[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]







 THE DEPARTMENT OF ENERGY'S ROLE IN MANAGING CIVILIAN RADIOACTIVE WASTE

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

                                HEARING

                               BEFORE THE

                SUBCOMMITTEE ON ENVIRONMENT AND ECONOMY

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                              JUNE 1, 2011

                               __________

                           Serial No. 112-54










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                    COMMITTEE ON ENERGY AND COMMERCE

                           FRED UPTON, Michigan
                                 Chairman
JOE BARTON, Texas                     HENRY A. WAXMAN, California
  Chairman Emeritus                     Ranking Member
CLIFF STEARNS, Florida                JOHN D. DINGELL, Michigan
ED WHITFIELD, Kentucky                  Chairman Emeritus
JOHN SHIMKUS, Illinois                EDWARD J. MARKEY, Massachusetts
JOSEPH R. PITTS, Pennsylvania         EDOLPHUS TOWNS, New York
MARY BONO MACK, California            FRANK PALLONE, Jr., New Jersey
GREG WALDEN, Oregon                   BOBBY L. RUSH, Illinois
LEE TERRY, Nebraska                   ANNA G. ESHOO, California
MIKE ROGERS, Michigan                 ELIOT L. ENGEL, New York
SUE WILKINS MYRICK, North Carolina    GENE GREEN, Texas
  Vice Chairman                       DIANA DeGETTE, Colorado
JOHN SULLIVAN, Oklahoma               LOIS CAPPS, California
TIM MURPHY, Pennsylvania              MICHAEL F. DOYLE, Pennsylvania
MICHAEL C. BURGESS, Texas             JANICE D. SCHAKOWSKY, Illinois
MARSHA BLACKBURN, Tennessee           CHARLES A. GONZALEZ, Texas
BRIAN BILBRAY, California             JAY INSLEE, Washington
CHARLIE BASS, New Hampshire           TAMMY BALDWIN, Wisconsin
PHIL GINGREY, Georgia                 MIKE ROSS, Arkansas
STEVE SCALISE, Louisiana              ANTHONY D. WEINER, New York
BOB LATTA, Ohio                       JIM MATHESON, Utah
CATHY McMORRIS RODGERS, Washington    G.K. BUTTERFIELD, North Carolina
GREGG HARPER, Mississippi             JOHN BARROW, Georgia
LEONARD LANCE, New Jersey             DORIS O. MATSUI, California
BILL CASSIDY, Louisiana               DONNA M. CHRISTENSEN, Virgin 
BRETT GUTHRIE, Kentucky                   Islands
PETE OLSON, Texas                     
DAVID McKINLEY, West Virginia         
CORY GARDNER, Colorado                
MIKE POMPEO, Kansas                   
ADAM KINZINGER, Illinois              
H. MORGAN GRIFFITH, Virginia          

                                  (ii)


                Subcommittee on Environment and Economy

                         JOHN SHIMKUS, Illinois
                                  Chair

TIMOTHY F. MURPHY, Pennsylvania      GENE GREEN, Texas
  Vice Chairman                        Ranking Member
ED WHITFIELD, Kentucky               TAMMY BALDWIN, Wisconsin
JOSEPH R. PITTS, Pennsylvania        G.K. BUTTERFIELD, North Carolina
MARY BONO MACK, California           JOHN BARROW, Georgia
JOHN SULLIVAN, Oklahoma              DORIS O. MATSUI, California
CHARLES F. BASS, New Hampshire       FRANK PALLONE, Jr., New Jersey
ROBERT E. LATTA, Ohio                DIANA DeGETTE, Colorado
CATHY McMORRIS RODGERS, Washington   LOIS CAPPS, California
GREGG HARPER, Mississippi            JOHN D. DINGELL, Michigan
BILL CASSIDY, Louisiana              HENRY A. WAXMAN, California, ex 
CORY GARDNER, Colorado                   officio
JOE BARTON, Texas
FRED UPTON, Michigan, ex officio









                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. John Shimkus, a Representative in Congress from the State of 
  Illinois, opening statement....................................     1
    Prepared statement...........................................     2
Hon. John Barrow, a Representative in Congress from the State of 
  Georgia, opening statement.....................................     3
Hon. Joe Barton, a Representative in Congress from the State of 
  Texas, opening statement.......................................     4
Hon. Henry A. Waxman, a Representative in Congress from the State 
  of California, opening statement...............................     6
Hon. Gene Green, a Representative in Congress from the State of 
  Texas, prepared statement......................................    52

                               Witnesses

Hon. Shelley Berkley, a Representative in Congress from the State 
  of Nevada......................................................     8
Hon. Doc Hastings, a Representative in Congress from the State of 
  Washington.....................................................    11
Hon. Mike Simpson, a Representative in Congress from the State of 
  Idaho..........................................................    13
Mark E. Gaffigan, Managing Director, Natural Resources and 
  Environment, U.S. Government Accountability Office (GAO).......    15
    Prepared statement...........................................    17
Gregory H. Friedman, Inspector General, Department of Energy.....    36
    Prepared statement...........................................    37
Peter B. Lyons, Assistant Secretary for Nuclear Energy, 
  Department of Energy...........................................    46
    Prepared statement...........................................    48
Gary Hollis, Chairman, Nye County Board of County Commissioners, 
  Nye County, Nevada.............................................    73
    Prepared statement...........................................    76
    Answers to submitted questions...............................   145
Martin G. Malsch, Partner, Egan, Fitzpatrick, Malsch and 
  Lawrence, on behalf of the State of Nevada.....................    80
    Prepared statement...........................................    82
Greg R. White, Commissioner, Michigan Public Service Commission..    95
    Prepared statement...........................................    97
    Answers to submitted questions...............................   149
Christopher A. Kouts, Former Acting Director of Department of 
  Energy's Office of Civilian Radioactive Waste Management.......   106
    Prepared statement...........................................   108
    Answers to submitted questions...............................   153

                           Submitted Material

Letter of June 1, 2011, from Mr. Waxman and Mr. Green to Messrs. 
  Upton and Shimkus, submitted by Mr. Waxman.....................   129
Letter of May 27, 2011, from the Blue Ribbon Commission on 
  America's Nuclear Future to Messrs. Upton and Shimkus, 
  submitted by Mr. Green.........................................   124
Letter of May 31, 2011, from the Board of County Commissioners of 
  Clark County, Nevada to Mssrs. Shimkus and Green, submitted by 
  Mr. Green......................................................   127
Resolutions from Nevada counties, submitted by Gary Hollis.......   131

 
 THE DEPARTMENT OF ENERGY'S ROLE IN MANAGING CIVILIAN RADIOACTIVE WASTE

                              ----------                              


                        WEDNESDAY, JUNE 1, 2011

                  House of Representatives,
           Subcommittee on Environment and Economy,
                           Committee on Energy and Commerce
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 1:15 p.m., in 
room 2322 of the Rayburn House Office Building, Hon. John 
Shimkus (chairman of the subcommittee) presiding.
    Members present: Representatives Shimkus, Barton, 
Whitfield, Pitts, Murphy, Bass, Cassidy, Gardner, Dingell, 
Green, Inslee, Butterfield, Barrow and Waxman (ex officio).
    Staff present: Carl Anderson, Professional Staff Member; 
Gary Andres, Staff Director; Charlotte Baker, Press Secretary; 
Mike Bloomquist, Deputy General Counsel; Sean Bonyun, Deputy 
Communications Director; Todd Harrison, Chief Counsel, 
Oversight and Investigations; Cory Hicks, Policy Coordinator, 
Energy and Power; Katie Novaria, Legislative Clerk; Chris 
Sarley, Policy Coordinator, Environment and Economy; Peter 
Spencer, Professional Staff Member, Oversight; Kristin 
Amerling, Democratic Chief Counsel and Oversight Staff 
Director; Tiffany Benjamin, Democratic Investigative Counsel; 
Alison Cassady, Democratic Senior Professional Staff Member; 
Jocelyn Gutierrez, Department of Energy Detailee; and Caitlin 
Haberman, Democratic Policy Analyst.

  OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF ILLINOIS

    Mr. Shimkus. I call this hearing to order to recognize 
myself. This is a part of our ongoing effort at the committee 
to make certain we are providing safe and sustainable long-term 
storage of high-level spent nuclear fuel. Specifically today, 
we focus our attention on the part the Department of Energy 
plays and the process by which decisions have been made when it 
comes to a long-term repository.
    No matter if you support the continued use of nuclear 
energy or if you don't, we have a responsibility to deal with 
existing spent nuclear fuel and high-level waste materials from 
our Nation's defense complex. As we sit in this room, spent 
nuclear fuel from commercial power plants is piling up and 
remains scattered around the country in two-thirds of our 
States.
    It was always the determination that the Federal 
Government, not the individual states and not the utility 
companies, would take responsibility for the safe storage of 
spent fuel and other nuclear materials. After a careful search, 
we found a scientifically proven, geologically ideal site to 
store these materials that is on secure, federal property, in a 
remote desert, deep under Yucca Mountain.
    Now we are at a crossroads. Politics, not science, is 
driving the debate. It is time for us to decide if we will keep 
our end of the deal with the Nation's citizens by delivering 
exactly what they have been paying for all these years, or if 
we will waste ratepayers' and taxpayer money by failing to 
deliver on our end of the contract.
    Recently, the Government Accountability Office released a 
report examining the results of the Obama Administration's 
withdrawal of the Yucca Mountain license application. What GAO 
found was this unilateral decision comes at a cost of $15 
billion so far, 9.5 billion of it directly collected from every 
American's electricity bill. But the fleecing of taxpayers 
won't end there. GAO estimates taxpayers are already on the 
hook for $15 billion and an additional $500 million for each 
year the project is delayed beyond 2020. Meanwhile, the U.S. 
Treasury will be paying out taxpayer dollars, not ratepayer 
dollars, in judgments to utilities for DOE's breach of 
contract.
    Billions of dollars and over 30 years of research from our 
Nation's top scientists were jettisoned, not for technical or 
safety reasons, but as the GAO report stated, ``social and 
political opposition to a permanent repository, not technical 
issues, is the key obstacle.''
    When I visited Yucca Mountain last month, I heard firsthand 
the overwhelming support from local residents and officials 
from the seven surrounding counties. We will hear firsthand of 
that support today from those representing locals closest to 
Yucca Mountain, locals who raise families in that area and know 
it is safe. Those who would be directly affected the most took 
it upon themselves to ensure the safety of their children and 
grandchildren through an independent scientific investigative 
program, and what they found was high-level nuclear fuel could 
be stored at Yucca Mountain while keeping their water supply 
safe, a major concern, particularly for locals. They also know 
it has the ability to infuse desperately needed jobs both 
directly and indirectly related to the Yucca Mountain site.
    We must not let the political games stop us from keeping a 
promise to taxpayers. The licensing process for Yucca Mountain 
must legally continue so that we can give the American people 
the surety of a safe, centralized, permanent storage site for 
spent nuclear fuel.
    I want to thank all of our witnesses for being here today 
to give us their perspective on moving forward. I look forward 
to their verbal testimony and willingness to answer any 
questions members may have.
    [The prepared statement of Mr. Shimkus follows:]

                Prepared statement of Hon. John Shimkus

    I call this hearing to order and recognize myself for 5 
minutes. This is part of our ongoing effort at the committee to 
make certain we are providing safe and sustainable long term 
storage of high level spent nuclear fuel. Specifically today we 
focus our attention on the part the Department of Energy plays 
and the process by which decisions have been made when it comes 
to a long term repository.
    No matter if you support the continued use of nuclear 
energy or if you don't, we have a responsibility to deal with 
existing spent nuclear fuel and high level waste materials from 
our nation's defense complex. As we sit in this room, spent 
nuclear fuel from commercial power plants is piling up and 
remains scattered around the country in two-thirds of our 
states.
    It was always the determination that the federal 
government--not the individual states and not the utility 
companies--would take responsibility for the safe storage of 
spent fuel and other nuclear materials. After a careful search, 
we found a scientifically proven, geologically ideal site to 
store these materials. That's on secure, federal property, in a 
remote desert, deep under Yucca Mountain.
    Now we are at a crossroads. Politics, not science, is 
driving the debate. It's time for us to decide if we will keep 
our end of the deal with the nation's citizens by delivering 
exactly what they've been paying for all these years, or if 
we'll waste rate payer's and taxpayer money by failing to 
deliver on our end of the contract.
    Recently the Government Accountability Office released a 
report examining the results of the Obama Administration's 
withdraw of the Yucca Mountain license application. What GAO 
found was this unilateral decision comes at a cost of 15 
billion dollars so far--9.5 billion of it directly collected 
from every American's electricity bill. But the fleecing of 
taxpayers won't end there. GAO estimates taxpayers are already 
on the hook for $15 billion and an additional $500 million 
dollars for each year the project is delayed beyond 2020. 
Meanwhile, the U.S. Treasury will be paying out taxpayer 
dollars, not ratepayer dollars in judgments to utilities for 
DOE's breach of contract.
    Billions of dollars and over 30 years of research from our 
nation's top scientists were jettisoned--not for technical or 
safety reasons--but as the GAO's report stated, ``social and 
political opposition to a permanent repository, not technical 
issues, is the key obstacle.''
    When I visited Yucca Mountain last month I heard firsthand 
the overwhelming support from local residents and officials 
from the seven surrounding counties. We will hear firsthand of 
that support today from those representing locals closest to 
Yucca Mountain.
    Locals who raise families in that area and know it is safe. 
Those who would be directly affected the most took it upon 
themselves to ensure the safety of their children and 
grandchildren through an independent scientific investigation 
program. And what they found was high-level nuclear fuel could 
be stored at Yucca Mountain while keeping their water supply 
safe--a major concern particularly for locals. They also know 
it has the ability to infuse desperately needed jobs both 
directly and indirectly related to the Yucca Mountain site.
    We must not let the political games stop us from keeping a 
promise to taxpayers. The licensing process for Yucca Mountain 
must legally continue so that we can give the American people 
the surety of a safe, centralized, permanent storage site for 
spent nuclear fuel.
    I want to thank all of our witnesses for being here today 
to give us their perspective on moving forward. I look forward 
to their verbal testimony and willingness to answer any 
questions members may have.
    I yield back the balance of my time.

    Mr. Shimkus. With that, I will yield back the balance of my 
time and recognize the ranking member, Mr. Barrow from Georgia.

  OPENING STATEMENT OF HON. JOHN BARROW, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF GEORGIA

    Mr. Barrow. Thank you, Chairman Shimkus, for holding this 
hearing, and I appreciate the participation of all of our 
witnesses today.
    Mr. Green has asked me to fill his chair in his absence, 
and I would like to think that at least in part is because he 
knows something about my district that makes this hearing 
particularly important to me. Considering both the commercial 
and the defense applications, I probably represent as many 
people touched by the nuclear industry as anyone else in 
Congress.
    I am proud to represent the expanding Plant Vogtle in Burke 
County, Georgia, and I also represent a large percentage of 
people who work at the Savannah River site just across the 
river in South Carolina. The workers, the families and 
associated industries attached to those facilities number many 
thousands, and other positive economic impacts are very high. 
For example, Burke County collects about 75 percent of all its 
tax revenues from just Plant Vogtle. That is a lot of 
schoolbooks, police cars and trash pickups from just one 
corporate citizen.
    However, those benefits bring challenges. The nuclear 
industry is only as safe as we make it. Up to this point, we 
have managed the processes and the waste well, and we have had 
a very safe industry. However, as the industry grows as it is 
doing in Georgia and a couple of other places around the 
country and as the waste accumulates, we need to have a 
concerted waste management strategy.
    I believe we are too far down the Yucca Mountain road in 
time and in money to turn back now, but if we aren't going to 
pursue Yucca, then we need to be working together on another 
strategy and we need to stick with it. That is one reason why I 
am disappointed that the Blue Ribbon Commission was unable to 
participate today. The Blue Ribbon Commission was recently in 
my district at Vogtle and at Savannah River site. I am hopeful 
they will have some concrete consensus solutions to offer, and 
I suggest that it is in the committee's best interest to have 
them back as soon as possible.
    I know the witnesses today will have some good insight on 
the way forward. I want to thank them for their time, I want to 
thank the chairman, and I yield back.
    Mr. Shimkus. The gentleman yields back his time.
    As Mr. Barton makes his way up here, the chair would like 
to recognize the chairman emeritus, Mr. Barton, for the 5 
minutes which hopefully he will apportion out to Mr. Whitfield 
and Mr. Gardner if he shows.

   OPENING STATEMENT OF HON. JOE BARTON, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF TEXAS

    Mr. Barton. Well, thank you, Mr. Chairman, and thank our 
distinguished first panel of Members. It is good to see you and 
we are especially glad that Congressman Hastings is back and we 
are hope you are healthy. Just remember, this is the Energy and 
Commerce Committee. No more shenanigans like you were trying 
earlier.
    Mr. Chairman, our Nation is sitting on 13,000 metric tons 
of spent nuclear fuel and high-level radioactive waste. Our 
Nation is sitting on over 65,000 metric tons of spent nuclear 
fuel from commercial nuclear power plants in 75 sites in 33 
states. That is 78,000 metric tons of spent nuclear fuel in 
over 80 sites in over 33 states. Yucca Mountain was approved by 
the previous Administration as a repository for our nuclear 
waste. As you well know, we spent over $15 billion in taxpayer 
and ratepayer funds through 2009. It is clear that safe and 
permanent storage of nuclear waste is a critical element of a 
long-term energy strategy. Study after study has shown that 
Yucca Mountain is suitable for storage of that waste.
    We are now here today to discuss the Department of Energy's 
reckless decision to terminate the Yucca Mountain repository. 
In my opinion, the Administration decided to ignore the science 
and circumvent the law. This Administration has for what I 
think are political reasons determined that Yucca is not a 
workable option and is proposing that millions of taxpayer 
dollars be spent in further studies. I think it is unsettling 
that DOE stopped short of characterizing Yucca as unsuitable, 
instead choose unworkable. It seems clear that this 
Administration did this to circumvent the law as defined by the 
Nuclear Waste Policy Act to avoid explaining to the Congress 
the basis for their determination.
    We know that the economic impact of DOE's decision is 
tremendous. There is no guarantee that a more acceptable or 
less costly alternative can be identified, which will only 
prolong the need for interim storage of spent nuclear fuel at 
existing reactor sites. Delays in opening a repository have 
already created an estimated $15.6 billion in taxpayer 
liability plus an additional $500 million for each year beyond 
2020. This is not only a financial issue but it is also a 
national security issue. We cannot have over 78,000 tons of 
radioactive waste scattered across 75 sites. We need a central 
repository. In my opinion, that repository is Yucca Mountain.
    At this point I would like to yield to the distinguished 
subcommittee chairman, Mr. Whitfield.
    Mr. Whitfield. Thank you, Mr. Barton.
    I would just like to say, this is, in my view, a perfect 
example of a wasteful Federal Government on a very important 
project. You have already heard about the amount of money that 
has been spent, $15 billion. You have heard about 65,000 tons 
located in 33 States and 75 sites. You have heard about the 
legal liability of the Federal Government being sued by nuclear 
power plants because the Federal Government has not taken 
responsibility for this material, and that is an ongoing 
liability. That liability is already in excess of $15 billion. 
Estimates could easily go up to $50 billion. And it is no 
wonder the American people are frustrated with the Federal 
Government and this $14 trillion federal debt that we have.
    So I want to thank Chairman Shimkus for having this 
important hearing to bring attention to the predicament we find 
ourselves in, and hopefully we can find a solution, and I would 
yield back.
    Mr. Barton. I am supposed to yield to Mr. Gardner but I 
don't see him.
    Mr. Shimkus. If the chairman emeritus would yield to Mr. 
Murphy from Pennsylvania?
    Mr. Barton. OK. I would yield the remaining time to Dr. 
Murphy.
    Mr. Murphy. Thank you very much.
    We know that the States are suing the Department of Energy 
because the mandate with an application approved waste storage 
in Yucca Mountain, and the utilities have sued the DOE to halt 
further collection of fees, arguing that the country no longer 
has a disposal plan after ruling out Yucca Mountain. Simply 
put, the Administration is acting in violation of the law.
    You have heard about other members about the 65,000 metric 
tons of spent fuel and the 75 different sites of storage. While 
nuclear provides 20 percent of electricity in this country and 
with superb advancements in technology like small modular 
reactors and passive systems, it stands poised for renaissance 
but only if the Administration gives the taxpayers an 
explanation, offers to Congress a workable solution, not saying 
this is unworkable, and also acts in accordance with the law to 
apply the law, not to selectively enforce the law, and I yield 
back.
    Mr. Shimkus. The gentleman yields back his time.
    The chair now recognizes the chairman emeritus, Mr. Waxman, 
for 5 minutes.

