[Senate Hearing 112-295]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 112-295
 
                     BLUE RIBBON COMMISSION REPORT 

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

                                HEARING

                               before the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                                   TO

RECEIVE TESTIMONY ON THE FINAL REPORT OF THE BLUE RIBBON COMMISSION ON 
                        AMERICA'S NUCLEAR FUTURE

                               __________

                            FEBRUARY 2, 2012


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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                  JEFF BINGAMAN, New Mexico, Chairman

RON WYDEN, Oregon                    LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota            JOHN BARRASSO, Wyoming
MARY L. LANDRIEU, Louisiana          JAMES E. RISCH, Idaho
MARIA CANTWELL, Washington           MIKE LEE, Utah
BERNARD SANDERS, Vermont             RAND PAUL, Kentucky
DEBBIE STABENOW, Michigan            DANIEL COATS, Indiana
MARK UDALL, Colorado                 ROB PORTMAN, Ohio
JEANNE SHAHEEN, New Hampshire        JOHN HOEVEN, North Dakota
AL FRANKEN, Minnesota                DEAN HELLER, Nevada
JOE MANCHIN, III, West Virginia      BOB CORKER, Tennessee
CHRISTOPHER A. COONS, Delaware

                    Robert M. Simon, Staff Director
                      Sam E. Fowler, Chief Counsel
               McKie Campbell, Republican Staff Director
               Karen K. Billups, Republican Chief Counsel





























                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Bingaman, Hon. Jeff, U.S. Senator From New Mexico................     1
Hamilton, Hon. Lee, Co-Chair, Blue Ribbon Commission on America's 
  Nuclear Future.................................................     4
Murkowski, Hon. Lisa, U.S. Senator From Alaska...................     2
Scowcroft, General Brent, Co-Chair, Blue Ribbon Commission on 
  America's Nuclear Future.......................................    16

                                APPENDIX

Responses to additional questions................................    41


                     BLUE RIBBON COMMISSION REPORT

                              ----------                              


                       THURSDAY, FEBRUARY 2, 2012

                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:34 a.m. in room 
SD-366, Dirksen Senate Office Building, Hon. Jeff Bingaman, 
chairman, presiding.

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

    The Chairman. OK. The committee will come to order.
    The committee meets this morning to hear about the 
recommendations of the Blue Ribbon Commission on nuclear waste. 
We're very honored that General Brent Scowcroft is here, and 
Congressman Lee Hamilton. They are the co-chairs of this 
Commission.
    We're also honored that Senator Domenici is here, our 
former chairman, and a distinguished member of this Blue Ribbon 
Commission.
    The two chairmen, indeed the entire Commission, all 15 
members, are to be commended for their work. They were asked to 
look into a problem that has resisted solution, that remains 
highly controversial, and that everyone agrees needs to be 
solved.
    They did their job openly and thoroughly, they stayed 
focused on the tasks that were assigned to them, and they have 
produced a solid and eminently sensible report. They have 
presented us with 8 clear, concise, and straightforward 
recommendations.
    Now is the difficult part. Implementing the recommendations 
obviously will require legislation. It will be up to Congress 
to absorb these Commission recommendations, to translate them 
into legislation, and to forge the political consensus that is 
needed to enact a bill into law.
    The Commission admits that none of the major elements of 
its strategy are new. We've known for decades that we need a 
permanent waste repository, we need a community to host it--at 
least one--and we need a transportation system to get the waste 
there, and a dedicated source of funds to pay for it.
    After years of work, we thought Congress had found a path 
forward in 1982, when Congress passed the Nuclear Waste Policy 
Act, which set up a fair, objective, and science-based process 
to pick repository sites.
    President Reagan signed the Nuclear Waste Policy Act into 
law and praised the bipartisan cooperation and resolve and good 
sense that made it possible. Those traits deserted us in 1987. 
Bowing to public opposition and budget constraints, Congress 
short-circuited the siting process and focused all of our 
efforts on Yucca Mountain.
    That has now proven to have been a mistake. The Blue Ribbon 
Commission has provided us with a road map for putting the 
program back on track, but it obviously will once again take 
bipartisan cooperation, resolve, and good sense on our part to 
act on its recommendations.
    So let me defer to Senator Murkowski for any opening 
statements she'd like to make.

         STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR
                          FROM ALASKA

    Senator Murkowski. Thank you, Mr. Chairman. Good morning 
and welcome to the very distinguished panel. General, Mr. 
Hamilton, thank you for your leadership on the Blue Ribbon 
Commission.
    To my friend, our friend here on the committee, and a true 
leader in this area, Senator Domenici, it's good to see you, 
and thank you for your participation and assistance with this.
    I think that this is a very timely hearing on the Blue 
Ribbon Commission's report, their recommendations. The issue of 
nuclear waste, as the Chairman has mentioned, and the 
management has been frustrating Congress, multiple 
administrations, utilities, ratepayers, clearly for decades 
now. Efforts to address it through the Nuclear Waste Policy Act 
of 1982, and the 1987 amendments remain unresolved.
    Taxpayers thus far have paid over $2 billion in damages 
resulting from the government's failure to take title to the 
used nuclear fuel. Department of Energy estimates that if title 
were to be taken by the year 2021, the total liability incurred 
would be just over $13 billion.
    Some in industry are estimating that the total cost would 
be closer to $50 billion, if not possibly higher. So we're 
talking incredible liability here.
    General Scowcroft, Representative Hamilton, I have great 
admiration for your willingness to tackle this assignment.
    When the Blue Ribbon Commission was first announced, it was 
my belief that its credibility would be determined by the 
members of the Commission, and your participation, and that of 
Senator Domenici, has certainly given it credibility, and I 
thank you.
    It was also my belief at the time that the administration's 
decision to form a commission was simply kicking the can down 
the road, that we would be in the exact same position as we 
were at the time of its formation.
    I think I was wrong. I think we're actually in a worse 
position than we were before, and I'd like to explain why.
    Any possibility of advancing legislation to address the 
back end of the nuclear fuel cycle was effectively put on hold 
when the Commission conducted its review. In the meantime, the 
administration shut down all of its activity on Yucca Mountain.
    The Department of Energy attempted to withdraw its 
application for the Yucca repository, an effort that was 
rejected by the NRC Licensing Board. Given the NRC's inability 
to break a tie vote, it appears that a court will need to 
therefore decide the issue.
    So at this point, the possibility of the Federal Government 
meeting its contractual obligations by the year 2021 seems even 
more unlikely than it was when the Commission was first formed.
    It took us over 30 years and over $10 billion to get this 
far on the Yucca Mountain repository site, and while I believe 
Yucca remains a possibility, we must also consider the 
potential of starting anew.
    In looking at our own and other Nations' siting processes, 
the timeframe to establish a repository seems to be roughly 20 
to 40 years. While I'd like to believe that we've learned 
enough along the way to speed up the siting process, the odds 
are closer to industry's estimate of what the total liability 
cost will end up being.
    Now, as the Commission report notes, the government's 
failure to address our nuclear waste issues is damaging to the 
development of future nuclear power, and is simultaneously 
worsening our Nation's financial situation. I think we need to 
act, and I think we need to do it soon.
    The Commission's report, as the chairman has mentioned, 
doesn't necessarily break a lot of new ground, but I think it 
is sensible in terms of its approach.
    We've seen proposals along the lines of most of the 
recommendations in the past, so they're not necessarily new 
issues for this committee to take up and consider.
    Senator Landrieu and I earlier this year introduced the 
Nuclear Fuel Storage Improvement Act to provide for interim 
used nuclear fuel storage capacity along the lines of the 
Commission's recommendation.
    I was also a co-sponsor of Senator Voinovich's Federal--
Fed-Corp proposal in the last Congress to create a quasi-
governmental entity to take over the management of the back end 
of the fuel cycle, much like the Blue Ribbon Commission 
recommends. It may be time to reintroduce that legislation, or 
perhaps something similar to that.
    Trickiest part, of course, and in my view the issue that 
needs to be addressed first, is the money. Accessing and 
utilizing the Nuclear Waste Fund creates a scoring problem with 
no real easy solution. At the same time, a stable, sufficient 
funding stream is needed, not just for whichever entity ends up 
handling the spent fuel management, but also the States and 
local units of government that agree to host the storage and 
the repository sites.
    The Blue Ribbon Commission has resurrected a proposal by 
the DOE to administratively change the timing of fee payments, 
thus bypassing any legislative PAYGO requirement.
    So I look forward to hearing more from all of you on this 
proposal, and other potential ways to resolve this very complex 
issue.
    Again, I thank you for your contributions and your 
leadership in this area.
    The Chairman. Thank you very much.
    Congressman Hamilton, I understand you're going to start 
off with the testimony and then General Scowcroft will give his 
views. Obviously we would welcome any views Senator Domenici 
would want to offer as well.
    Go right ahead. We appreciate you being here.

     STATEMENT OF HON. LEE HAMILTON, CO-CHAIR, BLUE RIBBON 
             COMMISSION ON AMERICA'S NUCLEAR FUTURE

    Mr. Hamilton. Thank you very much, Chairman Bingaman, and 
Ranking Member Murkowski. I ask unanimous consent that the full 
testimony be submitted into the record.
    The Chairman. We will include everyone's full statement.
    Mr. Hamilton. We thank you, of course, for allowing us the 
opportunity to testify.
    We have appreciated for some years the leadership of this 
committee on a variety of issues, but especially with regard to 
nuclear waste management.
    It's a very special pleasure for me to work with General 
Scowcroft. By any measure, he's one of the great Americans, and 
he's been a marvelous co-chairman.
    Likewise, we were extraordinarily privileged to have 
Senator Domenici on the Commission, and he--again, and again, 
and again--made valuable contributions to our work.
    All of the members of the Commission and the staff itself 
were outstanding, and they enabled us to reach a unanimous 
report, which we present to you today.
    We came away from our review quite frustrated, of course, 
by the decades--you've already referred to this--of not being 
able to resolve this.
    Seeing Senator Udall here reminds me of Mo Udall standing 
up in the House of Representatives many years ago saying, 
``Shame on the members of the House of Representatives because 
you haven't solved the problem of what to do with nuclear 
waste.''
    Here we are, almost 50 years later, maybe 40, and we still 
haven't solved it.
    So, at the same time, we come through this process--we're 
confident that we can turn this record around. Because of the 
observations the two of you made, it's urgent that we do so.
    You're well aware, of course, that the process that we have 
been following is just basically broken down, and that the 
Nuclear Waste Policy Act simply hasn't worked to produce a 
timely solution to what you do with these hazardous materials.
    What we have found is that our Nation's coming to grips 
with this issue has been damaging to the Nation, and of course, 
as you pointed out, very costly.
    It's been damaging in a number of ways. It's set back the 
prospect for the development of nuclear energy. We've got to 
solve this problem before we go ahead--there are other problems 
to be resolved, but this has to be resolved before nuclear 
energy can really meet its potential.
    We are impressed again and again during our testimony about 
the damage to U.S.--to the confidence in the U.S. Government to 
solve a problem.
    People really have been turned off by the performance of 
the Federal Government with regard to nuclear waste, those who 
follow it closely, and so there's been a lot of damage, if you 
would, to the Federal Government's competence.
    Another aspect of it, terribly important, is we've suffered 
a lot of damage, because of our inability to solve this 
problem, to our international standing as a leader on global 
issues relating to nuclear safety, nonproliferation, and 
security.
    In addition to that, as Senator Murkowski has pointed out, 
the cost of this is just getting out of hand: a heavy cost to 
utility ratepayers, a heavy cost to the American taxpayer, a 
heavy cost to the communities that have been unwilling hosts to 
long term storage.
    So we have a fundamental obligation. It's a legal 
obligation; it's an ethical obligation to the generation that 
follows us. We're the ones that created this problem, and we 
ought to be able to say to the generation that follows us that 
we've solved the problem. But of course we haven't.
    They didn't have anything to do with creating the problem. 
We're the ones that created it, and therefore we think there's 
a very strong obligation--not just legal, but ethical as well--
to see that we can handle these nuclear materials.
    At the same time, we want to give to that future generation 
the options--in other words, we don't want to lock them in to a 
certain path--the options that they can do whatever is possible 
to make their choices and make this work out all well.
    Sixty-five thousand metric tons of inventory, spent nuclear 
fuel, are spread across the country today. We're creating about 
2,000 metric tons per year. So the action needed is urgent.
    We have several key elements to our recommendations. You 
have them in the report; I'll just summarize them very quickly, 
or summarize 3 of them and then turn over to General Scowcroft 
to summarize the others.
    We think they're integrated. That is, we think they're all 
part of a whole. Some parts may be more important than others, 
but we want a truly integrated national nuclear waste 
management system, and that's what we tried to recommend.
    First of all--a consent-based approach deciding future 
nuclear waste management facilities. It's pretty clear, both 
with the experience in the United States and in other countries 
abroad, that any attempt to force a solution, top-down, a 
federally mandated solution if you will, over the objections of 
State and local communities--far from being more efficient, is 
going to take longer, it's going to cost more, and you're going 
to have less--fewer odds of success.
    By contrast, what we're recommending is an adaptive, 
staged, consent-based approach. We base it on successful siting 
processes in the United States. Senator Domenici can testify to 
this with regard to the WIPP program in New Mexico. We've 
succeeded at this in this country. So we know how to do it.
    Of course, there's been some positive outcomes in Spain, 
Finland, Sweden, other countries, so that we know this can be 
done.
    We believe that this consent-based approach that we're 
talking about can provide the flexibility and sustain--very 
important--sustain the public trust and confidence that's 
needed through a very, very long process under the best of 
circumstances.
    Second, we recommend a new organization dedicated solely to 
implementing the waste management program, and empowered with 
the authority and the resources to succeed.
    To be very blunt about it, the overall record of the DOE 
and the Federal Government here has not inspired trust or 
confidence.
    We listened to hours and hours of testimony on this point, 
and they said--it was pretty hard to find anybody that said a 
nice thing about the way the Federal Government has handled 
this.
    So, the Commission concludes that what you really need is 
new institutional leadership, and specifically, we say you have 
to have a single purpose organization, congressionally 
chartered. We recommend appointed by the President, confirmed 
by the Senate for the membership, but there's a lot of 
flexibility here.
    But we believe this kind of an organization is best suited 
to give the stability, the credibility, and the focus that you 
need in this kind of an organization to succeed.
    Now, it has to have some things to go along with it. It has 
to have the implementing authority. It's got to have assured 
access to funds, and it's got to have very rigorous oversight 
by the U.S. Congress in order for it to succeed. But we think 
that's the way to go.
    The third point I want to make in the recommendations is 
that the access to the funds nuclear utility ratepayers are 
providing for the purpose of nuclear waste management have to 
be available.
    You all know that the law has provided that the nuclear 
utilities are assessed a fee on every kilowatt hour produced of 
nuclear energy, and then the payment is in exchange for the 
Federal Government's contractual commitment to begin accepting 
commercial spent fuel, beginning January 1998.
    That's all set up; it was set up very well. We like the 
concept of that. The only problem is the Fund has not worked as 
it is intended to work because of a series of decisions made in 
the executive branch, some made in the Congress. The annual 
fees are effectively not accessible to the access program, the 
waste program. That's about $750 million a year.
    Instead, the waste program has now to compete for Federal 
funding each year, and is therefore subject to exactly the 
budget constraints and uncertainties that the Fund was created 
to avoid.
    That has to be remedied, and we think and hope it should be 
remedied immediately to allow the program to succeed.
    The other recommendations will be put forward by my 
colleague, co-partner, co-chairman, General Scowcroft.
    [The joint prepared statement of Mr. Hamilton and General 
Scowcroft follows:]

 Prepared Statement of Hon. Lee Hamilton and General Brent Scowcroft, 
    Co-Chairmen, Blue Ribbon Commission on America's Nuclear Future
                              introduction
    Chairman Bingaman, Ranking Member Murkowski, members of the 
Committee, it is a pleasure to appear before you today to discuss the 
final recommendations of the Blue Ribbon Commission on America's 
Nuclear Future. We appreciate the leadership this Committee has shown 
in confronting some of our nation's biggest challenges, which certainly 
include the focus of this hearing--managing spent nuclear fuel and high 
level nuclear waste in the United States. Thank you for allowing us the 
opportunity to testify before you today.
    Before we begin, we would also like to thank the 13 other members 
of the Commission who worked so hard in creating our final report. As 
the Co-Chairmen of the Commission, we were delighted to work with such 
a talented and dedicated group of fellow Commissioners. We are thankful 
for the expertise and insights they brought to our endeavors. Their 
professionalism led to our final report having unanimous approval; all 
of the Commissioners have agreed to our final report, a fact which we 
believe speaks to the strength of our recommendations.
    As you aware, the Blue Ribbon Commission was formed by the 
Secretary of Energy at the direction of the President. Our charge was 
to conduct a comprehensive review of policies for managing the back end 
of the nuclear fuel cycle and to recommend a new strategy. We came away 
from our review frustrated by decades of unmet commitments to the 
American people, yet confident that we can turn this record around.
                           framing the issue
    Mr. Chairman, as we are all too well aware, America's nuclear waste 
management program is at an impasse. The Administration's decision to 
halt work on a repository at Yucca Mountain is but the latest indicator 
of a policy that has been troubled for decades and has now all but 
completely broken down. The approach laid out under the 1987 Amendments 
to the Nuclear Waste Policy Act has simply not worked to produce a 
timely solution for dealing with the nation's most hazardous 
radioactive materials. The United States has traveled nearly 25 years 
down the current path only to come to a point where continuing to rely 
on the same approach seems destined to bring further controversy, 
litigation, and protracted delay.
    What we have found is that our nation's failure to come to grips 
with the nuclear waste issue has already proved damaging and costly. It 
will be even more damaging and more costly the longer it continues: 
damaging to prospects for maintaining a potentially important energy 
supply option for the future, damaging to state--federal relations and 
public confidence in the federal government's competence, and damaging 
to America's standing in the world as a source of nuclear expertise and 
as a leader on global issues of nuclear safety, non-proliferation, and 
security.
    This failure is also costly to utility ratepayers who continue to 
pay for a nuclear waste management solution that has yet to be 
delivered, to communities that have become unwilling hosts of long-term 
waste storage facilities, and to U.S. taxpayers who face billions in 
liabilities as a result of the failure to meet federal waste management 
commitments. The national interest demands that our nuclear waste 
program be fixed.
    The need for a new strategy is urgent, not just to address these 
damages and costs, but also because this generation has a fundamental 
ethical obligation to avoid burdening future generations with finding a 
safe permanent solution for managing hazardous nuclear materials they 
had no part in creating. At the same time, we owe it to future 
generations to avoid foreclosing options wherever possible so that they 
can make choices--about the use of nuclear energy as a low-carbon 
energy resource and about the management of the nuclear fuel cycle--
based on emerging technologies and developments and their own best 
interests.
    Put simply, the overall record of the U.S. nuclear waste program 
has been one of broken promises and unmet commitments. And yet the 
Commission finds reasons for confidence that we can turn this record 
around. To be sure, decades of failed efforts to develop a repository 
for spent fuel and high-level waste have produced frustration and a 
deep erosion of trust in the federal government. But they have also 
produced important insights, a clearer understanding of the technical 
and social issues to be resolved, and at least one significant success 
story--the WIPP facility in New Mexico. Moreover, many people have 
looked at aspects of this record and come to similar conclusions.
                        the scale of the problem
    Mr. Chairman, before we discuss our recommendations it is useful to 
briefly review the scale of the nuclear waste problem in the U.S. As 
this Committee is certainly aware, there are 104 commercial nuclear 
power reactors operating in the United States today, supplying 
approximately 20 percent of our nation's electricity needs. The 
industry as a whole generates more than 2,000 metric tons of spent 
nuclear fuel on an annual basis. At present, nearly all of the nation's 
existing inventory of approximately 65,000 metric tons of spent fuel is 
being stored at the reactor sites where it was generated--about three-
quarters of it in shielded concrete pools and the remainder in dry 
casks above ground. Roughly speaking, this spent fuel would cover one 
football field to a depth of approximately 20 feet. This inventory also 
includes approximately 3,000 metric tons of what we've called 
``stranded'' spent fuel, fuel in storage at ten sites where nuclear 
power reactors have been shut down and are no longer operating.
    In addition to the civilian spent nuclear fuel, there is a 
considerable inventory of DOE-managed nuclear waste--in the form of 
both spent nuclear fuel and of liquid high level waste. The current 
inventory of DOE-managed spent fuel represents a relatively small 
fraction of the nation's total civilian spent-fuel inventory: 
approximately 2,500 metric tons. Along with spent nuclear fuel, DOE 
manages an inventory of high level waste totaling more than 3,000 
canisters of vitrified wastes and some 90 million gallons of liquids, 
sludges and solids from past fuel reprocessing operations for weapons 
production. Most of this waste is being stored at DOE's Hanford, Idaho 
National Laboratory, and Savannah River sites. In addition, there is a 
small amount of vitrified high level waste from reprocessing fuel from 
both commercial power reactors and government reactors at the West 
Valley site in New York that will also require disposal.
                              our approach
    Fulfilling our charter has required the Commission to investigate a 
wide range of issues and listen to a broad spectrum of concerned 
stakeholders. It became clear to us early on that many of the problems 
facing our nuclear waste program have their roots in social distrust 
and lack of confidence in government, so we strove to make the 
Commission's work as inclusive, transparent, and accessible as 
possible. We heard from hundreds of invited witnesses, toured nuclear 
waste management facilities in the U.S. and abroad, and received 
thousands of comments at more than two dozen public meetings and 
through our web site.
    The Commission released a draft report for public comment in July 
of 2011. To facilitate meaningful discussion about our draft report, we 
arranged for a series of public meetings to be held in cooperation with 
regional state government groups. These meetings were held in Atlanta, 
Boston, Denver, Minneapolis, and Washington, DC, and were quite helpful 
in gaining useful insights that are reflected in our final report.
    In total, we received and reviewed several thousand comments on our 
draft report. We are indebted to the many people who have given us the 
benefit of their expertise, advice, and guidance. A full list of the 
Commission's meetings is included in a longer version of this statement 
that we intend to submit for the record.
   key elements of the blue ribbon commission's final recommendations
    Mr. Chairman, the strategy we recommend in our final report has 
eight key elements:

          1. A new, consent-based approach to siting future nuclear 
        waste management facilities.
          2. A new organization dedicated solely to implementing the 
        waste management program and empowered with the authority and 
        resources to succeed.
          3. Access to the funds nuclear utility ratepayers are 
        providing for the purpose of nuclear waste management.
          4. Prompt efforts to develop one or more geologic disposal 
        facilities.
          5. Prompt efforts to develop one or more consolidated storage 
        facilities.
          6. Prompt efforts to prepare for the eventual large-scale 
        transport of spent nuclear fuel and high-level waste to 
        consolidated storage and disposal facilities when such 
        facilities become available.
          7. Support for continued U.S. innovation in nuclear energy 
        technology and for workforce development.
          8. Active U.S. leadership in international efforts to address 
        safety, waste management, non-proliferation, and security 
        concerns.

