[Senate Hearing 110-1231]
[From the U.S. Government Publishing Office]



                                                       S. Hrg. 110-1231

 EXAMINATION OF THE LICENSING PROCESS FOR THE YUCCA MOUNTAIN REPOSITORY

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

                                HEARING

                               before the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 31, 2007

                               __________

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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED TENTH CONGRESS
                             FIRST SESSION

                  BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana                  JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut     JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
HILLARY RODHAM CLINTON, New York     JOHNNY ISAKSON, Georgia
FRANK R. LAUTENBERG, New Jersey      DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland         JOHN BARRASSO, Wyoming
BERNARD SANDERS, Vermont             LARRY E. CRAIG, Idaho
AMY KLOBUCHAR, Minnesota             LAMAR ALEXANDER, Tennessee
SHELDON WHITEHOUSE, Rhode Island     CHRISTOPHER S. BOND, Missouri

       Bettina Poirier, Majority Staff Director and Chief Counsel
                Andrew Wheeler, Minority Staff Director
















                            C O N T E N T S

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                                                                   Page

                            OCTOBER 31, 2007
                           OPENING STATEMENTS

Boxer, Hon. Barbara, U.S. Senator from the State of California...     1
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     2
Clinton, Hon. Hillary Rodham., U.S. Senator from the State of New 
  York...........................................................     9
Craig, Hon. Larry E., U.S. Senator from the State of Idaho.......    11
Barrasso, Hon. John, U.S. Senator from the State of Wyoming......    23
Isakson, Hon. Johnny, U.S. Senator from the State of Georgia.....    24
Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland   122

                               WITNESSES

Demint, Hon. James, U.S Senator From The State of South Carolina.     6
    Prepared statement...........................................     8
Ensign, Hon. John, U.S. Senator From The State of Nevada.........    13
    Prepared statement...........................................    14
Reid, Hon. Harry, U.S. Senator From The State of Nevada..........    16
    Prepared statement...........................................    19
Sproat, Edward F., III, Director, Office of Civilian Radioactive 
  Waste Management, U.S. Department of Energy....................    26
    Prepared statement...........................................    27
    Responses to additional questions from:
        Boxer....................................................    29
        Inhofe...................................................    35
        Clinton..................................................    35
Meyers, Robert J., Principal Deputy Assistant Administrator, 
  Office of Air and Radiation, U.S. Environmental Protection 
  Agency.........................................................    42
    Prepared statement...........................................    44
    Responses to additional questions from:
        Boxer....................................................    45
        Cardin...................................................    47
        Inhofe...................................................    47
        Clinton..................................................    48
Weber, Michael, Director, Office of Nuclear Material Safety and 
  Safeguards, U.S. Nuclear Regulatory Commission.................    50
    Prepared statement...........................................    51
    Responses to additional questions from:
        Boxer....................................................    53
        Inhofe...................................................    59
        Clinton..................................................    61
Catherine Cortez Masto, Attorney General, State of Nevada........    88
    Prepared statement...........................................    90
    Responses to additional questions from Senator Boxer.........    91
Kerr, James Y., III, President, National Association of 
  Regulatory Utility Commissioners, North Carolina Utilities 
  Commission.....................................................    93
    Prepared statement...........................................    95
    Response to an additional question from Senator Cardin.......    98
    Responses to additional questions from:
        Boxer....................................................    98
        Inhofe...................................................    99
Cook, Ken, President, Environmental Working Group................   100
    Prepared statement...........................................   102

                          ADDITIONAL MATERIAL

United States Nuclear Regulatory Commission; Judging the Safety 
  of a Repository at Yucca Mountain, NV..........................   125
Map of States Previously Considered for Respository Development..   145
    Statements:
Nelson, Keven L., Health Physics Society.........................   146
Burk, Richard J., Jr., Health Physics Society....................   148
Obama Hon. Barack, U.S. Senator from the State of Illinois.......   150
Gibbins, Jim, Nevada Governor....................................   153
Cook, Kenneth, President, Environmental Working Group (Corrected 
  Copy)..........................................................   154
Makhijani, Arjun, President, Institute for Energy and 
  Environmental Research.........................................   166

 
 EXAMINATION OF THE LICENSING PROCESS FOR THE YUCCA MOUNTAIN REPOSITORY

                              ----------                              


                      WEDNESDAY, OCTOBER 31, 2007

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The full committee met, pursuant to notice, at 10 a.m. in 
room 406, Dirksen Senate Office Building, Hon. Barbara Boxer 
(chairman of the full committee) presiding.
    Present: Senators Boxer, Inhofe, Carper, Craig, Isakson, 
Clinton, Barrasso.
    Senator Boxer. The hearing will come to order. We are 
awaiting the arrival of three very special witnesses, three 
Senators, but so much is going on this morning. I think what we 
will do is we will start with opening statements, Senator 
Inhofe, if that is OK with you, and then we will move to the 
witnesses.
    Senator Inhofe. Let me ask if it would be acceptable to you 
if we heard from Senator DeMint before we do opening 
statements. If we start opening statements, and we end up with, 
say, eight people here, it could be about an hour and a half.
    Senator Boxer. OK. This is what we are going to do. We are 
going to the Chairman and the Ranking, and then we will go to 
Senator DeMint, and then we will return. All right?
    Senator Inhofe. OK.
    Senator Boxer. So if we just have 5 minutes each.
    Senator Inhofe. OK. That is good.

           OPENING STATEMENT OF HON. BARBARA BOXER, 
           U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. Today's hearing is part of the oversight 
responsibility of the Environment and Public Works Committee 
over nuclear power and nuclear waste issues. My serious 
concerns about Yucca Mountain as a nuclear waste repository 
date back many years because my home State of California will 
be severely impacted if it is built and put into operation.
    If the Yucca project is constructed, there will thousands 
of shipments of high level nuclear waste transported throughout 
California, subjecting our citizens to potential exposure to 
the most dangerous contaminants known to human kind. Many 
scientists predict that Yucca Mountain will leak radiation into 
the groundwater, which poses a real threat to drinking water in 
California.
    This leaking nuclear waste even has the potential to 
contaminate surface waters, creating uncontrolled exposure in 
my State.
    My concerns extend beyond California to the whole Nation, 
and obviously to the people oFNevada. Billions of taxpayer 
dollars could be wasted on a proposal that is fatally flawed 
because it will put millions of people at risk. If Yucca 
Mountain becomes operational, radioactive waste will be 
transported there from across the Nation. The people of an 
estimated 44 States, including California, will have to guard 
against a serious terrorist threat as nuclear waste travels 
throughout our communities. Nuclear waste will be traveling 
past schools, homes, hospitals and businesses.
    This oversight hearing is critically important as we seek 
information about this controversial proposal, and is part of 
what will be a continuing process. I really look forward to 
hearing from the bipartisan Nevada delegation and all of our 
other witnesses during today's hearing.
    I also want to mention that Senator Clinton is the one who 
approached and asked that we have this hearing today. I want to 
thank her very much, and I have welcomed all Senators who wish 
to have statements placed in the record to do so in the 2-weeks 
following this hearing.
    With that, I would turn it over to Senator Inhofe for his 
opening statement, then we will hear from Senator DeMint and 
then we will go back and forth.
    [The prepared statement of Senator Boxer follows:]

        Statement of Hon. Barbara Boxer, U.S. Senator from the 
                          State of California

    Today's hearing is part of the oversight responsibility of 
the Environment and Public Works Committee over nuclear power 
and nuclear waste issues.
    My serious concerns about Yucca Mountain as a nuclear waste 
repository date back many years because my State of California 
will be severely impacted if it is built and put into 
operation.
    If the Yucca project is constructed, there will be 
thousands of shipments of high level nuclear waste transported 
through California, subjecting our citizens to potential 
exposure to the most dangerous contaminants known to humankind.
    Many scientists predict that Yucca Mountain will leak 
radiation into the groundwater, which poses a real threat to 
drinking water in California. This leaking nuclear waste even 
has the potential to contaminate surface waters, creating 
uncontrolled exposure in my state.
    My concerns extend beyond California to the whole nation 
and obviously to the people of Nevada.
    Billions of taxpayer dollars could be wasted on a proposal 
that is fatally flawed because it will put millions of people 
at risk.
    If Yucca Mountain becomes operational, radioactive waste 
will be transported there from across the Nation. The people of 
an estimated 44 states, including California, will have to 
guard against a serious terrorist threat as nuclear waste 
travels through our communities. Nuclear waste will be 
traveling past schools, homes, hospitals and businesses.
    This oversight hearing is critically important as we seek 
information about this controversial proposal, and is part of 
what will be a continuing process.
    I look forward to hearing from the bipartisan Nevada 
delegation, and all our other witnesses, during today's 
hearing.

          OPENING STATEMENT OF HON. JAMES M. INHOFE, 
            U.S. SENATOR FROM THE STATE OF OKLAHOMA

    Senator Inhofe. Thank you, Madam Chairman. I am glad we are 
having this. The last time we had it was when I chaired this 
Committee, and there are a lot of questions that need to be 
asked.
    In 1982, Congress passed the Nuclear Waste Policy Act to 
provide for the development of repositories for disposing of 
high level nuclear waste in commercial spent fuel. The process 
was designed to be a rigorous and thoughtful one.
    Now, time has gone by. We are now up to the point where we 
have spent over 25 years and $6 billion on this lengthy and 
thorough bipartisan process to prepared DOE to file a license 
application with the Nuclear Regulatory Commission, asking for 
authorization to build a repository.
    Yet, there are those who would like to abandon Yucca 
Mountain and start over without the NRC ever considering the 
project. We are to the point now where we could rapidly get to 
the NRC looking at this. I believe it is significant that we do 
it.
    Now, my question would be how do you justify this to our 
taxpayers? Electricity ratepayers pay for the cost of their 
repository, but taxpayers pay the cost of DOE's delay. DOE 
estimates that approximately $7 billion in liability costs will 
be paid to the utilities if DOE begins accepting spent fuel in 
2017. For each year of delay beyond 2017, it is at least 
another $500 million a year, not to mention the cost to DOE of 
delaying the cleanup of DOE sites, which is about another $500 
million per year.
    This liability is paid by the U.S. taxpayers by way of the 
Federal Government's Judgment Fund. How do we justify wasting 
$1 billion a year while ignoring binding contracts signed with 
the utilities and refusing to proceed with a process mandated 
in law in the Nuclear Waste Policy Act?
    To me, the toughest question is, if not Yucca Mountain, 
then where are we going to build a repository? Before Congress 
directed the DOE to focus its efforts on the Yucca Mountain 
site, over 37 States--37 States--had been considered as 
potential hosts for a repository. I have a map here that 
highlights all those States that have been considered to have 
geologic formations worth evaluating for the repository. 
However, they went through the process and determined in their 
estimation that Yucca was the best place.
    Now, to me, I think that we need to get on with this 
process. We have been talking about his now for certainly for 
the 12 years that I have been serving on this Committee, and 
much, much longer than that. I think the time is right to go 
ahead and continue with it. As difficult as it is politically 
for a lot of people, I think it has to be done.
    The bottom line is this, we are not going to resolve the 
problems we have without nuclear and we are not going to have 
nuclear until such time as we are able to determine where the 
repository is.
    Thank you, Madam Chairman.
    [The prepared statement of Senator Inhofe follows:]

         Statement of Hon. James Inhofe, U.S. Senator from the 
                           State of Oklahoma

    Thank you, Chairman Boxer, for holding this hearing today. 
It's been just over a year since this Committee last held a 
hearing on Yucca Mountain, under my leadership, and I'm glad to 
once again ask tough questions about this very important 
project. Nuclear energy must play a growing part of our 
nation's energy future, both for the sake of national security 
and environmental progress. However, I am concerned that the 
resurgence of the nuclear industry may be hindered if there 
isn't sufficient progress toward development of a repository 
for spent fuel.
    In 1982, Congress passed the Nuclear Waste Policy Act to 
provide for the development of repositories for disposing of 
high-level nuclear waste and commercial spent fuel. The process 
was designed to be a rigorous and thoughtful one whereby our 
government would research locations, select a site, and license 
a repository with each relevant Federal agency playing its 
respective role. The DOE is charged with development and 
operation of the repository. The Nuclear Regulatory Commission 
will assess the safety of the proposed facility and regulate 
its operation, if approved. The EPA is responsible for 
developing the radiation standard by which the repository's 
safety will be evaluated. I must observe that the EPA committed 
in a hearing in March of last year that the radiation standard 
would be finalized by the end of 2006. However, it is still not 
final and there is no clear indication when it will become 
final.
    DOE's filing of a license application with the NRC next 
year will be the culmination of over 25 years of research. Ward 
Sproat has shown exemplary leadership in preparing the 
organization to take that step and working to instill the 
discipline that the NRC requires of its licensees.
    So far, we have spent over 25 years and $6 billion on this 
lengthy, thorough, bipartisan process to prepare DOE to file a 
license application with the Nuclear Regulatory Commission 
asking for authorization to build the repository. Yet there are 
those who would like to abandon Yucca Mountain and start over 
without the NRC ever even considering the project. I think that 
view raises some very tough questions.
    My first question is: Why should DOE abandon the Yucca 
Mountain site before the NRC has even evaluated it? DOE has 
spent 25 years and $6 billion dollars studying the site and 
developing the license application. The NRC has developed 
detailed regulations to guide the process of intensively and 
accurately assessing whether Yucca Mountain can be developed as 
a safe repository, a process that will take at least 3 years. 
First, NRC technical staff and independent experts will 
scrutinize the application. Then, panels of judges will 
adjudicate contentions. Essentially, every element of the 
application will be put on trial twice. Then, if the repository 
gets built, DOE will have to go through a second process before 
it can begin operations and receive any nuclear waste. How 
would you explain to ratepayers that the Federal Government 
threw away $6 billion dollars without even bothering to find 
out if Yucca Mountain can withstand the level of scrutiny 
required by the NRC?
    My next question is: How do you justify this to our 
taxpayers? Electricity ratepayers pay for the cost of the 
repository, but taxpayers pay the costs of DOE's delay. DOE 
estimates that approximately $7 billion dollars in liability 
costs will be paid to the utilities if DOE begins accepting 
spent fuel in 2017. For each year of delay beyond 2017, it's at 
least another $500 million per year, not to mention the costs 
to DOE of delaying clean-up of DOE sites which is about another 
$500 million per year. This liability is paid by the U. S. 
taxpayer by way of the Federal Government's judgment fund. How 
do you justify wasting a billion dollars a year while ignoring 
binding contracts signed with the utilities and refusing to 
proceed with the process mandated in law in the Nuclear Waste 
Policy Act?
    To me, the toughest question is: If not Yucca Mountain, 
then where are we going to build a repository? Before the 
Congress directed the DOE to focus its efforts on the Yucca 
Mountain site, over 37 states had been considered as potential 
hosts for a repository. I have a map here that highlights all 
those states that have been considered to have geologic 
formations worth evaluating for repository development. I 
encourage everyone to take a good look at this map and think 
about what it means to abandon the Yucca Mountain site and look 
for a new one. THAT is a tough question.
    I am not prepared to embrace any new long-term storage 
concept or any alternative repository sites unless and until 
the Yucca Mountain facility is given a fair, thorough, and 
transparent review by the Nuclear Regulatory Commission. I am 
not in favor of devoting the time and expense of the rate-
payers, the government, or this body in pursuing sites in 37 
states without first learning whether a safe repository can be 
built at Yucca Mountain. The prospect of such an effort should 
give every Member, especially those from these states, great 
pause.
    It's time to proceed with the next step in the rigorous and 
thoughtful process provided in the Nuclear Waste Policy Act.

    Senator Boxer. Thank you so much, Senator.
    I ask unanimous consent that the following submissions be 
placed in the record: a statement by Senator Obama; a statement 
by Nevada Governor Gibbons; the corrected testimony of Kenneth 
Cook, who is on one of our panels; and at the request of 
Senator Reid, a statement of Dr. Arjun Makhijani.
    Without objection, so ordered.
    [The referenced documents can be found on pages 150-195]
    Senator Inhofe. Madam Chairman.
    Senator Boxer. Yes?
    Senator Inhofe. I ask unanimous consent that the statement 
of Ronda Hornbeck, who is the County Commission Chairman of 
Lincoln County, Nevada be placed in the record.
    Senator Boxer. Without objection, so ordered.
    [The referenced document follows:]

       Statement of Ronda Hornbeck, County Commission Chairman, 
                           Lincoln County, NV

    Thank you for the opportunity to submit testimony to this 
Committee for the record. As one of ten units of local 
government designated by the Secretary of Energy as 
``affected'' by the Yucca Mountain repository system, Lincoln 
County has a profound interest in the progress of the Yucca 
Mountain project. The County is situated immediately downwind 
from the Yucca Mountain site and is concerned about exposure to 
radionuclides resulting from atmospheric pathways. In addition, 
Lincoln County is one of only three Nevada counties directly 
impacted by the proposed Caliente Rail Corridor. Since the 
early 1980's Lincoln County has sought to understand and 
minimize the potential adverse local impacts of the repository 
system while also seeking to understand and maximize any 
beneficial local economic affects which the project may 
produce.
    As part of Lincoln County's ongoing efforts to protect our 
citizens, I wish to call to the Committee's attention an issue 
that is important to many of the counties in Nevada that will 
be directly or indirectly affected by the Yucca Mountain 
project. In a petition for rulemaking filed with the NRC last 
March, Lincoln County, Nevada has asked the NRC to redress the 
issue. However, for the past 6 months the NRC has essentially 
sat on Lincoln County's petition, taking no action.
    As presently written, the NRC's regulations may be 
interpreted to require that county governments must be 
represented by attorneys in the NRC's licensing proceedings. 
(In contrast, business entities including partnerships and 
corporations may be represented by an attorney or a ``duly 
authorized member or officer.'')\1\
---------------------------------------------------------------------------
    \1\(10 C.F.R. 2.314(b). In the pre-licensing proceedings now 
underway before the NRC in the Yucca Mountain matter, the Pre-License 
Application President Officer Board has stated, in an Order dated 
December 2, 2005, that a majority of the Board believes that the 
regulation does require county governments to be represented by 
attorneys. However, the Board deferred a ruling on this issue until a 
later date when the issue might be of ``greater practical significance 
to the conduct of the proceeding.' NRC Docket No. PAPO-00, ASLBP No. 
04-829-01-PAPO.
---------------------------------------------------------------------------
    This issue is of potentially great consequence to rural 
counties in Nevada that will be substantially affected by the 
proposed project but who cannot afford to pay for an attorney 
possessing the requisite experience and expertise to 
participate in the NRC licensing proceedings at a level that 
will be sufficient to adequately protect the county's 
interests.
    The example of Lincoln County, Nevada, is particularly 
instructive. Located in the eastern portion of the state, 
downwind of Yucca Mountain, it covers 10,637 square miles and 
is home to approximately 4,100 people, about 17 percent of whom 
are below the poverty line and whose annual average per capita 
income is approximately $17,000. The town of Rachel, located in 
the western portion of the county, sits about 65 miles 
northeast of Yucca Mountain--closer to the site than the city 
of Las Vegas. Moreover, the DOE's preferred rail method for 
transporting nuclear waste to Yucca Mountain involves off-
loading nearly all nuclear waste from around the country in 
Caliente, Nevada--which is Lincoln County's only incorporated 
city--and then shipping the waste from Caliente by rail to 
Yucca Mountain along a corridor that will run for 90 miles 
within the county.
    Although Lincoln County likely will be the gateway for 
high-level nuclear waste entering Nevada and destined for Yucca 
Mountain, and will likely be affected by repository operations, 
it does not have the financial resources to pay experienced 
counsel to participate in the complex and lengthy licensing 
proceedings on a regular basis.
    By way of comparison, DOE itself has retained special 
outside counsel to assist it in preparing for the licensing 
proceedings and to represent it in those proceedings when they 
commence. According to press reports, the DOE paid its first 
law firm, Winston & Strawn, approximately $16.5 million and may 
pay its current law firm, Hunton & Williams, as much as $45 
million, in these matters.\2\ The State of Nevada has been able 
to retain sophisticated and experienced outside counsel to 
mount a vigorous legal challenge to Yucca Mountain by raising 
many millions of dollars through standard and supplemental 
funding mechanisms that are not available to Lincoln County and 
other affected units of local governments (``AULGs'').
---------------------------------------------------------------------------
    \2\See Las Vegas Review-Journal, Feb. 5, 2002 (page 1A) and March 
25, 2004 (page 4B).
---------------------------------------------------------------------------
    The situation faced by Lincoln County and other rural AULGs 
is dramatically different. Although these counties and their 
citizens are as vitally interested in Yucca Mountain as the 
State of Nevada, Lincoln County's total annual operating budget 
from general revenues is $3 million. Its authority to levy 
sales and real property taxes is essentially tapped out. 
Ninety-eight percent of its land base is managed by the Federal 
Government, leaving a very narrow opportunity to expand its 
economic base. In order to participate in the NRC licensing 
proceedings, Lincoln County and similarly situated AULGs are 
entirely depended on DOE grants from the Nuclear Waste Fund 
established by Congress as part of the Nuclear Waste Policy 
Act. But such funding is uncertain, has varied from year to 
year--and may only be used by AULGs to hire attorneys if, in 
connection with each year's authorization, Congress includes 
specific language authorizing the use of such funds for legal 
counsel. This fund is not only an unreliable basis on which to 
plan for participation in the NRC licensing proceedings; 
historical funding levels have been completely inadequate to 
permit Lincoln County to retain counsel to participate on a 
regular basis in the licensing proceedings.
    In light of these considerations, on March 23, 2007, 
Lincoln County filed a Petition for Rulemaking with the NRC, 
asking the NRC to amend its regulations to allow AULGs to be 
represented in the NRC licensing proceedings by attorneys or 
other duly authorized representatives. A copy of Lincoln 
County's petition is attached as Exhibit A hereto. To date, 
however the NRC has taken no official action on that petition. 
It is completely inexcusable that the NRC has chosen to simply 
sit on Lincoln County's petition for more than 6 months. If the 
NRC were to initiate a public comment period tomorrow on 
Lincoln County's petition, it almost certainly would take at 
least a year from then before any rulemaking proceeding would 
be completed. Yet with the DOE moving apace to file its license 
application, AULGs must know soon whether or not they will be 
able to represent themselves through non-attorneys if they are 
to be able to prepare appropriately for the licensing hearings. 
The Federal Government having failed to ensure adequate funding 
for legal representation by AULGs, it should not further 
penalize those governments and their citizens by effectively 
preventing them from participating meaningfully as parties in 
the NRC licensing proceedings--or by simply deep-sixing Lincoln 
County's administrative petition that would provide them with 
some relief.

    Senator DeMint, we will stop our talk up here at the 
platform and we will hear from you for five minutes, and then 
we will go back side to side here.

STATEMENT OF HON. JAMES DEMINT, U.S. SENATOR FROM THE STATE OF 
                         SOUTH CAROLINA

    Senator DeMint. Thank you, Madam Chairman. I would ask that 
my complete statement be put in the record.
    Senator Boxer. Without objection, so ordered.
    Senator DeMint. If I could talk informally, I don't come in 
front of you today as an expert on nuclear energy or storage, 
but as someone who is from a State that has been very much 
involved with the treatment of nuclear waste, primarily from 
weapons grade plutonium, but also a State that has 55 percent 
of its electricity generated by nuclear power.
    I am very interested in the combination of a clean 
environment and low cost energy so that we will have a strong 
economy. I would like to point out that South Carolina has been 
receiving nuclear waste from all over the Country for many, 
many years, millions of miles traveled without ever an incident 
that would threaten the public in any way. I believe the 
industry has demonstrated that they can move nuclear waste 
around very safely.
    My main point today really comes to the basic point that if 
we are going to have low cost energy in a clean environment, 
that we need to produce more of our electricity with nuclear 
power. I would like to just reference a chart here. If we go 
back to 1980, Europe was using about twice as much coal as the 
United States, but we made different decisions at that time 
about nuclear power.
    We decided to cutoff the building of new nuclear plants. 
Europe decided to build more. While they reduced the use of 
coal by over 30 percent, we increased ours by over 60 percent, 
and as all of us know, one of the biggest problems we have with 
carbons in the air come from coal-fired electricity generation.
    If I could just show the second chart here to make the 
point. The red lines are the building of nuclear facilities in 
the United States. The blue lines are for Europe. You can see 
that coincides with the decline in the use of coal. The fact 
is, our use of coal has gone up, as well as natural gas, 
putting pressure on the cost of natural gas for industry and 
residential use so the United States has used more carbons to 
generate its electricity, while Europe, countries like France 
now have well over 70 percent of their electricity generated by 
nuclear power plants.
    My main point is this: If we are going to have low cost 
energy and if we are going to have a clean environment, we have 
to stop burning coal and have more nuclear power. But nuclear 
power is going nowhere unless we have a predictable storage 
facility. South Carolina for years has been taking waste from 
all over the Country. There are a lot of new technologies on 
how to encapsulate it and classify it so that it can be shipped 
and stored safely, but not above ground.
    This needs to be moved as well as our nuclear facilities in 
South Carolina have onsite storage, which long-term is very 
dangerous.
    So if we are going to move ahead with new licenses, and 
there are at least four new licenses already applied for in 
South Carolina, the development and the opening of new nuclear 
facilities in this Country are going to completely stall unless 
we move ahead with Yucca Mountain.
    As has already been referenced, we have been working on 
Yucca for almost 30 years. We have spent around $10 billion. 
States like South Carolina have had a tax added to their energy 
costs.
    South Carolina has contributed about $1 billion toward 
Yucca, and we have been waiting for years with promises from 
the Federal Government that the waste that we are storing in 
South Carolina will eventually be moved to Yucca.
    I guess if I could just leave this Committee with one 
point, if we do not open Yucca as planned in 2012, we will 
stall all development of nuclear generation and we will pollute 
our environment and put our Country at a competitive 
disadvantage as far as the cost of energy. It makes no sense 
for us to talk about taxing the emissions of carbon, cap and 
trade and all the things that we are talking about, when within 
our grasp is nuclear power, which has demonstrated safety and 
efficiency in a clean environment. And all we need is to go 
through 30 years of research and development.
    If not Yucca, where? We have determined that this is the 
safest site in the Country. I am not going to argue the 
research. Others will do that today. I know my colleague will 
argue a different point of view, but I would just hope this 
Committee realizes if we don't go with Yucca, not only are $10 
billion down the drain, 30 years of research and development, 
and we are stuck with coal-fired electricity generation and we 
are going to fall behind the rest of the world.
    I appreciate the opportunity to testify today. Thank you.
    [The prepared statement of Senator DeMint follows:]

         Statement of Hon. James DeMint, U.S. Senator from the 
                        State of South Carolina

    Chairman Boxer, Senator Inhofe, fellow senators. Thank you 
for the opportunity to be here today and participate in one of 
the most important discussions we can have about the future of 
our Nation.
    We are facing many issues regarding our environment, our 
nation's energy infrastructure, and the demands of our society. 
How these interests are balanced will be crucial to our quality 
of life, security, and competitiveness in a global marketplace.
    Unfortunately, I believe many of the issues we are 
confronting didn't need to happen. Thirty years ago due in part 
to fear, in part to a lack of information, politicians enacted 
policies that placed numerous road blocks in front of the 
nuclear energy industry. As a result, we haven't seen a new 
construction license issued since the late 1970's and energy 
companies switched from pursuing clean non-polluting nuclear 
energy and were forced to rely more and more on coal. Now, 
politicians condemn the energy industry for pursuing a path 
they were forced to follow.
    Yet, at the same time Europe embraced nuclear energy even 
more. Today, Europeans have almost twice as many nuclear 
reactors than the United States. And they slashed dependence on 
coal by more than 30 percent--while we increased our use of 
coal by more than 60 percent.
    While the United States abandoned already built facilities 
to recycle nuclear waste, the Europeans took American 
technology, improved it, and have proven the ability to control 
the entire nuclear fuel cycle. Now, European countries are 
proposing even more nuclear reactors in order to meet their 
pollution reduction commitments under their Kyoto agreements.
    Before bad policy decisions shut down much of the nuclear 
industry in the United States, my State of South Carolina 
embraced nuclear energy, and today more than half of the energy 
produced in my State comes from nuclear. South Carolinians are 
responsible stewards of our environment and have sought to 
protect the mountains, marshes, and beaches that are our 
treasures and the life blood of my state's economy.
    However, in addition to the civilian nuclear industry, for 
more than 50 years South Carolina has performed a vital 
national security mission for our country. Along with states 
like California, Colorado, Idaho, New Mexico, New York, Ohio, 
and Washington, the Savannah River Site in Aiken, South 
Carolina helped produce and maintain the nuclear weapons 
stockpile that helped us win the cold war. Some of these sites 
have closed and others will eventually close. Interestingly 
enough, some members of this committee--who oppose Yucca 
Mountain--have written letters to the Department of Energy 
demanding that nuclear waste be removed from their State and 
sent somewhere else.
    Unlike other facilities, the Savannah River Site has 
expanded to meet our nation's energy and defense needs. South 
Carolinians are proud to continue to serve the Nation, and 
recently the Department of Energy announced it would start 
consolidating plutonium from other sites to South Carolina.
    South Carolinians recognize there are national security and 
energy needs and it is the responsibility of all Americans to 
do what they can, which brings us to Yucca Mountain.
    As a member of the EPW Committee last Congress, I 
participated in hearings and reviewed many of the issues 
regarding Yucca. My colleagues have some legitimate concerns, 
and they need to be dealt with accordingly--just like the 
Savannah River Site. And concerns can be addressed if met with 
a willingness to talk.
    But millions of Americans that use nuclear energy have 
concerns as well. They have paid billions of dollars into the 
Nuclear Waste Fund and billions of those dollars have been 
spent to exhaustively study Yucca Mountain. Nuclear waste 
continues to fill the storage pools at nuclear stations, and 
energy companies continue to submit applications for new onsite 
waste storage.
    What I find perplexing is that people argue the 
environmental standards are not strict enough to justify 
opening Yucca. However, if Yucca cannot meet these standards, 
then no other location where nuclear waste currently resides 
can qualify either.
    For instance, we have heard concerns that EPA's standard of 
350 milirems of radiation per year is too high and could 
potentially endanger Nevada residents. Well the Dirksen Senate 
building could expose staffers to higher level than the EPA 
standard for Yucca, but we don't see calls to shut down this 
building.
    We hear concerns about contaminating groundwater in the 
desert. However, if the Savannah River Site, the Hanford Site, 
and other DOE locations were to store waste as the Majority 
Leader has proposed, then how do these sites which sit adjacent 
to major rivers pose less risk to Americans than a mountain 
located in an arid desert.
    The truth is that opposition is based on politics, not on 
sound science. Thirty years ago the government made bad policy 
decisions with significant consequences. I fear we are 
repeating history.
    We are debating Yucca Mountain, despite the fact that every 
branch of the Federal Government has spoken on the need to move 
forward. Now this committee is investigating the merits of 
Yucca before the Nuclear Regulatory Commission has received a 
license application or finalized the process.
    As our nation continues to grow and our economy expands, we 
will need more energy. If we want to have energy security then 
we can't rely on renewable energy alone. Every source of energy 
has its' place in our energy portfolio, but we cannot escape 
the fact that nuclear energy must be a significant part of 
confronting our energy challenges.
    Without Yucca, a nuclear renaissance will not occur, and 
without nuclear energy we will never see significant 
improvements to our environment. We should not set our nation 
back even further like the misguided policies of 30 years ago.
    I applaud President Bush and the administration of every 
President since Carter for their strong support of Yucca 
Mountain. The energy needs of our nation will continue to 
require strong leadership from our Presidents for years to 
come.
    Unfortunately, it appears politics is pushing a conclusion 
that will perpetuate bad policies, harm our economy, and 
ultimately damage our environment even more.

    Senator Boxer. Thank you, Senator.
    Just to reiterate my testimony, we have to make sure it is 
safe and we don't put millions of people at risk, and that is 
the purpose of this hearing.
    Senator Clinton, and then followed by Senator Craig.
    Senator Clinton. Madam Chairman, do you want to go to 
Senator Ensign?
    Senator Boxer. I think we are going to wait for Senator 
Reid. He is going to be here shortly.
    Senator, please proceed.
    Senator Clinton. Thank you very much.
    Senator Boxer. We can take two more, and when Senator Reid 
comes, we will do both of them.
    Yes.
    Senator Clinton.

       OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON, 
            U.S. SENATOR FROM THE STATE OF NEW YORK

    Senator Clinton. I want to begin by thanking Chairman Boxer 
for holding this hearing. I think it is particularly timely 
because we are nearing a critical stage of the process, which 
is the June 2008 date when the Department of Energy plans to 
submit a license application for Yucca Mountain to the Nuclear 
Regulatory Commission.
    So I think it is important that we use this hearing to get 
the Administration on record in response to some important 
unanswered questions about how this process will work. I want 
to start by stating what the available scientific evidence 
makes clear. Yucca Mountain is not a safe place to store spent 
fuel from our Nation's nuclear reactors.
    First off, Yucca Mountain is located in an area of 
considerable seismic activity. There are 32 known active faults 
at or near Yucca Mountain. There have been more than 600 
seismic events registering above 2.5 on the Richter scale 
within a 50 mile radius of Yucca Mountain in the last 30 years. 
In 1992, an earthquake registering 5.6 on the Richter scale 
occurred just eight miles away. And just last month, it was 
reported that the Department of Energy had to alter plans at 
the site after rock samples unexpectedly revealed a fault line 
underneath the proposed location of the concrete pad where 
waste would cool before going into the repository.
    Looking forward, scientists have predicted that an 
earthquake registering six or more on the Richter scale is 
likely to occur in the next 10,000 years, given that Nevada is 
the third most earthquake-prone State in the Country after 
California and Alaska.
    An even greater potential risk at the site is its history 
of volcanic activity. As an MIT geologist testified to this 
Committee last year, ``Though the likelihood of an explosive 
volcano erupting directly beneath the repository is remote, the 
outcome would be devastating, spewing radioactive material 
directly into the atmosphere.''
    In addition, the rock at the site has proven to be more 
porous than the Department of Energy once thought, raising 
major concerns about contamination of scarce groundwater less 
than 100 miles from Las Vegas. In recent years, scientists 
discovered that radiation from nuclear tests done in the 1950's 
had migrated downward with rainwater to more than 600 feet 
below ground, rates far faster than predicted by the Department 
of Energy.
    This poses the threat of corrosion of the containers in 
which the waste would be stored, as well as the potential for 
much more rapid spread of contamination in groundwater.
    Because of these many flaws in the geology of the site, the 
DOE has turned to what it calls engineered controls to try to 
contain the waste. In other words, the containers that the 
waste would be stored in are to be trusted to resist rusting 
for hundreds of thousands of years under intense heat and the 
presence of humidity.
    Given these problems, it is not surprising that the 
Administration has been so opaque about the licensing process. 
As the testimony of Nevada's Attorney General makes clear, the 
licensing process puts the cart before the horse. EPA has yet 
to finalize the radiation standards that DOD must prove it will 
be able to meet in order to license the repository. And the NRC 
has stated they will accept the application even if EPA's 
standards are not in place when it is filed.
    Madam Chairman, does this make any sense at all? Is this 
site and this process really the best we can do? I know that 
some believe that Yucca Mountain is a referendum on the future 
of nuclear power, or that the waste accumulating across the 
Country is imperative enough to override the clear problems 
with the site. I strongly disagree. That is why I voted against 
the resolution overriding Nevada's veto of Yucca Mountain in 
July 2002, and that is why I remain opposed today.
    We do need to find a long-term storage solution for our 
Nation's nuclear waste, but Yucca Mountain is not the answer. 
It is time to step back and take a deep breath. The 25 years 
since the Nuclear Waste Policy Act passed seems like a long 
time ago, but this is a decision that future generations will 
live with for hundreds of thousands of years, longer than any 
of us can imagine.
    So we need to get it right. It is time to move on from 
Yucca Mountain. I believe we should start over and assemble our 
best scientific minds to identify alternatives. In the 
meantime, we need to make sure we are storing waste safely and 
securely at the reactor sites where it is located today, and we 
need to do better thinking about the massive challenge of 
transporting waste safely and securely from reactor sites to a 
permanent repository.
    What we should not do is to push an incomplete application 
for a flawed site through a rushed and incoherent process. But 
unfortunately, it is clear from the written testimony submitted 
by our witnesses representing the Administration that is 
precisely the course of action that this Administration intends 
to pursue. I think we can do better, and I hope that we will 
get the chance to do that.
    Madam Chairman, again thank you for holding this critical 
hearing.
    Senator Boxer. Senator, thank you very much for your 
leadership on this.
    We will go to Senator Craig. If at that time, Senator Reid 
hasn't come, Senator Ensign we will call right on you and then 
we will go back to the members.
    Yes, Senator Craig.

            OPENING STATEMENT OF HON. LARRY CRAIG, 
              U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Craig. Madam Chairman, thank you very much for this 
important hearing. I am pleased that Senator Clinton is here 
this morning because of her recent statements and her long-time 
opposition to Yucca Mountain.
    It is clearly a very fundamental and an important debate 
for our Country to have. I happen to come from a State that is 
very pro-nuclear. We have a great heritage of having designed 
and operated the first commercial reactor, and we have designed 
52 since that time. But also with that positive legacy, we also 
have what I call a neutral legacy. We have from West Valley, 
New York, a place the Senator knows well, waste, some 26 metric 
tons that we took at her insistence.
    From Three Mile Island in Pennsylvania, we have 81 tons of 
high level nuclear waste that we took because of DOE's 
relationship and because we needed a safe place to store it.
    Now, the dirty little secret about that waste is it is 
scheduled to be handled in a permanent repository by 2035. So 
let me suggest this, if that permanent repository or permanent 
destination of handling waste is not determined, where must 
that waste go? Because the law says it leaves Idaho. Do we 
return it to West Valley, New York? Do we return it to Three 
Mile Island,
    Pennsylvania where it can be stored safely on a more 
permanent basis? Does New Hampshire's waste, Iowa's waste, 
South Carolina's waste, that currently fuels its reactors, stay 
there indefinitely? Those are fundamental issues that we have 
to talk about as we find a permanent repository for our high 
level waste.
    The citizens of New York have paid $721 billion to find 
that, and they have currently stored in the State of New York 
3,060 metric tons of high level nuclear waste. That is a legacy 
that a responsible Senator must deal with. In California, the 
story is the same: $764 billion spent by the ratepayers, and 
2,420 metric tons of waste.
    It is so easy to be against. It is so fundamentally 
important that we act in a responsible manner.
    And that is, of course, what our Country and the Congress 
has attempted to do for a good many years. So where is the 
legacy and where is the responsibility? From 1995 to 2006, 
nuclear power avoided over 8,000 million metric tons of carbon 
dioxide going into the atmosphere, reflective of the testimony 
of the Senator from South Carolina. The U.S. emits 6,000 
million metric tons per year of carbon, 25 percent of the 
world's emissions into the atmosphere.
    Nevada does not want a coal plant. Idaho does not a coal 
plant. Kansas doesn't want a coal plant. My suggestion is as we 
tumble through this, for political purposes and I would hope 
for valid scientific reasons, that we get it right, but we 
cannot have it both ways. Capping emissions of carbon dioxide 
while opposing Yucca Mountain and new nuclear just doesn't make 
a lot of sense.
    Decide. Are you more anti-nuclear or more pro-carbon cap? I 
call it a choose it or lose it theory, because I don't think 
you can hold both positions and hold them fundamentally 
honestly in a political world, let alone a scientific world.
    I will offer an amendment to any cap and trade proposal 
that we require that new nuclear be a part of a cap and trade 
possibility. No nuclear, no cap. Choose it or lose it. That is 
a fundamental debate that this Country must have. Nuclear must 
remain at least 20 percent of America's energy portfolio into 
the foreseeable future. And if we don't, we either become a 
less productive Nation or we become a dirtier Nation based on 
current technology. That is a position this Committee doesn't 
hold, nor is it a position this Committee ought to advocate. We 
have a responsibility here beyond politics and it is very good 
science. It is a transparent licensing process, and it is 
something that should be allowed to move forward to a point of 
final decision as to the reasonable and responsible destination 
of our high level waste.
    Thank you very much for holding this hearing, Madam 
Chairman.
    Senator Boxer. Thank you, Senator.
    I just want to make the point that this hearing is an 
oversight hearing on Yucca. It has nothing to do with whether 
you are pro-nuclear or you are anti-nuclear. It is are you pro-
safety, are you concerned about that. And that is the question 
here. It isn't whether we are pro-nuclear or anti--nuclear. It 
has nothing to do with that. It is where you put the waste in a 
way that doesn't----
    Senator Craig. I appreciate that. I also recognize that is 
a matter of interpretation.
    Senator Boxer. If I might finish? Since I called this 
hearing, I will tell you what this hearing is about. It is 
about whether Yucca Mountain is safe.
    With that, I am going to call on either Senator Ensign or 
Senator Reid, whomever would like to go first.

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

    Senator Ensign. Thank you, Madam Chairman. I appreciate you 
calling what I consider to be this I think very important 
hearing. It is interesting listening to some of the testimony 
this morning. I think actually, Madam Chair, that you have to 
put this in the broader context of nuclear power, of the 
science and the politics because it all does play a role, and 
it has played a role up to this point.
    Senator Craig, a lot of what he was talking about he even 
said that the waste can be shipped back and stored safely. I 
think that is an important point to make, that the science has 
told us that the storage of nuclear waste is safe for at least 
100 years in dry casks. Nobody disagrees with that. And so the 
rush to build Yucca Mountain as a ``permanent repository'' seem 
illogical to me.
    There are still so many questions left to answer. Some 
people think it is good science and others have really 
questioned the science. There have been tremendous cost 
overruns in Yucca Mountain because of the changes in the 
science.
    The latest estimate is that it is going to cost somewhere 
around $60 billion to build Yucca Mountain. Nobody believes 
that estimate is accurate. The actual cost will probably be 
closer to $100 billion and the dirty little secret here is that 
you need at least one other Yucca Mountain. Yucca Mountain 
itself is not adequate enough to handle our Nation's nuclear 
waste.
    In my opinion, Yucca Mountain is dead. Yucca Mountain is 
never going to be completed. So what we need as a Country to 
look for the alternative to Yucca. The good thing is we do have 
the time. We have 100 years of onsite dry cask storage. Senator 
Reid and I believe we have a solution. We have introduced a 
bill for the Federal Government to take title to that waste. We 
take responsibility for that waste. It relieves some of the 
liability of the nuclear power companies, and then we decide 
then as a country what is the best thing to with the waste.
    I personally believe that recycling of the waste is the 
right thing to do. Other countries are doing that right now. 
Some people object to the type of technology they use, but the 
bottom line is they are doing it and they are doing it very 
successfully. France has recycled 98 percent of their waste. In 
Great Britain, they use two different types of technology, but 
similar applications, and Japan is using France's technology. 
These recycling process have led to a significant decrease in 
the volume of the waste is tremendously decreased. You don't 
need the size or the cost of Yucca Mountain if you go with the 
recycling of the nuclear waste.
    The bottom line is even if you don't like reprocessing the 
science associated with it is much more sound that associated 
with Yucca Mount. We as a Nation ought to invest in 
reprocessing technologies. It does not matter to me if you 
invest in transmutation or something similar, as long as the 
money isn't being wasted as it is now on Yucca Mountain. The 
politics of Yucca Mountain, the science of Yucca Mountain is 
questionable at best. I think that we are pouring money really 
down a large rat hole in the State of Nevada and we should be 
putting that money toward good use instead.
    Everybody that I have heard that are proponents of Yucca 
Mountain say that the ratepayers have already paid in these 
billions of dollars. However, the ratepayers will never pay in 
enough money to build Yucca Mountain. It will be the taxpayers 
who will have to foot the bill on top of what the ratepayers 
have already paid. In addition, there is the fact that I 
mentioned earlier, you need a second Yucca Mountain.
    So Yucca it is absolutely I think the wrong direction for 
us to go. It is because of the myriad of problems with Yucca, 
why I think that we need to be aggressively pursuing the idea 
of either reprocessing or some other kind of recycling 
technology. I could walk through all of the problems in more 
detail, however, Senator Clinton, I think you went through some 
of the very obvious problems that we have seen.
    The fact that the Administration is going forward with this 
licensing application next year I believe is irresponsible. 
That is not the direction we need to go in. So I, by the way, 
support nuclear power. I believe it is an important part of the 
whole climate change debate, that we need to have more nuclear 
power in the world, and especially in the United States if we 
want to have less carbon going into the atmosphere.
    The question is just what do we do with the waste. That is 
just the biggest problem, because as far as safety is concerned 
at the power plants, nuclear power is probably the safest power 
that there is, bar none. There have been fewer accidents. There 
has never been a death in the United States from nuclear power. 
We do it safely. It is a question of the waste.
    We have out there today the technology exists to handle the 
problem of nuclear waste. Yucca Mountain is not that answer and 
we ought to proceed on a different course. We ought to be open 
minded, instead of just blindly going along. Currently, we are 
hearing some of the biggest proponents lately starting to 
change their minds. Some in the nuclear power industry 
themselves are changing their minds about Yucca Mountain. This 
Senate ought to take a serious look at what is being talked 
about out there in the technological community.
    Thank you, Madam Chair.
    [The prepared statement of Senator Ensign follows:]

         Statement of Hon. John Ensign, U.S. Senator from the 
                            State of Nevada

    I want to thank the Chair, the Ranking, and other members 
of the Committee for the opportunity to present testimony on 
storing nuclear waste at Yucca Mountain. I firmly believe that 
a storage site at Yucca Mountain should not be built and will 
not be built.
    At the outset, I want to be clear that I am not against 
nuclear power. I believe that it presents this nation with a 
viable clean air energy alternative that can help our nation 
meet its growing needs and reduce our dependence on foreign 
oil. In fact, nuclear energy currently provides 20 percent of 
America's electricity. What I am against is building a $60 to 
$100 billion repository that is scientifically unsound and 
wastes payers rate and eventually taxpayers dollars. Nuclear 
power is an important investment, but one that cannot be made 
idly. With nuclear power generation comes waste, and this 
nation must be responsible and manage the waste in the safest 
manner possible.
    The proposed Yucca Mountain nuclear waste repository is not 
a responsible solution. Not a shovel has turned to begin 
building the actual repository intended to hold tons of 
hazardous, highly radioactive nuclear waste. Yucca Mountain is 
already 20 years behind schedule, with its new opening date 
estimated in 2017 or beyond. It is time to face reality: the 
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 still incomplete or moot, due to 
faulty science and constantly changing designs for the 
repository, none of which have been proven to meet scientific 
standards. In spite of all of this, aware of the flaws and 
failures, DOE is still pushing forward to file its license 
application in June of 2008.
    Yucca has experienced one set back after another. Some of 
these setbacks can be credited to the hard work of the Nevada 
delegation and others who have fought to cut the budget of 
Yucca Mountain. Others have been the result of sheer 
incompetence.

     EPA's radiation protection standards have been rejected 
and criticized because the standards are wholly inadequate, do 
not meet the law's requirements, and do not protect the public 
health and safety.
     The Yucca Mountain Project has suffered nearly three 
decades of scientific and quality assurance problems with 
transportation plans, corrosion of casks, the effectiveness of 
materials, etc., causing DOE to suspend work on the surface 
facilities and the Nuclear Regulatory Commission to issue a 
stop work order on the containers.
     DOE revealed that documents and models about water 
infiltration into the groundwater at Yucca Mountain had been 
falsified, costing the taxpayer million of dollars and 
jeopardizing the citizens of Nevada.
     New evidence placed the location of the Bow Ridge 
earthquake fault line directly beneath where DOE had designed 
the cooling pads for thousands of tons of highly radioactive 
spent fuel forcing last minute redesign.]