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Waxman. Thank you, Mr. Chairman.
    I am a strong advocate for serious oversight. Throughout my 
service on the Committee on Oversight and Government Reform and 
this committee, I have led numerous investigations into 
governmental agencies, private companies and entire industrial 
sectors, and I take the role of congressional investigator very 
seriously.
    Today this committee is holding its second hearing on the 
decision to shut down the Yucca Mountain waste repository 
project. Questions have been raised about this decision, and I 
support a fair and impartial inquiry. But that does not appear 
to be what this committee is doing. Even before the committee 
launched its investigation, Chairman Shimkus had apparently 
already reached his own conclusions.
    In January, the chairman told The Hill that he wanted to 
ask questions about whether the decision to ``pull the plug'' 
on Yucca Mountain was ``all politics.'' He stated that he 
thought people already knew the answer to that question, but 
``you should go through the process of asking the questions.''
    Then, last month, he called the decision to halt the Yucca 
Mountain license application and review ``politics at its worst 
at its highest levels.'' Full committee Chairman Upton has made 
similar comments.
    A congressional investigation should be a genuine inquiry, 
not a process of asking questions to reach a predetermined 
conclusion.
    At our first hearing, the chairman tried to prevent members 
from asking relevant and important questions, and I believe was 
off-base in his criticism of my right to question the NRC 
chairman, Gregory Jaczko. The latest affront to fairness is the 
effort to prevent Democratic staff from attending committee 
interviews of fact witnesses. Ranking Member Green and I wrote 
a letter today to Chairmen Upton and Shimkus protesting this 
new policy, which I ask to be made part of the hearing record.
    Mr. Shimkus. Without objection, so ordered.
    [The information appears at the conclusion of the hearing.]
    Mr. Waxman. Excluding Democratic staff from committee 
interviews is inappropriate and it is inconsistent with 
committee precedents. The practice denies nearly half the 
members of the committee equal access to relevant information 
about the investigation. It wastes taxpayer resources by 
necessitating duplicative interviews, and it calls into 
question the basic fairness and credibility of the committee's 
inquiry.
    Our job should be to keep an open mind in the investigation 
and follow the facts where they lead. If the evidence shows 
that the Department of Energy decided to close Yucca Mountain 
for invalid reasons, we should not hesitate to be critical. But 
we should also not prejudge the facts or use unfair and 
partisan procedures in conducting this investigation.
    Mr. Chairman, we are still at the early stages of this 
investigation. I hope we can resolve these procedural 
differences so we can focus on the work of the investigation. 
We can do it together, and I think that is the best goal of an 
oversight investigation, to work together to see if we can get 
the facts and then follow them wherever they may lead.
    I hope this hearing and the witnesses we will hear from 
today will help get us back on track, and I yield back my time.
    Mr. Shimkus. The gentleman yields back his time.
    Before we go to the witnesses, I would ask unanimous 
consent for 1 minute to respond to the comment. Is there 
objection?
    Mr. Waxman. Reserving the right. Would you give me a 
potential minute to respond if I feel it is appropriate?
    Mr. Shimkus. I would, sir.
    Mr. Waxman. OK.
    Mr. Shimkus. Thank you. First of all, the issue raised is 
not timely with this hearing but the point we want to raise is 
that the majority staff has been in discussion with this issue 
in good faith with the minority staff but we also have raised 
the issue that you are asking for a double standard. It is my 
understanding that the minority has had meetings with other 
witnesses during this session of Congress and has not included 
the majority or provided notice to the majority. If we are 
going to have a rule about this, it has to apply to both sides 
equally, and I think if you agree to allow us when you are 
questioning your folks, we can reciprocate by having you with 
ours, and I think that would be a great way to resolve this 
conflict.
    It is my understanding that when you all were in control in 
the last Congress, Republicans were not included in all the 
discussions with potential witnesses and conducted interviews 
without notifying members on our side. Having put that on the 
table, I would just say if we can come to agreement where when 
you are interviewing your witnesses, you invite us, we will 
invite you when we are interviewing, and I think that can 
resolve the conflict. I yield back my time.
    Mr. Waxman. I thank you for yielding to me.
    It is important to distinguish between consulting with 
agency experts to understand policy issues and bringing in fact 
witnesses to obtain information relating to an investigation of 
alleged wrongdoing. There is no question that the interviews of 
the NRC employees from which the minority were excluded were in 
fact fact witnesses regarding our investigation, and I think if 
we agree that when we interview anybody who has pertinent 
information on the facts of the investigation, that we all 
should be included, and I think your suggestion would be 
appropriate.
    My staff has spoken with the three of the individuals who 
were interviewed, and each of them spent several hours in these 
interviews, so in fact, as a reality, what we did is spent more 
time with the same witnesses we should have been there 
together. In the investigation relating to Yucca Mountain 
licensing process, the minority has not conducted any fact 
witness interviews either with or without the majority. We have 
instead been focused on reviewing and understanding the 
documents that have been produced to the committee on this 
matter. In fact, we identified a fact witness we believe to be 
important for the committee to interview, and we will discuss 
that with you.
    But I think you lay out a compromise that should help us 
reach an agreement. If we are going to have witnesses that are 
pertinent to the investigation, give us facts that we want to 
know about. Just as we share documents, we should interview 
those witnesses together.
    Mr. Shimkus. If the gentleman would yield his time, I would 
just say as he knows real well, I am not the chairman of the 
full committee so I am speaking as the chairman of the 
subcommittee, but I will have to run this all through Chairman 
Upton.
    Mr. Waxman. Well, I will certainly have to run it through 
my subcommittee ranking member. Mr. Barrow will certainly be 
involved in that. He is sitting in the chair of the ranking 
member.
    My last point is, I thought you said we had identified. The 
point was, if we identify, we will share it with you, and we 
think we should work together in interviewing them, and I hope 
the full committee chairman shares the position that you put 
out and that I have suggested affirmative response to.
    Mr. Shimkus. Is the gentleman yielding back his time? The 
gentleman yields back his time.
    Now we will welcome our colleagues. If it is OK with my 
colleagues, we will start from the left and go to the right, or 
ladies first. It may be not politically correct, but with that, 
we would like to recognize the Hon. Shelley Berkley from the 
great State of Nevada, and you are recognized for 5 minutes. 
Your full statement can be submitted into the record, and so 
the time is yours.

    STATEMENTS OF HON. SHELLEY BERKLEY, A REPRESENTATIVE IN 
    CONGRESS FROM THE STATE OF NEVADA; HON. DOC HASTINGS, A 
 REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON; AND 
HON. MIKE SIMPSON, A REPRESENTATIVE IN CONGRESS FROM THE STATE 
                            OF IDAHO

               STATEMENT OF HON. SHELLEY BERKLEY

    Ms. Berkley. Thank you very much, Chairman Shimkus, Ranking 
Member Barrow and members of the committee. Thank you for 
inviting me to testify today.
    Let us get right to the point. Nevadans have been saying no 
to Yucca Mountain for decades, and we will continue shouting no 
at the top of our lungs until this effort to shove nuclear 
waste down our throats has ended. I don't know who you met with 
but I can tell you the latest polls show that 77 percent of the 
people of the State of Nevada don't want nuclear waste stored 
at Yucca Mountain. Why? Because we don't want our home turned 
into a nuclear garbage dump, and we oppose more wasteful 
spending on a $100 billion dinosaur in the Nevada desert that 
should have gone extinct years ago.
    I know members of this committee will hear today from 
others who will say that Nevada's efforts to stop the dump is 
all political and has nothing to do with science. Hogwash. The 
truth is that Nevada's opposition has always been based on the 
danger that Yucca Mountain poses to our State and our Nation, 
and Nevada's resolve only hardened in the face of renewed 
efforts to force us to accept this fatally flawed dump, given 
the true risk it represents.
    Make no mistake: the Yucca Mountain project was born of 
politics starting with the infamous 1987 screw Nevada bill, and 
why was it politics? Because the State of Nevada had a very 
small delegation at that time and we were unable to protect the 
State from the 49 others. You want to talk about science? There 
are no radiation standards that currently exist because there 
is no way to create radiation standards to protect the public 
from nuclear waste with 300,000-year half shelf life, and there 
is a GAO report that shows thousands of e-mails that make a 
mockery of so-called scientific studies. I would be glad to 
present those to you as well. Originally, they were going to 
store nuclear waste at Yucca Mountain. Then they realized there 
were groundwater problems so we were going to store it in 
containers with a titanium shield to protect it from the 
dripping water. Then they realized that wasn't enough because 
the titanium shields were going to erode. So then they were 
going to build concrete bunkers to contain the titanium shields 
that contained the canisters, and then the last Secretary of 
Energy in the Bush Administration actually said he was going to 
create an army of robots that were going to go down to Yucca 
Mountain because man can't go down there to be able to protect 
us from the nuclear waste leakage.
    This legislation, the screw Nevada bill, did away with any 
pretense of science and it eliminated every other site under 
consideration as a dump location. At the same time, the nuclear 
industry and its allies have worked for years to silence 
Nevada's criticism and to minimize the fact that the proposed 
dump is located smack in the middle of an active earthquake 
zone. This is an area that has been rocked by violent 
earthquakes in the recent past and we know the risk it creates. 
Proponents of the dump have also sought to dismiss scientific 
findings showing that water will enter Yucca Mountain, causing 
rapid corrosion of waste canisters and resulting in release of 
dangerous radioactive materials, and dump backers have worked 
tirelessly to downplay the risk to millions of Americans living 
along the transportation routes from decades of waste shipments 
barreling down our Nation's roads and railways with each 
canister a potential terrorist target or accident waiting to 
happen. Whether caused by human error, mechanical failure or a 
deliberate strike, a massive release of these deadly materials 
threatens to kill or injure Americans, to release radioactive 
contamination and to shut down major portions of our interstate 
highway system and rail system.
    When it comes to plans for Yucca Mountain, the fact remains 
that you could never eliminate the risks that will accompany 
shipping nuclear waste across more than 40 States through 
communities utterly unprepared to deal with radioactive 
contamination. We are talking about shipments passing homes, 
hospitals, schools every single day for four decades, and even 
more incredible, at the end of those 40 years, there will even 
be more waste in the cooling ponds than there were when the 
shipments began, and that is because as long as a plant is 
operating, some amount of nuclear waste will always remain at 
the nuclear facility, and that is why the threat posed by Yucca 
Mountain must be weighed against the availability of dry cask 
storage as an affordable solution to this problem and it is 
available today. Using this method, we can secure waste at 
existing sites in hardened containers where they can remain for 
the next 100 years until we figure out what to do with this 
garbage.
    The nuclear industry is already utilizing dry cask storage 
at various locations around the United States. There is no 
reason we should not require plants to begin moving waste right 
now from cooling pools into hardened containers. This would 
also give our Nation time to find a true solution to addressing 
the nuclear waste issue that does not involve dumping $100 
billion down a hole in the middle of the Nevada desert, 
particularly at a time that we can ill afford it. Surely, we 
can do better than a dump plan that is incredibly dangerous, 
decades behind schedule and whose budget has ballooned with 
every passing year to a staggering sum, even by Washington 
standards. At the end of the day, the cost to build and operate 
Yucca Mountain will exceed the amount it would cost to settle 
lawsuits by plant operators seeking payment for the cost of 
moving waste into dry casks.
    It is also extremely important to remember that moving 
ahead on Yucca Mountain won't mean savings for families in 
nuclear States. Instead, they will continue paying the Yucca 
Mountain tax that is slapped on power bills each and every 
month. At a time when our Nation is debating spending cuts, I 
am truly amazed that those that favor Yucca Mountain continue 
to demand that we open the floodgates and let tens of billions 
of dollars in additional spending come pouring out.
    The good news is that we do not have to go down this 
fiscally irresponsible path. Earlier this year, Congress passed 
a package that fully eliminates funding for the Yucca Mountain 
project. The time has come to let this boondoggle die and to 
permanently end efforts to breathe life back into a program 
that is too dangerous and too costly for our Nation.
    In conclusion, Nevada remains, in case you don't already 
know, opposed to more wasteful spending on a failed $100 
billion project that threatens lives, the environment and the 
economy of my community and others across the Nation. I will 
lay my body down on those railroad tracks to prevent any train 
that has nuclear waste in it from going to Yucca Mountain. I 
make that pledge to you and the people I represent. Nuclear 
waste can remain on existing sites in dry cask storage for the 
next century, giving us time to find an actual solution to 
replace the failed Yucca Mountain project, and if anybody 
watched what was happening in Japan and still has the audacity 
to suggest this for the people of our country, shame on us all, 
and Germany just announced that they were ending their nuclear 
program because they have no way to safely store nuclear waste. 
If Germany can figure that out, by gosh, the United States of 
America should be able to figure that out too.
    I yield back the balance of my time.
    Mr. Shimkus. It is a good thing I have a great relationship 
with the trucking industry. Thank you. Obviously, all Members 
will have as much time as they need for their statements. We do 
appreciate your time, and we do appreciate your passion, and we 
have been opponents on this issue for many, many years.
    Ms. Berkley. Yes, I am hoping to bring you on to the right 
side of this issue.
    Mr. Shimkus. I think I am.
    Now I would like to recognize the chairman of the Interior 
Committee, Doc Hastings, for as much time as he may consume, 
around 5 minutes, and welcome back to Washington and welcome to 
the committee.

                 STATEMENT OF HON. DOC HASTINGS

    Mr. Hastings. Thank you very much, Mr. Chairman, and thank 
you for inviting me to go second.
    Thank you, Mr. Chairman and members of the committee, for 
the opportunity to testify regarding the importance of Yucca 
Mountain project to my district and to the Nation as a whole, 
and my concerns regarding the Department of Energy's action to 
illegally dismantle this program.
    First and foremost, there should be no disputing that Yucca 
Mountain is a national repository for high-level defense waste 
and commercial spent nuclear fuel. Congress has voted to 
reaffirm this decision several times. Billions of dollars and 
many years have been spent studying what to do with nuclear 
waste, and Yucca Mountain was determined to be the answer. It 
is the law, period. Now, some may disagree with the law but it 
is the law.
    For more than 16 months, the Obama Administration acting 
through the Department of Energy has acted outside the scope of 
the law in order to pursue a purely politically driven mission 
to shut down the Yucca Mountain project. Time and time again 
DOE has been asked to provide technical scientific evidence to 
justify their reasons to withdraw the license application for 
Yucca Mountain. They have been unable to provide any reason, 
only stating that Yucca Mountain is no longer ``workable.''
    What is truly not workable is the uncertainty that faces 
our commercial nuclear power industry as they look to a future 
that may require them to house spent nuclear fuel on a site for 
decades because there is no geological repository ready to 
accept it. The same is true for the communities across the 
Nation that are hard at work cleaning up the high-level defense 
waste that is the legacy of our country's nuclear weapons 
production program. Commercial spent fuel and high-level 
defense waste are to be stored alongside each other at Yucca 
Mountain, and it made sense to talk about them together.
    The State of Washington, the State of South Carolina and 
leaders in my hometown community have failed a lawsuit 
challenging Department of Energy's ability to withdraw the 
Yucca Mountain license application yet the Administration 
continues to rush to terminate the project before the courts 
rule or before the Nuclear Regulatory Commission's vote is 
released on this matter. In addition, the GAO recently released 
a report that determined that the decision to dismantle the 
Yucca Mountain project was political and not based on sound 
science.
    My district in central Washington is home to the Hanford 
nuclear site, part of the top-secret Manhattan Project that 
developed and constructed the first atomic bomb. The work done 
at Hanford helped win World War II and later provided the 
nuclear deterrence that helped defeat communism and end the 
Cold War. Today, Hanford is the world's largest environmental 
cleanup project, and the high-level defense nuclear waste at 
Hanford is slated to be shipped to the national repository at 
Yucca Mountain. Right now, the Department of Energy is building 
a critical $12 billion plant that will treat 53 million gallons 
of high-level defense waste currently stored in underground 
tanks at Hanford and turn it into safe, stable, glass logs that 
are scheduled to be stored at Yucca Mountain. The waste 
treatment plant, which is a $12 billion plant, which is over 
halfway done, is being built to meet specifications designed to 
match the geological structure and makeup of Yucca Mountain. 
The Department of Energy is requesting increased funds to 
reduce the risk and complete the waste treatment plants sooner 
than the expected 2016 time frame. Changing the goal posts at 
halftime will unnecessarily add risk to the project and has the 
potential to waste limited cleanup dollars that are already 
difficult to secure.
    The waste treatment plant must move forward, but that 
requires more than proper funding. It requires Yucca Mountain. 
And I have an article I would like to submit for the record 
detailing this, if I may, Mr. Chairman, an article on this 
issue.
    Mr. Shimkus. Is there objection? Hearing none, so ordered.
    Mr. Hastings. Thank you. I will submit that.
    Delaying or abandoning Yucca Mountain means that Hanford 
will be home to high-level defense waste even longer, the 
Federal Government's legal commitment to our State won't be 
kept, and cleanup progress at Hanford will be jeopardized. With 
more defense waste slated to go to Yucca Mountain than any 
other State in the union, the stakes for my State of Washington 
cannot be higher and the risks could not be more real.
    In addition, Richland, which is just south of the Hanford 
project, is the home to the Pacific Northwest's only commercial 
nuclear power plant, the Columbia generating station. The spent 
nuclear fuel from this plant is also slated to go to Yucca 
Mountain but without Yucca opening, the spent fuel will have to 
be kept on site for an unknown amount of time at great expense 
to the taxpayers and ratepayers. In my district, we understand 
that nuclear power is safe and that it provides good-paying 
jobs but all of this being jeopardized by the Administration's 
decision to shut down Yucca Mountain. At a time of record debt, 
massive bailouts and trillion-dollar deficits, our country 
cannot afford to waste billions of dollars going back to the 
drawing board on a national repository. It is time for the 
Administration to follow the letter of the law, as I pointed 
out in my opening remarks, and to bring the Yucca Mountain 
project online and accept the shipments of the spent nuclear 
fuel and high-level defense waste.
    I would like to again thank you very much for the 
opportunity to be here, and with that, I yield back my time.
    Mr. Shimkus. Thank you very much, Doc, for joining us.
    Now, I would like to recognize appropriator cardinal, Mr. 
Simpson, from the great State of Idaho.