    Although the elements of this strategy will not be new to Members 
and staff of this Committee who have followed the U.S. nuclear waste 
program over the years, we are certain they are all necessary to 
establish a truly integrated national nuclear waste management system, 
to create the institutional leadership and wherewithal to get the job 
done, and to ensure that the United States remains at the forefront of 
technology developments and international responses to evolving nuclear 
safety, non-proliferation, and security concerns.
    A few general points about the Commission's proposed strategy are 
worth emphasizing before our recommendations are discussed in greater 
detail here today. First is the issue of cost. In this time of acute 
concern about the federal budget deficit and high energy prices, we 
have been sensitive to the concern that our recommendations--
particularly those that involve launching a new approach and a new 
organization for nuclear waste management--could add to the financial 
burden on the U.S. Treasury and on American taxpayers and utility 
ratepayers. Certainly it will cost something to implement a successful 
U.S. waste management program; however, trying to implement a deeply 
flawed program is even more costly, for all the reasons already 
mentioned. In fact, U.S. ratepayers are already paying for waste 
disposal (through a fee collected on each kilowatt-hour of nuclear-
generated electricity)--but the program they're paying for isn't 
working.
    Overall, we are confident that our waste management recommendations 
can be implemented using revenue streams already dedicated for this 
purpose--in particular the Nuclear Waste Fund and fee. Other Commission 
recommendations--particularly those concerning nuclear technology 
programs and international policies--are broadly consistent with the 
program plans of the relevant agencies.
    Another overarching point concerns timing and implementation. All 
of our recommendations are interconnected and will take time to 
implement fully, particularly since many elements of the strategy we 
propose require legislative action to amend the Nuclear Waste Policy 
Act and other relevant laws. Nevertheless, prompt action can and should 
be taken in several areas, without waiting for legislative action, to 
get the waste management program back on track.
    One of the many actions we recommend the Administration take in the 
near-term is to ensure that funds already being collected from nuclear 
utility ratepayers to cover the costs of spent fuel disposal are 
available to serve their intended purpose. In our report we suggest a 
series of actions that can be taken promptly to give the waste program 
the budgetary certainty that will be essential for long-term success. 
We also recommend steps the Department of Energy should take to enable 
implementation of our consolidated storage recommendations, including 
efforts to provide assistance to states and regional state government 
groups that can be used to begin transportation planning and to support 
local and tribal officials in areas likely to be traversed by spent 
fuel shipments.
    Finally, there are several questions the Commission was not 
chartered to address. We have not rendered an opinion on the 
suitability of the Yucca Mountain site or any other specific site, nor 
have we commented on the request to withdraw the license application 
for Yucca Mountain. Instead, we focused on developing a sound strategy 
for future storage and disposal facilities and operations that we 
believe can and should be implemented regardless of what happens with 
Yucca Mountain. We have also not offered a judgment about the 
appropriate role of nuclear power in the nation's future energy supply 
mix.
    These are all important questions that will engage policy makers 
and the public in the years ahead. However, none of them alters the 
urgent need to change and improve our strategy for managing the high-
level wastes and spent fuel that already exist and will continue to 
accumulate so long as nuclear reactors operate in this country. That is 
the focus of the Commission's work and of the specific recommendations 
that follow.
            further discussion of the brc's recommendations
    Mr. Chairman, as we mentioned previously, there are eight key 
elements to our strategy that are essential to the future success of 
the nuclear waste management program in the United States. We will now 
discuss those in more detail.
1. A New Consent-Based Approach to Siting
    Siting storage or disposal facilities has been the most consistent 
and most intractable challenge for the U.S. nuclear waste management 
program. Of course, the first requirement in siting any facility 
centers on the ability to demonstrate adequate protection of public 
health and safety and the environment. Beyond this threshold criterion, 
finding sites where all affected units of government, including the 
host state or tribe, regional and local authorities, and the host 
community, are willing to support or at least accept a facility has 
proved exceptionally difficult. The erosion of trust in the federal 
government's nuclear waste management program has only made this 
challenge more difficult. And whenever one or more units of government 
are opposed, the odds of success drop greatly. The crux of the 
challenge derives from a federal/state/tribal/local rights dilemma that 
is far from unique to the nuclear waste issue--no simple formula exists 
for resolving it. Experience in the United States and in other nations 
suggests that any attempt to force a top-down, federally mandated 
solution over the objections of a state or community--far from being 
more efficient--will take longer, cost more, and have lower odds of 
ultimate success.
    By contrast, the approach we recommend is explicitly adaptive, 
staged, and consent-based. Based on a review of successful siting 
processes in the United States and abroad--including most notably the 
siting of a disposal facility for transuranic radioactive waste, the 
Waste Isolation Pilot Plant (WIPP) in New Mexico, and recent positive 
outcomes in Finland, Sweden, Spain and France--we believe this type of 
approach can provide the flexibility and sustain the public trust and 
confidence needed to see controversial facilities through to 
completion.
    In practical terms, this means encouraging communities to volunteer 
to be considered to host a new nuclear waste management facility while 
also allowing for the waste management organization to approach 
communities that it believes can meet the siting requirements. Siting 
processes for waste management facilities should include a flexible and 
substantial incentive program.
    The approach we recommend also recognizes that successful siting 
decisions are most likely to result from a complex and perhaps extended 
set of negotiations between the implementing organization and 
potentially affected state, tribal, and local governments, and other 
entities. It would be desirable for these negotiations to result in a 
partnership agreement or some other form of legally enforceable 
agreement with the organization to ensure that commitments to and by 
host states, tribes, and communities are upheld. All affected levels of 
government must have, at a minimum, a meaningful consultative role in 
important decisions; additionally, both host states and tribes should 
retain--or where appropriate, be delegated--direct authority over 
aspects of regulation, permitting, and operations where oversight below 
the federal level can be exercised effectively and in a way that is 
helpful in protecting the interests and gaining the confidence of 
affected communities and citizens. At the same time, host state, tribal 
and local governments have responsibilities to work productively with 
the federal government to help advance the national interest.
    In this context, any process that is prescribed in detail up front 
is unlikely to work. Transparency, flexibility, patience, 
responsiveness, and a heavy emphasis on consultation and cooperation 
will all be necessary--indeed, these are attributes that should apply 
not just to siting but to every aspect of program implementation.
    This discussion raises another issue highlighted in numerous 
comments to the BRC: the question of how to define ``consent.'' The 
Commission takes the view that this question ultimately has to be 
answered by a potential host jurisdiction, using whatever means and 
timing it sees fit. We believe that a good gauge of consent would be 
the willingness of the affected units of government--the host states, 
tribes, and local communities--to enter into legally binding agreements 
with the facility operator, where these agreements enable states, 
tribes, or communities to have confidence that they can protect the 
interests of their citizens.
    All siting processes take time; however, an adaptive, staged 
approach may seem particularly slow and open-ended. This will be 
frustrating to stakeholders and to members of the public who are 
understandably anxious to know when they can expect to see results. The 
Commission shares this frustration--greater certainty and a quicker 
resolution would have been our preference also. Experience, however, 
leads us to conclude that there is no short-cut, and that any attempt 
to short-circuit the process will most likely lead to more delay. That 
said, we also believe that attention to process must not come at the 
expense of progress and we are sympathetic to the numerous comments we 
received asking us to include a more detailed and specific set of 
milestones in our final report. Obviously there is an inherent tension 
between recommending an adaptive, consent-based process and setting out 
deadlines or progress requirements in advance. But we agree that it 
will be important--without imposing inflexible deadlines--to set 
reasonable performance goals and milestones for major phases of program 
development and implementation so that Congress can hold the waste 
management organization accountable and so that stakeholders and the 
public can have confidence the program is moving forward. Other 
countries have taken this approach, in several cases identifying target 
timeframes, rather than specific dates for completing stages in their 
process. For example the implementing organization might consider a 
range of, say, 15 to 20 years to accomplish site identification and 
characterization and to conduct the licensing process for a geologic 
repository. A notional timeframe for siting and developing a 
consolidated storage facility would presumably be shorter, perhaps on 
the order of 5 to 10 years.
2. A New Organization to Implement the Waste Management Program
    The U.S. Department of Energy (DOE) and its predecessor agencies 
have had primary responsibility for implementing U.S. nuclear waste 
policy for more than 50 years. In that time, DOE has achieved some 
notable successes, as shown by the WIPP experience and recent 
improvements in waste cleanup performance at several DOE sites. The 
overall record of DOE and of the federal government as a whole, 
however, has not inspired widespread confidence or trust in our 
nation's nuclear waste management program. For this and other reasons, 
the Commission concludes that a new, single-purpose organization is 
needed to provide the stability, focus, and credibility needed to get 
the waste program back on track. We believe a congressionally chartered 
federal corporation offers the best model, but whatever the specific 
form of the new organization it must possess the attributes, 
independence, and resources to effectively carry out its mission.
    The central task of the new organization would be to site, license, 
build, and operate facilities for the safe consolidated storage and 
final disposal of spent fuel and high-level nuclear waste at a 
reasonable cost and within a reasonable timeframe. In addition, the new 
organization would be responsible for arranging for the safe transport 
of waste and spent fuel to or between storage and disposal facilities, 
and for undertaking applied research, development, and demonstration 
(RD&D) activities directly relevant to its waste management mission 
(e.g., testing the long-term performance of fuel in dry casks and 
during subsequent transportation).
    For the new organization to succeed, a substantial degree of 
implementing authority and assured access to funds must be paired with 
rigorous financial, technical, and regulatory oversight by Congress and 
the appropriate government agencies. We recommend that the organization 
be directed by a board nominated by the President, confirmed by the 
Senate, and selected to represent a range of expertise and 
perspectives. Independent scientific and technical oversight of the 
nuclear waste management program is essential and should continue to be 
provided for out of nuclear waste fee payments. In addition, the 
presence of clearly independent, competent regulators is essential; we 
recommend the existing roles of the U.S. Environmental Protection 
Agency in establishing standards and the Nuclear Regulatory Commission 
(NRC) in licensing and regulating waste management facilities be 
preserved but that steps be taken to ensure ongoing cooperation and 
coordination between these agencies.
    Late in our review we heard from several states that host DOE 
defense waste that they agree with the proposal to establish a new 
organization to manage civilian wastes, but believe the government can 
more effectively meet its commitments if responsibility for defense 
waste disposal remains with DOE. Others argued strongly that the 
current U.S. policy of comingling defense and civilian wastes should be 
retained. We are not in a position to comprehensively assess the 
implications of any actions that might affect DOE's compliance with its 
cleanup agreements, and we did not have the time or the resources 
necessary to thoroughly evaluate the many factors that must be 
considered by the Administration and Congress in making such a 
determination. The Commission therefore urges the Administration to 
launch an immediate review of the implications of leaving 
responsibility for disposal of defense waste and other DOE-owned waste 
with DOE versus moving it to a new waste management organization. The 
implementation of other BRC recommendations, however, should not wait 
for the commingling issue to be resolved. Congressional and 
Administration efforts to implement our recommendations can and should 
proceed as expeditiously as possible
3. Access to Utility Waste Disposal Fees for their Intended Purpose
    The 1982 NWPA created a ``polluter pays'' funding mechanism to 
ensure that the full costs of disposing of commercial spent fuel would 
be paid by utilities (and their ratepayers), with no impact on 
taxpayers or the federal budget. Nuclear utilities are assessed a fee 
on every kilowatt-hour of nuclear-generated electricity as a quid pro 
quo payment in exchange for the federal government's contractual 
commitment to begin accepting commercial spent fuel beginning by 
January 31, 1998. Fee revenues go to the government's Nuclear Waste 
Fund, which was established for the sole purpose of covering the cost 
of disposing of civilian nuclear waste and ensuring that the waste 
program would not have to compete with other funding priorities. In 
contrast, costs for disposing of defense nuclear wastes are paid by 
taxpayers through appropriations from the Treasury.
    The Fund does not work as intended. A series of Executive Branch 
and Congressional actions has made annual fee revenues (approximately 
$750 million per year) and the unspent $27 billion balance in the Fund 
effectively inaccessible to the waste program. Instead, the waste 
program must compete for federal funding each year and is therefore 
subject to exactly the budget constraints and uncertainties that the 
Fund was created to avoid. This situation must be remedied to allow the 
program to succeed.
    In the near term, the Administration should offer to amend DOE's 
standard contract with nuclear utilities so that utilities remit only 
the portion of the annual fee that is appropriated for waste management 
each year and place the rest in a trust account, held by a qualified 
third-party institution, to be available when needed. At the same time, 
the Office of Management and Budget should work with the Congressional 
budget committees and the Congressional Budget Office to change the 
budgetary treatment of annual fee receipts so that these receipts can 
directly offset appropriations for the waste program. These actions are 
urgent because they enable key subsequent actions the Commission 
recommends. Therefore, we urge the Administration to act promptly to 
implement these changes (preferably in Fiscal Year 2013). For the 
longer term, legislation is needed to transfer the unspent balance in 
the Fund to the new waste management organization so that it can carry 
out its civilian nuclear waste obligations independent of annual 
appropriations (but with Congressional oversight)--similar to the 
budgeting authority now given to the Tennessee Valley Authority and 
Bonneville Power Administration.
    We recognize that these actions mean no longer counting nuclear 
waste fee receipts against the federal budget deficit and that the 
result will be a modest negative impact on annual budget calculations. 
The point here is that the federal government is contractually bound to 
use these funds to manage spent fuel. The bill will come due at some 
point. Meanwhile, failure to correct the funding problem does the 
federal budget no favors in a context where taxpayers remain liable for 
mounting damages, compensated through the Judgment Fund, for the 
federal government's continued inability to deliver on its waste 
management obligations. These liabilities are already in the billions 
of dollars and could increase by hundreds of millions of dollars 
annually for each additional year of delay.
4. Prompt Efforts to Develop a New Geologic Disposal Facility
    Deep geologic disposal capacity is an essential component of a 
comprehensive nuclear waste management system for the simple reason 
that very long-term isolation from the environment is the only 
responsible way to manage nuclear materials with a low probability of 
re-use, including defense and commercial reprocessing wastes and many 
forms of spent fuel currently in government hands. The conclusion that 
disposal is needed and that deep geologic disposal is the 
scientifically preferred approach has been reached by every expert 
panel that has looked at the issue and by every other country that is 
pursuing a nuclear waste management program.
    Some commenters have urged the prompt adoption of recycling of 
spent fuel as a response to the waste disposal challenge, as well as a 
means to extend fuel supply. It is the Commission's view that it would 
be premature for the United States to commit, as a matter of policy, to 
``closing'' the nuclear fuel cycle given the large uncertainties that 
exist about the merits and commercial viability of different fuel 
cycles and technology options. Future evaluations of potential 
alternative fuel cycles must account for linkages among all elements of 
the fuel cycle (including waste transportation, storage, and disposal) 
and for broader safety, security, and non-proliferation concerns. 
Moreover, all spent fuel reprocessing or recycle options generate waste 
streams that require a permanent disposal solution. In any event, we 
believe permanent disposal will very likely also be needed to safely 
manage at least some portion of the commercial spent fuel inventory 
even if a closed fuel cycle were adopted.
    The Commission recognizes that current law establishes Yucca 
Mountain in Nevada as the site for the first U.S. repository for spent 
fuel and high-level waste, provided the license application submitted 
by DOE meets relevant requirements. The Blue Ribbon Commission was not 
chartered as a siting commission. Accordingly we have not evaluated 
Yucca Mountain or any other location as a potential site for the 
storage or disposal of spent nuclear fuel and high-level waste, nor 
have we taken a position on the Administration's request to withdraw 
the license application. We simply note that regardless what happens 
with Yucca Mountain, the U.S. inventory of spent nuclear fuel will soon 
exceed the amount that can be legally emplaced at this site until a 
second repository is in operation. So under current law, the United 
States will need to find a new disposal site even if Yucca Mountain 
goes forward. We believe the approach set forth here provides the best 
strategy for assuring continued progress, regardless of the fate of 
Yucca Mountain.
5. Prompt Efforts to Develop One or More Consolidated Storage 
        Facilities
    Safe and secure storage is another critical element of an 
integrated and flexible national waste management system. Fortunately, 
experience shows that storage--either at or away from the sites where 
the waste was generated--can be implemented safely and cost-
effectively. Indeed, a longer period of time in storage offers a number 
of benefits because it allows the spent fuel to cool while keeping 
options for future actions open.
    Developing consolidated storage capacity would allow the federal 
government to begin the orderly transfer of spent fuel from reactor 
sites to safe and secure centralized facilities independent of the 
schedule for operating a permanent repository. The arguments in favor 
of consolidated storage are strongest for ``stranded'' spent fuel from 
shutdown plant sites. Stranded fuel should be first in line for 
transfer to a consolidated facility so that these plant sites can be 
completely decommissioned and put to other beneficial uses. Looking 
beyond the issue of today's stranded fuel, the availability of 
consolidated storage will provide valuable flexibility in the nuclear 
waste management system that could achieve meaningful cost savings for 
both ratepayers and taxpayers when a significant number of plants are 
shut down in the future, can provide emergency back-up storage in the 
event that spent fuel needs to be moved quickly from a reactor site, 
and would provide an excellent platform for ongoing R&D to better 
understand how the storage systems currently in use at both commercial 
and DOE sites perform over time.
    For consolidated storage to be of greatest value to the waste 
management system, the current rigid legislative restriction that 
prevents a storage facility developed under the NWPA from operating 
significantly earlier than a repository should be eliminated. At the 
same time, efforts to develop consolidated storage must not hamper 
efforts to move forward with the development of disposal capacity. To 
allay the concerns of states and communities that a consolidated 
storage facility might become a de facto disposal site, a program to 
establish consolidated storage must be accompanied by a parallel 
disposal program that is effective, focused, and making discernible 
progress in the eyes of key stakeholders and the public. Progress on 
both fronts is needed and must be sought without further delay.
    Even with timely development of consolidated storage facilities, a 
large quantity of spent fuel will remain at reactor sites for many 
decades before it can be accepted by the federal waste management 
program. Current at-reactor storage practices and safeguards are being 
scrutinized in light of the lessons that are emerging from Fukushima. 
In addition, the Commission recommends that the National Academy of 
Sciences (NAS) conduct a thorough assessment of lessons learned from 
Fukushima and their implications for conclusions reached in earlier NAS 
studies on the safety and security of current storage arrangements for 
spent nuclear fuel and high-level waste in the United States. This 
effort would complement investigations already underway by the NRC and 
other organizations. More broadly, it will also be vital to continue 
vigorous public and private research and regulatory oversight efforts 
in areas such as spent fuel and storage system degradation phenomena, 
vulnerability to sabotage and terrorism, full-scale cask testing, and 
others. As part of this process, it is appropriate for the NRC to 
examine the advantages and disadvantages of options such as 
``hardened'' onsite storage that have been proposed to enhance security 
at storage sites.
6. Early Preparation for the Eventual Large-Scale Transport of Spent 
        Nuclear Fuel and High-Level Waste to Consolidated Storage and 
        Disposal Facilities
    The current system of standards and regulations governing the 
transport of spent fuel and other nuclear materials appears to have 
functioned well, and the safety record for past shipments of these 
types of materials is excellent. But the current set of transport-
related regulations will need to be updated to accommodate changes in 
fueling practices. Moreover, past performance does not guarantee that 
future transport operations will match the record to date, particularly 
as the logistics involved expand to accommodate a much larger number of 
shipments. Past experiences in the United States and abroad, and 
extensive comments to the Commission, indicate that many people fear 
the transportation of nuclear materials. Thus greater transport demands 
are likely to raise new public concerns.
    As with siting fixed facilities, planning for associated 
transportation needs has historically drawn intense interest. Transport 
operations typically also have the potential to affect a far larger 
number of communities. The Commission believes that state, tribal and 
local officials should be extensively involved in transportation 
planning and should be given the resources necessary to discharge their 
roles and obligations in this arena. Accordingly, DOE should (1) 
finalize procedures and regulations for providing technical assistance 
and funds for training to local governments and tribes pursuant to 
Section 180(c) of the NWPA and (2) begin to provide such funding, 
independent from progress on facility siting. While it would be 
premature to fully fund a technical assistance program before knowing 
with some certainty where the destination sites for spent fuel are 
going to be, substantial benefits can be gained from a modest early 
investment in planning for the early transport of spent fuel from 
shutdown reactor sites.
    Planning and providing for adequate transportation capacity while 
simultaneously addressing related stakeholder concerns will take time 
and present logistical and technical challenges. Given that 
transportation represents a crucial link in the overall storage and 
disposal system, it will be important to allow substantial lead-time to 
assess and resolve transportation issues well in advance of when 
materials would be expected to actually begin shipping to a new 
facility. For many years, states have been working cooperatively with 
DOE to plan for shipments, often through agreements with regional 
groupings of states and in ways that involve radiological health, law 
enforcement, and emergency response personnel. As has been shown with 
the WIPP program and other significant waste shipping campaigns, 
planning, training and execution involves many different parties and 
takes time. In addition, specialized equipment may be required that 
will need to be designed, fabricated and tested before being placed 
into service. Historically, some programs have treated transportation 
planning as an afterthought. No successful programs have done so.
7. Support for Advances in Nuclear Energy Technology and for Workforce 
        Development
    Advances in nuclear energy technology have the potential to deliver 
an array of benefits across a wide range of energy policy goals. The 
Commission believes these benefits--in light of the environmental and 
energy security challenges the United States and the world will 
confront this century--justify sustained public-and private-sector 
support for RD&D on advanced reactor and fuel cycle technologies. In 
the near term, opportunities exist to improve the safety and 
performance of existing light-water reactors and spent fuel and high-
level waste storage, transport, and disposal systems. Longer term, the 
possibility exists to advance ``game-changing'' innovations that offer 
potentially large advantages over current technologies and systems.
    The Commission believes the general direction of the current DOE 
research and development (R&D) program is appropriate, although we also 
urge DOE to take advantage of the Quadrennial Energy Review process to 
refine its nuclear R&D ``roadmap.'' We are not making a specific 
recommendation concerning future DOE funding for nuclear energy RD&D 
in light of the extraordinary fiscal pressures the federal government 
will confront in coming years, we believe that budget decisions must be 
made in the context of a broader discussion about priorities and 
funding for energy RD&D more generally.
    One area where the Commission recommends increased effort involves 
ongoing work by the NRC to develop a regulatory framework for advanced 
nuclear energy systems. Such a framework can help guide the design of 
new systems and lower barriers to commercial investment by increasing 
confidence that new systems can be successfully licensed. Specifically, 
the Commission recommends that adequate federal funding be provided to 
the NRC to support a robust effort in this area. We also support the 
NRC's risk-informed, performance-based approach to developing 
regulations for advanced nuclear energy systems, including NRC's 
ongoing review of the current waste classification system (changes to 
the existing system may eventually require a change in law).
    Another area where further investment is needed is nuclear 
workforce development. Specifically, the Commission recommends expanded 
federal, joint labor-management and university-based support for 
advanced science, technology, engineering, and mathematics training to 
develop the skilled workforce needed to support an effective waste 
management program as well as a viable domestic nuclear industry. At 
the same time, DOE and the nuclear energy industry should work to 
ensure that valuable existing capabilities and assets, including 
critical infrastructure and human expertise, are maintained. Finally, 
the jurisdictions of safety and health agencies should be clarified and 
aligned. New site-independent safety standards should be developed by 
the safety and health agencies responsible for protecting nuclear 
workers through a coordinated joint process that actively engages and 
solicits input from all relevant constituencies. Efforts to support 
uniform levels of safety and health in the nuclear industry should be 
undertaken with federal, industry, and joint labor-management 
leadership. Safety and health practices in the nuclear construction 
industry should provide a model for other activities in the nuclear 
industry.
8. Active U.S. Leadership in International Efforts to Address Safety, 
        Non-Proliferation and Security Concerns
    As more nations consider pursuing nuclear energy or expanding their 
nuclear programs, U.S. leadership is urgently needed on issues of 
safety, non-proliferation, and security/counter-terrorism. Many 
countries, especially those just embarking on commercial nuclear power 
development, have relatively small programs and may lack the regulatory 
and oversight resources available to countries with more established 
programs. International assistance may be required to ensure they do 
not create disproportionate safety, physical security, and 
proliferation risks. In many cases, mitigating these risks will depend 
less on technological interventions than on the ability to strengthen 
international institutions and safeguards while promoting multilateral 
cooperation and coordination. From the U.S. perspective, two further 
points are particularly important: First, with so many players in the 
international nuclear technology and policy arena, the United States 
will increasingly have to lead by engagement and by example. Second, 
the United States cannot exercise effective leadership on issues 
related to the back end of the nuclear fuel cycle so long as its own 
program is in disarray; effective domestic policies are needed to 
support America's international agenda.
    The Fukushima accident has focused new attention on nuclear safety 
worldwide. Globally, some 60 new reactors are under construction and 
more than 60 countries that do not have nuclear power plants have 
expressed interest in acquiring them. These nations will have to 
operate their facilities safely and plan for safe storage and 
disposition of spent nuclear fuel. The United States should help launch 
a concerted international safety initiative--encompassing organizations 
like the International Atomic Energy Agency (IAEA) as well as 
regulators, vendors, operators, and technical support organizations--to 
assure the safe use of nuclear energy and the safe management of 
nuclear waste in all countries that pursue nuclear technology.
    Nuclear weapons proliferation has been a central concern of U.S. 
nuclear policy from the earliest days of the nuclear era. These 
concerns are still prominent, especially where the deployment of 
uranium enrichment, reprocessing, and recycled fuel fabrication 
technology is being contemplated. As countries with relatively less 
nuclear experience acquire nuclear energy systems, the United States 
should work with the IAEA, nuclear power states, private industry, and 
others in the international community to ensure that all spent fuel 
remains under effective and transparent control and does not become 
``orphaned'' anywhere in the world with inadequate safeguards and 
security.
    Longer term, the United States should support the use of multi-
national fuel-cycle facilities, under comprehensive IAEA safeguards, as 
a way to give more countries reliable access to the benefits of nuclear 
power while simultaneously reducing proliferation risks. U.S. 
sponsorship of the recently-created IAEA global nuclear fuel bank is an 
important step toward establishing such access while reducing a driver 
for some states to engage in uranium enrichment. But more is needed. 
The U.S. government should propose that the IAEA lead a new initiative, 
with active U.S. participation, to explore the creation of one or more 
multi-national spent fuel storage or disposal facilities.
    In addition, the United States should support the evolution of 
spent fuel ``take-away'' arrangements as a way to allow some countries, 
particularly those with relatively small national programs, to avoid 
the costly and politically difficult step of providing for spent fuel 
disposal on their soil and to reduce associated safety and security 
risks. An existing program to accept highly-enriched uranium fuel from 
research reactors abroad for storage in the United States has provided 
a demonstration--albeit a limited one--of the national security value 
of such arrangements. The capability to accept limited quantities of 
spent fuel from foreign commercial reactors could be similarly valuable 
from a national security perspective. As the United States moves 
forward with developing its own consolidated storage and disposal 
capacity, it should work with the IAEA and with existing and emerging 
nuclear nations to establish conditions under which one or more 
nations, including the United States, can offer to take foreign spent 
fuel for ultimate disposition.
    The susceptibility of nuclear materials or facilities to 
intentional acts of theft or sabotage for terrorist purposes is a 
relatively newer concern but one that has received considerable 
attention since 9/11. The United States should continue to work with 
countries of the former Soviet Union and other nations through 
initiatives such as the Nunn-Lugar Cooperative Threat Reduction Program 
and the Global Initiative to Combat Nuclear Terrorism to prevent, 
detect, and respond to nuclear terrorism threats. Domestically, 
evolving terrorism threats and security risks must be closely monitored 
by the NRC, the Department of Homeland Security, and other responsible 
agencies to ensure that any additional security measures needed to 
counter those threats are identified and promptly implemented. The 
recent events at Fukushima have--as they should--prompted the NRC and 
the industry to re-examine the adequacy of ``mitigative strategies'' 
for coping with large-scale events (like an explosion or fire) or 
catastrophic system failures (like a sudden loss of power or cooling); 
as noted previously, we also recommend that Congress charter the 
National Academy of Sciences to assess lessons learned from Fukushima 
with respect to the storage of spent fuel.
                           tying it together
    In conclusion, the problem of nuclear waste may be unique in the 
sense that there is wide agreement about the outlines of the solution. 
Simply put, we know what we have to do, we know we have to do it, and 
we even know how to do it. Experience in the United States and abroad 
has shown that suitable sites for deep geologic repositories for 
nuclear waste can be identified and developed. The knowledge and 
experience we need are in hand and the necessary funds have been and 
are being collected. Rather the core difficulty remains what it has 
always been: finding a way to site these inherently controversial 
facilities and to conduct the waste management program in a manner that 
allows all stakeholders, but most especially host communities, states, 
and tribes, to conclude that their interests have been adequately 
protected and their well-being enhanced--not merely sacrificed or 
overridden by the interests of the country as a whole.
    This is by no means a small difficulty, but we have witnessed other 
countries make significant progress with a flexible approach to siting 
that puts a high degree of emphasis on transparency, accountability, 
and meaningful consultation. Indeed, our friends in Spain have just 
succeeded in selecting a site for a consolidated storage facility by 
using the kind of consent-based process we recommend. Here at home, we 
have had more than a decade of successful operation of WIPP. And most 
recently, the Fukushima accident in Japan has reminded Americans that 
we have little physical capacity at present to do anything with spent 
nuclear fuel other than to leave it where it is. Against this backdrop, 
the conditions for progress are arguably more promising than they have 
been in some time. But we will only know if we start, which is what we 
urge the Administration and Congress to do, without further delay.
    Thank you for having us here today, and we look forward to your 
questions.

