[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
H.R. 515, THE RADIOACTIVE IMPORT DETERRENCE ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON ENERGY AND ENVIRONMENT
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
OCTOBER 16, 2009
__________
Serial No. 111-73
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
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COMMITTEE ON ENERGY AND COMMERCE
HENRY A. WAXMAN, California, Chairman
JOHN D. DINGELL, Michigan JOE BARTON, Texas
Chairman Emeritus Ranking Member
EDWARD J. MARKEY, Massachusetts RALPH M. HALL, Texas
RICK BOUCHER, Virginia FRED UPTON, Michigan
FRANK PALLONE, Jr., New Jersey CLIFF STEARNS, Florida
BART GORDON, Tennessee NATHAN DEAL, Georgia
BOBBY L. RUSH, Illinois ED WHITFIELD, Kentucky
ANNA G. ESHOO, California JOHN SHIMKUS, Illinois
BART STUPAK, Michigan JOHN B. SHADEGG, Arizona
ELIOT L. ENGEL, New York ROY BLUNT, Missouri
GENE GREEN, Texas STEVE BUYER, Indiana
DIANA DeGETTE, Colorado GEORGE RADANOVICH, California
Vice Chairman JOSEPH R. PITTS, Pennsylvania
LOIS CAPPS, California MARY BONO MACK, California
MICHAEL F. DOYLE, Pennsylvania GREG WALDEN, Oregon
JANE HARMAN, California LEE TERRY, Nebraska
TOM ALLEN, Maine MIKE ROGERS, Michigan
JANICE D. SCHAKOWSKY, Illinois SUE WILKINS MYRICK, North Carolina
CHARLES A. GONZALEZ, Texas JOHN SULLIVAN, Oklahoma
JAY INSLEE, Washington TIM MURPHY, Pennsylvania
TAMMY BALDWIN, Wisconsin MICHAEL C. BURGESS, Texas
MIKE ROSS, Arkansas MARSHA BLACKBURN, Tennessee
ANTHONY D. WEINER, New York PHIL GINGREY, Georgia
JIM MATHESON, Utah STEVE SCALISE, Louisiana
G.K. BUTTERFIELD, North Carolina
CHARLIE MELANCON, Louisiana
JOHN BARROW, Georgia
BARON P. HILL, Indiana
DORIS O. MATSUI, California
DONNA CHRISTENSEN, Virgin Islands
KATHY CASTOR, Florida
JOHN P. SARBANES, Maryland
CHRISTOPHER S. MURPHY, Connecticut
ZACHARY T. SPACE, Ohio
JERRY McNERNEY, California
BETTY SUTTON, Ohio
BRUCE BRALEY, Iowa
PETER WELCH, Vermont
(ii)
Subcommittee on Energy and Environment
EDWARD J. MARKEY, Massachusetts, Chairman
MICHAEL F. DOYLE, Pennsylvania DENNIS HASTERT, Illinois
G.K. BUTTERFIELD, North Carolina Ranking Member
CHARLIE MELANCON, Louisiana RALPH M. HALL, Texas
BARON HILL, Indiana FRED UPTON, Michigan
DORIS O. MATSUI, California ED WHITFIELD, Kentucky
JERRY McNERNEY, California JOHN SHIMKUS, Illinois
PETER WELCH, Vermont HEATHER WILSON, New Mexico
JOHN D. DINGELL, Michigan JOHN B. SHADEGG, Arizona
RICK BOUCHER, Virginia CHARLES W. ``CHIP'' PICKERING,
FRANK PALLONE, New Jersey Mississippi
ELIOT ENGEL, New York STEVE BUYER, Indiana
GENE GREEN, Texas GREG WALDEN, Oregon
LOIS CAPPS, California SUE WILKINS MYRICK, North Carolina
JANE HARMAN, California JOHN SULLIVAN, Oklahoma
CHARLES A. GONZALEZ, Texas MICHAEL C. BURGESS, Texas
TAMMY BALDWIN, Wisconsin
MIKE ROSS, Arkansas
JIM MATHESON, Utah
JOHN BARROW, Georgia
C O N T E N T S
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Page
Hon. Edward J. Markey, a Representative in Congress from the
Commonwealth of Massachussetts, opening statement..............
Prepared statement...........................................
Hon. Fred Upton, a Representative in Congress from the State of
Michigan, opening statement....................................
Hon. Jim Matheson, a Representative in Congress from the State of
Utah, opening statement........................................
Prepared statement...........................................
Hon. Bart Gordon, a Representative in Congress from the State of
Tennessee, prepared statement..................................
Hon. Ed Whitfield, a Representative in Congress from the
Commonwealth of Kentucky, opening statement....................
Witnesses
Margaret M. Doane, Director, Office of International Programs,
U.S. Nuclear Regulatory Commission.............................
Prepared statement...........................................
Answers to submitted questions...............................
Leonard C. Slosky, Executive Director, Rocky Mountain Low-Level
Waste Board....................................................
Prepared statement...........................................
Answers to submitted questions...............................
Val Christensen, President, EnergysSolutions.....................
Prepared statement...........................................
Answers to submitted questions...............................
Submitted Material
Discussion Draft H.R. 515........................................
Nuclear agreements between the United States and Italy, submitted
by Mr. Upton...................................................
Court ruling of EnergySolutions LLC, submitted by Mr. Upton......
H.R. 515, THE RADIOACTIVE IMPORT DETERRENCE ACT
FRIDAY, OCTOBER 16, 2009
House of Representatives,
Subcommittee on Energy and Environment,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 9:35 a.m., in
Room 2123, Rayburn House Office Building, Hon. Edward J. Markey
[chairman of the subcommittee] presiding.
Present: Representatives Markey, Matheson, and Upton.
Also Present: Representative Gordon.
Staff Present: Jeff Baran, Counsel; Melissa Bez,
Professional Staff Member; Caitlin Haberman, Special Assistant;
David Kohn, Press Secretary; Earley Green, Chief Clerk; Matt
Eisenberg, Staff Assistant; Mary Neumayr, Minority Counsel;
Aaron Cutler, Minority Counsel; Andrea Spring, Minority
Professional Staff Member; and Sam Costello, Minority
Legislative Analyst.
OPENING STATEMENT OF HON. EDWARD J. MARKEY, A REPRESENTATIVE IN
CONGRESS FROM THE COMMONWEALTH OF MASSACHUSETTS
Mr. Markey. The Subcommittee on Energy and the Environment
will come to order.
There are many Italian imports that I would welcome to U.S.
soil: Lasagna, great. Ferrari, absolutely. Prosciutto,
delicious. And let's not forget Prada, Versace, and Giorgio
Armani. But Italian nuclear waste makes me say, Mama mia.
H.R. 515, the Radioactive Import Deterrence Act, was
drafted in response to the proposed importation of 20,000 tons
of Italian low-level radioactive waste into the United States
to be processed in Tennessee and disposed of in Utah.
[The discussion draft follows:]******** INSERT 1-1 ********
Mr. Markey. Introduced by Congressmen Gordon, Terry, and
Matheson, along with many other members of the Energy and
Commerce Committee, this bipartisan bill would prevent the
importation of low-level radioactive waste into this country.
The State of Utah, along with the Northwest Compact of
which Utah is a member, said, no, we won't take the Italian
waste. Today, a case is making its way through the courts to
determine whether the States and the compacts have the right to
say ``no'' to other countries' radioactive waste.
I have worked on low-level radioactive waste issues for
many years. I was on the committee in 1980 when we established
the compact system to deal with the issue. And in 1985, when I
chaired the Subcommittee on Energy, long ago and far away, we
passed the amendments to the Act to both consent to a number of
compacts and to ensure that States without disposal sites would
be able to access those critical facilities.