                   STATEMENT OF MIKE SIMPSON

    Mr. Simpson. Before I start, let me just say for the record 
that I haven't been questioned by either the majority or the 
minority staff.
    Mr. Shimkus. And I am not sure you would want to be.
    Mr. Simpson. Mr. Chairman and members of the committee, I 
thank you for the opportunity to testify before your committee 
on the Department of Energy's Yucca Mountain decision.
    I have been now in Congress for 12\1/2\ years. For 8\1/2\ 
years, I have served on the Appropriations Committee and the 
Subcommittee on Energy and Water Development, which funds the 
DOE including the DOE's nuclear energy division. In my short 
time in Congress, there have been three Administrations, four 
or five Secretaries of Energy and numerous nuclear energy 
administrators and under secretaries. Each Administration has 
its own priorities concerning the direction the department 
takes with respect to addressing the energy needs of our 
country, particularly nuclear energy. I lived through the IFR 
bubble, the GNEP bubble, the NGNP bubble and the current SMR 
bubble. The most frustrating dilemma I faced is this: After 
spending billions of dollars going into ever-changing 
directions, how do you sustain a program with a 20- to 30-year 
lifetime frame in an environment of ever-changing policies? 
What can we show the taxpayers for our investments? To make it 
clear, it is not a problem that I blame on the DOE. New 
Administrations and Secretaries are elected and appointed to 
enact their vision of the future but it is a reality that the 
short-term nature of our political cycles does not lend itself 
to solving long-term problems.
    One of the ways we address this dilemma is by enacting 
statutes passed by Congress and signed by the President. These 
statutes become the law of the land, binding on future 
Congresses and Administrations. No Administration or Congress 
can unilaterally decide the law doesn't apply to them. If the 
Administration or Congress decides it doesn't like the current 
law, there are ways to change it: enact a new law. Absent that, 
the current law binds us all.
    One of the most glaring decisions by the Administration to 
ignore this fundamental principal of law is the attempt by the 
Administration to unilaterally withdraw the license application 
for Yucca Mountain currently before the NRC and to mothball 
Yucca Mountain. Let me be perfectly clear here. We all know why 
this decision was made. It wasn't about science or the 
suitability of Yucca Mountain or even the need for a geological 
repository for high-level nuclear waste. It was a promise made 
during the heat of a presidential campaign. It was pure 
politics.
    We could spend days debating the suitability of Yucca 
Mountain as a geological waste repository or the over 50 
scientific studies that have been done on Yucca Mountain. We 
know more about this patch of earth than probably any other 
patch of earth in the world. We could talk about the $15 
billion already spent on Yucca Mountain, the $9.5 billion 
collected from the utility consumers for the nuclear waste fund 
and whether that should be paid back to the consumers as well 
as the $956 million paid out as the result of the 74 lawsuits 
resulting from the government's failure to receive spent fuel 
or the GAO investigation which concluded ``DOE's decision to 
terminate the Yucca Mountain repository program was made for 
policy reasons, not technical or safety reasons'' or the fact 
that this interpretation is supported by volume 3 of the NRC's 
safety evaluation report.
    But all of this really isn't the point. The point is, the 
President is obligated to follow the law of the land as enacted 
by Congress and signed by a previous President. The Nuclear 
Waste Policy Act was amended in 1987 to designate Yucca 
Mountain as the repository for high-level nuclear waste for 
whatever reason. I was not a Member of Congress at the time but 
that law passed and Yucca Mountain became the law of the land. 
Following a veto by the Governor of Nevada, the House voted to 
override the Governor's veto by a 306-117 vote, and the Senate 
followed suit by a 60-36 vote. Yucca Mountain is still the law 
of the land.
    Congress has reaffirmed its position. In fact, I have with 
me here, and I want to ask to put them in the record because 
they are available, 34 recorded votes in recent years assembled 
by the CRS in which Congress has reaffirmed its support for 
Yucca Mountain.
    I can't fault Secretary Chu or Secretary Lyons for pursuing 
this policy decision. After all, they work for the President 
and he made this misguided decision to ignore the law. Based on 
these simple facts, the NRC licensing board reviewed the 
Administration's request to withdraw the Yucca Mountain 
licensing application and denied that request nearly one year 
ago, June 29, 2010. The commission reviewed and voted on the 
licensing board decision but has yet to release its ruling 
nearly a year later. The NRC is supposed to serve as an 
independent watchdog which is driven by science, not politics. 
Unfortunately, the chairman of the NRC has lost sight of its 
mission in order to effect a political outcome that has eroded 
the reputation of the NRC at a time when the public confidence 
is needed most, and he should be replaced.
    Again, I repeat, the issue of siting the Nation's nuclear 
waste repository at Yucca Mountain is a matter of law, not 
politics. It serves as the clearest example of an ever-changing 
policy which is costing the taxpayers billions of dollars and 
diminishing our ability to advance a long-term energy policy 
for our country, and I thank you, Mr. Chairman, for inviting us 
here today.
    Mr. Shimkus. I want to thank my colleague, Mr. Simpson, and 
my colleagues for joining us.
    It is the tradition of this committee not to follow up with 
questions but to move. We have two more panels that we have to 
meet with and so we want to thank you for your time, and we 
will see you on the floor for votes.
    Without objection, the vote totals that Mr. Simpson had 
mentioned will be entered into the record. Having no objection, 
so ordered.
    [The information appears at the conclusion of the 
hearing.]*************** COMMITTEE INSERT ***************
    Mr. Shimkus. I would like to place the first panel, Mr. 
Gaffigan, Mr. Friedman and Mr. Lyons. We want to thank you for 
joining us. As per the previous panel, we will start from my 
left, your right, and each of you will be recognized for 5 
minutes. Your full statement can be submitted for the record. 
To begin with, I would like to ask Mr. Mark Gaffigan, Managing 
Director of Natural Resources and Environment for the U.S. 
Government Accountability Office. Thank you for your 
attendance, and you are recognized for 5 minutes.

STATEMENTS OF DR. MARK E. GAFFIGAN, MANAGING DIRECTOR, NATURAL 
   RESOURCES AND ENVIRONMENT, U.S. GOVERNMENT ACCOUNTABILITY 
     OFFICE (GAO); GREGORY H. FRIEDMAN, INSPECTOR GENERAL, 
    DEPARTMENT OF ENERGY; AND DR. PETER B. LYONS, ASSISTANT 
       SECRETARY FOR NUCLEAR ENERGY, DEPARTMENT OF ENERGY

                 STATEMENT OF MARK E. GAFFIGAN

    Mr. Gaffigan. Mr. Chairman and members of the committee, I 
am pleased to be here.
    First of all, I want to summarize my remarks in three 
areas, basically the current status of Yucca Mountain and the 
Nation's nuclear waste policy, the nuclear waste policy 
alternatives that have been discussed, and lastly, sort of 
lessons learned from past experience that may help inform our 
future as we go forward.
    First, the Nation's policy for nuclear waste disposal is in 
dispute, creating great uncertainty about its future direction. 
In 1957, the National Academies of Science first endorsed 
nuclear waste disposal in a geological repository as the means 
for permanently disposing of nuclear waste. However, achieving 
a permanent policy leading to an acceptable repository has 
proven to be both costly and difficult. Under the Nuclear Waste 
Policy Act from the 1980s, the Federal Government made a 
commitment to take the Nation's nuclear waste and DOE has been 
investigating Yucca Mountain a permanent repository, 
culminating in a license application to the NRC in 2008.
    However, after decades of work and expenditures of about 
$15 billion in today's dollars, DOE is now seeking to withdraw 
its application. DOE has not cited any technical or safety 
issues but has stated that Yucca Mountain is not a workable 
option, in large part because of the lack of public acceptance 
by the people of Nevada. This decision is being challenged both 
in the courts and by a board ruling that the Nuclear Waste 
Policy Act requires DOE to continue with the application. While 
these matters remain unresolved, DOE has proceeded to terminate 
Yucca Mountain in a definitive manner that will make it more 
difficult to reprise should they be compelled to do so.
    In lieu of pursuing Yucca Mountain, DOE established a Blue 
Ribbon Commission to consider alternative waste disposal 
strategies. Based on past work, we have identified three 
categories of alternatives. The first alternative is keeping 
the waste on site at about 80 different sites, both commercial 
and defense sites in the United States. This is the path of 
least resistance option since it is our current de facto policy 
for disposal. However, it does not address the commitment of 
the U.S. government to take possession of the waste. As has 
been pointed out, taxpayers have already paid nearly $1 billion 
in legal judgments because of the government's inability to 
meet its obligation. Estimates are that another $15 billion 
will be paid out by 2020 with the bill estimated to be another 
$500 million per year after that, again, coming from the 
taxpayers through the Department of Justice's judgment fund. 
Also, with continued onsite storage, DOE may not be able to 
meet commitments to States to remove defense-related waste. 
This could have negative impacts such as jeopardizing Navy 
shipments of spent fuel and the refueling of Navy warships.
    A second general alternative is centralized interim 
storage. While this may offer some relief from onsite storage, 
such a facility faces the same siting challenges, and DOE 
states it does not have the authority to implement such a 
facility.
    Finally, the third option remains a geological repository, 
the goal of the Yucca Mountain project. Despite the promise of 
future technology that may reduce the demands on a geological 
repository, the best thinking of experts today is that no 
matter what, there will be some amount of waste in need of 
permanent disposal and that a geological repository is the only 
feasible option for permanently disposing of nuclear waste.
    Lastly, I would like to address lessons learned that might 
be instructive for future nuclear waste policy. DOE's recent 
policy decision to terminate Yucca Mountain due to a lack of 
public acceptance has been criticized because it was not based 
on any technical or safety reasons. However, if we are to learn 
anything from the Nation's struggle to implement nuclear waste 
policy, it is the lesson that public acceptance is just as 
important a consideration as any technical or safety issues. 
Transparency, economic incentives and education are important 
tools in achieving public acceptance of any future nuclear 
waste policy.
    A second broad lesson is that consistent policy, funding, 
and leadership will be crucial in successful nuclear waste 
management. Many stakeholders have suggested that an 
independent organization not subject to political changes with 
a predictable funding stream may be best suited to carry out 
this policy.
    In closing, let me emphasize that any nuclear waste policy 
option whether it be continued onsite storage, centralized 
interim storage or a move to a permanent repository will offer 
benefits but face serious costs and challenges. With the 
current uncertainty in the Nation's nuclear waste policy 
direction and potential competing directions of that policy, 
those costs and challenges only increase with little additional 
benefit.
    Thank you, Mr. Chairman. That concludes my opening 
statement. I have submitted a formal statement for the record, 
and I welcome your questions.
    [The prepared statement of Mr. Gaffigan follows:]





    
    Mr. Shimkus. Thank you very much.
    Now, I would like to turn to Mr. Gregory Friedman, 
Inspector General at the Department of Energy. Welcome, sir.

                STATEMENT OF GREGORY H. FRIEDMAN

    Mr. Friedman. Thank you, Mr. Chairman.
    Rather than repeat many of the statistical points and data 
that has been provided already, let me abbreviate my already 
abbreviated statement, which contains a synopsis of the work 
that we have done in Yucca Mountain over time and it is more 
expanded in my full statement, which I hope will be submitted 
for the record.
    Getting down to the nub of the matter, our work to date has 
highlighted a number of issues that require the continued 
attention of department management. For example, as has been 
mentioned, delays in the opening of Yucca Mountain have, as 
demonstrated by a number of financial and performance reviews, 
increased the ultimate cost of disposal of waste intended for 
Yucca Mountain. Closure of the project could significantly 
impact the department's future environmental remediation 
liability currently estimated to be $250 billion. We will 
further evaluate the impact of the closure as part of the 
ongoing financial work that we do at the Department of Energy. 
Further, unless the repository or other alternative strategy 
becomes available in the near term, the department may miss a 
number of deadlines which are part of tri-party settlement 
agreements. As a result, the department may be subject to 
significant assessments due to missed deadlines. As of 
September 30, 2010, more than $800 million has been expended 
from the Treasury's judgment fund for payments to commercial 
nuclear waste producers for delayed acceptance of nuclear 
waste. In addition, the department has estimated its contingent 
liability for spent nuclear fuel litigation to be approximately 
$15.4 billion.
    In summary, in our judgment, the need to develop a viable, 
effective and acceptable path forward for nuclear waste 
disposal becomes more pressing day by day. The United States 
has announced plans to dismantle a significant part of its 
nuclear waste stockpile with the unavoidable reality of 
increasing the volume of defense nuclear waste. Further, 
commercial nuclear waste, which was to represent 90 percent of 
the high-level waste stored at Yucca Mountain, continues to be 
generated at nuclear power facilities across the Nation.
    To paraphrase one draft recommendation from the Blue Ribbon 
Commission on America's Nuclear Future, which was established 
by the Secretary of Energy at the request of the President in 
January 2010, the United States should proceed expeditiously to 
develop an integrated, comprehensive plan for managing the back 
end of the nuclear fuel cycle.
    Mr. Chairman, this concludes my statement. I would be 
pleased to answer any questions that you or the subcommittee 
may have.
    [The prepared statement of Mr. Friedman follows:]





    
    Mr. Shimkus. Thank you, Mr. Friedman.
    Last but not least on the first panel is Dr. Peter Lyons, 
Assistant Secretary for Nuclear Energy at the Department of 
Energy. Sir, welcome, and you have 5 minutes.

                  STATEMENT OF PETER B. LYONS

    Mr. Lyons. Thank you, Mr. Chairman, Mr. Ranking Member and 
members of the committee. Thank you for the opportunity to 
testify before you today.
    By way of introduction, I grew up in Nevada. I worked at 
the Los Alamos National Laboratory with frequent assignments at 
the Nevada Test Site. When I led the lab's energy and 
environmental programs, all work on Yucca Mountain and 
reprocessing of fuel reported to me. More recently, I visited 
the Tunnel Complex many times while working for Senator Pete 
Domenici and as an NRC commissioner. I have devoted 42 years of 
public service to the Nation's needs for and uses of nuclear 
technology. I am convinced that nuclear energy must remain a 
part of our Nation's clean energy portfolio, an acceptable 
solution to the Nation's management of used nuclear fuel and 
high-level defense waste as a prerequisite for nuclear power to 
play this role.
    Secretary Chu has emphasized that a successful management 
significant for used fuel must be founded on strong technical 
criteria and public acceptance. The GAO made the similar 
conversation that overcoming social and political opposition is 
crucial. For example, there are successful repository programs 
in Switzerland, Finland, Sweden and France where public 
involvement and consultation are heavily emphasized. Our own 
experience with the Waste Isolation Pilot Plant, or WIPP, 
illustrates our success with achieving social and political 
acceptance for a permanent repository and stands in stark 
contrast to the Yucca Mountain project. As the Secretary has 
stated, it is time to move beyond the 25-year-old stalemate 
over Yucca Mountain. I agree, and I accepted this position with 
full support for the Administration's position.
    Let me turn to two interrelated statements made in the GAO 
report with which the department has very serious concerns. 
First, the GAO presumes that the Yucca Mountain repository 
would have opened on a date certain, and second, GAO presumes 
that an alternative would take longer than the Yucca Mountain 
repository to implement. The GAO report uses 2020 for 
operations as a firm date and expresses concern that the 
department did not provide GAO with a more precise date. Yet 
the department has consistently stated that the 2020 date was 
subject to a number of contingencies over which the department 
has no control. Thus, there was always considerable uncertainty 
about when or whether the Yucca Mountain repository would open. 
Among other things, that opening would require new legislation 
for land withdrawal, a second NRC license, presuming the first 
one were issued, and a new 300-mile railroad, and many related 
actions hinging on availability of State-issued permits. All of 
these would have faced persistent opposition from the State in 
Nevada.
    In shutting down the Yucca Mountain project, DOE is 
committed to building better, more workable alternatives. In 
fact, as the GAO report notes, if a more widely accepted 
alternative is identified, it carries the potential for 
avoiding costly delays experienced by the Yucca Mountain 
repository program. That is a point that Secretary Chu has 
emphasized. Thus, the department disagrees with the GAO 
statement that the proposed termination of Yucca Mountain, 
which had been planned to be opened in 2020, will likely 
prolong storage at reactor sites, which would increase onsite 
storage costs. There is simply no basis to assume that the 
termination of Yucca Mountain will prolong this process. There 
may be other alternatives that can be put in place sooner than 
Yucca Mountain might have opened.
    I would also like to highlight another statement in the 
report to which the department takes exception, namely that a 
final impact of terminating Yucca Mountain is that communities 
may be even less willing to host nuclear fuel repositories or 
other storage sites in the future due to further erosion of 
DOE's credibility. Quite to the contrary, a new start with 
Secretary Chu's emphasis on public acceptance I believe can 
lead to enhanced credibility of the department, and as further 
proof, the department's leadership of the WIPP program enjoys 
very strong support from the local community.
    In conclusion, the department is acting responsibly in 
terminating the Yucca Mountain project. We can and we should do 
better than the Yucca Mountain project. Working together, the 
Administration and the Congress can seize an opportunity to 
craft a new option with a higher certainty of success. I 
personally look forward to the chance to put a successful used 
nuclear fuel management program into practice that will serve 
future generations and above all enable them to enjoy the 
benefits of clean, safe nuclear power.
    Thank you, and I look forward to your questions.
    [The prepared statement of Mr. Lyons follows:]