    Given the numerous problems and failures at Yucca Mountain, 
both policymakers and industry are recognizing the reality--
Yucca Mountain is not a safe, sound waste solution. In fact, 
just recently, the Heritage Foundation, an advocate for Yucca, 
stated that ``We need to move beyond a Yucca-only approach to 
spent fuel.'' And, earlier this month Frank Bowman, the 
President and CEO of the Nuclear Energy Institute (NEI), the 
policy organization of the nuclear energy and technologies 
industry, made some very candid comments when asked about the 
Yucca Mountain project in an interview. He stated that, ``a 
couple of years ago, we began thinking, shouldn't we take Yucca 
Mountain and move it off the critical path. Is there another 
approach that we've been missing, because we have been so 
Yucca-centric?'' These are provocative, realistic statements 
coming from those who have been avidly pro-Yucca in the past.
    Now we have the opportunity to face reality and move 
forward with sensible solutions, responsibly managing our 
nation's nuclear waste. It can be done. Fortunately, scientists 
agree. Not only do we have the technology to implement safe, 
onsite dry cask storage, but also the technology is there to 
reprocess our waste, which must be part of any long-term waste 
solution.
    On-site dry cask storage is a viable, safe, and secure 
alternative that is readily available and will allow science 
and industry the time to catch up. Dry casks are being safely 
used at 34 sites throughout the country. NEI projects that 83 
of the 103 active reactors will have dry storage by 2050. That 
is why Senator Reid and I have introduced the Federal 
Accountability for Nuclear Waste Storage Act of 2007, which 
would amend the Nuclear Waste Policy Act of 1982 to require 
commercial nuclear power plant operators to transfer spent 
nuclear fuel into dry casks at independent spent-fuel storage 
facilities located onsite with the nuclear reactors. These 
spent-fuel storage facilities would be licensed by the Nuclear 
Regulatory Commission and operated by the Department of Energy, 
who will also have the ownership title of the waste. DOE was 
scheduled to begin taking title to spent nuclear fuel in 1998, 
but because of the myriad of technical, scientific, legal, and 
political problems surrounding the proposed Yucca Mountain 
nuclear waste repository, this has not happened. Taking title 
to spent nuclear fuel fulfills the Federal Government's 
obligation and commitment to retake control over nuclear 
materials. This proposed onsite storage will cost only a 
fraction of the proposed Yucca dump, the pursuit of which has 
already wasted billions of taxpayers' dollars. It is a 
responsible solution and it is available now.
    Storing the waste onsite will allow the necessary time to 
develop a viable reprocessing program using advanced fuel-cycle 
technologies. I have long believed that we need to invest and 
develop these technologies as they are the critical components 
to long-term waste management. Today's reprocessing technology 
makes it possible to recycle and use the byproducts, which 
retain enormous amounts of energy, to generate new, affordable, 
and clean fuel. Consensus is leaning toward using reprocessing 
technologies that have the potential to transform the waste, 
make it less hazardous over a shorter amount of time, and also 
reduce the volume of waste requiring disposal. In fact, France 
has proven itself a model of success. Using current technology, 
France is on target to reprocess 98 percent of its fuel, 
providing close to 10 percent of its power needs, and has done 
so without incident for years.
    Many of the technologies being researched today would 
develop processes that do not produce pure plutonium, removing 
the concern of proliferation. If there is a positive side to 
the insurmountable problems facing Yucca Mountain it is that it 
has given impetus to the nuclear industry and other supporters 
of enhanced nuclear power opportunities to be open to other 
ideas for waste disposal. If we give industry the confidence 
and security that the market exists to reprocess and convert 
spent nuclear fuel, I am confident that the technology, both 
with respect to reactors and reprocessing, will develop to 
match our power and security needs.
    We can meet the energy needs of this nation if we begin to 
develop our domestic resources. Nuclear energy is one of those 
resources and it can have tremendous long-term benefits to this 
Nation. However, in order to harness its power we must manage 
the waste in the most safe, secure, and scientifically sound 
manner possible. Yucca Mountain is not that solution. It is 
time to move past Yucca Mountain. The project is expensive. Now 
is not the time to squander money, resources, and time on a 
project doomed to fail. Rather, now is the time to pursue real 
solutions. One of the solutions

    Senator Boxer. Thank you very much, Senator Ensign.
    Senator Reid, welcome.

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

    Senator Reid. Madam Chair, thank you very much for holding 
this hearing. During my entire career in the Congress, this has 
been an issue. As I come here today and look at the Chair of 
this Committee, I can remember on one occasion that I needed 
one more vote, and you got me that vote on this issue.
    I see Senator Clinton. President Clinton was the first to 
speak out against this, and more than speaking out, his actions 
spoke much louder than his words. So my mind is flooded with 
memories of the battles that we have had and, in my opinion, 
some of the real soldiers.
    Today in Nevada, we are celebrating our birthday. It is 
Nevada Day, October 31. Every Halloween is Nevada's birthday. 
We were born in 1864 during the Civil War. The motto on our 
flag says ``battle born.'' And the State of Nevada has been 
fighting a very lonely fight for these 20 plus years to protect 
the lives of its citizens from radiation exposure, to protect 
our land and water from misuse and contamination, and to expose 
a Government bureaucracy that has been rife with corruption, 
flawed science, and quality assurance failures as it relates to 
Yucca Mountain.
    Madam Chairman, Yucca Mountain is no longer a Nevada issue. 
It is an issue that affects everybody in this Country. We are 
not going to wake up one morning and see that waste at Yucca 
Mountain. It has to come through the railways of this Country, 
the highways of this Country, past our homes, our schools, our 
playgrounds, our churches, our businesses.
    Since 9/11, let's be realistic about this. Are these evil 
people knowledgeable enough to know and find out when 70,000 
tons of this stuff is being shipped across the Country? Do you 
think they could find one truck or train to derail, to take the 
truck? Of course, they could.
    This is a fight that has been rigged from the beginning. 
After passing comprehensive and thoughtful legislation in 1982, 
the year I came to Congress to tackle this difficult issue, led 
by Congressman Mo Udall, Congress then changed the rules of the 
game, and Yucca was chosen as the only site to be closely 
researched. The powerful Senate delegation of a brand new 
Senator named Reid, and one that had been there shortly longer 
than me, Chic Hecht, wasn't very powerful, to be very honest 
with you, and they ran over us.
    It was a political decision. It was counter to the spirit 
of the Nuclear Waste Policy Act, science, safety and security. 
This same rigged process allowed the State of Nevada to veto 
the decision, but also allowed Congress to override it, 
essentially an empty promise. The Government Accountability 
Office has reported exhaustively on quality assurance failures 
with the research done at the site; science that has been 
manipulated; secret meetings have been held without public 
oversight or participation; and the time line designs are ever-
changing without any repercussions from the Department of 
Energy.
    We have uncovered e-mails of scientists who work for the 
Department of Energy and the U.S. Geological Survey saying, we 
have never done any studies, but we are going to say we have. 
That is in effect what they have done. Not in effect what they 
have done, it is what they did.
    EPA has no plans to release its radiation standard before 
the Department of Energy files its license application, an 
environmental standard upon which the success of the entire 
license application rests.
    Now that the license application process is upon us, and we 
are ready for what many believe will be the final battle 
against the dump, Nevadans are again left shaking their heads 
in dismay as they see the decks are again stacked against them. 
The time line to review the application has been 
unrealistically compressed to 3 years, even though the NRC took 
8 years to license the proposed interim storage facility in 
Utah, which is a little facility on an Indian reservation and 
not really surrounded by many people.
    The license support network that the Department of Energy 
has recently certified is filled with thousands, most people 
say millions, of unnecessary documents to make searching for 
the relevant information like finding literally the needle in 
the haystack. The Department of Energy's performance assessment 
computer model, which is the basis for the license application, 
and purportedly will prove that the department can meet all 
environmental standards required by law,
    can't be reviewed by any other entity. How do you like 
that? The only one that can read it that is the Department of 
Energy itself.
    Essentially, this computer model is the license 
application, but the DOE will not let anyone access it, not the 
State of Nevada, not even the Nuclear Regulatory Commission. I 
would like someone here to explain to me how the Department of 
Energy can write a computer modeling program that can prove it 
can meet an EPA radiation standard that doesn't exist. I don't 
care how many servers or processors the Department of Energy 
uses in its complicated computer assessment of Yucca Mountain, 
you can't prove that you can meet a standard that hasn't been 
written, unless of course the Department of Energy has told EPA 
how to write it.
    That is an interesting assumption, isn't it? A little 
backward is how it would have to be described. We are talking 
about the most dangerous substance known on the face of the 
earth.
    Instead of seriously studying whether or not the proposed 
site at Yucca Mountain is safe to store this waste, the 
Department of Energy and the Environmental Protection Agency 
under this Bush Administration are cooking up their own set of 
books to write a radiation standard that can be met by Yucca 
Mountain.
    Many of you will remember EPA already published an earlier 
version of the radiation standard six years ago. In that 
standard, EPA went too far to accommodate the Department of 
Energy's desire to build a waste dump at Yucca Mountain and 
deliberately violated congressional instructions. This rule was 
thrown out by the courts. The EPA wrote a proposed draft in 
2005, two years ago. They haven't finalized it. Where is it? It 
is obvious to me that the EPA is having trouble writing a final 
radiation standard that can meet current law without 
disqualifying Yucca Mountain as a suitable site to dump nuclear 
waste. The EPA knows that if they fudge the exposure numbers, 
they will end up back in court.
    Instead of sticking to the commitment that Yucca Mountain 
would proceed only if it would actually protect public health, 
EPA has cast sound science aside in favor of politics in a 
myopic pursuit of this mysterious Yucca Mountain. And now they 
are delaying publishing a final radiation standard because they 
know the Department of Energy cannot meet the standards 
required by law. They also know that if they delay long enough 
that the State of Nevada will run out of time to take the issue 
back to the courts. Again, it is a rigged process.
    How are we going to secure the waste in the interim? 
Senator Ensign has laid it out very clearly. We leave it where 
it is in dry cask storage containers. It is safe. It is secure. 
Isn't it more secure there than hauling it, picking it up, 
hauling it in trains and trucks, sometimes more than 3,000 
miles? Scientists all agree that it is safe leaving it where it 
is, safe for 100 years, then maybe we can figure out something 
to do with it, and I am sure we can.
    Senators Ensign and Bennett joined me in introducing the 
Federal Accountability for Nuclear Waste Storage Act earlier 
this year. This bill is a road map and a time line for safely 
securing our spent nuclear fuel for up to 100 years, giving us 
time to find a safe, scientific, long-term solution to this 
national security issue.
    The people of Nevada, as well as the rest of this country, 
deserve answers to their many questions about the safety of a 
proposed nuclear dump at Yucca Mountain. Those of you who have 
nuclear power generated in your States, talk to the owners of 
those projects and see how they feel about this. You will find 
that half of them are sick of Yucca Mountain and want out of 
it. They want nothing more to do with it. That is not hearsay.
    We are only 8 months away from the Department of Energy's 
deadline to submit the license application by the NRC. I have 
told everyone here what an unfair process it is. I like to talk 
about when Government works well. When Senator Ensign and I fly 
into Reno, Nevada, you will see a lake we now call it the 
Sparks Marina Park. It is a beautiful facility. They are 
building condos and apartments, they have a walking park around 
it. It is beautiful. It was a Superfund site, and now it is one 
of the most beautiful places for recreation in the State of 
Nevada. That is government at its best.
    Yucca Mountain is the exact opposite. It is government at 
its worst.
    Thank you, Madam Chairman, Madam Chairwoman.
    [The prepared statement of Senator Reid follows:]

          Statement of Hon. Harry Reid, U.S. Senator from the 
                            State of Nevada

    I want to thank the Chair, the Ranking Member and other 
members of the Committee and for the opportunity to present 
testimony on this important issue to the State of Nevada. As 
some of you may know, today is Nevada Day, the day on which 
Nevada became a State in 1864. Many of you may know that the 
motto on Nevada's State flag says ``Battle Born,'' a saying 
that is just as appropriate now, as it was back then. And now 
the State of Nevada is in a battle of its own, to protect the 
lives of its citizens from radiation exposure, to protect their 
land and water from misuse and contamination, and to expose a 
government bureaucracy that has been rife with corruption, 
flawed science and quality assurance failures.
    And so, Nevada continues to fight a battle that was rigged 
from the beginning. After passing comprehensive and thoughtful 
legislation in 1982 to tackle this difficult issue, Congress 
then changed the rules of the game and Yucca was chosen as the 
only site to be closely researched. This was a political 
decision that was counter to the spirit of the Nuclear Waste 
Policy Act--science, safety, and security clearly did not drive 
this decision. This same rigged process allowed the State of 
Nevada to veto the decision, but also allowed Congress to 
override it--essentially an empty promise.
    GAO has reported exhaustively on quality assurance failures 
with the research done at the site--science has been 
manipulated, secret meetings have been held without public 
oversight or participation, and the timeline and designs are 
ever-changing without any repercussions for the Department of 
Energy. And don't forget that EPA has no plans to release its 
radiation standard before the Department of Energy files its 
license application, an environmental standard upon which the 
success of the entire license application rests.
    Now that the license application process is upon us and we 
ready for what many believe will be the final battle against 
this dump, Nevadans are again left shaking their heads in 
dismay as they see that the decks are again stacked against 
them. The timeline to review the application has been 
unrealistically compressed to 3 years, even though the NRC took 
8 years to license the proposed interim storage facility in 
Utah. The License Support Network that the Department of Energy 
has recently certified is filled with thousands--maybe 
millions--of superfluous documents to make searching for the 
relevant information like finding a needle in a haystack. The 
Department of Energy's Performance Assessment computer model, 
which is the basis for the license application and purportedly 
will prove that the Department can meet all the environmental 
standards required by law, can't be reviewed by any other 
entity except itself.
    Think about that. Essentially, this computer model is the 
license application. But DOE will not let anybody access it--
not the State of Nevada, and not even the NRC.
    I'd like someone here to explain to me how the Department 
of Energy can write a computer modeling program that can prove 
it can meet an EPA radiation standard that doesn't exist. I 
don't care how many servers or processors that the Department 
of Energy uses in its complicated computer assessment of the 
Yucca Mountain site, you can't prove that you can meet a 
standard that has yet to be written--unless of course, the 
Department of Energy has told EPA how to write it. Interesting 
assumption, isn't it? A little backward is how I would describe 
it. We are talking about the most dangerous substance known on 
the face of the earth. And instead of seriously studying 
whether or not the proposed site at Yucca Mountain is safe to 
store this waste, the Department of Energy and the 
Environmental Protection Agency are cooking up their own set of 
books to write a radiation standard that can be met at Yucca 
Mountain.
    As many of my colleagues will remember, EPA already 
published an earlier version of the radiation standard in 2001. 
And in that standard, EPA went too far to accommodate the 
Department of Energy's desire to build a waste dump at Yucca 
Mountain and deliberately violated congressional instructions 
in the 1992 Energy Policy Act. Thankfully this rule was thrown 
out by the courts.
    The EPA wrote a newly proposed draft in 2005--2 years ago--
which has yet to be finalized. Where is it? It is obvious to me 
that the EPA is having trouble writing a final radiation 
standard that can meet current law without disqualifying Yucca 
Mountain as a suitable site to dump nuclear waste. And EPA 
knows if they fudge the exposure numbers they will end up back 
in court.
    Instead of sticking to the commitment that Yucca Mountain 
would proceed only if it would actually protect public health, 
EPA has cast sound science aside in favor of politics in the 
myopic pursuit of Yucca Mountain. And now they are delaying 
publishing a final radiation standard because they know the 
Department of Energy cannot meet the requirements required by 
law. And they also know that if they delay long enough that the 
State of Nevada will run out of time to take this issue back 
into the courts. Again, this is a rigged process.
    How are we to secure the waste in the interim? We leave it 
onsite in dry cask storage, where it is already safely and 
securely stored at most nuclear plant sites and where the 
experts and the nuclear industry have demonstrated that it will 
continue to be safely stored for decades.
    Senators Ensign and Bennett joined me in introducing the 
Federal Accountability for Nuclear Waste Storage Act earlier 
this year. This bill is a road map and a timeline for safely 
securing our spent nuclear fuel for one to two hundred years, 
giving us time to find a safe, scientific long-term solution to 
this national security issue.
    Thank you again Chairman Boxer for holding this important 
hearing. The people of Nevada, as well was the rest of the 
United States, deserve answers to their many questions about 
the safety of a proposed nuclear waste dump at Yucca Mountain. 
We are only 8 months away from the Department of Energy's 
deadline to submit the license application for review by the 
NRC. I am anxious for this final battle to be over so that we 
can move on to resolving the underlying problem of what to do 
with our country's nuclear waste.

    Senator Boxer. Thank you, Senator Reid. Either way is fine.
    I want to thank both of you so much. You obviously have 
very deeply felt feelings. I don't have any questions for you 
except to say personally I have been with you for a very long 
time on this,
    and I think that you have been proven right every step of 
the way.
    I don't know if any colleagues have questions of our 
witnesses.
    Senator Carper.
    Senator Carper. I have a question of both of our witnesses. 
First of all, our leader.
    Senator Reid. Never ask a question unless you know what the 
answer is going to be.
    [Laughter.]
    Senator Carper. I think I probably do.
    I was in the House. I think Senator Craig was in the House. 
Senator Boxer was in the House.
    You were I think over in the Senate when we took up this 
legislation 25 years or so ago and in a sense just sort of 
jammed it down Nevada's throat. I reflect back on that any 
number of times, and I was saying to Senator Clinton, when I 
was Governor of Delaware, one of the hardest siting decisions 
we ever made was where do you put a prison. In a State like 
mine, we are a fairly densely populated State, and nobody ever 
wanted a prison in their neighborhood. We found that other 
States where frankly they regard a prison as economic 
development and good jobs.
    I wish when we did this 20 years ago or however many years 
ago, we were smart enough to figure out how to incentivize a 
community or find a State who saw this as an opportunity, an 
economic development opportunity. I said to Senator Clinton, 
half kidding but half serious, we should have been smart enough 
to say, you know, for a State that will accept a repository for 
nuclear waste for the next 1,000 or 10,000 years, whatever, you 
will get free electricity or make some kind of deal that they 
couldn't say no to.
    Do you recall? Was that ever part of the discussion? I just 
don't recall.
    Senator Reid. It was never part of the deal. I would also 
say this, Senator Carper, when you know in the gambling jargon 
you have a bad hand, you should start over again. They have 
been unwilling to do that. Mo Udall's plan was a good plan. It 
was fair. We would have three separate site characterizations; 
three different geologic formations, and they would actually 
characterize those, and find out which one was the best of the 
three to do this. That was just thrown away.
    Yucca Mountain has been bastardized. It was set up to have 
the geological formation protect the people from nuclear waste. 
They learned a long time ago that won't work. So now what they 
are doing is building a sleeve in this big hole to have the 
sleeve protect it. I mean, it is absolutely without any 
scientific foundation.
    Now, with the passage of time, as Senator Ensign said, the 
nuclear power generators are now understanding what a bad deal 
this is. It will never happen. I repeat again, 9/11, what did 
it teach us? It taught us a number of things, that evil people 
will go to extremes to do terribly bad things to us. This is an 
invitation to them, to haul this stuff across America's 
railways and highways.
    Senator Ensign. Just briefly, I think it probably would 
have been smart politics to say to us, OK,
    we want to study these States. If any of the States 
actually wants to be part of that study, we are going to put 
some incentives out there and have them say yea or nay. Nevada 
would have said nay back then. I mean, our citizens have been 
against this project from the very beginning.
    So I think that would have been a little fairer process, 
but the bottom line is, even if that process had gone forward, 
Yucca Mountain has definitely proved that it is too costly, and 
that really isn't the best solution anyway. A deep geologic 
repository is not the best solution for nuclear waste.
    In France, they predicted that this waste after they 
reprocessed it, and then classified it, they predicted that it 
would get warmer over time. In reality it has actually gotten 
cooler. And so the bottom line is, they have been doing it long 
enough where they have proven it safe. We in this country have 
100 years to decide if we want to go and turn waste into glass 
as France did because dry cask storage is good enough to push 
this decision off into the future. Dry cask storage is very 
safe.
    Senator Reid. Senator Carper, if I could just say one 
additional thing here. There were no incentives offered, and I 
agree with Senator Ensign, in fact if there had been. But part 
of it is the way this matter has been handled by some of these 
people down in the bowels of the bureaucracy. Sweden does have 
an incentivized program, and some say that is working fine in 
Sweden, but as I said, it is 25 years ago that we started this, 
and Sweden is way ahead of us.
    Senator Carper. Madam Chair, if I could just wrap it up by 
simply saying, Senator Reid and Senator Ensign think it is 
unlikely that Yucca Mountain will ever be open for business as 
usual,
    if you will. They may well be right. As Senator Ensign 
said, even if it were open, eventually there will have to be 
another Yucca Mountain. He may well be right there as well.
    I just hope we are smart enough the next time we try to 
site one of these facilities, if we decide not to try to do all 
the siting onsite where nuclear power plants currently exist, 
if we try to do it, that we try to figure out what communities, 
what States would frankly welcome the investment--billions of 
dollars investment, billions of dollars worth of construction 
jobs.
    Frankly, good-paying jobs going on for as far as the eye 
can see. And I think the potential for dramatically reduced 
costs of electricity. That has got to get somebody's attention, 
and I hope we are smart enough to figure out how to do that.
    Senator Reid. Senator, the problem with that now, though, 
is the 9/11 problem. Hauling it, that is the problem.
    Senator Carper. Madam Chair, I would just say this, I don't 
know who our next President is going to be, but whoever she 
turns out to be----
    [Laughter.]
    Senator Carper. Whoever turns out to be our next President, 
I hope our next President will launch, I will call it a 21st 
century Manhattan Project where we actually go out there, put 
together the best smartest people we can fine, to figure out 
what to do with this waste, so we won't have to worry about it 
for 10,000 years. We may not even have to worry about it for 
100,000 years. I just think the Nation that was smart enough to 
develop, to invent the airplane, to invent cars, automobiles, 
the Nation that was smart enough to invent the television and 
the internet, smart enough to put a man on the moon 10 years 
after we said we were going to, we have to be smart enough to 
figure this one out, too, and we just need to do it.
    Senator Craig. Madam Chair.
    Senator Boxer. Yes, Senator.
    Senator Craig. Just a brief comment to both the Nevada 
Senators. They and I and others have debated this issue a long 
time, and while obviously it is a highly emotional issue for 
the State of Nevada. Both of them, Madam Chair, have been 
gentlemen in the debate. We have tried to deal with the issues 
and the science and the reality, and I thank them for that.
    Senator Ensign mentioned recycling. I think all of us are 
looking at that most seriously today as a necessary step in the 
process of a nuclear renaissance for our Country, because 
certainly we want it to be a cleaner place. We want abundant 
energy, and right now the technology that offers that is 
nuclear.
    Senator Boxer. Senator, we are not making statements.
    Senator Craig. OK.
    Senator Boxer. If you have a question, please direct it. If 
not, we have to get through our opening statements. Other 
people have to have a chance.
    Senator Craig. I appreciate your tolerance, as you have 
done with Senator Carper.
    Senator Boxer. Senator Carper, that is going to be his 5 
minutes.
    Senator Craig. Oh, excuse me then.
    Senator Boxer. Yes.
    Senator Craig. One brief question, without vitrification or 
classification and recycling, our scientists are still telling 
us we will need some permanent repository for the last of the 
high level, although we have reduced its volume tremendously. 
Do you agree or disagree with that?
    Senator Ensign. Well, first of all that is so far down the 
line, and what needs to be done can be studied over the next 
100 years while the waste is being stored. First of all, other 
countries are so far ahead of us. The bottom line is we are a 
long way away of even needing to make that decision, but I 
think it absolutely needs to be studied. When we get to that 
study, something like what Senator Carper talked about with the 
incentives, might not be a bad thing to look at. But scientists 
are telling us that there needs to be some kind of a storage 
area, but I think we have quite a bit of time to study that.
    Senator Craig. Thank you both.
    Madam Chairman, thank you.
    Senator Boxer. Sure.
    Senator Reid, did you have an answer to the question? All 
right.
    We thank our colleagues so much for your time. Thank you 
very much.
    We will continue now with our opening statements. The next 
one would be Senator Barrasso.

           OPENING STATEMENT OF HON. JOHN BARRASSO, 
             U.S SENATOR FROM THE STATE OF WYOMING

    Senator Barrasso. Thank you very much, Madam Chairman. I 
look forward to becoming more informed today and educated 
toward the licensing process for the Yucca Mountain repository 
and the concerns that we are hearing about.
    As a newcomer to this forum, it seems from the submitted 
testimony that the issue of a long-term nuclear waste storage 
has been discussed for some three decades. My fundamental 
concern is for the continuation of a fair, objective and 
informed process, a process that respects the advice of our 
best scientists, a process that allows a fair hearing of those 
most closely impacted, and finally a process that demonstrates 
accountability to both our taxpayers and our ratepayers' hard-
earned money.
    As policymakers, we do owe it to our constituents this 
careful review. This is true whether those constituents live 
near a nuclear facility with temporary onsite storage, or 
whether they live near a transportation corridor between a 
nuclear facility and a permanent repository, or if they live 
near a permanent waste repository. Oversight of this process is 
appropriate, as the environmental and domestic security stakes 
are high.
    With that background, I feel compelled to point out a more 
immediately pressing observation, and that is as a member of 
both the Senate Energy and the Senate Environment Committees, I 
am increasingly struck by the policies that are presently being 
debated. I ask myself, are the policies properly harmonized 
between affordable secure domestic energy sources and 
preservation of our natural resources?
    I note that we debate aggressive carbon limitations while 
simultaneously we struggle to adequately deal with the long-
term storage of nuclear waste, as nuclear power is an energy 
source that doesn't emit carbon. I note as we discuss energy 
policy, we often limit, rather than expand, domestic 
exploration, production, generation and development 
opportunities. Quoting from a recent Energy Information 
Administration report assessing one of the cap and trade bills 
that was introduced earlier this year, it states, ``New nuclear 
plants are a key technology the power sector is projected to 
rely on to reduce greenhouse emissions.'' This Energy 
Information. Administration report projects that an estimated 
145 gigawatts of new nuclear capacity will be added by 2030.
    My point in these discussions regarding energy and the 
environment is that we need to explore and properly plan for 
all energy sources because we as a Nation are going to need all 
of the energy sources. We need investment in technology for 
renewable sources, technology for cleaner fossil fuel uses, and 
yes, technology and a predictable regulatory framework for 
nuclear energy and its accompanying waste.
    I ask myself from where will we get the energy that we need 
tomorrow? Currently, fossil fuels and nuclear energy account 
for approximately 93 percent of our energy consumption. We will 
not be able to change that statistic overnight. In the 
meantime, it is our obligation to carefully and cautiously 
execute a national policy on long-term storage of nuclear 
waste. We should not saddle future generations with a strategy 
left unexecuted. A major component of that is a long-term, 
well-developed strategy to deal with our existing and our 
future nuclear waste in an environmentally and domestically 
secure fashion.
    Thank you, Madam Chairman, for holding these hearings.
    Senator Boxer. Thank you, Senator.
    Senator Isakson?

           OPENING STATEMENT OF HON. JOHNNY ISAKSON, 
             U.S. SENATOR FROM THE STATE OF GEORGIA

    Senator Isakson. Thank you very much, Madam Chairman.
    I want to first of all associate myself with the remarks of 
Senator Carper with regard to this Country's need to establish 
a Manhattan-like project in terms of dealing with the storage 
of spent nuclear fuel. It is absolutely exactly the right 
approach we should have. I think the question is not whether or 
no we should expand our nuclear energy, but how we are going to 
be able to expand it and meet the demands of storage in the 
future. So I associate myself with that remark.
    As far as the question of we have 100 years before we have 
to worry, whether or not that is true,
    given both the geo-political issues that we have with 
fossil fuels, as well as the carbon issues that we debate in 
the Senate, there is no question that the immediacy of dealing 
with safe nuclear spent fuel storage is absolutely now today.
    I look forward to listening to the testimony of the experts 
that will testify today on Yucca Mountain and will study it 
closely.
    I will also follow up at the suggestion of Senator Reid, I 
will talk to our nuclear producers in Georgia and get their 
opinions with regard to Yucca. But it is absolutely critical 
that this Committee move forward and encourage the safe 
licensing and safe storage of spent nuclear fuel as quickly as 
we can because expansion of nuclear energy in the power sector 
alone will be the single largest component, as Senator Barrasso 
has said, to reducing carbon in the atmosphere and dealing with 
the geo-political issues of the importation of oil from the 
Middle East, both of which are serious political problems and 
serious health problems for us in this Country today.
    Thank you, Madam Chairman.
    Senator Boxer. Senator, thank you for your always 
thoughtful comments.
    We are going to invite our second panel to come forward, 
Hon. Edward Sproat, III, and Robert J. Meyers and Michael 
Weber.
    I am going to hand Senator Carper the gavel and ask if he 
will complete our hearing today. We
    should get through this at 12:30 p.m. so we all have these 
other----
    Senator Carper. I would be happy to do it.
    Senator Boxer. Thanks. All right, I am going to hand you 
the gavel and I am going to take my halo with me today.
    Senator Carper.
    [Presiding] I don't get the halo?
    Senator Boxer. No.
    [Laughter.]
    Senator Carper. What is the old country and western song, 
She got the gold mine and I got the shaft? I get the gavel, you 
keep the halo. It is not right.
    Senator Boxer. Let's discuss how you might get this halo.
    [Laughter.]
    Senator Carper. I have my work cut out for me.
    Senator Craig. Chairman Carper, she got the gold mine and 
you got Yucca.
    [Laughter.]
    Senator Craig. Same thing.
    Senator Carper. All right. Let's go to our witnesses.
    I frankly don't have the----
    Senator Boxer. Here is the list.
    Senator Carper. OK. Thank you.
    I want to give our witnesses a good introduction.
    Welcome, panel two. First of all, the Director of the 
Office of Civilian Radioactive Waste Management for the U.S. 
Department of Energy, Edward Sproat. Welcome, Mr. Sproat.
    Our second witness is Robert Meyers, Principal Deputy 
Assistant Administrator for the Office of Air and Radiation at 
the U.S. Environmental Protection Agency. Mr. Meyers, it is 
nice to see you again. Welcome.
    Our third witness on this panel is Michael Weber, who is 
the Director of the Office of Nuclear Material Safety and 
Safeguards at the U.S. Nuclear Regulatory Commission. Mr. 
Weber,
    welcome. We are delighted that you are here.
    Your entire testimony will be made part of the record. We 
will ask you to try to sum up in about five minutes and then we 
will turn to questions.
    Welcome. Thank you.

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

    Mr. Sproat. Thank you, Senator, and good morning fellow 
Senators. It is an honor to be here this morning to talk about 
where we stand with moving forward with Yucca Mountain.
    I am here representing not only the President and the 
Secretary of Energy, but the 2,700
    professional engineers and scientists that work for our 
national laboratories that have been working on Yucca Mountain 
for 30 years. I would like to address several of the points I 
have heard in the opening statements this morning and talk 
about specific issues that were raised, and maybe help clear up 
a few misconceptions regarding some of the points that were 
brought up.
    I heard several times this morning about flaws in the 
Nuclear Waste Policy Act. I cannot, and I
    am not here to defend how the Nuclear Waste Policy Act was 
developed. It was developed and passed when I was in my early 
30's. So all I know is, my responsibility today for the 
Department of Energy is to follow and execute the plan that the 
Congress laid out for moving forward with disposal of the 
Nation's high level radioactive waste and spent nuclear fuel.
    Now, that process, which has been going on now for 30 years 
since we did our first explorations at the Yucca Mountain site 
in Nevada, has been moving, has spent a lot of money, a lot of 
professionals, a lot of the best scientists in this Country 
have been working on it. I believe we have gotten to the point 
where that science and that technology is ready to be 
integrated and presented in an open and transparent process in 
front of the Nuclear Regulatory Commission so that their 
technical experts can determine whether or not the Yucca 
Mountain site can be licensed. That is what we are intending to 
do.
    Now, there was some indication this morning that some 
people think we are rushing to get this done. Let me just say 
that this program is 30 years old. The license application is 6 
years behind the schedule that the Congress told the Department 
of Energy that it wanted to follow in submitting the license 
application. We are now at the point where that science is 
ready. I have been very clear with my team and with the entire 
group of scientists and engineers that not only do we want to 
get this license application pulled together, because now is 
the time to do it, but because the quality and the safety of 
Yucca Mountain and the science behind it is absolutely 
critical.
    So I have been very clear in the message I have been 
sending to the organization that they not only have to get it 
done with some schedule discipline, which quite frankly the 
management of this program hasn't had in the past, but with the 
quality and safety that is required of a Nuclear Regulatory 
Commission licensee. The people have responded to that message 
extremely well.
    The second issue I would like to bring up is that I have 
heard a number of times that we really shouldn't proceed with 
Yucca Mountain. Let's leave it where it is for the next 100 
years or so and then figure out where it goes from there. Let 
me just say that if you are not in favor of moving forward with 
this, then you are clearly in favor of leaving it where it is 
indefinitely. This generation is the beneficiary of nuclear 
power. It is the generation that is generating the nuclear 
waste. It is the generation that has the responsibility to 
determine what to do with the nuclear waste and to move forward 
with it in a safe, responsible manner.
    Now, right now, high level nuclear waste and spent nuclear 
fuel is at 121 different sites in 31
    States. In the State of California, there are nine sites 
with 2,400 metric tons of uranium, spent nuclear fuel, and 
there are 23.1 million people living within 75 miles of those 
sites.
    The third issue I heard talked about was transportation. I 
think most people aren't aware that since 1964, there have been 
over 2,800 truck shipments and over 500 rail shipments of 
commercial spent nuclear fuel in this Country safely and 
without an accident. And also, the National Academy of Sciences 
last year issued a report that determined that the 
transportation of spent nuclear fuel can be done safely by rail 
and by truck with no fundamental technical barriers.
    The last issue that we heard about this morning was 
terrorism, and the opportunities for terrorism that 
transportation provides. All I would say is, if you are 
concerned about terrorism, what makes an easier target: 121 
sites where the waste is stationary and everybody knows where 
it is, or waste that is moving with an armed guard and the only 
people who know where it is are the people who are guarding it?
    So I would ask that question in response to the question of 
concern about terrorism.
    Let me just conclude by saying that nuclear power needs to 
be a part of our national strategic energy mix. What to do with 
the waste is a part of that question and is an enabler of 
helping to make sure nuclear power is a part of the energy mix. 
It has to be an essential piece of our climate change strategy. 
The game plan and the law of the Country that has been passed 
by the Congress, approved by the executive branch, and upheld 
by the judiciary branch of this Government, says the next step 
in the process is to license Yucca Mountain, and that is what 
we are intending to do.
    Thank you, sir.
    [The prepared statement of Mr. Sproat follows:]

    Statement of Edward F. Sproat, III Director, Office of Civilian 
        Radioactive Waste Management, U.S. Department of Energy

    Madam Chairman, Senator Inhofe and Members of the 
Committee, I am Edward F. Sproat, III, Director of the 
Department of Energy's (DOE) Office of Civilian Radioactive 
Waste Management (OCRWM). I would like to thank the Committee 
for the opportunity to discuss the status of the Department's 
efforts to submit a license application to the Nuclear 
Regulatory Commission (NRC) for authorization to construct a 
repository for the permanent disposal of the Nation's spent 
nuclear fuel and high-level radioactive waste at Yucca 
Mountain, Nye County, Nevada.
    Since my confirmation by the Senate in May of 2006, I have 
focused on developing a high-quality and docketable license 
application and submitting that application to the NRC in a 
timely manner. I set as one of my strategic objectives the 
submittal of that application no later than June 30, 2008 and 
we are currently on schedule to accomplish that objective. 
Today I would like to discuss the regulatory framework for the 
licensing of the Yucca Mountain repository and to provide a 
status of our commitment to submit that license application by 
June 30, 2008.


       the framework for licensing the yucca mountain repository


    The Nuclear Waste Policy Act of 1982, as amended (the NWPA) 
established a process and schedule for the siting, construction 
and operation of a national repository for spent nuclear fuel 
and high-level radioactive waste. On February 15, 2002, the 
President submitted his recommendation to Congress recommending 
Yucca Mountain as the site for the development of a repository 
in accordance with the NWPA, and on April 8, 2002 Congress 
passed House Joint Resolution 87 approving the Yucca Mountain 
site as the location for the Nation's repository. This Joint 
Resolution was signed into law by the President on July 23, 
2002.
    Under section 114(b) of the NWPA, 42 U.S.C. 10134 the 
Department must now prepare and submit a license application to 
the NRC. The NRC will evaluate DOE's license application in 
accordance with the regulations developed pursuant to the NWPA 
and the Energy Policy Act of 1992, including 10 C.F.R. Part 63 
(Disposal of High-Level Waste in a Geologic Repository at Yucca 
Mountain, Nevada). As part of the licensing process, DOE will 
be required to demonstrate that the proposed repository meets 
the regulatory radiation protection standards which have been 
established and adopted by the Environmental Protection Agency 
(EPA) and incorporated by the NRC into 10 C.F.R. Part 63 
pursuant to the Energy Policy Act of 1992, which required EPA 
to set site-specific standards to protect public health and 
safety from releases of radioactive material stored or disposed 
of in the repository at the Yucca Mountain site.
    Pursuant to the Energy Policy Act of 1992, EPA promulgated 
public health and safety standards for radioactive materials to 
be disposed of in the Yucca Mountain repository. 40 C.F.R. 197 
(2001)(Public Health and Radiation Protection Standards for 
Yucca Mountain, NV); 10 C.F.R. Part 63 (2004). In 2004, in 
response to legal challenges, the U.S. Court of Appeals for the 
District of Columbia Circuit remanded the portions of those 
standards that addressed the period of time for which 
compliance must be demonstrated. In 2005, EPA proposed new 
standards to address the court's decision. Under the existing 
standards, estimated repository performance will be compared to 
a mean annual dose of 15 millirem for the first 10,000 years 
after closure. Under the proposed standards, estimated 
repository performance would be compared to a median annual 
dose of 350 millirem for the post-10,000 year period. The 
Department expects that EPA will issue its revised final 
radiation exposure standard in the near future and that NRC 
will subsequently adopt those regulations. While NRC will need 
to have adopted its corresponding final regulations before it 
can issue the construction authorization, DOE does not need the 
final radiation protection standard to develop or submit its 
license application.
    Finally, under the NWPA the NRC retains National 
Environmental Policy Act (NEPA) responsibilities with respect 
to issuance of a license. However, the NWPA provides that any 
environmental impact statement that DOE prepares ``. . . shall 
to the extent practicable, be adopted by the Commission in 
connection with the issuance by the Commission of a 
construction authorization and license for such repository.'' 
To the extent NRC adopts DOE's environmental impact statement, 
under the NWPA that adoption shall be deemed to also satisfy 
the responsibilities of the Commission under NEPA.


                 current status of license application


    The Department is currently preparing its license 
application as required by the NWPA and plans to submit the 
application to NRC not later than June 30, 2008. Approximately 
5 years will have elapsed between when the site recommendation 
was approved and submittal of the application. In working 
toward a submittal by June 30, 2008, DOE has not put schedule 
ahead of quality. Quality and timeliness are not mutually 
exclusive and our license application will be the product of a 
disciplined approach. Our application must be sufficient to 
withstand a thorough and rigorous adjudication by the NRC, with 
scrutiny by NRC's technical experts and with full opportunity 
for challenges by the State of Nevada and other interveners. 
The license application will integrate the results of over 20 
years of scientific and engineering work which is now ready to 
be scrutinized by the NRC's technical experts and the public. 
When the EPA standard is final, NRC can finalize its 
corresponding regulation. NRC will then be able to examine the 
results of our analyses and determine, as part of NRC's 
decision as to whether the materials can be disposed of without 
unreasonable risk to the health and safety of the public. 
Therefore, NRC cannot reach its licensing decision on the 
safety of the facility until EPA standards and NRC regulations 
become final. I am confident that the analyses contained in our 
application will be sufficiently robust for NRC to be able to 
make that determination.
    The Department has also prepared a Final Environmental 
Impact Statement for a Geologic Repository for the Disposal of 
Spent Nuclear Fuel and High-Level Waste at Yucca Mountain, Nye 
County, Nevada (Final EIS) which was issued in 2002. On October 
12, 2007, the Department published a Notice of Availability of 
a Draft Supplemental Environmental Impact Statement for a 
Geologic Repository for the Disposal of Spent Nuclear Fuel and 
High-Level Radioactive Waste at Yucca Mountain, Nye County, 
Nevada (Draft Repository SEIS) which DOE also expects will be 
completed and submitted to NRC not later than June 30, 2008. 
This Draft Repository SEIS evaluates the potential 
environmental impacts of constructing and operating the Yucca 
Mountain repository under the repository design and operational 
plans that have been developed since the Final EIS was issued 
in 2002.
    On October 19, 2007, the Department certified its document 
collection for the NRC's Licensing Support Network (LSN). The 
LSN is a web-based information system that makes electronically 
available documentary materials related to the Department's 
license application. As of today, DOE has made approximately 
3.5 million documents, estimated to exceed 30 million pages, 
electronically available to the public on the LSN. These 
documents include scientific, engineering, and other documents 
related to DOE's license application. The Department will 
update its certification at the time of license application 
submittal as is required by NRC regulations, and we will 
continue to supplement the document production throughout the 
discovery phase of the NRC licensing proceeding.
    In conclusion, I appreciate this opportunity to review the 
process to license the Yucca Mountain repository as defined in 
the NWPA and to provide an update on the progress we are 
making. Since the site was approved by Congress in 2002, the 
Department will have taken over 6 years to reach the next 
step--to file a license application with the NRC. I came to the 
Department to fulfill the congressional mandate to follow 
through with the application to the NRC and I plan to meet my 
commitment to submit the application to the NRC within the next 
8 months.

      Responses by Edward F. Sproat, III, to Additional Questions 
                           from Senator Boxer

    Question 1a. In its 2002 Final Environmental Impact 
Statement for Yucca Mountain, the Department ofEnergy (DOE) 
concedes that groundwater beneath the repository surfaces in 
California at Franklin Lake Playa, and that 69,500 people could 
be exposed to contaminated groundwater 37 miles down-gradient 
in California. Does the DOE have any plan for remediation of 
contaminated areas in California?
    Response. The Department ofEnergy's (DOE) 2002 Yucca 
Mountain Final Environmental Impact Statement does not concede 
that 69,500 people could be exposed to contaminated groundwater 
in California. Rather, the Final Environmental Impact Statement 
states that ``[natural discharge of groundwater from beneath 
Yucca Mountain probably occurs farther south at Franklin Lake 
Playa and spring discharge in Death Valley is a possibility.'' 
(FEIS, p. 5-22)
    The Environmental Protection Agency has established a 
groundwater protection standard with respect to potential 
releases from the Yucca Mountain repository
    and the Nuclear Regulatory Commission (NRC) will decide if 
there is a reasonable expectation that the standard will be met 
at the 12-mile boundary from the repository in the direction of 
groundwater flow. If the standard is met at the 12-mile 
boundary, it will also be met 37 miles down-gradient in 
California and thus there will be no environmental damage to 
remediate nor need for a remediation plan. If the standard is 
not met at the 12-mile boundary, NRC will not authorize 
construction of the Yucca Mountain repository.

    Question 1b. Does the DOE consider these impacts 
permissible?
    Response. The Department has recently issued a Draft 
Supplemental Environmental Impact Statement for a Geolosic 
Repository for the Disposal ofSpent Nuclear Fuel and Hizh-Level 
Radioactive Waste at Yucca Mountain. Nevada County, Nevada 
(Repository SEIS). The information on which that draft 
Repository SEIS is based indicates that the groundwater 
protection standard will be met at the 12-mile boundary from 
the repository. Accordingly, DOEbelieves it is reasonable to 
expect there will be no impermissible impacts on groundwater 37 
miles down-gradient in California.

    Question 2a. What are the potential risks that groundwater 
in Death Valley National Park will be contaminated by seepage 
from the repository?
    Response. The Environmental Protection Agency (EPA) has 
established a groundwater protection standard with respect to 
potential releases from the Yucca Mountain repository and the 
Nuclear Regulatory Commission (NRC) will decide if there is a 
reasonable expectation that the standard will be met at the 12-
mile boundary from the repository in the direction of 
groundwater flow. If the standard is met at the 12-mile 
boundary, it will also be met at Death Valley. If the standard 
is not met at the 12-mile boundary, NRC will not authorize 
construction of the Yucca Mountain repository.

    Question 2b. Will DOEaddress this issue in its license 
application?
    Response. The Department's license application seeking 
authorization to construct the repository will address the 
groundwater protection standard in the context of the 12-mile-
boundary from the repository. The Department believes that 
examination of this issue at the point identified by the EPA 
provides reasonable assurance concerning the protection of 
groundwater at Death Valley.

    Question 3. Is DOEconsidering the potential risks to the 
integrity of the repository from future drilling into the Lower 
Carbonate Aquifer for water to support population growth in Las 
Vegas? If so, please describe the risks and how DOEwill address 
them.
    Response. No. Future drilling in the Lower Carbonate 
Aquifer would not compromise the integrity of the repository. 
Any drilling would be well away from the repository footprint 
and would not intersect the drifts containing waste.

    Question 4a. My home State ofCalifornia is particularly 
concerned about the route waste will take on its way to Yucca 
Mountain. Does the DOEplan to release alternative truck 
shipping routes before submission of the license application?
    Response. The Department has issued a Draft Supplemental 
Environmental Impact Statement for a Geologic Repository for 
the Disposal ofSpent Nuclear Fuel and Hieh-Level Radioactive 
Waste at Yucca Mountain. NNevada County, Nevada (Repository 
SEIS) which provides a discussion of representative routes 
nationally, and the public has been invited to comment on that 
document. In addition, the Department ofEnergy (DOE) has been 
engaged in development of criteria and methodologies for route 
selection with representatives from States and Tribes through 
whose jurisdictions shipments may be transported. This process 
will culminate in the selection of routes 3-5 years prior to 
the first shipment. DOE is
    also committed to providing technical assistance and funds 
for training related to these shipments for local public safety 
officials along shipping routes. DOEnotes that currently 
individuals and States do not have the opportunity to address 
the shipment plans or routes for any other category of 
hazardous material shipped by rail in this country each year.

    Question 4b. Has the department assessed the radiation 
exposure to workers and the public along the transportation 
corridors?
    Response. Yes. The Department published its initial studies 
of the impacts associated with operating a national 
transportation system to ship spent nuclear fuel and high---- 
level radioactive waste to Yucca Mountain in the Yucca Mountain 
Final
    Environmental Impact Statement that DOE issued in 2002. 
This document was recently updated in the Draft Supplemental 
EnvironmentalImpact Statement for a Geologic Repository for the 
Disposal ofSpentNuclear Fuel andHigh-Level Radioactive Waste at 
Yucca Mountain, Nye County, Nevada (Repository SEIS). The draft 
Repository SEIS was issued in October 2007 for public review 
and comment.

    Question 5. . Please furnish copies of all correspondence 
between DOEand EPAor NRC concerning the proposed EPA Yucca 
Mountain radiation standard rule.
    Response. While no timeframe for this request has been 
specified, the Department assumes this document request relates 
to those documents generated after the ruling of the United 
States Court ofAppeals for the District ofColumbia Circuit 
issued on July 9, 2004, in Nuclear Energy Institute, Inc. v. 
EnvironmentalProtection Agency, Case No. 01-1258, and relating 
to the proposed rule issued by the Environmental Protection 
Agency (EPA) on August 22,2005. Attached are the Department's 
formal comments submitted to EPA on November 21,2005, on the 
proposed rule including print and electronic attachments that 
were submitted to the EPA(see Exhibit 1: Formal comments 
including a copy of any hard copy enclosures and a copy of the 
disk that accompanied the comments.). The Department is 
currently conducting a search for all responsive documents 
generated from July 9,2004, through the present. After the 
Department has completed its review, we anticipate providing 
the non-privileged responsive documents which have been 
identified as a result of this search to the Committee.

    Question 6. Please send copies of all documents related to 
any meetings, conversations, or correspondence between DOEand 
either NRC or EPA concerning the proposed EPA Yucca Mountain 
radiation standard rule.
    Response. While no timeframe for this request has been 
specified, the Department assumes this document request relates 
to those documents generated after the ruling of the United 
States Court of Appeals for the District ofColumbia Circuit 
issued on July 9,2004, in Nuclear Energy Institute, Inc. v. 
Environmental Protection Agency, Case No. 01-1258, and relating 
to the proposed rule issued by the Environmental Protection 
Agency on August 22,2005. The Department is currently 
conducting a search for all responsive documents generated from 
July 9,2004, through the present. After the Department has 
completed its review, we anticipate providing the non-
privileged responsive documents which have been identified as a 
result of this search to the Committee.

    Question 7a. Under the Nuclear Waste Policy Act the EPA is 
supposed to set the standards for licensing. Will DOEwait for 
those standards before it files its application, and if not, 
how can it proceed without them?
    Response. The Environmental Protection Agency (EPA) is 
responsible for establishing the radiation protection standards 
for Yucca Mountain. The Nuclear Regulatory Commission (NRC) is 
then required to implement EPA standards by incorporating them 
into its licensing requirements. NRC's licensing requirements 
already incorporate the EPA standards for the period up to 
10,000 years after closure of the repository. The current 
EPArulemaking only addresses establishment sofa peak dose 
standard for the period more than 10,000 years after closure of 
the repository. The Department of Energy (DOE) believes 
issuance of the EPA final rule will necessitate few, if any 
changes, to its license application since DOE already has 
incorporated the modeling assumptions that EPA set forth in the 
proposed rule. While NRC cannot determine whether to grant 
construction authorization until the peak dose standard is 
incorporated into its regulations, the DOE is not precluded 
from submitting its license application nor is the NRC 
prohibited from initiating its review.

