price of electricity and 
fuels. The United States can do this by regulating carbon dioxide 
emissions, the unique risks of nuclear power, and other associated 
energy production risks, and then letting the market pick the lowest-
cost supply and demand technologies. The nuclear industry rejects this 
approach. Its lobbyists seek additional federal subsidies so they can 
reap profits on what would otherwise be dubious investments. The likely 
outcome of this approach, exacerbated in this time of severe budget 
deficits, would be to displace cleaner, more competitive technologies 
while failing to reduce global warming pollution in any meaningful way. 
The fastest, cheapest, and cleanest solutions to global warming will 
come from providing energy efficiency and renewable energy a chance to 
compete on equal terms with other energy investments.
                                 ______
                                 
 Responses of J. Barnie Beasley Jr. to Questions From Senator Domenici

    Question 1. Southern Company and its subsidiaries own both the 
Farley Nuclear plant in Alabama and the Vogtle Plant in Georgia.
    I looked up in the DOE Acceptance Priority Ranking spent fuel 
booklet to see where Farley and Vogtle are in the acceptance queue for 
DOE to pick-up spent fuel at these sites. Farley is number 253 and 
Vogtle is number 757.
    I find it interesting that according to the current plan, Farley as 
number 253 will have 21.2 metric tons of its spent fuel picked-up on 
the first visit by DOE.
    I say first visit as the next visit is number 334 when they are 
scheduled to pick-up 24.2 metric tons. According to the Library of 
Congress in 2004, the Farley plant had 903.8 metric tons of spent fuel 
on site.
    According to DOE's own estimates they wouldn't get to Farley until 
sometime in the sixth year, not until 2023 and then only take 
possession of 21.2 metric tons. DOE will not make [it] to Vogtle for 
several more years and then again only take a small fraction of what's 
currently on site.
    If DOE is able to keep to the schedule they have proposed and begin 
to accept fuel in 2017, both your current plants will still have fuel 
on site for over a decade beyond 2017.
    Question: Doesn't it make sense for the federal government to go 
ahead and meet its obligation to [your] company and your ratepayers and 
begin to accept fuel before Yucca Mountain opens at an interim storage 
facility?
    Answer. Yes. It is important to the nuclear power industry as a 
whole that spent nuclear fuel be removed from reactor sites. The 
storage of this used fuel diverts resources and manpower from other 
productive uses at the nuclear power plants and exposes the federal 
government to growing liability for the continuing breach of contract. 
It also creates continuing litigation costs for both parties and 
utilizes court resources unnecessarily. The federal government should 
strive to meet its obligations and minimize the impact of this breach. 
Furthermore, the continued storage of used fuel at the reactor site 
also threatens to impact the decommissioning of the nuclear power 
plants, which could further increase costs for which the federal 
government will be liable. In fact, there are several utilities that 
have begun decommissioning but cannot at this time complete that 
process because of the presence of used fuel on the reactor site. This 
additional cost impacts utilities and their ratepayers even after the 
nuclear power plant has ceased to be productive. The industry strongly 
supports measures that require and enable DOE to fulfill its obligation 
as soon as possible and believe that some form of interim storage is 
the only option that can accomplish that objective.
    Although my role in the hearing is to represent the industry as a 
member of the NEI Executive Committee, I am pleased to address the 
points you've raised with regard to Plants Farley and Vogtle. While 
there may be minor variations in the precise priority of acceptance of 
specific quantities of used fuel, depending on the document in 
question, The Acceptance Priority Ranking and Annual Capacity Report 
published by the Department of Energy (DOE) in 2004 indicates that the 
first delivery of used fuel to DOE from Plant Farley would occur in the 
fifth year of repository operations. Similarly, the first shipment from 
Plant Vogtle would occur in the ninth year of repository operations, 
using the same APR/ACR Report. As a result, current inventories of used 
fuel, in addition to the discharges of additional used fuel from the 
reactors occurring after the commencement of repository operations, 
will likely continue to be stored at Southern Nuclear's reactor sites 
for several years after the commencement of repository operations 
regardless of when that occurs. Prompt commencement of interim storage 
by DOE would allow the process of removing this used fuel from the 
plant site to begin and be completed earlier than with the repository 
alone.