    Mr. Shimkus. Thank you, Dr. Lyons, and I would encourage 
the first panel to stick around for the second panel because 
you will have some local folks from the State of Nevada who 
probably already have some acceptance of this position.
    I would like to begin my first round of questioning and 
recognize myself for 5 minutes, and I will start with Mr. 
Gaffigan. How much has been expended on Yucca Mountain 
development? How much money have we spent?
    Mr. Gaffigan. About $15 billion in today's dollars.
    Mr. Shimkus. And where did that money come from?
    Mr. Gaffigan. About $10 billion from the nuclear waste fund 
and another $5 billion from appropriations.
    Mr. Shimkus. And how does the nuclear waste fund get its 
money?
    Mr. Gaffigan. It is a tax on the ratepayers, pay a one-
tenth of a cent.
    Mr. Shimkus. Which ratepayers? Just those that----
    Mr. Gaffigan. Those who benefit from nuclear power.
    Mr. Shimkus. Of the money from ratepayers, are those fees 
still being collected?
    Mr. Gaffigan. Absolutely.
    Mr. Shimkus. Of the taxpayer funds, what happens to 
taxpayer spending if Yucca Mountain is terminated?
    Mr. Gaffigan. The taxpayer spending continues. Current 
estimates are $15 billion through 2020.
    Mr. Shimkus. And what happens to this liability for each 
year a repository is not accepting waste past 2020?
    Mr. Gaffigan. Current estimates are $500 million per year. 
Those are DOE's estimates.
    Mr. Shimkus. And what other costs might the taxpayer face 
if this nuclear waste issue is delayed?
    Mr. Gaffigan. There will be costs associated with the 
judgments. There are about 72 lawsuits currently brought and 
about 6 have settled, so there will be Department of Justice 
costs involved with it. There will be costs associated with the 
waste on the defense side in terms of perhaps more storage 
needed at these various defense facilities because Yucca 
Mountain is not available or some other repository.
    Mr. Shimkus. Great. Thank you.
    Dr. Lyons, the Nuclear Waste Policy Act is the law that 
governs nuclear waste and spent fuel disposal policy, is it 
not?
    Mr. Lyons. Yes.
    Mr. Shimkus. And the law says that the Department of Energy 
must study, characterize for suitability, and develop a 
repository at Yucca Mountain, correct?
    Mr. Lyons. That is correct.
    Mr. Shimkus. That is what the law says. The law says 
further that DOE shall file an application for a license to 
construct the repository, correct?
    Mr. Lyons. Yes, sir.
    Mr. Shimkus. The law also established the Office of 
Civilian Radioactive Waste Management and a director for that 
office, correct?
    Mr. Lyons. Yes.
    Mr. Shimkus. The law actually makes clear DOE's--and I want 
to note for the record for the transcript, all these questions 
have been responded to affirmatively by Dr. Lyons.
    The law actually makes clear DOE's duties and obligations 
in the development of Yucca Mountain, and those obligations 
presently are to support the application pending before the 
Nuclear Regulatory Commission, correct? I am talking about the 
law.
    Mr. Lyons. As you know, sir----
    Mr. Shimkus. I am talking about the law so be very, very 
careful how you answer this. What does the law say?
    Mr. Lyons. That is what the laws, and----
    Mr. Shimkus. Thank you very much. Now I will go to the next 
question. What provision of the Nuclear Waste Policy Act, what 
provision of the law is the Secretary relying on to withdraw 
the application?
    Mr. Lyons. I am not a lawyer, sir. Our general counsel has 
reviewed that and believes that the Secretary has the authority 
to withdraw the application.
    Mr. Shimkus. I think you might need to get with your 
general counsel, and you better be very careful in answering 
these questions.
    And I am out of time--I am not out of time but I have 
finished my questions. I will now turn to the ranking member, 
Mr. Green.
    Mr. Green. Thank you, Mr. Chairman, and I apologize for 
being late. I know we finished opening statements and I would 
like to ask unanimous consent to place an opening statement 
into the record.
    Mr. Shimkus. Without objection, so ordered.
    [The prepared statement of Mr. Green follows:]

                 Prepared statement of Hon. Gene Green

    Thank you Mr. Chairman for holding this hearing and I want 
to thank the witnesses for appearing before the committee to 
discuss the issue of Yucca Mountain.
    As you may know, I recently toured Yucca Mountain when I 
went on a CODEL organized by Chairman Shimkus. I appreciated 
the opportunity to view the facility up close and to meet with 
some of the local individuals, including folks from Nye County, 
to hear their thoughts on Yucca Mountain.
    There has been a lot of discussion in this committee on the 
decision by the Administration not to proceed with Yucca 
Mountain. As I've stated several times before, The US alone 
produced 806 billion kilowatt hours of nuclear power in 2008, 
making us the biggest producer of nuclear power in the world.
    The President has said he supports investments in 
alternative forms of energy and Secretary Chu has testified 
before this committee that we will be unable to meet the 
President's goals if we do not continue to invest in nuclear 
energy. This of course means we will have an increase of 
nuclear waste and we will need to safety store it.
    As we look toward and focus on investing more in nuclear 
energy we will still have radioactive waste. Even if we have 
better short term storage than we have now, we will still need 
somewhere to put that waste 25, 50, or 100 years from now.
    Let me be clear, no matter what decision we make on Yucca 
Mountain, we still have a nuclear waste disposal issue. So, the 
25 year old dilemma remains and we will need to resolve this 
situation sooner rather than later.
    I want to thank the witnesses and with that I yield back my 
time. Thank you Mr. Chairman.