Let me state very clearly that when we established the
compact system we did so to ensure that low-level waste in this
country would be able to be safely disposed of. In order to
encourage new disposal facilities to be established, we allowed
the States to enter into compacts to dispose of their waste
regionally, and we further granted them authority to exclude
waste from places outside of their respective compacts. The
purpose of the compact system was to empower the States and not
the compacts. But today some argue that the compacts do not
have the authority to say ``no'' to waste from other countries.
To me, from a plain-language reading of the statute and the
legislative history, this position is obviously incorrect. We
did not intend for foreign waste to be allowed special
privileges to be disposed of within the compacts even against
the wishes of the compacts and the States.
The compact system, the result of a painstaking compromise,
has provided access for critical low-level radioactive waste
disposal for almost three decades. Today, I am very concerned
that the compact system itself is under assault. I disagree
with those who argue that this bill is antinuclear. In fact,
this bill would actually preserve waste disposal capacity for
domestic use.
Careful stewardship of our U.S. nuclear waste disposal
capacity is more important than ever. In this context, it is
important to examine the current state of low-level waste
disposal in other countries. Do other countries allow
importation and disposal of waste from, say, the United States?
The answer, no. Not Germany, not Canada, not Switzerland, and,
no, not Italy either. Not a one. No other nuclear waste-
generating country allows low-level waste importation for
disposal. In fact, many countries with nuclear programs do not
even have disposal facilities for their own low-level waste.
That includes Italy.
If the U.S. remains the one country that allows for the
disposal of foreign waste, then nothing stops those other
countries from using us as their nuclear dumping grounds. If we
do not protect the low-level waste compact system, what were
supposed to be the disposal sites for U.S. waste could be
turned into global nuclear waste dumps. We could end up in a
position where many States are unable or unwilling to
participate in these compacts at all and companies could have
nowhere to go to dispose of their radioactive waste. That would
not be a good development for the nuclear industry or for the
Nation.
[The prepared statement of Mr. Markey follows:]********
COMMITTEE INSERT ********
Mr. Markey. Now I would like to turn and recognize my good
friend, the gentleman from Michigan, Mr. Upton, for an opening
statement.
OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Upton. Well, thank you, Mr. Chairman.
Before I begin, I would like to put into the record two
statements, the nuclear agreements that were signed just this
month between Department of Energy Secretary Chu and the
Italian Minister for Economic Development.
Mr. Markey. Without objection, so ordered.
[The information appears at the conclusion of the
hearing]******** COMMITTEE INSERT ********
Mr. Upton. It seems to me that any movement on the bill
that we are looking at today would violate the spirit of those
agreements, and I would like to submit that court ruling from
the case EnergySolutions for Northwest Interstate Compact, and
I thank you for allowing that to be entered into the record.
[The information appears at the conclusion of the
hearing.]******** COMMITTEE INSERT ********
Mr. Upton. As a strong supporter of nuclear power, I hope
today's hearing on importing low-level nuclear waste will lead
to discussing the larger issues of long-term storage of spent
nuclear fuel or nuclear fuel recycling as a whole. The issue of
waste disposal in the new nuclear power plants are, in fact,
directly related.
I see the bill that we are looking at today is anti nuclear
power. This bill some would view as a political NIMBY issue.
Direct from the NRC's written testimony: ``The regulatory
authorities in both Tennessee and Utah have informed the NRC
that the material can safely go to EnergySolutions' facilities
in their respective States. The Southeast Compact Commission
expressed no objection to this application. The executive
branch expressed no objection to the application and provided
the NRC with the Italian Government's views that the
application is consistent with the joint convention
obligations.''
Also from the NRC: ``There appears to be ample available
disposal capacity for the foreseeable future, particularly at
the EnergySolutions facility in Utah.''
So why are we debating the bill? Well, a court has made a
ruling, and the Appeals Court is reviewing the case.
EnergySolutions has voluntarily agreed to limit the disposal of
foreign-generated waste to no more than 5 percent of its
licensed capacity or 10 years, whichever comes first. This is
just 4.3 acres on a 640-acre site. And EnergySolutions has
offered to make this a legally binding condition of its
license.
Congress should not be interfering here. We should,
instead, have hearings on building new nuclear power plants,
recycling spent fuel, and what happens now that the
administration has scrapped Yucca Mountain.
While I have great respect for my friends on the other side
who introduced this legislation, I am concerned that it will be
used by the opponents of nuclear power to delay new plants from
coming online, causing further roadblocks to the recycling and
safe disposal of spent fuel and low-level waste.
The bill is a continuation of the attacks on the nuclear
industry. The first attack was on the disposal of spent fuel at
Yucca. This bill is attacking the safe disposal of a small
amount of low-level waste and is being used by those who would
like to stop nuclear energy to attack the disposal of domestic-
generated depleted uranium, or DU.
NRC has stated that the disposal of DU is safe. If we can't
dispose of DU, then we can't enrich uranium for fuel. If we
don't have the fuel, then we are unable to power the source of
70 percent of our Nation's zero-emission electricity
generation.
Sponsors of the bill may not believe that it is
antinuclear, but the antinuclear groups attempt to stop nuclear
energy by attacking the waste, not the generation. Despite what
the proponents of the legislation may claim, this isn't just
about importing waste from Italy, what happens to be identical
to the domestic waste safely being processed and disposed of
today. This is the camel's nose under the tent, and that is
shutting down all of our domestic processing and disposal
capabilities and eventually mothballing all of our zero-
emissions nuclear power plants.
Low-level radioactive material from nearly 104 domestic
nuclear sites is sent to the Bear Creek facility for processing
and on to the Clive facility in Utah for its safe disposal. We
cannot compete on a global scale if we shut down our domestic
facilities.
Members of this very subcommittee represent 18 different
States that send waste to be processed and disposed of by
EnergySolutions at their facilities. I have two nuclear power
plants in my district, literally miles from my doorstep, that
send their low-level nuclear waste across State lines for
processing and disposal. These services are essential to the
success of nuclear power.
Now I know that there are some concerns about importing
Italian waste to the Clive, Utah, site and how it will impact
the compact system. I don't believe that it will. The compact
system remains unaffected. The court has already unequivocally
ruled on the issue, and I expect that the Appeals Court will
affirm the ruling. We should let the process move forward.
The judge's ruling in EnergySolutions v. Northwest stated
that the Clive facility is not a regional disposal facility and
not part of the Northwest Compact. Two quotes are important.
Under the 1980 Act, Northwest would have no authority to
exclude out-of-region waste from the Clive facility; and the
second quote, the Clive facility is not a regional disposal
facility as defined by the 85 'Act.
It is imperative that clean, safe nuclear power is at the
forefront as we seek to solidify our Nation's energy supply and
foster a new era of energy independence and reduced emissions.
As applications for nearly 30 new nuclear plants are expected
over the next couple of years, we are on our way to fulfilling
our commitment to safe, clean nuclear power. Not only will our
environment be better off for it, our national security will
also be bolstered. Millions of households are powered by clean,
zero-emission nuclear power, and our Nation's economy will be
powered by nuclear as well. This is the right course, and we
will be better for it.
I yield back the balance of my time.
Mr. Markey. The gentleman's time has expired.
The Chair recognizes the gentleman from Utah, Mr. Matheson.
OPENING STATEMENT OF HON. JIM MATHESON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF UTAH
Mr. Matheson. Well, thank you, Chairman Markey, for holding
this hearing.