 STATEMENT OF GENERAL BRENT SCOWCROFT, USAF (RET.), CO-CHAIR, 
       BLUE RIBBON COMMISSION ON AMERICA'S NUCLEAR FUTURE

    General Scowcroft. Thank you, Lee.
    Mr. Chairman, Ranking Member Murkowski, I want to thank the 
committee for its willingness to listen to our presentation, 
and say at the outset it's an honor for me to be asked to 
participate in an issue I think is so deeply in the national 
interest.
    It's a delight to be associated with the Commission 
members, with my co-chairman, former Congressman, and former 
Senator Domenici, and the outstanding members of the 
Commission, which gave a perspective to us from almost every 
aspect of this problem.
    Element number 4 in our 8 elements are prompt efforts to 
develop one or more geologic disposal facilities. The 
conclusion that disposal is needed, and that deep geologic 
disposal is the scientifically preferred approach, has been 
reached by every expert panel that has looked at this issue, 
and by every other country that is pursuing a nuclear waste 
management program.
    Moreover, all spent fuel reprocessing or recycle options, 
either that already are available, or those under active 
development at this time, still generate waste streams that 
will require a permanent disposal solution.
    The Commission recognizes that current law establishes 
Yucca Mountain in Nevada as the site for the first U.S. 
repository for spent fuel and high-level waste.
    The Blue Ribbon Commission was not chartered as a siting 
commission. Accordingly, we have not evaluated Yucca Mountain 
or any other particular location as a potential site for 
storage or disposal of spent nuclear fuel and high-level waste. 
Nor have we taken a position on the President--on the 
Administration's request to withdraw the license applications.
    We simply note that regardless of what happens with respect 
to Yucca Mountain, the U.S. inventory of spent nuclear fuel 
will soon exceed the amount that can legally be emplaced at 
this site until a second repository is in operation.
    So, under current law, the United States will need to find 
a current new disposal site, whether or not Yucca Mountain goes 
forward.
    We believe the approach set forth here provides the best 
strategy for assuring continued progress regardless of the fate 
of Yucca Mountain.
    Our 5th element of our recommendations is prompt efforts to 
develop one or more consolidated storage facilities. Here let 
me point out, or emphasize, the difference between storage and 
disposal. Storage is a temporary condition; disposal means 
permanent while retrievability may be an issue. So those are 
the differences between storage and disposal.
    Developing consolidated storage capacity would allow the 
Federal Government to begin the orderly transfer of spend fuel 
from the reactor sites to safe and secure, centralized 
facilities independent of the schedule for operating--opening 
and operating a permanent repository.
    The arguments in favor of consolidated storage like this 
are strongest for what is termed ``stranded'' fuel, that is 
spent fuel from shut down plant sites, of which there are ten 
now across the country.
    Stranded fuel should be first in line for transfer to a 
consolidated facility so that these plant sites can be 
completely decommissioned and put to other beneficial uses. 
This is a very expensive stranded fuel operation.
    Looking beyond the issue of today's stranded fuel, the 
availability of storage--consolidated storage itself will 
provide valuable flexibility in nuclear waste management 
systems that could achieve meaningful cost savings.
    It could provide backup storage in the event that spent 
fuel needs to be moved quickly from a reactor site, and would 
provide an excellent platform for ongoing R&D to better 
understand how the storage systems currently in use, at both 
commercial and DOE sites, perform over time.
    The sixth element of our recommendation is prompt efforts 
to prepare for the eventual large-scale transport of spent 
nuclear fuel and high-level waste to consolidated storage and 
disposal facilities, when such facilities become available.
    The current system of standards and regulations governing 
the transport of spent fuel and other nuclear materials has 
functioned really very well, and the safety record for past 
shipments of these types of materials is excellent.
    That being said, past experiences in the United States and 
abroad, and extensive comments made to our Commission, indicate 
that many people have a fear of the transportation of nuclear 
materials. Thus, more transport demands for nuclear materials 
are likely to raise additional public concerns.
    In order to allay these concerns, while ensuring the 
highest levels of transport safety, the Commission believes 
that State, tribal, and local officials should be extensively 
involved in transportation planning, and should be given the 
resources to discharge their roles and obligations in this 
area.
    Historically, some programs have created transportation 
planning as an afterthought. No successful programs have done 
so.
    The seventh recommendation is support for advances in 
nuclear energy technology and work force development. Advances 
in nuclear energy technology have the potential to deliver an 
array of benefits across a wide range of energy policy goals.
    The Commission believes these benefits, in light of the 
environmental and energy security challenges the United States 
and the world will inevitably confront in this century, justify 
sustained public and private sector support for RD&D on 
advanced reactor and fuel cycle technologies.
    The Commission also recommends expanded Federal, joint 
labor-management and university-based support for advanced 
science, technology, engineering, and mathematics training to 
develop the skilled work force needed to support an effective 
waste management program, as well as viable domestic nuclear 
industry.
    At the same time, DOE and the nuclear energy industry 
should work to ensure that valuable existing capabilities and 
assets, including critical infrastructure and human expertise, 
are maintained. This long hiatus has led to a sharp decline in 
the skills required.
    The last element is active U.S. leadership in international 
efforts to address safety, nonproliferation, and security 
concerns we believe are important.
    As more Nations consider pursuing nuclear energy or are 
expanding their nuclear programs, U.S. leadership, we believe, 
is essential on issues of safety, nonproliferation, security, 
and counterterrorism issues.
    From the U.S. perspective, 2 points are particularly 
important. First, with so many players in the international 
nuclear technology and policy arena, the United States will 
increasingly have to lead by engagement and by example.
    Second, the United States cannot affect effective 
leadership on issues related to the back end of the fuel cycle 
so long as its own program is in its current state of disarray. 
Effective domestic policies are needed to support our 
international agenda.
    In conclusion, the problem of nuclear waste may be unique 
in the sense there is wide agreement about the outlines of the 
solution. Simply put, we know what we have to do, we know we 
have to do it, we even know how to do it. Experience in the 
United States and abroad has shown that suitable sites for deep 
geologic repositories for nuclear waste can be identified and 
developed. The knowledge and experience we need are in hand, 
and the necessary funds have been--are being--collected.
    The core difficulty remains what it has always been: 
finding a way to site these inherently controversial facilities 
and to conduct a waste management program in a manner that 
allows all stakeholders, especially those host communities, 
States, tribes, to conclude that their interests have been 
adequately protected, and their well-being enhanced--not merely 
sacrificed or overridden by the interests of the country as a 
whole.
    We believe the conditions for progress are arguably more 
promising than they have been in some time, but we will only 
know if we start. Which is what we urge the administration and 
the Congress to do without delay.
    Thank you for having us here today. We intend to submit as 
co-chairmen. Hamilton has said a full version of our testimony.
    We look forward to your questions.
    The Chairman. Thank you very much.
    Let me just ask if Senator Domenici wanted to make any 
comment at this point--he's certainly welcome to.
    Senator Domenici. Mr. Chairman, just a couple of minutes.
    The Chairman. Please, go ahead.
    Senator Domenici. I believe it's imperative that the 
committee understands that there is already in existence a law 
that causes the nuclear utility companies to pay approximately 
$750 million a year.
    Now one would say with that much money coming in--and it 
is, and it will for some time to come--why don't we have all 
the money we need to carry out a program?
    You should know that the reason it doesn't work is because, 
under the budget process, that money is part of the total 
moneys available for appropriate for domestic affairs. It just 
goes into the pot. It isn't set aside for this.
    So when you go to Appropriations for a few tens of millions 
of dollars, you are not using your own money, which the law 
said was yours. You're having to compete among everybody's 
appropriated money.
    Now we suggest that you fix that by statute. That's your 
prerogative. If you introduce a statute, bipartisan, here, if 
you introduce one, you should do what is recommended here and 
set up a new company and have the money run through it to do 
what it is supposed to do with the money, and to change the 
budget allocation with the new bill.
    We told you how to do it, and we got the best budget 
experts around to show us and tell us this was the right way. 
If it was done, nobody should complain because it is their 
money. It is money--they shouldn't be collecting it from these 
thousands of utility payers if it's going in the general fund 
of the United States. So that's the biggest point I think we 
have to understand.
    The second one is that this recommendation says that the 
location shall be consensual. That means we will not have the 
Yucca fight, because a site will want it or we won't be 
building it there.
    So in other words, we are gambling, and I think properly, 
that more than one community sees what's involved and if they 
have a chance, visit the WIPP to see how a low-level 
transuranic site one mile underground is handled.
    There will be more than one, which would be saying they 
want it. That's very important that you know it is going to 
happen.
    We've already had communities come and ask us--and Senator 
Bingaman, you must know that your constituents, many of them, 
are already exploring with the communities of Carlsbad and 
Hobbs, et cetera, unifying to apply to this when it's ready. So 
I would just want to make those points. The others are very 
beautifully set out for you.
    It's an excellent report. I hope the two of you, as a 
chairman and ranking member, see fit to introduce a bill that 
carries out the purposes, and that you back it. You will have a 
lot of support because it is the right thing to do, it is fair, 
and the country ought to be angry that we've set all this money 
for all these years--it's now almost 30 billions of dollars--
that belong in nuclear waste, it's just going in the Federal 
Treasury and being used for the deficit.
    That's not the right thing. Wearing my budget hat, I would 
say that has to be that way until it's changed, and that's 
correct. So you should change it, just like we changed it for 
the gasoline tax. It was in trust, but not in trust. I said it 
should remain the way it is, and Senator Graham and others said 
it should be held aside like it says, and they won. You've 
already won with this Commission saying it belongs to nuclear 
waste; it doesn't belong to the budget.
    So you've got to fix that or you don't have money for this 
program. But if you fix it, you have $750 million a year, and 
we think that's, in early stages, more than you need, and then 
it goes in trust if you have extra money until you need it. So 
that part is pretty good, I think, and understandable.
    I thank you for giving me a couple minutes. Thank you.
    The Chairman. Thank you very much. Thank you, all of you, 
for your excellent testimony.
    Let me start with a few questions. I'm sure each of us will 
have questions.
    Under the Nuclear Waste Policy Act of 1982, I think the 
concept there was let's find the best geologic site and then 
persuade the public to accept the waste going to that site. 
That was the concept behind it, at least.
    Seems that the proposal that your Commission is making is 
somewhat reversed, in that you're saying let's find a site that 
the public would like, or the public would accept, and then 
hope that the proper geology exists at that site.
    What do you suggest we do in this legislation, if we do 
legislation, to ensure that the geology is right? I think you 
might find that there are communities that want to have this, 
but that the concerns about proper storage and safety and all 
of that might get short shift in the rush to put it where 
communities are willing to take it.
    Mr. Hamilton, did you have a thought on that?
    Mr. Hamilton. Look, there isn't any magic bullet here. We 
do recommend a consent-based process. That has to be very 
flexible. You can't spell it out ahead of time, and you have to 
give the players, this new organization, Department of Energy, 
the local communities, the tribal groups, States, and so forth, 
quite a bit of running room.
    We don't recommend either way that you suggest. That is to 
say we think the top-down forced solution, proposed solution, 
hasn't worked. Federal Government tries to impose Yucca on the 
people of Nevada. That hasn't worked. We say that it has to be 
a negotiated process. It is quite possible that communities 
will volunteer. After all, there are a lot of benefits to one 
of these facilities: a lot of jobs created and other things.
    So, if a community has the right geographical and 
geological assets, they might volunteer. On the other hand, 
they may have those assets and not volunteer, in which case we 
think the Federal Government may very well have to offer some 
incentives to get them to come into the negotiating process.
    So it's going to be different, I guess, in different 
places, but you have to have an organization that has the 
ability to manage and conduct this site selection process. You 
have to give that organization the tools that it needs to 
engage in the negotiations, and you want to encourage 
communities to come forward.
    So when we talk about consent-based, we're talking about 
transparency, we're talking about flexibility, accountability, 
responsiveness, and consultation and all the rest. It's easy to 
talk about those things. We know, as a matter of fact, this 
process we're recommending is not a surefire guarantee. It's 
going to take a lot of negotiation between the interested 
parties to achieve.
    General Scowcroft. Mr. Chairman, if I could. We have not 
really reversed the process. We say first there should be a 
general set of criteria for sites that are reasonable. There's 
a great deal known about appropriate sites.
    Now if some community comes forward with a site that has 
not been identified as appropriate, then of course we would 
have to look at it and judge it. But we would start--this new 
organization would start by getting some EPA set of criteria 
that have to be met.
    The Chairman. Yes, Senator Domenici.
    Senator Domenici. Mr. Chairman, I believe in the report 
that we recommended that the Nuclear Regulatory Commission 
establish now a safety standard that any site must meet. In 
other words, we'll have a safety standard going into the 
process NRC will establish, and if you don't have that, you're 
not--consent or otherwise, doesn't matter, you're not going to 
get it. It's not going to bet here. It's going to have to meet 
the standard. I think that's a very important thing we did.
    The Chairman. All right.
    Let me ask about the connection between establishment of 
these independent--or these--I think you call them consolidated 
storage facilities, which are of an interim nature as I 
understand it, or a temporary nature.
    The siting of those as it relates to the siting of a 
permanent repository--it does seem like transportation 
increases cost, transportation of the waste increases cost--
transportation increases danger of an accident. You don't want 
to structure a system for handling nuclear waste that increases 
the amount of transportation involved.
    I remember we had quite a discussion back in the 1980s, I 
believe, when Senator Murkowski's father was the chairman here, 
maybe in the 1990s, about whether or not we should go ahead and 
just establish an interim site at Yucca Mountain or very near 
Yucca Mountain. A concern was raised there, no, no, that 
wouldn't be a smart thing to do or an appropriate thing to do 
until we have a determination that we're going to use Yucca 
Mountain as a permanent site.
    So that's a set of concerns. How do you see the 
decisionmaking with regard to these interim sites being related 
to the decisionmaking with regard to location of a permanent 
site?
    General Scowcroft, if you want to address that.
    General Scowcroft. Yes, of course.
    I think ideally there would be some connection. It may be 
difficult because our notion is we need to--we can proceed 
faster on the storage site then we will be able to do on a 
permanent disposal site.
    But I would note in the case of the WIPP facility, the 
local people are already establishing ground that could be used 
for a storage facility, which of course would be ideal given 
the relationship to WIPP.
    So the two are clearly interrelated, but there's the issue 
of timing that might force us to develop storage sites before 
we know precisely where the permanent site will be.
    Mr. Hamilton. What has to happen is you have to operate on 
parallel tracks. You've got to move ahead with the consolidated 
storage, and at the same time you've got to move ahead with 
regard to a repository. The interaction between the two becomes 
very important.
    You've got to give these folks hope that this problem can 
be solved eventually, and of course that's what the repository 
is for.
    You mentioned the problem of transportation. We didn't pay 
enough attention to that early on in the commission. We had our 
draft report circulated and we got a lot of criticism on it, 
constructive, with regard to transportation.
    I've had experience, and I imagine many of you have had 
experience with the fear that exists among people about 
transporting nuclear waste across Indiana, or Oregon, or 
wherever. It's genuine.
    The fact of the matter is, our record on transportation of 
nuclear waste is very, very good. I don't think there's been a 
single serious accident. So we've had a good track record.
    But of course you are right. If you move a lot of this 
waste material from a variety of sites now around the country 
to three or four, or one or two, whatever, consolidated storage 
places, you're going to increase the amount of transportation 
required. As the General said in his testimony, this had tended 
to be overlooked.
    What has to happen here is a lot of planning, and 
consultation, and education has to precede the actual movement 
of the materials. That hasn't happened.
    So you have to begin planning immediately as to how the 
transportation is going to be done. You have to involve the 
local communities; you have to educate people about the safety 
of the process. All of this is a complex matter.
    There are clear advantages to having consolidated storage 
sites. Those advantages include moving the stranded fuel at 
many sites today where the reactors are present, and getting it 
in one central place. You'll increase your safety in all 
likelihood, but you also have the advantages, I might say with 
regard to stranded fuel, there are ten sites today where shut 
down reactors are in place. You'll want to get that stuff out 
of there and put it into a consolidated storage site. But 
you're going to save money in the long run, I think, if you use 
that--if those sites can be used for constructive purposes 
other than just having the stuff sit there.
    But a consolidated storage site would provide a backup 
storage capacity; it provides a very good platform for research 
and development, and we think it's an important part of the 
overall process. But it has to be in parallel.
    You can't set up these storage places and quit there, 
because people then will begin to have in their frame of mind 
this is going to be permanent, this is going to be forever. 
You've got to give them confidence and hope that the process is 
going to move forward and get that stuff eventually into a 
permanent site disposal.
    The Chairman. Senator Murkowski.
    Senator Murkowski. Thank you, Mr. Chairman.
    I appreciate what you're saying, Congressman, about the 
parallel tracks. You do have to give that promise or make good 
on that promise that it will have a permanent repository.
    Let me ask you this, and the Commission chose not to 
address the potential for nuclear fuel recycling. But if we're 
looking at how we build out the consolidated storage 
facilities, these interim facilities, but recognize that the 
waste streams that we may see from a recycling plant are likely 
to be sufficiently different than that of spent fuel, wouldn't 
that have some kind of bearing on either the design, the cost 
of the repository, possibly even the criteria that might go 
into a permanent repository? So that as we're trying to pursue 
these parallel tracks, maybe we don't have all that we need to 
make that determination for the permanent repository at this 
point and time?
    Mr. Hamilton. You're raising the question of reprocessing 
and recycling.
    Senator Murkowski. Right, which I know was not addressed 
within the report.
    Mr. Hamilton. We did look at it, and obviously there are 
people who support that idea of reprocessing. We don't rule 
that out, we just think it's premature at this point to make a 
judgment that that's the way to go with regard to handling the 
nuclear fuel cycle.
    It's important to remember that all spent fuel reprocessing 
or recycling options produces nuclear waste. It doesn't remove 
it. May reduce it. We've found that the reprocessing proposal, 
recycling, does not fundamentally change the way you have to 
look at the waste management program.
    We don't want to rule it out, and we know that some 
countries like France are doing it--it's very expensive, 
incidentally, as a process. But we keep that option open. We 
just say that you're going to have to have waste management 
under any circumstance. If you can reduce the amount of waste, 
obviously that's advantageous.
    Senator Murkowski. That's better, but you don't think that 
that would sufficiently alter any criteria that you may be 
looking at, at this point and time.
    Mr. Hamilton. That's correct.
    Senator Murkowski. All right.
    Let me ask about--and Senator Domenici brought this up with 
the issue of the funding--this idea of a FEDCorp is one that I 
have certainly considered and think makes some good sense.
    But if you structure it as has been proposed with access to 
the funding that you have recommended, do you have any 
suggestions as to how we insulate such an entity to prevent the 
politics from being a driving force within the decisionmaking 
process?
    I think we know how complicated that can or will make 
things. Have you given any thought to how we might structure 
that? I throw that out to any of you.
    Senator Domenici. Let me say, Senator, in setting up the 
corporation, we provide the best possible way that we know, 
around here at least, to get good people on that board, the 
board of directors of that company will be appointed by the 
President, confirmed by the Senate.
    There's no way we can assure that they will be free of 
politics or that process will be, but it would appear to us 
that this approach is the best possible thing we could do to 
make this work.
    Right now it doesn't work at all even though the money is 
there. It's all commingled. They would have no business other 
than the establishment of the waste process facilities and the 
rules, and use the money appropriately.
    I can't give you any other answer other than those 
processes are calculated to see that it's done properly. Who 
knows around here whether it'll work. We think it will, though, 
much better than it is now.
    Senator Murkowski. Of course you do have some apprehension 
out there now as we look at some of these quasi-Federal 
agencies that have this independence and this autonomy, and 
have created some serous problems.
    So it's not only ensuring that the politics don't 
intervene, but that you don't have an agency that will have the 
ability to go run amok, if you will.
    Mr. Hamilton. It's obviously going to take a lot of 
oversight to make it work, and of course you've got to have the 
right people on the board or it'll never work in the 
organization.
    But we hope that the administration can move forward 
immediately with regard to correcting this funding process, the 
inaccessibility of these funds.
    General Scowcroft and I have written a letter to the 
President asking him to do it in the budget, I guess that's 
going to be submitted here in a few days to the Congress.
    What could happen is that the Secretary of Energy would 
amend the standard nuclear waste contracts with nuclear 
utilities. He's authorized to do that under current law. He can 
move that fee up and down so that the utilities remit only a 
portion of the amount that is needed, and then you put the rest 
of it into a trust fund or trust account that would be held by 
a third party institution. All of this is spelled out in the 
report.
    At the same time, we recommend that the OMB and the 
congressional budget committees change the budgetary treatment 
of these annual receipts so that they go directly into an 
appropriation for the waste management program.
    In the longer term, you're going to need legislation to 
transfer the unspent balance in the fund to the new waste 
management organization.
    So all of this can be done--or, excuse me, a lot of this 
can be done without legislative approval now. To get us on the 
right track, to get this funding problem fixed, if you would, 
right away, and it can be done by administrative action, 
largely--and I very much hope that the President will agree 
with that.
    The Department of Energy Secretary, Mr. Chu, has--I don't 
want to speak for him, obviously, he can speak for himself--but 
he has certainly indicated his positive comments about the 
recommendations we have made with regard to moving ahead now on 
correcting the problems in the funding.
    Senator Murkowski. Thank you.
    General Scowcroft. Senator, I think one of the primary 
reasons we suggested a government corporation rather than a 
private entity was to minimize the chances of this running 
amok.
    Because we think that this is an issue, and nuclear waste 
is so important, the government has to retain responsibility 
but move the operation away from the political atmosphere that 
it has in DOE.
    The Chairman. Senator Wyden.
    Senator Wyden. Thank you, Mr. Chairman. Thank you, Mr. 
Chairman and Senator Murkowski. I know we're going to tackle 
this as we've always done in a bipartisan way.
    In this particularly important hearing we have 3 wonderful 
public servants, two of whom I got to serve with in the House 
and in the Senate, and General Scowcroft, you're extraordinary 
service is legion.
    Here's how I come to this. First, I can't help but noting 
that the staff has pointed out that this is Groundhog Day.
    [Laughter.]
    Senator Wyden. You know, we've gone at this thing again, 
and again, and again. Let me start with you, if I could, 
Congressman Hamilton, old friend.
    You know, on this question of voluntarism, it seems to me 
as important as that is, it's really not voluntarism. It's good 
science. All of these issues are constantly driven by good 
science policy. I know you shared this view as well.
    I mean, at the end of the day if somebody volunteers, we 
still have to find a way on the repository issue to make sure 
it's a safe place where you can keep it for a thousand years.
    So if you would, give me your sense of how we can figure 
out a way to link the idea of getting people to volunteer--
which nobody I think in their right mind could be opposed to--
can link that in a very practical way to getting the good 
science that, at the end of the day, is going to help us figure 
out how to do this.
    Mr. Hamilton. Obviously you have to have good science. You 
cannot dump this stuff in a place that can't contain it for a 
long, long period of time.
    So what has to be done is the Federal Government--and it is 
my understanding, at least under today's authorities in law--
it's up to the EPA to develop generic disposal standards and 
the necessary regulatory requirements to go along with that. So 
that those standards, scientifically based, would have to be a 
prerequisite, if you would, of moving ahead with regard to any 
site.
    So when I'm speaking about voluntary I didn't mean to 
exclude the good science part of it, obviously.
    Senator Wyden. I understand.
    Mr. Hamilton. The two things have to go together.
    Senator Wyden. I think we'll want to follow up with your 
staff some more, because obviously you've done a lot of good 
work in this area. But that was my one concern in terms of the 
big picture issue, is how the link was going to work between 
voluntarism and good science.
    Let me--if I might--ask you three, because of your 
expertise, a question on the defense waste issue. Maybe we'll 
bring you into this, General Scowcroft, because of your 
military background. This is something that concerns folks in 
our part of the world, Senator Cantwell's constituents, and 
hundreds of thousands of folks in the Northwest because the 
Columbia River, Hanford, you know, really are our lifeblood. 
Concerned about how the process is going to go forward to 
dispose of high-level waste from the nuclear weapons program.
    Over the years there's been a sense it really went to 
Hanford because, well, Hanford was there. When you think about 
Yucca, I mean, one of the unfortunate secrets about Yucca was 
that it wasn't going to be big enough for all of the waste that 
needed to be disposed of. I mean, for 70,000 tons of spent 
fuel, your own report indicated that we would need much more 
than that. You all note continued operations, current plans 
would roughly double the amount of spent fuel by 10-50.
    So the bottom line is that our country needs to find 
capacity to dispose of a lot more nuclear waste than really has 
gotten out, one, and that putting all of the nuclear waste eggs 
in one basket--like some thought about with respect to Yucca--
seemed to me to be a questionable approach from the get-go.
    I'd be interested in the thoughts of the 3 of you, whoever 
wants to take it, I thought of you Mr. Hamilton, and General 
Scowcroft, all of you, Senator Domenici as well. How many 
disposal sites do you all think the Federal Government ought to 
be pursuing to deal with this defense waste issue? What's your 
sense? Congressman Hamilton, you want to start? Any of you 
three.
    Mr. Hamilton. I think what we said in the report is one or 
more. We really did not try to make a judgment about that. I 
would think almost certainly it would be more than one, but my 
judgment would be we'd end up with several.
    There are plenty of sites I think available in the United 
States that would qualify, but we did not make a recommendation 
nor did we try to say how many.
    Senator Wyden. My time is getting to run out. General 
Scowcroft, Senator Domenici, either of you on that?
    General Scowcroft. I think that is correct. Whatever 
happens to Yucca Mountain, for example, we will need another 
site, we know. So there will be at least two. I think we had 
not--we did not have the resources nor the time to make the 
differentiation between government-created waste, which is much 
of what is at Hanford, and commercial reactor fuel.
    So, one of our recommendations is to urge a quick study on 
whether or not the government-owned fuel--or, the government-
owned waste--should be a part of this system, or whether DOE 
should continue to manage that. We simply didn't have the time 
to look into that.
    Senator Wyden. Last words from my friend Senator Domenici, 
if he wants it.
    Senator Domenici. I think you ought to--in response to your 
question, I would suggest that the committee take a good look 
at the reality of military waste or defense waste. Much of it 
is ready to be disposed of; it's already been put in glass, 
whatever the words are for that. What do you call that when 
it's been--it's gone through the process of vitrification and 
it's ready.
    We did not have the time to pass on whether we should 
separate that out and go with a repository for it all its own, 
but we suggested that the executive branch look quickly at what 
should be treated differently and proceed, perhaps, with 
dispatch to establish a facility for the military.
    Actually if you wanted to prove up something you could do 
that one and do it first. It is ready and it is not reusable. I 
mean, it doesn't have to wait around to be reused. It is 
finished. It's going to be in that form and never used again, 
and there's a lot of it ready to go.
    Senator Wyden. Thank you, Mr. Chairman.
    The Chairman. Senator Risch.
    Senator Risch. Thank you.
    Gentlemen, I was really looking forward to the report, 
being from Idaho. We're very anxious to have a permanent 
repository identified. I was hoping it was going to be one page 
with a picture of the United States and a red arrow pointing to 
a spot.
    [Laughter.]
    Senator Risch. But obviously that didn't happen, nor did it 
come close to that, so I was deeply disappointed.
    Where are we going here? I mean, here we are, February 2, 
2012. We're the same place we've been year after year after 
year. Who's going to do this? When is it going to be done? 
Where is the location going to be?
    We have spent billions, and billions, and billions, the 
most powerful country in the world, and we can't figure out 
what to do with this. Help me out here, where are we going?
    General Scowcroft. Senator, that's what we tried to solve. 
But as Mr. Hamilton said, you know, there's no easy answer. But 
I think we've got the right answer. I think we're going in the 
right direction.
    As we look at other countries who have struggled with this, 
the ones who have made progress are the ones who have dealt--
have adopted this consent approach. That is, you make it 
valuable to local communities. In Sweden's case, they bid for 
it.
    So, rather than start--or continue the way we have, which 
is force it down, you guys are the ones who are going to do it 
whether you like it or not, to make it an attractive thing to 
have happen, which has been the case in Finland, Sweden, Spain, 
and it's going that direction in Canada.
    We think that's the way to go. I think if we can get this 
thing started and going--it's not going to be done tomorrow, 
there's no question about it. It's going to take a matter of 
some decades.
    Mr. Hamilton. There's a lot of frustration here, Senator, 
as you expressed, because we haven't moved forward on it.
    We took a guess in the report as to how long it would take, 
and we said 15-20 years, I believe, to identify and locate a 
geologic repository, and 5 to 10 years a consolidated storage 
site. Now those are guesses, but it is important here that you 
have some realism about what can be done and how quickly it can 
be done.
    We've wasted, as you suggest, an awful lot of time----
    Senator Risch. Money.
    Mr. Hamilton. Money in dealing with this, a huge amount of 
both. So the frustration levels are understandably and 
justifiably high. But, having said that, to do it right is 
going to take some time, and people have to get into their 
mindset on this that it is going to take decades to solve this 
problem and not years.
    Senator Domenici. Senator, might I say--I didn't get to 
know you very well by the time I left the Senate but I know 
from whence you come and who you follow, so I would expect you 
to be anxious about this and wondering.
    But I would throw it back to you and say we have concluded 
there's no way to do it without some new laws, so if you agree 
with us then I would throw it back to you. You ought to help us 
by getting on board and working to get this law changed.
    Second, the administration has to change the funding 
mechanism, as our chairman has indicated, or there's no chance 
to have the money used for what it's supposed to be. We have 
entangled it so much, we've got to untangle it whether we like 
it or not. We've got to do that.
    So I'd say you ought to help us, and the committee ought to 