    Question 7b. Has DOE seen the final rule as it now stands?
    Response. The Department has reviewed and commented on 
drafts of the final rule as part of the interagency review 
process.

    Question 8. On what basis could DOEsubmit a license 
application in the absence sofa final EPAradiation standard?
    Response. As noted in the answer to Q8a, the Nuclear 
Regulatory Commission licensing regulations are complete except 
for the incorporation sofa peak dose standard for the period 
more than 10,000 years after the closure of the repository. The 
Department is preparing its license application on the basis of 
those existing regulations plus the modeling assumptions 
concerning the period more than 10,000 years after the closure 
of the repository set forth in the Environmental Protection 
Agency proposal.

    Question 9. DOE is preparing a ``Vulnerability Assessment'' 
that, in the words of its author, will document known 
vulnerabilities in the safety analysis in the NRC license 
application. Will DOEprovide the NRC, Nevada, and other 
interested stakeholders with a copy of this document when it 
submits its application? (Note: NRC regulations (10 C.F.R. 
63.10) require that the application be complete in all material 
respects and make it unlawful for an applicant to withhold 
significant safety information).
    Response. The ``Vulnerablility Assessment'' refers to a 
review of certain technical documents and not the draft license 
application. Documents relating to this assessment have already 
been placed on the Licensing Support Network.

    Question 10a. There is no legal requirement to file your 
application on or before June 30,2008. The staff has been told 
that your scientists working on the application have been told 
they will be ``all out sofa' if the June 30,2008 project 
deadline is missed. What is the significance of that date?
    Response. he June 30,2008, goal for submission of the 
license application has been used as a management tool to focus 
the Program on an important near-term objective. All project 
employees and contractors have consistently been told that they 
are expected to develop a quality license application with 
schedule discipline.

    Question 10b. What are the consequences of missing that 
date?
    Response. Any delay in submittal of the license application 
essentially results in a day-for day delay in all subsequent 
activities including the Nuclear Regulatory Commission's 
docketing and review of the license application; issuance of 
the construction authorization; construction of the repository 
facilities; and initiation of facility operations and receipt 
of waste at the repository.

    Question 11. Is DOEputting safety first with respect to its 
work to file a license application for construction for the 
Yucca Mountain by June 30, 2008? If so, how do you explain the 
fact that your scientists are being told that meeting schedules 
is more important that [sic] scientific defensibility or 
technical credibility?
    Response. Meeting management timelines and producing high-
quality products are not mutually exclusive objectives. 
Department of Energy senior management has consistently 
communicated to personnel working on the project that safety 
and quality are not to be sacrificed for any reason, including 
the schedule. In finalizing the license application, the 
Department is following a disciplined approach and will not 
accept anything less than high-quality work.

    Question 12. Does DOEhave any intentions fallowing the NRC, 
the State ofNevada, or the public to access its Total System 
Performance Assessment?
    Response. DOEexpects to complete the Total System 
Performance Assessment report early next year, at which time 
DOE will place it on the Licensing Support Network through 
which the Nuclear Regulatory Commission, the State ofNevada and 
the public will have access to it.

    Question 13a. Has DOE loaded all documents on which it will 
base its license application in the Licensing Support Network 
(LSN)?
    Response. No. The Department is not required to have loaded 
all documents on which it will base its license application in 
the Licensing Support Network (LSN) at this time. In accordance 
with the Nuclear Regulatory Commission regulations, the 
Department will continue to add documents to its LSN collection 
as the documents are completed.

    Question 13b. Does DOE expect to have more information to 
include in the LSN once EPA publishes its final radiation 
standard?
    Response. The Department does not anticipate needing to add 
more documents to the LSN as the result of the issuance of the 
final Environmental Protection Agency (EPA) standard. However, 
if publication of the EPA standard results in the production of 
additional documentary material, the Department will place such 
material on the LSN.

    Question 13c. How many documents has DOE included in the 
LSN?
    Response. The Department has made electronically available 
over 3.5 million documents, estimated to exceed 30 million 
pages, including scientific, engineering, and other documents.

    Question 14a. Recently, you have said construction will 
more likely be complete somewhere around the year 2022. What is 
the ``most likely'' date of completion?
    Response. The Department is still evaluating the impact of 
the final fiscal year and fiscal year appropriations. It is 
likely but not yet certain that the Department will not be able 
to meet the ``best-achievable schedule'' of2017 for opening the 
repository. As a result of the expected delays due to 
limitations on funding and other factors, the Department's 
current most likely opening date for the repository is 2020.
    Question 14b. Based on this schedule, when would DOE begin 
to accept nuclear waste and transport it to Yucca?
    Response. Based on the above schedule, the Department would 
begin to accept nuclear waste around 2020.
    Question 14c. How long would this waste be left onsite at 
Yucca Mountain prior to underground emplacement?
    Response. The main waste streams received at the repository 
are DOEhigh-level radioactive waste (HLW) and Department 
ofEnergy spent nuclear fuel (DOE SNF), Naval SNF, and 
commercial spent nuclear fuel (CSNF). The Department currently 
anticipates that DOE HLW, DOE SNF and Naval SNF would normally 
be onsite from one to 8 weeks before emplacement.
    Based on current planning, the CSNF would be transported to 
the repository for cooling and achieving the appropriate 
thermal load for the repository. Depending on the time since it 
was discharged from the reactor and burn up of the CSNF, some 
of the individual canisters would be emplaced in the near term 
while a limited number of individual canisters could be on an 
aging pad for up to thirty years.

    Question 15. When the DOE submits its license application 
for construction of a repository at Yucca Mountain, will that 
act constitute a final agency action?
    Response. The submission of the license application will 
not constitute a ``final agency action.'' Rather, the Nuclear 
Regulatory Commission (NRC) regulations provide for a lengthy 
licensing proceeding during which NRCwill conduct a thorough 
and rigorous review of the application. NRC's final decision on 
whether to issue a construction authorization will be a ``final 
agency action'' that will be ripe for judicial review.

    Question 16. Do you foresee any of this opposition on Yucca 
Mountain diminishing in the coming years based on any 
additional science or progress on the facility in that 
location?
    Response. DOEexpects to submit its license application (LA) 
for authorization to construct the repository at Yucca 
Mountain, Nevada, to the Nuclear Regulatory Commission (NRC) by 
June 30, 2008. Upon acceptance of the LA, the NRC will begin 
formal proceedings that will afford the public and the 
scientific community the opportunity to witness a full and 
complete airing of the technical issues associated with the 
Yucca Mountain repository. In these proceedings, the Department 
ofEnergy, the State ofNevada, and other interested parties will 
present their positions in a fair and open forum. The 
Department expects that public understanding of the science 
will advance through this process.

    Question 17a. The late Edward McGaffigan, a former Nuclear 
Regulatory Commissioner, told reporters earlier this year that 
the flawed thinking of the Department ofEnergy is that 
opposition is eventually going to back down, but that it was 
his belief that Yucca Mountain is unlikely ever to open, and 
that we must begin looking at alternatives to Yucca. Mr. 
McGaffigan was the longest serving commissioner in NRChistory, 
appointed by both Presidents Clinton and Bush, and had received 
the Distinguished Service Award in 2006. Do you agree with his 
assessment that it's time to end the work at Yucca and pursue 
alternatives?
    Response. The Department believes the Yucca Mountain 
repository is necessary for any future scenario and is 
committed to fulfilling its statutory obligations to obtain a 
license from the Nuclear Regulatory Commission and to construct 
and operate the repository.

    Question 17b. What is the rationale for your response?
    Response. The Department believes that a geologic 
repository constructed at the Yucca
    Mountain site will meet or exceed all applicable licensing 
requirements and is essential for the disposal of commercial, 
Naval and DOEspent nuclear fuel, as well as defense high-level 
radioactive waste.

    Question 18. How does the cost of alternative, secure spent 
fuel storage options, such as hardened onsite interim storage, 
compare with the future expenditures on Yucca Mountain over the 
next 20 years?
    Response. The Department has not developed cost estimates 
for the development of hardened onsite storage facilities at 
each of the 121 sites that currently store spent nuclear fuel 
and high-level radioactive waste destined for geologic 
disposal. The Department has developed detailed estimates of 
the cost to construct and begin operations at the Yucca 
Mountain repository. Expending these funds will result in the 
development of a single remote, hardened facility that can 
receive and dispose of the spent nuclear fuel from all of the 
sites currently storing these materials. Leaving spent nuclear 
fuel onsite only defers but does not eliminate the need for a 
permanent repository and would clearly be more expensive than 
proceeding now with the Yucca Mountain Repository.

    Question 19. What technical issues remain unresolved in 
determining whether Yucca Mountain is capable of safely storing 
spent nuclear fuel for thousands of years?
    Response. The Department believes that a sufficient 
technical basis exists for the Nuclear Regulatory Commission to 
determine that a repository at Yucca Mountain can safely store 
spent nuclear fuel for hundreds of thousands of years.

    Question 20a. Is additional scientific research being 
conducted to ensure that nuclear waste can be stored in Yucca 
Mountain without polluting aquifers and exposing nearby 
residents to toxic radiation and increasing their cancer risks?
    Response. The Nuclear Regulatory Commission (NRC) has 
mandated that the Department conduct a performance confirmation 
program for the next 100 years to verify assessments of 
repository performance. Results of that activity will be 
reported on a regular basis to the NRCand the public. In 
addition to the Department of Energy's own investigations, 
cooperative agreements are in place with Nye County, Nevada, 
Inyo County, California, and the Nevada System ofHigher 
Education to provide independent research and review. As 
funding allows, the Department will also continue to support 
additional independent scientific investigations that can give 
greater understanding of the system and how its components 
interact over time.

    Question 20b. If so, what efforts will be made to ensure 
that the results of this research are disclosed to the public?
    Response. The Department intends to continue to publish its 
scientific work in both the government publications format, 
available in selected locations accessible by the public such 
as the library of the University ofNevada at Las Vegas, and it 
will also continue to encourage its participants to present and 
publish their scientific work to specialist and general 
audiences through professional and scientific forums and 
publications.

    Question 21. If the political and technical issues 
associated with the Yucca Mountain project cannot be resolved, 
how can the search for a new site be implemented to avoid the 
pitfalls that have plagued the Yucca project and ensure a site 
selection based on sound science?
    Response. The Department believes the Yucca Mountain 
Program will be successful and the Yucca Mountain repository 
will open around 2020. However, if the current 70,000 metric 
ton of heavy metal administrative limit on the capacity ofYucca 
Mountain is not lifted by Congress, the siting process for a 
second repository in another State will need to be undertaken 
based on the provisions of the Nuclear Waste Policy Act. The 
Department believes the best way to avoid the technical and 
political issues associated with siting a repository are to 
lift the 70,000 metric ton limit on the capacity of the Yucca 
Mountain repository.

    Question 22. What is your view on using regional 
repositories instead of one repository for the entire country?
    Response. The efforts to site and license regional 
repositories would offer substantial political and economic 
challenges. While the Department has not performed any cost 
estimates for this approach, the Department believes that the 
cost of siting, investigating, licensing, constructing and 
operating numerous sites would be substantially higher than the 
cost of proceeding with the licensing and development of a 
single geologic repository at Yucca Mountain. The Department 
believes that it would be most appropriate to proceed under the 
existing legislative and regulatory framework which has been 
established for the Yucca Mountain site and that there would be 
significant delay associated with development of a new 
legislative and regulatory framework that would be needed for 
the development of regional repositories in lieu ofYucca 
Mountain.

    Question 23a. What studies or analyses have been conducted 
on the safety of transporting spent nuclear fuel or radioactive 
waste?
    Response. A detailed study of the impacts associated with 
transporting spent nuclear fuel and high level radioactive 
waste to Yucca Mountain was published in the Yucca Mountain 
Final Environmental Impact Statement (FEIS) that the Department 
of Energy (DOE) issued in 2002. This document was recently 
updated in the Draft Supplemental Environmental Impact 
Statement for a Geologic Repository for the Disposal ofSpent 
Nuclear Fuel andHigh-level Radioactive Waste at Yucca Mountain, 
Nye County, Nevada (Repository SEIS) and the Draft 
Environmental Impact Statement for a Rail Alignment for the 
Construction andOperation of a Railroad in Nevada to a Geologic 
Repository at Yucca Mountain, Nye County, Nevada (Rail 
Alignment EIS). The draft Repository SEIS and draft Rail 
Alignment EIS were issued in October 2007 for public review and 
comment.
    In addition, the National Academy ofSciences conducted a 
lengthy review of the safety of these shipments. The results of 
that study were published in the book: Going the Distance, The 
Safe Transport ofSpent Nuclear Fuel and High-Level Radioactive 
Waste in The United States''. The study concluded that ``[t]he 
committee could identify no fundamental technical barriers to 
the safe transport of spent nuclear fuel and high-level 
radioactive waste in the United States.'' Furthermore, the 
committee stated that ``[transport by highway and by rail is, 
from a technical viewpoint, a low-radiological-risk activity 
with manageable safety, health and environmental consequences 
when conducted with strict adherence to existing regulations.''

    Question 23b. Has an analysis been done on whether it is 
preferable to transport these substances by rail, truck, or 
some other means of transportation?
    Response. Yes, a detailed analysis of the shipping options 
was conducted as part of the Yucca Mountain FEIS that DOE 
issued in 2002. During the comment period on the draft FEIS, 
numerous respondents (including the State ofNevada) advocated 
for use of rail as the primary mode of transport. Based on the 
analyses in the draft FEIS and the stakeholder comments, 
DOEannounced its decision to use mostly rail as the mode of 
transport in a Record ofDecision issued in April 2004. The 
decision to use dedicated trains (trains that would transport 
only spent fuel and high-level radioactive waste and no other 
cargo) as the usual rail service was made as a matter of 
operational policy in 2006. In its study of the safety of these 
shipments, the National Academy ofSciences strongly endorsed 
DOE's decision to ship spent nuclear fuel and high-level 
radioactive waste to the repository by mostly rail using 
dedicated trains.

    Question 24. According the National Academy ofSciences, the 
peak risks with regard to Yucca Mountain might occur hundreds 
of thousands of years in the future. Is it possible, given 
current technology, to build a repository that can maintain its 
structural integrity for hundreds and thousands of years?
    Response. The National Academy ofSciences has long 
advocated geologic disposal precisely because a repository in 
rock, such as Yucca Mountain, can be expected to perform its 
function for up to a million years into the future. The designs 
and performance analyses included in the license application 
will allow the Nuclear Regulatory Commission to determine 
whether the combination of physical and engineered barriers 
creates an expectation that the Yucca Mountain repository can 
safely isolate waste for a million years.
                                ------                                


       Responses by Edward F. Sprout III to Additional Questions 
                          from Senator Inhofe

    Question 1. In Mr. Cook's written testimony, he 
characterizes shipments of spent fuel and nuclear waste as 
``extremely dangerous.'' Would you please summarize the 
industry's safety record and the precautions that will be taken 
to ensure that these materials will be safely transported?
    Response. Government and industry have approximately four 
decades of successful spent fuel shipping experience, 
conducting more than 3,000 shipments of spent nuclear fuel 
without any harmful release of radioactive material. This is 
the best safety record of any class of hazardous material that 
is transported. The study of spent fuel transportation safety 
conducted by the National Academy ofSciences (Going the 
Distance, The Safe Transport ofSpent Nuclear Fuel andHigh-Level 
Radioactive Waste in The UnitedStates) found that there were 
``. . . no fundamental technical barriers to the safe transport 
of spent fuel and high level radioactive waste in the United 
States.'' Furthermore, the National Academy's study found that 
the current regulatory framework is sufficient to ensure future 
shipments can be conducted with manageable safety, health and 
environmental consequences. The shipments will be made with 
very robust casks certified by the Nuclear Regulatory 
Commission. In addition, the shipments will have armed escorts, 
and the Department has chosen to use dedicated trains as the 
usual mode of transport. This will enhance the safety, security 
and efficiency of transportation operations.

    Question 2. In her testimony as Nevada's Attorney General, 
Ms. Masto indicates that the license application will be 
incomplete when it is filed. Please explain why this 
characterization is inaccurate and include examples of design 
aspects that are unnecessary for the NRC's consideration of the 
construction authorization application.
    Response. The license application when filed will be 
complete pursuant to the requirements of 10 CFR63.21. Examples 
of design aspects that are unnecessary for the Nuclear 
Regulatory Commission's consideration of the construction 
authorization include, but are not limited to the following: 
design of structures non-important to safety such as 
administration and maintenance facilities, warehouses, etc. 
detailed design aspects such as rebar patterns and rebar corner 
details, individual wiring connection drawings, spool sheets, 
finishing details, etc.
                                ------                                


       Responses by Edward F. Sprout III to Additional Questions 
                          from Senator Clinton

    Question 1a. It is a well-established fact that the site 
selection process was intended to select the most appropriate 
geological repository.
    In a May 21 letter, USGS Yucca Project branch chiefKenneth 
Skipper wrote to Andrew Orrell, senior program manager for the 
DOE lead laboratory, that preliminary data from a recent 
drilling phase indicate that the location of the Bow Ridge 
fault in the northern Midway Valley ``may be farther east than 
projected from previous work in the area.'' As a result, in 
June, Yucca engineers changed where they planned to build the 
concrete pads for cooling thousands of tons of highly 
radioactive spent fuel before the canisters are entombed in the 
mountain, which lies 100 miles northwest ofLas Vegas.
    It is clear that the DOEdoes not have a clear picture of 
the site's exact geological makeup, and that several other 
problems remain, including the dump's proximity to the water 
table and engineers' failure to forecast what will happen at 
the site, geologically or meteorologically, in the future.
    Based on these emerging geological and scientific data, how 
can DOE continue to advocate their selection ofYucca Mountain 
as a valid geologic repository?
    Response. The existence of the BowRidge Fault has been 
known for decades and does not in any way affect the safety of 
the repository. One of the reasons for the Department's 
drilling activity this past summer was to validate the surface 
projection of the BowRidge fault. New information regarding the 
Bow Ridge fault required a slight location change of the 
surface facility aging pads; this change was made as part of 
our conservative approach to this project. As new scientific 
information about the site becomes available, the Department 
will evaluate the impact on our estimates of performance and 
report results to the Nuclear Regulatory Commission (NRC). The 
Department continues to believe that a sufficient technical 
basis exists for the NRCto determine that a repository at Yucca 
Mountain can safely dispose of spent nuclear fuel and high-
level radioactive waste. The Department will provide its 
technical basis for NRC review in the license application next 
year.

    Question 1b. Not including the engineered barriers, please 
provide a detailed report on what the best and worse case 
scenarios are for the geologic containment offered by the Yucca 
Mountain site. This report should include a review of 
groundwater migration, potential impact of changing 
environmental and meteorological patterns, and damage to the 
site from geological disturbances (e.g. volcanism and seismic 
events).
    Response. The legal framework under which the Yucca 
Mountain repository will be licensed requires a determination 
of how the total repository system of engineered and natural 
barriers would function over time. The performance of the 
repository system under the conditions specified in this 
question will be evaluated in the license application, which 
will be available to the Committee.

    Question 2a. DOE has acknowledged that it must pass so-
called ``fix Yucca'' legislation in order to receive nuclear 
waste to store at Yucca Mountain. This legislation would 
provide DOEwith a land withdrawal for Yucca, and exempt the 
repository from environmental laws such as RCRA, among other 
things. Without passage of such legislation, can DOEeven begin 
construction of the proposed repository?
    Response. The Nuclear Regulatory Commission (NRC) requires 
licensees to have ownership and control of the land for a 
nuclear facility. Accordingly, the Department believes it must 
satisfy this requirement through land withdrawal legislation 
before it can begin operation of the repository. In addition, 
adequate and sustained funding well above current and historic 
levels will be required if the repository is to be built and 
operated. The proposed legislation would enable the needed 
levels of funding and provide the necessary land withdrawal. 
Other elements of the proposed legislation would facilitate 
construction and operation of the repository. The standards of 
isolation and environmental protection offered by Yucca 
Mountain are significantly more protective then standards of 
protection offered by near-surface disposal sites for hazardous 
waste regulation by the Resource Conservation and Recovery Act. 
This provision of the proposed legislation would simplify the 
regulatory framework and eliminate lengthy largely duplicative 
reviews without compromising environmental protection or 
safety.

    Question 2b. Can DOEactually begin transporting and storing 
nuclear waste at Yucca Mountain without this legislation?
    Response. As stated in the previous answer, the Department 
must have ownership and control of the land before it can begin 
operations.

    Question 2c. Please explain why the DOEwould need to exempt 
nuclear waste in its possession for the Resource Conservation 
and Recovery Act in order to store it at Yucca.
    Response. The Department believes application of the 
Resource Conservation and Recovery Act to disposal at the Yucca 
Mountain repository would be duplicative and unnecessary. 
Specifically, NRChas a much more stringent regulatory regime 
for certifying transportation casks and for licensing the 
repository.

    Question 3a. In the absence sofa NRCconstruction 
authorization for the repository, could DOE begin construction 
sofa rail spur to Yucca Mountain in Nevada?
    Response. Yes. Construction of the rail spur would not be 
subject to the Nuclear Regulatory Commission licensing. The 
Department will pursue all necessary permits and authorizations 
for construction sofa rail line in Nevada.

    Question 3b. When does DOEplan to begin construction of the 
rail line in Nevada? The current schedule calls for 
construction to begin after rail bed geotechnica! 
characterization and preliminary design work is completed in 
2011.

    Question 3c. How do the communities near potential rail 
routes feel about constructing a rail line to Yucca Mountain so 
close to them?
    Response. The Department ofEnergy (DOE) will only be 
constructing one rail spur, and that will be in Nevada. 
Although some individuals oppose the siting of the rail spur, 
communities in rural Nevada have strongly advocated for rail 
alignments that pass as close as possible to their communities. 
In particular, the towns ofGoldfield and Caliente have strongly 
advocated for alignments that pass as close to their 
communities as possible. The draft Nevada Rail Corridor 
Supplemental Environmental Impact Statement and draft Rail 
Alignment Environmental Impact Statement are currently 
available for public comment and provide an opportunity for 
additional comments on this matter.

    Question 3d. Didn't the Walker River Paiute Tribe tell DOE 
that it couldn't build the rail line to Yucca over the Tribe's 
reservation?
    Response. Yes, the Walker River Paiute Tribe has informed 
the Department that it objects to the transportation of nuclear 
material through its Reservation. DOEhas identified the Mina 
corridor which crosses through the Reservation as nonpreferred 
because the Tribe has withdrawn its support for the EIS 
process.

    Question 3e. What options, such as cross-country truck 
transportation, does DOEhave left and how much will it cost 
taxpayers?
    Response. The DOE Record ofDecision on mode of transport 
for Nuclear Waste Policy Act shipments of spent nuclear fuel 
and high-level radioactive waste was issued in April 2004. 
DOEselected the ``mostly rail'' mode of transport both 
nationally and in the State ofNevada. There will need to be 
some truck shipments of spent fuel from reactor sites that 
either do not have rail access or do not have the crane 
capacities to handle large rail casks. DOEexpects that these 
truck shipments will make up less than 10 percent of the waste 
shipped. The National Academy of Sciences and stakeholders such 
as the State ofNevada have strongly advocated for use of rail 
as the primary mode of transport nationally and in Nevada. 
Using rail casks maximizes the amount of fuel moved in each 
cask, and reduces the overall number of shipments from over 
53,000 legal weight trucks, to less than 3,200 trains. The 
costs for a mostly truck shipping scenario have not been 
calculated because of the preponderance of support for rail 
shipments, and the Record ofDecision to use mostly rail as the 
mode of transport. Taxpayers will only pay the costs of 
transporting defense program waste, not civilian nuclear fuel.

    Question 3f. In addition, would the use of the Caliente 
option result in the rail shipments through downtown Las Vegas 
on the Union Pacific mainline to Caliente?
    Response. The routes for truck and rail shipments have not 
been finalized, but standard rail routing practices maximize 
the use ofClass 1 Railroads, minimize the number of exchanges 
between railroads, and minimize the time and distance in 
transit. Using these rules, a portion of the shipments, 
including those coming from California, could travel through 
downtown Las Vegas on routes used by other hazardous materials 
currently shipped by rail.

    Question 3g. Would DOEcontinue to pursue the Caliente 
option if construction costs, now estimated to be $2-3 billion, 
continue to escalate?
    Response. The decision to use the mostly rail mode of 
transport nationally and in Nevada was not driven by cost. The 
decision was based on the impacts analyzed in the Yucca 
Mountain Final Environmental Impact Statement, and by 
stakeholder input-notably including both the State of Nevada 
and the National Academy of Sciences. Potential changes in cost 
estimates as the railroad design is refined are not expected to 
affect the decision to ship by mostly rail in Nevada, or the 
selection of the Caliente corridor for construction of the 
railroad.

    Question 3h. What would DOEdo if the Caliente rail line 
cannot be built?
    Response. There is no reason to believe the Caliente rail 
line cannot be constructed successfully. If foreseen 
circumstances were to prevent construction of a rail line along 
the Caliente corridor, DOE would consider other alternatives.

    Question 4a. What effect will the proposed Transportation, 
Aging, and Disposal canister have on (a) the Total System 
Performance Assessment for Yucca Mountain, and . . .
    Response. The Total System Performance Assessment (TSPA) 
model includes the Transportation, Aging, and Disposal (TAD) 
canister concept. The TAD canister is an internal part of the 
waste package and, other than the additional strength in 
resisting damage from seismic events and rock fall, it 
conservatively is assumed not to provide any additional long-
term performance benefit in terms of preventing radionuclide 
releases. [What effect will the proposed Transportation, Aging, 
and Disposal canister have on] (b) the Key Technical Issue 
agreements with the NRC?

    Question 4b. The Department has evaluated the effect of the 
TADcanister on the Key Technical Issue (KTI) agreements. The 
Department identified two KTI agreements now considered closed 
by the Nuclear Regulatory Commission that were likely to be 
impacted by the TAD canister: one was related to the 
probability of criticality before 10,000 years and the other 
dealt with chemistry inside the waste package. Preliminary 
analyses of conceptual designs for the TAD based on design 
specifications for the canister indicate that the probability 
of criticality can be maintained below regulatory levels and 
the in-package chemistry would not unfavorably impact waste 
form performance. Once the TAD designs are finalized, analyses 
will be performed to confirm the performance of the waste 
package with the TADcanister.
    In addition, the evaluation by the Department identified 
nine other KTI agreements that could be impacted by the TAD 
canister. The evaluation showed that these agreements generally 
benefited from the added barrier provided by the TAD canister 
for structural integrity or for corrosion performance of the 
waste package. In all cases, the final TAD designs will be 
evaluated to ensure the identified KTI agreement issues are 
adequately addressed.

    Question 4c. When will TADs be commercially available to 
utilities, and how much will they cost utilities and 
ratepayers?
    Response. The Department is in the process of finalizing 
the procurement of services for the detailed design, licensing 
and demonstration ofTAD-based systems. Successful completion of 
this effort should result in the availability ofTAD-based 
systems for use at utility sites beginning in 2011. The use 
ofTAD-based systems will result in the need for fewer, simpler 
facilities at Yucca Mountain which the Department believes will 
be easier to license and less costly to construct. The 
Department will provide TAD systems for shipping spent nuclear 
fuel from utility spent fuel pools to the repository. TADs used 
for onsite storage will be paid for in the same manner as 
utilities pay for current onsite storage systems.

    Question 4d. How will the TSPA take canisters into account 
when there aren't even designs for them yet?
    Response. A detailed design for the TAD canister is not 
required to model its performance attributes in the TSPA. The 
current TAD specification contains sufficient information to 
effectively model the inclusion of the TADcanister in the 
repository system.

    Question 4e. What are DOE's assumptions regarding the 
protection that TADs will hypothetically provide?
    Response. TAD canisters will provide assurance of no 
releases during transportation, aging, and packaging. Once 
underground, the TADs role is complementary to that of the 
waste package outer barrier in long-term radionuclide 
containment and release performance.

    Question 5a. There are over 800 dual-purpose canisters in 
onsite dry cask storage (about 8000 metric tons of waste) that 
would have to be transferred to TADs at the reactor site or at 
the repository. Would this additional handling be safer than 
leaving the waste in NRC approved dry casks?
    Response. The existing dual-purpose canisters currently in 
place at reactors sites are approved by the Nuclear Regulatory 
Commission (NRC) for above-ground storage and in some cases for 
transportation of spent nuclear fuel. Dual-purpose canisters 
were not designed to meet the requirements for permanent 
disposal at Yucca Mountain. As a result, these existing 
canisters will need to be repackaged prior to disposal, either 
at the utility site or at Yucca Mountain. The current 
repository design has the capability to repackage dual-purpose 
canisters at Yucca Mountain.

    Question 5b. Who is responsible for making sure the TADs 
are properly loaded and welded at the reactor site?
    Response. The Department is developing acceptance criteria 
that will ensure that all TAD canisters accepted for disposal 
at Yucca Mountain have been properly loaded and sealed. Whether 
these canisters are prepared at the reactor sites or the 
repository, the Department and utilities as NRC licensees are 
responsible for compliance with these requirements, and will be 
subject to oversight by the NRC. The Department will take 
appropriate steps to ensure that its requirements have been 
met.

    Question 5c. DOEis referring to the use ofTADcanisters as 
its ``current approach to disposal.'' Does this mean that its 
plans for using TADs for transportation, aging, and disposal 
could still change?
    Response. The DOEdoes not plan to change its use ofTADs for 
transportation, aging, and disposal at Yucca Mountain.

    Question 5d. Do the nuclear utilities generally support the 
idea of transferring their spent nuclear fuel into TAD 
canisters?
    Response. In developing the technical requirements for the 
TAD-based systems, the Department had a number of discussions 
with nuclear utilities, trade organizations, and members of the 
spent fuel cask industry. Throughout these discussions, the 
participants expressed strong support for the TAD-based 
approach, and continue to support its implementation.

    Question 6a. Has DOE loaded all documents on which it will 
base its license application in the LSN?
    Response. No. The Department is not required to have loaded 
all documents on which it will base its license application in 
the Licensing Support Network (LSN) at this time. In accordance 
with Nuclear Regulatory Commission (NRC) regulations, the 
Department will continue to add documents to its LSN collection 
as the documents are completed.

    Question 6b. Does DOE expect to have more information to 
include in the LSN once EPA publishes its final radiation 
standard?
    Response. The Department does not anticipate needing to add 
more documents to the LSN as the result of the issuance of the 
final Environmental Protection Agency standard but as stated in 
response to Question 6a the Department will continue to add 
documents to its LSN collection including any that would need 
to be completed or modified as a result of the issuance of the 
final standard.

    Question 6c. How many documents has DOE included in the 
LSN?
    Response. The Department has made electronically available 
over 3.5 million documents, estimated to exceed 30 million 
pages, including scientific, engineering, and other documents.

    Question 6d. If DOE is supposed to have placed all of the 
documents on LSN which it will use to defend its license 
application, does that mean that the documents currently on the 
LSN are sufficient to defend the license application?
    Response. NRC regulations do not require that all of the 
Department's documents on which the Department will defend its 
license application to be completed and on the LSN at this 
time. In accordance with the NRC regulations, the Department 
will continue to add documents to its LSN collection as the 
documents are completed.

    Question 6e. NRC's regulations specifically say that DOE 
must provide 6 months before it submits its license 
application, and ``all documentary material'' which it will use 
to support the application.
    In 2004, the NRC's Pre-License Application Presiding 
Officer rejected DOE's certification of the LSN. What will DOE 
do if it happens again?
    Response. On October 19, 2007, the Department submitted its 
LSN certification to the NRC after it met the regulations in 10 
CFR 2, Sub-part J, Section 2.1003 ``Availability of material'' 
and Section 2.1009 ``Procedures.'' Subsequently, the State of 
Nevada filed a petition with the NRC to invalidate the 
Department's document collection.
    In December 2007, the Pre-License Application Presiding 
Officer Board denied the State ofNevada's motion to strike.

    Question 6f. Will DOE miss the June 2008 deadline?
    Response. The Department plans to submit the license 
application on or before June 30 2008.

    Question 7a. How can DOE demonstrate that the engineered 
and natural barriers of the repository will satisfy an EPA 
Radiation Standard that has not yet been published?
    Response. The license application will describe the 
methodology used to project the long term repository 
performance as required by current Nuclear Regulatory 
Commission (NRC) regulations and show the results of that 
analysis. Once the Environmental Protection Agency (EPA) 
standard is finalized, the NRC will be able to determine if the 
projected repository performance meets the final EPA standard.

    Question 7b. Additionally, how will DOE be able to submit a 
``complete'' application if it does not know well in advance 
the single most important criteria on which NRC will decide 
whether the repository should be licensed or not?
    Response. See the response to Q7A. We have designed the 
repository to provide maximum isolation of radioactive waste 
from the environment. The license application will document 
that waste isolation capability, and the Department is 
confident that its performance will exceed the final EPA 
standard.

    Question 7c. Has DOE been in contact with EPA at any time 
since the original Radiation Standard was promulgated to 
discuss Yucca Mountain or the Standard?
    Response. The Department of Energy (DOE), NRC, EPA, Office 
of Management and Budget, and Department ofJustice have 
participated in a dialog that is part of the Interagency Review 
process under the auspices of each agency's General Counsel.

    Question 7d. Have DOE and EPA ever discussed what it would 
take for Yucca Mountain to meet the Standard?
    Response. DOE provided comments on the draft EPA standard 
including a simplified performance assessment addressing the 
million year period. EPA has studied past DOE performance 
assessments as part of its background work supporting the draft 
rule, as documented in EPA's Background Information Document.

    Question 7e. Explain how DOE plans to use drip shields, 
when it plans to install them, and what assurances the agency 
can make that they will be installed?
    Response. Drip shields will be installed at the time of 
final closure of the repository and are an integral part of the 
current design. Any major changes to that design would require 
the NRC to approve a licensing amendment.

    Question 7f. How important to satisfying EPA's Radiation 
Standard is the installation of drip shields?
    Response. Drip shields are an integral part of the current 
design and as such an integral part of the Total System 
Performance Assessment that will be used to demonstrate 
compliance with the EPA standard.

    Question 7g. Will DOE run TSPA scenarios that specifically 
exclude the presence of the drip shields so NRC can evaluate 
the possibility that the government changes its mind about drip 
shields in 300 years?
    Response. If the NRC grants a license to the DOE based on a 
design that includes drip shields, any change in the use of 
drip shields will need NRC approval.

    Question 8a. When does DOE plan to complete the second 
repository report?
    Response. The Department of Energy (DOE) intends to 
complete the second repository report by mid 2008.

    Question 8b. Will a draft plan be made available for public 
comment?
    Response. The Department does not intend to issue a draft 
report for public comment.

    Question 8c. In DOE's Supplemental EIS for the proposed 
repository, you consider the possibility of expanding Yucca's 
capacity beyond the statutory 70,000 metric tons to 135,000 
tons. Is this proposal in lieu of a of a DOE recommendation for 
a second repository?----
    Response. The draft Repository Supplemental Environmental 
Impact Statement contains an analysis of the environmental 
impacts replacing up to 135,000 MTU in the Yucca Mountain 
repository. This analysis was done to bound the environmental 
impacts of a future decision to remove the limits on the 
quantity of spent nuclear fuel and high-level radioactive 
wastes that can be emplaced at Yucca Mountain.
    The analysis of the environmental impacts of this potential 
action did not address the issues of the need for a second 
repository and does not obviate the need for the second 
repository report.

    Question 8d. Hypothetically, if DOE were permitted to 
expand the cap on Yucca to 135,000 tons, how would this affect 
DOE's license application timeline?
    Response. If the DOE were directed by the Congress to 
expand the capacity of the Yucca Mountain repository beyond its 
present statutory limit of 70,000 metric tons of heavy metal 
(MTHM), this likely would not impact the timeline for license 
application (LA) submittal absent a directive from Congress to 
delay submittal.
    DOE likely would submit the LA for the 70,000 metric tons 
on schedule while initiating additional postclosure analysis to 
support the expanded use of the repository. DOE would then 
submit a license amendment for Nuclear Regulatory Commission 
(NRC) review and approval to reflect the expanded capacity.

    Question 8e. Would DOE have to redo any of the technical 
work and designs to justify expanding the cap?
    Response. If the 70,000 MTHM cap were lifted, additional 
engineering and scientific analysis would be required in order 
to support an application for a license amendment to the NRC.

    Question 8f. Would DOE miss its June 2008 deadline for 
filing a license application?
    Response. If DOE were directed by Congress to expand the 
capacity of Yucca Mountain repository beyond its present 
statutory limit of 70,000 MTHM, it is not likely to impact 
DOE's current timeline for LA submittal for the original 
capacity.

    Question 9. DOE has faced significant quality assurance 
problems on the Yucca project because of its contractors, as 
demonstrated when DOE had to spend more than $25 million to 
review emails for falsified scientific data. The Nevada 
Attorney General recently filed a petition against Sandia-DOE's 
lead laboratory for the Yucca project. The AG's complaint 
alleges that ``Sandia has subordinated safety and scientific 
accuracy to meeting an artificial deadline set by DOE.'' 
Apparently, Sandia has thrown quality and scope aside, in favor 
of meeting the DOE's deadline in order to satisfy the 
Department. Is DOE still confident in its lead contractor's 
work on Yucca?
    Response. Yes. The Department is confident in the quality 
of the Lead Lab's work in support ofYucca Mountain. The Nevada 
Attorney General's ``Petition for an Independent Investigation 
and Suspension of Sandia National Laboratories from Further 
Work on the Yucca Mountain Project'' was denied by the Nuclear 
Regulatory Commission on November 15,2007.

    Question 10a. There are concerns that the administration 
has restricted meaningful public participation in the Yucca 
Mountain licensing process by holding back important relevant 
information. The LSN is full ofdocuments--it has millions of 
them but the real important information seems like its being 
withheld. The EPA hasn't published its Radiation standard, DOE 
hasn't made its TSPA available, and there is no publicly 
available national transportation plan. How can the public play 
a meaningful role in the licensing process when they aren't 
given access to the most important information?
    Response. The Yucca Mountain licensing process is a 
regulatory process controlled by the Nuclear Regulatory 
Commission (NRC). The Department ofEnergy (DOE) is an applicant 
for an NRC license and, therefore, must submit documents on the 
public docket as required by NRC regulations. The Total System 
Performance Assessment (TSPA) that will support DOE's 
application for construction authorization is still in 
preparation. When it is finalized, the TSP A will be made 
publicly available on the Licensing Support Network (LSN). With 
respect to the radiation standard, DOE defers to the 
Environmental Protection Agency to comment on the availability 
of the standard. With respect to transportation, transportation 
nationally and in Nevada has been analyzed in both the 2002 
Final Repository Environmental Impact Statement (EIS) and in 
the draft Nevada Rail Corridor SEIS and draft Rail Alignment 
EIS and with respect to those documents there has been 
meaningful opportunity for public participation, including 
participation in the scoping process and comment hearings as 
well as the opportunity to submit written comments. In 
addition, with respect to the draft National Transportation 
Plan, a draft was made available for comment, and it is 
currently being revised to address those comments.

    Question 10b. DOE's public scoping meetings last year 
regarding the draft supplemental EIS's didn't even give 
stakeholders a forum to voice their concerns publicly. How will 
DOE improve this process so affected citizens can actually have 
their concerns considered in a public forum?
    Response. Any concern that the Department has restricted 
meaningful public participation in the Yucca Mountain National 
Environmental Policy Act (NEPA) process is misinformed. During 
the scoping period for repository and the rail corridor 
supplemental EISs and the rail alignment EIS the Department 
held seven public scoping meetings in six cities in Nevada and 
one in Washington D.C. At these meetings the public was invited 
to submit comments in writing or in person to a court reporter. 
To improve this process the Department conducted eight public 
hearings on the draft NEPA documents where the public had the 
opportunity to provide comments orally to a court reporter, in 
writing, or in oral comments for the record in front of other 
hearing participants.

    Question 11a. Does DOE intend to allow the NRC, the State 
ofNevada, or the public to access its Total System Performance 
Assessment?
    Response. Yes. The Nuclear Regulatory Commission (NRC), the 
State ofNevada, and the public will have access to the Total 
System Performance Assessment (TSPA) report, which includes the 
results of our modeling work.

    Question 11b. If yes, at what point in the process? If no, 
why not?
    Response. The Department expects to complete the TSP A 
early in 2008, at which time it will be placed on the Licensing 
Support Network.

    Question 11c. How can the Commission and other parties to 
the licensing confidently determine that DOE's conclusions 
based on the TSPA are accurate?
    Response. The NRC, in its Rules ofPractice for Domestic 
Licensing Proceedings and Issuance ofOrders, defines the 
process by which parties can review and challenge the 
conclusions in the TSPA.

    Question 11d. If DOE is considering using a new performance 
assessment model, such as the ``next generation performance 
assessment,'' in its defense of the Yucca Mountain licensed 
application?
    Response. The Department ofEnergy (DOE) is not developing a 
new performance assessment to support approvals by NRC to 
construct and to operate the Yucca Mountain repository.

    Question 11e. It has been rumored that the DOE intends to 
submit a license application to NRC with this current version 
of a total system performance assessment (``TSPA''), and then, 
when serious questions are inevitably raised about its 
transparency and adequacy, switch to an altogether different 
version that DOE already considers more defensible, but which 
cannot be included in its initial application filing without 
delaying its artificial Yucca filing schedule. In short, DOE 
will use an inadequate performance assessment just to meet 
their self-imposed filing deadline and then, when proceedings 
are underway, switch to the ``real'' performance assessment. 
However, a September 13 letter from DOE to Bob Loux, seemed to 
rule out the possibility of a second version of the model. Can 
you confirm that there will be no bait and switch, and that the 
current TSP A is the one that the license will rely on?
    Response. The license application will rely on the current 
TSPA and DOE has no intent to substitute a new TSP A during the 
consideration of the license application.

    Question 12a. It is in all of our interest to give the 
communities who would host these shipments of highly dangerous 
nuclear waste an opportunity to play a meaningful role in the 
planning. What has the DOE done to inform affected communities 
that nuclear waste will be transported past their homes, 
schools and hospitals?
    Response. The Draft Supplemental Environmental Impact 
Statement for a Geologic Repository for the Disposal ofSpent 
Nuclear Fuel and High-Level Radioactive Waste at Yucca 
Mountain, Nye County, Nevada (Repository SEIS) provides 
discussion of representative routes nationally, and the public 
is invited to comment on that document. The Department of 
Energy (DOE) has not identified specific routes and is working 
with representatives from States and Tribes through whose 
jurisdictions shipments may be transported in development of 
criteria and methodologies for route selection. This process 
will culminate in the selection of routes 3-5 years prior to 
the first shipment.

    Question 12b. Do residents have any forum to comment on 
transportation routes?
    Response. The Draft Supplemental Environmental Impact 
Statement for a Geologic Repository for the Disposal ofSpent 
Nuclear Fuel and High-Level Radioactive Waste at Yucca 
Mountain, Nye County, Nevada (Repository SEIS) provides a 
discussion of representative routes nationally, and the public 
is invited to comment on that document. In addition, the 
Department is productively engaged in development of criteria 
and methodologies for route selection with representatives from 
States and Tribes through whose jurisdictions shipments may be 
transported. This process will culminate in the selection of 
routes 3-5 years prior to the first shipment. DOE is also 
committed to providing technical assistance and funds for 
training related to these shipments for local public safety 
officials along shipping routes. DOE notes that individuals and 
States do not have the opportunity to address the shipment 
plans or routes for any other category of hazardous material 
shipped by rail in this country each year.

    Senator Carper. Thank you, Mr. Sproat.
    Mr. Meyers, you are recognized. Your full testimony will be 
made a part of the record. I would ask you to summarize and try 
to stick within 5 minutes if you could.