As the committee knows, I have been working on this
bipartisan legislation with my friends, Bart Gordon of
Tennessee and Lee Terry of Nebraska, for the past 2 years. The
subcommittee held a similar legislative hearing last year, and
it was clear to those of us who attended that hearing that the
policy for low-level radioactive waste in this country, as
created by the Federal Government in the legislation in 1980
and 1985, has some gaps, and there are some questions, and
Congress ought to relook at this policy, and that is why we are
here today.
I would say that it is hard to see why the U.S. would ever
want to import radioactive waste from other countries. Simply
put, we have very few locations in this country where this
waste can go.
Given the fact--and I agree with Mr. Upton--that we are
facing a future with an additional amount of nuclear power in
this country--and I support the creation of new nuclear power
plants--it seems to me as we focus on carbon-free energy
sources and nuclear power seems to grow in the U.S. Over the
next few years that we would want to preserve the U.S. capacity
for low-level radioactive waste.
Some have said this is an antinuclear bill, and nothing
could be further from the truth, that this is a pro-domestic
nuclear power bill. I challenge anyone to show me in this
legislation what is going to inhibit the development of
domestic nuclear power. So I want to get that on the record
right away in this opening statement, because that just isn't
the case.
Now, as we said, the compact system, which oversees the
low-level radioactive waste, Utah's part of what is called the
Northwest Compact, the compact says that while the Clive
facility is authorized to take waste from outside compact
States, the compact also said it had never considered or viewed
the issue of adopting an arrangement that would provide low-
level radioactive waste generated in foreign countries access
to the region for disposal at the EnergySolutions facility in
Clive, Utah.
As illustrated in the testimony of Mr. Slosky from the
Rocky Mountain Compact, when EnergySolutions applied to the NRC
for an import license for waste from Canada--because we have
had some waste come into this country, some small amounts in
the past--it was listed as only needing to be processed at the
Bear Creek facility. In fact, the waste was processed, then it
was redesignated as U.S. waste, and it was openly stored in
Utah without the knowledge of the Northwest Compact or without
the knowledge of the State of Utah.
So we can talk about some foreign waste that has coming in
and stayed here. The compact and the State didn't even know it
happened, and those were all pretty small amounts. Now we are
talking about a lot and greater volume of radioactive waste.
You will hear some discussion in the hearing today about do
we have enough capacity in this country. You will hear
reference to a GAO study from 2004. We talked about this in the
hearing last year. They took one data point and projected it
out from there. It happened to be a low year.
You know, when I was a first-year MBA student, a professor
tricked all of us with a case where he had us take some data,
and we projected it out. Then he pointed out the other data,
and we all learned a good lesson. The GAO made that same first-
year MBA mistake. I hope we don't when we look at the amount of
capacity that we have got.
Again, I don't see a lot of other States lining to create
new sites to take this waste. In last year's hearing,
EnergySolutions just randomly came to the agreement to self-
limit foreign waste to a storage capacity of 5 percent. But, at
the same time, in the testimony from the company today, they
are suggesting they want to increase the license capacity of
the site when just 2 years ago they voluntarily said to our
Governor, we won't apply for an application to increase our
site. So these voluntary commitments may not have a lot of
meaning.
Mr. Chairman, I know my time has expired. I have a written
statement that I would like to submit for the record. I do
thank you for the hearing, and I look forward to the questions.
[The prepared statement of Mr. Matheson follows:]********
COMMITTEE INSERT ********
Mr. Markey. We thank the gentleman very much. His time has
expired, and perhaps he could give the name of that professor
so that we could send him over to the Congressional Budget
Office so that they could have his insight as to how long-term
projections are made.
By unanimous consent, I would request that the gentleman
from Tennessee, who is cosponsor of the legislation with Mr.
Matheson, Mr. Gordon, be allowed to participate in this hearing
and to be recognized for making an opening statement.
Without objection, so ordered.
The gentleman is recognized for an opening statement.
OPENING STATEMENT OF HON. BART GORDON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TENNESSEE
Mr. Gordon. Thank you, Mr. Chairman, for that request and
also thank you for having this hearing today.
When the Nuclear Power Waste Policy Act and the low-level
waste policy amendments were passed in the 1980s, the United
States was facing a critical problem: Where were we going to
put low-level radioactive waste generated by our own nuclear
power plants?
We established a compact system under which the States in
each compact would be responsible for establishing disposal
sites and taking care of their own waste. As the legislative
history clearly shows, a witness from the NRC testified in a
hearing before this subcommittee last year, no one anticipated
that other countries would try to dump their radioactive waste
in the United States.
The NRC stated when it drafted regulations allowing the
importation of nuclear waste that it did not anticipate--and I
quote--appreciable U.S. import or export traffic in low-level
radioactive waste. And that was true for more than a decade
until EnergySolutions applied for the NRC license in 2007 to
import 20,000 tons of low-level radioactive waste from Italy
for treatment in Tennessee and disposal at the site in Utah.
Italy does not have a disposal site, nor has it been successful
in obtaining public approval for a future site.
Italy is the not the only country that doesn't have a waste
site or enough capacity for its waste. Britain is running out
of room and looking for places to put its waste. Germany,
Canada, Belgium, Switzerland, Mexico, and Denmark don't have
sites either.
If I were a public official in Italy or Britain, I would
jump at the chance to send my low-level waste to the United
States and be rid of the responsibility. But no one can claim
that this is in the best interest of the United States to take
on decades of responsibility for another country's nuclear
waste and also taking away the incentive for those countries to
do the responsible thing by providing storage for their own
waste. So we should ask why the United States needs Italy's
waste, which has been safely stored on site for over 20 years
and can safely be stored for another 20 years or more or the
waste of any other country when EnergySolutions plans overseas
disposal sites.
As it now stands, the NRC is powerless to prevent foreign
import of waste even as space for our domestic waste dwindles.
It is clear that only a legislative prohibition will stop the
wholesale importation of foreign nuclear waste into the United
States. The RID Act provides the prohibition, while allowing
the President to make exceptions if it is in the national
interest.
The United States is the only country in the world that
allows imports and disposals of low-level radioactive waste
from other countries. The fact is, we have limited space for
this kind of waste; and it should be reserved for domestic
industries that generate it--medical facilities, universities,
research labs, and utilities.
There are 36 States with no other alternative but to ship
their waste to Utah. Michigan, Texas, and 34 other States have
no other place. That is what the RID Act will do.
By banning the importation of radioactive waste for
disposal, we also send the world the right message. If you are
going to produce low-level radioactive waste, you are going to
have to build the necessary facility to dispose of it.
And, finally, with all due respect to my friend from
Michigan, this is not an anti-nuclear waste bill by any means.
It is a pro-domestic nuclear industry. Michigan, as you pointed
out, those two facilities near you, if the facility in Utah
runs out of capacity, there will be no place for them to send
their waste.
Thank you, Mr. Chairman.
Mr. Markey. I thank the gentleman.
The gentleman's time has expired.
We will now turn to our witnesses.
STATEMENTS OF MARGARET M. DOANE, DIRECTOR, OFFICE OF
INTERNATIONAL PROGRAMS, U.S. NUCLEAR REGULATORY COMMISSION;
LEONARD C. SLOSKY, EXECUTIVE DIRECTOR, ROCKY MOUNTAIN LOW-LEVEL
WASTE BOARD; AND VAL CHRISTENSEN, PRESIDENT, ENERGYSOLUTIONS
Mr. Markey. Our first witness is Margaret Doane, the
Director of the Office of International Programs at the Nuclear
Regulatory Commission. This office provides overall
coordination for the NRC's international activities.