    Mr. Green. I would also like to ask unanimous consent to 
place into the record a letter from the Blue Ribbon Commission 
on America's Nuclear Future, and also from the chair of the 
Board of County Commissioners of Clark County, Nevada.
    Mr. Shimkus. Without objection, so ordered.
    [The information appears at the conclusion of the hearing.]
    Mr. Green. I thank our panel for being here. I think most 
of you know that a number of us did a congressional trip to 
Yucca Mountain last month, and I appreciate the opportunity to 
view up close what are the decisions or what has been going on 
since the 1980s, and I appreciate the opportunity the folks 
from the local county to express their concern or their 
interest in reopening Yucca Mountain from the decision. While 
on the trip, I heard various reports on the actual cost of 
building Yucca Mountain, and I know from the testimony of Mr. 
Gaffigan, it was $14 billion?
    Mr. Gaffigan. We put it all in today's dollars, about $15.4 
billion.
    Mr. Green. OK. Is there any of that that could be recouped 
if we decided to, you know, forget about it and look for 
another long-term facility?
    Mr. Gaffigan. That money is spent.
    Mr. Green. Any opinion from any other witnesses on the 
panel?
    Mr. Friedman. Well, Mr. Green, we pointed out in our 
Lessons Learned report that the retention of the intellectual 
property derived as a result of the expenditures associated 
with Yucca Mountain is an extremely important focus of the 
department, should be an important focus of the department, so 
hopefully if the decision is sustained to terminate the site, 
there will be a tremendous body of knowledge that will be 
useful going forward. That is certainly our anticipation and 
our hope.
    Mr. Lyons. I would agree with Mr. Friedman.
    Mr. Green. Do each of you agree that we should have some 
long-term storage facility?
    Mr. Gaffigan. I would say that the National Academies of 
Science back to 1957 has said we are going to need some form of 
permanent repository, no matter--and that is the current 
thinking today, even if we go to some new technologies, there 
will be some waste and we will need to dispose of it in a 
permanent solution.
    Mr. Friedman. I would agree with Mr. Gaffigan's comments, 
Mr. Green.
    Mr. Lyons. I would also agree, and the Blue Ribbon 
Commission recently in their draft recommendations so stated as 
well.
    Mr. Green. Well, I guess I have some concern because I know 
the only other alternative is along the Texas border and New 
Mexico, and we could just be opening another can of worms if we 
started out there. Obviously in Nevada, nobody runs for office 
out there saying they support Yucca Mountain. I don't know if 
anybody would run for office in New Mexico if they would say 
they want to support a high-level nuclear storage facility in 
New Mexico. That is one of my concerns about it, that we need 
one, and we spent $15.4 billion and now in the last year and a 
half the decision has been made to literally put a fence across 
it and shut it down.
    How long would it take us if we started anew right now? Did 
Yucca Mountain actually start in 1982, the discussion of it, or 
the decision on the site or the pathway to get to the decision?
    Mr. Gaffigan. I think early on it was one of nine sites 
that was considered, and eventually that was winnowed down to 
about three sites by 1987 and then the 1987 amendment directed 
that only Yucca Mountain be considered, so it is fair to say at 
least----
    Mr. Green. When did the decisionmaking start?
    Mr. Gaffigan. It is fair to say we have been at this since 
the mid-1980s. I don't know if Dr. Lyons would like to 
elaborate.
    Mr. Lyons. No, I would agree that there is some 
characterization work that probably started even before 1982.
    Mr. Green. So we are talking about 25 years to where we are 
now, and do you think if we decided to do something that it 
would take another 25 years to get there?
    Mr. Lyons. I think it is important to note, sir, that as 
the Blue Ribbon Commission works through this process and 
evaluates successful models from both within the country, WIPP, 
and in the international community that there may well be 
approaches to the management as well as the selection that will 
be suggested by the BRC that can lead to a much more 
expeditious movement on this.
    Mr. Shimkus. Would the gentleman yield on that real quick?
    Mr. Green. I would be glad to yield.
    Mr. Shimkus. Dr. Lyons, is it true that the Blue Ribbon 
Commission was given a mandate not to consider Yucca Mountain?
    Mr. Lyons. The Blue Ribbon Commission is not a siting 
commission. They are not considering any----
    Mr. Shimkus. But they were given a mandate not to even 
consider Yucca Mountain?
    Mr. Lyons. They are simply not a siting commission, sir.
    Mr. Shimkus. So that is a yes?
    Mr. Lyons. They are not a siting commission. That is the 
statement I would make, sir.
    Mr. Shimkus. So nothing, interim storage, nothing would be 
considered with Yucca Mountain? If they are doing centralized 
regional storage sites, Yucca Mountain could not be considered?
    Mr. Lyons. I didn't say that. I simply said they are not a 
siting commission. They are not evaluating sites.
    Mr. Shimkus. It is my understanding that the Blue Ribbon 
Commission was given explicit directions not to consider Yucca 
Mountain. Would you dispute that?
    Mr. Lyons. It is my understanding that they are simply not 
a siting commission. They are not considering sites.
    Mr. Shimkus. I yield back.
    Mr. Green. Well, and my concern is, and it is more of a 
statement than a question, is that we have all over the country 
sites, two of them in Texas, where we are actually storing them 
on-site, and we would hope that we would have some long-term 
permanent storage. I support recycling so we don't have to put 
as much there, but that is not available in our country, but 
that is my concern is that by starting over a year and a half 
ago, then, you know, it could be 25 years, maybe longer, but 
even that, we are looking at 10 years away, and a lot of our 
temporary storage sites were not designed to be the long-term 
that they are now.
    Mr. Chairman, thank you.
    Mr. Lyons. If I may, Mr. Green, the Blue Ribbon Commission 
may recommend, since I certainly can't speak for what their 
final recommendations will be, may recommend other paths such 
as interim storage that could lead us to at least useful 
options far sooner than a repository could be in operation.
    Mr. Shimkus. The gentleman's time is expired.
    The chair recognizes the vice chairman of the committee, 
Mr. Murphy from Pennsylvania.
    Mr. Murphy. Thank you, Mr. Chairman.
    Are the current sites at nuclear power plants and other 
facilities above and below ground in concrete containers, etc., 
suitable for safety?
    Mr. Lyons. Yes, Mr. Murphy. That is reviewed on a regular 
basis by the Nuclear Regulatory Commission.
    Mr. Murphy. And they are adequate for how long?
    Mr. Lyons. Excuse me?
    Mr. Murphy. They are adequate for how long? I believe I 
read some studies where some are good for 30 years or so.
    Mr. Lyons. The decision recently reached by the NRC----
    Mr. Murphy. Just give me a number.
    Mr. Lyons [continuing]. Was 30 years after the cessation of 
operations at the site. We have research programs----
    Mr. Murphy. I just have to keep going. It has taken us 30 
years to get this far. Does DOE maintain a record of the 
balance of the nuclear waste fund?
    Mr. Lyons. I am sure they do, sir, but I----
    Mr. Murphy. Or how it is broken down by source or anything?
    Mr. Lyons. I don't have those numbers but I would assume it 
is available.
    Mr. Murphy. Can you get us that information?
    Mr. Lyons. We will provide that for the record.
    Mr. Murphy. I would also like to know if DOE is continuing 
to maintain that record, if it is available to the public, at 
least to the State PUCs and make sure it is updated, and I 
would like to know if we can have that information. That would 
be helpful.
    Mr. Lyons. Well, the number is around $25 billion. I am not 
positive of the exact number.
    Mr. Murphy. We would to know how the fund is broken down.
    Mr. Friedman. That is correct. And it can be provided 
broken down.
    Mr. Murphy. Given that it has taken about 30 years to get 
this far, what makes you think you can suddenly complete this 
by 2020?
    Mr. Lyons. I didn't say we could do it by 2020. I said we 
may be able to do it sooner than Yucca Mountain----
    Mr. Murphy. There is absolutely no basis to assume the 
termination of Yucca Mountain will prolong the process, you 
said.
    Mr. Lyons. I said that there is as g question in my mind 
whether Yucca Mountain will open. As to how soon one could do 
an interim storage site probably could be----
    Mr. Murphy. I am trying to go by the law here, sir, and I 
hope you are too, but the law that Congress signed by the 
President as we have gone through my Administrations here says 
that this is the site that was selected. So I have to ask, is 
there something unsuitable scientifically about the Yucca 
Mountain site?
    Mr. Lyons. The license application submitted by the 
Department of Energy----
    Mr. Murphy. Is it unsuitable? Yes or no. Unsuitable, yes or 
no? Scientifically based, is it unsuitable, yes or no?
    Mr. Lyons. The license application was based on the 
technical criteria.
    Mr. Murphy. Is it unsuitable? Yes or no.
    Mr. Lyons. In the DOE's judgment on their application, it 
met----
    Mr. Murphy. You stated that GAO noted that overcoming 
social and political opposition was crucial, and so in the 
midst of the social and political opposition, I am assuming. I 
am trying to find out if it is scientifically credible or not. 
Did DOE mess this all up over the 30 years? Do we not trust 
anything you do and basically say that all the work that DOE 
has done in the last 30 years on deciding that Yucca Mountain 
is suitable or not, is that scientific garbage or is it 
scientifically credible, yes or no?
    Mr. Lyons. As I indicated, sir, the license application----
    Mr. Murphy. I am trying to find out----
    Mr. Lyons [continuing]. Was based on the technical 
criteria.
    Mr. Murphy. So what does that mean? Is it suitable or not? 
Is it scientifically suitable or not? This is really not hard 
to do, sir. It is a yes or no. There are only two words you get 
to say, yes or no.
    Mr. Lyons. In the judgment of DOE, yes. They don't have the 
final answer.
    Mr. Murphy. That is important. So given that this is 
suitable, I have to find out this thing. Now, you mentioned 
some legal counsel in relation to Mr. Shimkus's question. I 
would like you to provide to this committee all communications 
regarding the judgment from legal counsel at the Department of 
Energy saying that they don't have to comply with the law, 
oral, written, e-mail, anything. It is important that we have 
an opportunity. Will you provide that for us?
    Mr. Lyons. The department has provided about 40,000 pages 
already. We will try to provide what you mean.
    Mr. Murphy. It is important that we have this really parsed 
out so we understand when someone receives legal advice not to 
comply with the law, I would really like to have that there, 
not just say here is 40,000 pages. I hope you can do that.
    Back to the question here with regard to--now that DOE has 
ruled that the site was suitable back in 2002 and you just 
confirmed it, a reversal is going to require new physical 
evidence that the criteria suitability are not met and then DOE 
would have to follow several explicit steps laid out in the 
statute, in the law instead of just walking away. Do you have 
that physical evidence that this site is no longer suitable?
    Mr. Lyons. Again, sir, as was pointed out in my testimony 
and by other speakers already, Secretary Chu has made the 
statement that a workable solution----
    Mr. Murphy. Just the facts.
    Mr. Lyons [continuing]. And public acceptance.
    Mr. Murphy. I am asking the facts. What we don't get to do 
is to say we get to selectively enforce laws based upon that 
the polls change or we need votes in States. I am asking you 
from a scientific--because this is where DOE either is credible 
as an organization or it lacks credibility. I really want it to 
be a credible organization. I have the highest respect for many 
of the scientists in there, and this is an opportunity to 
either be a scientist or go by polling and politics.
    Has there been some physical evidence that says this site 
is no longer suitable which therefore says you are compliant 
with the law by saying we don't have to do Yucca Mountain 
anymore? Is there some scientific evidence out there that says 
it is not suitable?
    Mr. Lyons. As I stated, the license application was based 
on technical criteria. Based on general counsel, the 
Secretary's view is that we do have the authority to withdraw--
--
    Mr. Murphy. I didn't ask if you had the authority. I am not 
sure I am getting anywhere, Mr. Chairman, but I hope you would 
provide that information to us because that is the crux of what 
we are doing today.
    Mr. Lyons. We will continue to provide information as best 
we can.
    Mr. Shimkus. The gentleman's time is expired.
    The chair now recognizes the gentleman from Georgia, Mr. 
Barrow, for 5 minutes.
    Mr. Barrow. Thank you, Mr. Chairman.
    A moment ago when we were going over the subject of the 
cost that has been invested in the program so far, there was an 
attempt to explain some of the value we recouped from this, the 
knowledge, the information, the lessons learned. What I would 
remind you is that the more you spend on something of doubtful 
authenticity, the more likely you are to think you have the 
real deal. If you spent $5 million on a pen-and-ink sketching 
that is reported to be a Leonardo da Vinci, you are very likely 
to believe it is the real deal. If you paid $5 for it, you know 
it is a fake. The point I want to emphasize is, this vast 
difference between the value of a lesson learned and the cost 
of a lesson learned, and I am not exactly sure we have a good 
understanding of the difference, what the magnitude of the 
difference is in this particular case.
    I want to try to see where we go from here. I want to 
change the subject just a little bit. I had been present when 
Secretary Chu has summed up the cost to the American consumer 
of the fact that we were a nuclear pioneer country in this 
world and we went down a bunch of different paths and got 
different designs for different reactors here and there. It is 
part of the legacy costs of being the pioneer and going first 
and actually developing all kinds of different ideas. He was 
talking to one of his colleagues in France, and his French 
colleague says it is very simple what the problem is you 
Americans, you have 80 different reactors and one cheese; we 
have 80 different cheeses and one reactor. It is a good lesson 
to learn. We have 80 different waste repositories in this 
country, whether we know it or not and whether we like it or 
not, and we have a whole array of approaches toward dealing 
with the problem for the foreseeable future. Some of these are 
wet storage, dry storage. Some are a lot more stable, some are 
a lot more safe than others. Meanwhile, the American consumer 
has been paying for this long-term repository program that has 
stopped dead in its tracks right now. Two-thirds of the cost 
has just been paid by ratepayers, whether they know it or not 
and whether they like it or not and whether they support it or 
not. Another third of this has been paid by the general fund by 
taxpayers chipping in their income taxes to run the government. 
All the money that has been paid in so far I gather has been 
spent but the money is still coming.
    One question I have, and maybe this is addressed in part to 
the Blue Ribbon Commission but I want to address it to you all, 
is what can we do to divert that income stream to provide some 
stability, some predictability and some safety in the meantime 
for all those utilities that are running and operating these 
plants now and trying to operate these 70 waste repositories on 
site that we have got right now? For example, if the money they 
are forced to extract from customers in the form of an excise 
tax on the rates they are paying can be diverted back to those 
utilities on the condition that it be used to take wet storage 
and turn it into dry storage, something that is inherently 
unstable and likely to get loose into something that is very 
stable, an asset that would not be stranded, something that 
would have lasting value no matter what we are going to do in 
terms of a long-term repository, wouldn't that be a useful 
thing to do in the meantime? Does anybody have any suggestions 
along those lines of what we can do with the current mess we 
are in?
    Mr. Gaffigan. I would say there are a couple hurdles. You 
know, under the Nuclear Waste Policy Act, the money is being 
collected for a long-term repository, and we talk about maybe 
using it for a centralized repository. DOE is saying they don't 
have the authority to use that fund for that so there would 
have to be some change in law for that.
    In the meantime, industry is saying if you are not going to 
pursue a long-term repository, stop collecting the money. DOE 
is proceeding to collect the money. In fact----
    Mr. Barrow. That would require a law, wouldn't it?
    Mr. Gaffigan. And they are proceeding on the basis of a 
Yucca Mountain by 2020. That is how they base their rates. So, 
you know, Mr. Lyons may have some doubt about the 2020 date but 
it is still being used by DOE as the best alternative going 
forward.
    Mr. Lyons. If I may add to that?
    Mr. Barrow. Go ahead, Dr. Lyons.
    Mr. Lyons. The Department of Energy recognizes it has the 
responsibility for the long-term management of the used fuel. 
As that fuel is being generated at your Plant Vogtle, for 
example, whatever the future option is going to be, that still 
will require handling by the Department of Energy. That is the 
rationale for continuing to collect the fee, and there has been 
no rationale, at least demonstrated to date, to change that 
fee.
    Mr. Barrow. Well, here is my concern. I recognize you all's 
need to set aside a little something in the future for handling 
the charges you all are going to incur in the future, but you 
don't have any ideas of when you are going to be handling 
nothing, and we are handling it right now. My ratepayers are 
handling it right now and our customers are handling it right 
now.
    My question is--and the questioning has shined a light on a 
problem when you have a law that tells you what this policy is 
going to be, it is going to take 25 years to implement and a 
lot of annual appropriations bills that have to get through 
both Houses of Congress in order to implement. I mean, if we 
are going to have to have a change in law to do anything 
positive, can we at least open the discussion and put on the 
table the idea of changes we can all agree on to try and manage 
the problem on site as long as it takes us to get our act 
together? Because what took an act of Congress to start us down 
the course and a plan that required several Congresses to go 
along with it is going to require another act of Congress to 
fix. Let us have an interim strategy we can all agree on. Let 
us try to work together on that. That would be my suggestion.
    Thank you. I yield back.
    Mr. Shimkus. The gentleman yields back his time.
    The chair now recognizes the gentleman from Pennsylvania.
    And just for the record, they are supposed to call votes at 
2:30. We will try to get one or two more rounds of questioning 
before we go down to vote but we will have to adjourn because 
there are three votes in a row and not everybody will be 
through, so we will have to recess.
    The gentleman from Pennsylvania is recognized for 5 
minutes.
    Mr. Pitts. Thank you, Mr. Chairman.
    Mr. Gaffigan, the Nuclear Waste Policy Act of 1982 created 
a federal legal obligation to accept nuclear fuel and dispose 
it in a geologic facility. Is that correct?
    Mr. Gaffigan. There was a commitment on the part of the 
Federal Government to take possession of the waste and explore 
a long-term repository.
    Mr. Pitts. So is it accurate to say in light of this law 
that Congress resolved how to manage spent nuclear fuel and 
high-level waste back in 1982?
    Mr. Gaffigan. It was a decision made by the Congress to 
pass the Nuclear Waste Policy Act. That is correct.
    Mr. Pitts. The development of the act was not the 
development of a single Congress or some partisan maneuvering, 
was it?
    Mr. Gaffigan. No.
    Mr. Pitts. In point of fact, in 1982 when the Nuclear Waste 
Policy Act was enacted, there was a Republican President, a 
Republican Senate and Democrats firmed controlled the House. In 
1987, when Congress determined Yucca Mountain consistently of 
the top three sites was to be examined for a repository, there 
was a Republican President and Democrats controlled both the 
House and Senate. In 2002, leadership of the Congress was 
reversed but Congress overwhelmingly resolved to support Yucca 
development 306-117. So when the Nation through its elected 
representatives resolved how to solve the nuclear waste 
problem, it did so in a consistently bipartisan fashion, 
wouldn't you agree?
    Mr. Gaffigan. Those are policy decisions based by the 
Congress.
    Mr. Pitts. Dr. Lyons, the Department of Energy motion to 
withdraw the license application said ``the Secretary has 
decided that a geologic repository at Yucca Mountain is not a 
workable option for long-term disposition.'' Was the 
Secretary's decision based on internal department scientific 
evaluation by the Administration?
    Mr. Lyons. As I indicated, the license application was 
based on the technical criteria and the Secretary in his 
evaluation recognized the importance of technical criteria and 
social acceptance criteria.
    Mr. Pitts. Was it based on any scientific evidence that 
Yucca is not workable?
    Mr. Lyons. No, it was based on the concern that there are 
two major criteria, as I indicated.
    Mr. Pitts. Isn't there in fact ample scientific evidence 
that Yucca is workable and safe?
    Mr. Lyons. That would remain to be determined if this were 
to move through the process, sir. In the DOE's estimation when 
they submitted the license, that was their determination.
    Mr. Pitts. Has the department determined that Yucca 
Mountain's repository is not suitable to meet the relevant 
safety standards for long-term storage of spent fuel and 
nuclear waste?
    Mr. Lyons. No, there is no data that has been presented 
along those lines. However, again, the decision has made to 
withdraw, and whether that--and the legality of that is being 
tested both through the NRC and the courts.
    Mr. Pitts. In fact, DOE still stands behind the quality of 
its application that the repository can be built and protective 
of the public health for 10,000 years and more. Isn't that the 
case? Doesn't DOE in fact admit as much in its application to 
the NRC?
    Mr. Lyons. Those were the technical criteria and others 
that were deemed met by the Department of Energy.
    Mr. Pitts. So technically speaking, Yucca Mountain remains 
a workable option. Why is it not workable in DOE's view?
    Mr. Lyons. I don't know how else to say it, sir, other than 
the Secretary in his view, which I agree with, views both 
technical criteria and social acceptance criteria as key to 
ever moving ahead towards successfully opening a repository.
    Mr. Pitts. What scientific evaluations has DOE performed to 
make this determination?
    Mr. Lyons. I believe I just indicated that it was a 
question of social public acceptance.
    Mr. Pitts. So this is the opinion of the Secretary. Did DOE 
inform this opinion? Was anyone from the White House or the 
Administration involved in this decision in any way?
    Mr. Lyons. That was before I was involved. I simply can't 
answer that, sir. I know the Secretary certainly has the 
benefit of general counsel that it was within his rights to 
withdraw the application, and that is now in the courts and the 
NRC.
    Mr. Pitts. Thank you, Mr. Chairman.
    Mr. Shimkus. The gentleman yields back his time.
    The chair recognizes the chairman emeritus, Mr. Dingell, 
for 5 minutes.
    Mr. Dingell. Thank you, Mr. Chairman, for your courtesy.
    This is to Mr. Gaffigan. We have here a splendid situation 
where the Federal Government has invested huge sums of money in 
a thing that we cannot use. We have taxed the daylights out of 
the ratepayers, and how much is that fund that we have taxed 
into the ratepayers?
    Mr. Gaffigan. Currently, the current balance is about $25 
billion and about----
    Mr. Dingell. How much have we spent of that on what?
    Mr. Gaffigan. Almost $10 billion.
    Mr. Dingell. Almost 10. And what----
    Mr. Gaffigan. Just to clarify, we spent about 10, plus 
there is another 25 sitting there.
    Mr. Dingell. So we have got a gigantic hole in the ground. 
Now, tell me, there is a lawsuit going on in this matter, is 
there not?
    Mr. Gaffigan. There is, sir.
    Mr. Dingell. And the Federal Government is being sued, but 
because of the mercy and the charity of the plaintiffs in that 
lawsuit, it has never progressed to the point where it is going 
to lead to a judgment. Is that right?
    Mr. Gaffigan. There was some oral arguments taken in March 
of this year. The basic gist of those arguments was whether 
there was a final action of the government, whether the NRC was 
going to rule, so that was the gist of the oral arguments. We 
haven't heard anything since.
    Mr. Dingell. I am just a poor Polish lawyer from Detroit, 
but you have stated that DOE officials stated they have 
frequent meetings and focus groups to help guide the shutdown. 
Can you tell me what that means?
    Mr. Gaffigan. We had a hard time knowing what that means. 
We asked----
    Mr. Dingell. Does DOE know what that means?
    Mr. Gaffigan. Well, I think they know what it means but we 
asked them, could they at least document what they have in 
terms of a shutdown.
    Mr. Dingell. Did they explain it to you?
    Mr. Gaffigan. They said they had a draft plan, they were 
working on it, and this is something the IG looked at.
    Mr. Dingell. Has that draft plan been submitted to anybody, 
Mr. Chairman?
    Mr. Shimkus. Not that I know of.
    Mr. Lyons. No, sir, the draft plan was not completed, and 
instead the department moved ahead as expeditiously as possible 
to shut down by the end of fiscal 2010.
    Mr. Dingell. Could we get the draft plan? I think it would 
be nice if you would share it with us. Would you submit it, 
please?
    Mr. Lyons. I honestly don't know if it is completed, sir. 
If it is available, yes.
    Mr. Dingell. I don't care whether it is completed. Submit 
the darn thing to the committee and we will tell you what we 
think of it.
    Now, in your testimony, Secretary Lyons, you said that DOE 
takes exception to a statement in the GAO report that a final 
impact of terminating Yucca Mountain is that communities may be 
even less willing to host spent nuclear fuel repositories or 
other storage sites in the future due to further erosion of 
DOE's credibility. You go on to say that on the contrary, a new 
start could lead to enhancement of the credibility of the 
department's approach. I don't mean to make light of a 
difficult situation but to your knowledge have communities 
around the country been volunteering to host a nuclear waste 
repository?
    Mr. Lyons. Yes, sir, there have been communities that have 
corresponded with the department.
    Mr. Dingell. Who has volunteered to do this?
    Mr. Lyons. One I am aware of is in New Mexico around the 
Carlsbad area. There may be others. I don't know.
    Mr. Dingell. Is that for high-energy waste or----
    Mr. Lyons. Again, this is local communities supporting, 
yes, sir.
    Mr. Dingell. Now, Mr. Friedman, how much is closing out the 
Yucca Mountain project costing the Federal Government?
    Mr. Friedman. You know, Mr. Dingell, I am not sure of the 
answer to that question.
    Mr. Dingell. Would you please get it and submit it for the 
record?
    Mr. Friedman. If I can, I certainly will.
    Mr. Dingell. It isn't going for peanuts, is it? It is 
costing lots of money, isn't it?
    Mr. Friedman. No, no. They have spent a great deal of money 
on the licensing support network and finalizing some of the 
technical studies that have been done.
    Mr. Dingell. Now, how much is it estimated that the 
closeout of Yucca will impact the Department of Energy's 
environmental remediation liability? Do you have any estimate 
on that?
    Mr. Gaffigan. We do. We expect that it will be----
    Mr. Dingell. Would you submit that and the answer to that 
for the record?
    Mr. Gaffigan. I certainly will.
    Mr. Dingell. Now, how much has the United States invested 
in the Yucca Mountain project? How much of that was from the 
nuclear waste fund, i.e., the ratepayers, and how much from the 
Federal Government, i.e., the taxpayers?
    Mr. Friedman. It was about two-thirds, one-third, two-
thirds from the rate fund, about $10 billion----
    Mr. Dingell. What does that come down to, Mr. Gaffigan?
    Mr. Gaffigan. Where does that what?
    Mr. Dingell. How much does that come down to coming out of 
the skin of the ratepayers and taxpayers?
    Mr. Gaffigan. Ten billion from the ratepayers and about $5 
billion from the taxpayers, and that doesn't include any of the 
judgment fund.
    Mr. Dingell. Now, you know, fellows, I know my questions 
seem repetitive and everybody who comes up here from the 
department gets the same because we have all heard about how 
much spent nuclear fuel is stored at various sites around the 
country and we just destroy the damn stuff. We don't reprocess 
it the way the French do but we dig holes that cost lots of 
money. And then we sit around and you guys come up and explain 
to us and a little while later somebody else runs the committee 
and then you come up and explain to us again, or your 
successors do. And so we have got a facility here that 
everybody wants to do something with. We have got a resource 
that we are not using. We are threatening nuclear, which is 
extremely important to this country in an energy shortage and 
all the other problems that we have, and it seems that we have 
no long-term plans for dealing with spent nuclear waste and the 
best we can say is that you seem to be proceeding down a very 
dangerous path with more and more and more of this stuff piled 
up. And Members of the Congress need to know what is going on. 
We need to protect the funds collected and we need to have a 
long-term solution, either storage that will work or 
reprocessing, and when are you going to get to this? This 
question was going on when I was chairman of the committee, and 
as a matter of fact, it was going on when I was a young member 
of this body. When is it that I can look forward to being young 
enough that I am going to get an answer on these questions?
    Mr. Lyons. I think the best answer, sir, is that that is 
the charge of the Blue Ribbon Commission. They will have their 
interim report in July of this year. I am looking forward to 
that report, and I too have been working many years to 
understand what the long-term solutions acceptable in this 
country will be.
    Mr. Dingell. Thank you, Mr. Chairman.
    Mr. Shimkus. The gentleman's time is expired.
    Just for notice to my colleagues, first a question. We have 