    Question 2. Please explain why this is important and the 
contribution it could make toward reducing potential litigation in the 
license application process for new nuclear plants.
    Answer. If DOE were to begin removal of used fuel from plant sites 
on an expedited basis--in advance of the schedule for the commencement 
of repository operations--the impact on plant operation and the growing 
federal liability for the costs of on-site storage could be mitigated. 
Further, the commencement of interim storage by DOE would provide the 
public with added confidence that the federal government will satisfy 
its obligations under the Nuclear Waste Policy Act in the context of 
new plants. In addition to interim storage, accelerating the annual 
rate of acceptance of used fuel by DOE from 3000 metric tons per year 
to a rate that reflects the need to overcome the effects of DOE's delay 
in performance, currently in its eighth year, would also benefit all of 
these areas. The potential for mitigation of the problems caused by 
extended on-site storage of used fuel, mitigation of the liability of 
the federal government, as well as the demonstration by the government 
that it is capable and willing to satisfy its legal and contractual 
obligations for both existing and new plants, all make expeditious 
transfer of used fuel from reactor sites to federal interim storage 
facilities a responsible course of action.
    In order to accomplish these objectives, however, interim storage 
must be accomplished in a reasonable and efficient way that does not 
impair the schedule for the opening of the repository. Experience tells 
us that siting, licensing, and developing an interim storage facility 
for used fuel could be a controversial and contentious process. In 
order to commence operation of such facilities on a schedule that 
results in the delivery of used fuel to DOE significantly in advance of 
the schedule for repository operations, the siting and licensing 
process must be streamlined, and the number of such facilities must be 
manageable. DOE's resources, which ultimately come from our customers, 
should not be stretched thin by overly bureaucratic siting and 
licensing processes, or by trying to develop more sites than are needed 
to accomplish the job. Similarly, interim storage should not detract 
from the licensing and development of Yucca Mountain, which has been 
designated by the President and Congress as the principal used fuel 
storage and disposal facility for the United States.
    Accordingly, the industry prefers locating interim storage 
facilities at or near the Yucca Mountain site. The siting of such 
facilities at the site of the repository would be efficient, cost-
effective, and would simplify transportation of used fuel by 
eliminating an intermediate leg of the journey from plant site to Yucca 
Mountain. Moreover, Congress could authorize the Nuclear Regulatory 
Commission (NRC) to issue a general license, similar to those issued to 
licensed reactors, for interim storage at Yucca Mountain. The extensive 
site characterization work conducted at Yucca Mountain that led to the 
President's recommendation of Yucca Mountain as the repository site and 
Congress' affirmation of that recommendation justifies such a general 
license for interim storage. Absent designation of Yucca Mountain as 
the site of an interim storage facility, the designation of one or two 
existing federal sites provides the best chance of achieving the 
benefits of interim storage without diverting resources and attention 
from the repository.
    Question 3. Do you believe Congress should clarify that Yucca 
maintain for a considerable period the ability to monitor and retrieve 
waste packages to help foster public confidence in the project and 
allow future generations the option of taking advantage of 
technological developments?
    Answer. Yes. Yucca Mountain should maintain the ability to monitor 
and retrieve waste packages for an extended period. I believe that the 
Nuclear Waste Policy Act of 1982, as amended (NWPA), directs DOE to 
maintain this flexibility, but does not specify the period of time 
during which such capability should be maintained. It is my 
understanding that DOE intends to monitor used fuel placed in the 
repository for as long as 300 years. I believe that legislation that 
not only clarified DOE's obligation for future generations, but which 
also takes the extended period of monitored retrieveability into 
consideration in connection with the licensing of the repository, would 
be a very positive step.