   STATEMENT OF ROBERT J. MEYERS, PRINCIPAL DEPUTY ASSISTANT 
ADMINISTRATOR, OFFICE OF AIR AND RADIATION, U.S. ENVIRONMENTAL 
                       PROTECTION AGENCY

    Mr. Meyers. Thank you very much. I will do that.
    I am pleased to be here before the Committee. In previous 
testimony before the Committee, EPA has described its 
responsibilities with regard to Yucca Mountain and why we have 
proposed revised standards. Just to review very briefly, 
though, the Nuclear Waste Policy Act of 1982 prescribed the 
roles and responsibilities of the Federal agencies in 
development of disposal facilities for spent nuclear fuel and 
high level waste.
    In this, EPA was identified as the agency responsible for 
establishing standards to protect the general environment for 
such facilities. In the Energy Policy Act of 1992, Congress 
delineated EPA's roles and responsibilities specific to the 
Federal Government's establishment of the potential repository 
at Yucca Mountain. EPA's role is to determine how the Yucca 
Mountain high level waste facility must perform to protect 
public health and safety. Congress directed EPA to develop 
public health and safety standards that will be incorporated 
into the NRC's licensing requirements for the Yucca Mountain 
facility, and the Department of Energy would apply for the 
license to construct and operate the facility, and the facility 
would only open if NRC determines that DOE complied with NRC 
regulations, which incorporate EPA's standards as well as other 
requirements.
    EPA established its Yucca Mountain standards in June 2001, 
as has been referenced earlier by the Committee, and as 
required by the Energy Policy Act, these standards address the 
releases of radioactive material during the storage at the site 
and after final disposal.
    The storage standard set a dose limit of 15 millirem per 
year for the public outside of the Yucca Mountain site. The 
disposal standards consist of three components, an individual 
dose standard, a standard evaluating the impacts of human 
intrusion into the repository, and a groundwater protection 
standard.
    The individual protection and human intrusion standards set 
a limit of 15 millirem per year to a reasonable maximally 
exposed individual, or MEI, who would be among the most highly 
exposed members of the public. The groundwater protection 
standard is consistent with EPA's drinking water standards, 
which the agency applies in many situations as a pollution 
prevention measure. The disposal standards were to apply for a 
period of 10,000 years after the facility is closed. Dose 
assessment were to continue beyond 10,000 years and be placed 
in DOE's environmental impact statement, but they are not 
subject to the compliance standard.
    The 10,000 year period for compliance assessment was 
consistent with EPA's generally applicable standards developed 
under the Nuclear Waste Policy Act, and also reflected 
international guidance regarding the level of confidence that 
can be placed in numerical projections over very long periods 
of time.
    In July, 2004, in considering litigation filed on the 2001 
standard, the Court of Appeals for the District of Columbia 
found in favor of the agency on all counts except one, the 
10,000 year regulatory timeframe. The court found that the 
timeframe of EPA standards was not consistent with the National 
Academy of Sciences's recommendations. EPA proposed a revised 
rule in August, 2005 to address the issues raised by the 
Appeals Court. The proposed rule would limit radiation doses 
from Yucca Mountain for up to one million years after it 
closes.
    Within that regulatory timeframe, we proposed two dose 
standards that would apply based on the number of years from 
the time the facility is closed. For the first 10,000 years, 
the proposal retained the 2001 final rule's dose limit of 15 
millirem. This is a protection level at the most stringent 
radiation regulations in the U.S. today. From 10,000 years to 1 
million years, we have proposed a dose limit of 350 millirem.
    Basically, and I will try to sum up here, getting to the 
bottom line here, the public comment for the proposed rule 
closed in November 2005. We have considered and continue to 
consider the more than 2,000 comments we received on the 
proposed rule. A document describing our responses to all 
comments will be published, along with the final rule.
    The draft final rule was submitted to OMB in December, 
2006. Since then, we have engaged in productive discussions 
with other Federal agencies about the important and complex 
issues raised by setting a standard that will protect public 
health and safety and the environment. We look forward to 
completing these discussions and our analysis of the public 
comments and issuing a final rule.
    This concludes my prepared statement and I will be happy to 
address any questions.
    [The prepared statement of Mr. Meyers follows:]

Statement of Robert J. Meyers, Principal Deputy Assistant Administrator 
  For the Office of Air and Radiation, U.S. Environmental Protection 
                                 Agency

    Madam Chairwoman and Members of the Committee, good 
morning. My name is Robert Meyers and I am the Principal Deputy 
Assistant Administrator for the Office of Air and Radiation at 
the United States Environmental Protection Agency (``EPA''). I 
am pleased to be here today to discuss the status of EPA's 
public health and safety standards for the proposed spent 
nuclear fuel and high-level radioactive waste repository at 
Yucca Mountain, Nevada.
    In previous testimony before this committee, EPA has 
described its responsibilities for establishing standards for 
Yucca Mountain and why we have proposed revised standards. To 
review, the Nuclear Waste Policy Act of 1982 prescribed the 
roles and responsibilities of Federal agencies in the 
development of disposal facilities for spent nuclear fuel and 
high-level waste. EPA was identified as the agency responsible 
for establishing standards to protect the general environment 
for such facilities. In the Energy Policy Act of 1992, Congress 
delineated EPA's roles and responsibilities specific to the 
Federal Government's establishment of the potential repository 
at Yucca Mountain. EPA's role is to determine how the Yucca 
Mountain high-level waste facility must perform to protect 
public health and safety. Congress directed EPA to develop 
public health and safety standards that would be incorporated 
into the Nuclear Regulatory Commission's (``NRC'') licensing 
requirements for the Yucca Mountain facility. The Department of 
Energy (``DOE'') would apply for the license to construct and 
operate the facility and the facility would open only if NRC 
determines that DOE complied with NRC regulations which 
incorporate EPA's standards as well as other requirements. In 
establishing EPA's role, Congress also stated that EPA's safety 
standards are to be based upon and consistent with the expert 
advice of the National Academy of Sciences.
    EPA established its Yucca Mountain standards in June 2001. 
As required by the Energy Policy Act, these standards addressed 
releases of radioactive material during storage at the site and 
after final disposal. The storage standard set a dose limit of 
15 millirem per year for the public outside the Yucca Mountain 
site. The disposal standards consisted of three components: an 
individual dose standard, a standard evaluating the impacts of 
human intrusion into the repository, and a ground-water 
protection standard. The individual-protection and human-
intrusion standards set a limit of 15 millirem per year to a 
reasonably maximally exposed individual, who would be among the 
most highly exposed members of the public. The ground water 
protection standard is consistent with EPA's drinking water 
standards, which the Agency applies in many situations as a 
pollution prevention measure. The disposal standards were to 
apply for a period of 10,000 years after the facility is 
closed. Dose assessments were to continue beyond 10,000 years 
and be placed in DOE's Environmental Impact Statement, but were 
not subject to a compliance standard. The 10,000 year period 
for compliance assessment was consistent with EPA's generally 
applicable standards developed under the Nuclear Waste Policy 
Act. It also reflected international guidance regarding the 
level of confidence that can be placed in numerical projections 
over very long periods of time.
    Shortly after the EPA first established these standards in 
2001, the nuclear industry, several environmental and public 
interest groups, and the State of Nevada challenged the 
standards in court. In July 2004, the Court of Appeals for the 
District of Columbia Circuit found in favor of the Agency on 
all counts except one: the 10,000 year regulatory timeframe. 
The court found that the timeframe of EPA's standards was not 
consistent with the National Academy of Sciences' 
recommendations. The National Academy of Sciences, in a report 
to EPA, had stated that the EPA's standards should cover at 
least the time period when the highest releases of radiation 
are most likely to occur, within the limits imposed by the 
geologic stability of the Yucca Mountain site. It judged this 
period of geologic stability, for purposes of projecting 
releases from the repository, to be on the order of one million 
years. EPA's 2001 standards required DOE to evaluate the 
performance of the site for this period, but did not establish 
a specific dose limit beyond the first 10,000 years.
    EPA proposed a revised rule in August 2005 to address the 
issues raised by the appeals court. The proposed rule would 
limit radiation doses from Yucca Mountain for up to one million 
years after it closes. No other rules in the U.S. for any risks 
have ever attempted to regulate for such a long period of time. 
Within that regulatory timeframe, we proposed two dose 
standards that would apply based on the number of years from 
the time the facility is closed. For the first 10,000 years, 
the proposal retained the 2001 final rule's dose limit of 15 
millirem per year. This is protection at the level of the most 
stringent radiation regulations in the U.S. today. From 10,000 
to one million years, we proposed a dose limit of 350 millirem 
per year. The proposed long-term dose standard considered the 
variation across the country of estimated exposures from 
natural sources of radiation. Our goal in proposing this level 
was to ensure that total radiation exposures for people near 
Yucca Mountain would be no higher than natural levels people 
live with routinely in other parts of the country today. One 
million years, which represents 25,000 generations, is 
consistent with the time period cited by the NAS as providing a 
reasonable basis for projecting the performance of the disposal 
system. Our proposal would require the Department of Energy to 
show that Yucca Mountain can safely contain wastes, even 
considering the effects of earthquakes, volcanic activity, 
climate change, and container corrosion over one million years.
    The public comment period for the proposed rule closed on 
November 21, 2005. We held public hearings in Las Vegas and 
Amargosa Valley, Nevada, and Washington, DC. We have considered 
and continue to consider comments from the public hearings, as 
well as all of the comments submitted to the Agency's 
rulemaking docket, in preparing the draft final rule. More than 
2,000 comments were submitted on the proposed rule. Commenters 
represented a variety of stakeholder perspectives, including 
industry, scientific bodies, State and local government, public 
interest groups, and private citizens. Comments primarily 
addressed one of three topics: first, the proposed post-10,000-
year dose limit of 350 millirem per year, including the 
rationale for a higher long-term standard and the use of 
natural radiation levels to derive such a standard; second, the 
proposed use of the median value of the distribution of dose 
projections for comparison to the dose limit; and finally, the 
treatment of long-term events and processes, such as 
earthquakes and climate change. The comments on these and many 
other topics are directly related to the significant 
uncertainties in projecting the performance of the Yucca 
Mountain disposal system for up to one million years, and the 
challenges of interpreting those projections in a regulatory 
proceeding. A document describing our responses to all comments 
will be published along with the final rule.
    The draft final rule was submitted for Office of Management 
and Budget (OMB) review in December 2006. We have engaged in 
productive discussions with other Federal agencies about the 
important and complex issues raised by setting a standard that 
will protect public health and safety and the environment for 
up to one million years after the Yucca Mountain repository 
closes. We look forward to completing those discussions and our 
analysis of the public comments and issuing the final rule 
soon.
    Thank you again for the opportunity to appear before the 
Committee and present this update on EPA's Yucca Mountain 
standards. This concludes my prepared statement. I would be 
happy to address any questions.

         Responses by Robert J. Meyers to Additional Questions 
                           from Senator Boxer

    Question 1. As I mentioned at the hearing, I understand 
that most countries looking at a geological repository for 
nuclear waste have set or proposed standards of 10 millirems 
per year. Are you aware of any other countries that have set 
radiation protection standards as high as those EPA is 
proposing--350 millirem per year? If so, what are those 
countries and what is the standard in each?
    Response. The preferred approach internationally is to 
establish a firm risk or dose standard for an initial period 
after facility closure, and to rely upon more qualitative 
judgments that emphasize other factors contributing to safety 
thereafter. We are aware of only one country that has 
established a quantitative standard applicable beyond 10,000 
years, as EPA has proposed to do. Switzerland applies a 10 
mrem/yr standard without time limit, although there are 
provisions in the Swiss regulations that allow for a judgment 
of safety even if that level is exceeded. In making any 
comparison of dose or risk standards, it is important to 
consider the specified calculation method, the description of 
the designated receptor, the treatment of unlikely events and 
processes, and other aspects that can significantly influence 
the results of safety assessments.

    Question 2. According to your testimony, EPA did not 
initially propose a radiation standard for Yucca Mountain after 
10,000 years because there is a lack of confidence among 
individuals in the scientific community regarding the accuracy 
of projections over such a long period of time. Now that you 
have proposed standards, what happens if these projections for 
acceptable exposure between 10,000 and one million years are 
not met? Is there anything that can be done after the waste has 
been buried? What contingencies are included in setting the 
proposed standards?
    Response. EPA's role under the Energy Policy Act of 1992 
(EnPA) is to establish the ``public health and safety 
standards'' for the Yucca Mountain site. The Nuclear Regulatory 
Commission's (NRC's) role is to determine whether the 
Department of Energy's (DOE's) dose projections will comply 
with the standards. NRC will not authorize construction until 
DOE demonstrates that compliance. NRC is in a better position 
to address the question of contingency planning (see, e.g., 10 
CFR 63.111(e) regarding provisions related to retrievability of 
the waste for a specified period of time; also 10 CFR 
63.51(a)(3)(iii) regarding DOE's continued oversight of the 
repository).

    Question 3. Please furnish copies of all correspondence 
between EPA and DOE concerning the proposed EPA Yucca Mountain 
radiation rule.
    Response. Formal correspondence between EPA and DOE related 
to the proposed Yucca Mountain rule (70 FR 49014, August 22, 
2005) has been submitted to the docket for the rulemaking. For 
your convenience, we have attached an index of the materials 
currently in the docket.

    Question 4. Please send copies of all documents related to 
any meetings, conversations, or correspondence between EPA and 
DOE concerning the proposed EPA rule.
    Response. Please see the response to Question 3 above. 
Additionally, formal documents related to meetings between EPA 
and DOE regarding the proposed Yucca Mountain rule have been 
submitted to the docket for the rulemaking. For your 
convenience, we have attached an index of the materials 
currently in the docket.
    Further, as discussed with your staff on November 29, 2007, 
EPA had been working to respond to a Freedom of Information Act 
(FOIA) request for documents concerning the proposed Yucca 
Mountain rule at the time of your request. As part of that 
discussion, Committee staff agreed to receive any information 
that EPA provided to the FOIA requester and, after review of 
the docket material and FOIA records, to inform EPA whether the 
Committee would seek any additional material. Copies of the 
documents EPA provided to the FOIA requester are enclosed.

    Question 5. We heard late last year that EPA was ready to 
publish its final radiation standard for Yucca Mountain. Then 
we heard it was going to be published in January. It's now 10 
months later and we still have no radiation standard. Where 
precisely in the rulemaking process is EPA's final radiation 
standard? When can Congress expect to see a final standard? How 
will EPA's anticipated new rule compare with the previous one 
that the D.C. Circuit rejected? How will the new rule compare 
to the draft radiation standard published by EPA?
    Response. The radiation standard for Yucca Mountain has not 
yet been determined and is the subject of ongoing rulemaking 
proceedings. There are many complex issues involved in 
establishing regulations applicable for up to one million years 
that make it difficult to predict when these rulemaking 
proceedings will conclude. EPA continues to review public 
comments on its proposed rule and participate in the 
interagency review process pursuant to Executive Order 12866. 
Accordingly, EPA is not in a position to comment on the 
standard or the approach that it may adopt in its final rule.

    Question 6. What is the lifetime fatal cancer risk to 
someone exposed to the median dose of 350 millirem per year for 
70 years? How does this compare with the EPA's present 
guidelines for protecting the public? How does it compare with 
a lifetime exposure of 15 millirem per year, were it to be 
extended to the peak dose period without change from the first 
10,000 years. Would the draft standard proposed for the period 
after 10,000 years be protective of future populations relative 
to present-day EPA criteria?
    Response. For reasons discussed in the response to Question 
5 above, EPA is not in a position to comment on the final 
standard. The final rule is expected to discuss the factors 
considered by EPA in arriving at its final standard. We also 
note that our August 2005 proposed rule discussed the approach 
for the proposed 350 mrem/yr standard (70 FR 49036-49038, 
August 22, 2005).

    Question 7. How did EPA arrive at its long-term radiation 
dose standard of 350 millirems per year?
    Response. In EPA's August 2005 proposed rule, we proposed a 
dose standard of 350 mrem/yr to apply for the period between 
10,000 and 1 million years. The preamble to the proposed rule 
discussed at length the approach taken to arrive at the 
proposed 350 mrem/yr standard (70 FR 49036-49038, August 22, 
2005). For reasons discussed in the response to Question 5 
above, EPA is not in a position to comment on the standard or 
the approach that it may adopt in its final rule.

    Question 8. Does the Nuclear Waste Policy Act create an 
``inferred deadline'' that requires EPA to issue the rule 
governing the Yucca Mountain Repository before DOE files an 
application seeking a license to build the repository? If not, 
why not?
    Response. The text of the Nuclear Waste Policy Act of 1982 
(NWPA), Pub. L. No. 97-425, 96 Stat. 2201, does not contain a 
deadline on the subject of the question. In any event, the 
question pertains to administrative proceedings that NRC and 
DOE would be in a better position to address.

    Question 9. If the EPA does not issue the Yucca Mountain 
radiation standard rule before DOE submits the license 
application to NRC, will the EPA's failure to do so impede, 
limit, or otherwise affect Nevada's ability to file a legal 
challenge against the license application?
    Response. NRC would be in a better position to address 
whether, when, and to what extent a legal challenge may be made 
in the context of an administrative proceeding.

    Question 10. Is the DOE's Total System Performance 
Assessment relevant to the rule? If it is relevant, how is it 
relevant?
    Response. EPA's rule will not be based upon the results 
(dose projections) generated by the TSPA. EPA's proposed rule 
discussed modeling capabilities in general as a consideration 
in developing a regulatory standard to apply for up to 1 
million years.

    Question 11. Is the DOE's October, 2007 draft Supplemental 
Environmental Impact Statement relevant to the rule? If it is 
relevant, how is it relevant?
    Response. Because the rulemaking process is ongoing, EPA is 
not in a position to State definitively whether or to what 
extent the October 2007 Draft Supplemental Environmental Impact 
Statement is relevant. We note that it does provide the public 
with information about DOE's current dose estimates that can be 
compared to EPA's proposed standards and NRC's proposed 
regulations.

    Question 12. According to the OMB website, the Yucca 
Mountain radiation standard rule was submitted for final review 
on December 15, 2006. Does the fact that the rule was submitted 
mean that it is in its final form?
    Response. The Yucca Mountain radiation standards are 
currently undergoing interagency review, which process is 
coordinated by the Office of Management and Budget. In light of 
the ongoing rulemaking, including interagency review (see the 
response to Question 5 above), the rule is not yet in its final 
form.
                                ------                                


         Responses by Robert J. Meyers to Additional Questions 
                          from Senator Cardin

    Question 1. In May, Senator Domenici introduced the Nuclear 
Waste Access to Yucca Act. Among the provisions included in the 
legislation is one which would lift the 70,000 metric ton cap 
on waste disposal, which could result in as much as 120,000 
metric tons of waste being buried at Yucca Mountain. If Sen. 
Domenici's legislation were enacted, how would that effect 
EPA's environmental and public health radiation protection 
standards for Yucca Mountain?
    Response. Neither EPA's 2001 standards for Yucca Mountain 
nor its proposed amendments are based upon the amount of waste 
in the repository. Senator Domenici's legislation regarding an 
expansion of the repository capacity would not be expected to 
affect EPA's 40 CFR Part 197 standards.

    Question 2. What is the EPA groundwater standard for Yucca 
Mountain after 10,000 years?
    Response. Consistent with the U.S. Court of Appeals for the 
District of Columbia Circuit decision, we did not propose to 
extend the ground-water compliance period beyond the 10,000 
year timeframe. (70 FR 49022, August 22, 2005)
                                ------                                


         Responses by Robert J. Meyers to Additional Questions 
                          from Senator Inhofe

    Question 1. In a hearing in March of 2006, Mr. Wehrum 
testified that the radiation standard would be finalized by the 
end of 2006. Your testimony merely indicates that it will be 
done ``soon.'' Please indicate a date by which the rule will 
become final.
    Response. Please see the response to Senator Boxer's 
Question 5, above.

    Question 2. The draft radiation standard has been 
criticized as not being protective of public health during the 
period of ten thousand to a million years. Based on a report 
prepared for EPA, I notice that the background radiation level 
for the Yucca Mountain area in Nevada is 141 millirem and the 
background level for South Dakota is 500 millirem. If, ten 
thousand to a million years from now, the radiation exposure to 
people living around Yucca Mountain is 350 millirem, according 
to the EPA standard, they would still receive less radiation 
than people living in South Dakota. Please describe for me why 
you believe a radiation standard of 350 millirem ten thousand 
years from now is appropriate, or if you don't think so, please 
describe your recommendations for evacuating the State of South 
Dakota.
    Response. The approach taken in the proposed rule described 
one way to consider natural background radiation exposures in 
developing a standard applicable for up to 1 million years. 
Pending the outcome of the rulemaking process, including 
interagency review (see the response to Senator Boxer's 
Question 5 above), EPA is not in a position to comment on the 
standard or the approach that it may adopt in the final rule.

    Question 3. Why did EPA choose the median value, rather 
than the mean, when estimating peak doses for determining 
compliance with the radiation standard?
    Response. As described in our proposed rule, we proposed 
using the median value of the distribution of dose projections 
as a way to address the propagation of uncertainties in 
projecting doses for up to 1 million years. (70 FR 49041-49046, 
August 22, 2005) Pending the outcome of the rulemaking process, 
including interagency review (see the response to Senator 
Boxer's Question 5 above), EPA is not in a position to comment 
on the standard or the approach that it may adopt in the final 
rule.
                                ------                                


         Responses by Robert J. Meyers to Additional Questions 
                          from Senator Clinton

    Question 1a. Late last year EPA informed the Committee 
that, it was ready to publish its final Radiation Standard for 
Yucca Mountain. Then we heard it was going to be published in 
January. It's now 10 months later and we still have no 
Radiation Standard. Where precisely in the rulemaking process 
is EPA's final radiation standard? When can Congress expect to 
see a final standard?
    Response. Please see the response to Senator Boxer's 
Question 5, above.

    Question 1b. Please provide to the Committee all 
correspondence between the EPA and DOE, NRC, and any other 
agency related to the Radiation Standard.
    Response. Formal correspondence between EPA and DOE, NRC, 
and other Agencies related to the proposed Yucca Mountain rule 
has been submitted to the docket for the rulemaking. For your 
convenience, we have attached an index of the materials 
currently in the docket.

    Question 2a. How will EPA's anticipated new rule compare 
with the previous one that the D.C. Circuit rejected? How will 
the new rule compare to the draft Radiation Standard published 
by EPA?
    Response. Please see the response to Senator Boxer's 
Question 5, above.

    Question 1b. Why does EPA have a two-tiered standard in the 
first place? If 15 millirems is safe for the first 10,000 
years, why don't we just keep it there for the time period 
after? Why does EPA think it's OK to suddenly 1 day say that 
people can be exposed to 2200 percent more radiation than they 
were the day before? That seems just as arbitrary and 
capricious as the old standard that the D.C. Circuit rejected. 
If the final radiation standard extended the 15 millirem per 
year beyond 10,000 years, could Yucca Mountain comply and be 
licensed and why should that be the concern of EPA in 
establishing this standard?
    Response. We discussed in the proposed rule the reasons for 
proposing a separate dose standard applicable for the period 
between 10,000 and 1 million years. (70 FR 49030-49032, August 
22, 2005) Pending the outcome of the rulemaking process, 
including interagency review (see the response to Senator 
Boxer's Question 5 above), EPA is not in a position to comment 
on the standard or the approach that it may adopt in the final 
rule.
    NRC is responsible for determining whether DOE's dose 
projections will comply with EPA's standards. The EnPA does not 
direct EPA to develop its standards based upon DOE's 
projections of disposal system performance.

    Question 3. The EPA's draft Radiation Standard uses the 
median of the DOE calculations instead of the mean (average), 
as recommended by the National Academy and therefore required 
by law. Do you support this aspect of the EPA standard? Will 
EPA maintain this approach in the final Radiation Standard?
    Response. Please see the response to Senator Inhofe's 
Question 3 above.

    Question 4. What is the lifetime fatal cancer risk to 
someone exposed to the median dose of 350 millirem per year 
(taking into consideration the cumulative effect of background 
exposure)? How does this compare with the EPA's present 
guidelines for protecting the public against radiation? How 
does it compare with a lifetime exposure of 15 millirem per 
year, were it to be extended to the peak dose period without 
change from the first 10,000 years? Would the draft standard 
proposed for the period after 10,000 years be protective of 
future populations relative to present-day EPA criteria?
    Response. Please see the response to Senator Boxer's 
Question 6, above.

    Question 5a. In their comments to EPA regarding the 
proposed Radiation Standard, two prominent scientists called 
EPA's proposal ``the worst radiation protection rule that has 
ever been proposed'' because it ``actually implies a massive 
increase in the level of cancer risk.'' They went on to say 
that, the second tier of the standard would pose a lifetime 
cancer risk of 1 in 36 for the general population and 1 in 30 
for women. If true, this would be a terrible legacy to leave 
for future generations. Can you please comment on the 
possibility that the EPA Standard will lead to an increase in 
cancer risk.
    Response. For reasons discussed in the response to Senator 
Boxer's Question 5 above, EPA is not in a position to comment 
on the final standard. The final rule is expected to discuss 
the factors considered by EPA in arriving at its final 
standard.

    Question 5b. Is the second tier of the radiation standard 
any different from having no standard at all? At this high of 
an ``acceptable'' radiation exposure level, would DOE ever 
surpass it unless there was a major disaster at Yucca Mountain?
    Response. EPA's final rule will adopt ``public health and 
safety standards'' for the Yucca Mountain site as required by 
the EnPA and is expected to discuss the factors considered by 
EPA in arriving at its final standard.
    Relative to your second question, EPA's role under the EnPA 
is to establish the ``public health and safety standards'' for 
the Yucca Mountain site. NRC is responsible for determining 
whether DOE's dose projections in fact comply with EPA's 
standards. Thus, the conditions under which the standards may 
be exceeded will be considered during the NRC licensing 
proceedings.

    Question 6a. How did EPA arrive at its long-term radiation 
dose standard of 350 millirems per year?
    Response. Please see the response to Senator Boxer's 
Question 7, above.

    Question 6b. According to this standard, wouldn't the total 
maximal exposure be the sum of both the natural radiation as 
well as the radiation leaked from Yucca, or up to 700 millirems 
per year? EPA was charged to develop a standard that is 
acceptable for the health and safety of the public, not by 
comparing it to what is already in the environment. Therefore, 
is doubling a person's radiation exposure the same as finding 
an acceptable level that can be released from Yucca without 
increasing the population's risk of cancer.
    Response. In the proposed rule, we estimated 350 mrem/yr as 
the level of background radiation in Amargosa Valley today. 
Therefore, if exposures of 350 mrem/yr from Yucca Mountain were 
added to that background radiation, the total maximal exposure 
would be 700 mrem/yr. The approach taken in the proposal 
described one way to consider such natural exposures. Pending 
the outcome of the rulemaking process, including interagency 
review (see the response to Senator Boxer's Question 5 above), 
EPA is not in a position to comment on standard or the approach 
that it may adopt in the final rule. EPA's final standard will 
adopt ``public health and safety standards'' for the Yucca 
Mountain site, as required by the EnPA.

    Question 6c. Including the contribution by an average 
natural background of 350 millirems per year, can you please 
provide a thorough scientific response analysis, based on 
current human health, animal studies, and biomedical data, as 
to whether the risks to susceptible populations (including 
pregnant women, children, and during fetal development) under 
the standard (in particular those exposed to the top 5 percent 
of the range) could include having children with serious birth 
defects, failed pregnancies, increased risk of cancer, or other 
negative health outcomes? How does the type of exposure pathway 
play a role in this increased risk and your risk assessments? 
Has this risk assessment included the potential for materials 
to enter the groundwater, and therefore for future exposure 
pathways to include ingestion of either low-or high-energy 
emitting particles?
    Response. For the reasons discussed in the response to 
Senator Boxer's Question 5 above, EPA is not in a position to 
comment on the standard or the approach that it may adopt in 
its final rule. The final rule is expected to discuss the 
factors considered by EPA in arriving at its final standard. We 
also note that EPA presented information concerning its 
analysis of a 350 mrem/yr standard in its proposed rule (70 FR 
49036-49038, August 22, 2005).

    Question 7. How does EPA's draft standard for Yucca 
Mountain compare with the standard for the Waste Isolation 
Pilot Plant facility? How does it compare to other countries' 
radiation standards for nuclear waste facilities?
    Response. Both the proposed Yucca Mountain and WIPP 
standards include a 15 mrem/yr standard to the designated 
receptor for 10,000 years after disposal, and include 
comparable ground-water protection standards for the same 
period. The standards applicable to the WIPP do not address the 
period beyond 10,000 years. For the reasons discussed in the 
response to Senator Boxer's Question 5 above, EPA is not in a 
position to discuss the treatment of the period beyond 10,000 
years in the final Yucca Mountain rule.
    The final rule is expected to discuss the factors 
considered by EPA in arriving at its final standard.

    Question 8. The US belongs to an international convention 
on spent fuel. The convention requires that long-term radiation 
standards be essentially the same for future generations as for 
the present one. How can you justify EPA's rule on that basis?
    Response. For the reasons discussed in the response to 
Senator Boxer's Question 5 above, EPA is not in a position to 
comment on the standard or the approach that it may adopt in 
its final rule. The final rule is expected to discuss the 
factors considered by EPA in arriving at its final standard. We 
also note that a discussion of intergenerational equity was 
included in the proposed rule (70 FR 49035-49036, August 22, 
2005).

    Senator Carper. Mr. Meyers, thanks very much for that 
testimony.
    Mr. Weber, you are now recognized. Please proceed.

    STATEMENT OF MICHAEL WEBER, DIRECTOR, OFFICE OF NUCLEAR 
    MATERIAL SAFETY AND SAFEGUARDS, U.S. NUCLEAR REGULATORY 
                           COMMISSION

    Mr. Weber. Good morning.
    Senator Carper. Good morning.
    Mr. Weber. Mr. Chairman, members of the Committee, I am 
pleased to appear before you today on behalf of the staff of 
the U.S. Nuclear Regulatory Commission to discuss the process 
that we will use to review and decide whether to authorize the 
Department of Energy to build a repository at Yucca Mountain. I 
have submitted my written testimony for the record.
    Because of NRC's licensing and adjudicatory role in the 
national repository program, the NRC takes no position at this 
time on whether a permanent geologic repository can be 
constructed safely and securely at Yucca Mountain. That remains 
to be demonstrated by the Department. If DOE submits a license 
application, NRC will decide whether to authorize construction 
of the repository based on NRC's comprehensive and independent 
safety review and on the results of a full, open and impartial 
public hearing.
    We have developed our high-level waste regulatory program 
consistent with our responsibilities under the Nuclear Waste 
Policy Act and under the Energy Policy Act of 1992. This 
legislation specified an integrated approach and a long-range 
plan for both storage, transport and for disposal of spent 
nuclear fuel and high-level radioactive waste.
    The law prescribes the respective roles and 
responsibilities of the various Federal agencies. The Congress 
assigned to the NRC certain pre-licensing responsibilities and 
the regulatory authority to authorize construction of a 
repository at Yucca Mountain after deciding whether DOE's 
license application complies with applicable standards and 
regulations.
    The Congress directed the NRC to establish safety and 
licensing regulations consistent with EPA standards for Yucca 
Mountain. As we have already heard by my colleague, in 2001, 
EPA published standards and NRC published conforming 
regulations. Both were challenged in court and, in 2004, both 
were upheld on all but one issue, namely EPA's specification 
and NRC's adoption of the 10,000 year compliance period.
    In 2005, EPA proposed additional standards that would apply 
for the period between 10,000 years and a million years, and 
NRC proposed to incorporate these standards in our regulations.
    NRC stands ready to conform our regulations in the final 
EPA standards as soon as they are published.
    Turning now to DOE's anticipated license application for 
Yucca Mountain, NRC must decide whether or not to authorize the 
Department to build the proposed repository. NRC will base its 
decision on a comprehensive, independent safety review and on 
the results of a full and impartial public hearing before an 
independent panel of judges. Before we start our review, 
however, we must first decide whether we can accept DOE's 
application. NRC will determine whether the application, if 
submitted, contains the required information and whether DOE 
has complied with NRC's document access requirements. If the 
application passes this initial acceptance review,
    which may take up to 6 months, NRC can begin its detailed 
technical review. If not, NRC will return the application to 
the Department.
    The NRC staff is well qualified and prepared to conduct a 
detailed, independent technical review of the application. We 
are supported in our review by our Center for Nuclear Waste 
Regulatory Analysis. We will examine the license application to 
determine if the Department has demonstrated that the proposed 
repository will protect people and the environment in 
compliance with EPA standards and NRC's requirements.
    We will document our conclusions in a safety evaluation 
report and, in addition, the NRC will provide an opportunity 
for formal, public, evidentiary hearings on DOE's application 
that will follow a well-established set of rules and 
procedures. NRC will decide whether to deny or authorize the 
construction of the proposed repository by objectively 
reviewing the information submitted, by making decisions on 
contested matters based on the record before it, and by 
maintaining an open, public, adjudicatory process.
    NRC's high-level repository program is in the midst of an 
important transition, moving from our pre-licensing role to 
that of a more customary role as regulatory and as licensing 
authority. DOE
    bears the responsibility for demonstrating that the 
regulatory and licensing requirements have been fulfilled. The 
Commission independently will decide whether to authorize 
construction within the three to 4 year period allotted by the 
Congress.
    I thank you for the opportunity to discuss NRC's licensing 
and regulatory role, and look forward to answering questions 
that you may have.
    [The prepared statement of Mr. Weber follows:]

Statement of Michael Weber, Director, Office of Nuclear material Safety 
           and Safeguards, U.S. Nuclear Regulatory Commission


                              introduction


    Madam Chairman and Members of the Committee, it is my 
pleasure to appear before you today to discuss the process 
whereby the U.S. Nuclear Regulatory Commission (NRC) will 
review and decide whether or not to authorize the U.S. 
Department of Energy (DOE) to build a repository. Because of 
the NRC's licensing and adjudicatory role in the national 
repository program, the NRC takes no position, at this time, on 
whether a permanent geologic repository can be constructed 
safely at Yucca Mountain, Nevada. That remains to be 
demonstrated by DOE. If DOE submits a license application, the 
NRC will decide whether or not to authorize construction of a 
repository upon NRC's comprehensive and independent safety 
review, and upon consideration of the results of a full and 
impartial public hearing.


      congress established nrc's high-level waste regulatory role


    The NRC has developed and maintained its High-Level Waste 
regulatory program, consistent with our responsibilities under 
the Nuclear Waste Policy Act of 1982, as amended, and the 
Energy Policy Act of 1992. This legislation specified an 
integrated approach and a long-range plan for storage, 
transport, and disposal of spent nuclear fuel and High-Level 
Waste. It prescribes the respective roles and responsibilities 
of the NRC, the DOE and the U.S. Environmental Protection 
Agency (EPA) in the nation's High-Level Waste program. The
    Congress assigned NRC certain pre-licensing 
responsibilities and the regulatory authority to authorize 
construction of a geologic repository at Yucca Mountain after 
deciding whether a DOE license application complies with 
applicable standards and regulations.


  nrc is prepared to implement final epa standards for yucca mountain


    The Congress directed NRC to establish safety and licensing 
regulations consistent with standards for Yucca Mountain set by 
EPA. EPA standards and conforming NRC regulations for Yucca 
Mountain were published in 2001. As you know, both were 
challenged in court, and, in 2004, both were upheld on all but 
one issue, namely the EPA's specification, and NRC's adoption, 
of a 10,000-year compliance period. In 2005, EPA proposed 
additional standards that would apply for a million years, and 
NRC proposed to incorporate EPA's additional standards in our 
regulations. NRC stands ready to conform our regulations to 
final EPA standards as soon as they are published.


         nrc is prepared to evaluate doe's license application


    NRC must decide whether or not to authorize DOE to build 
the proposed repository. If authorization is granted, NRC must 
assure that DOE complies with NRC's requirements. NRC will base 
its decision on DOE's anticipated application to build a 
repository at Yucca Mountain on a comprehensive, independent 
safety review and on the results of a full and impartial public 
hearing before an independent panel of judges. Before NRC may 
even start its safety review, however, we must first decide if 
we can accept DOE's application for review. NRC will need to 
determine whether the application contains the required 
information and whether there is enough supporting information 
to address the elements of DOE's safety case, DOE must also 
comply with NRC's document access requirements. If the 
application passes this initial review, which may take up to 6 
months, NRC can begin its detailed technical review. If not, 
NRC will return the application to DOE.
    The NRC staff is well qualified and is prepared to conduct 
a detailed, independent technical review of the application. 
NRC is supported in this effort by its conflict-of-interest 
free, federally funded research and development center at 
Southwest Research Institute, the Center for Nuclear Waste 
Regulatory Analyses. If necessary, the NRC staff is prepared to 
require more information from DOE and the NRC staff has the 
resources to perform independent analyses, as needed. In its 
review, the NRC staff will examine the license application to 
determine if DOE has demonstrated that its proposed repository 
will protect people and the environment, in compliance with 
EPA's standards and NRC's requirements. Once the NRC staff has 
completed its comprehensive review, it will document its 
conclusions in a Safety Evaluation Report.
    The NRC will provide the opportunity for formal, public, 
evidentiary hearings on DOE's application that will follow 
well-established rules and procedures. Documents from all 
parties and potential parties to the hearing will have already 
been submitted to the Licensing Support Network to shorten the 
time spent on the exchange of documents that may be used as 
evidence in the proceeding. NRC will decide whether to deny or 
authorize construction of the proposed repository by 
objectively reviewing information submitted, by making 
decisions on contested matters based on the record before it, 
and by maintaining an open, public adjudicatory process.


                                summary


    The NRC staff is in the midst of an important transition--
from the pre-licensing, consultative role defined for NRC in 
statute, which was the NRC's emphasis for many years, to the 
role as regulator and licensing authority, as NRC prepares for 
DOE's license application. The DOE bears the responsibility for 
demonstrating that regulatory and licensing requirements are 
met to protect public health and safety and the environment. 
The Commission, independently, must assess and find that such a 
demonstration has been made before we can decide whether or not 
to authorize construction of the proposed geologic repository. 
NRC's ability to reach this important decision within the three 
to 4 years allotted by the Congress, depends upon: the 
issuance, by EPA, of final environmental standards, to which 
NRC can conform its regulations; receipt of a high-quality 
license application from the DOE that demonstrates that NRC 
regulations and licensing requirements have been met; and 
continued sufficient resources for the NRC to maintain its 
independent technical review capability and carry out its 
public hearing process. I want to thank you for the opportunity 
to discuss NRC's regulatory role for the proposed repository, 
and look forward to answering any questions you may have.

          Responses by Michael Weber to Additional Questions 
                           from Senator Boxer

    Question 1. It is my understanding that DOE expects to only 
have about 35 percent of the designs complete for both sub-
surface and surface facilities at Yucca Mountain when it 
submits its license application to the NRC in June 08, 
or earlier. During the question and answer period, you 
mentioned that this is not unusual. Please provide examples of 
other NRC applicants who have submitted applications with 
designs that are substantially incomplete, including the level 
of completeness for each application so filed.


    Response. complete license application and how NRC decides 
that an application is complete enough to commence a safety 
review. Before beginning a safety review, NRC conducts an 
initial ``acceptance review'' of the application. The purpose 
of this review is to ensure that the application has all the 
information necessary for the staff to commence a detailed 
technical review. The NRC routinely performs acceptance reviews 
of the many different types of license applications it 
receives, including applications for construction and operation 
of nuclear power plants, fuel cycle facilities, and others. The 
acceptance review serves as a screening process for faulty 
license applications, and prevents NRC from spending resources 
on incomplete applications. If NRC finds that information is 
missing or inadequate, NRC notifies the applicant and asks the 
applicant to supplement or withdraw the application.
    NRC will conduct such an acceptance review if it receives a 
license application for the geologic repository at Yucca 
Mountain. NRC's regulations at 10 CFR Part 63 contain detailed 
requirements for the content and scope of DOE's license 
application. NRC will perform an acceptance review against 
these requirements. If NRC finds that DOE has not provided 
enough information to satisfy the requirements in the 
regulations, the NRC can either reject the application as an 
insufficient submittal or provide DOE an opportunity to 
supplement or withdraw the application. NRC does not expect, 
nor will it accept, an application with incomplete safety 
information from DOE or any other applicant. NRC has an 
established process to ensure that any license application it 
receives from DOE or other applicants has the required level of 
detail to justify an NRC technical review.
    Once the NRC staff begins its comprehensive review, there 
is no predetermined level of detail or prescribed percentage of 
compliance for safe operation of the proposed repository. NRC's 
regulations contain a comprehensive set of performance criteria 
and safety requirements with which DOE must comply before NRC 
can authorize construction. NRC will perform a technical 
evaluation of the information provided by DOE against the 
requirements set forth in the regulations. If NRC finds DOE 
demonstrates compliance with the regulatory requirements, it 
can issue a construction authorization. Otherwise, NRC can 
request more information or, in the absence of sufficient 
information, it can deny a construction authorization.
    NRC's regulations do not require DOE to provide all aspects 
of the repository's design before receiving a construction 
authorization. DOE needs to provide sufficient detailed design 
information about those design aspects most important to 
radiological safety. While NRC will ensure that DOE meets all 
applicable regulatory requirements, its technical review will 
focus on the most important features or systems of the 
repository design. It is DOE's responsibility to determine the 
adequate level of design detail that it will provide in its 
application and that it believes supports its compliance 
demonstration.
    For instance, due to the arid desert environment at Yucca 
Mountain, the NRC anticipates that DOE plans to include dust 
suppression and control systems as a part of the overall 
repository design. However, if NRC confirms that DOE's safety 
analysis can show compliance with NRC's radiological safety 
requirements without these systems, NRC would not expect DOE to 
provide detailed design information for them.
    To receive construction permits and operating licenses, 
applicants for the 104 currently operating nuclear power 
reactors were requested, in many instances, to provide 
additional information on structures, systems, and components 
important to safety to allow NRC to complete its review and 
finding. Applicants provided varying levels of design detail in 
their license applications. In most of these cases, NRC 
determined that more information was necessary and, 
accordingly, requested more information from the applicant 
before issuing a license. NRC's approach to its licensing 
review, including the separation of the acceptance review and 
the detailed technical review processes, ensures that the NRC's 
time and resources are spent efficiently and effectively, at 
the same time, ensuring that facilities licensed by the NRC 
protect public health and safety and the environment.

    Question 2. The Nuclear Waste Policy Act directed the NRC 
to complete the repository licensing process within 3 years, 
with a possible 1-year extension. When does the 3 year clock 
start? And, what is the NRC's plan if any portion of the 
license review process takes longer than anticipated?
    Response. The 3 year clock for the license review starts 
once the NRC announces its decision to accept the license 
application for review. After NRC receives a license 
application, the NRC staff will decide whether the application 
is sufficiently complete for NRC to begin its safety review. 
During this time period, the staff will conduct a separate 
review pursuant to 10 C.F.R.  51.109 to determine whether it 
is practicable to adopt DOE's environmental impact statement. 
If the staff finds that it can accept the application for 
review, NRC will docket the application and publish a Notice of 
Hearing in the Federal Register.
    NRC will take the time necessary to perform a thorough 
safety review. The NRC staff believes it has the necessary 
expertise and infrastructure to perform its technical review 
within the statutory time constraints. There is no easy way, 
however, to predict the issues that may arise during the 
licensing review, or the time it will take to address them. NRC 
will authorize construction of the proposed repository only if 
it finds that its regulations and requirements have been met.
    If NRC finds that the established deadline is not 
sufficient for completing its licensing review 
responsibilities, then NRC will initiate the appropriate 
consultation with Congress about the schedule and the proposed 
completion of its review.

    Question 3. During the question and answer period, I 
inquired as to whether there are any circumstances under which 
the NRC would decide not to issue a license for DOE to 
construct the Yucca Mountain repository. You indicated that NRC 
would have to satisfy each of the requirements in your 
regulations. Can you describe the key requirements that DOE 
will need to meet?
    Response. NRC's regulations include specific safety 
criteria for the potential repository at Yucca Mountain and for 
assessments used to demonstrate that the repository can achieve 
those criteria. For example, DOE must demonstrate that during 
waste emplacement, and before final closure of the repository, 
no member of the public would receive a dose greater than 0.15 
millisieverts (15 millirems) each year due to normal repository 
operations. DOE must provide a comprehensive safety analysis 
called a preclosure safety analysis, showing that operational 
dose limits will be met. DOE must also show that it will 
protect repository workers using the same standards that apply 
to workers at all other nuclear facilities licensed by NRC.
    DOE must also demonstrate that projected doses, far in the 
future, will meet specific dose limits. DOE must show that for 
10,000 years after disposal, a reasonably, maximally exposed 
individual would receive a dose no greater than 0.15 
millisieverts (15 millirems) each year from the repository. EPA 
has yet to issue final standards that identify a limit for the 
period after 10,000 years. In 2005, EPA proposed additional 
standards to control potential doses that could occur beyond 
10,000, up to one million years. NRC will modify its 
regulations to be consistent with EPA's additional standards as 
soon as they are promulgated.
    DOE must show that releases from the repository system do 
not cause radioactivity in groundwater to exceed EPA limits 
that have been incorporated in NRC's licensing regulations. 
Separate standards for groundwater are designed to protect the 
groundwater resources near Yucca Mountain.
    To show whether the proposed repository would meet these 
standards, NRC requires DOE to conduct a comprehensive 
performance assessment of how the repository will function 
after it is closed. Consistent with NRC regulations, DOE must 
identify and describe the capabilities of the barriers it 
includes in its Total System Performance Assessment (TSPA), and 
on which it relies to show compliance with the safety limits.
    In addition to demonstrating compliance with EPA standards, 
as incorporated in NRC's regulations, DOE must also demonstrate 
compliance with detailed NRC regulations governing physical 
protection and security; emergency planning; retrieval of 
waste; monitoring and testing; and other aspects of safe waste 
disposal. For a more complete description, see the enclosed 
brochure, ``Judging the Safety of a Repository at Yucca 
Mountain, Nevada: U.S. Nuclear Regulatory Commission 
Requirements.''

    Question 4. 1Has NRC met with EPA to discuss the proposed 
EPA Yucca Mountain radiation standard rule? If so, were these 
meetings open to the public?
    Response. Yes, NRC staff members have met with EPA staff 
members to discuss EPA's proposed standards and NRC's proposed 
implementing regulations. The Nuclear Waste Policy Act directs 
the NRC to adopt EPA's final standard, once issued. Therefore, 
it is both appropriate and important for NRC to understand 
EPA's approach and to explain and discuss NRC's implementation 
issues and approach.
    Although these intergovernmental meetings were not open to 
the public, it is important to stress that both the EPA's 
proposed standards and NRC's proposed regulations, including 
the rationale for each, were provided to the public for 
comment. After careful consideration of the public comments, 
both EPA and NRC will promulgate their final standards and 
regulations and explain how public comments were addressed.

    Question 5. Please send copies of all documents related to 
any meetings, conversations, or correspondence between NRC and 
either EPA or DOE concerning the proposed EPA Yucca Mountain 
radiation rule.
    Response. Enclosed are the appropriate NRC-generated 
documents. The remaining documents in our possession were 
either provided to the NRC by EPA or DOE, or are NRC-generated 
documents that would reveal the substance of the draft final 
rule, which is the responsibility of EPA to develop and 
promulgate. We request that you obtain these documents from EPA 
and DOE, the originating agencies.

    Question 6. If the EPA does not issue the Yucca Mountain 
radiation rule before DOE submits the license application to 
NRC, will the EPA's failure to do so impede or otherwise 
affect, in any way, Nevada's ability to file a legal challenge 
against DOE's license application?
    Response. 1No. If the EPA does not issue final radiation 
standards for Yucca Mountain before DOE submits a license 
application to NRC, it will still be possible for Nevada to 
request an NRC hearing on the DOE license application should 
the NRC decide to docket the application and publish a notice 
of hearing.
    If DOE were to file an application in the absence of final 
EPA radiation standards, it may be necessary for DOE to amend 
its application once final standards are issued to address the 
provisions of the EPA rule. In this event, Nevada would have 
the opportunity, consistent with NRC regulations, to seek to 
raise new or amended contentions based on DOE's supplement to 
the application.

    Question 7. Will the NRC docket the DOE's license 
application if the EPA has not yet issued the Yucca Mountain 
radiation standard rule?
    Response. NRC could docket the application and commence its 
independent safety review. In the absence of final EPA 
standards and final NRC requirements that are consistent with 
them, NRC would not be able to complete its review or decide 
whether to deny or grant DOE authorization to construct the 
proposed repository. NRC's decision whether to docket the 
license application and begin the safety review under these 
circumstances will be based on consideration of all relevant 
information available and the circumstances at the time the 
license application is submitted.
    Specifically, EPA's standards and NRC's regulations for a 
period up to 10,000 years are in final form. EPA has yet to 
issue final standards applicable to the period after 10,000 
years. Thus, NRC could docket the license application and begin 
reviewing those portions of the license application not 
governed by EPA standards for the period after 10,000 years. 
Once final standards and regulations for a different timeframe 
are in place, DOE could supplement its license application as 
necessary and NRC could review those portions of the license 
application.

    Question 8. If the EPA fails to issue the Yucca Mountain 
radiation standard rule before the DOE submits its license 
application, what steps, if any, will NRC take to ensure that 
the EPA's post-license application rule issuance does not 
prejudice the rule's challengers?
    Response. NRC's regulations governing adjudications provide 
for situations where, for any number of reasons, applications 
may have to be supplemented. As stated in our response to an 
earlier question, NRC will reach no decision to either deny or 
grant a license application in the absence of final EPA 
standards and final NRC regulations that incorporate them. If 
NRC were to docket the license application, and commence its 
independent safety review, that part of the review would 
address only those aspects of the application not affected by 
EPA standards for the period after 10,000 years. For these 
reasons, NRC does not believe that those opposed to the 
provisions of the final rule would be prejudiced.

    Question 9. Why does NRC insist that its staff be a party 
advocate in favor of DOE's application? Why must Nevada and 
other opponents have to battle two Federal agencies as opposed 
to just the one that has the burden of proof? Could NRC staff 
not offer evidence at the licensing hearing to help judges 
evaluate technical information without acting as a party 
advocate in favor of DOE's application?
    Response. It is not the role of the NRC staff to act as an 
advocate for DOE or to defend the application on behalf of the 
DOE. An applicant, in this case DOE, bears the burden of 
establishing that its application satisfies all regulatory 
requirements. The NRC staff will present its own independent 
views in NRC's licensing proceeding. This ensures that the 
Atomic Safety and Licensing Board and the Commission have the 
benefit of the staff's expertise in its decision making process 
and should aid in the development of an adequate record upon 
which the NRC licensing decision will be based.
    The NRC staff has participated in licensing proceedings 
before the agency since the inception of the Commission's 
regulatory program. Historically, the Commission has considered 
the role of the NRC staff in hearings and concluded that it is 
appropriate for the staff to be a party to provide its 
expertise and its independent analysis in the review of 
contested applications.
    With respect to any Yucca Mountain Hearing, in a February 
20, 2001 letter to Mr. Robert Loux, Executive Director of 
Nevada's Agency for Nuclear Projects, then NRC Chairman Richard 
Meserve said:

    . . . . As envisioned in [the] procedures [in 10 CFR Part 
2, Subparts J and G] and in the Commission's regulations for 
the licensing of a repository, the NRC staff, with the 
assistance of the Center for Nuclear Waste Regulatory Analyses 
(CNWRA), will conduct an independent technical review of DOE's 
license application and Safety Analysis Report if and when they 
are received and will prepare a Safety Evaluation Report (SER) 
documenting the review and conclusions. Then, the NRC staff, as 
a party in the hearing, will independently present and support 
its technical analyses and SER insofar as it bears on the 
issues placed in controversy in a potential hearing and will 
take and support a position on those issues based on the 
staff's and CNWRA's expert analyses.

    The staff's analyses, positions, and regulatory conclusions 
will be wholly independent of those of DOE. The Commission 
believes that the staff's participation as a party is useful to 
the Atomic Safety and Licensing Board, the other parties, and 
the public as it will provide an independent regulatory 
perspective for the record. Both the Commission and the NRC 
staff are fully aware of and committed to maintaining 
objectivity in regulating the activities of DOE or any other 
regulated entity. That objectivity will not be undercut--
indeed, it will be enhanced--by the presentation by the staff 
of its independent views as a party in a potential hearing.
    It has often been recognized that whatever appearance of 
staff-applicant agreement there may be, it is the result of a 
long and very public process. The core of this process is the 
staff's diligent and extended inquiry into the application, an 
inquiry that requires many meetings with the applicant; 
meetings that are routinely announced to the public, so that 
interested persons can attend and participate. In 1986, the 
Commission, addressing the appearance issue more generically, 
said:

    . . . . [The appearance] is attributable not to bias on the 
staff's part but to the nature of the staff's extensive 
prehearing review of the application. The applicant often makes 
changes in the application in order to secure the staff's 
approval, so that by the time the hearing commences, many of 
the staff's concerns have been accommodated.