votes on the floor. We are going to finish with the Chairman 
Emeritus Barton for 5 minutes and then we will recess. The 
question to my colleagues is, what is your pleasure to ask the 
first panel to come back, because some of you have been waiting 
to address questions to them, or do we go to second panel? You 
want the first panel?
    Mr. Barton. I think you should let this panel come back 
because some of the members----
    Mr. Shimkus. That is my question, and that is what I am 
posing to my colleagues, and I think that we will ask you to 
come back after votes to finish.
    The chair recognizes Chairman Emeritus Barton for 5 
minutes.
    Mr. Barton. Thank you, and I know that we have to vote so I 
am going to go through this pretty quick.
    We had the Nuclear Waste Policy Act in 1982 as amended in 
1987. That is 29 and 24 years ago. Under that law, the Nuclear 
Regulatory Commission and the Department of Energy are 
authorized to find a permanent repository for the high-level 
nuclear waste both from civilian and military applications in 
this country. Through a convoluted process, Yucca Mountain was 
chosen as the repository. It has been through innumerable 
hearings, studies, but back in 2008 a license application was 
tendered to the Nuclear Regulatory Commission by the Department 
of Energy. I think the law gives them 4 years to make a 
decision. With the change in the Administration, the Obama 
Administration last year asked to withdraw that application. 
The board empowered to make the decision whether the 
application should be withdrawn in a very unusual decision 
chose not to allow it to be withdrawn and now we have got a 
very convoluted process at NRC where we are trying to determine 
whether there is a vote or isn't a vote, and we are in 
discussions on a bipartisan basis with the Chairman of the 
Nuclear Regulatory Commission about that issue.
    The purpose of this hearing is to determine what the legal 
criteria are for the Department of Energy to terminate Yucca 
Mountain, and the distinguished Deputy Secretary or Under 
Secretary has said, if I heard him correctly, that that 
decision was based on social public acceptance. Is that 
correct, Dr. Lyons?
    Mr. Lyons. As Secretary Chu has testified many times, yes, 
he views both technical criteria and public acceptance----
    Mr. Barton. Where in the NWPA does it say that social 
public acceptance is a criteria?
    Mr. Lyons. I didn't say it was in the Nuclear Waste Policy 
Act. I said that it----
    Mr. Barton. Then why is that a variable in the decision-
making process?
    Mr. Lyons. Again, sir, our Secretary has the benefit of 
legal counsel, and this is in the courts and in the NRC----
    Mr. Barton. If the Secretary of Energy decided that the 
Yucca Mountain wasn't acceptable because it was in the desert, 
would that be a criteria? If he just decided he didn't like the 
color purple, would that be a criteria?
    Mr. Lyons. I think you know our Secretary, sir, and he 
would have substantially stronger criteria.
    Mr. Barton. I don't think social public acceptance is a 
criteria under the law.
    Mr. Lyons. As I noted in my testimony, there are many, many 
actions that are still required if Yucca Mountain were ever to 
open. Many of those decisions require permits and concurrences 
from the State of Nevada.
    Mr. Barton. But my understanding is that everybody at your 
level and above has to hold up your hand and take an oath of 
office or an oath to uphold the Constitution and defend the 
laws of the United States and all of this. We have a current 
public law that has not been amended that gives the Department 
of Energy the authority to tender an application. That 
application has been tendered. The Secretary decided to 
withdraw it but the board responsible for accepting that 
withdrawal said no. So I would assume the Secretary of Energy 
is knowingly and willfully violating federal law.
    Mr. Lyons. Well, as you are aware, sir, the day after the 
ASLB made that decision, then the commission decided that they 
wished to take review. That is their prerogative as the 
commission.
    Mr. Barton. And we are in a, it is not a negotiation but we 
are certainly in a situation where we are trying to determine 
with the chairman and the current members of the NRC just what 
they have decided or not decided to do, and that is a 
convoluted mess if I have ever seen one.
    Mr. Lyons. I certainly can't comment on what is going on at 
the NRC, but between the NRC and the courts, because this is 
also in the courts, the legality of that withdrawal is going to 
be determined eventually.
    Mr. Barton. Well, I have got 51 seconds. If this Congress 
affirmatively states that the application should continue to be 
reviewed and that Yucca Mountain should continue to be 
considered according to current law, is the Secretary of Energy 
and the President of the United States going to honor that law?
    Mr. Lyons. If we are ordered by one of those mechanisms 
that is not appealed to resume the license, we have indicated 
repeatedly in testimony that yes, we can and will. However, at 
part of our thinking, Congress has not provided any 
appropriations in fiscal year 2011.
    Mr. Barton. I have a feeling we will, before the end of 
this year, do so.
    With that, I yield back, Mr. Chairman.
    Mr. Shimkus. And just to correct the record, that is not 
true. We stopped funding for the last half of fiscal year 2011 
in the C.R. The first part of the fiscal year was under a 
continuing resolution that still had it, and that is another 
issue of debate.
    The chair recognizes Mr. Inslee for as much time as he can 
consume before we have votes.
    Mr. Inslee. Thank you.
    This is very disturbing on a couple of bases. One is, in my 
State, the State of Washington, we have people very diligently 
trying to follow their obligations legally and in their 
profession getting this waste ready to ship to Yucca. They are 
going to be ready to ship 9,700 canisters to Yucca. They are 
doing their job, but the department is not doing its job, and 
that is on a local concern.
    But on a national concern, I just think this situation is 
one of a failed state. They talk about failed states around the 
world. Because of the failure to follow the clear law here, 
this is the equivalency of a failed state. We reached a 
national decision. It is unpopular in one local part, a 
beautiful part of the country, as it will be in any part of the 
country that we ever have this decision made, and yet we can't 
execute a decision.
    Now, this sort of flagrant statement that social acceptance 
is now a legal criteria, I don't understand. I will just ask 
Dr. Lyons, how are we ever to build anything like a nuclear 
waste repository anywhere in the United States if social 
acceptance is a mandatory criteria to build something?
    Mr. Lyons. I used the example in my testimony of the Waste 
Isolation Pilot Plant in New Mexico, which has the strongest 
local acceptance, and I noted that there are a number of 
international examples where with careful education with 
transparent processes, there has been strong acceptance of 
repository programs.
    Mr. Inslee. So why didn't you do the same thing in Nevada?
    Mr. Lyons. I also indicated in my testimony----
    Mr. Inslee. Are you saying there is something unique about 
Nevadans that make them unique in the United States and this 
will be welcome as rosewater in the rest of the United States?
    Mr. Lyons. Sir----
    Mr. Inslee. It is going to smell the same no matter what 
name we put on it, and this is just a failed policy looking for 
another social acceptance criteria failure around the United 
States. What evidence do you have that there is any more 
socially acceptable place for this particular situation?
    Mr. Lyons. I provided the example of the Waste Isolation 
Pilot Plant. That is a different repository, different type of 
repository, but it is a repository and it has strong local 
acceptance.
    Mr. Inslee. And obviously in the decision-making of the 
department based on the best science and geology and hydrology, 
we decided Nevada was the best place, but now you are telling 
me we are going to maybe look for a less scientifically 
credible, less geologically stable, less hydrologically 
isolated place because we might get a little better social 
acceptance. That is a failed policy by a failed state, and I 
have to tell you, regardless who the Administration is, an 
abject failure to follow federal law here is most disturbing 
and it is unacceptable, and I don't really want to belabor you 
with too many more questions. I just want to tell you it is 
unacceptable by any Administration of any party. To make its 
decision when we are dealing with this number of curies of 
radiation based on social acceptance is just not a winner for 
this country. Thank you.
    Mr. Shimkus. The gentleman yields back his time.
    The votes are being called right now. There are three 
votes. That is probably going to run around 30 minutes. We will 
see who comes back, who hasn't asked questions of the first 
panel, and if not, be prepared to answer questions but having 
done this before, it may be it for you all but you need to be 
here in case someone wants to ask you all a specific question.
    I will recess this hearing subject to the call of the 
chair.
    [Recess.]
    Mr. Gardner [presiding]. We will go ahead and resume the 
hearing. I recognize myself for 5 minutes for my opportunity to 
question.
    Thank you very much for being here today and your time to 
share with us. Just a couple of quick questions for you based 
on some previous testimony by Dr. Lyons. I heard a great deal 
of discussion regarding social acceptance, the social 
acceptance theory as it pertains to the Yucca Mountain license. 
Mr. Gaffigan, can you cite any statutory authority for social 
acceptance criteria?
    Mr. Gaffigan. Not in the Nuclear Waste Policy Act.
    Mr. Gardner. Mr. Friedman, can you cite social acceptance 
criteria in the statute?
    Mr. Friedman. Not that I am aware of.
    Mr. Gardner. Dr. Lyons, can you cite statutory authority 
for social acceptance?
    Mr. Lyons. I am not citing statutory authority, sir, but 
what I have tried to indicate is the number of steps that would 
be required to ever open Yucca Mountain, steps that Nevada 
stands, I believe, in opposition to, and I believe they could 
very successfully block that.
    Mr. Gardner. So you would agree that there is no statutory 
authority or basis for social acceptance theories as criteria?
    Mr. Lyons. Not specifically in the Nuclear Waste Policy 
Act.
    Mr. Gardner. So the answer is no, then, there is no 
statutory authority for social acceptance?
    Mr. Lyons. No.
    Mr. Gardner. Thank you. And what is the theory of your 
legal counsel when he believes that social acceptance is a 
valid criteria?
    Mr. Lyons. Our Secretary has outlined that many times. The 
briefs that are our general counsel has filed either with the 
NRC or in the court cases, those are available; your staff has 
them. That spells out the position of the general counsel. I 
certainly won't try to repeat it. I am not a lawyer.
    Mr. Gardner. Thank you, Dr. Lyons.
    Mr. Friedman, your role as Inspector General, what is that 
role in a nutshell?
    Mr. Friedman. Well, I have four responsibilities, Mr. 
Gardner. One is to act as an independent set of eyes and ears 
for the Secretary and for the Congress. Two is to bring to 
justice those who are attempting to defraud the people of the 
United States. Three is to be independent fact finders in high-
profile controversial matters, and four is to give the U.S. 
taxpayers a seat at the table when important government 
decisions are made.
    Mr. Gardner. Thank you, Mr. Friedman. Mr. Friedman, do you 
believe that the social acceptance criteria is a valid theory?
    Mr. Friedman. Mr. Gardner, I don't exactly know how to 
answer that question, to be honest with you. You asked me 
whether I thought it was in statute, and I don't believe that 
it is per se, so I would have to say it is somewhat 
questionable from a legal standpoint, but I am not a lawyer and 
I am not making legal judgment.
    Mr. Gardner. Mr. Friedman, in the four roles that you 
mentioned the Inspector General has under its purview, do you 
believe one of them is to expect or to perhaps visit with the 
Secretary's office about the social acceptance criteria that 
they are using if you believe there is no statutory authority?
    Mr. Friedman. Well, we also have a responsibility under the 
IG statute, Mr. Gardner, not to overlap and duplicate what GAO 
has done. So I think it is fair to say that GAO's report, which 
has obviously been a major topic of this hearing, has really 
addressed that issue essentially.
    Mr. Gardner. Thank you. And a further question, Mr. 
Friedman. You stated that it is likely that the termination of 
the Yucca Mountain project will significantly impact the 
department's environmental remediation liability, which is 
currently estimated at $250 billion in future cleanup costs. 
Have you seen any evaluation by the department regarding how 
its decisions will affect this liability?
    Mr. Friedman. No. What we are anticipating, I indicate in 
my long testimony, my complete testimony, that we will be 
looking at this as the department prepares its financial 
statements for the current fiscal year, and they will be 
responsible for coming up with a revised estimate, which will 
reflect their judgment as to the impact of the closure of Yucca 
Mountain on the liability, and we will be reviewing that 
carefully at that time.
    Mr. Gardner. The Department of Energy's recent actions to 
dismantle its nuclear stockpile will increase the volume of 
defense nuclear waste. How has the department planned to 
accommodate this waste as it shuts down Yucca Mountain?
    Mr. Friedman. Well, Yucca Mountain, approximately 10 
percent of Yucca Mountain was designated, as I recall, for 
high-level defense spent nuclear waste. My understanding is 
that the current inventory of waste in that category exceeds 
even the 10 percent of Yucca Mountain that was reserved for 
that purpose originally. There are lots of proposals right now 
to compact the waste, to mix it with--to down blend it, if you 
will. But the fact of the matter is, it will have an impact as 
the level of the waste grows.
    Mr. Gardner. Did the Department of Energy consider whether 
its role in START would be compromised by its decisions on 
Yucca Mountain?
    Mr. Friedman. Well, that obviously is a very fundamental 
issue, Mr. Gardner, and to be honest with you, it is outside of 
my area, my purview. I don't know the answer to the question.
    Mr. Gardner. Dr. Lyons, do you know if DOE did any analysis 
under START implications?
    Mr. Lyons. I have not seen such analysis. However, the 
department recognizes its responsibilities for defense high-
level waste. That has never been in question.
    Mr. Gardner. Thank you. My time is expired.
    The chair recognizes Mr. Cassidy for 5 minutes.
    Dr. Cassidy. On June 29 an administrative court judge--the 
Department of Energy did not have the authority to close Yucca 
Mountain.
    Mr. Lyons. June 29, 2010.
    Dr. Cassidy. Yes. But you did anyway. I mean, does the rule 
of law have no say-so? Does the attorney you sought an opinion 
from trump the administrative procedures that have been set up 
to hear your concerns?
    Mr. Lyons. The Atomic Safety Licensing Board decisions are 
reviewed by the commission. The commission can take review of 
any ASLB decision and the commission--and I was no longer on 
the commission at that time--would like to take review of that 
decision. That moves the responsibility from----
    Dr. Cassidy. Excuse me. I have limited time. So the 
commission has not yet issued its report and frankly, there are 
some allegations of politicization of the process. But was 
there a stay upon the ruling of the preliminary administrative 
court, the June 29, 2010, board, was there a stay upon that? 
The ruling has not been released by NRC but clearly you are 
disregarding it.
    Mr. Lyons. Not being a lawyer, I don't want to get into a 
question of what a stay is in this case. I am positive that my 
statement is accurate that the commission has taken the review 
and the action is with the commission and the----
    Dr. Cassidy. But you preempted the action of the 
commission, if you will, because they have not yet issued a 
ruling but you have shut down Yucca Mountain, even though you 
were told you didn't have legal standing to do so, and if you 
are not an attorney, I would ask next time you bring an 
attorney because it is really fundamentally the question that 
is before the taxpayers. We just blew $10 billion. It frankly 
doesn't look like you had legal standing, and I am getting a 
little bit of a legal rope a dope by you saying that you are 
not an attorney, and I don't mean to be rude, but imagine the 
frustration.
    Now, let me ask you next. Mr. Friedman's complete testimony 
in the written portion speaks of a process whereby after you 
disregarded this Atomic Safety Licensing Board's ruling and 
decided on 10/1/2010 to shut it down, you declared an 
abandonment of, what was it, 22 metric tons, Mr. Friedman?
    Mr. Friedman. You may be referring to the GAO report, Mr. 
Cassidy.
    Dr. Cassidy. Oh, I thought it was your report where this 
was declared abandoned.
    Mr. Gaffigan. It was some property that was declared 
abandoned.
    Dr. Cassidy. Tons. Now, granted it was steel and----
    Mr. Gaffigan. Computers, office equipment, that sort of 
thing.
    Dr. Cassidy. Yes, trailers, I mean, stuff of both value by 
bulk and by value. Why did you just declare it abandoned? I 
mean, frankly it looks like you were trying to make it so it 
would be expensive to restart, again, after deciding to 
disregard the Atomic Safety Licensing Board's ruling. Why did 
DOE just declare it abandoned?
    Mr. Lyons. Again, sir, those decisions were carefully 
reviewed by our general counsel. Abandonment is one of the 
mechanisms by which property can be disposed. The department 
was certainly working on an expedited schedule to complete the 
shutdown within fiscal year 2010.
    Dr. Cassidy. So----
    Mr. Lyons. Or I should say that there is a complete 
inventory underway now and there will eventually, as we go into 
the closeout process, there will be a reconciliation.
    Dr. Cassidy. One of the two--again, for whatever reason, I 
came back and not entirely organized but one of the men had 
testimony that said that it was a rather hasty shutdown and 
that the complete sort of gathering of information that would 
have been beneficial was not done, that I gather intellectual 
property was lost. Am I speaking for one of the two of you?
    Mr. Gaffigan. I would sort of summarize, I think both the 
IG and GAO had concerns about the lack of a plan to shut down. 
They basically started shutting down in June of 2010--I am 
sorry, February of 2010 and had basically completed shutdown by 
September of 2010. During that time, there was a draft plan 
that never got finalized. They were trying to get things done 
quickly, and we raised concerns about that.
    Dr. Cassidy. So it really looks like there was an attempt 
to abandon the process in a way which it could not be 
restarted.
    Mr. Lyons. Absolutely not, sir. As part of the quality 
assurance program, as each decision has been made along the 
way, the technical justification for that must be recorded in 
writing----
    Dr. Cassidy. So who made that decision to abandon tons of 
material including things that could have been sold for scrap 
or given to other federal agencies, instead, to turn it over to 
a contractor? Who made that decision?
    Mr. Lyons. It was an evaluation on the prospective value of 
the property in that decision. However, I believe both of the 
reports in question here note that the majority of this 
equipment in question was transferred to other DOE sites, 
particularly Hanford.
    Dr. Cassidy. Well, I thought I saw where it was abandoned.
    Mr. Gaffigan. It is declared abandoned, but then under that 
process they can transfer it to other sites, so Dr. Lyons is 
right. Most of it got transferred internally. It was considered 
unusual but DOE had the authority to do that.
    Our concern was, and we put this out in our 
recommendations, that, number one, in some cases they didn't 
have a good inventory. They would say they are working on and 
we would say great and they should have a full accounting for 
the inventory and what was sold. We still think that remains to 
be done. And then lastly, we think they should consider a plan 
to restart if they are compelled to do so. Those were our two 
recommendations.
    Dr. Cassidy. I yield back. Thank you.
    Mr. Gardner. The gentleman from North Carolina, Mr. 
Butterfield, is recognized for 5 minutes.
    Mr. Butterfield. Thank you very much, Mr. Chairman, and I 
thank the three witnesses for their testimony today. I am sorry 
I could not hear their testimony in their entirety but I will 
certainly work with my staff and look at your transcript as we 
go forward.
    But Mr. Chairman, by any assessment, this is a very, very 
complicated issue, but it is clear to me that the Department of 
Energy's decision to withdraw its application for Yucca 
Mountain is really the cherry on top of a greatly mismanaged 
federal exercise. I generally believe that the Department of 
Energy should follow the process laid out by the act and 
maintain focus on the technical and scientific elements of 
Yucca Mountain rather than the political considerations, but I 
am a realist and I understand that all politics are local, and 
that if any of our respective constituents came to us and said 
this is our number one issue, we would certainly fight tool and 
nail to stop it even if the focus should be technical in 
nature.
    Notwithstanding, ratepayers in my home State of North 
Carolina have contributed $900 million of their hard-earned 
money to help finance the construction of a permanent 
repository for our nuclear waste. I believe in nuclear power. I 
have said it time and time again. It makes up over 30 percent 
of my State's generating capacity. I am embarrassed to tell my 
constituents that their contributions have amounted to very 
little as we appear to be in no better position for solving 
this problem as we were when we started splitting atoms. We 
have a responsibility to see this process through and to make 
it a high priority.
    So let us talk about some of the options set out by the 
GAO. Mr. Gaffigan, you stated that an independent organization 
with predictable funding might be a way to overcome some of the 
administrative issues we have had with Yucca. Would such an 
independent organization have to be created by statute or does 
the Administration have the authority to create it?
    Mr. Gaffigan. Currently, no separate authority exists so I 
think it would have to be created.
    Mr. Butterfield. Obviously, you might eliminate some of the 
political capriciousness by granting this agency predictable 
mandatory funding but eventually the decision to site a 
repository will be inherently political, and we all understand 
that. That said, outside of funding, how could this independent 
agency be able to overcome the political hurdles with any 
greater efficiency than the Department of Energy?
    Mr. Gaffigan. We had two lessons learned, and that is part 
of it. That is sort of the first lesson that perhaps some 
consistent leadership policy on where we are going would be a 
mechanism to get there, overcoming the many factors including 
public acceptance, which is recognized by many as a hurdle that 
should be addressed, just as well as the technical and safety 
issues. The key to those sorts of things is transparency, 
education, economic incentives. Those are some of the tools 
that have been used in other countries to gain acceptance for 
such a site.
    Mr. Butterfield. You talked about greater transparency in 
the process. Where do you see historical transparency gaps and 
how might they be closed?
    Mr. Gaffigan. It goes back to the 1960s when they looked at 
a facility in Kansas. There was, you know, a feeling on the 
part of the folks that were out there that there wasn't full 
disclosure of what the information was. Even in the process of 
Yucca Mountain, there has been some complaints about not full 
disclosure of the different issues out there, and I think DOE 
to its credit has worked on that and tried to establish some 
credibility but it still has a ways to go, particularly in the 
eyes of the folks from Nevada.
    Mr. Butterfield. The American people may not take notice of 
this issue based upon the spent fuel issue alone but I 
guarantee you that they will notice when the cost of not 
completing the project becomes known.
    Mr. Friedman, to you, sir, in your testimony, I am told by 
my staff that you stated that the U.S. spent nuclear fuel 
litigation liability is approximately $15 billion. If the Yucca 
project is completely scuttled and no clear path is 
established, when will the government have to make these 
payments and to whom?
    Mr. Friedman. I don't know the answer to your question, Mr. 
Butterfield. I can't give you a precise date. But there will be 
payments that will have to be made, there is no doubt, and our 
view is that it is likely that there will be a significant 
increase in the gross amount of the payments.
    Mr. Butterfield. And will my constituents and the 
chairman's constituents and all of our constituents ever see 
any refund of the money that they have contributed to this 
date?
    Mr. Friedman. Well, that is not for me to say. I mean, if 
this project actually comes to a close, if there is a 
legislative fix or amendment or series of amendments or new 
legislation, then it wouldn't surprise me that there would be 
some attempt to try to reimburse those who have made those 
contributions only to see them go for naught.
    Mr. Butterfield. Thank you. My time is expired. Thank you.
    Mr. Gardner. The chair recognizes Mr. Bass from New 
Hampshire for 5 minutes.
    Mr. Bass. Thank you very much, Mr. Chairman.
    The answer to Mr. Butterfield's question is that the only 
way you are going to get their money back is to open this 
project.
    Lots of questions have been asked today, and Dr. Lyons, I 
have to say I almost feel sorry for you. You know what is going 
on here. Everybody in the audience knows what is going on here. 
The Democrats, Mr. Inslee, Mr. Green, all the Republicans know 
what is going on here, and it is unfortunate that we even have 
to have this hearing. The process of debating what to do with 
high-level and low-level nuclear waste began when I was a State 
rep in New Hampshire in the early 1980s and I believe there was 
a site in New Hampshire that was under consideration in some of 
the earlier rounds. We have gone through an excruciatingly 
detailed and complete analysis. We passed legislation. There 
have been battles that have occurred, as we have heard, through 
different Administrations, different parties have been in 
charge, it has been bipartisan, and we have come to as good a 
conclusion as we could possibly come to to solve this issue, 
which is of grave national importance.
    And then the Energy Secretary and the President and perhaps 
others that have a political interest in this issue stopped the 
project, potentially incurred expensive legislation, waste $10 
billion and possibly $25 billion of taxpayers' money on the 
basis of undefined technical criteria and social acceptance, 
which is an interesting comment, deferring everything to a Blue 
Ribbon Commission that can't consider any sites. In essence, 
what we are proposing here is that the clock be wound back to 
the early 1980s again and we begin this process over again.
    Now, Dr. Lyons, you are the Under Secretary for Nuclear 
Energy so you are pretty high up in this organization but you 
can't make any comments. Can you define social acceptance, what 
it is? And again, I feel sorry for you because I know you can't 
answer these questions because there are no answers to the 
questions because there aren't any really valid criteria for 
doing what you are doing, but give it a try.
    Mr. Lyons. I am the Assistant Secretary, sir, not the Under 
Secretary.
    I grew up in Nevada. I visited Nevada. I worked in Nevada. 
I saw the opposition in Nevada growing. I saw it as it was 
created. I have watched over many, many years while Nevada has 
progressively blocked each of the various initiatives that was 
attempted with regard to Yucca. In my view, there are many, 
many steps that remain before Yucca Mountain could ever be 
opened. The views in Nevada for which I am using the buzzword 
of public acceptance or social acceptance, that opposition that 
has been spawned in Nevada I believe will continue to block 
progress towards opening Yucca Mountain.
    Mr. Bass. Not one single member of this subcommittee that I 
have seen has come out and shared your view, neither Republican 
or Democratic, and I understand that there are no members from 
Nevada here. Is there any place in the United States where you 
could build this without local opposition, in your opinion?
    Mr. Lyons. Well, I have used the example several times 
today about the Waste Isolation Pilot Plant in New Mexico that 
enjoys very, very strong local and regional support, and the 
way that process developed as well as the way repositories have 
been sited in other countries, which is what the BRC is 
evaluating, I think provides extremely important lessons as to 
how to do this job right and get the public education, general 
the public acceptance which I am convinced can be achieved.
    Mr. Bass. I beg to differ with you. I think that it has 
been pretty clear that the GAO, the Inspector General, we will 
hear a later panel that this project was ready to go. The 
taxpayers have funded it. The taxpayers are going to be on the 
hook for billions and billions of dollars more if we don't 
proceed, and the justification for its hopefully suspension, 
not termination, as of yet undefined technical criteria, social 
acceptance criteria, and what is not mentioned is political 
criteria.
    With that, Mr. Chairman, I will yield back.
    Mr. Gardner. The gentleman yields back.
    That concludes the testimony of our first panel, and thank 
you very much for your time and commitment to be here today and 
for bearing with us through the votes. Thank you.
    We will stand in recess subject to the call of the chair. 
We have got a 4:00 markup beginning, and we will give you as 
much information when we will reconvene.
    [Recess.]
    Mr. Shimkus. Welcome to the second panel. There was 
clapping as I was coming down the hallway and I thought, oh, 
man, people must love me. No, they just wanted to get the 
hearing back going on. So we will start. I will call the 
hearing to order, and we want to welcome our second panel, and 
we apologize but actually I am very excited to have the second 
panel here. In order, again, I will go from left to right, your 
right to left, we have on panel two Mr. Charles Hollis, 
Chairman of Nye County Board of County Commissioners, Nye 
County, Nevada. Good to see you again, sir. Mr. Martin Malsch, 
Partner, Egan, Fitzpatrick, Malsch and Lawrence, on behalf of 
the State of Nevada, welcome, sir. Mr. Greg White, 
Commissioner, Michigan Public Services Commission, and Mr. 
Christopher Kouts, former acting director of DOE's Office for 
Civilian Radioactive Waste Management.
    Again, your full statement will be submitted for the 
record. You have 5 minutes, and we will start with you, Mr. 
Hollis. Welcome.