push the administration to support the Hamilton-Scowcroft 
letter, which recommends that they make some changes to get 
things going.
    Mr. Hamilton. One of the questions the House Members raised 
with us was how long is it going to take to set up the new 
organization? That's your question, that's not our question. We 
can't answer that. I'd like to see the new organization set up 
this year. I doubt very much if that's possible with all that 
you've got on your plate, but at the House side they were 
talking 2 or 3 years to set up the new organization.
    Now what we don't want to happen is to have everything come 
to a stop until the new organization is set up, if it is set 
up. That would be awful. That would be another 2 or 3 years of 
dead in the water.
    So we therefore suggest that the administration move ahead 
on the funding, as Senator Domenici has said, and in other 
areas so that we're just not losing valuable time.
    Senator Risch. I think saying that I'm deeply disappointed 
is an understatement, and I think that's true for the American 
people.
    Second, I appreciate what you've done and admire your 
perseverance, but I really question about sitting around 
waiting for someone to jump up and say, ``We want to take 
this,'' because so far that hasn't happened or come anywhere 
close to that.
    Not only that, but when somebody does that there's always 
neighbors in the same neighborhood that say, ``Absolutely 
not,'' then you're deeply divided.
    Just as importantly, you've got to transport this stuff. In 
Idaho we've had--even the transportation has caused horrendous 
problems. Somebody's got to take the bull by the horns and do 
it.
    Thank you, Mr. Chairman.
    The Chairman. Senator Udall.
    Senator Udall. Thank you, Mr. Chairman.
    Good morning, gentlemen. Thank you for all the important 
work you did on the Blue Ribbon Commission, and more broadly, 
for all your service to America for all these years. You're 
shining examples to all of us. When I grow up I want to be like 
all 3 of you.
    [Laughter.]
    Senator Udall. I support and encourage responsible 
development of safe nuclear power, and I think it's the goal 
that colleagues on both sides of the aisle share. In 
particular, you in your report highlighted the need for a well-
designed Federal R&D program so that we could lead the world in 
advancements in nuclear technology.
    One of the long-term efforts you cite as a potential is a 
game-changing nuclear technology development that would have 
large benefits in the areas of jobs, energy security, and 
economic growth. You particularly talk about small modular 
nuclear reactors.
    The chairman, the ranking member and I, and a number of 
other members of this committee have had a real strong interest 
in SMR, which we believe would make nuclear power more safe, 
secure, and cost-effective.
    Could you expand, in that spirit, the Commission's 
recommendations to encourage further R&D in innovative small 
modular reactors, which would hopefully be safer and would have 
better financing structures?
    Mr. Hamilton. We had on our Commission some real experts on 
this, and the General and I are not the experts on the nuclear 
technology. What we feel is that the advances that are taking 
place today in nuclear energy technology have the potential to 
deliver a lot of benefits in the future.
    What we cannot do at this point--I believe I'm correct in 
saying this--that we know exactly what needs to be done for the 
future of nuclear energy. In other words, the field is 
sufficiently fluid, that there are a lot of options still being 
explored.
    So, we left it that we would support vigorous, robust, 
advanced R&D research on advanced reactors and on fuel cycle 
technologies. In the near term, of course, we have to focus a 
lot on the safety and performance of existing reactors.
    Right in the middle of our work, Fukushima occurred and 
that focused our attention, of course, on the whole safety 
question.
    In the longer term, we think that the game-changing 
technologies may very well appear, and we hope they do. They 
could dramatically change. So what you have to do is put into 
place a process here that doesn't lock us in, that keeps the 
options open for us in the future to see how the science 
develops, and then be in a position that you can take advantage 
of the science.
    Senator Udall. General Scowcroft, do you----
    General Scowcroft. Yes, we were not asked to make 
recommendations about a nuclear future or a nonnuclear future 
for the country. But we felt that in order to look ahead and to 
try to deal with a future where energy becomes more and more 
expensive, and more and more desirable and necessary around the 
world, that we ought to keep our options open--and therefore, 
both in reactor design and in ways to deal with the fuel so 
that we can use more than about the 1 percent of the energy 
value that we use now, to see if there are not better ways to 
go.
    As I say, that was not a primary focus. Whatever--whatever 
science can do, so far there's no one who has said, ``Yes, we 
can literally use it all in a way that there is no waste.'' So 
we focused on that aspect, which was what our charter was.
    Mr. Hamilton. Senator Domenici, you wanted to make a 
statement--and then he has to leave.
    Senator Domenici.
    Senator Domenici. Mr. Chairman, Senator Udall, I apologize 
for interrupting.
    I just wanted to say to the Senator from Idaho--I believe 
you should meet the leadership of the city of Carlsbad, New 
Mexico, and Hobbs, New Mexico, and I believe you should visit, 
if you have not, the Waste Isolation Pilot Project one mile 
underground in New Mexico, harboring a 10-year effort wherein 
high-level transuranic waste has been buried.
    The people in that area are led by individuals who are 
informed about waste. They could come here and take a seat up 
there with you all and--pardon me, but do better than we do.
    They know more about it, they have been with it and arguing 
for it for years. They are the kind of leaders we're looking 
for in the country for other sites, if any, because that's how 
you'll get it done. It is very safe when it's done right, and 
it's very remunerative to the society that surrounds it if done 
right. New Mexico is a shining light in that regard, there's no 
question about it.
    Now you have to prove that if you--looking at a medium, you 
have to prove that the heat that would be added in addition to 
the transuranic to get the high level, that that salt or 
whatever geological formation will contain that extra heat--you 
should know that even though that sounds like it ought to be 
done next week and you would say, ``Get on with it,'' some 
predict that will take quite a long time to get done, to see 
what the heat level that will be containable--if you just move 
into that salt.
    Salt is being used as one of the excellent modiem. That one 
there has not moved, that salt has not moved in 40 million 
years. So you're into some very, very safe areas.
    I just wanted to say that because it should be on the 
record, and you should know that there are people at the local 
level who are going to support this, that have learned that it 
is good. We're not going to get it any faster than we are 
producing local leaders that are willing to stick their necks 
out and fight for it.
    We expect that. We expect Governors to do it. If they 
don't, it's pretty hard to get it done.
    I thank you, Mr. Chairman, I'm sorry that I have to leave.
    The Chairman. Thank you for being here.
    Did you want to make a comment? Then we'll go back to 
Senator Udall.
    Senator Risch. Very briefly--I haven't spoken to the county 
commissioners in Nye County, Nevada, but they tell me that 
they're fully on board with this and want to proceed with Yucca 
Mountain. If you can't do that, then where are you going to go? 
Here's the county commissioner, which is the highest local 
authority that there is, and they say, ``Come on, bring it 
on,'' and we won't do it, so.
    Senator Cantwell. Mr. Chairman.
    I know we're still on Senator Udall's time, but Senator 
Domenici brought up a very interesting, and very prevalent, and 
very important point for us in Washington State and the Tri-
Cities, and that is the possibility of prioritizing the 
military waste and moving forward more quickly on that.
    We just can't allow Washington State to be the repository 
for 90 percent of the Nation's high-level waste and then think 
we've done our job. So I know this wasn't the primary problem 
the report was addressing, but now you've brought up an 
interesting point here, so I want to follow up on it, and how 
we could proceed on that recommendation or on Senator 
Domenici's comments, I should say.
    Mr. Chairman. Senator Udall was in the middle of his 
questioning. I hesitate----
    Senator Cantwell. So maybe Senator Domenici and I could 
follow up. I know he's leaving, but this is a very important 
issue; so I appreciate your comments this morning and will look 
forward to hearing more from you--maybe officially for the 
record. Thank you.
    Senator Udall. Mr. Chairman, I'm a patient man. I think 
this is an important conversation, but I would reclaim----
    Mr. Chairman. It's very possible that Congressman Hamilton 
or General Scowcroft would have a comment on this issue when we 
get to Senator Cantwell's questions.
    So why don't you go ahead, Senator Udall.
    Senator Udall. I'm reclaiming my time from the chairman, 
Senator Risch and Senator Cantwell.
    [Laughter.]
    Senator Risch. Himself.
    Senator Udall. Myself. To talk just briefly, I think I had 
about 40 or 50 seconds left before we had an important set of 
statements from Senator Domenici.
    What can we be doing at the IAEA level to build on the 
successes there, but also the ongoing challenges that we face 
at the international level tied to global nuclear safety and 
security?
    General Scowcroft. I think what we ought to be doing at the 
IAEA--or let's say at a global level--is to be taking steps to 
internationalize the fuel cycle so that we don't have every 
country, like Iran for example, that says, ``Yes, we want 
nuclear power, we want to enrich uranium.'' Now we have the 
case, UAE has just decided they want nuclear power and they 
said, ``We're not going to enrich uranium.'' Those are the 
kinds of things that we ought to focus on.
    So, if we can internationalize the fuel cycle so that the 
IAEA is responsible for making sure that any country with 
reactors that meet the safety and security standards has fuel 
available, and that we can take away that spent fuel 
afterwards.
    That seems to me what the country ought to be looking at in 
terms of going forward. There are some 60 nuclear plants now 
being started. Whether we go ahead with nuclear power or not, 
the world is. The only way we can influence it is to get our 
own act in order and try to do it in a way which doesn't leave 
us a badly proliferated world.
    Senator Udall. Thank you, General Scowcroft.
    Thank you, Chairman Bingaman.
    A 10-second final comment: I know there's plenty of blame 
that could be apportioned for the situation we find ourselves 
in, but I appreciate the tone that you have said and 
Congressman Hamilton, Chairman Hamilton, you did this in the 
House yesterday, which was say, ``Look, we can spend all our 
time blaming each other but our strength has always been as a 
country we learn the lessons and then we move forward.'' 
Hopefully that's what we can do in this important policy arena.
    Thank you again for your hard work.
    General Scowcroft. That's basically what we're 
recommending, and I understand Senator Risch's irritation and 
complaint.
    But there is no simple way to do this. We think we have a 
process which will work, and as I said, our Commission is 
composed of members with very different ideas about nuclear 
energy itself, and from different parts of the industry. We 
have come--surprising to me--to a unanimous conclusion about 
our recommendations.
    I didn't think when I first sat down with the Commission--I 
didn't think we had a prayer of coming up with a consensus 
report.
    Senator Udall. You did, you must have prayed overtime.
    [Laughter.]
    Senator Udall. Thank you, Mr. Chairman.
    Mr. Hamilton. Senator Udall, we make 3 areas in the 
international area--we make recommendations in 3 areas. One is 
safety, one is nonproliferation, and the other is security. In 
each of those areas, particularly in the latter 2, you're 
really going to have international involvement or you're not 
going to solve the problem.
    We can't solve the problem of nonproliferation by 
ourselves. We've got to have the support of certain countries 
and the international community. These countries are going to 
go after the development of nuclear energy, there's not much 
doubt about that. We want to make sure that they go about it in 
a way which will protect nonproliferation interests, for 
example.
    That will require high-level diplomatic efforts on our 
part, but also working with and strengthening, in my view, the 
IAEA. It's a very important organization here.
    Senator Udall. Thank you.
    The Chairman. Thank you.
    Senator Heller.
    Senator Heller. I have a comment I'd like to read into, or 
a statement I'd like to read into the record. But to start 
with, I'd just like to broaden our perspective, perhaps with 
some of my colleagues here, that the argument for or against 
Yucca Mountain doesn't begin and end in Nye County. I think 
that's fair to say.
    These are good county commissioners and I've met with them 
all, and I understand their concerns. I think it's important, 
though, to understand that both United States Senators, 
Governors, lieutenant Governor, the majority of the State 
Senate, the majority of State legislature, for that matter, is 
opposed to this site. So, anyway, again I understand where the 
local government is on this particular issue, but I would hope 
that our perspective is much broader.
    But to begin my statement, Nevada is home to Yucca 
Mountain. Our State has been dealing with this boondoggle 
project for literally decades. I'm grateful to have an 
opportunity to talk about this issue because of the serious 
implications that it has with the State of Nevada.
    I know many of my colleagues disagree with me on this 
issue. The irony of the situation is that both opinions stem 
from concerns relating to the importance of the Nation's 
nuclear waste in our respective backyards. In other words, 
don't put it on our backyards, we want it in your backyard.
    According to the Government Accountability Office over the 
past 20 years, the proposed site has suffered from gross 
mismanagement, faulty science and research, contract 
mismanagement, and most alarmingly, questions about the safety 
and design of the site and its impact on its surrounding 
environment and people.
    I'm a strong supporter of a need to responsibly develop our 
Nation's energy resources, including--including--nuclear 
energy. However, the key to my position is the need to be 
responsible, and the history of Yucca Mountain is far from 
responsible.
    Congress approved the Nuclear Waste Policy Act in 1982, 
which charged the Department of Energy with the responsibility 
of finding an appropriate repository site for the disposal of 
spent nuclear material.
    At the time, Yucca Mountain was one of many, many proposed 
geological sites to investigate based on rigorous guidelines. 
Unfortunately, the Act was then amended in 1987 to concentrate 
only on one site: Yucca Mountain.
    Nevada, a State without any nuclear power plants, was 
legally compelled to bear the sole burden of long-term storage 
of the Nation's nuclear waste. This decision in 1987 
infuriated--or initiated a one-sided debate, and a study of 
alternatives has been curtailed ever since, infuriating many in 
Nevada.
    Given the historically politicized nature of this project, 
I don't trust the Federal Government to appropriately manage 
the proposed Yucca Mountain facility. I believe Nevadans have 
the right to be safe in their own backyards. I recognize the 
need to address the problem of spent nuclear fuel, but it must 
be solved through careful consideration of all alternatives 
based on credible scientific information rather than by 
politicians here in Washington.
    The Blue Ribbon coalition report seeks to provide a 
framework to do just that. I would argue that if the process 
would work without Yucca Mountain, it proves that Yucca 
Mountain isn't essential.
    Having said that, I spent some time with a university 
regent from the University of Texas, and I'm not a scientist. 
But he said there's a difference between fusion reactors and 
fission reactors. I don't know that anybody on the panel can 
answer this question, but accordingly, based on this 
information, onsite waste is minimized. It's still being 
studied; let me say it's very positive results.
    Developments look up--looks like it's going upwards, and 
many of the energy companies are involved in this particular 
study. If you get a chance to take a look at any of this or get 
any background information on what alternatives can be done, as 
opposed to just burying nuclear waste in the ground?
    General Scowcroft. Senator, I can agree with many of the 
comments that you made, which is why our Commission was 
established. We focused on many of the points that you raised 
on the history of it in the United States to try to fix it.
    We did not--and were not chartered to--look into the 
technology of nuclear reactors or of reprocessing. But we did 
look at it, and we had a few experts on the committee to know 
that there are scientifically a number of promising 
developments. We did not focus on any one other than the 
general statement that we should pursue vigorously R&D both in 
reactor design and in reprocessing technology.
    Mr. Hamilton. What we found confirmed much of what you just 
said. I noted you said you don't trust the Federal Government--
I think you said something like that in your statement.
    We heard that 150 times in the process, many of them from 
your State, who said they don't trust the Federal Government 
and the process that was followed. You talked about it being--
Nevada being legally compelled to have this as the sole site 
repository. That's exactly right.
    That has a certain appeal to it if you don't live in 
Nevada, but we don't think it works. We don't think it has 
worked to force the decision down. You spoke about a buy-in by 
the local community--that's what the consent process is all 
about that we recommend.
    You have to have the buy-in not just for the folks at the 
Department of Energy, and the experts, and the scientists, you 
have to have the buy-in of the local community or it's not 
going to work.
    So the consent process that we put forward is difficult, 
it's hard, it's going to call for tough negotiations, but we 
think it's the only way to go to reach a solution here.
    So I am very sympathetic to the comments that you make 
about what's happened at Yucca, and I think so many mistakes 
were made in that process that we say this is not going to 
work.
    Senator Heller. Mr. Chairman, thank you.
    I don't have any further questions or comments. I just want 
to thank the Commission for their hard work and effort, and 
thank those on the panel today for their overall view and 
insight on the situation.
    The Chairman. Thank you very much.
    Senator Shaheen.
    Senator Shaheen. Thank you, Mr. Chairman.
    Thank you to both of our panelists, not only for being here 
today and taking on this issue, but for your continued 
willingness to take on contentious issues facing the country.
    New Hampshire is home to the Seabrook Nuclear Power Plant. 
We are right across the border from Vermont Yankee, so there 
has been a lot of--there have been a lot of issues raised over 
the years relative to nuclear power in the State.
    Back before the 1997 amendments that Senator Heller talked 
about, New Hampshire was identified as a potential site for 
nuclear waste like Yucca Mountain.
    I think it's fair to say that that's one of the most 
controversial issues that I've ever seen addressed in New 
Hampshire.
    I understand what you're saying about the consent question, 
but it's still not clear to me how this will work. What's going 
to initiate that kind of an effort at a local level in a State 
or community that will actually produce the process that would 
develop a consensus around taking nuclear waste?
    I agree with the thesis that you've got to have support 
from the community, the State, but it's still not clear to me 
how that actually gets accomplished. So I wonder if you could 
speak to that a little more.
    Mr. Hamilton. I think it can be accomplished locally up, 
and nationally down. I don't think you can tell which way it'll 
go. But it could very well be that the national government, DOE 
or whatever, would locate potential sites and say to a 
community in New Hampshire, ``You've got a spot here that 
scientifically works,'' or we think it works. Then the New 
Hampshire community may say, ``Well, that's wonderful. We're 
not interested.''
    In that case, I think the negotiations have come to an end 
and it won't work. Then the Federal Government may come back 
and say, ``OK, you don't particularly want it, but let me say 
we're going to give you blank number dollars, we're going to 
create so many jobs, you may want to reconsider.'' The 
negotiating process goes forward.
    It may also start at the local level, and people who know 
that they have facilities that--assets in the community that 
might work, would contact the Federal Government.
    We can't predict how this process will go forward. We think 
it has to be a negotiating process, it has to be consent, and 
by that, at the end of the day, we mean there has to be an 
agreement struck.
    It has to be an agreement among the parties, and that 
includes the new organization we're talking about. If it is, in 
fact, created, it includes the local communities at county, 
city, State levels, and it'll certainly include a lot of others 
because there's a huge nuclear community out there in this 
country.
    So it's not a process that we can spell out for you, but 
the initiative could come locally or nationally.
    Senator Shaheen. Does it not--I'm sorry, go ahead, General 
Scowcroft.
    General Scowcroft. It has worked elsewhere. There's an 
additional difficulty in the United States because we have a 
Federal system. No other country in which this worked has 
intermediate government levels like our State government levels 
with so much power. That is a seriously complicated factor as 
Senator Heller just announced.
    But we can't think of a better way of doing it, and one of 
our overall national responsibilities is to deal with the 
Federal structure in a way that can serve the American people 
as a whole, and individually.
    I don't think it's beyond--I think the example of New 
Mexico and the WIPP plant is very instructive. Because there, 
there is some difference between State level and local level. 
But it has been subordinated in a way which we found very 
positive and very encouraging.
    Mr. Hamilton. You might say that in the WIPP case, Carlsbad 
volunteered. In other words, the initiative in that case, which 
we cite repeatedly as being a successful instance, came 
locally, initially.
    Senator Shaheen. I'm almost out of time, but I want to 
follow up, if I can, just on one issue that you had addressed, 
Congressman Hamilton, talking about the transportation 
concerns. Because that's something that we hear a great deal of 
concern about in New Hampshire, given our proximity the plants 
by a lot of small communities.
    You talked about the great record that the nuclear industry 
has had to date from moving waste. Can you quantify how much of 
it moves, in a way that helps us envision just what that means?
    Mr. Hamilton. No, I cannot quantify that for you, but I'm 
sure we can furnish it for you.
    Senator Shaheen. That'd be great. Thank you.
    Mr. Hamilton. I've had that experience. They were talking 
about moving nuclear waste across my district in Indiana. I'd 
go to a public meeting--instead of having 20 people there, 
there would be several hundred people there. I'm sure anybody 
that's had that experience knows it. They come to that meeting 
mad because they don't want it to go across their areas.
    So there's a lot of work that has to be done here on 
transportation--a lot of work.
    General Scowcroft. I think--I can say that the WIPP 
facility in New Mexico has received over 10,000 shipments, and 
the Western Governors' Association has really developed a very 
efficient and effective system to move it.
    As Lee has said, there have not been any serious accidents. 
But the thing is, if you organize the police and the local 
authorities, then if there is an accident they can be on it 
instantaneously. But if they don't know what to do, sure.
    That's why we focused on the transportation aspect of it.
    Senator Shaheen. Thank you.
    The Chairman. Senator Cantwell.
    Senator Cantwell. Thank you, Mr. Chairman. I apologize 
earlier for jumping in with Senator Risch and others on Senator 
Udall's time.
    I pointed out to the Senator that Rocky Flats is in a 
better cleanup position than Hanford is, and that's why I felt 
I needed to jump in on his time.
    I want to go back to that subject. Obviously Hanford played 
an incredible role for our country and we're very proud of 
that. We've been working very diligently on something that's 
very complex and very costly, and we're hopefully going to get 
to an endpoint here as vitrified glass logs start to be 
produced in the next 7 to 10 years. But they need a place to 
go.
    Senator Wyden suggested that the first waste to be looked 
at ought to be this military waste, and considering the 
complexity of the issue, the timeframe for discussing where 
that should go, in my mind should be now.
    So General Scowcroft or Mr. Hamilton, not to have you 
address what Senator Domenici brought up, but do you have 
particular thoughts about the urgency of dealing with the 
military waste at Hanford?
    General Scowcroft. One of the reasons that we turned to 
storage facilities was exactly this point. Because a lot of 
people have said, ``Well, why do you want storage facilities in 
addition to disposal sites?'' Because that just means more 
sites that you have to locate, more transportation, and so on.
    But it's exactly to take care of the waste, the government 
waste at Hanford and also especially the stranded waste at 
nuclear power plants that are shut down. Yet they have to have 
this full security system and so on to guard them.
    So, the storage facilities that we recommend can be built 
much more quickly than a disposal, and that's what we hope.
    Mr. Hamilton. I think if I'm correct, you would know most 
of the waste at Hanford is defense waste, is it not?
    Senator Cantwell. Yes.
    Mr. Hamilton. We visited Hanford. We have some 
understanding of what you have encountered there. Incidentally, 
the people were very gracious to us there and very constructive 
in their suggestions to us.
    Quite frankly, we did not make a recommendation with regard 
to defense waste. The question came to us kind of late in the 
process. We did not really have the resources available in the 
committee to comprehensively assess the implications of whether 
defense waste and civilian waste should be commingled, as I 
think it is today, or since the Reagan administration I 
believe.
    So we ended up, frankly just saying to the administration 
that they ought to launch an immediate review of the 
implications of defense waste. So we did not address us.
    Senator Cantwell. I'm well aware that you didn't. That's 
why I'm here this morning, because I do think it's a 
shortcoming of the process.
    Because the issue at hand is that Hanford is the site with 
the majority of the Nation's military waste. We've been in a 
diligent process to clean it up. It's not that every solution 
put on the table in the past has been sufficient. I mean, 
getting a commitment for how much was going to be put in Yucca 
Mountain was also a very challenging thing, and that site was 
only ever going to take a small percentage of Hanford's waste.
    So this is about getting an answer for Hanford and where 
this waste will ultimately go. We will now have waste in a 
shippable form in these vitrified logs within 7 to 10 years. So 
we can move forward.
    We can't allow Hanford to become the de facto storage 
place. We can't. So I appreciate that what you're saying here 
this morning is that you see a path where Hanford waste could 
be the first waste to be prioritized and you're actually asking 
the administration to do something about that.
    Mr. Hamilton. I think it's very important we give those 
folks some hope out there, that there is a solution underway. 
For a long time I think they've operated with the feeling that 
there really isn't any hope. De facto, they're going to be the 
repository and we don't want that. That's not the way to do it.
    Senator Cantwell. I hope we use the science available to us 
today and move forward to a solution to the Hanford waste 
problem.
    I'll never forget when we had the Western Electricity 
Crisis and we saw rates go skyrocketing and we had hearings. 
The toughest question we got was from a 10-year-old who said, 
``What did you learn in the 1970s, and what have you done to 
correct it?''
    I think that's the question for us today. What have we 
learned over the last 3 decades about how difficult this 
process is, and what are we going to do to correct it?
    So to me moving forward on doing something about the 
military waste is critical.
    So, thank you gentlemen.
    The Chairman. Senator Murkowski.
    Senator Murkowski. Thank you, Mr. Chairman.
    Just kind of dovetailing on Senator Cantwell's comments in 
response to what Senator Domenici proposed, that perhaps you 
move first with the defense waste.
    You have mentioned that we have ten stranded sites where 
we're incurring pretty considerable expense for the security in 
these areas. I don't know how much waste is actually at each of 
these.
    But it would seem to me that if you've got a situation 
where there's no activity going on other than the security, it 
may be possible to move first with those stranded sites, those 
orphan sites, to move them into a consolidated storage. You 
gain some of the confidence that we're talking about.
    You know, Senator Risch's frustration is clearly palpable 
here, but I think some of it goes to just the frustration that 
the American public has on this issue.
    As he said, ``If we can't figure out how we take care of 
our waste, how we take care of your garbage, how can we do 
anything as a government?''
    So by moving to deal with these stranded sites first--and I 
hesitate to call it a pilot project--but instead of trying to 
figure out the whole bigger picture, is this something that you 
considered as a Commission? Do you think this is a wise 
approach to get us started, kind of addressing what all of you 
had said, that there's an urgency to this. We've got to start 
sometime. I think you've indicated that the timeline, even 
moving to this consolidated storage was 5 to 10 years, I 
believe is what you said. That's still a long ways away.
    Is that an approach that you might recommend that we take, 
is to move first with the stranded sites?
    Mr. Hamilton. It is. We think the strongest argument is to 
move the stranded fuel first into a disposal--a storage 
facility.
    Senator Murkowski. Recognizing--I'm assuming that you've 
got these stranded sites all over the country. Do you move to 
one consolidated storage, or is it regional? How do you advance 
that? Because then again you're dealing with the transportation 
issue, which I think we recognize is considerable.
    Still, even though it is viewed as interim storage, you 
still have a lot of the ``not in my backyard'' type of an 
approach because of the concern that it may ultimately end up 
being the de facto permanent repository. So how do we calm 
those fears?
    General Scowcroft. That's why we think it's going to take 5 
to 10 years even for storage facilities. But again, we would 
use the same consent-based process to site the storage 
facilities.
    Now you don't have the same criteria that you need for 
disposal, but that's the way we would proceed. We do 
specifically establish--one of the main reasons for the whole 
storage facilities is to deal with the stranded fuel.
    In the process, though, we can learn. We can learn more 
about the transportation, we can learn more about how to go 
about these things as we proceed, and that will be helpful as 
we look at the disposal sites.
    Senator Murkowski. Can you give me any sense as to how many 
consolidated storage sites you might need, given the ten 
stranded sites that we have now?
    Mr. Hamilton. We said one or more, but the answer is we did 
not try to determine----
    Senator Murkowski. Several, I think is what you said.
    Mr. Hamilton. How many consolidated sites there should be. 
But the important thing that I think your question raises is 
the linkage between the storage and the disposal. You just 
cannot go down one track. You've got to do both of them. You've 
got to start on looking for storage, you've got to start 
looking at repository so you get away from this feeling that 
several senators have expressed about people having no hope 
that they'll ever get rid of this stuff.
    General Scowcroft. But I would point out again at WIPP, 
which is one place it has really worked, is the local 
authorities there have already leased some land in anticipation 
that they could be selected as the storage site, right next to 
their permanent disposal.
    So it sounds daunting, but we're not without hope that if 
it's pursued diligently and carefully, it will work.
    Senator Murkowski. I thank you. I think again, the more we 
look at this, the more we realize, as you've repeated, there 
are no easy answers here and this is why we're sitting here 
years later, decades later, and millions and billions of 
dollars later.
    I do share your sense of urgency though, that we must get 
moving on this. I appreciate the fact that the chairman, along 
with the chairman and the ranking member on the Appropriations 
Committee, are sitting down trying to figure out if we can 
develop an action plan. So I'd hope to work with you and others 
on this, extraordinarily important.
    I thank you, Mr. Chairman, for your leadership on it as 
well.
    The Chairman. Thank you.
    Let me just ask one other line of questions. This is on the 
liability issue. You say in your report the Federal Government 
is going to be liable--I think you say for an estimated $20.8 
billion in damages under the utility contracts even if we are 
able to start accepting waste by 2020, and that it will be 
liable for an additional $500 million each year--for each year 
of delay.
    What do you see happening to that liability if we set up 
this new entity that you're talking about, this new 
governmental corporation. Would we want to transfer reliability 
to that corporation?
    I think it's clear from court decisions that these waste 
contracts cannot get redress or damages out of the nuclear 
waste fund. Is there any thought about what we do to deal with 
this liability problem as part of your recommendations?
    General Scowcroft. I don't think we focused on that.
    Mr. Hamilton. I'm not sure I can answer your question, 
Senator, but what we know is that these liabilities are coming 
due every year now, and they are getting very, very sizable. 
They are paid out of the judgment fund in the Treasury 
Department, and they will explode in the years ahead.
    Now if nothing is done here, that liability just continues 
to grow. I think once you begin this process of putting into 
place a plan for the handling of these waste materials, both in 
storage and in disposal, what you will see then is a series of 
negotiations to resolve these liability questions and to bring 
them to an end.
    I don't suggest that'll be easily done or quickly done, but 
you will bring the process to an end in time if we put into 
place a process for dealing with nuclear waste.
    The Chairman. Would you expect this newly established 
corporation to have the job of accomplishing that negotiation 
as well, or do you think that would remain with the Department 
of Energy?
    Mr. Hamilton. Yes, I think that would be the center of it 
because they will have the responsibility to build and to 
manage the whole system, and this would be a big part of it a 
very big part.
    The Chairman. All right, General, did you want to comment?
    General Scowcroft. No. No, This is something I think we 
suggest that Congress is going to have to look at, in how to 
deal with the liabilities.
    The Chairman. All right. We very much appreciate the good 
work that's gone into your report and your Commission's hard 
work on this, and both of you very much being here to testify 
today.
    That will conclude our hearing.
    [Whereupon, at 11:23 a.m. the hearing was adjourned.]
                                APPENDIX