    Question 10. By only requiring that the DOE's computer 
simulation meet one test--that the predicted radiation dose to 
an individual 18 kilometers from Yucca Mountain stay below the 
EPA limit--NRC has effectively abandoned ``defense in depth.'' 
How can you justify not having individual requirements on the 
separate safety features, as you do for reactors?
    Response. NRC regulations contain multiple criteria against 
which DOE's performance assessment, including DOE's computer 
simulations, will be evaluated. Although DOE's total system 
performance assessment, or TSPA, must demonstrate compliance 
with EPA's numerical limits, DOE's TSPA must also show that the 
proposed repository comprises multiple barriers (both 
engineered and natural or geologic) consistent with a defense-
in-depth safety approach.
    NRC regulations for the proposed repository at Yucca 
Mountain represent a unique application of NRC's defense-in-
depth philosophy to a first-of-a-kind facility. While waste is 
being emplaced, and before a geologic repository is closed, its 
operation is readily amenable to regulation in much the same 
manner as any other large, NRC-licensed facility. Application 
of defense-in-depth principles for regulation of repository 
performance for long time periods following closure, however, 
must account for the difference between a geologic repository 
and an operating facility with active safety systems and the 
potential for active control and intervention. For the most 
part, the safety components of a nuclear power plant work or 
fail in a binary fashion, and extensive actuarial data exist to 
form the basis for estimating failure rates. The components of 
a repository, on the other hand, are expected to behave 
continuously over long timeframe for which performance data may 
be scarce or non-existent. As a result, performance of 
repository safety systems and subsystems must be extrapolated 
from limited data. For example, the waste package is expected 
to go from a State of complete integrity and total containment 
of the waste to a State of very gradual failure over tens to 
hundreds of thousands of years. Assessment of the safety of 
such a system over long timeframe is best evaluated through 
consideration of the relative likelihood of threats to its 
integrity and performance, in the context of overall system 
behavior. For these reasons, NRC's regulations provide DOE 
flexibility to determine the types and capabilities of barriers 
it will rely on to demonstrate the repository will perform 
within the safety requirements.
    The National Academy of Sciences in its report on Yucca 
Mountain Standards recommended that NRC not specify separate 
requirements for subsystems (i.e., individual barriers). 
Consistent with this NAS recommendation, and the reasons stated 
above, the NRC did not specify separate limits for individual 
barriers. Instead, NRC's regulations require DOE to identify 
and describe the capabilities of the barriers it includes in 
its TSPA, and on which it relies to show compliance with the 
safety limits. NRC will perform a risk-informed review of DOE's 
TSPA to decide whether DOE complies with applicable safety 
regulations. This means that NRC will review each barrier 
important to waste isolation with a rigor commensurate with the 
safety significance of the barrier.
    The Commission considers this approach for multiple 
barriers and defense-in-depth in its Part 63 regulations both 
appropriate and protective. When NRC issued final Part 63 on 
November 2, 2001 (66 FR 55758), the Commission stated the goal 
of the regulations regarding multiple barriers and defense-in-
depth and explained its reasoning for not specifying 
requirements for specific barriers:

     . . . [T]he emphasis should not be on the isolated 
performance of individual barriers but rather on ensuring the 
repository system is robust, and is not wholly dependent on a 
single barrier. Further, the Commission supports an approach 
that would allow DOE to use its available resources effectively 
to achieve the safest repository without unnecessary 
constraints imposed by separate, additional subsystem 
performance requirements. It is also important to remember that 
Part 63 requires DOE to carry out a performance confirmation 
program to provide further confidence that barriers important 
to waste isolation will continue to perform as expected (66 FR 
55758).

    The court addressed this same issue in Nevada's suit 
challenging the Part 63 rule:

    Specifically, Nevada contests NRC's use of defense-in-depth 
at the proposed Yucca Mountain repository through an overall 
system performance assessment rather than using the approach of 
its older regulations, which approach tests the individual 
performance of the repository's `system elements.' [ . . . ] In 
light of NRC's detailed analysis supporting its decision to 
evaluate the performance of the Yucca Mountain repository based 
on the barrier system's overall performance, we believe that it 
adequately explained its change in course. [ . . . ] 
Accordingly, we conclude that NRC acted neither arbitrarily nor 
capriciously in rejecting Part 60's subsystem performance 
approach in favor of the overall performance approach. NEI v. 
EPA; 373 F.3d 1251, 1295-97 (D.C. Cir. 2004).

    Question 11. Recent documents found on the NRC's Licensing 
Support Network reveal that DOE might be planning to unveil a 
new performance assessment model to replace the Total System 
Performance Assessment after the Department submits its license 
application. In what ways would such an action by DOE slow 
NRC's review of the license application? Would NRC have to re-
consider its decision to docket the license application?
    Response. NRC could reconsider its decision, depending upon 
the effect of the new model on DOE's compliance demonstration. 
If the new information were to dramatically change DOE's 
application, the NRC staff could allow DOE to withdraw, revise 
and resubmit the license application. The staff would then 
begin a new acceptance review, once DOE resubmits its 
application. If the new information enhances, but does not 
fundamentally alter DOE's compliance demonstration, it would be 
possible for NRC staff to continue the review. Depending on the 
nature and extent of new information, and its effect on DOE's 
demonstration of compliance, NRC staff would consider whether 
adjustments to the review schedule would be needed.

    Question 12. In its preliminary designs for the repository, 
DOE proposes to install titanium drip shields over the nuclear 
waste packages in order to keep water from corroding the 
packages. However, DOE has said that it would install them just 
prior to repository closure, 100 to 300 years after beginning 
waste disposal. Will NRC allow DOE to count on drip shields in 
its safety analysis for Yucca Mountain, despite the fact that 
the drip shields may never be installed?
    Response. DOE must apply to NRC for authorization to build 
the proposed repository. Under NRC's regulations, DOE must show 
that its proposal will comply with specified performance 
objectives for the geologic repository after permanent closure. 
If DOE files an application, and if NRC accepts the application 
for review, NRC will begin a thorough safety review. In that 
review, the NRC staff will evaluate whether DOE's proposed 
design, including reliance on any specific design feature or 
component of the engineered barrier system, such as a drip 
shield, succeeds in making the required demonstration.
    The NRC staff will then document its assessment in a public 
Safety Evaluation Report. If DOE's application fails to make 
the necessary demonstrations of compliance with the 
Commission's regulations, the NRC staff will not authorize 
construction. If the NRC staff recommends that NRC authorize 
construction, the NRC may specify license conditions, as 
needed, to provide reasonable expectation that relevant 
performance objectives will be met. NRC can only assess the 
need for such conditions, their reasonableness, and their 
potential to be enforced in the context of DOE's overall design 
as presented in a license application.
    Once the NRC staff completes its review and documents its 
conclusions, NRC will hold formal, public, evidentiary hearings 
on DOE's application before an independent panel of judges. 
These hearings will afford potential parties, including the 
State of Nevada, with the opportunity to propose and justify 
contentions about the completeness and adequacy of the safety 
case DOE presents in its license application. If--based on its 
independent safety review and on consideration of the results 
of a full and impartial public hearing--NRC is able to 
authorize construction, NRC would oversee that construction to 
ensure DOE complies with NRC regulations and with conditions of 
its authorization.
    Before DOE could actually begin disposal of waste at the 
repository, however, DOE would need to formally ask NRC to 
issue a license to receive and possess waste. Any decision by 
NRC to grant or deny this request would, itself, require 
consideration of another comprehensive, independent safety 
review, and opportunity for another public hearing. Under no 
circumstances would NRC permit DOE to receive and possess waste 
at a repository without finding that public health and safety 
and the environment are protected. If NRC allows DOE to operate 
the repository, NRC would oversee DOE operations to ensure DOE 
complies with NRC regulations and with all conditions of its 
license.
    If DOE proposes to install drip shields and if the drip 
shields are considered important for waste isolation or 
repository performance, the installation of the drip shields at 
an appropriate time would become part of the license 
conditions. If DOE were to decide, at a later date, not to 
install the drip shields, the decision would require specific 
regulatory approval in the form of a license amendment which 
would be subject to technical review and the potential for a 
hearing as part of the amendment process. Alternatively, DOE 
may be able to demonstrate regulatory compliance without the 
drip shields but still propose to install the drip shields as 
an additional barrier. Under such circumstances, as long as DOE 
could demonstrate that the drip shields would not degrade the 
performance of the repository, installation of the drip shields 
would not be a requirement in the license.

    Question 13a. Do you believe that the 20-year opposition by 
the State of Nevada regarding the Yucca Mountain project is a 
relevant factor for consideration?
    Response. Under the national policy framework set forth by 
the Congress in the Nuclear Waste Policy Act (NWPA) of 1982, as 
amended, NRC must consider DOE's application, pursuant to NRC's 
authority under the Atomic Energy Act. NRC will decide whether 
to deny or grant the application only after it completes a 
comprehensive safety review of the application, and considers 
the results of a full and impartial public hearing. NRC has 
assured, through its hearing process, that Nevada, Affected 
Units of Local Government in Nevada and California, Affected 
Tribes, and other potential parties will have opportunities to 
present their concerns about DOE's demonstration of compliance 
with applicable standards and regulations.

    Question 13b. Do you believe that permanent spent nuclear 
fuel storage should be located in any State that has expressed 
overwhelming opposition to such a facility?
    Response. As discussed above, this is a question of public 
policy that has already been addressed by the Congress. 
Consistent with statutory direction, NRC will deny or authorize 
construction of the proposed repository based on its 
determination of whether or not the health and safety of the 
public and the environment will be protected, in accordance 
with NRC's regulations.
                                ------                                


          Responses by Michael Weber to Additional Questions 
                          from Senator Inhofe

    Question 1. If EPA's radiation standard has not been 
finalized when DOE files the license application next year, 
what actions can NRC take on the application prior to 
finalization of the standard?
    Response. NRC could docket the application and commence its 
independent safety review. In the absence of final EPA 
standards and final NRC requirements that are consistent with 
them, NRC would not be able to complete its review or decide 
whether to deny or grant DOE authorization to construct the 
proposed repository. NRC's decision whether to docket the 
license application and begin the safety review under these 
circumstances will be based on consideration of all relevant 
information available and the circumstances at the time the 
license application is submitted.
    Specifically, EPA's standards and NRC's regulations for a 
period up to 10,000 years are in final form. EPA has yet to 
issue final standards applicable to the period after 10,000 
years. Thus, NRC could docket the license application and begin 
reviewing those portions of the license application not 
governed by EPA standards for the period after 10,000 years. 
Once final standards and regulations for a different timeframe 
are in place, DOE could supplement its license application as 
necessary and NRC could review those portions of the license 
application.

    Question 2. Ms. Masto contends that NRC staff will unfairly 
become an advocate for DOE during the hearing process following 
the Safety Evaluation Report. Will you please describe the role 
of NRC staff in the hearing process?
    Response. The role of the NRC staff in the hearing process 
is to independently present and support its technical analyses 
and Safety Evaluation Report (SER) insofar as it bears on the 
issues placed in controversy in a potential hearing. An 
applicant, in this case DOE, bears the burden of proving its 
own case in a licensing proceeding. The NRC staff is free to 
present its own views in a proceeding regarding its review of a 
potential Yucca Mountain License Application. This freedom 
ensures that the Atomic Safety and Licensing Board and the 
Commission have the benefit of the staff's technical and 
regulatory expertise in the decision making process.
    The NRC staff has participated in licensing proceedings 
before the agency since the inception of the Commission's 
regulatory program. Historically, the Commission has considered 
the role of the NRC staff in hearings and concluded that it is 
appropriate for the staff to be a party to provide its 
expertise and its independent analysis in the review of 
contested applications.
    With respect to any Yucca Mountain hearing, in a February 
20, 2001 letter to Mr. Robert Loux, Executive Director of 
Nevada's Agency for Nuclear Projects, then NRC Chairman Richard 
Meserve said,

    . . . . As envisioned in [the] procedures [in 10 CFR Part 
2, Subparts J and G] and in the Commission's regulations for 
the licensing of a repository, the NRC staff, with the 
assistance of the Center for Nuclear Waste Regulatory Analyses 
(CNWRA), will conduct an independent technical review of DOE's 
license application and Safety Analysis Report if and when they 
are received and will prepare a Safety Evaluation Report (SER) 
documenting the review and conclusions. Then, the NRC staff, as 
a party in the hearing, will independently present and support 
its technical analyses and SER insofar as it bears on the 
issues placed in controversy in a potential hearing and will 
take and support a position on those issues based on the 
staff's and CNWRA's expert analyses.
    The staff's analyses, positions, and regulatory conclusions 
will be wholly independent of those of DOE. The Commission 
believes that the staff's participation as a party is useful to 
the Atomic Safety and Licensing Board, the other parties, and 
the public as it will provide an independent regulatory 
perspective for the record. Both the Commission and the NRC 
staff are fully aware of and committed to maintaining 
objectivity in regulating the activities of DOE or any other 
regulated entity.

    It has often been recognized that whatever appearance of 
staff-applicant agreement there may be is the result of a long 
and very public process. The core of this process is the 
staff's diligent and extended inquiry into the application, an 
inquiry that requires many meetings with the applicant, 
meetings that are routinely announced to the public, so that 
interested persons can attend and participate. In 1986, the 
Commission, addressing the appearance issue more generically, 
said,

    . . . . [The appearance] is attributable not to bias on the 
staff's part but to the nature of the staff's extensive 
prehearing review of the application. The applicant often makes 
changes in the application in order to secure the staff's 
approval, so that by the time the hearing commences, many of 
the staff's concerns have been accommodated.

    Question 3. In her testimony as Nevada's Attorney General, 
Ms. Masto claims that the licensing process is biased and 
denies Nevada due process rights. Would you please describe in 
detail the opportunities the State of Nevada will have to 
participate in the licensing process? Please include 
opportunities for participation all related agency activities 
in preparation for considering a construction authorization 
application.
    Response. The NRC hearing procedures for Yucca Mountain are 
set forth in published Commission regulations, principally its 
Rules of Practice for Domestic Licensing Proceedings and 
Issuance of Orders, which are published at 10 C.F.R. Part 2. 
Under these procedures, Nevada, as the ``host State'' may seek 
to participate as a Party to a Yucca Mountain licensing 
proceeding. Nevada does not need to establish standing, but 
must submit one admissible issue of law or fact, called 
contentions in the Commission's regulations, to be granted 
party status. In addition to contentions about the license 
application, the State, if it so chooses, may also file 
contentions that it is not practicable for NRC to adopt the 
DOE's Environmental Impact Statement. As a party, Nevada is 
entitled to litigate its contentions, and may engage in 
discovery, file motions, sponsor its own witnesses to support 
its position, participate in questioning witnesses of other 
parties, file briefs, and appeal Licensing Board decisions to 
the Commission.
    In the alternative, if Nevada does not wish to participate 
as a party, it may also participate as an ``interested 
government.'' As an interested government, Nevada would 
identify those contentions submitted by other parties that were 
admitted for hearing upon which it would participate. Nevada 
could then engage in discovery, introduce evidence, interrogate 
witnesses, file proposed findings and appeal Licensing Board 
decisions to the Commission.
    Since the late 1970's, the Commission has expressed its 
support for the role and involvement of the State and of local 
communities affected by a potential repository. The Congress 
provided a role and funding for the State of Nevada, the 
Affected Units of Local Government, and Affected Tribes with 
the enactment of the Nuclear Waste Policy Act, as amended. For 
the past 20 years, NRC has conducted extensive public pre-
licensing interactions with DOE, which representatives of the 
State have attended. State and affected government 
representatives have accompanied NRC staff at many observation 
audits of DOE's program. At the State's request, NRC staff 
conducted a workshop for the State's experts on NRC's Total-
system Performance Assessment (TPA) computer code and on NRC's 
plan's for reviewing DOE's performance assessment.
    Finally, the use of the Licensing Support Network (LSN) 
enhances the public's access to all documents that may be used 
during NRC's public hearing for the repository. The LSN is an 
Internet-based portal where all participants of the hearings 
will make their documents available. The portal is open to 
public access and can be used by anyone to search and view any 
document that hearing participants may use during the hearings.

    Question 4. If new information is added to the license 
application after the deadline for filing contentions has 
passed, what opportunities will there be to dispute that new 
information?
    Response. If new information were added to a license 
application after the deadline for filing contentions has 
passed, Nevada would have the opportunity, consistent with NRC 
regulations, to seek to raise new or amended contentions based 
on the information added to the license application.

    Question 5. Lincoln County, Nevada, petitioned the NRC 6 
months ago to allow Affected Units of Local Government to be 
represented in the licensing process by ``duly authorized 
representatives'' since Lincoln County does not have the 
resources to commit to experienced legal counsel. Resolution of 
this petition is crucial to Lincoln County's ability to 
represent its citizens in the licensing proceeding. Please 
describe how the NRC will address this petition expeditiously 
and afford Lincoln County the opportunity to participate fully 
given their limited resources.
    Response. Because NRC's current regulations already allow 
Lincoln County the representation it seeks, the Commission 
recently denied the petition as unnecessary (December. 20, 2007 
letter to counsel for Lincoln County, NV). Under NRC's 
regulations, any duly authorized individual may represent an 
Affected Unit of Local Government in NRC adjudications, 
including Lincoln County, so long as the representation 
complies with State law and any applicable local government 
charter. Lincoln County has a clear right under NRC's 
regulations to appear on its own behalf, as well as be 
represented by an attorney. Although the regulations do not 
define the extent of this self-representation right for 
government bodies, the Commission has decided that States and 
local government bodies (as defined in 10 CFR   2.309(d)(2) 
and 2.315(c)) may be represented in NRC adjudications by any 
duly authorized individual chosen in accordance with State law 
and any applicable local government charter. A Notice of the 
Commission's decision will appear in the Federal Register.
                                ------                                


          Responses by Michael Weber to Additional Questions 
                          from Senator Clinton

    Question 1. It has been reported that at some point during 
NRC's review of the Yucca Mountain license application, the 
Commission's staff actually step in and defend the application 
on behalf of the DOE. This raises a number of troubling 
questions about the NRC's role in the process. Can you please 
explain the process in which NRC staff advocates in favor of 
licensing the repository before the Commission? Having NRC 
staff advocate for the DOE in this process seems to put DOE at 
a huge advantage of persuading the Commission to authorize 
construction. Do the staff that are defending the petition only 
make arguments in favor of licensing? If they identify a 
problem with the application or a reason why the repository 
should NOT be licensed, are they at liberty to inform the 
Commission? Why doesn't the Commission make DOE advocate for 
itself? Please answer these questions, and explain how this is 
a fair and public process.
    Response. It is not the role of the NRC staff to act as an 
advocate for DOE or to defend the application on behalf of the 
DOE. An applicant, in this case DOE, bears the burden of 
proving its own case in a licensing proceeding. The NRC staff 
is free to present its own views in a proceeding regarding its 
review of a potential Yucca Mountain License Application. This 
freedom ensures that the Atomic Safety and Licensing Board and 
the Commission have the benefit of the staff's unhindered 
technical and regulatory expertise in the decision making 
process.
    The NRC staff has participated in licensing proceedings 
before the agency since the inception of the Commission's 
regulatory program. Historically, the Commission has considered 
the role of the NRC staff in hearings and concluded that it is 
appropriate for the staff to be a party to provide its 
expertise and its independent analysis in the review of 
contested applications.
    With respect to any Yucca Mountain hearing, in a February 
20, 2001 letter to Mr. Robert Loux, Executive Director of 
Nevada's Agency for Nuclear Projects, then NRC Chairman Richard 
Meserve said,

    . . . . As envisioned in [the] procedures [in 10 CFR Part 
2, Subparts J and G] and in the Commission's regulations for 
the licensing of a repository, the NRC staff, with the 
assistance of the Center for Nuclear Waste Regulatory Analyses 
(CNWRA), will conduct an independent technical review of DOE's 
license application and Safety Analysis Report if and when they 
are received and will prepare a Safety Evaluation Report (SER) 
documenting the review and conclusions. Then, the NRC staff, as 
a party in the hearing, will independently present and support 
its technical analyses and SER insofar as it bears on the 
issues placed in controversy in a potential hearing and will 
take and support a position on those issues based on the 
staff's and CNWRA's expert analyses.
    The staff's analyses, positions, and regulatory conclusions 
will be wholly independent of those of DOE. The Commission 
believes that the staff's participation as a party is useful to 
the Atomic Safety and Licensing Board, the other parties, and 
the public as it will provide an independent regulatory 
perspective for the record. Both the Commission and the NRC 
staff are fully aware of and committed to maintaining 
objectivity in regulating the activities of DOE or any other 
regulated entity. That objectivity will not be undercut--
indeed, it will be enhanced--by the presentation by the staff 
of its independent views as a party in a potential hearing.

    It has often been recognized that whatever appearance of 
staff-applicant teamwork there may be is the result of a long 
and very public process. The core of this process is the 
staff's diligent and extended inquiry into the application, an 
inquiry that requires many meetings with the applicant, 
meetings that are routinely announced to the public, so that 
interested persons can attend and participate. In 1986, the 
Commission, addressing the appearance issue more generically, 
said,

    . . . . [The appearance] is attributable not to bias on the 
staff's part but to the nature of the staff's extensive 
prehearing review of the application. The applicant often makes 
changes in the application in order to secure the staff's 
approval, so that by the time the hearing commences, many of 
the staff's concerns have been accommodated.

    If the staff identifies a problem with the application or 
sees a reason why the repository should not be licensed, the 
staff will inform the Commission.

    Question 2. DOE's Total System Performance Assessment 
modeling program for the proposed Yucca Mountain repository 
will form the basis for DOE's license application. Please 
explain in detail how NRC will review DOE's conclusions based 
on TSPA. I understand it takes hundreds of computers to run 
this program. Does NRC have this capability? Will NRC run this 
program to check DOE's results? It is my understanding that 
nobody outside of DOE--not NRC, not the State of Nevada, nor 
any other stakeholder--has access to DOE's TSPA. How similar is 
NRC's Total Performance Assessment system to TSPA?
    Response.


          nrc requires doe to conduct a performance assessment


    To comply with NRC's regulations the U.S. Department of 
Energy (DOE) must conduct a performance assessment to provide 
numerical estimates of potential radiological exposures to 
future residents near Yucca Mountain. A performance assessment 
is a systematic analysis that identifies repository features, 
events, and processes that could affect performance of a 
repository; examines their potential effects on repository 
performance; and estimates potential radiological exposures.
    NRC regulations specify what a performance assessment must 
include and how it should be performed. DOE's performance 
assessment will necessarily comprise many parameters, models 
and assumptions that will be represented mathematically in many 
`computer files.' DOE refers to these components, collectively, 
as its Total System Performance Assessment, or TSPA. It is 
important to understand that TSPA is not a single computer 
program.
    DOE's TSPA is expected to perform hundreds or more separate 
simulations, or ``runs,'' to depict the different ways a 
potential repository could perform over time. The estimates of 
overall repository performance, expressed as dose estimates, 
are saved in separate computer files. TSPA creates still more 
files that preserve intermediate results (such as infiltration 
rates, degradation rates of waste packages, timing and release 
rates of radionuclides from waste packages, and timing and 
release rates of radionuclides from the saturated zone).


   nrc staff will conduct an independent safety review of doe's tspa


    NRC staff will perform a careful, independent review of the 
TSPA computer software itself, and of the many files created 
during multiple runs. These reviews will allow NRC staff to 
follow and confirm the many calculations within the TSPA and to 
examine the component parameters, models, and assumptions on 
which DOE relies to assert compliance in its license 
application. Key elements of NRC's review of DOE's TSPA 
computer programs and files include:

    1) Adequacy of scenarios evaluated in the TSPA
    NRC staff will examine the models, parameters, and 
assumptions in the computer program to verify the scenarios DOE 
uses in its TSPA properly represent the potential evolution of 
the repository. For example, the TSPA must account properly for 
the possible occurrence and timing of disruptive events.

    2)Credibility of TSPA representation of performance
    NRC staff will review the computer programs and files of 
the TSPA to decide whether DOE has properly verified the TSPA. 
The goals of this review are to find out whether: (1) DOE's 
codes model the physical processes in the repository system in 
the manner DOE intends; (2) assumptions made within TSPA are 
internally consistent; (3) estimates of uncertainty in the 
results are consistent with the model and parameter uncertainty 
included in the TSPA; and (4) repository performance and the 
performance of individual barriers, as represented by DOE in 
the TSPA, are consistent and reasonable.

    3)Statistical stability and consistency of resulting dose 
estimates
    NRC staff will examine the overall dose estimates and the 
intermediate results of the TSPA to ensure that (1) the results 
are statistically stable; (2) the estimated annual dose curves 
reflect contributions from all the scenarios evaluated; and (3) 
repository performance and the performance of individual 
components or subsystems are consistent and reasonable.


  nrc staff has prepared by reviewing publicly available versions of 
                          earlier tspa models


    Although DOE's TSPA for the license application is 
currently not available, NRC obtained published versions of the 
TSPA used for the Final Environmental Impact Statement (FEIS), 
for the Site Recommendation (SR), and most recently for the 
Supplemental Environmental Impact Statement (SEIS) to gain 
insights into how DOE intends to use the TSPA in its license 
application. NRC staff members use commercially available 
desktop computers to examine the computer programs and files of 
the TSPA for the FEIS, SR, and SEIS. Specifically, the staff 
has examined the calculations, results, parameters, models and 
assumptions within the TSPA for the FEIS, SR, and SEIS. We 
understand that DOE has made published versions of the TSPA 
available to the State of Nevada.


 nrc has developed the resources it needs for an independent review of 
                               doe's tspa


    Conducting hundreds of computer runs to support the license 
application in a timely manner, as well as saving intermediate 
data for NRC's licensing review, requires DOE's use of a 
massive computer system. It is DOE's responsibility as an 
applicant for an NRC license to run these TSPA simulations. It 
is NRC's responsibility to confirm their validity.
    DOE's computer cluster allows DOE to perform a very large 
number of simulations in a very short period of time. It is not 
possible to perform such a large number of rapid, multiple runs 
on a desk top computer. However, the NRC is able and prepared 
to perform single simulations of DOE's TSPA. When examining 
DOE's TSPA for the FEIS and SR, NRC staff performed single 
simulations on a high-performance desktop computer. The 
information necessary to conduct such evaluations is expected 
to be in the license application, which will be available to 
all parties. The NRC is already performing limited simulations 
with the TSPA for the FEIS and SR to gain insights on the model 
using desktop computers. The NRC staff is exploring the 
potential for linking several computers to improve efficiency 
of the licensing review by shortening the time required to 
perform simulations. However, if additional analyses are 
necessary, the NRC will require DOE to perform additional 
analyses and submit them for staff review. The staff does not 
intend to perform its own multi-simulation runs of the TSPA. 
Simple execution of the computer model is no substitute for the 
understanding developed through the comprehensive review 
described in items 1 through 3, above.
    NRC has developed its own independent performance 
assessment model as well as its own detailed hydrologic models 
that NRC will use to support its critique of DOE's TSPA. The 
NRC's independent Total-system Performance Assessment model 
(TPA) is similar to DOE's TSPA in that both include similar 
processes (e.g., corrosion of waste packages, seepage of water 
into repository drifts, transport of radionuclides in 
groundwater). In certain cases, however, the models represent 
some processes differently. Such differences are expected due 
to uncertainties and limitations in the information supporting 
the estimates of repository performance far in the future. The 
NRC's independent TPA model is publicly available. Over the 
past 20 years, the NRC staff has published several reports 
documenting its development of TPA and the insights gained from 
its use. NRC will use these insights to assist its review of 
DOE's TSPA. As necessary, the staff will request additional 
information from DOE.
    The Commission is confident the NRC staff is prepared to 
review DOE's TSPA in support of the license application. This 
review process will be open to the public. The Commission 
intends to ensure that the public, at a minimum, will have 
access to any TSPA codes and data that are accessible to the 
NRC staff or that impact safety determinations, providing the 
data does not involve appropriately protected information.

    Question 3. Recent documents found on the NRC's Licensing 
Support Network reveal that DOE might be planning to unveil a 
new performance assessment model to replace the Total System 
Performance Assessment after the Department submits its license 
application. In what ways would such an action by DOE slow 
NRC's review of the license application? Would NRC have to re-
consider its decision to docket the license application?
    Response. NRC could reconsider its decision, depending upon 
the effect of the new model on DOE's compliance demonstration. 
If the new information were to dramatically change DOE's 
application, the NRC staff could allow DOE to withdraw, revise 
and resubmit the license application. The staff would then 
begin a new acceptance review, once DOE resubmits its 
application. If the new information enhances, but does not 
fundamentally alter DOE's compliance demonstration, it would be 
possible for NRC staff to continue the review. Depending on the 
nature and extent of new information, and its effect on DOE's 
demonstration of compliance, NRC staff would consider whether 
adjustments to the review schedule are needed.

    Question 4. DOE plans to include the installation of the 
``drip shields'' up to 300 years into the future to keep water 
off waste containers. This is so uncertain, it may not be 
physically possible, and it's enormously expensive. It seems 
like DOE shouldn't be permitted to count on drip shields in its 
safety analysis. How can NRC allow this?
    Response. DOE must apply to NRC for authorization to build 
the proposed repository. Under NRC's regulations, DOE must show 
that its proposal will comply with specified performance 
objectives for the geologic repository after permanent closure. 
If DOE files an application, and if NRC accepts the application 
for review, NRC will begin a thorough safety review. In that 
review, the NRC staff will evaluate whether DOE's proposed 
design, including reliance on any specific design feature or 
component of the engineered barrier system, such as a drip 
shield, succeeds in making the required demonstration.
    The NRC staff will then document its assessment in a public 
Safety Evaluation Report. If DOE's application fails to make 
the necessary demonstrations of compliance with the 
Commission's regulations, the NRC staff will not authorize 
construction. If the NRC staff recommends that NRC authorize 
construction, the NRC may specify license conditions, as 
needed, to provide reasonable expectation that relevant 
performance objectives will be met. NRC can only assess the 
need for such conditions, their reasonableness, and their 
potential to be enforced in the context of DOE's overall design 
as presented in a license application.
    Once the NRC staff completes its review and documents its 
conclusions, NRC will hold public, evidentiary hearings on 
DOE's application before an independent panel of judges. These 
hearings will afford potential parties, including the State of 
Nevada, with the opportunity to propose and justify contentions 
about the completeness and adequacy of the safety case DOE 
presents in its license application. If--based on its 
independent safety review and on consideration of the results 
of a full and impartial public hearing--NRC is able to 
authorize construction, NRC would oversee that construction to 
ensure DOE complies with NRC regulations and with conditions of 
its authorization.
    Before DOE could actually begin disposal of waste at the 
repository, however, DOE would need to formally ask NRC to 
issue a license to receive and possess waste. Any decision by 
NRC to grant or deny this request would, itself, require 
consideration of another comprehensive, independent safety 
review, and opportunity for another public hearing. Under no 
circumstances would NRC permit DOE to receive and possess waste 
at a repository without finding that public health and safety 
and the environment are protected. If NRC allows DOE to operate 
the repository, NRC would oversee DOE operations to ensure DOE 
complies with NRC regulations and with all conditions of its 
license.
    If DOE proposes to install drip shields and if the drip 
shields are considered important for waste isolation or 
repository performance, the installation of the drip shields at 
an appropriate time would become part of the license 
conditions. If DOE were to decide, at a later date, not to 
install the drip shields, the decision would require specific 
regulatory approval in the form of a license amendment which 
would be subject to technical review and the potential for a 
hearing as part of the amendment process. Alternatively, DOE 
may be able to demonstrate regulatory compliance without the 
drip shields but still propose to install the drip shields as 
an additional barrier. Under such circumstances, as long as DOE 
could demonstrate that the drip shields would not degrade the 
performance of the repository, installation of the drip shields 
would not be a requirement in the license.

    Question 5. If the final EPA radiation standard is not 
published by the time DOE submits its LA, will NRC be able to 
docket DOE's submission? How far along in the LA review process 
can NRC proceed without a final radiation standard? At what 
point in the process must NRC stop reviewing the license 
application before EPA promulgates a final standard? Must the 
Radiation Standard be subjected to judicial review in Federal 
court, with a final decision made, before NRC may issue a 
construction authorization?
    Response. NRC could docket the application and commence its 
independent safety review. In the absence of final EPA 
standards and final NRC requirements that are consistent with 
them, NRC would not be able to complete its review or decide 
whether to deny or grant DOE authorization to construct the 
proposed repository. NRC's decision whether to docket the 
license application and begin the safety review under these 
circumstances will be based on consideration of all relevant 
information available and the circumstances at the time the 
license application is submitted.
    Currently, EPA's standards and NRC's regulations for a 
period up to 10,000 years are in final form. EPA has yet to 
issue final standards applicable to the period after 10,000 
years. Thus, NRC could docket the license application and begin 
reviewing those portions of the license application not 
governed by EPA standards for the period after 10,000 years. 
Once final standards and regulations are in place, DOE could 
supplement its license application as necessary and NRC could 
review those portions of the license application.
    Federal agencies implement their rules beginning on the 
effective date of the rule. Absent a court order enjoining the 
application of the radiation standard, the NRC could issue a 
construction authorization while any judicial challenges to the 
radiation standard are pending. However, judicial challenges 
could be filed as soon as the radiation standard is 
promulgated. If a lawsuit were filed shortly after 
promulgation, we would expect that the litigation would be 
completed prior to the Commission's issuing a licensing 
decision.

    Question 6. The Private Fuel Storage licensing process 
required more than 8 years to complete. Can the NRC 
realistically expect to complete the review of the Yucca 
Mountain license application in 4 years or less?
    Response. NRC's priority during the licensing process is to 
ensure that the proposed repository at Yucca Mountain is safe 
and secure and that it will protect public health and safety 
and the environment. However, the NRC recognizes that the 
three-to 4-year period mandated by the NWPA to complete the 
licensing process for Yucca Mountain will be challenging and 
will require a significant amount of resources to accomplish. 
To accomplish this goal, the NRC must first complete a 
comprehensive safety evaluation of DOE's application. Second, 
the NRC must evaluate and determine if it is practicable to 
adopt DOE's Environmental Impact Statement. Third, the NRC must 
hold a full and fair public hearing. The NRC will take the time 
it deems necessary to complete these milestones and make an 
informed and complete decision on the safety of the repository. 
If NRC finds that the established deadline is not sufficient 
for completing its licensing review responsibilities, then NRC 
will initiate the appropriate consultation with Congress about 
the schedule and the proposed completion of its review.
    Nevertheless, the NRC has and continues to undergo 
significant preparations to support the mandated 3-or 4-year 
period for the completion of its licensing review. The NRC 
staff, with the assistance of the Center for Nuclear Waste and 
Regulatory Analyses (a federally funded research and 
development center) has had over 20 years of experience and 
pre-licensing interactions with the DOE on the technical and 
regulatory issues of the proposed repository in Yucca Mountain. 
These pre-licensing interactions enhance the NRC's 
understanding of the engineering and science matters associated 
with the proposed repository. The NRC has also made significant 
efforts to make the hearing process more efficient and open to 
the public. To shorten the time spent on the exchange of 
documents that may be used as evidence in a public hearing for 
the repository, all participants will make their documents 
available via the Internet-based portal known as the Licensing 
Support Network (LSN). The LSN provides a single place where 
participants of the licensing hearing can search for documents 
from any and all of those collections in a uniform way.
    Although these NRC-initiated efforts increase its ability 
to meet the stated deadline, there are also external events 
that significantly affect this ability and must occur to 
support the schedule. First, the NRC must receive a complete, 
high-quality license application from DOE to meet this 
deadline. A high-quality license application from DOE will 
minimize the need to seek information through supplements or 
requests for additional information. Additionally, the NRC must 
receive the required appropriations from Congress to carry out 
its statutory responsibilities in this area.
    The NRC is aware that the Private Fuel Storage (PFS) 
facility underwent a long and protracted licensing process. 
Licensing was protracted in part because the licensee made 
several significant changes to the application after NRC staff 
had already begun its technical review. In addition, the 
process was prolonged by a highly contentious and litigated 
public hearing. While NRC also expects a public hearing for the 
proposed repository to be highly contested, the NRC is 
preparing to complete a public hearing within the period 
specified in the Nuclear Waste Policy Act. As stated earlier, 
the NRC has significantly streamlined the document exchange 
process through the use of information technology and the LSN. 
Additionally, the NRC will likely have multiple boards 
conducting hearings, possibly simultaneously. The NRC intends 
to use multiple boards while doing its best to avoid 
simultaneous evidentiary hearings. These efforts contrast 
significantly with those taken during the PFS hearing process. 
During the PFS hearing process, the use of information 
technology was not used as extensively. Additionally, the NRC 
did not convene multiple boards to conduct simultaneous 
evidentiary hearings. The additional resources that NRC will 
devote for a public hearing on the proposed repository will 
significantly assist NRC in preparing to meet the schedule 
specified in the Nuclear Waste Policy Act.

    Question 7. By only requiring that the DOE's computer 
simulation meet one test--that the predicted radiation dose to 
an individual 18 kilometers from Yucca Mountain stay below the 
EPA limit--NRC has effectively abandoned ``defense in depth.'' 
How can you justify not having individual requirements on the 
separate safety features, as you do for reactors? Bearing in 
mind that reactors are much better understood than the Yucca 
Mountain repository, why are you not applying a higher standard 
here rather than a weaker one?
    Response. NRC regulations contain multiple criteria against 
which DOE's performance assessment, including DOE's computer 
simulations, will be evaluated. Although DOE's total system 
performance assessment, or TSPA, must demonstrate compliance 
with EPA's numerical limits, DOE's TSPA must also show that the 
proposed repository comprises multiple barriers (both 
engineered and natural or geologic) consistent with a defense-
in-depth safety approach.
    NRC regulations for the proposed repository at Yucca 
Mountain represent a unique application of NRC's defense-in-
depth philosophy to a first-of-a-kind facility. While waste is 
being emplaced, and before a geologic repository is closed, its 
operation is readily amenable to regulation in much the same 
manner as any other large, NRC-licensed facility. Application 
of defense-in-depth principles for regulation of repository 
performance for long time periods following closure, however, 
must account for the difference between a geologic repository 
and an operating facility with active safety systems and the 
potential for active control and intervention. For the most 
part, the safety components of a nuclear power plant work or 
fail in a binary fashion, and extensive actuarial data exist to 
form the basis for estimating failure rates. The components of 
a repository, on the other hand, are expected to behave 
continuously over long time frames for which performance data 
are scarce or non-existent. As a result, performance of 
repository safety systems and subsystems must be extrapolated 
from limited short-term data. For example, the waste package is 
expected to go from a State of complete integrity and total 
containment of the waste to a State of very gradual failure 
over tens to hundreds of thousands of years. Assessment of the 
safety of such a system over long time frames is best evaluated 
through consideration of the relative likelihood of threats to 
its integrity and performance, in the context of overall system 
behavior. For these reasons, NRC's regulations provide DOE 
flexibility to determine the types and capabilities of barriers 
it will rely on to demonstrate the repository will perform 
within the safety requirements.
    The National Academy of Sciences in its report on Yucca 
Mountain Standards recommended that NRC not specify separate 
requirements for subsystems (i.e., individual barriers). 
Consistent with this NAS recommendation, and the reasons stated 
above, the NRC did not specify separate limits for individual 
barriers. Instead, NRC's regulations require DOE to identify 
and describe the capabilities of the barriers it includes in 
its TSPA, and on which it relies to show compliance with the 
safety limits. NRC will perform a risk-informed review of DOE's 
TSPA to decide whether DOE complies with applicable safety 
regulations. This means that NRC will review each barrier 
important to waste isolation with a rigor commensurate with the 
safety significance of the barrier.
    The Commission considers this approach for multiple 
barriers and defense-in-depth in its Part 63 regulations both 
appropriate and protective. When NRC issued final Part 63 on 
November 2, 2001 (66 FR 55758), the Commission stated the goal 
of the regulations regarding multiple barriers and defense-in-
depth and explained its reasoning for not specifying 
requirements for specific barriers:

    . . .  [T]he emphasis should not be on the isolated 
performance of individual barriers but rather on ensuring the 
repository system is robust, and is not wholly dependent on a 
single barrier. Further, the Commission supports an approach 
that would allow DOE to use its available resources effectively 
to achieve the safest repository without unnecessary 
constraints imposed by separate, additional subsystem 
performance requirements. It is also important to remember that 
Part 63 requires DOE to carry out a performance confirmation 
program to provide further confidence that barriers important 
to waste isolation will continue to perform as expected (66 FR 
55758).
    The court addressed this same issue in Nevada's suit 
challenging the Part 63 rule:

    Specifically, Nevada contests NRC's use of defense-in-depth 
at the proposed Yucca Mountain repository through an overall 
system performance assessment rather than using the approach of 
its older regulations, which approach tests the individual 
performance of the repository's `system elements.' [ . . . ] In 
light of NRC's detailed analysis supporting its decision to 
evaluate the performance of the Yucca Mountain repository based 
on the barrier system's overall performance, we believe that it 
adequately explained its change in course. [ . . . ] 
Accordingly, we conclude that NRC acted neither arbitrarily nor 
capriciously in rejecting part 60's subsystem performance 
approach in favor of the overall performance approach. NEI v. 
EPA; 373 F.3d 1251, 1295-97 (D.C. Cir. 2004).

    Question 8. It is a well-established fact that the site 
selection process was intended to select the most appropriate 
geologic repository. In a May 21 letter, USGS Yucca Project 
branch chief Kenneth Skipper wrote to Andrew Orrell, senior 
program manager for the DOE lead laboratory, that preliminary 
data from a recent drilling phase indicate that the location of 
the Bow Ridge fault in northern Midway Valley ``may be farther 
east than projected from previous work in the area.'' As a 
result, in June, Yucca engineers changed where they planned to 
build the concrete pads for cooling thousands of tons of highly 
radioactive spent fuel before the canisters are entombed in the 
mountain, which lies 100 miles northwest of Las Vegas. It is 
clear that DOE does not have a clear picture of the site's 
exact geological makeup, and that several other problems 
remain, including the dump's proximity to the water table and 
engineers' failure to forecast what will happen at the site, 
geologically or meteorologically, in the future. Based on these 
emerging geological and scientific data, how can NRC approve 
the application for Yucca Mountain as a geologic repository for 
nuclear waste, when the data does not support this conclusion 
and DOE cannot guarantee containment of these materials without 
significant engineered barriers? Assuming Yucca Mountain will 
not function as a geologic repository, how will that fact be 
incorporated into the NRC's review of DOE's plan to use Yucca 
Mountain as a geologic repository?
    Response. NRC would agree that the site selection process 
was intended to select an appropriate site for consideration as 
a possible geologic repository, subject to the independent 
safety review and determination afforded by NRC's licensing 
process. The basis for DOE's design and an evaluation of the 
repository's response to geologic hazards will be important 
parts of NRC's review of DOE's license application. NRC expects 
DOE to provide accurate geologic data, such as fault locations, 
to support its demonstration of regulatory compliance.
    The Nuclear Waste Policy Act of 1982, as amended in 1987, 
directed DOE to characterize the Yucca Mountain site. As part 
of that characterization program, DOE developed geologic maps. 
In developing these maps, DOE used available information to 
infer the locations of geologic structures, such as faults 
buried under younger, unfaulted soil deposits. Typically, fault 
locations identified on these types of geologic maps are 
accurate only to within hundreds of feet. This is especially 
true for areas like Midway Valley, where faults are buried 
beneath younger, unfaulted deposits. Recently, DOE sought more 
information so it could characterize subsurface conditions and 
define fault locations more accurately to support its design of 
certain surface facilities. The resulting DOE drilling program 
revealed that the main part of the Bow Ridge fault is several 
hundred feet east of its previously mapped location. In 
response to this new information, DOE adjusted the location of 
some surface facilities to avoid intersection with the Bow 
Ridge fault.
    The presence of geologic features, such as faults, does not 
necessarily imply a safety problem with the performance of the 
potential geologic repository. NRC regulations give DOE a range 
of options to consider when designing the repository system to 
mitigate the possible effects of geologic hazards and meet the 
safety standards. As noted above, the basis for DOE's seismic 
design, and an evaluation of the repository system's response 
to geologic hazards, will be important parts of NRC's review of 
the DOE license application. NRC expects DOE to provide 
accurate geologic data, such as fault locations, to support its 
demonstration of regulatory compliance. DOE's demonstration 
must consider, among other things, realistic uncertainties in 
the geologic data. Following a detailed review of DOE's 
application and a full and impartial public hearing, NRC would 
authorize construction only if NRC finds that public safety, 
common defense and security, and the environment will be 
protected.

    Senator Carper. Mr. Weber, thanks for that testimony.
    I am going to yield to Senator Clinton, and then we will go 
to Senator Inhofe, and then I will ask a question or two, and 
then to Senator Craig and Senator Barrasso, and if he returns, 
Senator Isakson and others. We will go back and forth as they 
come back in.
    Senator Clinton, you are recognized.
    Senator Clinton. Thank you very much, Senator Carper.
    Thank you, gentlemen, for being here.
    I must say that your respective testimony raises a lot of 
confusing questions. You know, if the EPA standards and NRC 
licensing regulations are not yet final, it is sort of hard on 
the matter of just logic to understand whether the NRC can 
properly docket and begin a substantive review of DOE's license 
application.
    As you all noted in your testimony, EPA's radiation 
standard is still not final, yet DOE continues to prepare an 
application to meet this unknown standard. The NRC indicates 
that they will begin to process the license even if EPA has not 
finalized the radiation standard when it is received.
    I do not believe that this comports with the process that 
the Congress set out. It certainly seems to be putting the cart 
before the horse. In a few minutes, we will hear from Nevada's 
Attorney General and her testimony makes clear that this kind 
of unclear process puts Nevada at a great disadvantage, and the 
Nevada Attorney General contends that the NRC should be 
prohibited from accepting DOE's license application for review 
until final EPA and NRC regulatory requirements are in place. 
That seems obvious to me.
    So I have several questions about the process and about 
your testimony. I want to lay them all out and go through them 
quickly.
    First, if I could, let me turn to Mr. Meyers. When will EPA 
finalize the radiation standard?
    Mr. Meyers. In my written testimony, I indicated it was our 
hope to get that done soon.
    Senator Clinton. And what does soon mean?
    Mr. Meyers. Soon means probably the normal meaning of the 
term is that it is our intent to continue to work on this and 
to get this done soon.
    [Laughter.]
    Senator Clinton. That is very enlightening, Mr. Meyers, I 
must confess.
    Now, when you get it soon, will soon be before the NRC has 
to act?
    Mr. Meyers. We are focused on our process, Senator Clinton, 
and completing our process.
    Senator Clinton. Well, that is the problem. You know, your 
final EPA standard is certainly key to any NRC action because 
if the standard is not finished soon, by the time the NRC acts, 
the NRC will be acting without the standard. Do you agree with 
that?
    Mr. Meyers. That could be hypothetically correct, but we 
intend to proceed with our standard and finish it.
    Senator Clinton. Second, let me ask you, Mr. Sproat, why is 
the Department of Energy rushing to finalize the license 
application by June of next year in the absence of a final EPA 
standard?
    Mr. Sproat. Good question, Senator.
    I just want to make it clear. In terms of the NRC 
regulations that govern the licensing and the design 
requirements for Yucca Mountain, those regulations have been in 
place for almost a decade. There are literally hundreds of 
pages of those regulations. Our license application needs to 
address all of those.
    One very small piece is the last piece that says what is 
the long-term radioactive release exposure rates that are 
potentially to emanate from Yucca Mountain out to a million 
years. That is the one last piece of literally hundreds of 
pages of regulation that isn't done yet.
    For us, in preparing our license application, we need to do 
the calculations to determine how the repository will actually 
work. We are doing that. As a matter of fact, we published our 
preliminary results in our supplemental environmental impact 
statement that we released three weeks ago. It shows that the 
peak dose from Yucca Mountain, projected peak dose, will be in 
about 200,000 years from now, and be less than five millirem, 
which is the combined exposure of a round trip air trip between 
New York and Los Angeles.
    Senator Clinton. But you know, Mr. Sproat, what is 
suggested to me by the delay of the EPA's final standard is 
that perhaps the EPA doesn't agree with that. Clearly, this has 
been put on a fast track for this Administration. If the EPA 
had a sense of urgency about it and if Mr. Meyers were not put 
in the awkward position of having to play semantic games in 
trying to respond to my question, there would already be a 
radiation standard.
    So what I am picking up is that there is a disagreement 
here, and that DOE is going full-fledged ahead and EPA is 
dragging its feet because EPA doesn't want to be on the record 
of either contradicting DOE or having to once again mangle 
science in order to get to some preconceived outcome that will 
suit those who wish to move forward on this.
    But finally, let me ask Mr. Weber, why won't the NRC refuse 
to accept the application until after the EPA radiation 
standard, and your own standards, are complete? Because it is 
not only that we don't have the EPA radiation standard, we also 
don't have your standards either.
    Mr. Weber. Clearly, Senator, our preference would be to 
have the EPA final standard and NRC's requirements in place 
before the receipt of the application. Congress addressed this 
in addressing the legislation. We cannot make our licensing 
finding on the construction authorization until such time as we 
have in fact received the EPA standard and conformed our 
regulations, because the finding that the Congress charged the 
NRC to make is that among all the requirements that Mr. Sproat 
referred to, one of them is that the EPA standard has been 
satisfied.
    Senator Clinton. Well, does that mean, then, that you will 
delay accepting the application? Or you will delay acting on 
the application?
    Mr. Weber. If we receive the application, we will commence 
our review. We cannot complete that review and reach our 
regulatory decision until such time as we have the requirements 
in place.
    Senator Clinton. Thank you very much.
    Senator Carper, I will be submitting additional questions 
for the record.
    Senator Carper. Fair enough. Thank you very much for those 
questions.
    Senator Inhofe, you are recognized.
    Senator Inhofe. Thank you, Mr. Chairman.
    First of all, early on I asked that Ronda Hornbeck's 
statement be made a part of the record. She is a county 
commissioner, the Chairman of the Lincoln County Commission. It 
is already part of the record.
    There is another one I neglected to get in, and that is 
Kevin Phillips, Mayor of Caliente, Nevada.
    I ask that this be made a part of the record.
    Senator Carper. Without objection.
    [The referenced document follows:]

        Statement of Kevin J. Phillips, Mayor of Caliente, NV., 
                          Lincoln County, NV.