 STATEMENTS OF CHARLES GARY HOLLIS, CHAIRMAN, NYE COUNTY BOARD 
OF COUNTY COMMISSIONERS, NYE COUNTY, NEVADA; MARTIN G. MALSCH, 
 PARTNER, EGAN, FITZPATRICK, MALSCH AND LAWRENCE, ON BEHALF OF 
  THE STATE OF NEVADA; GREG R. WHITE, COMMISSIONER, MICHIGAN 
  PUBLIC SERVICE COMMISSION; AND CHRISTOPHER A. KOUTS, FORMER 
 ACTING DIRECTOR OF DOE'S OFFICE OF CIVILIAN RADIOACTIVE WASTE 
                           MANAGEMENT

                STATEMENT OF CHARLES GARY HOLLIS

    Mr. Hollis. Thank you, Mr. Chairman and members of the 
committee. Thank you again for the opportunity to testify about 
local support in Nevada for Yucca Mountain. I am Gary Hollis 
and I am the Chairman of the Nye County Board of Commissioners, 
the State of Nevada.
    As you know, Mr. Chairman, Yucca Mountain is located 
entirely within Nye County. While this testimony is mine, I 
want you to know that it reflects the views of the other four 
county commissioners as well, and as well as views of many 
political and local leaders in rural Nevada.
    Mr. Chairman, we deeply appreciate that you and Congressmen 
Green and Burgess took the time to visit Yucca Mountain and to 
meet local people in Nevada. As you learned, there many of us 
who live next to Yucca Mountain who support the completion of 
the licensing process. Most of us who live in the vicinity 
believe that the decision on Yucca Mountain should be made 
based on sound science, and this can only happen by full review 
by the Nuclear Regulatory Commission. If the NRC determines 
that the repository is safe, I favor its construction.
    As I am sure you can understand, no one is more concerned 
about the safety and welfare of the citizens of Nye County than 
me and the other four commissioners. It is my community. My 
family, my friends live and work here. I would never accept a 
federal facility to be located in my county if I thought it was 
unsafe, no matter what the economic benefits were attached to 
it. Frankly, I resent suggestions that any of the five Nye 
County commissioners would jeopardize the heath and safety of 
our citizens for any sum of money. That would not happen on my 
watch.
    When Congress passed the 1987 amendment to the Nuclear 
Waste Policy Act, it provided money for local communities 
impacted by Yucca Mountain to fund oversight activities. Nye 
County used that money to create an independent science 
program. We had unbiased scientists to conduct the work. After 
years of effort, they found no reason to believe that the 
repository could not be built and operated safely. We have 
provided that information to the Department of Energy and the 
public. Our work was top quality and the results were available 
to everyone.
    But to get the full picture, we need to see all the 
evidence from every source. That includes information from Nye 
County, DOE, NRC staff and the State of Nevada. We want every 
piece of evidence to be reviewed so a final determination of 
the safety of Yucca Mountain can be made. That determination 
can only happen if the licensing process is complete.
    Mr. Chairman, if the NRC determines that the repository 
cannot be built and operated safely, I would be the first 
person to object to its construction. I only ask that all of 
the facts and the science are reviewed by the NRC and that the 
legal process established by the Nuclear Waste Policy Act is 
carried out. Let the facts dictate the result, not politics.
    My views are shared by leaders of other rural Nevada 
counties. Upon being elected last year, Nye County Commissioner 
Dan Chinhofen initiated a resolution of support for the 
licensing application and worked with Esmeralda, Mineral, 
Lander, Churchill and Lincoln counties to do the same. Thus, 
these six rural counties that would see the most impacts from 
Yucca Mountain called on the DOE and the NRC to complete the 
licensing process. We are willing to live by the results of a 
fair, scientific review process. I ask permission to put all 
six resolutions in the record, Mr. Chairman.
    Mr. Shimkus. Is there objection? Hearing none, so ordered.
    [The information appears at the conclusion of the hearing.]
    Mr. Hollis. Beyond the political leaders of those other 
counties, a majority of the residents of the county support the 
license application.
    Mr. Chairman, let me point out that all five current Nye 
county commissioners expressed their support for Yucca Mountain 
and all were elected or reelected by our citizens. Therefore, 
it is not accurate to say there is no local support for Yucca 
Mountain. The people that live in the neighborhood do support 
completion of the licensing process.
    Thank you. I am available to answer any questions you may 
have. I am here with two of the county's technical 
professionals, and they are available to answer questions as 
well. Thank you, Mr. Chairman.
    [The prepared statement of Mr. Hollis follows:]





    
    Mr. Shimkus. Thank you, Mr. Hollis.
    And now I would like to recognize Mr. Malsch. Sir, you are 
recognized for 5 minutes, and your full statement is in the 
record.

                 STATEMENT OF MARTIN G. MALSCH

    Mr. Malsch. Thank you, Mr. Chairman and members of the 
subcommittee. I appreciate the opportunity to provide testimony 
on behalf of the State of Nevada at this hearing today. My name 
is Martin Malsch. I have practiced law in the nuclear energy 
field and nuclear waste field for over 40 years in both the 
public and private sectors, and I am Special Deputy Attorney 
General for the State of Nevada.
    The failure of the Yucca Mountain repository program is a 
direct result of decisions taken beginning almost 25 years ago. 
A decent respect for history would have suggested that those 
decisions created a very high risk of program failure but the 
lessons of history were disregarded.
    The original 1982 Nuclear Waste Policy Act foresaw many of 
the problems that now afflict the Yucca Mountain program. Among 
other things, it sought fairness and redundancy by requiring 
multiple sites from which to choose, ultimate locations for 
repositories and it strove for regional equity by setting up 
site selection programs for two facilities, one in the West and 
one in the East.
    However, all this was scrapped in 1987. Congress decreed 
that all repository development efforts must focus now on just 
one site in Nevada, and it did so notwithstanding incomplete 
scientific information and the fact that now spent reactor fuel 
and high-level waste from every region in the country would now 
be sent to a single Western State with no nuclear power plants 
or high-level waste-generating facilities.
    After 1987, there was only one possible site, and 
inevitably as more and more dollars were spent, it became 
progressively more difficult to admit that the selection of 
Yucca Mountain had been a mistake. But we know now things we 
did not know in 1987. We now know that groundwater will reach 
the waste at the site in about 50 years, not the hundreds or 
thousands of years that had been originally thought. We now 
know that Yucca Mountain is not dry. Total water seepage into 
the tunnels where the waste will be located will be as much as 
130,000 kilograms per year. These and other serious problems 
led to even more exotic and doubtful engineering fixes.
    When it appeared likely that the Yucca Mountain site could 
not satisfy certain EPA and NRC licensing requirements, the 
requirements were simply eliminated. These actions by Congress 
and then by EPA, DOE and NRC destroyed the credibility of the 
program. Public opinion in Nevada which until 1987 had been 
mixed with regard to Yucca Mountain now solidified into strong, 
consistent, across-the-board opposition, and by annual surveys 
done between 1989 and 2010, opposition to the project has 
remained constant at between 63 and over 70 percent.
    While there has been and continues to be some support for 
the project in small rural counties surrounding the site, such 
support cannot be extrapolated to the wider Nevada population. 
Taken together, the six counties sometimes cited as evincing 
some level of support for DOE's program comprise only a tiny 
fraction of the State's population.
    In 2002, Nevada carefully evaluated the effects of a 
prospective Yucca repository on the State, its communities and 
the economy, and that report documents the potential, among 
other things, for significant risks to Nevada's unique tourism-
based economy and property value losses and health effects 
associated with transportation.
    While it can be difficult to terminate a federal project 
when large amounts of money has been spent, there is no sense 
now in spending good money after bad. DOE's finding that Yucca 
Mountain is unworkable, the decision to seek withdrawal of the 
license application and the establishment of the Blue Ribbon 
Commission to look for alternatives for the management and 
storage of spent fuel were all the right and lawful things to 
do. They had the potential to put the country on a path to a 
safer, more cost-effective and expeditious solution to managing 
spent fuel and high-level waste.
    Thank you, Mr. Chairman. That concludes my remarks, and I 
would be pleased to answer any questions.
    [The prepared statement of Mr. Malsch follows:]






    Mr. Shimkus. Thank you, Mr. Malsch.
    The chair now recognizes Mr. White. Again, your full 
statement is in the record and you have 5 minutes. Welcome.

                   STATEMENT OF GREG R. WHITE

    Mr. White. Thank you, Chairman Shimkus, and I would like to 
thank you for your leadership on this issue.
    As you know, my name is Greg White and I am Commissioner 
for the Michigan Public Service Commission. I am appearing 
today on behalf of the Public Service Commission in Michigan, 
electricity ratepayers and the National Association of 
Regulatory Utility Commissioners.
    I have been involved with this issue, the disposal of spent 
nuclear fuel from commercial reactors, since shortly after the 
Nuclear Waste Policy Act passed in 1983, which established the 
policy that the Federal Government has the responsibility for 
the safe and permanent disposal of government and commercial 
nuclear waste in a geologic repository, and that the customers 
that benefit from electricity generated from nuclear power pay 
for the commercial share of the disposal costs. That was the 
deal, and we agreed to that deal. The fee payments to the 
nuclear waste fund began in June of 1983 as required by the 
Nuclear Waste Policy Act. I am here to tell you that the is the 
only component of that program that has ever worked as 
intended. Nearly 30 years later, the Federal Government has our 
money; we have their waste.
    When the Department of Energy submitted a license 
application to the Nuclear Regulatory Commission in June of 
2008, we knew that it could take 3 to 4 years to carefully 
review the safety and other aspects of this first-of-a-kind 
facility. We were not prepared to learn that after more than 20 
years of study and nearly $15 billion that a different 
Secretary of Energy would withdraw the license application with 
prejudice in March of 2010 with no indication that the site is 
unsafe or that the application is flawed. Instead, the motion 
to withdraw cited only that Yucca Mountain is considered not a 
workable option.
    The Department of Energy took other steps to terminate the 
Yucca Mountain project that are documented in the April report 
of the GAO including disbanding of the Office of Civilian 
Radioactive Waste Management that had managed the program. Like 
others, we have questioned the legal and administrative 
authority of the Department of Energy to disband this office.
    As you know, the Department of Energy requested no 
appropriations for the waste program for fiscal year 2011 or 
2012 except for support for the Blue Ribbon Commission on 
America's Nuclear Future. Yet when the Nuclear Energy Institute 
and the National Association of Regulatory Utility 
Commissioners suggested that the Secretary of Energy suspend 
fee payments by utilities to the nuclear waste fund in 2009, 
that was denied with an unconvincing pronouncement that all 
fees are essential. NARUC and the NEI have appealed that 
decision to the Federal Court of Appeals, which is pending.
    We can only speculate how much time and money it will take 
the United States to be ready to accept spent nuclear fuel for 
disposal if it is other than Yucca Mountain but it is likely to 
be decades. It seems essential then we seek our and develop one 
or more central interim storage facilities to take used fuel 
from the nine sites where reactors are currently shut down and 
the property cannot be decommissioned returned to other 
productive uses because the waste remains such as the former 
Big Rock nuclear power plant in Michigan.
    Regardless of what storage, transportation or disposal 
solutions the Blue Ribbon Commission may recommend, they will 
need certain and reliable financing support. Concerning the 
financial impacts of terminating Yucca Mountain, a more 
predictable funding mechanism would certainly enhance future 
waste management. Also, an independent organization outside of 
the Department of Energy could be more effective in siting and 
developing a permanent repository.
    If Yucca Mountain's termination is sustained, it means 
starting over to find and develop repositories since there is 
clear consensus that least one site is needed in all scenarios. 
Unfortunately, there are too many unknowns to begin to forecast 
how long it would take to authorize, search and select, fully 
evaluate, license, design, construct and be ready to begin 
deposits in a new repository yet another 20 years seem to be 
highly conservative.
    With that, I would conclude my testimony and make myself 
available for questions. Thank you.
    [The prepared statement of Mr. White follows:]





    Mr. Shimkus. Thank you.
    Now the chair would like to recognize Mr. Kouts for 5 
minutes. Again, your full statement is in the record, and 
welcome.

                 STATEMENT OF CHRISTOPHER KOUTS

    Mr. Kouts. Thank you, Mr. Chairman and members of the 
subcommittee. I am Christopher Kouts, former principal deputy 
director of the Department of Energy's now-defunct Office of 
Civilian Radioactive Waste Management. I appreciate the 
invitation to appear before the subcommittee. I will focus my 
remarks on the recently released GAO report that was discussed 
earlier by Mr. Gaffigan and the Administration's decision to 
terminate the Yucca Mountain project.
    As background, for 25 years I served in various technical 
and management positions in virtually every program area within 
the office. I became the principal deputy director of the 
program in 2007 and was the acting director from January 2009 
until I retired in early 2010 after 35 years of federal 
service. While serving in the program, I was reminded on a 
daily basis of the formidable challenges that were given to the 
program by the Nuclear Waste Policy Act. As impatient as those 
who followed the program have been over the years with its 
progress, I believe that any new attempt to establish disposal 
or interim storage facilities outside the confines of the act 
will be met by many new and likely more vexing challenges 
regardless of the organization or entity that is established to 
administer the effort.
    Now, why will any new effort be more problematic? The 
answer to that question lies partly in the advance that society 
has experienced in instant communication and information flow. 
When the program proceeded through the facility siting process 
in 1980s for two repositories and an interim storage facility, 
the Internet was not in place. E-mail was not available to the 
general public, nor did the social media of today exist. The 
24/7 news cycle we now live in will create many opportunities 
for those opposed to such facilities to spread rumors and 
disinformation. As a result, the credibility of any new process 
will be severely challenged from its inception.
    In addition, the State of Nevada has given a clear 
blueprint to those opposed to such facilities: delay, delay, 
delay. And it should be noted that I do not in any way begrudge 
the lawsuits or other actions the State has taken over the 
years to attempt to impede the project. It was certainly their 
right to do so, and I fully respect that. But accordingly, the 
time frame of decades noted in the GAO report for a new 
repository is nothing more than notional and does not appear to 
stem from a comprehensive evaluation of the program's past 
experience nor the changes that have occurred since the 1980s.
    The report suggests that an independent entity outside of 
the Federal Government could be more successful. The ``grass is 
always greener'' rules here. It is also my belief that Congress 
should have the final word on facility siting and that 
ultimately any siting decision will be a political decision, 
informed by thorough technical evaluation, just as in the case 
of Yucca Mountain.
    It is difficult to understand the GAO report's so-called 
benefit of terminating the Yucca Mountain Project to afford DOE 
the opportunity to explore other approaches. DOE has no 
authority to undertake new approaches outside the confines of 
the Act, and history has shown that the consensus needed to 
develop a new policy path will not come easily or quickly.
    Because the development of Yucca Mountain has been such a 
contentious and protracted process, it is being suggested that 
only consensual siting of these facilities should be pursued. I 
would submit to the subcommittee that the U.S. and 
international experience in this area proves otherwise. In my 
discussions over the years with the directors of repository 
programs abroad, they have consistently expressed their 
concerns that, due to the very long timeframes repository 
programs take to develop, any political consensus at the 
beginning can evaporate with one election, just as it has in 
the United States with Yucca Mountain. At the end of the day, 
implementing a repository program requires steady, consistent, 
national leadership.
    In closing, beside its questioned legality, the 
Administration's decision to terminate the Yucca Mountain 
project is disturbing because Yucca Mountain has not failed any 
technical or regulatory test. The thousands of scientists and 
engineers and others that worked on the project over the years 
believe, as I believe, that the site would meet the stringent 
regulations of the EPA and the NRC and assure that these 
materials would not adversely impact future generations and the 
environment. Given the substantial investment this Nation has 
made in the site and in the policy that has been supported by 
every prior Administration since 1982, I believe the Nation 
deserves a final and definitive answer regarding Yucca Mountain 
from the NRC licensing process.
    Thank you for this opportunity to discuss these issues, and 
I would be pleased to answer any questions the subcommittee may 
have.
    [The prepared statement of Mr. Kouts follows:]