Ms. Doane, whenever you are ready, please begin.
STATEMENT OF MARGARET M. DOANE
Ms. Doane. Good morning, Mr. Chairman and members of the
subcommittee.
My office is responsible for reviewing import and export
license applications and issuing licenses pursuant to the NRC's
import and export licensing regulations. My focus today will be
on the NRC's regulatory framework for licensing the import of
low-level radioactive waste. I would like to thank you for
providing the NRC with the opportunity today to discuss our
import licensing process.
As requested, we provide prepared testimony for the record
that describes in detail the NRC's regulatory framework for
licensing the import of low-level radioactive waste. At this
time, I will highlight key elements of that testimony.
The NRC reviews import and export license applications
against the criteria defined in its regulations. Specifically,
the NRC bases its licensing actions on the following three
criteria: One, the proposed import will not be inimical to
common defense and security; the import will not constitute an
unreasonable risk to public health and safety; and an
appropriate facility has agreed to accept the waste for
management and disposal.
The NRC has exclusive jurisdiction within the United States
for granting or denying licenses to import foreign radioactive
waste. The NRC determines whether to issue an import license
for radioactive waste based on its own health and safety and
common defense and security evaluation.
The NRC's evaluation is formed after consulting with the
executive branch through the Department of State, the
applicable host State, and the applicable low-level radioactive
waste compact and consideration of public comments. The NRC
consults with the applicable host State regulatory officials
for their health and safety views on the proposed import and to
confirm that the proposed import of radioactive waste is
consistent with the State-issued possession license for the
disposal facility.
Likewise, the NRC consults with the applicable low-level
radioactive waste compact commission to determine whether the
compact will accept out-of-compact waste for disposal in a
regional facility. To ensure that no radioactive waste imported
into the United States becomes orphaned waste, the NRC will not
grant an import license for waste intended for disposal unless
it is clear from these consultations that the waste will be
accepted at an applicable host agreement State and, where
applicable, the low-level radioactive waste compact.
As requested by the subcommittee, I would like to turn to
questions regarding disposal capacity for low-level waste in
the United States.
In the short term, the NRC has not identified any capacity
issues with regard to Class A disposal at EnergySolutions'
Clive, Utah, facility. The agency as a regulator would have the
authority to address future domestic disposal capacity issues
if there were a public health and safety or common defense and
security concern. There do not appear to be any such concerns
about capacity for disposal of Class A material, which has been
the classification for all waste import cases today.
In reviewing import licensing applications, our review
focuses on whether there is an appropriate facility that has
agreed to accept the waste for management or disposal. In
making its determination, we obtain the views of the affected
low-level waste compact States and the executive branch.
The pure policy question of whether, as a general matter,
foreign waste should be permitted to take up space in U.S.
disposal facilities would necessarily involve interests that
are beyond the traditional role of a regulator to consider.
These would include foreign and interstate commerce,
entrepreneurial interests, the State's concerns and
expectations under the Low-Level Radioactive Waste Policy Act.
However, the NRC would be pleased to share its views on the
effect of the proposed H.R. 515 on import and export licensing
and contribute its technical expertise to those decision makers
that are situated to decide the questions the draft legislation
involves.
In conclusion, the NRC's role in evaluating a low-level
waste import application is a regulatory one, limited to
ensuring that the proposed import can be accomplished safely
and securely and in accordance with all applicable legal
requirements.
Mr. Chairman and members of the subcommittee, this
concludes my statement; and I would be happy to answer your
questions.
[The prepared statement of Ms. Doane follows:]********
INSERT 1-2 ********
Mr. Markey. Thank you, Ms. Doane, very much.
Our second witness is Leonard Slosky, the Executive
Director of the Rocky Mountain Low-Level Radioactive Waste
Board. This board is responsible for implementing the Rocky
Mountain Low-Level Radioactive Waste Compact.
Mr. Slosky, welcome. Whenever you are ready, please begin.
STATEMENT OF LEONARD C. SLOSKY
Mr. Slosky. Thank you, Mr. Chairman and members of the
subcommittee. I appreciate the opportunity to present our views
with you today.
On a personal note, I would like to note that it is nice to
be back here, as I appeared before the chairman's subcommittee
in 1985 when the compacts were first going through Congress. So
I have been rejuvenated since then and am glad to return.
While I am officially representing the Rocky Mountain
Board, I have discussed these issues with the Northwest
Compact----
Mr. Markey. Were you a witness on this subject at that
time?
Mr. Slosky. I am afraid so.
Mr. Markey. Unbelievable. So you and I----
Mr. Slosky. We go way back.
Mr. Markey. We go way back. Wow, yes. I remember those
hearings.
Mr. Slosky. That won't count against my time?
Mr. Markey. No, it will not count.
Mr. Slosky. While I am officially representing the Rocky
Mountain Compact today, I have discussed these issues with the
Northwest Compact and they are in agreement with this
testimony.
The primary message that I would like to leave with you is
the importance of the compacts exclusionary authority. That is,
the authority of the compacts to control what waste can be
brought into and taken out of the compact.
In 1979, the Governors of the three States of low-level
waste disposal facilities stated that they no longer were
willing to carry the entire burden of disposing of the Nation's
low-level waste. To resolve this crisis and to keep the
existing facilities open, the States proposed to Congress that
they be responsible for low-level waste within their regions in
exchange for the authority to exclude waste from outside their
regions.
As you know, this led to the passage of the 1980 Act. The
1985 Federal Act embodied a compromise that allowed Congress to
consent to the original seven compacts in return for the three
sited States and compacts agreeing to keep their disposal
facilities open for another 7 years. The consent of Congress
was necessary for the compacts' authorities over interstate
commerce to be effective.
One of the primary purposes of the 1980 and 1985 Acts was
to achieve greater equity in low-level waste disposal. When
compacts were drafted and during congressional consent, there
was no expectation that foreign low-level waste would be
disposed of in these sites. However, 10 compacts have been
enacted as Federal law, and all contain exclusionary authority
over outer region waste.
It is inconceivable to me that Congress intended to
authorize the compacts to exclude waste from States outside
their regions but not from foreign nations. It is the
exclusionary authority of the compacts that allows the existing
disposal facilities to continue to operate and enables new
facilities such as the WCS facility in Texas, which has
recently been licensed and will soon begin construction, to
come about.
As no State is willing to host a disposal facility unless
it has authority through a compact to ensure that it does not
become the dumping ground for the Nation's or the world's low-
level waste, the States and compacts do not object to foreign
waste being imported for treatment or recycling so long as the
resulting waste has a viable disposal pathway and is not
reattributed as domestic waste. However, the threat of foreign
waste disposal places the entire compact system and the
existing and planned low-level waste disposal sites in
jeopardy.
Utah would not have licensed the Clive facility if it did
not believe that it had the ability through the compact to
control out-of-region waste. Under the Northwest Compact, no
facility located in a member State may accept out-of-region
waste without prior approval of an arrangement by the Compact
Committee. The Compact Committee adopted a clarifying
resolution that the existing arrangement does not provide
access for foreign waste but does provide access for waste from
throughout the United States.
This is not a NIMBY issue. It is a matter of national
importance. As stated by Utah in a hearing last year on similar
legislation, the State of Utah has done its fair share and more
in disposing of most of the Nation's low-level waste.
In terms of the litigation that is ongoing, the status has
been briefly reported, I would note that the amicus briefs in
support of the appellant's position have been filed and that
this extraordinary coalition of compacts and States is due to
the far-reaching implications of the district court's decision.
While the litigation began over the import of Italian waste,
the decision is much broader and will affect every low-level
waste compact. If the district court's decision stands, the
compact system could be destroyed because of a very narrow
interpretation of the compact.