    I am Kevin J. Phillips, serving in my 14th year as mayor of 
Caliente, Nevada. Many citizens in Nevada and the Nation 
understand that nuclear energy is an essential component of our 
country's energy portfolio to provide for our base load energy 
requirements while minimizing harmful emission. Many Nevadans 
also believe that Nevada can and should play a major role in 
meeting our nation's needs.
    Nevada's leadership would like the Congress to believe that 
all Nevadans adamantly oppose the development of the Yucca 
Mountain repository. This is not true. I personally know that 
most Nevadans are truly ill-informed as to the facts of this 
subject, and simply respond negatively to polls asking if they 
are in favor of the ``dump.'' Who wouldn't respond this way 
when the question is framed in this manner, and in the context 
of their lack of knowledge regarding the issue?
    There is a significant cross-section of the citizens of 
Nevada who want to help solve the national energy crisis and 
lead Nevada to become one of the most technologically and 
scientifically advanced regions in the world. These Nevadans 
are pragmatic, solution-oriented leaders who, first and 
foremost, want to ensure that the Yucca Mountain project is 
constructed in accordance with sound science and operated in a 
way that safety is always the No. 1 consideration. We agree 
with the president and with Congress that the science conducted 
at Yucca Mountain confirms it to be a suitable site for a 
geologic repository.
    Furthermore, we recognize that the same amount of used 
nuclear fuel and high level radioactive waste that is to be 
shipped to Yucca Mountain has already been shipped nationally 
and internationally without a single radioactive release that 
has resulted in harm to the environment or any individual. In 
fact, immediately upon the commencement of the used nuclear 
fuel shipments along the Caliente Rail Line, my citizens will 
experience a decreased amount of risk from hazardous material 
shipments. As a railroad town with very little emergency 
response resources, the citizens of Caliente are at risk every 
day with chlorine cars and other volatile substances. The 
increased emergency response capability that will accompany the 
shipments to Yucca Mountain will greatly enhance the everyday 
safety of my citizens from a risk management perspective.
    Congress has a tremendous opportunity to make Yucca 
Mountain one of the most important and successful public works 
projects in the history of human existence. Washington has been 
given all the information it needs to make smart decisions that 
accomplish this goal. You need to create an opportunity for 
real, meaningful economic diversification, and you need to 
start doing real things now rather than later. This project is 
far from being broken. Some synergy from you nudging this along 
is all that is required. If the Congress is truly committed to 
ultimate energy independence and energy security, this can be 
achieved.
    I respectfully suggest that the Congress take the following 
steps:

     Change the name of the site at Yucca Mountain to the 
``National Energy Reserve at Yucca Mountain.'' This 
modification highlights the value of what we truly are dealing 
with. This name change, coupled with the following additional 
suggestions, changes the way this project is viewed by the 
citizens of Nevada.
     Build the railroad from the city of Caliente to the 
National Energy Reserve at Yucca Mountain. The Record of 
Decision issued by the Department of Energy refers to this 
route as the ``Caliente Corridor.'' The Department of Energy 
has released the Draft Rail Alignment Environmental Impact 
Statement naming the Caliente Rail Corridor as the preferred 
corridor. After the Final EIS has been completed, they need to 
issue the Record of Decision on the specific alignment within 
the Caliente Rail Corridor and they need the funding to 
commence construction of the railroad.
     Ship used fuel to the National Energy Reserve. Here the 
fuel can further cool in a remote protected environment. 
Litigation pressures are relieved. Enhanced safety is achieved. 
The fuel is collected in a central location awaiting re-use.
     Change the name of the ``Caliente Corridor'' to the 
``Central Nevada Energy Corridor.'' Numerous sites along this 
new rail line are prime locations for placement of new 
electrical generation power plants of various types. These 
``energy zones'' could be pre-licensed and would provide for 
great incentive for companies to build new electrical 
generation resources, including nuclear, clean-coal, solar, 
wind and geothermal.
     Designate the National Energy Reserve as the location for 
the nation's used fuel recycling facilities. Build such 
facilities as soon as time and technology permits. Do this in 
conjunction with Nevada's university system. The Nuclear Waste 
Policy Act gives Nevada ``preference'' for such things. It 
makes total sense. Move the used fuel once. Recycle it. Place 
the small amount of ``waste'' left over deep underground in the 
repository. Move the new fuel assemblies to a nearby generation 
facility on the Central Nevada Energy Corridor and produce 
electricity.

    The Nuclear Waste Policy Act was a progressive piece of 
legislation with many potential benefits for the State of 
Nevada. There are additional changes to the legislation that 
could minimize the risk for the citizens of the Nation and 
specifically of Nevada while maximizing the benefits for those 
citizens and local governments most significantly impacted by 
Yucca Mountain. I hope that I and other likeminded leaders in 
Nevada will continue to be invited to provide innovative 
solutions as the Yucca Mountain project progresses.

    Senator Inhofe. Now, let me just read part of it here, 
because I am a little bit confused, and you might be able to 
clarify this. This is our of his statement. He is the Mayor of 
Caliente, Nevada.
    ``Nevada's leadership would like the Congress to believe 
that all Nevadans adamantly oppose the development of the Yucca 
Mountain repository. This is not true. There is a significant 
cross section of citizens in Nevada who want to help solve the 
national energy crisis and lead Nevada to become one of the 
most technologically and scientifically advanced regions of the 
world.
    These Nevadans are pragmatic, solution-oriented leaders who 
first and foremost want to ensure that the Yucca Mountain 
project is constructed in accordance with sound science and 
operated in a way that where safety is always the No. 1 
consideration. We agree with the President and with Congress 
that the science conducted at Yucca Mountain confirms it to be 
a suitable site for a geologic repository.''
    I guess I would start with you, Mr. Sproat. In your 
position, I am sure you have heard from a lot of people out in 
Nevada.
    Mr. Sproat. Senator, I have. I go out there. I spend 1 week 
a month in Nevada.
    Senator Inhofe. Yes. What kind of response to you get? All 
we have heard prior to my seeing this is that they are all 
opposed to it.
    Mr. Sproat. I don't think that is a fair characterization. 
I would certainly say that Yucca Mountain, there is a 
substantial part of the population that when asked, would you 
like a nuclear waste repository in your State, their answer 
will be no. However, I can tell you I have quarterly meetings 
with the affected units of local government, which are the 
counties surrounding the Yucca Mountain site, as well as 
representatives from the State of Nevada. And Nye County, which 
is the host county, the county which has Yucca Mountain inside 
its county borders, that county is in favor of moving forward 
with Yucca Mountain.
    Senator Inhofe. Yes, I was out there some time ago, and 
that is the impression I got. That is not the impression we get 
here in Washington.
    Let me ask you, I think Senator Clinton took a pretty 
heroic political position in saying that she is for leaving the 
waste in the existing States that are out there. Senator Reid 
made one statement that is I think the strongest of his 
testimony. I think he repeated it about three times, talking 
about the danger of transporting this around the Country. I 
have heard both sides of this thing.
    He specifically talked about after 9/11, what terrorists 
might do.
    I would like to have you take whatever time you need to 
describe to us what precautions are out there and what the risk 
is, and respond to that accusation. Because I think that was 
probably the strongest thing that he said in his opening 
statement.
    Mr. Sproat. Well, I would say first of all in terms of the 
regulations governing the transportation of spent nuclear fuel 
and high level waste, shared by both the Department of 
Transportation and the Nuclear Regulatory Commission, and the 
Department of Energy has responsibility for complying with 
their regulations, No. 1.
    No. 2, this is not something new. This has been going on 
for over 40 years already, with a very, very high safety 
record. I cited in my oral testimony the number of shipments 
that have already taken place. I think the reason most people 
don't know it is happening is because it has been a tremendous 
safety record.
    I would say that in terms of the security requirements 
associated with shipping high level nuclear waste and spent 
nuclear fuel, while there are a number of classified issues 
around that, what I can tell you is all those shipments are 
tracked by GPS tracking, have armed guards with the shipments, 
and the casks are designed for extremely severe accidents to 
prevent release of radioactivity.
    Senator Inhofe. Yes, I can remember years ago, I guess 25 
or 30 years ago, when I was Mayor of Tulsa, the thought was 
that it would be coming through and we did some checking at 
that time, finding it was very, very--well, let's say how would 
you compare that with the risk that is out there? There is risk 
in anything, I suppose, of Senator Clinton's response to, say, 
leaving it in the States that were mentioned by Senator Craig: 
New York, Iowa, South Carolina, and New Hampshire. In terms of 
relative risk, how would you measure that, between 
transportation and leaving it there?
    Mr. Sproat. All I would say, Senator, is first of all, I am 
a firm believer and I truly believe, coming from the nuclear 
industry and having been involved with interim storage at the 
plants I was involved with, it is safe where it is. I 
absolutely agree.
    However, if you are going to raise the question and assume 
that it is a target for terrorist acts, I will reprise the 
statement I made in my oral testimony, which is which do you 
think makes an easier target to go after: a stationary target 
that is at 121 locations around the Country and everybody knows 
where it is? Or moving targets that the only people who know 
where they are the people who are directly involved with 
shipping them under armed guard?
    That is a question I just leave to the Committee to answer.
    Senator Inhofe. OK. Mr. Weber, and I have gone over my time 
here, but what is there for the NRC to do if this report 
doesn't come out? I have to say, Mr. Meyers, your predecessor, 
I guess you are the Acting Director right now, Mr. Wehrum, at 
one time, it was about a year and a half ago, said that we 
would have all this done by year end, the end of 2006, and it 
is still not done.
    Now, what can the NRC do now in the absence of that?
    Mr. Weber. We have been closely interacting, Senator, with 
the Department of Energy to continue to stay up on the current 
status of their science and the engineering for the proposed 
repository. Our desire is to be as prepared as we can be so 
that when and if the application is received, we can act on 
that in a prompt and timely way.
    Our whole focus is on safety and security, so our mission 
is to be ready to make the safety and the security findings 
that we need to make to support that license application 
review.
    We are also closely coordinating with the EPA so that we 
can again be as prepared as possible to act promptly on our 
rulemaking to conform our regulations to the final EPA 
standard.
    Senator Inhofe. All right. I appreciate that.
    Mr. Chairman, I won't be able to be here during the third 
panel, but I was talking to Richard Burr yesterday, Senator 
Burr, and he has a rather elaborate introduction of Mr. Kerr, 
and I would ask that introduction be made a part of the record.
    Senator Carper. Without objection.
    [The referenced document follows:]

Introduction of James Y. Kerr, III, President, National Association of 
 Regulatory Utilitiy Commissioners, North Carolina Utilities Commission

    Commissioner Kerr was appointed to the North Carolina 
Utilities Commission by Governor Mike Easley for an 8-year term 
that commenced on July 1, 2001 and expires on June 30, 2009. He 
is the First Vice-President of the National Association of 
Regulatory Utility Commissioners (NARUC), Chairman of its 
Executive Committee and Board of Directors, and a member of its 
Electricity Committee. Commissioner Kerr is a member of The 
Keystone Center Energy Board and the Advisory Council of the 
Electric Power Research Institute. Commissioner Kerr is a Past 
President of the Southeastern Association of Regulatory Utility 
Commissioners (SEARUC) and former is Co-Chair of the Alliance 
of State Leaders Protecting Electricity Consumers.
    Commissioner Kerr has testified before Committees of the 
U.S. Senate and North Carolina General Assembly as well as the 
Federal Energy Regulatory Commission. He also has been a 
frequent speaker on regulatory issues to such groups as the 
American Bar Association, North American Energy Standards 
Board, Electric Power Supply Association, Edison Electric 
Institute, American Gas Association, National Cable & 
Telecommunications Association, and the Harvard Electricity 
Policy Group. In 2005, Commissioner Kerr was named the 2005 
Bonbright Honoree by the James C. Bonbright Utilities Centre, 
Terry College of Business, University of Georgia.
    Commissioner Kerr, a Democrat, was born on March 8, 1964 in 
Goldsboro, North Carolina. He graduated cum laude from 
Washington and Lee University in 1986. Following completion of 
his undergraduate degree, Kerr spent 3 years working for First 
Union Corporation (now Wachovia) in Charlotte and Atlanta. He 
received his law degree from the University of North Carolina 
at Chapel Hill School of Law, where he graduated with honors in 
1992.
    Prior to coming to the Utilities Commission, Kerr was a 
Partner in the law firm of Smith, Anderson, Blount, Dorsett, 
Mitchell, & Jernigan, L.L.P. His practice concentrated in civil 
and administrative litigation, with significant experience in 
the Trial Division of both the State and Federal Court systems, 
the Appellate Division of the State Court system, and the 
Utilities Commission.
    Commissioner Kerr has been active in various bar-related 
and community service organizations, including the American Bar 
Association, the North Carolina Bar Association, and the North 
Carolina Association of Defense Attorneys. He has served on the 
Board of Directors of the Triangle Division of the March of 
Dimes, the Board of Directors of the UNC School of Law Alumni 
Association, and currently he serves as a member of the Board 
of Directors of the North Carolina Museum of Art Foundation.
    Kerr, his wife, Frances, and children, Yancey and Helen, 
live in Raleigh and are members of Hayes Barton United 
Methodist Church.

    Senator Carper. All right.
    Gentlemen, I want us just to back up just a little bit. I 
would like for us to take a couple of minutes in the first part 
of my questioning, to just go back in time. Just go back to the 
1980's when we were debating where to find a site, what might 
be an appropriate site. Maybe Mr.
    Sproat, you might be the best person to do this, but just 
take us back in time and talk through the selection process, 
the legislative back and forth, the signing of the law, before 
we get into what happened in 2002, but just to back if you 
will, into the 1980's.
    Mr. Sproat. Senator, as I stated before, I was in my early 
30's back then and wasn't directly involved in this process. So 
I am not the expert on this, but I do know a couple of pieces. 
When the National Academy of Sciences determined in the early 
1970's that deep geologic disposal was the appropriate way to 
go for high level nuclear waste and spent nuclear fuel, that 
the Department of Energy, and I think at that point in time it 
was ERDA, began looking at a number of sites across the 
Country. Over a period of about eight to 9 years, that number 
of sites was winnowed down to three sites: one in Washington 
State, one in Texas, and one in Nevada, Yucca Mountain.
    There were more detailed studies done on----
    Senator Carper. Is that Texas site close to Crawford?
    [Laughter.]
    Mr. Sproat. I don't know where Deaf Smith County, Texas is.
    Senator Carper. I don't either.
    Mr. Sproat. There were more detailed studies done of those 
three sites over about a three to three and a half year period. 
At the end of that three and a half year period, and the 
Nuclear Waste Policy Act I think was originally approved in 
1983, authorized the investigation of those three sites. Then 
there was a summary report of those investigations done that 
was given to the Congress in 1986. And when the Nuclear Waste 
Policy Act was amended in 1987 is when the Congress directed 
DOE to only continue studying the Yucca Mountain site.
    What I have been told, and I haven't looked at the reports 
myself, that when those three technical reports were ranked, 
the Yucca Mountain site was ranked first technically. I can't 
speak directly to know if that in fact was the case because I 
haven't looked at those reports, but that is what I have been 
told.
    Senator Carper. All right. You were here in the room when I 
asked our first panel, Senator Reid and Senator Ensign, about 
whether or not the folks in Nevada were ever offered incentives 
to encourage them to accept this siting.
    Mr. Sproat. In the Nuclear Waste Policy Act, the Secretary 
of Energy was empowered to negotiate a deal with the State of 
Nevada, with various economic incentives and I think there was 
even a requirement for the potential deal to be approved, come 
back to the Congress for approval, and there were certain 
limitations on it. That never happened. I certainly wasn't a 
party to those discussions, so I can't give you any kind of 
good answer as to what went on, who said what and how, but 
nothing ever came of it.
    Senator Carper. That is too bad. That is too bad.
    May I direct a question, if I could, to Mr. Weber. Senator 
Voinovich and I lead a Subcommittee on this Committee whose 
responsibilities include nuclear security and nuclear safety. 
We have had a number of hearings where Commissioners from the 
NRC have come and testified at literally this table in the last 
several years.
    One of the questions that we ask the Chairman and the other 
Commissioners is to tell us how we are doing at the NRC with 
respect to our human resources. I worry right now about having 
an adequate number of Commissioners. We have three now. We may 
by next summer be down to two. That is not a good situation. I 
am concerned about the turnover. We have an impending 
retirement of maybe as many as 25 percent or more of the 
current work force at the NRC. At the same time that this 
happens, we have 100 plus nuclear power plants to say grace 
over, and we have hopefully several dozen additional 
applications coming across the bow here for the NRC to 
consider.
    On top of all this, we have the opportunity for the NRC to 
apparently receive an application of sorts from the Department 
of Energy and to scrub that closely in the months to come.
    I would just ask you to take a minute or two and describe 
for us briefly the amount of resources that you believe you are 
going to need at the NRC, not to meet all those other 
responsibilities that I have talked about, but to meet the 
responsibility to be able to not just do this review of the 
Yucca Mountain, but for doing it very, very well.
    I like to say, I have spoken here many times on this 
subject of nuclear energy, which I support, we have to be as 
close to perfect as we can be. There is no margin for error on 
this stuff, whether you are running these power plants, 
approving new ones, or in this case, siting, whether it is 
Yucca Mountain or some other site.
    Please proceed.
    Mr. Weber. You are absolutely right, Senator. When it comes 
to safety and security, it is important to get it right. That 
is what we do at the NRC. We are having quite a bit of success 
in bringing in new people, anticipating the challenge with 
retirements. We are focusing on knowledge management so that 
people who have spent literally their entire careers working in 
preparation to conduct a licensing review for the Yucca 
Mountain repository can, if they are not going to be around 
when the application arrives, that they can convey their 
knowledge to their successors.
    We have an active training program. We qualify our staff. 
We indoctrinate them into what is the background for the 
regulation, what is the background on an EPA standard, what are 
the tools that they will need to use to conduct their safety 
and security reviews. A large amount of the decisions for Yucca 
Mountain will be based on something called performance 
assessment.
    Performance assessment integrates a large amount of 
information, scenarios, models, data. It is important that be 
done right.
    So not only do we ensure that people joining the agency 
have the requisite professional skills, technical skills, but 
we also equip them with the additional skills that they will 
need to conduct their review. That is the same whether we are 
talking about the high level waste program at the NRC, or 
talking about the nuclear reactor safety program where I just 
came from earlier this year. I started my career 25 years ago 
working on the high-level waste program, so I was around 
working in high-level waste when the Congress enacted the 
Nuclear Waste Policy Act and the Amendments Act. I haven't been 
there continuously. I have moved around, but I think that is 
another feature of the NRC, that we try to broaden our staff so 
that they can do a variety of things. Those who choose to 
broaden themselves are able to have that opportunity, and 
people who really need to focus in on a specific area and want 
to be the world's expert on a particular topic--materials 
engineering, digital instrumentation control, high-level waste 
performance assessment--have that opportunity, because we need 
the whole range of administrative, technical and legal skills 
to conduct our job.
    Senator Carper. Thanks very much.
    My time has expired. Let me turn to my colleague, Senator 
Craig, for any questions he might like to ask. Senator Craig, 
you are recognized.
    Senator Craig. Thank you very much, Mr. Chairman.
    To the panelists, the Chairman and I were not necessarily 
there at the beginning, but certainly about the time we came to 
Congress that whole debate was picking up. And yes, I was on 
the committee that made the final decisions based on the three 
sites, and what was the best geology known at the time in the 
selection of Yucca Mountain. The exploratory efforts to date 
have in no way denied the original arguments in large part.
    Mr. Chairman, I think what is important today is not only 
to put in context the very open process we are now engaging in, 
because some would suggest that his is behind the scenes, that 
there is somehow a dark room. Gentleman, all three of you, 
would you discuss the very robust public process that we are 
going to be entering into as we work our way through to a final 
decision by the NRC?
    Mr. Sproat. Senator, let me ask Mr. Weber to answer that 
first because it is the NRC's process, and I would be glad to 
give you my perspective on it.
    Senator Craig. Thank you.
    Mr. Weber. Senator, as I alluded to in my testimony, we 
have both a formal and an informal public process. In terms of 
an informal process, as a Federal agency, we owe it to the 
American public to keep them informed about what we are doing. 
We have nothing to hide when it comes to safety and security. 
It is important the public knows that, and that is why we try 
to be open to the extent we can.
    We don't go so far as to release sensitive information 
pertaining to national security secrets or other information of 
that sort, but we do try to be as open as we can. In fact, that 
is one of the fundamental objectives that the NRC has. We do 
that through our website and we do that through public 
meetings. Our interactions with the Department of Energy are 
most typically open, unless--again--they are going to be 
discussing sensitive security information or other proprietary 
information. That is all the informal process.
    Beyond that, we also have the formal, adjudicatory process. 
As Mr. Sproat alluded to, there are affected units of local 
government that have been designated. Recently, the Timbisha 
Shoshone Tribe has been identified as an additional unit of 
local government affected in this proceeding.
    The hearing process affords any interested member of the 
public, the State of Nevada, the industry, to come forward and 
petition through an evidentiary process, raise issues, and have 
their day in court, so to speak, and make certain that whatever 
concerns they have, if that is a challenge to the department's 
application or to a finding that the NRC has made, they have 
that opportunity to have that heard and have evidence 
presented. Ultimately, the board that hears that, being 
independent of the NRC staff, renders a decision, and that 
decision then goes to the Commission.
    So, before I can sign a license to authorize construction 
authorization or operation of the repository, if it should come 
to that, all that process goes through, and there is ample 
opportunity for people both formally and informally to raise 
concerns and understand what NRC is doing as part of its 
review.
    Senator Craig. From now and forward?
    Mr. Weber. It has been that way for the last----
    Senator Craig. No, I understand that, but I am saying, in a 
second question, from now forward, with the understanding that 
the law requires EPA to develop a standard. This is not a 
hypothetical or a not so necessary thing. The law requires them 
to have a standard and you consider that standard in relation 
to the work of DOE. Is that not correct?
    Mr. Weber. Absolutely correct.
    Senator Craig. So assuming, Mr. Meyers, you are timely--and 
we are going to assume that, you said you would be timely--and 
that standard is out and it is considered, could you walk us 
through this open timeframe before you make a final decision as 
to whether Yucca Mountain or could not be licensed?
    Can you give us a reasonable timeframe based on what you 
all know?
    Mr. Meyers. That is actually not EPA's decision. That is 
the decision from the NRC. I would say with respect to our 
process, we are operating under Section 801 of the Energy 
Policy Act, and within normal administrative process. So 
previous to this, we of course published a notice in the 
Federal Register. We have received thousands of comments. We 
had public hearings in terms of a proposed standard. That is 
what we maintain, a public docket.
    And what we are doing now is in the process of continuing 
to review those comments and everything that came in through 
our public process, in order to reach the point in time where 
we will have a final regulation for the standards. And then 
from there, the NRC essentially takes over.
    Mr. Weber. If I could just build on my colleague's remarks, 
Senator. If we had an EPA standard final promulgated out in the 
Federal Register in, let's say, November, next month, NRC would 
act on that promptly. I would expect, and it is ultimately the 
Commission's decision, not my decision, not the NRC staff's 
decision, but I would expect that by the end of this calendar 
year, we could have a final rule in place, if the EPA standard 
is similar to what it had previously proposed, if it is not too 
dissimilar.
    So we are poised to act promptly once we have that EPA 
standard to go forward and revise our regulations and put them 
out as a final rule in the Federal Register.
    Senator Craig. Before I get back to you, Mr. Sproat, let me 
stay with you, Mr. Weber.
    The first panel talked about all of the waste that is out 
there and that it is safe and that it is safe for 100 years and 
ought to stay where it is. That is an interesting thought, and 
most importantly,
    and I think you have alluded to it, Mr. Sproat, it is safe, 
and we shouldn't argue that it isn't. We have a very safe 
industry.
    Has the NRC had anything to do with that safety and those 
casks and that storage facility that currently exists out 
there?
    Mr. Weber. Absolutely, Senator.
    Senator Craig. Would you tell us that you have been 
involved there?
    Mr. Weber. That is part of our regulatory program. That is 
one of my responsibilities.
    Senator Craig. Do you mean the cask that is currently being 
used as storage, that is good for at least 100 years, was 
established by regulations and determined by the NRC to be 
adequate?
    Mr. Weber. That is correct. And we would use the similar 
regulatory process in reviewing the adequacy of the 
construction authorization for the Department of Energy.
    Senator Craig. OK.
    Mr. Sproat.
    Mr. Sproat. Senator, I would just like to give a little 
perspective from one who has gone through the NRC licensing 
process before in the commercial industry, because that is my 
background and my experience.
    During one of the statements earlier today, somebody used 
the term opaque in describing the NRC licensing process. I 
would strenuously disagree with that characterization. This is 
the most transparent regulatory process I think the Federal 
Government has. From my own experience, the Yucca Mountain 
licensing process is even more transparent than the usual 
commercial nuclear power plant licensing process for a 
particular reason.
    The Congress made it very clear in the Nuclear Waste Policy 
Act that the interested individuals and affected units of 
government had a right to participate in the proceeding. It 
also required that the discovery process for this proceeding, 
for the hearings, be expedited by making all of the evidentiary 
material that we are going to rely on for our license 
application, available to the pubic on the internet. That is 
not done in normal commercial nuclear licensing proceedings.
    So I found it a little interesting this morning when I 
heard a remark complaining that there was too much information 
on the licensing support network. We are required by the 
regulations to put that evidentiary material on there to make 
this process as transparent as we possibly can.
    Let me just finish with one other point I would like to 
make. There was some innuendo also this morning that the DOE 
would submit an incomplete license, that we would only have 
partial design and engineering complete. I want to make this 
very clear. The regulations of the Nuclear Regulatory 
Commission make it very, very clear as to the level of detail 
and the issues that we need to address in this license 
application. If we don't meet that standard, they won't docket 
it and they won't accept it.
    It doesn't do me any good or the Department of Energy or 
this Country any good for us to develop a license application, 
give it to them, and have them reject it. That is not why I 
took this job and that is not why I am here. So I am here to 
make sure that license application has the level of 
completeness and the level of quality that is needed so they 
can docket this license application.
    Now, you may hear later this morning that our engineering 
and our design work is only 30 percent to 40 percent complete. 
That is going to be about right, and that is also appropriate 
because when I say 100 percent engineering complete, I mean I 
have all the drawings done that I need to build the repository: 
the electrical connection diagrams, the rebar installation 
diagrams. I don't need that at this stage of the proceeding. 
Quite frankly, it would be a waste of ratepayers' and 
taxpayers' money to spend money doing that engineering at this 
stage of the game. I need to have the engineering done to a 
level that allows me to satisfy the NRC that we have done the 
level of engineering design and science to answer their 
questions, and that is what we are doing.
    Senator Craig. Mr. Chairman, could I ask one last question? 
You have been very generous.
    Senator Carper. I am going to ask you to hold. We are going 
to have another round if you want to stick around.
    Senator Craig. OK. Please proceed.
    Senator Carper. I came across an interview, I think it was 
in The Economist magazine not long ago, with a fellow from 
California whose name is Stewart Brand, a long-time 
environmentalist and environmental advocate. He was 
interviewed, and was asked in the course of the interview about 
nuclear power. This is what he had to say, and I will just 
quote him. He said, ``Rather than asking how spent nuclear fuel 
can be kept safe for 10,000 to 100,000 years, we should worry 
about keeping it safe for only 100 years, because nuclear waste 
still contains an enormous amount of energy. Future generations 
may be able to harness it as an energy source through 
tomorrow's better technologies.''
    Let me ask our witnesses to respond to his comments in The 
Economist.
    Mr. Sproat. If I can, Senator, let me answer that first. 
There is no doubt in my mind there is a significant energy 
resource that resides in residual spent nuclear fuel. The 
question is when do we get to the economic tipping point when 
the recycling of that fuel makes economic sense, 1compared to 
the use of raw uranium right out of the ground. We are not at 
that stage yet. For the Administration, we believe that we will 
in the future get to that economic tipping point and recycling 
makes sense. So we do want to invest money in the technologies 
to do that, and we do want to absolutely keep that option open.
    One of the things I think many people don't recognize about 
the Yucca Mountain regulations is that it requires us, for 
whatever reason might be out there, that once the repository 
opens and we begin putting spent fuel in that repository, that 
we retain the capability to pull it back out, whether it is for 
recycling or whether it is because we found something else that 
we didn't know at the time of licensing that says we need to 
use that fuel for something else.
    So I do believe we will eventually go to recycling. I don't 
believe it is going to be in the next 10 years or 20 years. And 
meanwhile, we still have a significant amount of high level 
waste that is not recyclable, spent nuclear fuel from the 
nuclear Navy, which is residing in Idaho and the vitrified high 
level waste from the Defense programs that is in Washington 
State and New York State and some others. That needs to go to 
Yucca Mountain and recycling is not an issue regarding the 
disposal of that material.
    Senator Carper. When you say it is not an issue, just what 
do you mean by that? I am sorry.
    Mr. Sproat. What I mean is it is not recyclable. It is a 
waste form that you can't recycle or it doesn't make any 
economic sense to try to recycle.
    Senator Carper. This may be an unfair question, but I will 
ask it anyway.
    Mr. Sproat. That is OK.
    Senator Carper. If you take the high level waste in Idaho 
that you have alluded to, and Washington State, and you add to 
that all of the other waste that is being generated in power 
plant storage onsite today, just roughly, what percentage would 
be the waste in Idaho that you have alluded to, the waste in 
Washington, of the entire amount? Just roughly.
    Mr. Sproat. Senator, I would rather take that question for 
the record and give you a good answer.
    I don't know off the top of my head.
    Senator Carper. Less than half?
    Mr. Sproat. Yes, less than half.
    Senator Carper. Less than 25 percent?
    Mr. Sproat. For the Yucca Mountain repository, the 70,000 
metric ton limit, we are expecting that approximately 25 
percent of that capacity will be used for high level defense 
waste.
    Senator Carper. All right. Thank you.
    Mr. Meyers, my original question was to ask you to sort of 
respond to the comments by Stewart Brand. Do you have any 
comment at all?
    Mr. Meyers. Well, having only completed about 1 year of 
physics in college, I don't think I am qualified to get into 
the technical aspects.
    Senator Carper. I understand you stayed last night at 
Holiday Inn Express, so----
    [Laughter.]
    Mr. Meyers. I have two sick kids at home, so unfortunately 
no.
    Senator Carper. You probably wanted to spend last night at 
a Holiday Inn Express.
    Mr. Meyers. I would make this comment, which I do think is 
relevant. We have done other analysis for the Congress and 
Senate in particular, that I think the Senator is aware of, 
when we look at the various climate change legislation that has 
been introduced.
    In these scenarios that we look to and try to look at ways 
to reach some of the targets that Congress is thinking about 
establishing, nuclear power plays a very important role. Under 
one scenario, I think it grows about 150 percent and we 
project. So I think regardless of the recovery in terms of the 
energy mix and in terms of our current analysis on how to 
address some of the issues that the Senate is looking at on 
climate change, nuclear power is very important to that, along 
with carbon capture and sequestration in the coal sector.
    Senator Carper. All right.
    Mr. Weber, do you want to take a shot at it?
    Mr. Weber. Only briefly, Senator. The only thing I would 
add is, of course, the concept of recycling raises important 
public policy questions about nonproliferation, about 
economics, about safety and security. My agency, NRC, recently 
started interacting with the Department of Energy, as part of 
the Global Nuclear Energy Partnership, to become better 
acquainted with the technologies that are being reviewed, and 
ultimately should an applicant come forward and propose to 
recycle or reprocess spent nuclear fuel, NRC could be in a 
regulatory role for that. If that comes to pass, our focus will 
be on safety and security. Security there is writ broadly to 
include both international safeguards and domestic safeguards.
    Senator Carper. All right. Thank you.
    Senator Craig, I have one more question I am going to ask 
of Mr. Weber, and then we will excuse this panel.
    I would just say, I thought I saw Senator Isakson put his 
head in just a moment ago. Would somebody just check and see if 
he is interested in coming in and asking a question?
    Senator Craig, you are recognized.
    Senator Craig. The question I was going to ask has already 
been broached by the Secretary, and that is in relation to the 
other waste. We think of commercial waste. We fail to recognize 
there is Defense waste. Senator Domenici and I earlier this 
year introduced legislation. One principal provision of it was 
early receipt of Defense waste at Yucca. Part of the reason for 
that, Mr. Chairman, is exactly what the Secretary spoke to 
earlier, and that was the lack of recyclable capability, or 
within the structure or the cladding of that particular waste 
versus the commercial waste that we know about and are more 
focused on recycling in the future.
    Would you speak to that a little more? You asked a question 
that you are going to get the hard facts. We believe Defense 
waste comparable to or comparative to commercial waste would 
represent about 10 percent, or somewhere in that realm of 
totality, but respond to that. You have spoken in the past in 
relation to what Senator Domenici and I had earlier proposed, 
your reaction to that.
    Mr. Sproat. Senator, in terms of, just to try and clarify 
what I said before, the responsibility we have at the 
Department of Energy is to take all the Nation's high level 
radioactive waste and spent nuclear fuel. There is a percentage 
of that inventory which is not recyclable. It is already in its 
final form. It is in vitrified glass form. That needs to be 
disposed of in the deep geologic repository per the Nuclear 
Waste Policy Act.
    Commercial spent nuclear fuel from the nuclear power plants 
is recyclable, and maybe someday it will be not only economic 
to do so, but we will have the facilities in this Country to do 
that.
    Those facilities don't exist right now. The regulatory 
framework for those facilities doesn't exist right now. The 
economic business case for building those doesn't exist right 
now.
    So in terms of will we ever get there, I think the answer 
is yes. How long it will be, I think it is mere speculation at 
this stage of the game.
    Senator Craig. But as it relates to waste, there are two 
types that oftentimes the discussion is glazed over. There is 
the current Defense legacy, if you will, of waste that speaks 
to the need for a geologic repository.
    Mr. Sproat. That is correct.
    Senator Craig. Thank you.
    Thank you, Mr. Chairman.
    Senator Carper. Mr. Sproat, if I could, one more question 
for you, and then I will telegraph my last question. I have two 
questions.
    One, I would like for our witnesses to close by responding, 
thinking out loud with us, what are some of the most 
encouraging best practices, if you will, going on in other 
countries with respect to their nuclear waste that may hold the 
greatest promise for them and for us?
    The other thing is, and I mentioned this to Senator Clinton 
before she left, if we actually could get this right in terms 
of how to deal with nuclear waste, not only would we solve a 
problem of storage around nuclear sites themselves, the need 
for a Yucca Mountain I and Yucca Mountain II, but also we would 
have a technology that we could sell all over the world and 
create jobs through the export of that technology. Other 
countries are going to build nuclear power plants, and again we 
would encourage most of them to do that.
    But that will be my last question to Mr. Weber, so you all 
will be thinking about that. And in the meantime, Mr. Weber, I 
will ask you to respond to this one. If the final EPA radiation 
standard has not been published by the time that the Department 
of Energy submits its application to the NRC, will the NRC be 
able to make a determination on the completeness of the 
application and docket DOE's submission? And a second part to 
that question, if you will, is how far can the NRC proceed in 
reviewing DOE's application before final EPA radiation 
standards are issued, and the NRC conforms its own regulations 
to these standards.
    Mr. Weber. As I discussed previously, Senator, we can 
commence the review. We can complete the acceptance review, but 
there is a wild card there, and that wild card is, depending on 
the nature of the final EPA standard, if that introduces new 
aspects that haven't already been addressed as part of the 
application from the Department, that could impose a new 
information need that the department would have to address.
    Similarly, as we modify our regulations in 10 CFR Part 63, 
to be consistent with those of the EPA standards, we may 
introduce new requirements that, again, the Department may have 
to come back and amend their application to address.
    Now, should that take place during the licensing review, 
that will all be part of that formal adjudicatory process that 
I discussed before in response to Senator Craig's question. So 
there will be an opportunity for parties to petition to the 
board and to raise concerns and have those concerns freely and 
openly heard by the adjudicatory board.
    Senator Carper. All right. Thank you, sir.
    Mr. Sproat, did you want to take a shot at my other 
question? Again, I am looking for best practices. We are 
looking for best practices around the world.
    Mr. Sproat. Your question is timely, Senator, because 2 
weeks ago I attended a conference in Bern, Switzerland. This 
conference only occurs once every 4 years, and it is the third 
time it has been held. It is the International Conference on 
Radioactive Waste Disposal. This conference is attended by the 
senior ministers and government officials and private industry 
officials from across Europe and Japan to talk about what each 
country is doing in their best practices. So I got a pretty 
good understanding of what was going on internationally.
    A couple of things struck me from that conversation. No. 1 
was even in the countries that are supposedly anti-nuclear, 
broad consensus across these countries that it is up to this 
generation to decide what to do about nuclear waste and not 
push it off to future generations.
    That was No. 1.
    Second is that they all are utilizing what I would term a 
technically informed political process for selecting a site in 
their country. They are doing explorations. They are trying to 
characterize the site, but it is a technically informed 
political process. One of the things they try to do is to find 
a location where the people want to have the repository.
    Now, I would point out that is certainly the optimum and 
best potential situation. I would point out, however, and I 
think a lot of people forget this, besides the fact that Nye 
County, which is the host county for Yucca, does in fact want 
the repository to proceed, the Nevada State legislature in 1975 
issued a joint resolution inviting the Department of Energy to 
place the repository in Nevada. So things do change through a 
political process and we need to be aware of that.
    So really, those best practices of trying to gain local 
acceptance is pretty much an international concept. But we are 
probably further along in the actual siting process and the 
licensing process than anybody else.
    Senator Carper. If I could, I would just like to conclude 
by two quick comments. One, earlier this year, in January, I 
was in Detroit. I was attending the North American Auto Show, 
something I go to about every other year. We have a GM plant in 
my State and a Chrysler plant in my State. The most exciting 
vehicle that I saw at the auto show was probably a GM product.
    It was called the Volt, V-O-L-T. It is a Chevrolet product. 
It is one that is a flex-fuel plug-in hybrid vehicle. It is a 
concept car that they had on display, but they hope to have 
them on the highways in substantial numbers beginning in 2010. 
That will not be maybe the first flex-fuel plug-in hybrid 
vehicle on our roads, but it won't be the last.
    As we look to reduce our dependence on foreign oil, as we 
look to reduce the emissions of bad stuff up into our air, we 
are going to be moving toward those kinds of vehicles. People 
will be able to plug them in their garages or at their homes at 
night, maybe at work during the day, and they use a fair amount 
of electricity. They can go 40 miles on a charge of 
electricity, but we are going to need more electricity, and by 
using that additional electricity, be able to reduce again the 
import of foreign oil, stop paying $90 a barrel sending all 
this money, $250 billion a year for foreign countries for the 
oil that we are buying from them.
    But we need a way to generate the electricity. Part of that 
can come from wind. We are trying to site a windmill farm in 
the State of Delaware. It can come from solar. It can come from 
finding a way to safely sequester carbon from coal-fired 
plants. It can certainly come from nuclear.
    The big roadblock for us, in the minds of a lot of people, 
is not so much the safety of the actual plants themselves, 
although that continues to be a constant concern and a matter 
of constant vigilance, but how to safely dispose of the spent 
fuel.
    So thank you for your responses to our questions. Our 
Chairman is back. She got the gavel back and she is not going 
to give me the halo. This is like Halloween and trick or treat. 
I will maybe find a halo at home when I go home.
    Senator Boxer.
    [Presiding] We are going to have to negotiate on other 
issues for the halo, working on other things.
    Senator Carper. All right. Fair enough. Thank you.
    Senator Boxer. Thank you very much. Sorry I was gone. I am 
preparing for a big markup tomorrow.
    It is my understanding that DOE expects to have about 35 
percent of its design complete--I understand you said that in 
your testimony--for both subsurface and surface facilities at 
Yucca Mountain when it submits its license application to the 
NRC. Given the complexity and serious risk involved, I am 
concerned about efforts by DOE to push forward an application 
before it is ready. Why would DOE submit an incomplete 
application?
    Mr. Sproat. Senator, unfortunately I addressed this point, 
but I will do it again.
    Senator Boxer. Well, you could do it again because I wasn't 
here.
    Mr. Sproat. Absolutely.
    First of all, we won't submit an incomplete application. It 
does me no good. It does the Department of Energy no good to 
submit an application that is incomplete. The Nuclear 
Regulatory Commission has a very detailed set of requirements 
that we have to meet, and what we need to include in our 
license application for them to determine that it is in fact a 
complete application or not. If they determine it doesn't meet 
those very detailed criteria, they will reject it.
    Senator Boxer. Yes, but you are giving me words. My 
understanding is that you expect to have 35 percent of the 
design complete. Is that correct? Now, if NRC says 35 percent 
equals 100, then that is their problem and I will take it up 
with them. But I am asking you how much of the design is 
complete.
    Mr. Sproat. I don't need 100 percent of the design complete 
to license the repository. I need 100 percent of the design 
complete to build the repository.
    Senator Boxer. Who said that?
    Mr. Sproat. Senator, I am a professional licensed engineer 
who has built and licensed nuclear facilities.
    Senator Boxer. As big as this?
    Mr. Sproat. Yes.
    Senator Boxer. Where is there another Yucca Mountain that 
takes this kind of waste? We have never had a facility like 
this.
    Mr. Sproat. Senator, if I spend taxpayer and ratepayer 
money developing detailed design for like wiring connection 
diagrams that are needed to build the repository before I even 
have a license to construct it, I think you would probably be 
arguing with me that I am wasting the money.
    Senator Boxer. So you think it is perfectly fine in this 
enormous and complicated and controversial project, you admit 
it is very controversial, do you not?
    Mr. Sproat. Absolutely.
    Senator Boxer. You admit that Republicans and Democrats 
elected to office oppose it. Correct?
    Mr. Sproat. I also admit that it has bipartisan support in 
the Congress.
    Senator Boxer. We understand. You admit it is controversial 
and yet you would move forward when you only have 35 percent of 
the design completed.
    Mr. Sproat. Because that is all I need to meet the NRC 
regulations to submit a license application.
    Senator Boxer. Well, that is a different situation. I will 
take that up with them next.
    Mr. Sproat. That is what is required by the law.
    Senator Boxer. But in your view, that is all you need. So 
in your view, 35 percent. How about 25 percent, would that be 
enough?
    Mr. Sproat. No.
    Senator Boxer. So it has to be exactly 35 percent?
    Mr. Sproat. No, it has to be the level of engineering that 
is required to allow us to show the NRC that we are able to 
meet their regulations.
    Senator Boxer. OK. So the NRC says they only need to be 35 
percent complete.
    Mr. Sproat. The NRC doesn't set a percentage-wise number. 
We determine what the amount of engineering and analysis that 
needs to be done to meet their regulations, and if we don't 
meet their mark, they will reject it.
    Senator Boxer. Well, I don't understand why DOE would 
submit an incomplete application for one of the most 
controversial projects. How long does the waste last? How long 
does the waste remain radioactive? Do you know?
    Mr. Sproat. Several hundred thousand years.
    Senator Boxer. Oh, OK. And yet you don't think it is 
prudent to finish your work before you go for a license. Is 
that right?
    Mr. Sproat. Not the engineering.
    Senator Boxer. Several hundred thousand years.
    How will the State of Nevada and other interested parties 
be able to evaluate the application if it is incomplete?
    Mr. Sproat. First of all, the application will be complete.
    Senator Boxer. If it only covers 35 percent of the design, 
you call it complete. The average person who doesn't speak 
bureaucratic talk, would not agree with you.
    Mr. Sproat. Well, I am sorry.
    Senator Boxer. I know. I am sorry, too. And I think you 
have to start realizing that people don't understand 
Government-speak. Thirty-five percent of the design is 
complete, and you say it is complete. It doesn't make sense. 
Either it is 100 percent complete or it is not complete, and 
the State of Nevada, you think they might take you to court 
over this?
    Mr. Sproat. That will be their decision.
    Senator Boxer. Do you think it is a possibility? Excuse me?
    Mr. Sproat. They have taken us to court several times.
    Senator Boxer. And they may certainly do it on this one.
    Mr. Sproat. They probably will.
    Senator Boxer. If I was sitting on a jury, if it did go 
before a jury, sometimes it doesn't, and they said, well, they 
are saying it is complete, but it is only 35 percent complete. 
People know what that means. You don't go ahead and build a 
house until you have the design complete. And by the way, 
houses don't hold radioactive waste for hundreds of thousands 
of years.
    So I don't understand your thinking. I think you are making 
matters worse for your case, in my own opinion.
    So Mr. Weber, we turn to you. I understand that DOE expects 
to have about 35 percent of the design complete for both 
subsurface and surface facilities at Yucca when it submits its 
license application to the NRC. Is it common for other NRC 
applicants to submit applications that are only 35 percent 
complete?
    Mr. Weber. Depending on where they are, Madam Senator, in 
the process, yes.
    Senator Boxer. OK. Would you please make available to me 
other facilities that have sent you designs that were 35 
percent complete and you felt that was sufficient?
    Mr. Weber. I could turn to other staff, but if you look at 
the NRC two step licensing process for nuclear power plants, 
most plants in this Country were on that order when they 
submitted their construction permits. That is in advance of 
getting their operating license.
    Senator Boxer. This isn't a plant. We are talking about 
Yucca Mountain. How long does the waste last?
    Mr. Weber. I think the issue, Senator, is ``35 percent of 
what?'' In fact, this issue came up in our last quarterly 
management meeting in September when we met with the Department 
in public.
    We discussed this topic because it came up at a previous 
discussion that the Department had with the Nuclear Waste 
Technical Review Board.
    We agreed that at our next quarterly management meeting, we 
would pursue this question, because depending on how Mr. Sproat 
and his team assemble their application, it may or may not be 
acceptable to the NRC. That is why we have to have a 
substantive discussion about ``will the information the 
Department is planning to include in their application be 
sufficient to address the requirements in our regulations?''
    I think Mr. Sproat, at our last quarterly management 
meeting, laid out an approach that could be acceptable, but now 
we have to get into the specifics about what does it mean 35 
percent or 40 percent complete? If that information is 
sufficient to address each of the requirements that are in our 
regulations, then we would accept the application and we would 
commence the review.
    If it is not----
    Senator Boxer. But you haven't made that decision.
    Mr. Weber. We have not made that decision.
    Senator Boxer. So Mr. Sproat needs to know you haven't made 
the decision. Will you please send me those applications you 
have agreed to that have been 35 percent or less complete 
please?
    Mr. Weber. We would be happy to work with your staff, 
ma'am.
    Senator Boxer. Thank you.
    NRC rules require that license applications be complete and 
accurate in all material aspects. That is my understanding of 
your rules. Would the NRC consider the repository's engineered 
barriers to prevent leakage material aspects for the 
application?
    Mr. Weber. If the Department makes a compelling case that 
they satisfied the requirements in our regulations, and through 
our independent review, and through the Licensing Board review, 
the findings are upheld, then we would accept it.
    Senator Boxer. Would these barriers have to be included in 
the initial application?
    Mr. Weber. The application has to address the engineered 
and the natural barriers that will be relied on to satisfy the 
performance objectives.
    Senator Boxer. And is that done, sir?
    Mr. Sproat. We are including that design information 
regarding both the engineered barrier system and the natural 
barrier system in the license application to be able to meet 
their docketing requirements.
    Senator Boxer. So you have addressed the issue of the 
leakage?
    Mr. Sproat. Yes, we have.
    Senator Boxer. OK.
    Are there any circumstances, Mr. Weber, under which NRC 
would decide not to issue a license for DOE to construct the 
Yucca Mountain repository? If so, what would they be?
    Mr. Weber. To satisfy the NRC that the construction 
authorization should be granted, the Department has to satisfy 
each of the requirements in our regulations. If they fail to 
satisfy those requirements, we will not issue the construction 
authorization.
    Senator Boxer. I understand that most countries looking at 
it--this is for Mr. Meyers--I understand that most countries 
looking at a geological repository for nuclear waste have set 
or proposed standards of 10 millirem per year. Are you aware of 
any other country in this entire world that has set radiation 
protection standards as high as those EPA is proposing, 350 
millirem per year?
    Mr. Meyers. I would like to provide a formal response for 
the record. I think that other countries have also--I am not 
aware that they have been dealing with a period of 10,000 year 
to one million years that we are dealing with in this 
particular situation. They have established standards, a 
variety of different standards, but we can provide a detailed 
response.
    Senator Boxer. So you don't know if any other country in 
the world would allow for that? Our research says it doesn't.
    Mr. Meyers. I am not aware, but I am also not aware that 
other countries necessarily, all other countries necessarily 
have any specific numeric standard covering the period of time.
    Senator Boxer. OK, well why don't we share our information 
from our research, which shows that most countries looking at a 
geological repository have proposed standards of 10 millirem 
and we are 350 millirem.
    Now, you are the Environmental Protection Agency. You have 
to protect the people, right? So can you talk to me about 
exposure to that level of radiation, 350 millirem?
    Mr. Meyers. Certainly. I think as we detailed in our 
proposal of 2005, exposure is based on essentially the 
reasonably maximally exposed individual who is somebody who is 
a rural resident of the valley. It is basically an exposure 
level that is equivalent to essentially the incremental 
exposure somebody would face by living in Denver, Colorado 
today, versus somebody who is living in the site.
    Senator Boxer. Well, I will tell you, sir, I have been 
through this before. Increasing from 15 millirem to 350 
millirem is a whole other ball game. I will provide you with 
the health information that I have received on this matter. So 
I hope you and I can have a conversation because there is no 
higher job than protecting the health and safety of the people 
of this Country, not just now, but in the future.
    So I want to thank the panel very much. I am sorry I had to 
step out, but I am very concerned about it. This looks like a 
little cozy trio and I just don't feel that good about it. So 
fortunately, we will have other people watching your work, as 
well as this Committee.
    Thank you very much.
    And now we will have our third panel. The Honorable 
Catherine Cortez Masto, Attorney General, State of Nevada; Mr. 
James Kerr, President, National Association of Regulatory 
Utility Commissioners, North Carolina Utilities Commission; and 
Mr. Ken Cook, President, Environmental Working Group.
    I want to welcome all of you. I want to thank everyone who 
has participated in this hearing, and this will be our last 
three panelists. Thank you very much for your patience, and we 
are going to open it up with you, Attorney General Masto.
    Thank you so much. I want to note that the Governor was 
invited, but he sent a statement. So Attorney General, please 
go ahead.