   Responses of J. Barnie Beasley Jr. to Questions From Senator Craig

    Question 1. Would you please explain the issue about the Standard 
Contract for Disposal of Spent Nuclear Fuel as mentioned in your 
testimony and what you think Congress should do to address this issue?
    Answer. The NWPA requires applicants for licenses for the 
construction and operation of nuclear power plants to have executed, or 
be in the process of negotiating, a contract with DOE under the NWPA 
for the removal of spent nuclear fuel. Although the NRC has not 
officially addressed the issue, at least one Commissioner has indicated 
that an executed contract will be a prerequisite to the issuance of a 
Combined Operating License (COL) for a new nuclear power plant. At a 
minimum, the NWPA requires that an applicant for a COL be engaged in 
good faith negotiations for such a contract. It would be desirable to 
have such contracts in place by the time the application for a COL is 
submitted to NRC. The Standard Contract, as set forth in 10 C.F.R. Part 
961, codifies the terms of the contracts executed by DOE with the 
existing fleet of plants.
    Unfortunately, the federal government is already in breach of the 
contracts executed with respect to the existing fleet of nuclear 
reactors because of, among other things, its failure to commence 
acceptance of used nuclear fuel. It is my understanding that DOE has 
not responded to requests by some utilities for information regarding 
the execution of contracts for new plants.
    It is important for DOE to satisfy its existing obligations under 
the NWPA by entering into contracts that cover new plants that may be 
built. Such contracts should satisfy the requirements of the NWPA by 
including deadlines for the commencement of acceptance of used fuel 
from the new plants. The deadline for the commencement of acceptance 
should reflect DOE's obligation under the NWPA, the date scheduled for 
the commencement of operation of the new plants, and the date such new 
plants are expected to have their first fuel ready for delivery to DOE. 
I want to emphasize that the contracts should not be amended simply 
because DOE has failed to perform or to relieve DOE of its obligation 
to remove used fuel on a firm schedule that is consistent with DOE's 
obligation under the NWPA. DOE should undertake discussions through the 
Nuclear Energy Institute (NEI) with companies interested in applying 
for a COL with the objective of executing new contracts prior to the 
time COL applications begin to be filed in late 2007.
    Question 2. Do you believe that the DOE should accept and transport 
fuel in NRC certified systems already purchased and loaded by 
utilities?
    Answer. Yes. Utilities have expended millions of dollars loading 
used fuel into dry casks solely as a result of the federal government's 
breach of its obligations under the Nuclear Waste Policy Act and the 
contracts executed in accordance with the Act. These casks can be used 
for transportation and there is no practical reason why they should not 
be used. If utilities are required to remove used fuel from these 
containers in order to deliver that used fuel to DOE, those activities 
will further increase DOE's liability to the utilities under the 
contracts. It will also expose plant workers to additional dose for no 
practical reason. Additionally, for some utilities that have already 
begun decommissioning and demolished their spent fuel pools, such a 
transfer will be an even more expensive and time-consuming process.
    DOE can limit that liability and exposure, and reduce the amount of 
wasteful spending by both the federal government and utilities in 
litigating these claims, by accepting used fuel from utilities in any 
NRC-certified container and/or transportation cask. Any transportation, 
storage and disposal scheme should include the acceptance of used fuel 
by DOE without forcing the utility to first remove the fuel from the 
system. Acceptance of the used fuel in utility storage containers could 
also potentially provide a mechanism for the resolution of claims by 
utilities for the cost of the containers without the necessity of 
additional litigation.
    Question 3. What is the cost of litigation due to DOE not 
fulfilling its obligation (over 60 cases pending)?