It is interesting to note that eight of the ten low-level
waste compacts in the Nation are either defendants or amici in
this litigation in addition to the councils, State governments,
and the State of New Mexico.
[The prepared statement of Mr. Slosky follows:]********
INSERT 1-3 ********
Mr. Markey. Thank you very much.
Who did you represent in 1985, Mr. Slosky?
Mr. Slosky. I represented the Rocky Mountain Compact, also.
Mr. Markey. That is unbelievable.
The third witness is Val Christensen. He is the President
of EnergySolutions, a nuclear services company headquartered in
Salt Lake City, Utah.
Mr. Christensen, welcome. Please begin.
STATEMENT OF VAL CHRISTENSEN
Mr. Christensen. Thank you, Mr. Chairman.
Mr. Chairman and members of the subcommittee, I am grateful
for the opportunity to appear today to provide testimony on
this very important issue.
As has been mentioned, EnergySolutions is headquartered in
Salt Lake City, Utah. We are a world leader in environmental
cleanup and providing a wide range of technical support
services to the nuclear industry. We also provide critical
nonproliferation services under the Global Threat Reduction
Initiative.
I would like to address some of the concerns about safety,
because that is the underlying concern when we talk about
importing nuclear waste.
We have been safely disposing of Class A low-level nuclear
materials from within the U.S. and from abroad,
internationally, for over 9 years. These materials include shoe
covers, lab coats, cleaning cloths, paper towels, and other
kinds of materials that are used in areas where radioactive
materials are present.
Class A low-level radioactive waste contains the lowest
concentration of radiation in the low-level waste
classification scheme. To put it in perspective, exit signs and
smoke detectors that you find in your home have radioactive
sources that are more radioactive than the Class A designation
and are not allowed to be disposed of in our Clive facility.
Both the State and Federal regulators have concluded that
the processing and disposal of Class A low-level radioactive
waste poses no health or safety issues. It is important to note
for Congressman Gordon from Tennessee that no internationally
generated waste would ever be disposed of or orphaned in
Tennessee. We have never processed international material in
Tennessee that was nonconforming and had to be returned to the
generating country.
We and others have been, as I mentioned, importing foreign
waste for many years from countries such as Germany, the U.K.,
Mexico, Canada, and Taiwan. And I would note that the NRC has
issued import licenses that specifically identify the Northwest
Compact disposal site in Richland, Washington, as the final
resting place for some of that international waste; and I can
provide examples to you off the record. There really is no
domestic disposal capacity issue in the United States.
Reference was made to the GAO testimony. The GAO noted that
Class A waste volumes have declined by two-thirds, principally
because the DOE has completed several large cleanup projects.
This wasn't a 1-year event. The trends are going down. Both
commercial and Federal disposal volumes are decreasing.
Additionally, since May of 2008, a license was issued for the
construction of another waste disposal site in Texas.
Although the GAO and the NRC have testified that there is a
domestic capacity issue with respect to Class B and Class C
waste, they have concluded that there is no Class A disposal
capacity issue. We need to remember that the Clive facility is
licensed to take only Class A waste.
The final point I wish to make with respect to the capacity
issue is that the 5 percent volunteer license amendment that we
have presented publicly relates to 150 million cubic feet of
remaining licensed capacity, and we have also made the 10-year
limit publicly a part of our license amendment.
Now, with respect to the compact litigation, the court's
ruling is very narrow. It simply concluded that the Clive
facility, which was never constructed or intended to be a
compact disposal facility outside of the compact scheme, but
the court emphasized that compacts still have the authority to
restrict waste coming domestically or internationally into
their compact facility. The Clive facility is simply not a
compact facility. It is privately owned, and there are no other
facilities like it. So the precedent that people are concerned
about from the court's ruling simply has no application on any
other facility.
All compact facilities, according to the judge's ruling,
continue to be able to exclude waste and control waste within
the compact system. Again, there is ample disposal capacity.
The court's ruling does not interfere with the compact system.
It does not turn America into a dumping ground. It is hard to
conceive that 4.3 acres in one location would turn the United
States into the dumping ground for the world.
We are also concerned that this bill would violate the
spirit of the administration's policy of nuclear cooperation as
evidenced by the U.S.-Italian joint declaration referred to
earlier, which was signed by Secretary Chu and his Italian
counterpart, which advances cooperation in the nuclear sector,
including advanced waste treatment and disposal technologies.
We believe the proposed legislation would prevent American
companies from playing an international role in the global
nuclear industry largely based on perceptions rather than on
facts and sound science.
I am happy to take any questions. Thank you.
[The prepared statement of Mr. Christensen
follows:]******** INSERT 1-4 ********
Mr. Markey. Thank you, Mr. Christensen, very much.
Now we will turned to questions from the subcommittee.
Mr. Slosky, you are an expert on the compact system. You
have spent your life working on it. Are you concerned that if
Utah and the Northwest Compact are forced to take the Italian
waste that the compact system itself would be damaged?
Mr. Slosky. Yes, I am very much so concerned.
Mr. Markey. Could this lead to other States refusing to
open low-level waste disposal sites?
Mr. Slosky. Yes, I believe it could. The ruling from the
court----
And let me first give you a disclaimer. I am not an
attorney; and since it is ongoing litigation, I am not going to
discuss the merits of the case, but I am happy to discuss its
implications. The implication is that there could be a very
detrimental effect on the development of any new facilities in
the U.S. because it will be uncertain under this ruling whether
the compacts in which those facilities would be located would
have exclusionary authority or not.
Mr. Markey. So this could send us back to 1980 before we
passed the legislation out of this committee.
Mr. Slosky. Yes, sir.
Mr. Markey. Let me turn to you, Ms. Doane.
Has the NRC ever denied an import application for low-level
waste because the importation would pose an unreasonable risk
to the common defense and security?
Ms. Doane. No. I don't believe we have ever denied an
application because of common defense and security concerns.
Mr. Markey. You were listing the reasons that you could
reject. So you have never rejected?
Ms. Doane. We have not, no.
Mr. Markey. Has the NRC ever denied an import application
for low-level waste because it would pose an unreasonable risk
to the public health and safety?
Ms. Doane. Yes. We have returned without action
applications that have come in where they haven't been able to
satisfy us that public health and safety would be protected.
Mr. Markey. Were those applications ultimately modified
that made them acceptable? Or was it just a flat-out rejection?
Ms. Doane. Some were modified, but others were, no, didn't
submit them again. We raised a lot of questions, and they
weren't resubmitted.
Mr. Markey. So how many applications have been denied over
the years?
Ms. Doane. We have returned without action I would say
maybe five or so. There might be more, but offhand that is what
I would say.
Mr. Markey. And how many actual denials have you ever
issued?
Ms. Doane. I don't believe we have actually denied them.
Because, in those cases, that is the same effect. The return
without action has the same effect. We return them with what
they would have to do to put them back in, and they aren't
returned. So if they can't meet the request that we had, we
return them without action. So it has the exact same effect as
a denial.
Mr. Markey. So it is rarely used, though?
Ms. Doane. The return without action is rarely used?
Mr. Markey. Yes.
Ms. Doane. It is more rare now. It was in the beginning.
After the 1995 rule where we required licenses, it was more
common. It is getting less common as people start to understand
the regulations. They don't come in where they know they are
not going to meet them.
Mr. Markey. So if the regional compacts do not have the
ability to say no and the NRC very rarely says no, then it is
unlikely that there would be many instances where low-level
nuclear waste would be blocked from coming into our country.