STATEMENT OF CATHERINE CORTEZ MASTO, ATTORNEY GENERAL, STATE OF 
                             NEVADA

    Ms. Masto. Thank you, Chairwoman.
    For the record, I am Catherine Cortez Masto, the Attorney 
General of the State of Nevada. I appreciate this opportunity 
to appear before the Committee for the State of Nevada 
regarding the Yucca Mountain Repository Program.
    Nevada has had a long history of opposing the development 
of the proposed high level nuclear waste repository at Yucca 
Mountain. The Yucca Mountain site is unsafe and incapable of 
geologically isolating nuclear waste. Not only is the site 
physically unsuitable for a nuclear waste repository, but the 
United States Department of Energy has repeatedly shown itself 
to be an unfit applicant for a license from the Nuclear 
Regulatory Commission.
    Finally, the prospective NRC licensing proceeding is 
seriously biased and denies Nevada and other potential 
participants basic due process rights. The following summary 
highlights issues relating to the involvement of the U.S. 
Environmental Protection Agency and NRC in the Yucca Mountain 
repository licensing process. Nevada raises these issues to 
seek your guidance and to place public safety at the forefront 
of any decision regarding the disposal of the Nation's lethal 
high level radioactive waste.
    The first issue of fact I would like to discuss, which we 
have talked about a little bit already, is the EPA standards 
and NRC licensing regulations are not yet final. This raises 
the issue of whether NRC can properly docket and begin 
substantive review of DOE's license application.
    DOE plans to file a license application, as we have heard, 
relying on the proposed EPA standard by June 2008. NRC staff 
has said that it can begin its substantive review even without 
the final EPA standard because there are elements of the 
license application that are directly responsive to the EPA 
standard.
    DOE's rationale for proceeding without a standard is that 
if the final EPA standard is different from what was proposed, 
DOE can simply amend its license application to respond to the 
new requirements. Before this can happen, however, NRC will 
have to revise its proposed rule written to conform to the 
proposed EPA standard. This will create an untenable situation 
where EPA and then NRC are revising their standards and rules 
while NRC is simultaneously reviewing DOE's license 
application.
    Interested parties, including Nevada, will be prejudiced by 
this chaotic situation. We must begin our review of DOE's 
entire application at the time it is submitted because we only 
have 30 days after NRC dockets the application to file our 
contentions. It is both wasteful of limited resources and 
patently unfair that potential interveners, whose accepted or 
rejected contentions determine their party status, should be 
forced to review and entire license application that likely 
will 1undergo substantial amendment and change. The obvious 
solution is that NRC should be 1prohibited from accepting DOE's 
license application for review until final EPA and NRC 
regulatory requirements are in place.
    The second issue that I would like to highlight today is 
the fact that DOE's rush to file its license 1application 
causes serious safety and completeness concerns. At a recent 
Nuclear Waste 1Technical Review Board meeting, DOE reported 
that the repository safety-related design for the operating 
service facilities and the underground disposal area will only 
be 35 percent to 40 percent complete at the time the license 
application is filed.
    Similarly, the design of the waste canisters, the so-called 
TADs, which has become the centerpiece of DOE's waste handling 
transport, storage and disposal strategy, is not planned to be 
complete until after the June, 2008 license application filing 
date. Additionally, legally required plans for recovery and 
mitigation of accidents and response to emergencies, necessary 
accounting for nuclear materials, security at the repository, 
and retrieval of waste will also not be included in the license 
application.
    Clearly, concerns for public safety necessitate that these 
critical plans should be complete and reviewable by all parties 
and potential parties during the mandatory license application 
review.
    The lack of complete design and planning information is 
wholly attributable to DOE's rigid insistence on its self-
imposed June 2008 license application date.
    And finally, the third thing I would like to highlight is 
the fact that the Federal Government plans to double-team the 
licensing hearing. Under NRC's current rules, NRC staff will be 
a party advocate along with DOE, the license applicant. Nevada 
and other potential parties will certainly be prejudiced by 
this procedural defect. Once the NRC staff has completed its 
review of DOE's application, has received acceptable responses 
from DOE for additional information, and has written a safety 
evaluation report supporting DOE's receipt of a license, NRC 
staff and attorneys then turn around and become party advocates 
for DOE as a prospective licensee.
    This situation, where two powerful executive department 
agencies join together to overpower legitimate intervening 
parties, is palpably unfair. We believe the public would be 
infinitely better served if NRC staff maintained a more 
appropriate, neutral role during the hearing. The public's 
confidence will certainly be enhanced if NRC staff remains a 
neutral evaluator, rather than a redundant advocate and 
aggressive partner to DOE.
    Thank you, Madam Chair, for the opportunity to speak to the 
Committee today.
    [The prepared statement of Ms. Masto follows:]

        Statement of Catherine Cortez Masto, Attorney General, 
                            State of Nevada

    I am Catherine Cortez Masto, Attorney General of the State 
of Nevada. I appreciate this opportunity to appear before the 
Committee for the State of Nevada regarding the Yucca Mountain 
repository program.
    Nevada has a long history of opposing the development of 
the proposed high level nuclear waste repository at Yucca 
Mountain. The Yucca Mountain site is unsafe and incapable of 
geologically isolating nuclear waste. Not only is the site 
physically unsuitable for a nuclear waste repository but the 
United States Department of Energy has repeatedly shown itself 
to be an unfit applicant for a license from the Nuclear 
Regulatory Commission. Finally, the prospective NRC licensing 
proceeding is seriously biased and denies Nevada and other 
potential participants basic due process rights.
    The following summary highlights issues relating to the 
involvement of the U.S. Environmental Protection Agency and NRC 
in the Yucca Mountain repository licensing process. Nevada 
raises these issues to seek your guidance and to place public 
safety at the forefront of any decision regarding the disposal 
of the nation's lethal high-level radioactive waste.
    The EPA Standards and NRC Licensing Regulations are not yet 
final.
    This unexplained fact raises the issue of whether NRC can 
properly docket and begin substantive review of DOE's license 
application. DOE plans to file a license application relying on 
the proposed EPA Standard by June, 2008. NRC staff has said 
that it can begin its substantive review even without the final 
EPA standard because there are elements of the license 
application that are not directly responsive to the EPA 
standard. DOE's rationale for proceeding without a standard is 
that if the final EPA standard is different from what was 
proposed, DOE can simply amend its license application to 
respond to the new requirements. Before this can happen, 
however, NRC will have to revise its proposed rule written to 
conform to the proposed EPA standard. This will create an 
untenable situation where EPA and then NRC are revising their 
standards and rules while NRC is simultaneously reviewing DOE's 
license application originally written to meet draft standards 
and rules which have been subject to extensive critical public 
comment. Interested parties, including Nevada, will be 
prejudiced by this chaotic situation. We must begin our review 
of DOE's entire application at the time it is submitted in 
order to file NRC-required contentions thirty days after NRC 
has completed its acceptance review and dockets the 
application. It is both wasteful of limited resources and 
patently unfair that potential interveners, whose accepted or 
rejected contentions determine their party status, should be 
forced to review an entire license application that likely will 
undergo substantial amendment and change.
    The obvious solution is that NRC should be prohibited from 
accepting DOE's license application for review until final EPA 
and NRC regulatory requirements are in place. Then, an orderly 
and fair review can commence.
    DOE's rush to file its License Application causes serious 
safety and completeness concerns.
    At a recent Nuclear Waste Technical Review Board meeting, 
DOE reported that the repository safety related design for the 
operating surface facilities and the underground disposal area 
will be only 35 percent to 40 percent complete at the time the 
license application is filed. Similarly, the design of the 
waste canisters--the so-called TADs (Transportation, Aging and 
Disposal canisters)--which have become the centerpiece of DOE's 
waste handling, transport, storage, and disposal strategy, is 
not planned to be complete until after the June 2008 license 
application filing date. Legally required plans for recovery 
and mitigation of accidents and response to emergencies, 
necessary accounting for nuclear materials, security at the 
repository, and retrieval of waste will also not be included in 
the license application. Clearly, concerns for public safety 
necessitate that these critical plans should be complete and 
reviewable by all parties and potential parties during the 
mandatory license application review.
    This lack of complete design and planning information is 
wholly attributable to DOE's rigid insistence on its self-
imposed June 2008 license application date. Without access to 
key information, Nevada and other potential parties cannot 
adequately develop contentions. The obvious danger inherent in 
imposing an inflexible, artificial schedule is that meeting it 
takes on overriding importance and safety is shortchanged.
    The Federal Government plans to ``double team'' the 
licensing hearing.
    Under NRC's current rules, NRC staff will be a party-
advocate along with DOE, the license applicant. Nevada and 
other potential admitted parties will certainly be prejudiced 
by this procedural defect. Once the NRC staff has completed its 
review of DOE's application, DOE has provided acceptable 
responses to any staff requests for additional information, and 
NRC staff has written a Safety Evaluation Report supporting 
DOE's receipt of a license, NRC staff and attorneys then turn 
around and become party advocates for DOE as a prospective 
licensee.
    This anachronistic situation, where two powerful executive 
department agencies join together to overpower legitimate 
intervening parties, is palpably unfair. We believe the public 
would be infinitely better served if NRC staff maintained a 
more appropriate, neutral role during the hearing. The public's 
confidence will certainly be enhanced if NRC staff remains a 
neutral evaluator rather than a redundant advocate and 
aggressive ``partner'' to DOE.
    Thank you for this opportunity.

      Responses by Catherine Cortez Masto to Additional Questions 
                           from Senator Boxer

    Question 1. The State of Nevada had a full opportunity to 
participate in the development of the regulations governing the 
licensing of a repository and to challenge those regulations 
through the administrative and judicial process. If the NRC and 
the courts found your complaints to be without merit, what 
conditions exist that warrant congressional intervention?
    Response. The Senator appears to have received incorrect 
information on this matter. In Environmental Protection Agency 
v. Nuclear Energy Institute (EPA v. NEt). 373 F.3d 1251 (2004), 
the U.S. Court of Appeals for the District of Columbia Circuit 
ruled for Nevada in several critical respects. In particular, 
the core regulation affecting the safety of the Yucca 
repository--EPA's radiation standard for the project--was found 
to be contrary to law. Since NRC must adopt EPA's regulation 
for its Yucca licensing standard, the NRC's rule was also found 
to be contrary to law, at least to the extent it relied on the 
EPA rule. EPA has since proposed a new Yucca rule. Nevada and 
others filed extensive comments on the current proposed rule 
identifying key scientific and legal defects. EPA has delayed 
issuance of the final standard for more than 3 years. 
Unfortunately, notwithstanding the absence of an EPA standard, 
DOE has stated its intention to file a Yucca license 
application by June 2008.
    Moreover, the D.C. Circuit did not dismiss Nevada's 
extensive challenges to the environmental integrity of the 
Yucca project under the National Environmental Policy Act 
(NEPA), but ruled that they were not yet ripe. The Court 
invited Nevada to challenge any final agency decision 
concerning transportation, environmental and socio-economic 
impacts, and the no-action alternative which would allow 
continued storage of spent fuel at reactor sites. Nevada will 
certainly initiate such a challenge at the appropriate time.
    Since DOE has yet to file an application for Yucca 
construction authorization, NRC has not yet considered, let 
alone ruled, on the merits of Nevada's innumerable challenges 
to the project. However, Nevada did challenge the integrity of 
DOE's document collection for the Licensing Support Network. In 
2004, an NRC administrative law board struck DOE's initial 
document certification as unlawful. It took DOE more than 3 
years to re-certify. Nevada has challenged DOE's 
recertification and will argue its motion on December 5, 2007. 
Thus, to the limited extent NRC has ruled on the merits of 
Nevada's challenges, it has come down squarely on the side of 
Nevada.
    In Nevada's view, congressional intervention is needed 
because the Yucca Mountain project is unfeasible due to 
intractable scientific and technical flaws with the site and 
with DOE's work. In addition, myriad procedural irregularities 
and regulatory violations should doom the project. Further work 
on Yucca results in a colossal waste of taxpayer and electric 
utility ratepayer funds. This is especially true given the fact 
that commercial nuclear facilities are now storing spent 
nuclear fuel in safe. robust dry cask storage systems 
determined by NRC to be safe for at least a century. DOE also 
has represented that such dry cask storage facilities are safe 
for at least a millennium. In spite of this, DOE plans to 
submit a license application for Yucca Mountain with designs 
that are only 30 to 40 percent complete, and which will lack 
critical technical information necessary for NRC staff, Nevada, 
other interested parties and the public to fairly evaluate the 
project's safety. Moreover, Nevada has learned from recent 
documents that DOE itself believes its own computer model 
evaluating the safety of Yucca Mountain is obsolete, 
incomplete, and utterly lacking in transparency.

    Question 2. The Nuclear Waste Policy Act requires the 
Nuclear Regulatory Commission to consider an application for 
all or part of a repository. Isn't it clear that Congress 
itself did not believe that every last detail needed to be 
included initially in the application?
    Response. NRC's regulations at 10 C.F.R.  63.10 require 
that DOE's initial Yucca Mountain license application must be 
``complete and accurate in all material respects.''
    Nevada is not asking that ``every last detail'' be 
contained in DOE's initial application to NRC for Yucca 
construction authorization. Rather, Nevada is demanding, as the 
regulations do, that the core technical and scientific 
documents and studies necessary to evaluate the safety and 
environmental consequences of the project be contained in the 
application so that NRC, Nevada, other interested parties, and 
the public can successfully gauge the integrity of the project. 
DOE's application will admittedly omit some 60 to 70 percent of 
the project's design detail. Much of what DOE plans to omit is 
considered by Nevada, as well as the congressional Nuclear 
Waste Technical Review Board and the NRC's Advisory Committee 
on Nuclear Waste, to be essential, core technical information. 
DOE 's recent recertification of its document collection, for 
example, excluded the critically important Total Systems 
Performance Assessment (TSPA) model as well as several key 
Analysis Model Reports (AMRs) that go to the heart of the 
repository's long-term safety performance.
    NRC's Yucca Mountain Review Plan, NUREG 1804 (Rev. 2), 
contains a complete list of what NRC believes must be contained 
in DOE's initial Yucca license application. and prescribes 
NRC's review responsibilities with respect to those products. 
It is Nevada's understanding that DOE plans to omit substantial 
portions of all the materials listed in NUREG 1804 in its 
initial application.

    Question 3. Given your concern about wasting financial 
resources and given the taxpayer[s] [sic] are already liable 
for at least $7 billion, wouldn't it be a better use of 
taxpayer dollars to begin the licensing process and let the NRC 
decide what additional information may be needed?
    Response. Any submission by DOE to NRC that causes the 
agency to have to ``stop and restart'' the regulatory review 
process will result in exponential increases in the time and 
resources required to complete the licensing process. This is 
most likely to be the case with an incomplete or premature 
initial license application. Once DOE has submitted its Yucca 
license application, the Nuclear Waste Policy Act requires the 
NRC licensing process to be completed within 3 years, with a 
possible extension for a fourth year. This is an extremely 
tight window of time for such an enormous, unprecedented 
licensing project.
    NRC's published guideline, NUREG 1804, already specifies 
the components necessary for a materially complete license 
application, as does regulation 10 C.F.R. 63.21. Thus, there 
is little question about ``what additional information may be 
needed'' to satisfy NRC requirements. DOE should already know 
what such information comprises. Rather, in order to meet its 
politically motivated project schedule, DOE apparently plans to 
submit a deliberately incomplete license application in the 
hope that NRC will nevertheless docket it and permit ``seasonal 
supplementations'' later. But this would have the effect of 
drastically extending and complicating NRC's review process, 
increasing costs and extending schedules for all parties 
concerned. Indeed, Nevada has learned from recently discovered 
documents that DOE may actually be planning to submit a 
knowingly deficient and incomplete application now while it 
quietly prepares for a later submission of its ``real'' 
application using a ``second generation'' repository 
performance assessment. This would cause the NRC's licensing 
boards and all parties to spin their wheels needlessly perhaps 
for years, only to face a much more serious application later, 
together with the prospect of having to return to square one 
for license review. It is hard to imagine a more needless waste 
of taxpayer and ratepayer resources. That is why DOE is, and 
should be, required to complete its application before filing 
it with NRC.

    Senator Boxer. Thank you so very much.
    Mr. Kerr.
    Welcome.

     STATEMENT OF JAMES Y. KERR, III, PRESIDENT, NATIONAL 
ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, NORTH CAROLINA 
                      UTILITIES COMMISSION

    Mr. Kerr. Good morning.
    Madam Chairman, my name is Jim Kerr. I am a member of the 
North Carolina Utilities Commission and also serve as President 
of the National Association of Regulatory Utility 
Commissioners. On behalf of NARUC, as well as my colleagues in 
North Carolina, I very much appreciate the opportunity to 
appear before you this morning.
    NARUC is a quasi-governmental non-profit organization 
founded in 1889. Our members include the State Public Service 
Commissions that regulate retail rates and services of 
electricity, gas, water and telecommunications utilities in 
this Country. I have filed more comprehensive testimony, and 
for purposes of summary, let me make a handful of basic points 
concerning NARUC's perspective on this matter.
    First and foremost and perhaps most importantly, NARUC 
accepts and supports the right and responsibility of the State 
of Nevada to challenge the licensing of Yucca Mountain through 
participation in lawful procedures established by the Nuclear 
Waste Policy Act. As an organization of States that advocates 
the collective interests of State commissions in Federal agency 
proceedings, NARUC understands the need for vigorous advocacy 
when issues of critical importance to a State or States are at 
issue. In fact, under the Nuclear Waste Policy Act, funds paid 
into the fund by consumers across the Country are made 
available for just this purpose to the State of Nevada.
    Second, NARUC has been laboring in this vineyard for 
decades. We have worked to be a constructive voice in 
addressing this complex issue. We are neither waste technicians 
nor nuclear engineers, but rather economic regulators charged 
with protecting the interests of consumers of the electricity 
generated on their behalf by nuclear power stations. Through 
payment of their electric bills to their local utility, these 
consumers have contributed with interest $27 billion to this 
program. Illinois has contributed $3.5 billion. My State, North 
Carolina, contributed $2.2 billion; California, $1.4 billion; 
and so forth and so on. Attached to my testimony at page six is 
a comprehensive list of the contributions made by the 
individual States across this Country.
    To that end, NARUC's goal has been to advocate actions by 
Congress and Federal agencies,
    DOE, EPA, and NRC, to foster a safe, efficient and cost-
effective waste disposal program to discharge the Federal 
Government's promise and responsibility to manage the waste 
disposal challenge. On behalf of the American people, and more 
specifically consumers of nuclear power, Congress has made the 
decision to use a geologic repository, and further has 
designated Yucca Mountain as the location of the facility to be 
tested through the NRC licensing process.
    In our view, it is time, indeed past time, for the process 
to move forward. I want to make the following point with 
respect to the nuclear waste fund. This is little talked about, 
but those dollars are not in a fund. Rather, those dollars have 
in fact been diverted for other budgetary purposes. The fund is 
nothing but IOUs that are owed by this Federal Government to 
the States, and more importantly to the ratepayers who have 
paid. Of the roughly $29 billion that has been collected, 
approximately $9 billion has actually been spent on its 
intended purpose. Because of budgetary restrictions, this 
Congress has taken roughly $20 billion of ratepayer money and 
used it for other purposes other than those which it was 
lawfully intended to.
    At the end of the day, ratepayers, consumers of nuclear 
generation, end up paying three times for the storage of waste. 
First, they pay their assessment into the nuclear waste fund. 
Second, in their base rates they are paying for the interim 
storage on the sites that has been discussed so often today. 
And then third, as taxpayers of this Country, they pay for the 
liability of the DOE for the onsite costs related to the breach 
of the contractual obligation to take control of the waste.
    One of my colleagues in testifying before this Congress 
said it much more simply than I have, and that is you have and 
are spending our money and we have your waste.
    In conclusion, as has been referenced today in this 
Committee, and we hope to be part of that discussion as it 
deals with concerns about carbon-emitting generation. It is 
undeniable that nuclear generation is a part of that equation 
of solving that complex problem, and the nuclear waste question 
must be resolved as part of that discussion.
    I thank you again for the opportunity to be with you to 
submit my testimony, and I am happy to answer any questions.
    [The prepared statement of Mr. Kerr follows:]

  Statement of James Y. Kerr, III, President, National Association of 
 Regulatory Utility Commissioners, North Carolina Utilities Commission

    Good morning Madame Chairman, Ranking Member Inhofe, 
Members of this Committee, and distinguished panelists. Thank 
you for holding this important hearing on one of the most 
critical issues facing our Nation's energy policy.
    My name is Jim Kerr. I am a member of the North Carolina 
Utilities Commission (NCUC). I also serve as the President of 
the National Association of Regulatory Utility Commissioners 
(NARUC), and I am testifying today on behalf of that 
organization. In addition, my testimony reflects the views of 
the NCUC. On behalf of NARUC and the NCUC, I very much 
appreciate the opportunity to appear before you this morning.
    I ask that my testimony be made a part of the record and I 
will summarize our views.
    NARUC is a quasi-governmental, non-profit organization 
founded in 1889. Our 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. Our 
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.
    Madame Chairman and Members of this Committee, NARUC's 
interest in this matter is simple. State utility regulators and 
the Nation's ratepayers more than 25 years ago bought into the 
basic agreement underlining the Nuclear Waste Policy Act of 
1982: o The Federal Government is responsible for safe, 
permanent disposal of commercial spent nuclear fuel (and other 
government nuclear waste); and, o Utilities which produced the 
spent fuel in making electricity and--most importantly, their 
ratepayers--would pay a fee to cover disposal costs.
    To date, the ratepayers and utilities have faithfully 
upheld their end of the bargain--paying more than $27 billion 
in fees and interest into the Nuclear Waste Fund. For your 
information, I have attached a listing of payments (page 6) 
into that fund for ratepayers in each State, for inclusion in 
the record of this hearing. These ratepayers have little to 
show for their ``investment'' as, by law, waste disposal was to 
have begun in 1998 and current Department of Energy schedules 
indicate such disposal will not occur before 2017. Unless 
Congress acts to allow full access to annual fee revenue for 
this program, even that date is not realistic.
    As Congress is well aware, the Federal Government entered 
into contracts based on that 1998 acceptance schedule and 
Federal courts have found DOE to be liable for waste-acceptance 
delay costs which DOE estimates could be $7 billion or more. 
This all means that, right now, ratepayers are currently paying 
twice for spent fuel storage: they pay the utilities for their 
disposal fee payments, and they pay for storage of the waste 
that was to have been removed by now. Moreover, we find it 
unfair that while Congress appropriates a small fraction of the 
Nuclear Waste Fund annual fee revenue to the repository 
program, the balance of that revenue is used for other 
unrelated government activities while, in effect, accumulating 
$20 billion in ``IOUs'' in the Fund.
    Madame Chair and Members of this Committee, the ratepayers 
of this country did not choose the site for this repository. 
Congress did that in 1987 and affirmed the suitability of Yucca 
Mountain by joint resolution in 2002. DOE seems at long last to 
be on the verge of submitting a license application to the 
Nuclear Regulatory Commission (NRC), the independent agency 
given the responsibility under the Nuclear Waste Policy Act to 
carefully examine the safety and other technical merits of the 
proposed facility. We understand the NRC will conduct its 
review process with public scrutiny and over a three-to 4-year 
period. We are aware of and fully support the right of the 
State of Nevada to raise contentions in the review process. 
State utility regulators do not have the skills or charter to 
evaluate the repository plans; we wish that others would 
withhold judgment until they see the application.
    President Jimmy Carter said over 25 years ago that 
resolving civilian waste management problems shall not be 
deferred to future generations. Those who oppose building a 
repository at Yucca Mountain (the only site Congress directed 
be evaluated for this purpose), when asked what alternative 
they would propose, all seem to support variations of leaving 
it where it is, which was never the intent when these reactors 
were permitted nor does it heed President Carter's charge. If 
the repository solution is abandoned, what do we tell the 
communities adjoining the 72 reactor sites in 35 States where 
the spent fuel is stored today? What do the utilities seeking 
to invest in new nuclear power plants tell their prospective 
neighbors? What do we tell the ratepayers that have already 
invested more than $27 billion? When will they get a refund?
    There is another issue to consider in the context of this 
hearing. Madame Chair, your committee is moving forward on 
legislation that would place limits on the growth of carbon 
emissions. For States and regions such as the Southeast, where 
I am from, there is a definite need for nuclear generation to 
be part of a diversified generation strategy if we are to be 
serious about limiting the growth of carbon emissions. If 
Congress decides to place limits on carbon-emitting generation, 
then nuclear generation, renewables, energy efficiency, and 
conservation must all be part of the solution. This means that 
the question of nuclear waste must be resolved.
    It is an open question as to what links there may be 
between ``solving the waste problem'' before considering 
investing in new or even replacement nuclear reactors. In the 
``nuclear world,'' where safety and reliability are cardinal 
principles, it seems ironic that the major element of 
unreliability facing the U.S. nuclear industry seems to be 
whether the Federal Government will provide the disposal 
``services'' promised in law and contracts.
    In conclusion, the ratepayers have been patient through the 
years of delay for this program and can probably wait for the 
NRC to carefully review a well-presented license application. 
But, in order for the NRC to review the license, the Department 
of Energy needs to execute their plan to submit the high-
quality application they have pledged to do. Further delay only 
adds to the government liability, which will be paid out of the 
Federal Government Judgment Fund, not the Nuclear Waste Fund. 
This means that all taxpayers will bear this financial burden.
    Ratepayers and neighbors of 104 reactors look for the 
utilities and the NRC to assure them that the spent fuel is 
safely and securely stored where it is today. NARUC intends to 
continue to press Congress to manage the ratepayers' investment 
in the Nuclear Waste Fund as it was intended in the Nuclear 
Waste Policy Act and to put a stop to the diversion of fee 
revenue to other unrelated uses.
    Thank you for this opportunity to present our views. I look 
forward to answering any questions you have.


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



       Response by James Y. Kerr, III, to an Additional Question 
                          from Senator Cardin

    Question. Would the fees collected from ratepayers to cover 
the disposal costs at Yucca Mountain be sufficient for the 
design and use of long-term storage of spent fuel at reactor 
sites as proposed by Senators Reid and Ensign?
    Response. 1We are not aware of any cost estimates that 
would allow us to have an informed opinion on this question. 
However, NARUC would strongly oppose such a ``solution'' 
because it is in fact no solution at all. Such an approach 
fails to fulfill the Federal Government's obligation to remove 
the waste and its policy to utilize centralized storage. In 
short, this type of proposal does nothing more than merely 
change slightly the oft-used phrase of, ``You, Federal 
Government, have our money and we, the States, have your 
waste,'' to, ``You, Federal Government, STILL have our money 
and we, the States, STILL have your waste.''
                                ------                                


       Responses by James Y. Kerr, III, to Additional Questions 
                           from Senator Boxer

    Question 1. If Yucca Mountain was not an option for storing 
nuclear waste, what alternative would you support? What should 
the Nuclear Waste Fund be used for if it could not be spent to 
build a repository at Yucca?
    Response. In 1987, Congress made clear its intention that 
Yucca Mountain should be the only option considered for study, 
and, in 2002, Congress approved the site. Since that time, the 
National Association of Regulatory Utility Commissioners 
(NARUC) has held a consistent position that, based on an 
appropriate licensing process, it supports geological disposal 
at Yucca Mountain as the best way to isolate radioactive waste. 
Accordingly, it is NARUC's position that the licensing process 
should be allowed the opportunity to be initiated and 
completed. Based upon the findings of an open, public licensing 
process and review--and any appellate review of same--a 
decision should then be made to either move forward with Yucca 
Mountain or begin the process to find another site. The Nuclear 
Waste Policy Act (NWPA) remains the law and, should Yucca 
Mountain no longer be an option, Congress would then be 
responsible for choosing the new site.
    Regarding the funding issue, the NWPA in Sec. 302(d) states 
that the Fund is to be used for the purposes of developing a 
geologic repository and emplacing spent fuel in it. 
Additionally, consideration should also be given for the use of 
the Fund to finance the cost to develop and operate central 
interim storage facilities, away from reactor storage sites, 
only until Yucca Mountain or alternative geologic repository/
repositories are available. However, use of the Fund in this 
interim manner would require amending the NWPA.

    Question 2. How does your association feel about DOE's 
proposal to place all spent nuclear fuel in Transportation, 
Aging and Disposal (TAD) canisters, at the expense of 
utilities, before transporting it to Yucca? Do you have any 
idea how much this could cost nuclear utilities? Is it cost-
effective for utilities that already use dry cask storage to 
transfer that waste into TAD canisters?
    Response. The concept of using a single canister for 
storage, transportation and disposal is appealing. We are 
pleased to see the reconsideration of this concept and the 
cooperative planning efforts being pursued by DOE and the 
nuclear industry on development of the TADs.
    Under the ``standard contracts'' between each owner of 
spent nuclear fuel and DOE, the utilities are responsible for 
loading the spent fuel into casks provided by DOE. As we 
understand it, DOE intends to procure and deliver TAD canisters 
to the utilities when the waste acceptance schedule indicates 
spent fuel is ready to be accepted for geologic storage. There 
will likely be, however, a transitional period in which many of 
the utilities will need to remove additional amounts of spent 
fuel from cooling pool storage to be placed in dry-cask storage 
at the reactor site before DOE is ready to accept it. We 
understand that DOE seeks to have the utilities procure and use 
TAD canisters for this interim/transitional storage and to 
develop some equitable way of sharing these costs within the 
standard contract and in compliance with the NWPA. It must also 
be noted that, given the litigation over waste acceptance 
delay-related storage costs, the development and use of dry-
cask storage--using TAD canisters or not--ultimately may be the 
government's liability from the Judgment Fund.
    We have no informed opinion concerning the cost of loading 
spent fuel by the utilities into the TAD canisters, although we 
are comfortable in opining that it is likely to be nominal 
compared with the cost of procuring the TADs themselves. Cask 
procurement and transportation have always been repository 
program cost elements and thus fundable from the Nuclear Waste 
Fund, except in the circumstance described in the previous 
paragraph.
    We would note that DOE's plans for the Yucca Mountain 
surface facilities call for up to 90 percent of spent fuel to 
arrive in TADs, but there will be facilities there for the 
acceptance of spent fuel in non-TAD canisters and to transfer 
the contents into TADs at the repository. Many, if not all, of 
the nine sites where reactors have been decommissioned no 
longer have the equipment and infrastructure to transfer from 
existing dry-casks to TADs.

    Question 3. 1DOE's liability for not accepting nuclear 
waste by 1998 is growing, and could cost up to $500 million per 
year. This will continue to grow until DOE takes ownership of 
spent nuclear fuel and finds a solution for it. Even if Yucca 
were approved by NRC, DOE admits that they could not have it 
constructed before 2022 under very optimistic conditions. 
Wouldn't a short term alternative that stops the mounting 
liability be cheaper for rate payers?
    Response. Yes. One such short-term alternative NARUC has 
supported is the transfer of spent fuel from present reactor 
storage sites to one or more central interim storage facilities 
pending availability of a geologic repository. Legislation to 
do this at Yucca Mountain has been considered and rejected by 
Congress in the past. Other alternatives have been discussed to 
consider temporary storage at existing DOE sites that already 
store other radioactive waste. Another initiative directed DOE 
to consider whether communities seeking to host spent fuel 
reprocessing facilities under the Global Nuclear Energy 
Partnership (GNEP) program might take some spent fuel temporary 
storage as a condition to further GNEP candidacy.
    Additionally, a group of utilities proposed to take spent 
fuel storage matters into their own hands until DOE accepted 
the fuel for permanent disposal. These utilities formed Private 
Fuel Storage PLC (PFS) and developed a plan to store up to 
40,000 metric tons of commercial spent fuel from their member 
firms and other utilities on land to be leased from the Skull 
Valley Band of the Goshute tribe in Utah. PFS applied for a 
storage license and the NRC took 7 years to review the 
application. In 2006 the NRC granted approval over the 
objections of the State of Utah.
                                ------                                


       Responses by James Y. Kerr, III, to Additional Questions 
                          from Senator Inhofe

    Question 1. Several comments by committee members or 
witnesses were made recommending the Department of Energy take 
responsibility for spent fuel storage, keep it at reactor sites 
for up to 100 years, and abandon the development of a 
repository at Yucca Mountain. If, after spending 25 years and 
$6 billion dollars, DOE decided to abandon its effort at Yucca 
Mountain without even seeking NRC authorization, how do you 
think Governors and public utility commissioners would react?
    Response. As we stated in response to the previous 
question, our belief is that such an approach is contrary to 
the NWPA and the obligations and responsibilities undertaken by 
the Federal Government in enacting this law. Given that the 
ratepayers in the States have fulfilled their responsibilities 
under the NWPA by providing the funding to solve this national 
problem, I would expect that many Governors and utility 
commissioners would be disappointed if the process established 
by Congress were to be circumvented. While I am certain that 
all States support the right of Nevada to protect its interests 
in an open and fair process, I am equally certain that they 
would object to aborting the repository project before the 
independent agency with the responsibility and the technical 
expertise to evaluate the license application has been given 
the opportunity to consider it on its merits..

    Question 2. Although the purpose of the hearing was to 
discuss the Yucca Mountain licensing process, since other 
witnesses have expressed their opinions on broader aspects of 
the proposed repository, would you care to tell the Committee 
why the repository is needed?
    Response. In the late 1970's this country determined that 
it would no longer pursue reprocessing of commercial spent 
fuel. After this decision was made, a Federal review panel 
determined that geologic disposal for all commercial spent 
nuclear fuel and other forms of high-level radioactive waste 
was the best way to move forward. This became official US 
policy and law upon the adoption of the NWPA in 1982, and it 
remains the law and policy of this country today.
    With the adoption of the NWPA, Congress determined this to 
be a national problem, and it remains one today. Even if the 
commercial nuclear power industry did not exist, this country 
would still need a repository to store spent nuclear fuel from 
weapons and defense programs. Moreover, as we attempt to solve 
the many challenges facing our energy future, the failure of 
the Federal Government to fulfill its responsibilities creates 
unnecessary uncertainty about the role of commercial nuclear 
generation going forward.
    But let me be clear: NARUC would not support the disposal 
of nuclear waste at Yucca Mountain if the Federal agencies 
responsible for determining the safety and viability of the 
site conclude that it is unsafe for present or future 
generations. We look to the experts and policy officials at the 
Nuclear Regulatory Commission to rigorously review the 
repository license application. We accept the NRC assurance 
that present reactor-site storage is both safe and secure, but 
we would expect there would be greater security if more of the 
spent fuel could be placed more securely in the underground 
repository in a better-protected location.

    Question 3. 1Utilities producing nuclear power make 
payments to the Nuclear Waste Fund of around $750 million a 
year and the Fund earns interest on the balance of 
approximately $1 billion each year, yet in the most recent full 
year Congress appropriated just $99.2 million from the Fund 
(and $346.5 million from the Defense budget) to the repository 
program. What do you recommend to address this problem?
    Response. Congress should, as a first step, enact the 
provisions (Sec. 5) of the Nuclear Fuel Management and Disposal 
Act as proposed by the Administration this past March. Under 
that provision, fees collected and deposited in the Nuclear 
Waste Fund would be credited to the Fund as discretionary 
offsetting collections each year in amounts not to exceed the 
amounts appropriated from the Fund the same year. This, I am 
told, allows the annual appropriations be limited by fee 
revenue rather than be subject to other discretionary spending 
caps.
    We agree with the position stated by House Energy and 
Commerce Committee Chairman Dingell that the proposal does not 
go far enough in that it does not address the question of how 
or whether the repository gains access to the more than $20 
billion supposedly in the Nuclear Waste Fund ``balance.'' 
Although the Department of Energy attempts to reassure us that 
the money is there--and even earning interest added to the 
balance--we remain uneasy about whether Congress will honor the 
IOU's that it has left for future Congresses to honor. In 2001, 
former Secretary of Energy Spencer Abraham submitted an 
excellent analysis and report on Alternative Means of Financing 
and Managing the Civilian Radioactive Waste Management Program. 
To my knowledge, Secretary Abraham's emphasis that the Nuclear 
Waste Fund ``has lost its original funding intent and should be 
addressed immediately'' was met with silence.
    Senator Boxer. Thank you, sir.
    Mr. Cook.

 STATEMENT OF KEN COOK, PRESIDENT, ENVIRONMENTAL WORKING GROUP

    Mr. Cook. Madam Chair, thank you very much for the 
invitation to testify today. I will summarize my written 
testimony for the record, if I may.
    I want to make three central points. First is that the 
American public has a fundamental right to know the full 
implications of thousands of potential shipments of lethal 
radioactive waste across this Country before central decisions 
are made that will determine that those shipments must take 
place: a fundamental right to know.
    Second, we have to ask if it makes any sense to generate 
enormous additional quantities of waste before we have figured 
out these transportation and storage issues.
    And finally, we are very concerned about what appears to be 
a rush to judgment to approve the license for Yucca Mountain, 
again before these important transportation questions have been 
raised.
    Madam Chair, if I may direct you to our testimony, on the 
first couple of pages we have several maps. I apologize for the 
quality of one of these that depicts your home State of 
California. This is not the Environmental Working Group's map. 
This is a map from the appendix J, the official Government 
transportation route map would Yucca Mountain become 
operational.
    What you notice about this map is there is only one city in 
your State on it: Sacramento. You will look in vain for San 
Francisco or Oakland or San Jose or Los Angeles or Fresno or 
Bakersfield or any number of other major cities in your State 
because in this map, they are not shown. I don't know if that 
was 36 percent that was the extra percent that they left off or 
not, but it would have been nice to have better maps.
    We have tried to produce some of those using up to date 
technology, Google maps, that almost anyone has access to. But 
the question here is, would the people of California, 7.5 
million of whom live within one mile of these proposed routes, 
maybe, knowing that they live there, knowing that there were 
dozens of schools and hospitals in their communities near these 
routes, maybe they would approve of the process of finalizing 
the Yucca Mountain and starting the shipments.
    Maybe they would approve even if they knew that by 
generating additional waste through re-licensing or perhaps new 
reactors in your State or other States, that there would be a 
constant flow of waste over these highways for decades beyond 
what they have been given to understand.
    Or maybe if they understood these implications, they 
wouldn't approve.
    And maybe that is the case in Oklahoma. Maybe that is the 
case in New York. Maybe that is the case all over this Country. 
But the fact of the matter is, they by and large don't know 
because the Department of Energy has not told them, and that is 
our central point.
    We have added some maps for some other cities here. I 
remember very well briefing Senator Carper on this. Yours was 
the only conference room that had a plasma display that allowed 
us to show these maps some years ago. We didn't get your vote, 
but we had your attention, Senator, and I appreciated that 
tremendously.
    Look at some of these cities. This is just a few of them, 
where these waste routes will go. And people do not understand 
that. When I heard a representative of the Government today 
make the case that they have made time and again, isn't it 
better to have all of this waste in one place than in 123 
places across the Country. I just want to underscore two 
points. One, if we continue operating these reactors by 
extending their licenses for 20 years, of course we will 
continue to have waste at those sites, plus we would have it on 
the roads.
    The second point is, what is safer? I have not been to 
Iraq, Senator Boxer. I know you have and I presume you have, 
too, Senator Carper. Are you safer in the Green Zone which must 
be carefully guarded? Or are you safer on the road to Baghdad, 
Iraq airport? Are you really much safer traveling and moving? 
Or are you safer in one fortified position? I am not a military 
expert, but if you ask me, having both the stationary positions 
that are dangerous for decades, and moving waste along the 
roads that will be dangerous for decades, expands the risk. It 
doesn't reduce it. Just in conclusion, Senator, this is an 
industry that wouldn't split an atom without a subsidy.
    They ask for subsidies for research, to deal with cleanup, 
to deal with waste disposal, and on and on. But probably the 
biggest subsidy our Government is providing right now to the 
nuclear industry is the lack of information, the subsidy that 
they are providing in effect by not telling the American public 
the full implications of these decisions, leaving them with the 
risk, the expense and the unthinkable.
    Thank you.
    [The prepared statement of Mr. Cook follows:]
   Statement of Kenneth Cook, President, Environmental Working Group
    Chairman Boxer, Ranking Member Inhofe, distinguished members of the 
Committee: Thank you for the opportunity to testify today on some of 
the crucial issues surrounding the licensing process for the proposed 
facility for long-term storage of lethal, long-lived nuclear waste at 
Yucca Mountain in Nevada. My name is Kenneth Cook and I am president of 
Environmental Working Group (EWG), a non-profit environmental research 
and advocacy organization that uses the power of information to protect 
public health and the environment. EWG has offices in Washington, DC 
and Oakland, California.
    Since 2002, EWG has examined and assisted the public in 
understanding the transportation implications of nuclear waste routes 
that could be utilized to transport deadly radioactive material from 
around the United States, and through virtually every major city in the 
Nation, to Yucca Mountain, should the proposed repository there become 
operational.
    I want to emphasize three main points in my testimony today:

        1. The American public's fundamental right to understand the 
        full implications of thousands of potential shipments of 
        extremely dangerous nuclear waste across this country should be 
        central to the government's process for licensing Yucca 
        Mountain, for operating any other repository for this material, 
        and for all decisions to relicense existing reactors or build 
        new ones. The Federal Government has not respected that right 
        to know.
        2. It makes no sense to generate enormous, additional amounts 
        of deadly nuclear waste when we haven't figured out what to do 
        with the tens of thousands of tons already on hand. Our 
        government has ignored that common sense precaution.
        3. The government is rushing to approve the license application 
        for Yucca Mountain before rudimentary, life and death questions 
        have been resolved about transportation, storage, and a truly 
        protective radiation safety standard.

    Let me start with a vivid illustration of my first point.


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    I apologize for the exceedingly poor quality of the first of those 
two maps, in particular to you, Chairman Boxer, since it depicts your 
home State of California. This is the official transportation map, 
buried in Appendix J of the Department of Energy's (DOE) Environmental 
Impact Statement (EIS) for the proposed Yucca Mountain nuclear waste 
repository. More cartoon than cartography, this illustration depicts 
only one city in our most populous state: the capital, Sacramento. It 
also shows the location of facilities from which lethal radioactive 
waste would be shipped to Yucca Mountain if it is ever made 
operational, along with a few highway designations and some unnamed 
rail lines.
    You won't find San Francisco, Oakland, San Jose, Los Angeles, San 
Diego, Fresno, Bakersfield or any other major California cities on this 
map of nuclear waste routes to Yucca Mountain. But DOE's prospective 
routes for shipping deadly nuclear reactor waste go through or near 
every one of those cities, or the suburbs around them, and countless 
more communities in California.
    If the people you represent did somehow find their way to Appendix 
J of the EIS for Yucca Mountain, Chairman Boxer, they wouldn't find any 
telling details about how the potential highway or rail routes might 
wend their way through the towns and cities and communities of your 
state.
    The people of California probably wouldn't realize that 7.5 million 
them live within a mile of those routes, or that there are over 1,500 
schools or 130 hospitals also within a mile of those routes in your 
state.
    Now, maybe, Chairman Boxer, your constituents, knowing all that, 
would still decide that it makes sense to put lethal radioactive waste 
on California's highways and rail lines, right near their homes and 
through their communities, en route to Yucca Mountain. Maybe 
Californians would come to that decision knowing that plenty of waste 
would still remain to be dealt with at reactors in the State once Yucca 
Mountain is filled to its current statutory limit. Maybe residents of 
California would still conclude that reactors in the state, or in 
states to the north that might route waste through your state, should 
operate for an additional 20 years, generating more nuclear waste and 
more shipments for decades. Maybe the people of California would 
approve of new reactors being built, creating yet more waste at reactor 
sites, and on highways and railways, for generations to come.
    Or maybe they wouldn't approve at all if they really knew what 
approval meant. Californians have a right to know the implications of 
shipping waste to Yucca Mountain, or of expanding nuclear power and 
waste production, before decisions are made for them.
    The second map was made by Environmental Working Group, using 
Google Maps after we painstakingly overlaid the rail and highway routes 
from that very same set of maps in the Yucca Mountain EIS. We are in 
the process of making maps like this available online for all of the 
proposed shipment routes to Yucca Mountain. Here are some other 
examples, with additional EWG maps presented on the charts before you.