    Mr. Shimkus. Thank you, Mr. Kouts, and I will recognize 
myself for 5 minutes for the first round of questioning.
    Again Mr. Hollis, I want to welcome you here, and I think 
in my visit out there, which was my second visit, I think it 
was even better that I drove because it gave you an idea of how 
far the definition of local is. The size of the federal 
property that consists and Yucca Mountain is inside, how big is 
that land mass?
    Mr. Hollis. Well, the county is around 18,000 square miles.
    Mr. Shimkus. I was told that the federal property, the BLM, 
the DOE, the nuclear test site is the size of the State of 
Rhode Island. Is that correct?
    Mr. Hollis. Well, the test site is just about the size of 
the State of Rhode Island, but that doesn't account for the 
Tonopah Test Range and the Nellis Bombing Range.
    Mr. Shimkus. So it is a large site, and Yucca, the mountain 
itself is not on the outskirts of this Federal Government land. 
It is my recollection that we went through the gate, we still 
drove 10 or 15 miles to get to Yucca Mountain. Is that true?
    Mr. Kouts. If I could answer that question?
    Mr. Shimkus. Yes, Mr. Kouts.
    Mr. Kouts. Mr. Chairman, the site itself, basically half of 
it is on the Nevada Test Site and the other half is on BLM 
land. So----
    Mr. Shimkus. And so from the security gate, that is how far 
of a drive from the first--I mean----
    Mr. Kouts. Well, if you entered around Mercury, since the 
gate that we used to use is now closed, I mean, you probably 
drove about 5 miles form that gate to try to get to a place 
near the mountain.
    Mr. Shimkus. So when we talk about local consideration, 
what is your county seat? What is the city, the county seat?
    Mr. Hollis. Tonopah, and from where I live, it is 165 miles 
to the county seat.
    Mr. Shimkus. And Pahrump, which is the town I visited, is 
that the closest community of size?
    Mr. Hollis. Yes, it is approximately 34,000.
    Mr. Shimkus. Thirty-four thousand, and it is----
    Mr. Hollis. The county is about 43,000.
    Mr. Shimkus. So you are local in the region.
    Mr. Hollis. Yes.
    Mr. Shimkus. So if we wanted to talk to local individuals--
now, in driving from Las Vegas, it is like--my hometown in 
Collinsville, Illinois, and the State capital is a town called 
Springfield, it is about 90 miles. Isn't that the distance?
    Mr. Hollis. Actually it is probably 130 miles, 135 miles 
from Las Vegas.
    Mr. Shimkus. No one in Collinsville, Illinois, would say we 
are local to Springfield and no one in Springfield, Illinois, 
would say Collinsville is local. And so we appreciate your 
being here and we appreciate a local voice in this debate on 
what the local citizens want to do. And all you are asking is 
for the NRC to make a decision?
    Mr. Hollis. That is correct.
    Mr. Shimkus. Because there is always a debate, and we had 
the commissioners here, and this is not a hearing on the 
commissioners but we feel that the NRC commissioners have 
voted, and we would like to know what the result of that vote 
is.
    Mr. Hollis. Absolutely. That is what we want to know.
    Mr. Shimkus. And so you are also speaking for other 
counties that are closer in proximity to the city of Las Vegas?
    Mr. Hollis. Well, I pretty well speak for all the counties 
around Yucca Mountain that have impact to Yucca Mountain. Those 
six counties that I am talking about and that I have 
resolutions here in support of.
    Mr. Shimkus. Thank you.
    Mr. Kouts, you mentioned in your bio you were in the Office 
of Civilian Radioactive Waste Management, correct?
    Mr. Kouts. That is correct, sir.
    Mr. Shimkus. And that office was enacted by--what statute 
gave that office the authority?
    Mr. Kouts. The Nuclear Waste Policy Act of 1982.
    Mr. Shimkus. And that law is still valid, correct?
    Mr. Kouts. Yes, sir, it is.
    Mr. Shimkus. And who is in charge of and how many people 
are in the Civilian Radioactive Waste Management Office right 
now?
    Mr. Kouts. Zero.
    Mr. Shimkus. And would it be your opinion that if there is 
no one fulfilling the role that is under the law that someone 
is not abiding by the law?
    Mr. Kouts. Although I am not a lawyer, it would seem to me 
the department is not following the law.
    Mr. Shimkus. And I have 11 seconds. How would it would take 
to reconstitute the office and finally reach an answer on how 
much that will cost?
    Mr. Kouts. Let me preface my estimate by saying that this 
all presupposes that the department did not demolish the office 
as it tried to demolish the licensing process with impunity 
basically. The motion that they filed was with prejudice, which 
meant that if indeed it was withdrawn from the NRC, it could 
never be resubmitted. So if the department has treated the 
office that way, then I think it will take many years. If the 
records are in reasonable shape and if you can coax the staff--
and I am not talking about the federal staff, I am talking 
about the contractor and scientific staff-back and you can get 
the contractors in place, you are going to have to get a law 
firm again. Having said that, it would probably take 2 to 3 
years to reformulate the office and to get it in a position 
where it could begin defend the license again, and from that 
point, it will probably take, assuming the NRC has issued their 
report or nearby close to that probably at least another 3 
years to get a final answer out of the commission, so that will 
probably be about a 5- to 6-year time period. That is my 
estimate, assuming again they didn't terminate the office with 
prejudice.
    Mr. Shimkus. Thank you very much. My time is expired.
    I would like to recognize the vice chairman of the 
committee, Mr. Murphy from Pennsylvania.
    Mr. Murphy. Thank you, Mr. Chairman.
    Mr. Kouts, I wonder if you could tell me a little bit of 
your background. You are an engineer by trade?
    Mr. Kouts. Yes, sir. I have two degrees in engineering, and 
I am also a licensed professional engineer.
    Mr. Murphy. And you have worked with the Department of 
Energy?
    Mr. Kouts. I joined the Department of Energy back in 1978 
and I joined the program in 1985.
    Mr. Murphy. And you have been involved--when you say ``the 
program,'' you mean the program with Yucca Mountain?
    Mr. Kouts. The Office of Civilian Radioactive Waste 
Management. I lived through just about all the siting 
challenges, everything else through the act, and I lived in the 
program or I was in the program during virtually its entire 
existence.
    Mr. Murphy. Are you familiar with the legislation that has 
been passed and into law regarding Yucca Mountain?
    Mr. Kouts. Very familiar.
    Mr. Murphy. You have read it?
    Mr. Kouts. Many times.
    Mr. Murphy. Have you found anything in there which set a 
standard in law which talked about social acceptance of sitings 
of this?
    Mr. Kouts. No, sir, I have read it many times, and I never 
found anything like that in there.
    Mr. Murphy. Are you familiar with the Department of Energy 
or anybody involved with any of these projects ever using that 
as a standard to override scientific or legal information?
    Mr. Kouts. Only the current Secretary of Energy.
    Mr. Murphy. You heard in the previous testimony multiple 
times related to their counsel and their Secretary of Energy 
saying that that was the standard they were going to use, and 
it reminds me of other standards they used when the White House 
talked about changing some of the other mandates and 
regulations that come up, that they would look at some other 
social aspects of this as well. But I am curious as we go 
through this if you have any idea of any standard in 
engineering at all where this is applied anywhere else in the 
universe that we are familiar with.
    Mr. Kouts. Well, no, sir, I am not, and I think the irony 
of all this as the Nye County representative represented, there 
is local support. There is acceptance of a repository there, 
assuming--and I would say appropriate local support because I 
think they are concerned about its safety. The bottom line is 
that just as Dr. Lyons indicated that the local community 
around Carlsbad would like it, well, I don't think the local 
community around Nye County is any different in that regard 
than Carlsbad. So again, I don't understand the standard, I 
don't know how it was applied. I wasn't involved in those 
conversations, so your guess is as good as mine.
    Mr. Murphy. But you had made some reference before to the 
term ``consensus.'' Certainly one can find someone in any 
community that either the NIMBY principle applies or BANANA, 
which means build absolutely nothing anywhere anything. I am 
interested in the science and trying to find a safe place to 
put nuclear fuel. It is safe where it is now but not long term, 
if we are looking at long-term sites here too.
    The Department of Energy describes Yucca as unworkable, and 
it is a 25-year stalemate. Do you agree with those terms?
    Mr. Kouts. I don't believe it has been a stalemate, sir. I 
think it has been a very contentious process, and I would deny 
that, but I don't believe it was at a stalemate.
    Mr. Murphy. Those 25 years weren't spent with just people 
wringing their hands, they were working on scientific 
information.
    Mr. Kouts. That is correct, sir, and we had a great victory 
in submitting the license application back in 2008, so I 
wouldn't look at that as a stalemate. Unfortunately, they 
truncated the licensing process but as I indicated in my 
testimony, I believe the Nation deserves an answer on Yucca 
Mountain.
    Mr. Murphy. And as far as you can tell through your 
knowledge and experience, that answer has not been forthcoming 
other to say they are looking for some consensus or social 
aspects on this but no other. You heard in my previous 
questioning of the DOE secretary that we have not seen any 
scientific, legal, any information out there of any way, shape 
or form which would contraindicate what has been forth as 
licensure up to this time?
    Mr. Kouts. The answer is no, and I will say that as long as 
I was principal deputy and acting director in the program 
during this Administration, I was never asked for any technical 
information regarding the site, so my assumption was that 
technical information was not part of the Secretary's decision-
making process, and had anyone else in my program been asked 
for it, I would have known about it. So the bottom line is, to 
my knowledge the Secretary's decision was not a technical one, 
at least he didn't ask for any information from the program for 
it, and he must have used other criteria which again since I 
wasn't part of the decision-making process I can't comment on.
    Mr. Murphy. I thank you.
    And with that, I yield back.
    Mr. Shimkus. The gentleman yields back his time. The chair 
recognizes the ranking member, Mr. Green from Texas.
    Mr. Green. Thank you, Mr. Chairman.
    I appreciate the patience. I apologize to our witnesses. We 
actually had a markup of the full committee downstairs on a 
bill I was working on and also I met with the chair on a little 
pipeline from Canada legislation that we are working on, but I 
appreciate it. Obviously energy is really important where I 
came from, and I appreciate the opportunity a few weeks ago to 
come out to Yucca Mountain. I have supported it for my whole 
career in Congress, and it was good to see on the ground what 
was happening.
    Mr. Kouts, in your testimony you mentioned the potential 
challenges with restarting the selection process for a nuclear 
waste storage facility. I have concern about that process, as I 
said with our earlier panel. You mentioned your disagreement 
and GAO's recommendation or independent commission and Congress 
should have final say. Do you also take issue with the Blue 
Ribbon Commission and their potential recommendations?
    Mr. Kouts. If you are asking my opinion about the 
preliminary recommendations of the Blue Ribbon Commission, I 
would use three words. I would say they are predictable. I 
would say they are disturbing and I would also say they are 
amusing, and let me try to explain why. Predictable in the 
sense that if you read the President's Executive Order, it is 
very clear that the President had made up his mind that Yucca 
Mountain wasn't an option. He talked about in his order that 
the last 25 years has basically been unworkable--not 
unworkable, he used some other words--but it was a very clear 
charge to the commission about what his views were. So what 
came out of it was, Yucca Mountain obviously was not on the 
table and they want to restart the whole process, and that is 
the real troubling part of it because I don't think anyone at 
the commission really understands what it will be like for this 
country to go through another siting process for a repository. 
It was a gut-wrenching, very, very difficult time, not only 
inside the Department of Energy but outside the Department of 
Energy, and now as I indicated with the social media that we 
have and the opportunity for disinformation, it will be 
magnitudes more challenging than it was back in the 1980s.
    And let me just finish with the amusing aspect of the 
preliminary recommendations is that it took so long for them to 
come up with their predictable, disturbing conclusions.
    Mr. Green. Mr. Hollis, thank you for being here today, and 
again, thank you for your hospitality. We had a brief meeting 
there. You mentioned your desire to see Yucca Mountain proceed 
if the health and safety of individuals of the areas is 
protected. You mentioned resolutions passed by Nye County and 
other areas. Can you discuss the resolutions and further 
explain the position of your county?
    Mr. Hollis. Well, the six resolutions, they are just asking 
the DOE, Department of Energy and the Nuclear Regulatory 
Commission to finish the process, let us finish the license 
application, and that is what we are supporting. We want them 
to finish their job. We can't make evaluation of the safety of 
Yucca Mountain without all the evidence, and we are asking for 
all the evidence, and the evidence is that the Nuclear 
Regulatory Commission has to follow the licensing application. 
It has to be completed before we will know. If it is unsafe, I 
will be the first one to stand up and say no. But if it safe, I 
will be the first one to say let us build it.
    Mr. Green. I typically go with the folks who live in the 
neighborhood, and you are about as close as folks that live in 
the neighborhood as you can get.
    Mr. White, in your testimony, you discussed the need to 
develop at least one interim storage facility, that these 
potential facilities could be a net savings to the Federal 
Government. You suggest one of nine potential locations where 
reactors were shut down. Can you further in detail on this 
suggestion and how could it help solve or ease the burden of 
our nuclear storage dilemma?
    Mr. White. Well, there is a couple different aspects to 
that question. One of the things we are really concerned about 
is the fact that the program has not performed at all, you 
know, we have nothing, and we have nine sites around the 
country where there are shutdown reactors and many of those 
plants, for example, the Big Rock nuclear plant in Michigan, 
they have decommissioned that site as much as they possibly 
can. What is left on that 750-acre site is an independent spent 
fuel storage facility. It is just the dry casks sitting in a 
pit, so we cannot return that property to productive use, so we 
think that there could be some lessons learned if we could 
consolidate at least the fuel at those nine sites, those nine 
shut-down sites, into one location, and it would achieve a 
savings because currently the customers and the utilities that 
own those sites are paying those costs continually despite the 
fact that they are no longer generating electricity at that 
site.
    Mr. Green. You also discussed financing the disposal of 
nuclear waste in the nuclear waste fund. If the nuclear waste 
fund were not used for the purpose you discussed, what would 
alternative means be for financing disposal of nuclear waste? 
Because we know part of this came out of our ratepayers, 
including my area, and part of it came from just general 
revenue. Where would we the other funding?
    Mr. White. Well, that is a good question, and I don't have 
the answer to that. We agreed to what I call the deal where the 
customers would pay the cost. The beneficiaries of nuclear 
generation would pay the cost of the program. What we are 
frustrated by is we have paid and paid and paid and we have 
nothing to show for it, and I can argue that the customers paid 
for the design of the spent fuel pools at the reactors. We have 
paid for the reconsolidation when those pools filled because 
the Federal Government hadn't taken the waste. We paid again 
when that fuel was removed and put into dry casks. All the 
while we are paying for a federal program with nothing to show 
for it.
    Mr. Green. I appreciate it. I know my time has run out. Mr. 
Chairman, no matter what happens with Yucca Mountain, we still 
need a nuclear waste disposal facility, and the President 
supports investment in alternative energy, and Secretary Chu 
actually gave testimony before our committee that we are unable 
to meet the President's goals if we do not invest in nuclear 
energy. Part of that is also finding a place to have a 
permanent storage, and this means we need to have it stored 
safely somewhere, and if not Yucca, then we don't want to have 
Members of Congress 25 years from now like we are saying OK, 
where are we going to put this, it is still sitting on these 
sites all over the country. So thank you for the hearing.
    Mr. Shimkus. I thank my colleague, and now I would like to 
recognize Congressman Whitfield from Kentucky, who chairs the 
Energy and Air Subcommittee, so he is very knowledgeable on 
energy issues.
    Mr. Whitfield. Well, I hope I can live up to your 
expectations, John.
    Mr. Shimkus. I hope you can too.
    Mr. Whitfield. Thank you all for being here. We really 
appreciate it.
    I think it is very difficult myself to come to any 
conclusion except that this Administration is ignoring the law 
because the Nuclear Waste Policy Act of 1982 did set this up. 
In 2002, Yucca Mountain was approved as the site, and for this 
Administration to pull back its application for construction, 
authorization for construction before any decision has been 
made, it seems to me is violation of the law. Would you agree 
with that, Mr. Kouts?
    Mr. Kouts. Let me preface by saying I am an engineer who 
has read the act very many times but I tend to agree with the 
administrative law judges at the NRC who when they read the act 
could not find any basis for the Secretary to withdraw the 
application in section 214, which is the same section that 
tells them to submit it. If there was a flaw in the license 
application, then I think the Secretary could pull it back and 
fix it and then resubmit it, but just to withdraw it with 
prejudice, in other words saying that it is never going to be 
submitted again, I certainly don't see that authority in the 
act.
    Mr. Whitfield. And then obviously the NRC's construction 
authorization board agreed with that because they refused to 
allow them to withdraw the application, and that was in June of 
2010, and so we have had one year for the commissioners to take 
this issue up and make some decision, and I think that anyone 
who has heard Chairman Jaczko testify would certainly walk away 
with the conclusion that he is simply dragging his feet, 
because one of the commissioners whose term is going to be 
expire maybe the end of this month and he knows that the 
appointment of the next commissioner will be voting with him, 
and yet to do that is violating the policy act.
    So it appears, even a reasonable interpretation is, this is 
nothing but politics. And then I heard you answer Mr. Murphy 
and say you were the acting director of the Office of Civilian 
Radioactive Waste Management. So if the Secretary was going to 
withdraw this application, it would appear that he would come 
to you for some technical information and yet you testified he 
did not do so. Is that correct?
    Mr. Kouts. That is correct, sir. He did not.
    Mr. Whitfield. And so if he didn't want technical 
information in making a decision to withdraw, what kind of 
information would he need to make a decision like that?
    Mr. Kouts. Well, if I could just give you my experience 
with the program, having been in it for 25 years, and again, I 
was a career SES, I was an acting director, and over the years 
I have been involved in lots of meetings and been told not to 
attend lots of meetings, and the ones I have been told not to 
attend are typically those that are among political appointees 
where they are going to discuss political issues. So my 
assumption was, since I was not involved in the decision-making 
process, that those types of discussions were going on. And we 
did not have a political for the program. There was not one 
appointed. So therefore there was no one from the program 
politically appointed by the President in those meetings but 
that is what my assumption was because I wasn't involved.
    Mr. Whitfield. Well, I think the logical conclusion is that 
it was political. It was done to help Harry Reid. And the 
American people are the ones that are going to suffer from 
this. Over $15 billion has been invested already. Ratepayers 
for utilities are paying fees for this. Taxpayers are now 
legally liable to pay over $15 billion in judgments against the 
Federal Government because they cannot live up to the 
responsibilities of the policy act of 1982.
    So it seems to me--and then you take the six counties 
closest to the repository, as Mr. Hollis has testified, 
actually support the Nuclear Regulatory Commission at least 
going through the process and making some final decision and 
have adopted resolutions basically to that effect. So I don't 
think there is any question that this is bad news for the 
American people, it is costly to the American people, 
taxpayers, and it is probably a violation of the Nuclear Waste 
Policy Act of 1982.
    Mr. Shimkus. The gentleman's time is expired.
    Mr. Kouts, I appreciate your testimony. I think the GAO 
analysis kind of supports your assertion. Yucca Mountain is the 
most studied place on the planet, and I think you were there 
for most of the studying.
    I just want to remind the second panel that the record will 
remain open for 10 days. This hearing may be followed up by 
individual questions by my colleagues, so if you could then 
answer those and get those back to us as expeditiously as 
possible, we would appreciate it.
    We will continue to move forward on addressing these 
disconcerting events that many of us question the legality of, 
and look forward to moving types of legislation that will help 
enter another voice of what the vast majority of 
representatives of this constitutional republic would like to 
do based on previous agreements and laws passed.
    So we thank you for your testimony and appreciate your 
time. Members have 10 days to submit questions for the record. 
And with that, this hearing is now adjourned.
    [Whereupon, at 5:00 p.m., the subcommittee was adjourned.
    [Material submitted for inclusion in the record follows:]






                                 
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