                   Responses to Additional Questions

                              ----------                              

       Responses of the Blue Ribbon Commission to Questions From 
                            Senator Bingaman
                   adequacy of the nuclear waste fee
    The Department of Energy says it has spent about $7.5 billion from 
the Nuclear Waste Fund in the past 29 years, most of which has been 
spent on Yucca Mountain.
    The program the Commission is proposing appears to be considerably 
more expensive than the Yucca Mountain-only program. The Commission is 
proposing, in addition to a geologic repository, one or more interim 
storage facilities, more generous incentive payments to host states and 
communities, more shipments to move spent fuel from reactors to interim 
storage and then to a repository, more financial assistance to states 
and tribes for transportation planning, and the cost of a new waste 
management organization.
    At the same time, the Commission says that it is confident that its 
recommendations can be implemented using the existing nuclear waste 
fee.
    Question 1. Does that mean that the one mil per kilowatt-hour fee 
is sufficient to pay for the proposed program or will the fee need to 
be increased to ensure full-cost recovery for the expanded program?
    Answer. The BRC makes no determination as to the adequacy of the 
current level of the nuclear waste fee. Depending on a number of 
factors affecting the needs of the program in the long term, the waste 
fee may need to be increased or even decreased if necessary to ensure 
full cost recovery as determined by the Secretary. The BRC notes that 
the existing nuclear waste fee generates approximately $750 million per 
year, and that any realistic program activity to implement the BRC's 
recommendations in the short term will not likely need additional 
funding.
    Question 2. The Secretary of Energy currently has authority to 
raise or lower the fee, but has never used it. Assuming that the fee 
might need to be adjusted someday, who should have the authority to 
adjust it? If responsibility for implementing the program is 
transferred to a new government corporation, should the corporation 
have that authority, or should it remain with the Secretary? What role, 
if any, should Congress have in approving a fee increase?
    Answer. Under current law, the Secretary of Energy is required to 
make adjustments to the fee, as necessary, to ensure recovery of the 
full costs of managing and disposing of commercial spent nuclear fuel. 
Giving authority to review and approve fee increases to an independent 
organization with suitable expertise and staff would enhance confidence 
that the increases are just and reasonable and are not simply the 
result of ineffective use of the program's resources. In 1984, DOE's 
Advisory Panel on Alternative Means of Financing and Managing 
Radioactive Waste Management Facilities (also known as the AMFM Panel) 
recommended that a ``Waste Fund Oversight Commission'' be established 
for the specific purpose of ensuring that NWF fees are being used cost-
effectively and to approve or disapprove proposed changes to the level 
of the fee. In its 2001 update of the AMFM study, DOE instead 
recommended that the Federal Energy Regulatory Commission (FERC) serve 
this purpose.
    Since the FERC already exists and deals with rate issues, the Blue 
Ribbon Commission recommends that it be used for this function. As it 
determines how to carry out this new responsibility, we encourage FERC 
to consider the development of a ``joint board'' with state 
commissioners as provided for under Section 209 of the Federal Power 
Act.
    The BRC believes that requiring congressional action for approving 
nuclear waste fee changes could frustrate the objective of timely 
adjustments to ensure that neither too little nor too much is being 
collected, and could add to the belief by many stakeholders that the 
process was being unduly influenced by political considerations. 
Although the Nuclear Waste Policy Act of 1982 provides for a one-house 
veto of any fee change, a subsequent court decision ruled that the one-
house veto provision is unconstitutional and that fee changes proposed 
by the Secretary will automatically go into effect unless Congress 
passes legislation to prevent it. In its 2010 Fee determination letter, 
the DOE stated: ``The Eleventh Circuit in Alabama Power struck the 
``unless' clause from the fee adjustment statutory provision as 
violative of the Supreme Court decision in INS v. Chadha, 462 U.S.919 
(1983). See Alabama Power Co. v U.S. Department of Energy, 307F. 3d 
1300 (2002). As a result, the statute that remains reads `the adjusted 
fee proposed by the Secretary shall be effective after a period of 90 
days of continuous session have elapsed following the receipt of such 
transmittal [to Congress],' while the clause `unless during such 90-day 
period either House of Congress adopts a resolution disapproving the 
Secretary's proposed adjustment. . .' was invalidated.''
    Question 3. Should the utilities be expected to pay more if the 
program is restructured?
    Answer. Yes, if lifetime costs of the program increase as a result 
of the restructuring. The Commission does not recommend a change to the 
full-cost-recovery principle that was established in the Nuclear Waste 
Policy Act and the contracts with utilities. Certainly it will cost 
something to implement a successful U.S. waste management program; 
however, trying to implement a flawed program that is not working could 
be even more costly
           authority to change the timing of fee collections
    The Nuclear Waste Policy Act expressly require nuclear utilities, 
through the waste contracts, to pay to the Secretary of Energy a fee of 
one mill per kilowatt-hour on all electricity generated by nuclear 
power and sold on or after April 7, 1983, and it expressly requires the 
Secretary to deposit those fees in the Nuclear Waste Fund in the 
Treasury.
    The Commission proposes that the Secretary allow the utilities to 
pay all or part of those fees to a ``third-party financial 
institution,'' and asserts that the Secretary has the authority to do 
so under existing law.
    Question 4. Where in the Nuclear Waste Policy Act or other law is 
the Secretary given authority to allow payment of fees to a third-party 
financial institution, rather than to the Secretary for immediate 
deposit into the Treasury?
    Answer. During the course of its investigation, the BRC asked 
outside legal counsel to examine this question. Their legal analysis of 
BRC recommendations for near-term actions has been submitted to the 
Committee.
    Page 9 of this analysis states, ``Section 302(a) of the Nuclear 
Waste Policy Act does not prescribe a specific method of collection of 
the nuclear waste fee. Rather, it gives the Secretary authority to 
establish procedures for the collection and the payment of the fees. 
This section gives the DOE broad discretion to select the method of 
collection and payment of the fee and a clear legal basis for 
prescribing a method that differs from the current methods, if DOE 
chooses to do so. There is nothing elsewhere in the NWPA that prohibits 
the Secretary from changing the current process of fee collection and 
payment, so long as contract-holders agree to the change. Moreover, 
there is long-standing administrative precedent under the Standard 
Contract for providing various options for structuring payment and 
collection of the fee.''
    The analysis also points out that the Secretary is required to 
deposit funds in the NWF only upon ``realization'' of those funds. 
``Realize'' is not defined in the NWPA, but the definition and 
interpretation under other laws (e.g. the Internal Revenue Code) 
support a conclusion that payment of nuclear waste fees into a third 
party trust account would not constitute a ``realization'' by the 
Secretary because the Secretary has not received or taken possession of 
the funds, and the funds in the trust account would be subject to a 
restriction precluding their disbursement except for specified 
purposes. For these reasons, fees deposited directly into an 
irrevocable trust account under the BRC's proposal would not be 
``realized'' by the federal government unless and until they are drawn 
down in accordance with the specific restrictions contained in the 
trust instrument.
    The analysis concludes, ``...we believe that there is a sound legal 
basis for concluding that the Secretary's broad statutory authority 
under the NWPA to prescribe procedures for the payment and collection 
of the nuclear waste fee permits him to postpone the time of collection 
of a portion of the fee. That authority, together with the Act's 
specific direction respecting timing of deposit of fees in the 
Treasury, permits the Secretary to require use of an irrevocable trust 
account to safeguard the government's interest in ultimately receiving 
the fees.''
    We also note that our proposal to delay collection of part of the 
fee is a modified version of an approach proposed by the Secretary of 
Energy in 1998 as part of a litigation settlement concept. 
Specifically, DOE proposed to offer to amend its contracts with 
utilities to allow utilities to retain the portion of the 1 mill/kwh 
fee that exceeded the annual appropriations level, to be paid (with 
interest) later. In proposing this approach, the Secretary of Energy 
stated that this ``can be accomplished promptly within [DOE's] current 
authority.'' We have attached a copy of the May 18, 1998 letter from 
Secretary of Energy Federico Pena to Alfred William Dahlberg, Chairman, 
President, and Chief Executive Officer of Southern Company, making this 
offer.
                               attachment
                         VanNess Feldman, Attorneys At Law,
                         1050 Thomas Jefferson, Street, NW,
                                                    Washington, DC.