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



    There are no operating nuclear power reactors in Oklahoma, 
something the State has in common with Nevada. But EWG estimates that 
254,000 people live within 1 mile of the Department of Energy's 
proposed routes for the shipment of high level nuclear waste across 
Oklahoma from out of state; some 879,000 people live within 5 miles. 
Our geographic information system analysis also finds an estimated 99 
schools within 1 mile of the Department of Energy's proposed high-level 
nuclear waste transportation routes and 289 schools within 5 miles. We 
also estimate that 14 hospitals are within 1 mile and 29 hospitals are 
within 5 miles. Again, localized, community-specific information of 
this sort might or might not affect the opinions of Oklahomans 
regarding the shipment through their cities and their communities of 
nuclear waste from other states. The only way we'll know if this 
information is important is if we entrust it to the people of Oklahoma 
before decisions that affect them are made.
    My point is that the people of Oklahoma and every other State have 
a right to know and fully understand the implications for them of the 
Yucca Mountain nuclear waste repository before the license for the 
facility is finalized. And they have the same right to know what 
expansion of nuclear waste generation will mean for transportation 
through their State if reactors around the country are relicensed for 
20 additional years of operation, or new reactors are constructed. They 
may or may not know that decisions made hundreds of miles away will 
have profound implications for the shipment of high-level, deadly 
nuclear waste through their neighborhoods for decades to come.
    This right to know the implications of shipping nuclear waste to 
Yucca Mountain is not being respected by our government in its rush to 
approve the operating license for the Yucca Mountain facility.
            concerns about epa radiation standards for yucca
    In August 2005, the U.S. Environmental Protection Agency published 
its proposed, revised radiation protection standards for the proposed 
Yucca Mountain nuclear waste dump. These public health standards set 
the maximum allowable levels of radiation to which humans can be 
exposed and the maximum level of radiation that can be in groundwater 
from leakage from the proposed dump. Under the Energy Policy Act of 
1992, these standards are required to conform to National Academies of 
Science's mandate that the standard protect human health during periods 
when leakage will cause peak levels of radiation.1 Unfortunately, EPA's 
standards neither protect public health nor meet the law's 
requirements.
    EPA proposes a 15 millirems radiation dose limit for humans during 
the first 10,000 years of the proposed dump's operation (when no 
leakage from waste containers is expected), but would weaken the 
standard to 350 millirems after 10,000 years (when leakage is all but 
certain). In other words, at the time of the greatest threats to human 
health, EPA proposed weakening the standard by a factor of 23 times 
more lenient.
    1 Energy Policy Act of 1992, Pub. L. 102-486; National Academy of 
Sciences, National Research Council, Technical Bases for Yucca Mountain 
Standards, 1995.
    Notably, nowhere in its proposal does EPA discuss the increased 
risk to human health and safety from the higher levels of exposure at 
the 10,000-year mark, despite EPA's and NAS's acknowledgement of a 
linear-dose response relationship between radiation and cancer. The 
risk to public health increases at higher levels of radiation.
    EPA also seems to be intentionally disregarding its legal 
obligations. EPA's original human dose standard was 15 millirems per 
year for the first 10,000 years. EPA proposed that there be no public 
health radiation standard in place after 10,000 years, the period in 
which leakage is expected from the repository. But since EPA had 
arbitrarily determined that this standard did not need to be in place 
when peak leakage will occur, the DC Court of Appeals invalidated it as 
inconsistent with the Energy Policy Act.
    In addition, EPA proposes the same groundwater protection standard 
that the District Court voided in 2004. EPA proposes a 4 millirems 
standard for the first 10,000 years, and no groundwater protection 
standard at the time when peak exposure is expected to occur, after 
10,000 years. Radiation from the proposed repository will travel 
through groundwater, and the groundwater under Yucca Mountain provides 
drinking and irrigation water to tens of millions of people throughout 
Amargosa Valley and Southern California.
    Moreover, EPA will not consider public comment on the groundwater 
standard in the proposed regulation, despite the fact that the 
groundwater standard is integral to protecting public health and that 
the radiation standard is integral to determining the safety and 
integrity of the proposed dump.
                        concluding observations
    I think we are all aware that the U.S. nuclear industry wouldn't 
split an atom without a subsidy. They never have, and they never will.
    Nuclear energy companies never hesitate to lean on American 
taxpayers for money to conduct nuclear research, for indemnification in 
the event of horrific nuclear accidents, for money to clean up 
industry's lethal waste and cost overruns, or for the collateral of the 
public's purse--something the companies are seeking today to coax Wall 
Street out of its sober reluctance to invest in new nuclear reactors.
    But the ultimate subsidy for the nuclear industry may well be our 
government's scandalous failure to fully inform our own people about 
the potential consequences of the Yucca Mountain repository until it is 
too late for the people to do anything about it but accept the risk, 
the expense, or the unthinkable.
    I thank you, Chairman Boxer and Ranking Member Inhofe, for this 
opportunity to testify, and I look forward to answering any questions 
or providing additional information at the pleasure of the Committee.
    I wish to thank colleagues at the Environmental Working Group for 
the research and analysis underlying my testimony today: Richard Wiles, 
Sandra Schubert, Sean Gray, and Chris Campbell; and former colleagues 
John Coequyt, Jon Balivieso, and Tim Greenleaf. We are also grateful 
for technical assistance provided over the years by experts at the 
Nuclear Information And Resource Service and in particular by Kevin 
Kamps, now on the staff of Beyond Nuclear. EWG is responsible for the 
contents of this testimony.


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    Senator Boxer. Thank you very much.
    I want to pick up where Mr. Cook left off, because what 
seems to me to be bizarre is the fact that,
    as Senator Carper said, these decisions were made 25 years 
ago. We were both in the Congress at that time.
    Since then, we have had 9/11, and everyone agrees this was 
a moment where the whole world turned and it has changed our 
lives forever. Indeed, it has been used as a reason for war, 
the argument being made is we don't want to have the terrorists 
in any way get access to any nuclear materials. We hear it 
every day. Somehow we don't hear it in reference to Yucca 
Mountain.
    Mr. Cook, do you know how many trips will be made in the 
course of the life of Yucca Mountain? How many trips there will 
be by truck or rail?
    Mr. Cook. I wish we did know, Madam Chair. It is a 
fundamental question because they haven't decided whether they 
are going to mainly send it along highways or their preferred 
option, mainly send it along railroads. But either way, it will 
be thousands of trips, and thousands more as we extend licenses 
as we are doing for 20 years or build more reactors, thousands.
    Senator Boxer. My understanding is there will be 9,500 rail 
casks and 2,700 truck casks, thousands of shipments. I am 
afraid most of them or a lot of them are through my State. You 
pointed that out. My State has a real problem with this, and 
that is why I have been outspoken for many years, not only 
dealing with the potential for an accident, one; two, a terror 
incident; and leakage into water that really is going to impact 
our water supply and destroy our drinking water.
    So you know, Mr. Kerr talks about money that has been put 
in. You know, money, money, money. How much is your grandkid's 
life worth? You would say you can't put a number on that. So I 
think we can't talk about the possibility of terrorism and 
nuclear materials as it refers to things that are happening 
abroad, and have our mind closed to what we are doing right 
here.
    Look, I don't want to frighten anybody, but I have seen the 
list of where the al Qaeda cells were before 9/11. It is not 
secret information. It is published. It was published by the 
State Department. There were more cells in America than almost 
any other place, OK, before 9/11.
    That is a fact. And there were none in Iraq, just by the 
way. That is the Bush State Department's own document. I have 
it. You can all see it.
    So you would think as we look through people's luggage, 
their purses, search them--I mean, I just had this whole body 
search the last time I went through--looking for is my perfume 
really my perfume, that the obvious somehow is in another 
compartment. It is over here at the DOE and the NRC. It is 
bizarre.
    So I wanted to thank you, Mr. Cook, because for me, it is 
what I care about in this Committee, safety. This is the 
Environment Committee, Environment and Public Works. We want to 
do things the right way and we could get into an argument over 
pro-nuclear or anti-nuclear. I don't even think that is worth 
the time. The question is what is a safe project and is Yucca 
Mountain safe.
    I want to ask Hon. Catherine Masto a question. I know you 
are following every line of this debate and every piece of 
paper that moves forward as the Bush administration, it seems 
to me, is rushing to get this thing done. You note that several 
legally required parts of the application, including accident 
mitigation and emergency response, security at the repository, 
and retrieval of waste, will not be included in the initial 
license application. That is why I took so much time on that 
point of the application. It is to me outrageous that the 
people who are living near this repository wouldn't be able to 
see accident mitigation, emergency response, security at the 
repository, retrieval of the waste.
    Now, how will the State of Nevada and other interested 
parties draft challenges or contentions to DOE's license 
application if this information is not made available until 
after the application is filed? What do you do? Do you have to 
go to court more? Talk about money. How much more money are we 
going to have to spend on lawyers and such?
    Ms. Masto. Senator, thank you. That is a great question, 
because a lot of people don't realize when we talk about court, 
again the State of Nevada, just the process itself is 
inherently unfair because we can't go to District Court and get 
an evidentiary hearing to argue. We have to go to Appellate 
Court. So all of our legal challenges have been at the 
Appellate Court level, which limits our legal remedies.
    With respect to the licensing application, where we go, we 
have heard, well, it is going to be fair; it is going to be 
fair;; it is an evidentiary hearing. It is before the NRC. 
Again, our concern is the NRC says they are going to be 
objective and fair, but their staff are the ones that are 
working closely with the DOE in moving this forward and working 
on the licensing application.
    Senator Boxer. You know, I picked that up when I talked to 
the DOE. He kept saying, oh, we are going to be complete 
because the NRC is going to say we are complete. What is that? 
That was very odd. As a matter of fact, I have not seen that. I 
have always thought the NRC is going to be outside of this and 
be tough and say we need more information.
    The DOE recently certified its submission of over 3.5 
million documents to the NRC's licensing support network, or 
the LSN. That sounds like a lot of documents for interested 
parties to review.
    Ms. Masto. That is a lot of documents.
    Senator Boxer. More than three million documents.
    Ms. Masto. And the question is whether all of the documents 
are there, and we contend they are not, and those are important 
documents that we need.
    Senator Boxer. Tell me what documents do you think are not 
there?
    Ms. Masto. I have listed in my report here, but one of the 
key documents and one of the key concerns that we talk about is 
the TSPA. That was in my written document.
    Senator Boxer. TSPA?
    Ms. Masto. Yes.
    Senator Boxer. What is that?
    Ms. Masto. That is computer modeling and the information 
with respect to the basis for the computer modeling. The 
computer modeling is based on having the DOE determine whether 
there are peak doses and the radiation and the EPA radiation 
standard, and they have to prove that it complies.
    Well, we won't have access to any of the information that 
they based that on, the TSPA, or the TPSA. And so that is a 
concern of ours because we won't have information with respect 
to how they are making that determination on the peak dosage of 
the TSPA code. It is a modeling, a computer modeling. We won't 
have access to that. The NRC does not have access to that. The 
DOE is the only individual or the only agency that has access 
to that, can put the computer modeling and do the numerical----
    Senator Boxer. Why do you think they wouldn't give that to 
you?
    Ms. Masto. They are afraid that we are going to challenge 
it. That is the only thing I can think of.
    All along, this is supposed to have been an open process. 
My understanding, based on the previous testimony, based on the 
guidelines from the DOE and everything that has been written, 
it is an open process. We are supposed to have access to these 
documents, millions of documents because there are so many, so 
that we can complete this discovery period in a timely manner.
    Senator Boxer. Why is this computer modeling--what does it 
show you? Why is it so crucial?
    Ms. Masto. The computer modeling is basically, and let me 
find it in my testimony here real quick. The computer modeling 
basically is the modeling that determines that peak dosage.
    When we talk about the radiation standard----
    Senator Boxer. When you say peak dosage, talk to me in 
English. What do you mean?
    Ms. Masto. OK. What happens is the radiation standard we 
are looking at, and we have heard 15 millirem for the first 
10,000, 350 millirem after. But they had to comply with the 
National Academy of Sciences findings and recommendations. The 
National Academy of Sciences findings and recommendations was 
that after 10,000 years is where you are going to have the peak 
dosage of the radiation.
    And so what we are contending is that if the peak dosage is 
after 10,000, why is the standard so high at 350 millirem? You 
would think it would be the 10 millirem that you are talking 
about, or 15 millirem, but instead it is a much higher standard 
which does not make sense. The TSPA modeling is based on that. 
The TSPA modeling, let me find this real quick.
    So compliance with the EPA radiation protection standard is 
determined by calculation of the dose from repository releases 
to a member of the public at the boundary of the accessible 
environment determined by EPA to be a 11 miles. The EPA 
standard requires that the dose calculation be carried out 
using a probabalistic performance analysis. DOE has constructed 
this TSPA, which stands for total system performance 
assessment, to use as the tool for determining the dose 
calculation. So that is what the TSPA is, but nobody has access 
to the basis for it or the information going in, the formulas 
that are being conducted. We can't go in and do any 
information, take a look at what they are basing this on, and 
that is our concern.
    And even if we do have access to this, it takes hours upon 
hours to even conduct any type of formula to go through this 
computer modeling. I am not the expert. I am just talking from 
what my experts tell me. I would be happy to provide more 
information to you, Senator, with respect to this issue.
    Senator Boxer. Well, is your point that you want to know 
what the residents of Nevada today and in the future are going 
to be exposed to? What you are basically telling me is, you 
don't have the information you need to be able to make that 
judgment.
    Ms. Masto. That is absolutely correct.
    Senator Boxer. Is that right?
    Ms. Masto. Absolutely correct. My main concern is for the 
safety and the welfare of the individuals in this State. 
Radiation and exposure to radiation is the most important thing 
we need to understand, and we won't be able to have that 
information. And if we do get it, it will be after the fact or 
within a limited period of time for us to be able to take 
advantage of our legal remedies.
    Senator Boxer. And you have asked for it? And what did they 
say when you asked for the information?
    Ms. Masto. One minute. At this point in time, they are 
claiming it is privileged attorney-client product information, 
so we cannot have this until they are ready, if at all, to 
provide it to us.
    Senator Boxer. What attorney-client, between what attorney 
and what client?
    Ms. Masto. I would assume--I don't have the answer to that 
other than the DOE is telling it to us, so I assume it is 
whoever attorneys they are talking with, the DOE attorneys.
    Senator Boxer. So let me get this straight. The United 
States of America wants to put this enormous dump in your 
backyard. They are keeping information from you and when you 
ask for the information, they say we can't because you might 
sue us. Is that basically what we are seeing there?
    Ms. Masto. I think that is the concern there, absolutely.
    Senator Boxer. Well, I just want to send the strongest 
possible message to DOE, to NRC, to anyone who has anything to 
do with this. We are turning against our own people. That is 
unacceptable. This is an outrage, to turn against our own 
people and keep information from our own people. It happens 
over and over and over again, whether it is the CDC that comes 
forward and has information about the public health impacts of 
global warming, and pages and pages get redacted, and we can't 
find the information. When we ask for it, we are told the same 
thing: it is privileged. Oh, gee, it is privileged.
    Privileged? Aren't the American people--don't we say that 
they are privileged to live in America? Then they should be 
privileged enough to have this information. I mean, this is a 
misuse of, in my opinion, the law. I find that it is one thing 
to have a legitimate argument pro and con Yucca Mountain. It is 
another thing to keep information away from the very people who 
are going to be impacted by it.
    I will do everything in my power as Chairman of this 
Committee to get you the information that you seek.
    Thank you very much.
    Senator Carper, the time is yours.
    Senator Carper. Thank you, Madam Chair.
    I want to go back and revisit, we don't have on this panel 
anyone from the NRC or the DOE, but I just want to say, I guess 
for the record, that my understanding is when the NRC, I think 
we still have a witness in the audience from the NRC, when the 
NRC receives the Department of Energy's application in this 
case for Yucca Mountain, I believe the first thing that the NRC 
does is to determine its completeness. The way it is supposed 
to work, if the application is not complete, the NRC is 
required to send it back to DOE to ensure its completeness.
    I would just say to my friends who might still be here from 
the NRC, we expect that to be the case. I know it is the case 
in other applications for plants and so forth. It had better be 
the case in this instance as well. I see several folks nodding 
their heads, so I think it is received.
    Mr. Kerr, whose name is spelled Kerr, has you name ever 
been mispronounced, Mr. Kerr?
    Mr. Kerr. Just this morning, Senator. I think while you 
were out of the room.
    [Laughter.]
    Senator Carper. I apologize for that. Our name has been 
mispronounced, too. In fact, we are called things you wouldn't 
want to repeat here in this hearing.
    As you know, I think that a number of companies are 
preparing to apply for a license to build new nuclear reactors. 
We talked about that with the first panel of witnesses. I think 
one application has already been submitted from one utility. I 
guess from the perspective of a regulator--you are from North 
Carolina, aren't you? Whereabouts?
    Mr. Kerr. I live in Raleigh, but I am from Goldsboro.
    Senator Carper. My wife is from Boone. In fact, we own a 
little farm up there around Boone, so I guess you kind of work 
for us. That is good.
    From the perspective of a regulator, utility commissioners, 
does the opening of Yucca Mountain impact the National 
Association of Regulatory Utilities?
    Mr. Kerr. Regulatory utilities.
    Senator Carper. Does it impact the NARUC's support of new 
nuclear power? How does it, if at all?
    Mr. Kerr. Well, those individual decisions about new 
reactors are made by State regulators based on the evidence of 
record and the individual applications at the State level. As a 
matter of national policy, what we have done is I think done 
two things. With respect to Yucca Mountain, and not really 
Yucca Mountain, but the Nuclear Waste Policy Act, and the point 
that I made in my opening statement is, you know, there are 
three parts to the Act. One is that this is a national problem. 
No. 2 is that the Federal Government should take responsibility 
for the waste.
    And No. 3 is that the ratepayers, utilities really, the 
ratepayer should pay for it.
    The point I made in my opening was I think one third of 
that triumvirate has been taken care of, and that is the 
ratepayers have paid the money that they are responsible for. 
So I don't think we are disposed to Yucca Mountain as opposed 
to any other sites. We are disposed to the fulfillment of the 
basic roles assigned by the Act.
    I would say that I think we inherently believe that the 
agencies who have been assigned the task, the Federal court 
system, and there is a process. What we want is the process to 
work itself out and to move forward. It is woefully behind for 
all the reasons that you are already aware of.
    With respect to whether you license or site new plants, it 
would be ideal if we knew what the permanent solution is. I 
think that there is belief, as has been discussed here today, 
that interim storage onsite can be an interim and can continue 
to be an interim solution. There were certainly steps taken in 
the Energy Policy Act of 2005 to incent nuclear generation. So 
I think what you see is the companies and the regulators such 
as the North Carolina Commission, you are sort of caught. These 
things have long lead times. You are trying to forecast your 
ability to meet a growing demand out a decade or two decades in 
advance, and unfortunately, it is like planes landing at the 
airport. The issues are stacked up. We are doing the best we 
can.
    It would certainly make it easier as we address climate 
change to understand the role nuclear generation can plan, and 
it is going to be essential. One of my concerns about Mr. 
Cook's comments is it presumes we are not going to need nuclear 
generation going forward because we can't transport it. I think 
that is not what I have heard from members of this Committee 
today.
    But we have to have nuclear generation. If we could solve 
the storage problem as the Act requires, it would take one of 
the risk factors off the table and that is why we are 
supportive of doing what the law adopted in 1982 says. Can we 
get by for an interim period of time without an answer to Yucca 
Mountain or permanent storage, whether it is Yucca Mountain or 
something else, quite frankly I think we are going to have to, 
and we are going to find out.
    Senator Carper. Just a question if I could, you are a 
commissioner in North Carolina. I know in Delaware the Governor 
nominates people to serve on our Public Service Commission and 
the folks are confirmed by the State Senate or not confirmed. 
How does the process work in North Carolina?
    Mr. Kerr. We are appointed by the Governor. I was appointed 
by Governor Easley. We are confirmed by both Houses of our 
General Assembly.
    Senator Carper. What term do you serve?
    Mr. Kerr. We serve for 8 years.
    Senator Carper. And how long have you been serving?
    Mr. Kerr. For six and a half, I think.
    Senator Carper. OK.
    Mr. Kerr. My wife knows to the day.
    Senator Carper. Well, thanks for sharing with us, or with 
the people of North Carolina.
    Let me just close, if I could, Madam Chair, with another 
question or two for the record. I want to thank our witnesses 
for being here, both panels for being here, and for your 
responses to our questions, and for your commitment and concern 
on these important issues.
    My boys, one is in college now and the other is a senior in 
high school, but growing up they have been in the Boy Scouts, 
and one is an Eagle Scout and one is just about to become one. 
We are real proud of them. One of the things I do, I take our 
scouts to different service academies, military academies, 
Naval Academy, Merchant Marine Academy. We are going to do the 
Coast Guard Academy next.
    But one of the other things I do, a couple of years ago I 
took them down to Norfolk Naval Station. We spent a weekend 
there with about 20 or 25 scouts, and maybe a half dozen or so 
adult leaders. We crawled all over ships and submarines and 
aircraft carriers. It was quite a treat for them, and I think 
for the adults, too. One of the ships that we visited was a 
carrier called the Teddy Roosevelt. The captain of the ship 
actually came and met us and took us up for a tour of the ship. 
We were up in one part of the ship and he said to the boys, he 
said, boys, the Teddy Roosevelt is 1,000 feet long, and the 
scouts went, oooh. He said, boys, the Teddy Roosevelt is 35 
stories high, and the boys went, oooh. And he said, boys, when 
the Teddy Roosevelt goes to sea, we have 5,000 sailors aboard 
and 75 to 100 aircraft, and the scouts went, oooh. And he said, 
boys, my ships stops to refuel once every 25 years. And the 
adults went, oooh.
    [Laughter.]
    Senator Carper. For us to somehow squander the opportunity 
that I think is there for our Country that nuclear energy 
provides for our Country, I think we make a big mistake. One of 
the surest ways that we can squander that opportunity is, and I 
see the NRC is still with us, and the folks who operate these 
plants, is to not operate safely, to make a mistake. I always 
like to say if it isn't perfect, make it better. And we just 
have to be vigilant every single minute of every single day 
with respect to this industry.
    Part of the secret here is to figure out what to do with 
the spent fuel and to see if we can fine more opportunities to 
use the energy that is inherent therein. My hope is that we 
can. As a Nation, it is interesting, we had that Manhattan 
Project all those years ago and we almost need like a bookend, 
if you will, another Manhattan Project. The first one was to 
figure out how we could unleash the power of the atom. Maybe 
the second Manhattan Project is to figure out, now that we have 
unleashed the power of the atom, how can we make sure that we 
don't hand off a problem to the next generation as we dispose 
of the spent fuel.
    Thank you, Madam Chair.
    Senator Boxer. Thank you, Senator.
    I drive a car that gets 52 miles per gallon. Oooh, it's 
good.
    [Laughter.]
    Senator Boxer. Let me just say, Attorney General, is your 
State getting the respect it deserves in terms of--and I just 
want to get this on the record--the information that you need 
at this point?
    Ms. Masto. No.
    Senator Boxer. OK. Does your Governor share that view?
    Ms. Masto. Yes.
    Senator Boxer. Is your Governor Republican?
    Ms. Masto. Yes.
    Senator Boxer. Are you a Republican?
    Ms. Masto. Democrat.
    Senator Boxer. You are a Democrat. So this is across party 
line. I really agree with that. It is an outrage not to give a 
State the information it needs and to almost act--scratch 
almost--to act in a secretive fashion, keeping information away 
from people when you are talking about disposing the deadliest 
waste that there is.
    I went to France to visit the recycling there, the project 
that they have there. That was really interesting. I went in a 
room where they store these casks. They do recycle 96 percent 
of the waste. There is 4 percent left over. It is hot. It is 
very small. It is hot. And so I said, well, you reuse so much 
of the fuel, doesn't that mean you just need a small place to 
store the remainder, because it is only 4 percent? They said, 
well, no, because it is so hot that we need the same size. We 
can't even go to a smaller size, as if we were burying it all.
    Now, there is a message there. This isn't just an everyday 
situation. The people who are close by, including by the way my 
people in California, there are boards of supervisors that have 
sent me resolutions in the past. They have strong opposition 
because of the leakage issue into the water table. Somebody 
said that, I think it was Senator Clinton, that there were 
earthquakes nearby. Is that accurate? Do you have that 
information, Attorney General?
    Ms. Masto. Yes, there are. In fact, there are earthquakes 
in Nevada, earthquakes near this site, and she in fact talked 
about the fact that where they were siting a concrete pad was 
on top of a fault line, so they have had to move that concrete 
pad, not far from the fault, but it is off of the fault line.
    Senator Boxer. Only the Government could figure that out.
    So if I could just be straightforward, we have a situation 
where a decision was made a couple of decades ago siting this 
nuclear waste dump. Since then, we have had 9/11 and we have 
been warned constantly that the combination of a terrorist 
attack and nuclear materials is the biggest thing we have to 
fear. And yet still this project moves forward. The people of 
the State of Nevada, Republicans and Democrats and every other 
stripe, have bonded together and said, we don't want this; this 
is dangerous for us; at the minimum give us information. You 
have not been respected. You have earthquakes, if not right on 
the site, near the site, and no one seems to pay attention to 
that.
    What is wrong with this picture? Everything. I just simply 
do not understand some of the things that Government does. And 
again, I think the question of whether you are for nuclear 
power or against it is immaterial to me on this. It has nothing 
to do with it. Mr. Kerr said they are going to still support 
building more nuclear power. There is a window here. So it is 
not about that. It is about safety. It is about safety.
    So I would just say as a message, and I am really happy the 
NRC has remained. I thank you so much, sir. We need to start 
having some independent review here because if we don't, the 
people of Nevada are going to stop us every step of the way, 
and I will support them because it is their lives and the lives 
of their grandkids and generations to come.
    When I was a kid, my dad always said you want to leave this 
earth as least as good as you inherited it. That is something 
you do. That is a responsibility, a spiritual responsibility 
and a citizenship responsibility. I intend to do that to the 
best of my ability, as one person working with some others that 
feel that way. Not everybody seems to see it that way, but that 
is OK. I think this issue is a seminal issue in terms of what 
are we going to leave future generations.
    So I want to say to the State of Nevada, don't give up. You 
have friends here. You have a lot of friends here. Just keep on 
telling the truth. Keep on demanding the truth. Keep on 
demanding transparency. We will be behind you because you 
deserve to have information. No State should have something 
rammed down its throat that it doesn't want, especially when it 
has to do with such a potential health hazard as this dump 
might be if it is not done right and if the site itself is not 
amenable, which we have seen over and over again, whether it is 
earthquakes or leakage, we have seen that.
    So I just want to thank you very much. I just want to 
correct the record. I think it was the EPA who said that the 
Denver level of radiation was 350 millirem. Wrong. It is 50. 
And at 10 millirem you get one cancer cases in 100,000. So you 
do the math of the cancer cases at 350, I say to the NRC.
    So let's get real here. You know, sometimes you have to 
say, I was wrong. It is hard. Those words are very difficult 
for all of us to say, but this was wrong, and a rush to begin 
this licensing now I think would just lead to a circumstance 
that none of us will want to see.
    Thank you very much, and we stand adjourned.
    [Whereupon, at 12:56 p.m. the committee was adjourned.]

      Statement of Hon. Benjamin L. Cardin, U.S. Senator from the 
                           State of Maryland

    Thank you for holding this hearing today.
    Nuclear power is a complex and emotional issue. That is as 
it should be. We are dealing with America's energy future and 
we are dealing with waste issues that will be with humanity for 
longer than recorded history.
    We need to get it right, and it won't be easy. It certainly 
has not been fast.
    A number of Federal agencies from the Department of Energy 
to the Environmental Protection Agency to the Nuclear 
Regulatory Commission have important regulatory and oversight 
roles. These organizations are dealing with the most complex 
issues they will ever face. Less than 2 weeks ago the 
Department of Energy announced that it has over 3.5 million 
documents exceeding 30 million pages of information in 
preparation of its license application to operate the Yucca 
Mountain facility. The proposed Yucca Mountain Repository Site 
is probably the most studied piece of real eState in America.
    If we are to have nuclear power in this country, we need to 
decide upon a disposal location. With nuclear wastes posing 
radiation risks for tens of thousands of years, we should 
insist this be done with great care. This is as close to 
forever as we have ever done.
    Senators Reid and Ensign have a different idea about how to 
handle spent nuclear fuel. They would prefer to keep the wastes 
at the sites of the power plants that generated them. They also 
raise legitimate concerns about how the Federal agencies have 
conducted themselves to date.
    Madame Chairman, I am a supporter of the nuclear power 
industry. I think we need to have nuclear power today and as a 
bridge to an energy future that

     promotes our energy independence,
     reduces global warming gases, and
     helps move us away from a dangerous reliance on nations 
that do not support us.

    But I am also a supporter of a robust Federal Government 
that safeguards the American people and our precious 
environment. We should insist that the Federal agencies execute 
their jobs with the highest levels of professionalism. Shoddy 
work by Federal agencies or their contractors is simply 
unacceptable. It should be unacceptable to all of us, but 
especially those of us who support the nuclear industry.
    I want to give today's witnesses fair warning that those of 
us who support the nuclear industry are likely to be their most 
persistent questioners.
    I look forward to their testimony.

    Statement of The Prairie Island Indian Community Tribal Council

    Madam Chair and Members of the Committee:
    This testimony is submitted on behalf of the Prairie Island 
Indian Community (``Prairie Island''). Prairie Island is a 
federally recognized Indian tribe located in southeastern 
Minnesota along the Mississippi River and just 600 yards from 
an above-ground temporary nuclear waste storage site owned by 
Xcel Energy. Prairie Island has a compelling interest in the 
safe, permanent storage of the nation's nuclear waste. As such, 
we respectfully request that this testimony be given due 
consideration and entered into the public record as part of the 
Senate Environment and Public Works Committee oversight hearing 
on the Yucca Mountain nuclear waste repository project.

                           SUMMARY STATEMENT

    Prairie Island supports the development of a national 
nuclear waste repository at Nevada's Yucca Mountain and urges 
the Committee to exercise its oversight authority to help 
ensure the project meets all the necessary requirements to 
satisfy the Federal Government's commitment to the American 
people to develop a facility to safely store our nation's 
nuclear waste.
    Developing a safe, permanent storage facility for spent 
nuclear fuel is critical to the health and welfare of the 
millions of Americans who currently live near temporary nuclear 
waste storage sites. The Federal Government must fulfill its 
obligation under the National Nuclear Waste Storage Act and 
subsequent acts of Congress to solve the waste disposal problem 
and move the nation's nuclear waste to a safe and secure 
facility.

                        PRAIRIE ISLAND BELIEVES:

     The indefinite storage of high-level nuclear waste at 121 
different locations in 39 states poses a serious threat to 
national security and puts at risk more than 169 million 
Americans currently living within 75 miles of these temporary 
storage facilities.
     Yucca Mountain is a remote, militarily secure site that 
is designed to permanently store the nation's high-level 
nuclear waste, and it is a safer alternative to leaving nuclear 
waste under varying levels of security at multiple locations, 
near communities, rivers, and other natural resources.
     American ratepayers have contributed more than $28 
billion to the national Nuclear Waste Fund, including $470 
million from Minnesotans. The American public deserves results.
     Until or unless the Federal Government solves its nuclear 
waste problem, it is simply irresponsible to allow the 
construction of new nuclear power plants anywhere in the United 
States.

             TESTIMONY OF THE PRAIRIE ISLAND TRIBAL COUNCIL

    Prairie Island is a small Indian reservation located in 
southeastern Minnesota along the banks of the Mississippi 
River, approximately 50 miles from the Twin Cities of 
Minneapolis and St. Paul. Our reservation is home to nearly 300 
of our community members.
    Prairie Island is among the closest communities in the 
Nation to a nuclear power plant and an above-ground nuclear 
waste storage site. Twin nuclear reactors and nearly two dozen 
large cement nuclear waste storage casks sit just 600 yards 
from our homes. As many as 35 additional casks will be added in 
the coming years. The only evacuation route off our island 
reservation is frequently blocked by passing trains.
    At any given time, as many as 8,000 people could be on 
Prairie Island. This includes our employees and guests of our 
casino as well as our tribal members, some of whom are elderly 
and disabled. Tens of thousands of people live in cities and 
towns just beyond our reservation.
    Prairie Island is just one of thousands of communities in 
39 different states located in close proximity to a temporary 
nuclear waste facility. There are presently 121 temporary 
nuclear waste storage sites scattered across the United States.
    Twenty-five years after Congress passed the National 
Nuclear Waste Storage Act and mandated the establishment of an 
underground repository, the future of the nation's nuclear 
waste disposal program remains in doubt. Lost in the debate 
over Yucca Mountain are the communities that bear the burden of 
the Federal Government's inaction and failure to solve the 
nation's nuclear waste problem.
    Public safety was a core justification for building Yucca 
Mountain. As President Bush correctly noted in his Feb. 15, 
2002 letter to the Congress:

    ``Proceeding with the repository program is necessary to 
protect public safety, health, and the Nation's security 
because successful completion of this project would isolate in 
a geologic repository at a remote location highly radioactive 
materials now scattered throughout the Nation. In addition, the 
geologic repository would support our national security through 
disposal of nuclear waste from our defense facilities.''

    Congress later approved Yucca Mountain as the site for the 
nation's first permanent repository for high-level nuclear 
waste. However, in the years since, Yucca Mountain has suffered 
numerous delays and has been under-funded despite billions of 
dollars in contributions to the Nuclear Waste Fund from 
American ratepayers. The paramount public safety concerns that 
first compelled Congress to build an isolated storage facility 
seem to be fading as the issue slips from the American 
consciousness and gives way to talk of building new nuclear 
power plants.
    Understandably, for most Americans the nuclear waste issue 
is not at the top of their minds. It's not an issue they are 
exposed to every day. For Prairie Island, the issue is more 
difficult to escape. We are reminded of our nation's nuclear 
waste problem whenever we look out our living room windows.
    The talk of building new nuclear power plants is more 
difficult to forgive. The nuclear power industry, it's been 
said, is on the verge of a ``renaissance.'' Dozens of new 
nuclear power plants are being proposed throughout the 
country--this despite the uncertainty surrounding the nation's 
waste disposal program and no firm answers for how to deal with 
the waste problem.
    The Texas-based utility NRG has already submitted an 
application--the first in the U.S. in nearly 30 years--to build 
two nuclear power plants in south Texas. NRG's president was 
quoted recently in the Las Vegas Sun saying, ``Whether Yucca 
Mountain happens or not plays no part in our calculation.'' He 
added that as far as he is concerned, the waste can stay on the 
company's property for the next century. (Lisa Mascaro, Las 
Vegas Sun, Sept. 26, 2007)
    Permitting the industry to build new nuclear plants without 
any regard for a permanent, secure repository for the waste 
that will be generated removes the only real incentive the 
industry has for solving the waste problem. The Federal 
Government must get serious about solving its nuclear waste 
disposal problem, before allowing the construction of new 
nuclear power plants anywhere in the United States.
    We believe the Federal Government must deliver on its 
promise to move the nation's nuclear waste to a safe, secure 
facility before it embraces this so-call nuclear power 
renaissance and turns to nuclear power as a preferred energy 
source for this country.
    Our community leaders have visited Yucca Mountain several 
times, and we recognize there may be no perfect solution to the 
nuclear waste storage problem. Science can be twisted and used 
to prove or disprove the viability of virtually any proposed 
storage site on earth. However, we believe Yucca Mountain 
offers a reasonable solution. The facility is located many 
miles from civilians; it is below ground, militarily secure and 
designed for permanent storage. It is simply a better 
alternative to leaving nuclear waste where it is--in some 
cases--just yards from vulnerable communities like ours and 
essential waterways like the Mississippi River. Securing and 
defending one nuclear waste site has to be superior to securing 
and defending hundreds.
    On behalf of the thousands of communities in the United 
States living in proximity to what are supposed to be temporary 
nuclear waste sites, the Prairie Island Community thanks the 
Committee for holding this oversight hearing and for bringing 
much needed attention to this important and unresolved problem.


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               Statement of Jim Gibbons, Nevada Governor

    Honorable Madame Chair and members of the committee, it is 
my honor as the Governor of the State of Nevada to submit these 
written comments for the Committee's consideration. While I 
could not be present today to testify in person, I ask the 
Committee to carefully consider these written comments, as well 
as the comments presented by Nevada's Federal delegation and 
Nevada's Attorney General. I am pleased that all of us stand in 
unified opposition to the Yucca mountain project.
    During my 10 years of service to the State of Nevada in 
Congress, I fought tirelessly against this flawed project. Now, 
as Governor, I appreciate the opportunity the people of Nevada 
have given me to continue the fight.
    The Yucca mountain project always has, and always will, be 
based on unsound science, questionable legal interpretations, 
and poor public policy. I trust this Committee will carefully 
consider Nevada's views. As a matter of both science and law, 
and in the interests of State comity and sound national policy, 
Yucca Mountain should not be developed as a high-level nuclear 
waste repository.
    Nevada has done more than its share with respect to 
exposure to high-level radioactive waste. Nevada served as a 
nuclear weapons testing area during the cold war. Hundreds of 
millions of radioactive curie contaminants from those tests 
remain embedded in Nevada soil to this day, exposing many 
Nevadans to serious health risks. Nevadans have not forgotten 
this legacy.
    Now, the Department of Energy seeks to foist even more 
harmful contaminants on the people and lands of Nevada. Not 
only does the Department of Energy seek to store radioactive 
waste in Nevada, but by necessity, seeks to transport that same 
waste through Nevada, including through and near major 
metropolitan areas.
    The Department of Energy has mismanaged this project from 
its ill-conceived inception. This mismanagement is well-
documented and has been the subject of numerous legal 
challenges and repeated public testimony by Nevada public 
officials. The geologic issues at Yucca mountain are numerous 
and concerning. The Department of Energy has not been able to 
demonstrate that the planned repository is able to geologically 
isolate radioactive waste. The Nevada Nuclear Regulatory 
Commission has identified hundreds of technical issues that 
remain unresolved to this day. The Yucca mountain project site 
is located in an area that has been identified as prone to 
volcanic activity. Even more concerning is the seismic 
integrity of the site. Yucca Mountain sits in the heart of one 
of the largest earthquake fault zones east of California. 
Hundreds of earthquakes greater than magnitude 2.5 have 
occurred at the Yucca site just in the past 20 years. The Yucca 
mountain site is also prone to serious groundwater seepage. 
Recognizing the deteriorating effects groundwater can have on 
storage casks, the Department of Energy has suggested that a 
drip shield is appropriate. This Committee should ask itself, 
if this site is truly geologically appropriate, why does the 
Department of Energy need to spend billions of dollars on a 
man-made drip shield?
    Against this backdrop are the recent and continuing 
disingenuous actions of the Department of Energy. Just this 
year, Nevada was forced to go to court to stop the Department 
of Energy from flaunting Nevada water law in an attempt to 
drill bore-holes for soil samples at the Yucca site. The 
Department of Energy chose to ignore Nevada law and simply 
drilled numerous bore-holes without permission. Fortunately, a 
Federal district court recognized that the Department of Energy 
is required to follow Nevada water law just like everyone else, 
and the bore-hole drilling project was stopped. However, the 
cavalier attitude the Department of Energy has taken toward the 
State of Nevada is telling, and is certainly cause for grave 
concern.
    In the next few days many of you will return to your homes 
thousands of miles away from Nevada, but for many in the 
hearing room today, Nevada is home. Nevadans are the ones who 
have to risk deadly exposures based on the Department of 
Energy's culture of ignoring science in favor of expediency. 
And I remind you that there is still no viable plan for 
transporting this deadly waste through our communities for 
thousands of miles. The safety of the American people along the 
transportation route is in jeopardy due to this moving hazard 
that too easily could be a moving target. It is my hope that 
our Federal public officials will fully examine this project in 
a common-sense and scientifically sound manner and be able to 
ignore the pressures of rubber stamping this project. It is 
Nevada's hope that you will see the flaws and the risks 
associated with opening Yucca Mountain and transporting high-
level nuclear waste. It is our hope that you will protect the 
people of Nevada and of this great nation.
    I thank you for you time today, and I respectfully request 
that these comments be introduced into the record.

 Corrected statement of Kenneth Cook, President, Environmental Working 
                                 Group

    Chairman Boxer, Ranking Member Inhofe, distinguished 
members of the Committee: Thank you for the opportunity to 
testify today on some of the crucial issues surrounding the 
licensing process for the proposed facility for long-term 
storage of lethal, long-lived nuclear waste at Yucca Mountain 
in Nevada. My name is Kenneth Cook and I am president of 
Environmental Working Group (EWG), a non-profit environmental 
research and advocacy organization that uses the power of 
information to protect public health and the environment. EWG 
has offices in Washington, DC and Oakland, California.
    Since 2002, EWG has examined and assisted the public in 
understanding the transportation implications of nuclear waste 
routes that could be utilized to transport deadly radioactive 
material from around the United States, and through virtually 
every major city in the Nation, to Yucca Mountain, should the 
proposed repository there become operational.
    I want to emphasize three main points in my testimony 
today:

        1. The American public's fundamental right to 
        understand the full implications of thousands of 
        potential shipments of extremely dangerous nuclear 
        waste across this country should be central to the 
        government's process for licensing Yucca Mountain, for 
        operating any other repository for this material, and 
        for all decisions to relicense existing reactors or 
        build new ones. The Federal Government has not 
        respected that right to know.
        2. It makes no sense to generate enormous, additional 
        amounts of deadly nuclear waste when we haven't figured 
        out what to do with the tens of thousands of tons 
        already on hand. Our government has ignored that common 
        sense precaution.
        3. The government is rushing to approve the license 
        application for Yucca Mountain before rudimentary, life 
        and death questions have been resolved about 
        transportation, storage, and a truly protective 
        radiation safety standard.

    Let me start with a vivid illustration of my first point.


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    I apologize for the exceedingly poor quality of the first 
of those two maps, in particular to you, Chairman Boxer, since 
it depicts your home State of California. This is the official 
transportation map, buried in Appendix J of the Department of 
Energy's (DOE) Environmental Impact Statement (EIS) for the 
proposed Yucca Mountain nuclear waste repository. More cartoon 
than cartography, this illustration depicts only one city in 
our most populous state: the capital, Sacramento. It also shows 
the location of facilities from which lethal radioactive waste 
would be shipped to Yucca Mountain if it is ever made 
operational, along with a few highway designations and some 
unnamed rail lines.
    You won't find San Francisco, Oakland, San Jose, Los 
Angeles, San Diego, Fresno, Bakersfield or any other major 
California cities on this map of nuclear waste routes to Yucca 
Mountain. But DOE's prospective routes for shipping deadly 
nuclear reactor waste go through or near every one of those 
cities, or the suburbs around them, and countless more 
communities in California.
    If the people you represent did somehow find their way to 
Appendix J of the EIS for Yucca Mountain, Chairman Boxer, they 
wouldn't find any telling details about how the potential 
highway or rail routes might wend their way through the towns 
and cities and communities of your state.
    The people of California probably wouldn't realize that 7.5 
million them live within a mile of those routes, or that there 
are over 1,500 schools or 130 hospitals also within a mile of 
those routes in your state.
    Now, maybe, Chairman Boxer, your constituents, knowing all 
that, would still decide that it makes sense to put lethal 
radioactive waste on California's highways and rail lines, 
right near their homes and through their communities, en route 
to Yucca Mountain. Maybe Californians would come to that 
decision knowing that plenty of waste would still remain to be 
dealt with at reactors in the State once Yucca Mountain is 
filled to its current statutory limit. Maybe residents of 
California would still conclude that reactors in the state, or 
in states to the north that might route waste through your 
state, should operate for an additional 20 years, generating 
more nuclear waste and more shipments for decades. Maybe the 
people of California would approve of new reactors being built, 
creating yet more waste at reactor sites, and on highways and 
railways, for generations to come.
    Or maybe they wouldn't approve at all if they really knew 
what approval meant. Californians have a right to know the 
implications of shipping waste to Yucca Mountain, or of 
expanding nuclear power and waste production, before decisions 
are made for them.
    The second map was made by Environmental Working Group, 
using Google Maps after we painstakingly overlaid the rail and 
highway routes from that very same set of maps in the Yucca 
Mountain EIS. We are in the process of making maps like this 
available online for all of the proposed shipment routes to 
Yucca Mountain. Here are some other examples, with additional 
EWG maps presented on the charts before you.


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    There are no operating nuclear power reactors in Oklahoma, 
something the State has in common with Nevada. But EWG 
estimates that 254,000 people live within 1 mile of the 
Department of Energy's proposed routes for the shipment of high 
level nuclear waste across Oklahoma from out of state; some 
879,000 people live within 5 miles. Our geographic information 
system analysis also finds an estimated 99 schools within 1 
mile of the Department of Energy's proposed high-level nuclear 
waste transportation routes and 289 schools within 5 miles. We 
also estimate that 14 hospitals are within 1 mile and 29 
hospitals are within 5 miles. Again, localized, community-
specific information of this sort might or might not affect the 
opinions of Oklahomans regarding the shipment through their 
cities and their communities of nuclear waste from other 
states. The only way we'll know if this information is 
important is if we entrust it to the people of Oklahoma before 
decisions that affect them are made.
    My point is that the people of Oklahoma and every other 
State have a right to know and fully understand the 
implications for them of the Yucca Mountain nuclear waste 
repository before the license for the facility is finalized. 
And they have the same right to know what expansion of nuclear 
waste generation will mean for transportation through their 
State if reactors around the country are relicensed for 20 
additional years of operation, or new reactors are constructed. 
They may or may not know that decisions made hundreds of miles 
away will have profound implications for the shipment of high-
level, deadly nuclear waste through their neighborhoods for 
decades to come.
    This right to know the implications of shipping nuclear 
waste to Yucca Mountain is not being respected by our 
government in its rush to approve the operating license for the 
Yucca Mountain facility.

            CONCERNS ABOUT EPA RADIATION STANDARDS FOR YUCCA

    In August 2005, the U.S. Environmental Protection Agency 
published its proposed, revised radiation protection standards 
for the proposed Yucca Mountain nuclear waste dump. These 
public health standards set the maximum allowable levels of 
radiation to which humans can be exposed and the maximum level 
of radiation that can be in groundwater from leakage from the 
proposed dump. Under the Energy Policy Act of 1992, these 
standards are required to conform to National Academies of 
Science's mandate that the standard protect human health during 
periods when leakage will cause peak levels of radiation.1 
Unfortunately, EPA's standards neither protect public health 
nor meet the law's requirements.
    EPA proposes a 15 millirems radiation dose limit for humans 
during the first 10,000 years of the proposed dump's operation 
(when no leakage from waste containers is expected), but would 
weaken the standard to 350 millirems after 10,000 years (when 
leakage is all but certain). In other words, at the time of the 
greatest threats to human health, EPA proposed weakening the 
standard by a factor of 23 times more lenient.
    1 Energy Policy Act of 1992, Pub. L. 102-486; National 
Academy of Sciences, National Research Council, Technical Bases 
for Yucca Mountain Standards, 1995.
    Notably, nowhere in its proposal does EPA discuss the 
increased risk to human health and safety from the higher 
levels of exposure at the 10,000-year mark, despite EPA's and 
NAS's acknowledgement of a linear-dose response relationship 
between radiation and cancer. The risk to public health 
increases at higher levels of radiation.
    EPA also seems to be intentionally disregarding its legal 
obligations. EPA's original human dose standard was 15 
millirems per year for the first 10,000 years. EPA proposed 
that there be no public health radiation standard in place 
after 10,000 years, the period in which leakage is expected 
from the repository. But since EPA had arbitrarily determined 
that this standard did not need to be in place when peak 
leakage will occur, the DC Court of Appeals invalidated it as 
inconsistent with the Energy Policy Act.
    In addition, EPA proposes the same groundwater protection 
standard that the District Court voided in 2004. EPA proposes a 
4 millirems standard for the first 10,000 years, and no 
groundwater protection standard at the time when peak exposure 
is expected to occur, after 10,000 years. Radiation from the 
proposed repository will travel through groundwater, and the 
groundwater under Yucca Mountain provides drinking and 
irrigation water to tens of millions of people throughout 
Amargosa Valley and Southern California.
    Moreover, EPA will not consider public comment on the 
groundwater standard in the proposed regulation, despite the 
fact that the groundwater standard is integral to protecting 
public health and that the radiation standard is integral to 
determining the safety and integrity of the proposed dump.

                        CONCLUDING OBSERVATIONS

    I think we are all aware that the U.S. nuclear industry 
wouldn't split an atom without a subsidy. They never have, and 
they never will.
    Nuclear energy companies never hesitate to lean on American 
taxpayers for money to conduct nuclear research, for 
indemnification in the event of horrific nuclear accidents, for 
money to clean up industry's lethal waste and cost overruns, or 
for the collateral of the public's purse--something the 
companies are seeking today to coax Wall Street out of its 
sober reluctance to invest in new nuclear reactors.
    But the ultimate subsidy for the nuclear industry may well 
be our government's scandalous failure to fully inform our own 
people about the potential consequences of the Yucca Mountain 
repository until it is too late for the people to do anything 
about it but accept the risk, the expense, or the unthinkable.
    I thank you, Chairman Boxer and Ranking Member Inhofe, for 
this opportunity to testify, and I look forward to answering 
any questions or providing additional information at the 
pleasure of the Committee.
    I wish to thank colleagues at the Environmental Working 
Group for the research and analysis underlying my testimony 
today: Richard Wiles, Sandra Schubert, Sean Gray, and Chris 
Campbell; and former colleagues John Coequyt, Jon Balivieso, 
and Tim Greenleaf. We are also grateful for technical 
assistance provided over the years by experts at the Nuclear 
Information And Resource Service and in particular by Kevin 
Kamps, now on the staff of Beyond Nuclear. EWG is responsible 
for the contents of this testimony.


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