Ms. Doane. The regional compacts can say no over the
facilities that they have control. And, in fact, in one of the
first cases that we had, the applicant was unable to show that
Barnwell would accept the waste, and that was the reason for
their return without action.
Mr. Markey. Now let me go over to you, Mr. Slosky. Do you
agree with her that it will have no impact on the compact
States?
Mr. Slosky. No, I do not agree with her.
Mr. Markey. Could you expound on your answer, please?
Mr. Slosky. Well, I think in looking at the NRC regs it is
unclear to me what the role is of the States and compacts in
the NRC decision making. It has a consultation provision, but
it is not explicit in the regulations if the States and
compacts, as in this case, comment back that the waste is not
acceptable what the NRC does with that consultative
information.
Mr. Markey. The Chair's time has expired. The gentleman
from Michigan, Mr. Upton, is recognized.
Mr. Upton. Thank you, Mr. Chairman.
The question that quickly comes to mind is, Mr. Slosky, how
does the storage of only 4 acres--in this particular case, the
Clive, Utah, has what, 640 acres, is that right, Mr.
Christensen?
Mr. Christensen. Yes, sir.
Mr. Upton. How does an agreement to limit it to only 4.3
acres undermine the compacts across the rest of the country?
Knowing that that is it. The stop sign is up. Put it in the
amendment. The courts have said it is oK up to this point and
waiting for an appeal which--see what happens.
Mr. Slosky. The reason it has large implications is the
court's ruling goes well beyond 4 acres. The court's ruling
undermines the fundamental authority of the compacts.
Mr. Upton. But this is a private--I mean, this is a private
facility, right?
Mr. Christensen, do you want to comment on that?
Mr. Christensen. As I mentioned, the court's ruling is
narrow. There aren't any other facilities in the United States
like the Clive facility, and the court went on to emphasize
that compacts retain their authority under the Low-Level
Radioactive Waste Policy Act to exclude waste from the compact
facilities and to control the waste within the compact borders.
Mr. Slosky. Can I respond?
Mr. Upton. Sure.
Mr. Slosky. I would just point out that the WCS facility in
Texas that recently received a license and is about to begin
construction is also a privately owned and privately operated
low-level waste site but is intended to serve the Texas
compact. But, under the court's ruling, the exclusionary
authority of the Texas compact over that facility could also be
brought into question.
Mr. Upton. Mr. Christensen, do you want to respond?
Mr. Christensen. Yes. I am a lawyer by training, so I don't
want to get into too much technicality on this. But the WCS
facility is a compact facility and would be controlled by the
compact board in the State of Texas, and the court ruling would
have no impact whatsoever on the Texas compact authority over
the WCS facility. There is no other facility like the Clive
facility, which is outside of the compact system.
Mr. Upton. Thank you.
Ms. Doane, how many waste import licenses has the NRC
actually granted over the years?
Ms. Doane. Fourteen.
Mr. Markey. And you have granted the import license to
EnergySolutions, is that right?
Ms. Doane. Other import licenses, yes.
Mr. Upton. And are they currently importing waste pursuant
to that license? Were you are you aware of any violations?
Ms. Doane. No, we are not aware of any violations.
Mr. Upton. Mr. Christensen, does the Clive facility have
enough capacity to meet the disposal requirements in the
domestic nuclear industry and other customers?
Mr. Christensen. We do. We have remaining about 140 million
cubic feet, which for our operational purposes is adequate and
projected to go out to about 30 years. That includes using 5
percent of that capacity for international waste. We certainly
have--we have other capacity that is not yet licensed that is
accessible through the licensing process if capacity ever
became a national issue.
Mr. Upton. And there is no real difference, right, between
Class A waste between different countries, right? It is, in
essence, the same.
Mr. Christensen. No, sir, there isn't. The NRC has
concluded that there is no difference between Class A low-level
waste coming from domestic sources and from international
sources.
Mr. Upton. And, Mr. Slosky, at least in your opinion, we
haven't seen any violations, right, in the Clive facility. I
mean, are you aware of any trouble that has been there at all?
Mr. Slosky. Well, there are, on occasion, regulatory
violations that are assessed against the company by the State
of Utah. But, for the most part, the facility is in compliance
with the agreement of State regulations.
However, that is not the issue. The issue is a policy issue
of whether it is appropriate to manage foreign nations' waste
in this country. We know we have the technical capability. We
know the disposal facilities can accept the waste from a
technical standpoint. The issue is really a policy issue.
Mr. Upton. I yield back. Thank you.
Mr. Markey. The gentleman's time has expired.
The Chair recognizes the gentleman from Utah, Mr. Matheson.
Mr. Matheson. Thank you, Mr. Chairman.
I don't know if there was ever a citing of a violation. But
when waste went to Bear Creek and then went to the Utah
facility and neither the State of Utah nor the Northwest
Compact were ever made aware of it, I think that was a
violation. Just for what that is worth.
Mr. Christensen. Could I respond to that?
Mr. Matheson. No, I have got only 5 minutes; and I am going
to my questions.
Mr. Slosky, when the compact system was being drafted and
created in the 1980s, was there any discussion of foreign waste
importation and storage at low-level radioactive waste
facilities?
Mr. Slosky. I can recall none, other than discussions with
the Department of Defense in terms of returning to the U.S.
U.S.-origin materials the Department of Defense utilized
abroad.
Mr. Matheson. And I would note that the legislation as
drafted allows for foreign waste created at U.S. Department of
Defense facilities overseas to return to this country. It has
an exception for that type of waste.
Was there any expectation that foreign waste is considered
out-of-region waste during that discussion?
Mr. Slosky. We always considered foreign waste to be out of
region, yes.
Mr. Matheson. Mr. Slosky, in your testimony, you said
foreign waste disposal is one of the most serious threats to
the compacts in its 25-year history. Can you explain that
statement?
Mr. Slosky. Yes. The whole history of the compact system,
going back to 1980 and really to 1979, was the State's desire
to be able to control the flow of waste to their sites. So if
you look at South Carolina, Washington State, Nevada at the
time we had a disposal site there, and now Utah and Texas, the
issue is being able to control the waste that goes to those
sites. And if we lose control of foreign waste going to those
sites, then the system is undermined, and it is very likely
that all of those sites in time will close to all generators.
Mr. Matheson. We have heard about the issue of the nuclear
cooperation agreement with Italy. What would happen if we start
importing waste from all the countries we have nuclear
cooperation agreements with? We have agreements with India,
Japan, United Arab Emirates, Jordan, most of Europe, China. It
seems to me that there is a significant volume out there if you
start expanding it out there to all those states. Is that a
threat to the compact system?
Mr. Slosky. I believe it is.
Mr. Matheson. Since the compact system was intended to
allow States to self-manage low-level radioactive, do you think
any State or compact would have authorized the creation of a
new low-level radioactive waste site if the State thought it
did not have the authority to regulate its site?
Mr. Slosky. No, they would not. In fact, Utah has stated
that they would have licensed Clive for low-level waste if they
did not believe they had the authority through the compact to
control the flow of all out-of-region waste, including foreign
waste.
Mr. Matheson. Mr. Slosky, EnergySolutions has told us that,
as a result of the district court ruling in Utah earlier this
year, the company is not regulated by the Northwest Compact
because it is not a regional disposal facility. In your
testimony you said the district court completely disregarded
explicit language in the Northwest Compact that was approved by
Congress as Federal law. Can you expand on this point?
Mr. Slosky. Yes. The Northwest Compact does not use the
term ``regional facility''. The Northwest Compact bars any
facility and any of their member States from receiving low-
level waste without the approval of the compact. That language
was disregarded, and the court reverted to the much more narrow
definition of regional disposal facility.