TO: Blue Ribbon Commission on America's Nuclear Future
FROM: Van Ness Feldman, P.C.
DATE: July 29, 2011 (REVISED: October 11, 2011)
RE: Legal Analysis of Commission Recommendations for Near-Term Actions

    At the request of the staff to the Blue Ribbon Commission on 
America's Nuclear Future (``BRC''), we have reviewed whether certain 
recommendations in the BRC's July 29, 2011 Draft Report respecting 
near-term actions by the Department of Energy (``DOE'') or other 
officers or agencies in the Executive Branch can be implemented under 
existing law. These recommendations relate to:

          (1) Initial steps to site, license and construct consolidated 
        interim storage facilities for spent nuclear fuel (``spent 
        fuel'');
          (2) Changing the order in which DOE accepts spent fuel from 
        commercial nuclear reactor licenses (the ``queue'') under DOE's 
        Standard Contract;\1\ and
---------------------------------------------------------------------------
    \1\ Standard Contract for Disposal of Spent Nuclear Fuel and for 
High Level Radioactive Waste, 10 C.F.R. Sec.  961.11 (2011) (``Standard 
Contract'').
---------------------------------------------------------------------------
          (3) Changing the timing and method of payment of the nuclear 
        waste fee by licensees.

    We conclude in Sections I-III of this memorandum that these 
recommendations can be implemented under the existing provisions of the 
Nuclear Waste Policy Act of 1982 (``NWPA''). We also conclude that the 
BRC's recommendation respecting modifying the queue for spent fuel from 
decommissioned reactors is consistent with the provisions of the 
Standard Contract.\2\
---------------------------------------------------------------------------
    \2\ Most of the provisions of the NWPA and Standard Contract we 
discuss apply to high-level radioactive waste (``HLW'') as well as 
spent fuel. For simplicity of presentation, we discuss only spent fuel 
but our conclusions respecting spent fuel in general apply to HLW also.
---------------------------------------------------------------------------
    Section IV of this memorandum examines the list of near-term action 
recommendations provided in Chapter 12 of the Draft Report. The 
recommendations that are directed at DOE can be implemented using funds 
from the Nuclear Waste Fund (``NWF''), as long as the recommendation 
fits within the scope of Section 302(d) of the NWPA and the requisite 
appropriation is provided by Congress.
    Section V of this memorandum reviews the federal government's 
authority to accept spent fuel from foreign commercial reactors. This 
concept was raised in Chapter 11 of the Draft Report under the 
subsection on multilateral / multi-national fuel cycle options.
                    i. consolidated interim storage
A. Introduction
    The BRC staff has asked us to address the statutory authority of 
DOE to provide consolidated interim storage of commercial spent fuel. 
In this section of our memorandum, we address the extent of DOE's 
authority under the NWPA\3\ to investigate, site, develop, license, 
construct, fund, and operate one or more consolidated interim storage 
facilities, and whether the BRC's recommendations for near-term action 
respecting consolidated interim storage can be implemented under 
existing law.
---------------------------------------------------------------------------
    \3\ 42 U.S.C. Sec.  10101, et seq. (2006).
---------------------------------------------------------------------------
B. Recommendations of Draft Report
    The BRC makes the following recommendations respecting near-term 
actions to initiate work on consolidated interim storage:

   ``Work toward a consolidated storage facility can begin 
        immediately under the existing provisions of the Nuclear Waste 
        Policy Act, which authorize the federal government to site and 
        design a monitored retrievable storage (MRS) facility and 
        obtain construction authorization. Further legislative action 
        would not be required until prior to designation of a MRS 
        facility site (and potentially not until the construction 
        phase), at which time Congress would need to amend the NWPA to 
        allow DOE to go forward independent of the status of a 
        permanent repository.''\4\
---------------------------------------------------------------------------
    \4\ Draft Report, Sec. 5.2.2, pp. 41-42.
---------------------------------------------------------------------------
   ``[I]t is important to reiterate an earlier point: that 
        sufficient authority already exists under the NWPA to begin 
        laying the groundwork for consolidated storage without further 
        delay, assuming Congress makes appropriations available for 
        this purpose. Specific steps that DOE could take in the near 
        term include performing the systems analyses and design studies 
        needed to develop a conceptual design for a highly flexible, 
        initial federal interim spent fuel storage facility, assembling 
        information that would be helpful to the siting process for 
        such a facility, and working with nuclear utilities, the 
        nuclear industry, and other stakeholders to promote the 
        standardization of dry cask storage systems with an eye to 
        facilitating later transport and consolidation in centralized 
        storage and/or permanent disposal facilities.''\5\
---------------------------------------------------------------------------
    \5\ Draft Report, Sec. 5.3, p. 48.
---------------------------------------------------------------------------
C. Authorities Under Existing Law
    In 1982, Congress enacted the NWPA to address the issue of nuclear 
waste. The NWPA created the current structure for nuclear waste 
disposal in the United States by directing DOE to create a permanent 
repository for spent fuel and high-level waste (``HLW'') using funds 
derived from a 1 mil/kWh fee on civilian nuclear power generation, to 
be paid into the NWF. In addition to authorizing a permanent geologic 
repository at a site that was later identified as Yucca Mountain, the 
NWPA provided two main avenues for DOE to provide temporary interim 
storage for spent fuel.
    Subtitle B of Title I of the NWPA established a limited interim 
storage program. Section 135 authorized DOE to provide up to 1,900 
metric tons of interim storage of commercial spent fuel under certain 
restricted conditions.\6\ Section 136, however, limited DOE's authority 
to enter into contracts for such interim storage to the period between 
January 7, 1983, and January 1, 1990.\7\ Accordingly, this authority 
expired in 1990.
---------------------------------------------------------------------------
    \6\ NWPA Sec.  135, 42 U.S.C. Sec.  10155.
    \7\ NWPA Sec.  136, 42 U.S.C. Sec.  10156.
---------------------------------------------------------------------------
    Under Subtitle C of Title I of the NWPA, DOE has the authority to 
site, construct and operate a Monitored Retrievable Storage (``MRS'') 
facility.\8\ The MRS facility could serve as the kind of consolidated 
interim storage facility contemplated by the BRC. It would accommodate 
spent fuel and HLW from civilian activities, but, in contrast to a 
permanent repository, the MRS facility would be designed to allow for 
continuous monitoring, management and retrieval of the materials 
pending further processing or disposal.\9\ Authority to proceed with 
construction and expansion of the MRS facility is linked to progress on 
licensing and construction of a permanent repository.\10\
---------------------------------------------------------------------------
    \8\ Authority to site, construct and operate a MRS facility under 
Section 141 of the NWPA expired when, by June 1, 1985, the Secretary of 
Energy had not submitted a proposal to Congress. However, DOE still has 
authority to site an MRS facility under Sections 142-149 of the NWPA, 
42 U.S.C. Sec. Sec.  10162-69.
    \9\ NWPA Sec.  141(b)(1)(A)-(D), 42 U.S.C. Sec.  10161(b)(1)(A)-
(D).
    \10\ NWPA Sec.  148(d), 42 U.S.C. Sec.  10168(d).
---------------------------------------------------------------------------
    Pursuant to the 1987 amendments to the NWPA, following issuance of 
the Report of the MRS Review Commission described in the statute, DOE 
was authorized (but not required) to begin a site selection process for 
one MRS facility by conducting ``a survey and evaluation of potentially 
suitable sites. . .''\11\ As the BRC has noted, there are many 
activities that DOE could pursue in advance of site selection, 
including ``performing the systems analyses and design studies needed 
to develop a conceptual design for a highly flexible, initial federal 
interim spent fuel storage facility, assembling information that would 
be helpful to the siting process for such a facility, and working with 
nuclear utilities, the nuclear industry, and other stakeholders to 
promote the standardization of dry cask storage systems. . .''\12\
---------------------------------------------------------------------------
    \11\ NWPA Sec.  144, 42 U.S.C. Sec.  10164. The MRS Review 
Commission Report was issued on November 1, 1989.
    \12\ Draft Report, Sec. 5.3, p. 48.
---------------------------------------------------------------------------
    However, there may be questions as to whether DOE can formally 
designate an MRS site without further legislation.\13\ Under Subtitle 
C, DOE is barred from selecting a site for an MRS facility until the 
Secretary of Energy (``Secretary'') has made a recommendation to the 
President for a site for a permanent geologic repository.\14\ Secretary 
Abraham recommended Yucca Mountain as the site to President Bush in 
2002, and President Bush approved. However, in 2010, Secretary Chu 
announced the termination of the Yucca Mountain Project, and sought 
leave from the NRC to withdraw the Yucca Mountain Project license 
application. While DOE has been careful to insist its decision to stop 
work on the Yucca Mountain Project is not based on a finding that the 
site is not suitable, DOE's termination of the Yucca Mountain Project 
raises the question of whether the Secretary's 2002 recommendation that 
the President approved the Yucca Mountain site for development as a 
repository is still in effect. That question is likely to be litigated 
by opponents of whatever MRS site may be selected.
---------------------------------------------------------------------------
    \13\ Draft Report, Sec. 5.2.2, p. 43-44.
    \14\ NWPA Sec.  145(b), 42 U.S.C. Sec.  10165(b).
---------------------------------------------------------------------------
    If DOE asserts, and the courts agree, that the 2002 DOE 
recommendation is still in effect, the Secretary could recommend to the 
President a site for one MRS facility. State and affected Tribes' role 
in the siting and development the MRS facility is similar to that for 
siting and development of a permanent geologic repository.\15\ Under 
Sections 143-149 of the NWPA, DOE is required to provide notice of at 
least six months to the Governor and legislature of a State in which an 
MRS facility is planned, or to the governing body of an affected Tribe 
where an MRS facility is planned and promptly notifying the appropriate 
State or Tribe when the site has been selected. The State or affected 
Tribe may submit a notice of disapproval to Congress regarding site 
selection, which Congress may override by Joint Resolution, as provided 
in Section 115(c) of the NWPA. In addition, the State or Tribe may 
enter into a benefits agreement with DOE pursuant to Section 170 of the 
NWPA.\16\ If an MRS facility is selected by the President and the 
selection becomes effective, DOE is directed to apply to the Nuclear 
Regulatory Commission (``NRC'') for an MRS license.\17\ However, any 
license issued by the NRC for a centralized interim storage facility 
under the MRS provisions must specify that construction of the facility 
cannot begin until after the NRC has issued a license for construction 
of a geologic repository.\18\
---------------------------------------------------------------------------
    \15\ NWPA Sec.  142, 42 U.S.C. Sec.  10162.
    \16\ NWPA Sec. Sec.  145-47, 42 U.S.C. Sec. Sec.  10165-67.
    \17\ NWPA Sec.  148(c), 42 U.S.C. Sec.  10168(c).
    \18\ The NWPA also limits the MRS facility in several other ways, 
some of which might warrant amendment prior to the construction phase. 
These include limits on number (only one MRS facility), location 
(specifically not allowed to be located in Nevada), size (maximum 
capacity of 15,000 MTHM), and site selection process (prescribed by the 
NWPA) for the MRS facility. See Sections 142-48 of the NWPA, 42 U.S.C. 
Sec. Sec.  10162-68.
---------------------------------------------------------------------------
    Thus, DOE has clear legislative authority under existing law to 
take initial steps in selecting a site for an MRS. Depending on the 
outcome of the current dispute over termination of the Yucca Mountain 
Project and judicial interpretation of the effect of the Secretary's 
termination action, DOE could also be authorized to proceed to site 
selection and to take a number of further steps short of commencement 
of construction. Commencement of construction clearly requires further 
authorization.\19\
---------------------------------------------------------------------------
    \19\ Although the Commission does not refer to DOE's authority 
under the Atomic Energy Act (``AEA''), Sections 53 and 55 of the AEA 
arguably provide authority for DOE to develop a consolidated interim 
storage facility, independent of the provisions of the NWPA. See Van 
Ness Feldman Memorandum to the BRC, ``Authority for Interim and 
Monitored Retrievable Storage of Spent Nuclear Fuel'' (Nov. 11, 2010). 
However, as explained in that memorandum, DOE has taken the position 
that the NWPA cabins DOE's authority under the AEA to undertake storage 
of commercial used fuel. See, e.g., DOE, Report to Congress on the 
Demonstration of the Interim Storage of Spent Nuclear Fuel, DOE/RW-
0596, at 6-7 (Dec. 2008).
---------------------------------------------------------------------------
    Finally, it is important to note that while the NWF is available to 
fund specific MRS activities,\20\ use of the NWF for this or other 
purposes is subject to appropriations.
---------------------------------------------------------------------------
    \20\ NWPA Sec.  302(d), 42 U.S.C. Sec.  10222(d).
---------------------------------------------------------------------------
              ii. modification of standard contract queue
A. Introduction
    This section addresses issues relating to the acceptance priority 
ranking (known as the ``queue'') established by the Standard Contract 
between DOE and commercial nuclear reactor operators--in particular, 
whether DOE may deviate from the general principal under the Standard 
Contract that DOE accept the oldest fuel first (``OFF'') so as to give 
priority to: (1) spent fuel located at decommissioned reactors, and (2) 
spent fuel that has certain thermal characteristics.
B. Priority for Spent Fuel at Decommissioned Reactor Sites
          1. Recommendations of Draft Report

    The BRC makes the following recommendations respecting to giving 
priority to acceptance of spent fuel at decommissioned nuclear 
reactors:

   ``[T]he Commission recommends that spent fuel currently 
        being stored at shutdown reactor sites be `first in line' for 
        transfer to a consolidated interim storage facility.''\21\
---------------------------------------------------------------------------
    \21\ Draft Report, Sec. 5.2.1, p. 47 (emphasis in original).
---------------------------------------------------------------------------
   ``The magnitude of the cost savings that could be achieved 
        by giving priority to shutdown sites appears to be large enough 
        (i.e., in the billions of dollars) to warrant DOE exercising 
        its right under the Standard Contract to move this fuel first. 
        Although this action would disrupt the queue specified in the 
        Standard Contract, as utilities continue to merge and a growing 
        number of reactors reach the end of their operating licenses, 
        every utility (or nearly every utility) will have one or more 
        shutdown plants. In that context, giving priority to moving 
        fuel from decommissioned sites is likely to be seen by all 
        parties involved as being in everyone's best interest.''\22\
---------------------------------------------------------------------------
    \22\ Draft Report, Sec. 5.4, p. 47; see also Draft Report, Sec. 
5.4, p. 46-48.

---------------------------------------------------------------------------
          2. DOE Authority Under Standard Contract

    The BRC recommends in Section 5.2.1 of the Draft Report that spent 
fuel located at decommissioned reactor sites receive first priority for 
disposal. A more detailed discussion in Section 5.4 makes similar 
statements regarding a change in priority for acceptance of fuel under 
the queue and notes that such a change is allowed by the Standard 
Contract. These statements are clearly consistent with the provisions 
of the Standard Contract. The Standard Contract requires DOE to 
determine the acceptance priority based on the OFF principle. However, 
Art. VI.B.1(b) of the Standard Contract provides an exception from the 
OFF priority for ``[spent fuel] and/or HLW removed from a civilian 
nuclear power reactor that has reached the end of its useful life or 
has been shut down permanently for whatever reason.''
    The BRC's recommendation to give priority to fuel from 
decommissioned reactors is consistent with the provisions of the 
Standard Contract that incorporate the OFF principle while allowing DOE 
to deviate from the OFF acceptance priority in cases of emergencies or 
decommissioned reactors.\23\
---------------------------------------------------------------------------
    \23\ Standard Contract, Arts. V.D, VI.B.1.
---------------------------------------------------------------------------
C. Priority Acceptance Based on Thermal Characteristics
          1. Recommendations of Draft Report The BRC makes the 
        following recommendations respecting modification of acceptance 
        priorities to take into account thermal characteristics of the 
        spent fuel:

   ``Consolidated storage also offers opportunities to simplify 
        repository operations. For example, by accumulating a 
        substantial inventory of spent fuel in one place, the storage 
        facility could take over some of the thermal management 
        activities that might be required for efficient repository 
        operation (e.g. blending hot and cool fuel assemblies to create 
        a uniform thermal load for waste packages). A consolidated 
        storage facility could even offer the option of packaging the 
        waste for disposal before it is shipped to the repository, 
        further simplifying operations at the repository site.''\24\
---------------------------------------------------------------------------
    \24\ Draft Report, Sec. 5.2.4, p. 43.
---------------------------------------------------------------------------
   ``[A] consolidated storage facility could provide flexible, 
        safe, and cost-effective waste handling services (i.e., 
        repackaging or sorting of fuel for final disposal) and could 
        facilitate the standardization of cask systems.''\25\
---------------------------------------------------------------------------
    \25\ Draft Report, Sec. 5.2.6, p. 44.
---------------------------------------------------------------------------
   ``The Commission recognizes that existing contracts have 
        created a `queue' in terms of federal commitments to accept 
        spent fuel from specific utilities. Unfortunately, the existing 
        queue was not set up to maximize efficiencies or to minimize 
        the risks of fuel handling and transportation. Hence, we 
        believe it would be appropriate for DOE to re-visit the current 
        schedule as it is already authorized to do under certain 
        circumstances, recognizing that any changes to the current 
        queue may require the Department and utility contract holders 
        to re-negotiate some existing commitments. There may also be 
        circumstances where expedited removal of fuel from an operating 
        reactor is warranted. The Commission believes a more flexible 
        approach would benefit all parties involved.
    Under DOE's Standard Contract with utilities, priority for the 
acceptance of spent fuel is allocated to utilities according to the 
`oldest fuel first' or `OFF' principle. This does not mean that 
utilities would necessarily choose to ship their oldest fuel first 
since they would have a contractual right to decide each year (subject 
to DOE's approval) which fuel to ship from which reactor (with the 
overall amount being determined by the OFF allocation).''\26\
---------------------------------------------------------------------------
    \26\ Draft Report, Sec. 5.4, pp. 46-47.

   ``[T] he current approach may limit the ability to use at-
        reactor storage as part of an integrated thermal management 
        strategy. . . . The ability to select which spent fuel is 
        delivered for disposal at a permanent repository each year may 
        avoid the need for additional storage to hold fuel that is too 
        hot for immediate emplacement. However, since utilities can 
        choose which fuel to deliver, they may prefer to send the 
        hottest eligible fuel in their pools, assuming that the plants 
        are still operating when waste acceptance begins. This may 
        require more complex thermal management activities at the 
        consolidated storage or disposal facility.''\27\
---------------------------------------------------------------------------
    \27\ Id. at p. 50.
---------------------------------------------------------------------------
   ``As part of this effort the new organization should seek to 
        renegotiate contracts as necessary to implement cost-saving and 
        risk-reducing measures, while also recognizing the contractual 
        rights of current waste owners as originally established under 
        existing statutes, and as subsequently interpreted by the 
        courts.''\28\
---------------------------------------------------------------------------
    \28\ Id. at p. 51.