    Answer. The total cost of the litigation arising out of the federal 
government's failure to satisfy its obligations under the Act consists 
of the damages for dry cask facilities, modifications to plant 
structures and ongoing operation and maintenance of the facilities, 
among other costs. Without knowing when the Government's breach of 
contract will end, it is impossible to quantify the ultimate cost of 
DOE's breach with precision. Settlements with companies such as Exelon 
and South Carolina Electric and Gas, and judgments in favor of TVA and 
the Sacramento Municipal Utility District have been estimated by some 
to be valued in the hundreds of millions. Other utilities, including 
but not limited to Alabama Power Company and Georgia Power Company, 
have finished the trials of claims against the Government but the Court 
of Federal Claims has yet to render a judgment.
    It is important to note that the claims that have been tried, such 
as TVA's and Georgia and Alabama Power's, only cover damages incurred 
by the utilities prior to the year of trial. Because of a ruling by the 
Court of Appeals for the Federal Circuit in 2005, additional claims 
will have to be filed by these utilities in future years to recover the 
additional costs that will be incurred in storing used fuel that should 
have been removed by the Government. The exact amount of the cost to 
the Government from such claims will have to await judicial 
determination. Most estimates of the Government's liability for these 
claims are measured in the tens of billions of dollars.
    The damages for on-site storage costs referred to above do not 
include the litigation costs of both the utilities and the federal 
government. The litigation that utilities have been forced to pursue 
against the federal government is extremely expensive for both sides. 
In addition, the costs above do not include the millions of dollars 
each year paid by utilities to the Nuclear Waste Fund. In most cases, 
these costs are borne by customers, through rates or other charges for 
electricity. These ratepayers are paying for a service that is not 
being provided, as well as paying for the cost of the litigation and 
the on-site storage. Finally, the Department of Justice has fought 
attempts by utilities to recover the financing costs (i.e. cost of 
capital) associated with expanding used fuel storage capacity that have 
been claimed by utilities. If that challenge is successful, another 
large cost attributable to the Government's failure to perform would go 
uncompensated.
    Question 4. Can you please discuss the potential impacts on 
ratepayers of interim storage?
    Answer. The impact of interim storage on ratepayers depends on the 
funding mechanism selected by Congress to finance the construction and 
operation of interim storage. First of all, to the extent interim 
storage enhances the Government's ability to satisfy its obligations 
under the NWPA, it could reduce the cost of on-site storage of used 
nuclear fuel. On-site storage costs are ultimately borne by ratepayers, 
so interim storage would reduce ratepayer costs. If, however, the cost 
of interim storage were funded from the Nuclear Waste Fund, ratepayer 
contributions to that Fund would be redirected from repository 
development to interim storage, without a corresponding decrease in 
repository cost. This would potentially increase ratepayer payments to 
the Nuclear Waste Fund. If the cost of interim storage were paid from 
sources other than the Nuclear Waste Fund, it would provide a clear 
economic benefit to ratepayers. Regardless of the funding mechanism 
chosen, it is essential that the practice of diverting Nuclear Waste 
Fee revenue to purposes that have nothing whatsoever to do with the 
disposal or storage of used nuclear fuel be stopped. If the cost of 
interim storage were to be paid from the Nuclear Waste Fund, the 
ultimate impact on ratepayers would depend on whether the cost of 
centralized, federal interim storage can be provided in a more cost-
effective way than on-site storage at individual reactor sites. The 
industry believes that interim storage at one or two federal facilities 
provides a clear economic advantage over either on-site storage at 
every reactor site in the nation, or the development of multiple 
interim storage sites across the country.
    Finally, it is important to remember that, even to the extent the 
cost of at-reactor storage is recovered by utilities from the federal 
government through litigation, the time and expense involved in such 
litigation make it a very costly option for ratepayers. Performance by 
the Government of its obligations is obviously a far superior result 
from the standpoint of the ratepayer, even if every utility recovered 
on each of its claims in full. Interim storage is certainly more cost 
effective for the federal government than litigating and paying such 
claims.

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