Mr. Matheson. Mr. Slosky, 2 years ago, the Utah State
legislature moved to enact legislation. They were working on
enacting legislation that would have removed local government
legislative and gubernatorial approval for expansion of the
Clive site.
As was noted in the September, 2007, low-level radioactive
waste management report, former Governor Huntsman threatened to
notify the Northwest Compact to limit the volume of waste that
can be disposed to the current levels. In response, Governor
Huntsman and EnergySolutions reached an agreement that the
company would withdraw its application for additional disposal
capacity and the Governor agreed to refrain from seeking to
limit disposal capacity at the facility. Two years later, it
now seems, based on this court ruling, that EnergySolutions
does not believe it is under the authority of the compact
system. So what are your thoughts about this?
Mr. Slosky. Well, this has been a little bit of a surprise.
Because for, I believe, 15 or 17 years EnergySolutions has been
operating under the compact system, appearing at the compact
meeting, submitting reports, coming to the committee and
requesting approval to accept waste. Then suddenly, when this
dispute arose, EnergySolutions took the position that they are
not actually regulated by the compact.
Mr. Matheson. Last question, Mr. Chairman. I know my time
is running out.
Is this a question that they are saying, the Northwest
Compact has the authority to regulate the disposal capacity but
not the material which is disposed there? Is there a
distinction they are making in that sense?
Mr. Slosky. Well, there is a distinction between what the
agreement states the State the Utah regulates and what the
compact regulates. The State of Utah regulates the health and
safety and capacity of the site. The Northwest Compact
regulates where waste can come from to the site.
Mr. Matheson. Thank you, Mr. Chairman. My time has expired.
Mr. Matheson. The gentleman's time has expired.
The gentleman from Tennessee, Mr. Gordon, is recognized.
Mr. Gordon. Thank you, Mr. Chairman.
Mr. Christensen, going back to your statement, you started
off by saying that the major issue here was safety. Yet I will
point out that no one here has raised safety as an issue. One
major issue, though, is the capacity. We might have different
arguments about how long it can be there, but there can be no
argument that capacity is finite.
Now also in your testimony you said that allowing Italian
waste to be dumped in the U.S. would violate the spirit of the
U.S.-Italian joint declaration concerning industrial and
commercial cooperation in the nuclear energy section.
Let me point out that the United States has a similar
agreement with 40 other States. So by inference then you are
saying that we would break our agreement in the spirit with 39
other countries. So, to me, that does two things: One, it opens
a big door for those countries to ship their radioactive waste
here; and, secondly, it sends a message to them that they don't
have to be responsible, that they can build whatever they want
and not look at taking care of it.
So here are my questions for you: Does EnergySolutions have
an enforceable contract with the Italians to dispose of the
waste or suffer damages regardless of whether it gets a license
from the NRC?
Mr. Christensen. No.
Mr. Gordon. Hmm. You say you are a lawyer, right?
Mr. Christensen. I am.
Mr. Gordon. Are you a lawyer of the company?
Mr. Christensen. I was formerly general counsel of the
company and am currently president of the company.
Mr. Gordon. So were you general counsel on June 19?
Mr. Christensen. Yes.
Mr. Gordon. All right. I am trying to understand this.
In a formal submission to the NRC on June 19, 2009, in
response to the NRC's May 20, 2009, order for comment on how to
proceed on your license application, EnergySolutions stated--
and I assume this is what you wrote--EnergySolutions stated
that a delay in issuing this license--and I quote--would cause
EnergySolutions substantial economic harm because it is unable
to perform work under its contracts for waste without the
requested license.
Now can you sort of help me on this?
Mr. Christensen. Well, your earlier question was whether we
would be exposed to damages----
Mr. Gordon. No, my question was very specific. My question
was this: Does EnergySolutions have an enforceable contract
with the Italians to dispose of its waste or suffer damages
regardless of whether it gets a license from the NRC? That was
my question. Your answer was, as I recall, no.
Mr. Christensen. That is correct. We don't have a contract
concluded with the Italian Government or the Italian sources
that would expose us to damages if it weren't fulfilled.
Mr. Gordon. Then why did you write to the NRC that if you
did not get that license you would, and I quote, would cause
EnergySolutions substantial economic harm because it is unable
to perform under its contract for the waste without the
requested license. Page 8 on June 19, 2009, submission to the
NRC.
Mr. Christensen. I would have to go back and look at it,
but we would suffer economic harm by not being able to fulfill
contracts that we are in the process of negotiating. We don't
have signed final contracts----
Mr. Gordon. OK. So just help me here. Help me here. This is
what you wrote to the NRC, a Federal agency, that if you did
not get the license you would cause EnergySolutions substantial
economic harm because it is unable to perform work under its
contracts for this waste without the requested license.
Mr. Christensen. That is right.
Mr. Gordon. So did you have any contracts on June the 19th?
Mr. Christensen. We didn't have any final, binding
contracts.
Mr. Gordon. Then why would you tell a Federal agency--this
is what he wrote to you. Were would you write to this lady in a
Federal capacity that you did have contracts?
Mr. Christensen. Because contract negotiations were under
way, and the contracts we are referring to are the potential
contracts with the Italian Government which we would not be
able to secure or perform without the license.
Mr. Gordon. Well, I will let that go, but NRC may not.
Now, Mr. Slosky, let me ask you something. Is it true that
when EnergySolutions said they were going to bring this Italian
waste into Utah that the Governor said no and then
EnergySolutions sued the State?
Mr. Slosky. Actually, what transpired is that the Governor
of Utah instructed his member on the Northwest Compact to vote
against bringing the waste in; and since Utah is the host State
they have essentially a veto power over the compact's agreement
to bring any waste in.
Mr. Gordon. So EnergySolutions sued them to be able to do
this?
Mr. Slosky. Yes. Actually, shortly before the meeting in
the Northwest Compact, EnergySolutions filed suit in Federal
District Court.
Mr. Gordon. And, Ms. Doane, if I could, is it proper to
summarize your testimony or portions of your testimony by
saying that it really is a policy issue of whether radioactive
waste should be brought into this country or not?
This is not NRC. You don't have the authority other than on
the safety issues to say whether it can come in or not. So if
we are going to allow the United States to be the only country
in the world that would accept radioactive waste from other
nations then a policy decision has to be made by the Congress.
Ms. Doane. That is right.
Mr. Gordon. Thank you.
Mr. Markey. That completes the first round of questions
from the subcommittee. Are there members seeking recognition
for the purpose of asking questions on a second round?
The gentleman from Michigan.
Mr. Upton. Let me just ask unanimous consent. We were
originally going to have votes today, and they cancelled them
yesterday afternoon. So that is one of the reasons there are
only four of us here. I might just ask that all members of the
subcommittee may have the opportunity to submit written
questions within the next week or so and if you could respond
in a timely basis. I am not sure what the chairman----
Mr. Markey. Without objection, so ordered.
Mr. Upton. Thank you.
Mr. Markey. Other questions?
The gentleman from Utah is recognized.
Mr. Matheson. I have just got a couple more questions I
didn't get to ask.
Ms. Doane, I wanted to ask--one of the arguments made by
EnergySolutions is the NRC has already issued import licenses
to other companies and materials have been imported for several
years. Has the NRC ever previously approved a license to allow
for anything close to 20,000 tons of waste from a foreign
country?
Ms. Doane. No. Not this volume of ultimate disposal, no.
Mr. Matheson. I saw the table you included with your
testimony at the end of your testimony which lays out the
volumes of what have been allowed to come into this country. I
see five where the waste was ultimately disposed in this
country. All the rest have been processed here and then
returned back to the originating country; and all of them are
quite small, from my view, in terms of the volume. Is that a
fair statement?
Ms. Doane. The ultimate disposal volume, right.
Mr. Matheson. Last year when you testified before this
committee, I expressed a concern about the lack of regulatory
accountability for foreign-generated waste. At the time, you
indicated that the NRC does not currently have the authority to
prohibit the importation of nuclear waste, as you just had the
discussion with Mr. Gordon. Or you weren't here. It was----
Ms. Doane. Can I clarify that for the record?
Mr. Matheson. Sure.
Ms. Doane. We absolutely have the authority to reject waste
that would pose a health and safety issue, a common defense and
security issue.
Mr. Matheson. Yes, that is a correct statement. The
criteria you use to evaluate it are not whether or not it is
foreign waste or not; it is the issues you----
Ms. Doane. That is right.
Mr. Matheson. Thank you.
We have also heard that the company believes that neither
the State of Utah nor the Northwest Compact has the right to
prohibit this material from coming into the United States, and
you still believe you lack the authority to prohibit the waste
from coming into the United States based on simply where it
comes from.
Ms. Doane. That is right. Just based on its foreignness,
that is right.
Mr. Matheson. So it seems to me that no one has the
authority to make the call on whether or not foreign waste
should come from a regulatory standpoint. It is really--to
reiterate what Mr. Gordon said, this is a policy issue about
whether or not this country is going to allow this to happen.
Ms. Doane. Well, I won't speak for Mr. Slosky. I think the
compacts believe they do have the authority to keep waste out
because of its foreignness. So I won't speak to him. And if
they have control of a facility, as happened with the Barnwell
case, the very first case, and they say waste can't come in, we
would not have the third criterion met, which is that an
appropriate facility has agreed to accept the waste.
Mr. Matheson. Has the NRC done any additional work to
determine national disposal capacity for low-level radioactive
waste?
Ms. Doane. Not the--we haven't actually done the studies,
no.
Mr. Matheson. Is that an agenda item that is being
considered at NRC? Would it make sense to make a decision about
what our capacity is in terms of approving applications for
waste?
Ms. Doane. I probably shouldn't just hypothesize about
that, but where capacity issues could raise a health and safety
concern, then, yes, we look into them. But we look to the
proper authorities that also make those decisions.
Mr. Matheson. OK. Thanks, Mr. Chairman. I yield back.
Mr. Upton. Can I ask one follow-up question?
Mr. Markey. The gentleman is recognized for that purpose.
Mr. Upton. Since you all approved the import license--
right?
Ms. Doane. What import license?
Mr. Upton. I mean, you all gave the license to the facility
in Clive. Do you actually check with the State?
Ms. Doane. Well, we haven't approved the Italian. I know
that is not what you mean. But we haven't approved the Italian
import license. We have approved licenses in the past; and,
yes, we do check -
Mr. Upton. And you do check-- that is part of the
checklist----
Ms. Doane. Absolutely. The host States, the compacts, yes.
And our process is very public. We also publish all materials,
and we do get comments from other compacts that might be also
interested. We take all of that into consideration.
Mr. Upton. Thank you.
Mr. Markey. Are there other questions?
The gentleman from Tennessee.
Mr. Gordon. Just one last quick question to Ms. Doane.
Does EnergySolutions currently have pending import license
applications to bring radioactive waste in from Brazil and
Mexico?
Ms. Doane. There are two pending applications for Brazil
and Mexico. I know that one is of them is energy. The material
will ultimately go to the Clive, Utah, site. I am not sure they
are their applications.
Mr. Gordon. So that Mexico and Brazil have also asked to be
able to export to us some radioactive waste. It would wind up
in Utah; is that correct?
Ms. Doane. Applicants in the United States have applied to
get waste from, yes, Brazil and Mexico to ultimately have some
material disposed of in Clive, Utah.
Mr. Gordon. Thank you.
Mr. Markey. The gentleman's time has expired.
Other questions from members?
What we will do then is give each one of the witnesses 1
minute to summarize their position to the committee. In reverse
order from the original statements, we will begin with you, Mr.
Christensen.
Mr. Christensen. Thank you, Mr. Chairman.
Just to set the record straight with respect to the
contract issue, the company had signed memoranda of
understanding, which I don't--as a lawyer don't consider to be
the final definitive agreement on these--on the Italian
arrangement. There is no license and there is no contract at
this point in time, obviously; and I just---
Mr. Gordon. So are you going to amend your submission to
the NRC?
Mr. Christensen. No. The submission to the NRC is accurate.
The only other comment I want to make is that we have a
legitimate business that is lawful, it is highly regulated. We
deal with these materials safely, and it is critical to the
nuclear industry in the United States. The opportunity to
handle a small amount of international waste gives us an
opportunity to play on a global stage.
What is at stake here is not just Italian waste to be
disposed of in Utah. Helping them solve a small part of their
Class A low-level waste issues allows us to deal with site
selection and development in Italy and a lot of other technical
areas. We are competing with other foreign companies to
participate as a leader from America in the nuclear
renaissance. And we have as our secret sauce, in attempting to
compete with other world competitors, the ability to dispose of
a small amount of their waste, and it is limited.
Now, the 4.3 acres in the private site doesn't bar all of
the other compact facilities from excluding waste from their
facilities. So there is a finite amount that would come into
the United States. All the other compacts can exclude foreign
waste under the court's ruling and under the compact law.
Mr. Markey. The gentleman's time has expired.
Mr. Slosky.
Mr. Slosky. Thank you.
There is one issue that came up that I would like to
clarify. The implication was brought up that the compacts
believe that they have the authority to control waste coming
into the United States. That is not correct. The decision of
whether waste comes into the United States is a Federal
decision currently resting with the NRC. The compacts have the
authority to control whether it comes into their compact
regions. That is, I think, a very important distinction.
The other issue that we have touched on but may not have
been adequately focused on, and that is that there has been
foreign waste brought in in the past. It has been recycled or
processed, which is just fine, but the States are very
concerned, the compacts are concerned in cases where that
foreign waste gets reattributed and disposed of as domestic
waste and its foreign origin gets obscured.
The last thing I would like to say is that eight of the ten
low-level waste compacts representing 34 States are involved in
the EnergySolutions litigation, and I think that is ample proof
of the potential broad-reaching implications of that lawsuit.
Mr. Markey. Thank you, Mr. Slosky.
And Ms. Doane.
Ms. Doane. Thank you again for the opportunity to speak to
you this morning.
I think I just want to make sure that it is clear that the
third criterion that we consider about whether an appropriate
facility has agreed to take the waste considers the views of
the compacts and where that decision is left to rest and there
is not a facility--so not like the case here where there is
review going on--we would take that into consideration and
would not permit the waste to come in, and we have done so in
the past.
We do understand the roles and actually have a very good
working relationship with both the States and the compacts. We
depend on their advice on issues that they have--their
responsibility--they are responsible for. We depend on their
advice, and we do seek that out.
And I also want to point out we have a very public process
that takes a very deliberate and very considerate view of all
the technical, safety, common defense, and security issues that
would come up with these waste imports.
Mr. Markey. Thank you, Ms. Doane.
We thank each of our witnesses very much.
I ask that the members be given 5 business days to submit
any questions for the record.
Without objection, that will be ordered.
Again, we thank you. We welcome you back, Mr. Slosky. Good
to see you again. See you in 25 more years, and I will still be
here.
This hearing is adjourned. Thank you.
[Whereupon, at 10:45 a.m., the subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]