---------------------------------------------------------------------------
          2. DOE Authority Under Standard Contract

    In Sections 5.2 and 5.4, the Draft Report discusses changing the 
acceptance priority for the queue to prioritize spent fuel based on its 
thermal characteristics. The discussion in Section 5.2 addresses the 
issue as a potential option for simplifying and streamlining the waste 
handling process, but does not address whether such a proposal is 
consistent with the Standard Contract. Section 5.4, however, recognizes 
``that any changes to the current queue may require the Department and 
utility contract holders to re-negotiate some existing commitments.'' 
With this qualification, the Draft Report's ensuing discussion 
regarding a possible change to the queue properly characterizes the 
legal requirements imposed on DOE by the Standard Contract.
 iii. modification of timing and method of payment of nuclear waste fee
A. Introduction
    This section addresses the question of whether DOE has authority to 
alter the current payment and collection process used to fund the 
Nuclear Waste Fund. We conclude that through administrative action and 
amendment to the Standard Contracts, the Secretary has the authority to 
alter the current collection process of the NWF.
B. Recommendations of Draft Report
   ``In the near term, the Administration should offer to amend 
        DOE's standard contract with nuclear utilities so that 
        utilities remit only the portion of the annual fee that is 
        appropriated for waste management each year and place the rest 
        in a trust account, held by a qualified third-party 
        institution, to be available when needed.''\29\
---------------------------------------------------------------------------
    \29\ Draft Report, Exec. Summ., Sec. 3, p. ix.
---------------------------------------------------------------------------
   ``The modified approach proposed here would require each 
        utility to place the unused fee receipts in an irrevocable 
        trust account at an approved, third-party financial 
        institution, allowing the money to be withdrawn only for the 
        purpose for which the trust account was created.''\30\
---------------------------------------------------------------------------
    \30\ Draft Report, Section 8.3.1, p. 90.
---------------------------------------------------------------------------
C. Applicable Statutory and Regulatory Text
    Section 302(a)(1) of the NWPA authorizes the Secretary to enter 
into contracts for disposal of spent fuel and provides that such 
contracts ``shall provide payment to the Secretary of fees pursuant to 
paragraphs (2) and (3) sufficient to offset expenditures described in 
subsection (d).'' Paragraph (2) provides that for civilian nuclear 
power sold after April 7, 1983, the licensee shall pay a fee equal to 
1.0 mil per kw/h. The Secretary has the authority to adjust this, 
pursuant to paragraph (4). Paragraph (3) addresses spent fuel derived 
from nuclear power sold on or before April 7, 1983. Paragraph (3) sets 
a fee of 1 mil per kw/h and provides that ``[s]uch fee shall be paid to 
the Treasury of the United States and shall be deposited in a separate 
fund . . .'' Section 302(a)(4) provides that the Secretary ``shall 
establish procedures for the collection and payment of the fees 
established by paragraph (2) and paragraph (3).'' Section 302(c)(1) 
provides that the Nuclear Waste Fund shall consist of ``all receipts, 
proceeds, and recoveries realized by the Secretary . . . which shall be 
deposited in the Waste Fund immediately upon their realization.''
    Based on Section 302(a)(4)'s direction to establish procedures for 
the collection and payment of fees, DOE issued regulations on fees and 
terms of payment in 10 C.F.R. Sec.  961.11 (Article VIII of the 
Standard Contract). Pursuant to Article VIII, DOE required that for 
nuclear electricity sold after April 7, 1983, the utility pay the fee 
on a quarterly basis. For spent fuel discharged prior to April 7, 1983, 
DOE provided three payment options. Under Option 1, the fee payments 
were prorated evenly over 40 quarters. Licensees were allowed to 
accelerate the fee payments, which included interest on the outstanding 
fee balance, by making full or partial lump sum payments. Option 2 
enabled licensees to make a single payment consisting of the fee and 
interest on the outstanding balance at anytime prior to the date of 
first delivery to DOE of the spent fuel. Option 3 provided for a single 
payment that consisted of all outstanding fees without interest. The 
payment was required to be made prior to June 30, 1985, or two years 
after the execution of the contract, whichever was later.
D. Analysis
    Section 302(a) does not prescribe a specific method of collection 
of the nuclear waste fee. Rather, it gives the Secretary authority ``to 
establish procedures for the collection and the payment of the 
fees.''\31\ This section gives the DOE broad discretion to select the 
method of collection and payment of the fee and a clear legal basis for 
prescribing a method that differs from the current methods, if DOE 
chooses to do so. There is nothing elsewhere in the NWPA that prohibits 
the Secretary from changing the current process of fee collection and 
payment, so long as contract-holders agree to the change. Moreover, 
there is long-standing administrative precedent under the Standard 
Contract for providing various options for structuring payment and 
collection of the fee.
---------------------------------------------------------------------------
    \31\ NWPA, Sec.  302(a)(4).
---------------------------------------------------------------------------
    As noted above, in its original Standard Contract regulations 
(adopted in 1983, a year after enactment of the NWPA), the DOE offered 
utilities three options for payment regarding pre-1983 spent fuel, 
including an option that permitted licensees to delay payment of the 
fee until delivery of the spent fuel to DOE. It is clear that the 
current quarterly payment requirement thus has never been regarded as 
the only method for payment of the nuclear waste fee.\32\
---------------------------------------------------------------------------
    \32\ In addition to the precedent for alternative payment terms for 
fees associated with Section 302(a)(3), it can be argued that the 
language in Section 302(a)(2) is even more flexible than Section 
302(a)(3). Unlike paragraph (3), paragraph (2) does not provide that 
the fee ``shall be paid to the Treasury . . . '' 31 C.F.R. Sec.  380 
(2011), 31 U.S.C. Sec.  3302(c)(1) (2006).
---------------------------------------------------------------------------
    Thus, the broad statutory authority to set procedures for the 
collection and payment of fees and administrative precedent both 
support the argument that the Secretary could, through administrative 
action, amend the current regulations to change the timing of payments. 
However, any changes to future payments that modify the Standard 
Contract would be subject to the Standard Contract regulations codified 
at 10 C.F.R. Part 961. Art. XV of the Standard Contract provides that:

          [T]he parties will negotiate and, to the extent mutually 
        agreed, amend this contract as the parties may deem to be 
        necessary or proper to reflect their respective interests; 
        provided, however, that any such amendment shall be consistent 
        with the DOE final rule published in the FEDERAL REGISTER on 
        April 18, 1983 entitled, ``Standard Contract for Disposal or 
        SNF and/or HLW'', as the same may be amended from time to 
        time.''

    The legal effect of this provision is not entirely clear. It would 
appear that the changes to implement the proposed modifications are not 
consistent with the fee payment provisions of the final rule. However, 
the Standard Contract rule permits ``deviations'' from the Standard 
Contract, and through this procedure it may be possible to amend the 
Standard Contract without amending the rule.\33\ In any case, the 
changes to individual standard contracts would be subject to 
negotiation and mutual agreement with the affected nuclear utilities.
---------------------------------------------------------------------------
    \33\ 10 C.F.R. Sec.  961.4 (2011).
---------------------------------------------------------------------------
    Assuming the Secretary has authority under the NWPA to delay the 
date of payment of some portion of the nuclear waste fee, a further 
question arises as to whether DOE has the authority to direct the 
nuclear waste fee (or some portion thereof) to an irrevocable trust 
account to ensure the monies are actually paid into the Treasury when 
needed. Under the provisions of Section 3302 of Title 31, United States 
Code (the ``Miscellaneous Receipts Act'' or ``MRA''), public funds 
received by an official or agent of the U.S. Government must be 
deposited in the Treasury as soon as practicable, except as provided by 
another law. We are of the view that if the Secretary has authority to 
delay receipt of the nuclear waste fee, as was done for the pre-April 
1983 fuel, the Secretary also has authority to require safeguards, such 
as a trust account, to ensure the delayed payments are in fact 
collected and eventually paid into the Fund. Specifically, the 
Secretary's broad authority to specify the method of payment and 
collection of the nuclear waste fee constitutes authority ``provided by 
another law,''\34\ making the MRA restrictions inapplicable in this 
case.
---------------------------------------------------------------------------
    \34\ 42 U.S.C. Sec.  3302 (a).
---------------------------------------------------------------------------
    Moreover, the NWPA provides specific direction respecting deposit 
of nuclear waste fees in the NWF. The Secretary is required to deposit 
funds in the NWF only upon realization of those funds. ``Realize'' is 
not defined in the NWPA, and the definition under other laws varies. In 
the securities law context, ``realization'' has been held to mean ``to 
convert an intangible right or property into real (tangible) property: 
hence to convert any kind of property into money. . .''\35\ The 
Internal Revenue Code (``Code'') defines ``realized'' as the ``money 
received plus the fair market value of property (other than money) 
received.''\36\ The Code's constructive receipt rules amplify this 
concept to include income credited to, set apart for, or otherwise made 
available to the taxpayer, unless the taxpayer's control is ``subject 
to substantial limitations or restrictions.''\37\ Black's Law 
Dictionary defines ``realize'' as ``conversion of non-cash assets into 
cash assets.''\38\ Under any of these concepts, payment of nuclear 
waste fees into a third party trust account would not appear to 
constitute a ``realization'' by the Secretary. The Secretary has not 
received or taken possession of the funds, and the funds in the trust 
account are subject to a restriction that precludes their disbursement 
except for specified purposes. For these reasons, fees deposited 
directly into an irrevocable trust account under this proposal are not 
``realized'' by the federal government unless and until they are drawn 
down in accordance with the trust instrument.
---------------------------------------------------------------------------
    \35\ Heli-Coil Corp. v. Webster, 352 F.2d 156, 167 n.14 (3d Cir. 
1965) (citing McAvoy v. Schramme, 264 N.Y.S. 181 238 App. Div. 225 
(1933)).
    \36\ Internal Revenue Code of 1986, Sec.  1001(b), 42 U.S.C. Sec.  
1001(b).
    \37\ 26 C.F.R. Sec.  1.451.2(a) (2010).
    \38\ BLACK'S LAW DICTIONARY 1379 (9th ed. 2009).
---------------------------------------------------------------------------
    Accordingly, we believe that there is a sound legal basis for 
concluding that the Secretary's broad statutory authority under the 
NWPA to prescribe procedures for the payment and collection of the 
nuclear waste fee permits him to postpone the time of collection of a 
portion of the fee. That authority, together with the Act's specific 
direction respecting timing of deposit of fees in the Treasury, permits 
the Secretary to require use of an irrevocable trust account to 
safeguard the government's interest in ultimately receiving the 
fees.\39\
---------------------------------------------------------------------------
    \39\ We would recommend that the Standard Contract amendments make 
clear that monies in the trust accounts are the property of the trustee 
until paid to or required to be paid to the NWF, and that the trustee 
acts as fiduciary, not as agent of the United States. The Standard 
Contract should also have to carefully set forth the terms and 
conditions of this trust account as well as the qualifications of the 
institutions holding the account.
---------------------------------------------------------------------------
                    iv. use of the nucear waste fund
A. Introduction
    Chapter 12 of the Draft Report recommends various near-term actions 
DOE could undertake to help fulfill its nuclear waste management 
responsibilities. Those recommendations that fit within the specified 
list of ``Use of the Waste Fund'' provided in Section 302(d) of the 
NWPA arguably can be implemented with the use of the NWF (subject to 
Congressional appropriations). In 2002, the Eleventh Circuit confirmed 
that DOE may make expenditures from the NWF only for disposal 
activities. The Court held:

          First, the statute provides that the Secretary ``may make 
        expenditures from the Waste Fund . . . only for purposes of 
        radioactive waste disposal activities under subchapters I and 
        II of this chapter.'' 42 U.S.C. Sec.  10222(d). . . . The Act 
        makes a list of things that might be considered acts of 
        ``disposal.'' [footnote omitted] Although the list is not 
        exhaustive, it is instructive of the kinds of activities that 
        might be characterized as ``disposal.'' The items in the list 
        all have one thing in common: they entail some sort of 
        advancement or step toward permanent disposal, or else an 
        incidental cost of maintaining a repository. None of them 
        encompass the maintenance of the status quo.\40\
---------------------------------------------------------------------------
    \40\ Ala. Power Co. v. U.S. Dep't of Energy, 307 F.3d 1300, 1313-14 
(11th Cir. 2002).
---------------------------------------------------------------------------
    Section 302(d) of the NWPA provides:

          (d) USE OF WASTE FUND.--The Secretary may make expenditures 
        from the Waste Fund, subject to subsection (e), only for 
        purposes of radioactive waste disposal activities under titles 
        I and II, including----

                  (1) the identification, development, licensing, 
                construction, operation, decommissioning, and post-
                decommissioning maintenance and monitoring of any 
                repository, monitored, retrievable storage facility or 
                test and evaluation facility constructed under this 
                Act;
                  (2) the conducting of nongeneric research, 
                development, and demonstration activities under this 
                Act;
                  (3) the administrative cost of the radioactive waste 
                disposal program;
                  (4) any costs that may be incurred by the Secretary 
                in connection with the transportation, treating, or 
                packaging of spent nuclear fuel or high-level 
                radioactive waste to be disposed of in a repository, to 
                be stored in a monitored, retrievable storage site or 
                to be used in a test and evaluation facility;
                  (5) the costs associated with acquisition, design, 
                modification, replacement, operation, and construction 
                of facilities at a repository site, a monitored, 
                retrievable storage site or a test and evaluation 
                facility site and necessary or incident to such 
                repository, monitored, retrievable storage facility or 
                test and evaluation facility; and
                  (6) the provision of assistance to States, units of 
                general local government, and Indian tribes under 
                sections 116, 118, and 219.

          No amount may be expended by the Secretary under this 
        subtitle for the construction or expansion of any facility 
        unless such construction or expansion is expressly authorized 
        by this or subsequent legislation. The Secretary hereby is 
        authorized to construct one repository and one test and 
        evaluation facility.\41\
---------------------------------------------------------------------------
    \41\ NWPA Sec.  302(d), 42 U.S.C. Sec.  10222(d).

    It is important to note that the ``Secretary,'' meaning the 
Secretary of Energy, is the only person authorized to expend funds in 
the NWF under the NWPA. Further, all such expenditures of the NWF can 
be made only after Congress has appropriated the funds in the NWF for 
such specific uses. Further, the NWPA provides that funds cannot be 
expended for the construction of facilities unless their construction 
is specifically authorized by Congress in the NWPA or elsewhere.
B. Analysis An examination of the Chapter 12 recommendations for near-
        term action by DOE, as well as Congress and other agencies, and 
        how those recommendations fit or do not fit within the scope of 
        Section 302(d) of the NWPA is provided in the following table:

------------------------------------------------------------------------
          Recommendation                     Availability of NWF
------------------------------------------------------------------------
Financing the Waste Program.--DOE   The NWF is available to DOE for
 should initiate a rulemaking to     these activities under Section
 revise the Standard Contract to     302(d)(3), as they could be
 offer a new fee payment option in   considered an administrative cost
 which payments to the Waste Fund    of the waste disposal program.
 each year would be based on
 actual appropriations from the
 Waste Fund, with the remainder of
 the one mil fee being placed in a
 third-party escrow account by the
 contract holder until needed. The
 rulemaking should also address
 other potential revisions
 discussed in this report, e.g. to
 allow reprioritization of spent
 fuel receipt to increase
 transportation efficiency and
 facilitate closure of shutdown
 reactor sites, and to incentivize
 actions by contract holders (e.g.
 use of standardized storage
 systems) that would reduce
 overall waste management system
 costs. When the rulemaking is
 complete, DOE should then offer
 to enter into negotiations with
 contract holders to revise
 current contracts to include the
 new provisions.
------------------------------------------------------------------------
Financing the Waste Program.--The   This recommendation is outside the
 Administration should work with     scope of Section 302(d).
 the appropriate Congressional
 committees and the Congressional
 Budget Office to reclassify
 receipts from the nuclear waste
 fee as discretionary offsetting
 collections and allow them to be
 used to offset appropriations for
 the waste program.
------------------------------------------------------------------------
 Financing the Waste Program.--The  The NWF is arguably not available to
 Administration, DOE, and DOJ        DOE for these activities because
 should work with nuclear            DOE's partial breach of its
 utilities and other stakeholders    Standard Contract is not the kind
 toward a fair and expeditious       of activity that advances disposal
 resolution of outstanding           of the radioactive waste disposal
 litigation and damage claims.       program within the scope of Section
                                     302(d).
                                    Courts have found that these
                                     judgments against DOE may not be
                                     paid out of the NWF but instead
                                     should be paid from the Treasury's
                                     Judgment Fund.\42\
------------------------------------------------------------------------
Establishment of a New              This recommendation is outside the
 Organization.--The appropriate      scope of Section 302(d).
 Congressional committees should
 begin hearings on establishment
 of an independent waste
 management organization as soon
 as practicable. The Commission
 recognizes that there are many
 details that need to be worked
 out in creating a new
 institution, and believes that
 the sooner the process of
 obtaining the views of interested
 parties and developing a detailed
 legislative proposal can begin,
 the better.
------------------------------------------------------------------------
Storage.--Using existing authority  The NWF is available to DOE for
 in the NWPA, DOE should begin       these activities under Sections
 laying the groundwork for           302(d)(1) and 302(d)(5).
 implementing consolidated storage
 and for improving the overall
 integration of storage as a
 planned part of the waste
 management system without further
 delay. Specific steps that DOE
 could take in the near term
 include:
         Performing the
       systems analyses and design
       studies needed to develop a
       conceptual design for a
       highly flexible, initial
       federal interim spent fuel
       storage facility.
         Preparing to
       respond to requests for
       information from
       communities, states, or
       tribes that might be
       interested in learning more
       about hosting a
       consolidated storage
       facility.
         Working with
       nuclear utilities, the
       nuclear industry, and other
       stakeholders to promote the
       better integration of
       storage into the waste
       management system,
       including standardization
       of dry cask storage
       systems. This effort should
       include development of the
       systems analyses needed to
       provide quantitative
       estimates of the system
       benefits of utility actions
       such as the use of
       standardized storage
       systems or agreements to
       deliver fuel outside the
       current OFF priority
       ranking. (These analyses
       would be needed to support
       the provision of incentives
       to utilities to undertake
       actions such as using
       standardized storage
       systems or renegotiating
       fuel acceptance contracts.)
------------------------------------------------------------------------
Storage.--The Administration        This recommendation is outside the
 should request, and Congress        scope of Section 302(d).
 should provide funding for, the
 National Academy of Sciences to
 conduct an independent
 investigation of the events at
 Fukushima and their implications
 for safety and security
 requirements at spent nuclear
 fuel and high-level waste storage
 sites in the United States.
------------------------------------------------------------------------
Transportation.--DOE should         The NWF is available to DOE for
 complete the development of         these activities under Section
 procedures and regulations for      302(d)(4).
 providing technical assistance
 and funds (pursuant to Section
 180 (c) of the NWPA) for training
 local and tribal officials in
 areas traversed by spent fuel
 shipments, in preparation for
 movement of spent fuel from
 shutdown reactor sites to
 consolidated storage.
------------------------------------------------------------------------
Transportation.--NRC should         The NWF is arguably limited to
 reassess its plans for the          expenditures of funds by the
 Package Performance without         Secretary of Energy, not the NRC.
 regard to the status of the Yucca
 Mountain project, and if it is
 found to have independent value,
 funding should be provided from
 the Nuclear Waste Fund so that
 the NRC can update these plans
 and proceed with those tests.
------------------------------------------------------------------------
Disposal.--DOE should keep a        The NWF is available to DOE for
 repository program moving forward   these activities under Sections
 through valuable, non-site          302(d)(1) and 302(d)(2).
 specific activities, including
 R&D on geological media, work to
 design improved engineered
 barriers, and work on the
 disposal requirements for
 advanced fuel cycles. The work of
 the Used Fuel Disposition
 Campaign of DOE's Office of Used
 Nuclear Fuel Disposition Research
 & Development in this area should
 be continued.
------------------------------------------------------------------------
Disposal.--DOE should develop an    The NWF is available to DOE for
 RD&D plan and roadmap for taking    these activities under Section
 the borehole disposal concept to    302(d)(2).
 the point of a licensed
 demonstration.
------------------------------------------------------------------------
Facility Siting.--To ensure that    The NWF is arguably available to DOE
 future siting efforts are           for these activities under Section
 informed by past experience, DOE    302(d)(3), as they could be
 should build a data base of the     considered an administrative cost
 experience that has been gained     of the program.
 and relevant documentation
 produced in efforts to site
 nuclear waste facilities, in the
 United States and abroad. This
 would include the storage
 facility and repository siting
 efforts under the NWPA by both
 DOE and the Nuclear Waste
 Negotiator.
------------------------------------------------------------------------
Regulatory Actions.--The            This recommendation is outside the
 Administration should identify an   scope of Section 302(d).
 agency to take the lead in
 defining an appropriate process
 (with opportunity for public
 input) for developing a generic
 safety standard for geologic
 disposal sites. The same lead
 agency should coordinate the
 implementation of this standard-
 setting process with the aim of
 developing draft regulations for
 mined repositories and deep
 borehole facilities.
------------------------------------------------------------------------
Regulatory Actions.--The NRC        This recommendation is outside the
 should continue efforts to review   scope of Section 302(d).
 and potentially revise the
 existing waste classification
 system.
------------------------------------------------------------------------
Nuclear Workforce Development.--    These recommendations are outside
 DOE, in cooperation with the U.S.   the scope of Section 302(d) because
 Department of Labor and the         they do not directly relate to
 Bureau of Labor Statistics,         DOE's administrative obligations
 should lead a public-private        under the waste disposal program.
 initiative to develop ongoing
 labor demand projections and
 forecast capacity for the nuclear
 workforce, including the
 workforce for science,
 technology, engineering and
 mathematics (STEM); crafts; and
 emergency response and HAZMAT.
 This capacity will help inform
 expanded federal, joint labor-
 management, and university-based
 support for critical high-skill,
 high-performance nuclear
 workforce development needs,
 including special attention to
 the expansion of the emergency
 response and HAZMAT-trained
 workforce.
------------------------------------------------------------------------
International.--DOE should          The NWF is arguably not available to
 identify any legislative changes    DOE for these activities because it
 needed to authorize and direct      is not clear that international
 the U.S. waste management program   safety, security, and non-
 to support countries that pursue    proliferation for all nuclear
 nuclear technologies in             infrastructure and materials are
 developing capacity for the safe    within the scope of DOE's
 management of the associated        administrative obligations under
 radioactive wastes and to           the waste disposal program.
 encourage broad adherence to
 strengthened international norms
 for safety, security, and non-
 proliferation for all nuclear
 infrastructure and materials.
------------------------------------------------------------------------
\42\ Ala. Power Co. v. U.S. Dep't of Energy, 307 F.3d 1300 (11th Cir.
  2002).

              v. imports from foreign commercial reactors
A. Introduction
    This section addresses the issue of the ability of the federal 
government to accept spent fuel from foreign commercial reactors. 
Specifically, the section focuses on the authority of DOE to import 
foreign commercial spent fuel, as limited by Section 131(f) of the AEA, 
a provision added to the AEA as part of the Nuclear Non-Proliferation 
Act of 1978 (``NNPA'').\43\
---------------------------------------------------------------------------
    \43\ Atomic Energy Act of 1954, Pub. L. 83-703, as amended, Sec.  
131(f), 42 U.S.C. Sec.  2160(f) (added by Section 303(a) of the Nuclear 
Non-Proliferation Act of 1978, Pub. L. No. 95-242, 92 Stat. 120 (22 
U.S.C.A. Sec.  3201) (1978)).
---------------------------------------------------------------------------
B. Recommendations of Draft Report
    In the Draft Report, the BRC recommends the following respecting 
the import of spent fuel from foreign commercial reactors:

   ``A similar capability to accept spent fuel from foreign 
        commercial reactors, in cases where the President would choose 
        to authorize such imports for reasons of U.S. national 
        security, would be desirable within a larger policy framework 
        that creates a clear path for the safe and permanent 
        disposition of U.S. spent fuel.''\44\
---------------------------------------------------------------------------
    \44\ Draft Report, Section 11.2.2, p. 131.
---------------------------------------------------------------------------
C. Applicable Statutory and Regulatory Text
    The AEA, first enacted in 1946 and significantly amended in 1954, 
was enacted for general purposes related to international cooperation 
and nuclear nonproliferation; encouragement of the development and 
utilization of atomic energy for peaceful purposes; support of research 
and development in nuclear power and medical uses; and management of 
the U.S. nuclear defense programs.\45\ To promote these purposes, the 
AEA regulates civilian ownership and use of ``special nuclear 
material.'' Special nuclear material is defined as ``plutonium, uranium 
enriched in the isotope 233 or in the isotope 235,'' but does not 
include source material.\46\ Commercial spent fuel is regulated under 
the AEA as a special nuclear material because of its uranium-233, 
uranium-235, or plutonium-239 content. The AEA authorizes DOE to 
acquire special nuclear material, which includes foreign and domestic 
spent fuel if DOE deems such action ``necessary to effectuate the 
provisions of [the AEA].''\47\ The NRC is authorized to issue a license 
to DOE to hold spent fuel from NRC-licensed reactors,\48\ but foreign 
fuel held by DOE does not appear to be subject to a licensing 
requirement.\49\
---------------------------------------------------------------------------
    \45\ AEA Sec.  3, 42 U.S.C. Sec.  2013. For additional statements 
of purpose within the statute, see, e.g., AEA Sec. Sec.  31(a), 81-82, 
122, 42 U.S.C. Sec. Sec.  2051(a), 2111-12, 2152.
    \46\ AEA Sec.  11(aa), 42 U.S.C. Sec.  2014(aa).
    \47\ AEA Sec.  55, 42 U.S.C. Sec.  2075.
    \48\ Energy Reorganization Act of 1974 Sec.  202, as amended, Pub. 
L. 93-438, 88 Stat. 1232 (42 U.S.C. Sec.  5801) (1974).
    \49\ Id.
---------------------------------------------------------------------------
    The AEA authorizes DOE to enter into cooperation agreements (known 
as ``Section 123 Agreements'') with other nations or groups of 
nations.\50\ These agreements can be for a variety purposes and can 
cover a range of materials.\51\ Section 131 of the AEA provides for 
``subsequent agreements'' with these nations or groups of nations that 
can provide for the import of the irradiated fuel into the United 
States.
---------------------------------------------------------------------------
    \50\ AEA Sec.  123, 42 U.S.C. Sec.  2153.
    \51\ See, e.g., AEA Sec. Sec.  53, 54a, 57, 64, 82, 91, 103, 104, 
or 144.
---------------------------------------------------------------------------
    Subsequent arrangements can be for a variety of purposes, including 
``arrangements for the storage or disposition of irradiated fuel 
elements'' or ``any other arrangement which the President finds to be 
important from the standpoint of preventing proliferation.''\52\ For 
subsequent arrangements involving the direct or indirect commitment of 
the United States for storage or other disposition, interim or 
permanent, of any foreign spent nuclear fuel in the United States, 
Section 131(f)(1) imposes three conditions, described below.
---------------------------------------------------------------------------
    \52\ AEA Sec.  131(a)(2)(e), 42 U.S.C. Sec.  2160(a)(2)(e) and (g).
---------------------------------------------------------------------------
    For purposes of Section 131(f), ``[f]oreign spent nuclear fuel'' is 
``any nuclear fuel irradiated in any nuclear power reactor located 
outside of the United States and operated by any foreign legal entity, 
government or nongovernment, regardless of the legal ownership or other 
control of the fuel or the reactor and regardless of the origin or 
licensing of the fuel or reactor, but not including fuel irradiated in 
a research reactor.''\53\
---------------------------------------------------------------------------
    \53\ AEA Sec.  131(f)(4), 42 U.S.C. Sec.  2160(f)(4).
---------------------------------------------------------------------------
    The first condition imposed by Section 131(f)(1)(A)(i) states that 
DOE may not enter into such an arrangement unless the commitment ``has 
been submitted to the Congress for a period of sixty days of continuous 
session and been referred to the Committee on Foreign Affairs of the 
House of representatives and the Committee on Foreign Relations of the 
Senate;'' or the plan is subject to the terms of an approved ``detailed 
generic plan for disposition or storage in the United States'' that has 
already been subject to Congressional review. The statutory text 
provides that the Congress may prevent the agreement from becoming 
effective if it passes during the sixty-day period a concurrent 
resolution ``stating in substance that it does not favor the commitment 
. . ..'' This disapproval authority is, however, ineffective under 
Consumers Union v. FTC, which held that provisions permitting the two 
Houses to disapprove Executive action by concurrent resolution violate 
the Presentment Clause of the Constitution.\54\ However, based on 
section 281 of the AEA, which addresses separability, and precedent in 
INS v. Chadha,\55\ it appears that the legislative veto provision could 
be successfully severed from the rest of Section 131(f)(1)(a).\56\ 
Accordingly, DOE can go forward with an arrangement to which Section 
131(f)(1) applies after the requisite 60-day notice to the relevant 
Committees.
---------------------------------------------------------------------------
    \54\ Consumers Union of U.S., Inc., et al v. FTC, et al, 691 F.2d 
575 (D.C. Cir. 1982) aff'd sub nom. Process Gas Consumers Group v. 
Consumer Energy Council, 463 U.S. 1216 (1983).
    \55\ 462 U.S. 919, 932 (1983).
    \56\ See Appendix A for further analysis regarding the severability 
of the Congressional concurrent resolution requirement.
---------------------------------------------------------------------------
    The second condition, provided in Section 131(f)(1)(B), requires 
the Secretary to comply with Section 131(a). This requirement mandates 
that the Secretary ``obtain the concurrence of the Secretary of State, 
and consult with the Nuclear Regulatory Commission, and the Secretary 
of Defense.''\57\
---------------------------------------------------------------------------
    \57\ AEA Sec.  131(f)(1)(B), 42 U.S.C. Sec.  2160(f)(1)(B).
---------------------------------------------------------------------------
    The third condition, provided in Section 131(f)(1)(C), requires the 
Secretary to comply with ``all other statutory requirements of th[e 
AEA], under sections 54 and 55 and any other applicable sections, and 
any other requirements of law.''\58\ Section 54 generally authorizes 
the Secretary to distribute special nuclear materials to foreign 
nations or groups of nations pursuant to the terms of a cooperation 
agreement and subject to certain restrictions related to compensation, 
and to license others to make similar distributions. Section 54 also 
provides that DOE may sign an agreement to repurchase any of the 
special nuclear material distributed under a sale arrangement under 
Section 54, or uranium remaining after irradiation of such special 
nuclear material, or nuclear material produced in a nuclear reactor 
located outside the United States through the use of special nuclear 
material which was leased or sold pursuant to Section 54.
---------------------------------------------------------------------------
    \58\ AEA Sec.  131(f)(1)(C), 42 U.S.C. Sec.  2160(f)(1)(C).
---------------------------------------------------------------------------
    Section 55 of the AEA provides that DOE is authorized ``to the 
extent it deems necessary to effectuate the provisions of [the AEA]'' 
to ``take, requisition, condemn or otherwise acquire any special 
nuclear material or interest therein.''\59\ This authority could 
arguably be read broadly in light of the stated purposes of the AEA, 
which include development and utilization of atomic energy for peaceful 
purposes to the maximum extent consistent with common defense and 
security and public health and safety. Sections 161 and 171 of the AEA 
authorize DOE to enter into contracts to acquire materials, to lease or 
purchase real property, and to pay just compensation for any property 
or interests taken by DOE. These three sections--Sections 55, 161, and 
171--could be read to provide authority for DOE to take title to or 
custody of commercial spent fuel.\60\
---------------------------------------------------------------------------
    \59\ AEA Sec.  55, 42 U.S.C. Sec.  2075. Section 55 further 
provides that any contract of purchase may be made without regard to 
general government contracting laws upon certification by the Secretary 
that such action is necessary for the common defense or otherwise not 
practical.
    \60\ AEA Sec. Sec.  161(e), (g), 171, 42 U.S.C. Sec. Sec.  2201(e), 
(g), 2221.
---------------------------------------------------------------------------
    The part of the third condition that requires the Secretary to 
comply with ``any other requirements of law'' would make any 
arrangement for the import of the spent fuel from foreign commercial 
reactors subject to statutory and regulatory requirements governing 
issues such as, but not limited to, the packaging and transportation of 
spent fuel, public health and safety, and the environmental impacts of 
the program. For example, any subsequent arrangement entered into by 
DOE would be required to comply with the National Environmental Policy 
Act.\61\ To the extent that a subsequent arrangement is inconsistent 
with other applicable laws, further legislation may be necessary to 
carry it out.\62\
---------------------------------------------------------------------------
    \61\ 42 U.S.C. Sec.  4321, et seq.
    \62\ Several other provisions of Federal law specifically relate to 
import and storage of commercial reactor spent fuel, but in our opinion 
they do not impose substantive limitations on DOE's authority under 
Section 131 of the AEA. The provisions are described in Appendix B.
---------------------------------------------------------------------------
    In emergency situations, Section 131(f)(2) provides an exemption 
from the conditions in Section 131(f)(1).\63\ This exemption applies 
where the President determines that a commitment under AEA Sections 54 
or 55 for storage or other disposition is required by ``an emergency 
situation,'' that such an action is in the national interest, and 
notifies certain Congressional committees of the determination and 
action.
---------------------------------------------------------------------------
    \63\ AEA Sec.  131(f)(2), 42 U.S.C. Sec.  2160(f)(2).
---------------------------------------------------------------------------
                            scenario example
                  In a scenario where the Secretary seeks to implement 
                a program to import spent fuel from foreign commercial 
                reactors under Section 131(a)(2)(E), the Secretary 
                would need to ensure that the program complies with the 
                three conditions imposed by Section 131(f)(1). As 
                discussed above, these conditions incorporate by 
                reference Sections 131(a), 54, and 55, as well as any 
                additional requirements of relevant sections of the AEA 
                or other law. Thus, before entering into a proposed 
                subsequent arrangement, the Secretary must: (i) obtain 
                the concurrence of the Secretary of State and consult 
                with the NRC and Secretary of Defense; (ii) publish in 
                the Federal Register at least 15 days before the 
                proposed arrangement is to go into effect a notice of 
                the proposed arrangement, together with a written 
                determination by the Secretary that the arrangement 
                ``will not be inimical to the common defense and 
                security;''\64\ and (iii) submit the proposed 
                arrangement to the Congress for a period of 60 days of 
                continuous session. The Secretary must also ensure 
                compliance with any other requirements of the AEA and 
                other law.
---------------------------------------------------------------------------
    \64\ AEA Sec.  131(a)(1), 42 U.S.C. Sec.  2160(a)(1).
---------------------------------------------------------------------------
                  During the consultation process required by (i) 
                above, if ``in the view'' of the Secretary, the 
                Secretary of State, the Secretary of Defense or the NRC 
                the proposed arrangement ``might significantly 
                contribute to proliferation,'' the Secretary of State 
                must prepare a Nuclear Proliferation Assessment 
                Statement (``NPAS'').\65\ The NPAS describes the 
                safeguards, mechanisms, and peaceful use assurances 
                that will ensure that the assistance provided pursuant 
                to the arrangement will not be used to further any 
                military or nuclear explosive purpose.\66\ When a NPAS 
                is required, the Secretary may not publish the notice 
                and determination (see (ii) above) in the Federal 
                Register until either the Secretary receives the NPAS 
                from the Secretary of State or the time authorized 
                under Section 131(c) for the Secretary of State's 
                preparation of the NPAS expires.\67\ Under Section 
                131(c), the Secretary of State has 60 days to prepare 
                the NPAS. However, that 60 day time period may be 
                extended if, upon request by the Secretary of State, 
                the President waives the time restriction and provides 
                notice and justification to certain Congressional 
                committees.
---------------------------------------------------------------------------
    \65\ AEA Sec.  131(a)(2), 42 U.S.C. Sec.  2160(a)(2).
    \66\ AEA Sec.  131(a)(1)-(2), 42 U.S.C. Sec.  2160(a)(1)-(2). 
Additional requirements related to the preparation of a NPAS are 
provided in Section 123(a).
    \67\ AEA Sec.  131(a)(1), 42 U.S.C. Sec.  2160(a)(1).
---------------------------------------------------------------------------
D. Analysis
    Based on the definition provided in Section 131(f)(4), any foreign 
spent fuel (other than from research reactors, which is specifically 
excluded) under consideration for disposal in the U.S. would require an 
arrangement with DOE that was reviewed by Congress and that met the 
other requirements of Section 131 of the AEA. These requirements apply 
to spent fuel irradiated abroad, regardless of who holds title to the 
spent fuel. If Congress takes no action during its review period, the 
arrangement becomes effective. However, the two-House disapproval 
procedure provided in the statute is ineffective and severable from the 
AEA, as explained above.
    To the extent the Draft Report's recommendation about the import of 
spent fuel from foreign commercial reactors anticipates an emergency 
situation where such imports were required for national security 
reasons, the exemption in Section 131(f)(2) would authorize the storage 
or other disposal of limited quantities of foreign spent fuel in 
emergency situations without Congressional review.\68\
---------------------------------------------------------------------------
    \68\ AEA Sec.  131(f)(2), 42 U.S.C. Sec.  2160(f)(2).
---------------------------------------------------------------------------
                             vi. conclusion
    Based on our analysis of the NWPA, AEA and other relevant statutory 
and regulatory authorities, we conclude that the BRC's near-term 
recommendations addressed in this Memorandum respecting consolidated 
interim storage, the Standard Contract queue, and program funding can 
be implemented under the existing provisions of the NWPA. We also 
conclude that the BRC's recommendation respecting modifying the queue 
for spent fuel from decommissioned reactors is consistent with the 
provisions of the Standard Contract.
    We conclude that the near-term action recommendations that are 
directed at DOE can be implemented with the use of funds from the NWF, 
as long as the recommendations fit within the scope of Section 302(d) 
of the NWPA and there is a requisite appropriation from Congress. Those 
near-term actions outside the scope of NWPA Section 302(d) would 
require legislative changes.
    We conclude that the DOE has authority under the AEA to accept 
spent fuel from foreign commercial reactors, as long as the procedures 
and criteria set forth in Section 131 of the AEA are met, including 
requirements to comply with other provisions of the AEA and other 
Federal statutes.
                               appendix a
  Severability of Legislative Veto Provision in the Atomic Energy Act
    Section 131(f)(1)(a) of the Atomic Energy Act,\69\ which may be 
employed to bring spent nuclear fuel into the United States, contains a 
legislative veto that is almost certainly unconstitutional according to 
current Supreme Court jurisprudence.\70\ The question presented is 
whether such legislative veto could be successfully severed from the 
rest of section 131(f)(1)(a), and thus whether the executive agency is 
able to employ the rest of the process outlined in section 131(f)(1)(a) 
to import spent nuclear fuel. If such a process were followed, the 
Secretary of Energy would provide notice to Congress, wait the 
requisite 60 days, and then begin to import the spent nuclear fuel, 
even though the House and Senate would be barred from stopping this 
process through a legislative veto.
---------------------------------------------------------------------------
    \69\ Atomic Energy Act of 1954, P.L. 83-703.
    \70\ See, e.g., INS v. Chadha, 462 U.S. 919 (1983) and Consumers 
Union v. FTC, 691 F.2d 575 (D.C. Cir. 1982), aff'd sub. nom. Process 
Gas Consumers Group v. Consumer Energy Council, 463 U.S. 1216 (1983).
---------------------------------------------------------------------------
    Several tenets of statutory construction affect severability. The 
first is the rule which holds that statutes should be construed to 
maintain their constitutionality whenever possible.\71\ Further, there 
is a presumption in favor of severability because the legislature is 
assumed not to have intended to pass an invalid act\72\ and a broader 
than necessarily invalidation of a statute due to unconstitutionality 
frustrates the intent of elected representatives.\73\ Thus, courts have 
an obligation to uphold parts of a statute that can be separated from 
the unconstitutional provisions,\74\ especially when Congressional 
intent to allow such severability is clear.
---------------------------------------------------------------------------
    \71\ See, e.g. El Paso & N.e. Ry. Co. v. Gutierrez, 215 U.S. 87 
(1909).
    \72\ See, e.g. Lidas, Inc. v. U.S., 238 F.3d 1076 (9th Cir. 2001).
    \73\ U.S. v. Ameline, 376 F.3d 967 (9th Cir. 2004).
    \74\ See, e.g. El Paso & N.e. Ry Co., 215 U.S. at 87.
---------------------------------------------------------------------------
    It appears that the unconstitutional legislative veto clause in the 
Atomic Energy Act could be successfully severed from the rest of the 
Act because the legislative intent to allow such severability is made 
explicit in the Act. Section 281 ``Separability,'' states: ``If any 
provision of this Act or the application of such provision to any 
person or circumstances, is held invalid, the remainder of this Act or 
the application of such provision to persons or circumstances other 
than those as to which it is held invalid, shall not be affected 
thereby.'' In INS v. Chadha,\75\ the Court upheld the severability of a 
legislative veto provision from the rest of the statute under similar 
circumstances. There the Court states:
---------------------------------------------------------------------------
    \75\ Chadha, 462 U.S. at 931-32.

          Only recently this Court reaffirmed that the invalid portions 
        of a statute are to be severed ```[unless] it is evident that 
        the Legislature would not have enacted those provisions which 
        are within its power, independently of that which is not.''' 
        Buckley v. Valeo, 424 U.S. 1, 108 (1976), quoting Champlin 
        Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210, 
        234 (1932). Here, however, we need not embark on that elusive 
        inquiry since Congress itself has provided the answer to the 
        question of severability in Sec.  406 of the Immigration and 
        Nationality Act, note following 8 U. S. C. Sec.  1101, which 
        provides: ``If any particular provision of this Act, or the 
        application thereof to any person or circumstance, is held 
        invalid, the remainder of the Act and the application of such 
        provision to other persons or circumstances shall not be 
        affected thereby.'' (Emphasis added.)
          This language is unambiguous and gives rise to a presumption 
        that Congress did not intend the validity of the Act as a 
        whole, or of any part of the Act, to depend upon whether the 
        veto clause of Sec.  244(c)(2) was invalid. The one-House veto 
        provision in Sec.  244(c)(2) is clearly a ``particular 
        provision'' of the Act as that language is used in the 
        severability clause. Congress clearly intended ``the remainder 
        of the Act'' to stand if ``any particular provision'' were held 
        invalid. Congress could not have more plainly authorized the 
        presumption that the provision for a one-House veto in Sec.  
        244(c)(2) is severable from the remainder of Sec.  244 and the 
        Act of which it is a part. See Electric Bond & Share Co. v. 
        SEC, 303 U.S. 419, 434 (1938).
          The presumption as to the severability of the one-House veto 
        provision in Sec.  244(c)(2) is supported by the legislative 
        history of Sec.  244. That section and its precursors 
        supplanted the long-established pattern of dealing with 
        deportations like Chadha's on a case-by-case basis through 
        private bills. Although it may be that Congress was reluctant 
        to delegate final authority over cancellation of deportations, 
        such reluctance is not sufficient to overcome the presumption 
        of severability raised by Sec.  406.

    Later in INS v. Chadha the Court also stated:

          A provision is further presumed severable if what remains 
        after severance ``is fully operative as a law.'' Champlin 
        Refining Co. v. Corp. Comm'n, supra, at 234. There can be no 
        doubt that Sec.  244 is ``fully operative'' and workable 
        administrative machinery without the veto provision in Sec.  
        244(c)(2). Entirely independent of the one-House veto, the 
        administrative process enacted by Congress authorizes the 
        Attorney General to suspend an alien's deportation under Sec.  
        244(a). Congress' oversight of the exercise of this delegated 
        authority is preserved since all such suspensions will continue 
        to be reported to it under Sec.  244(c)(1). Absent the passage 
        of a bill to the contrary, deportation proceedings will be 
        canceled when the period specified in Sec.  244(c)(2) has 
        expired. Clearly, Sec.  244 survives as a workable 
        administrative mechanism without the one-House veto.\76\
---------------------------------------------------------------------------
    \76\ Id. at 934-35.

    As can be seen from the way the court addressed the issue in 
Chadha, issues of statutory severability are usually fact-specific 
undertakings that include asking whether Congress would have passed the 
section of a bill without the unconstitutional provision or section of 
a provision. This is largely a matter of the text of the act, 
legislative intent,\77\ and legislative history. When there is a 
severability clause in the statute itself, as in the case of the Atomic 
Energy Act, the legislative intent is clear. Therefore, the provision 
allowing for a legislative veto will very likely be able to be 
successfully severed from the rest of the Act based on the intent of 
Congress.
---------------------------------------------------------------------------
    \77\ See, e.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936).
---------------------------------------------------------------------------
                               appendix b
        Ancillary Provisions Relating to Foreign Commercial SNF
          1. Section 107 of the Department Energy Act of 1978--Civilian 
        Applications.

    This section, enacted prior to the NNPA, imposes limitations on use 
of appropriated funds to store foreign spent nuclear fuel unless the 
use is ``expressly authorized by legislation hereafter enacted'' or the 
President submits a plan for such storage and neither House disapproves 
within 30 days of continuous session.\78\ The relationship between 
Section 107 and AEA Section 131 is unclear. There is some question 
regarding the continued applicability of Section 107 to the storage of 
foreign commercial fuel to which Section 131 of the AEA applies; 
however, there is no question that the one-House veto provisions in 
both statutes are unconstitutional under Chadha.\79\
---------------------------------------------------------------------------
    \78\ Pub. L. No. 95-238, Sec.  107 (22 U.S.C. Sec.  3224a) (Feb. 
25, 1978).
    \79\ 462 U.S. at 932.

---------------------------------------------------------------------------
          2. Section 104(a) of the NNPA.

    Section 104(a) of the NNPA authorizes the President to ``negotiate 
. . . binding international undertakings providing for'' inter alia, 
``the establishment of repositories for the storage of spent nuclear 
reactor fuel under effective international auspices and 
inspection.''\80\ In addition, Section 104(f)(1) of the NNPA prohibits 
the President from entering into any binding international undertaking 
(other than a treaty) negotiated under Section 104(a) until the 
President submits the undertaking to Congress and Congress approves it 
by concurrent resolution. The two-House veto is unconstitutional under 
Chadha and following cases, but because the NNPA lacks a severability 
clause, it is unclear what the President's authority would be in this 
case. However, since the limitation in Section 104(f)(1) applies only 
to ``undertakings'' under NNPA Section 104(a), DOE's authority under 
Section 131 of the AEA respecting foreign commercial SNF would appear 
to be unaffected.
---------------------------------------------------------------------------
    \80\ 22 U.S.C. Sec.  3223(a)(4) (2006).
---------------------------------------------------------------------------
                               attachment
                                   The Secretary of Energy,
                                      Washington, DC, May 18, 1998.
Mr. Alfred William Dahlberg,
Chairman, President, and Chief Executive Officer, Southern Company, 270 
        Peachtree Street, NW, Atlanta, GA.
    Dear Mr. Dahlberg:

    In April of last year, I met with a group of nuclear industry 
executives to initiate a discussion of options available to the 
Department for addressing our delay in accepting spent nuclear fuel by 
January 31, 1998. Although no agreement was reached during that 
meeting, I offered to continue those discussions. Over the past year 
the Department has had a number of such discussions with individual 
Standard Contract holders in an effort to resolve these issues. 
Recently, the United States Court of Appeals for the District of 
Columbia Circuit reiterated its view that utilities should seek any 
relief warranted through the process set forth in the Standard 
Contract.
    Building upon these discussions and in light of the Court's recent 
ruling, I would like to propose a modification to your company's waste 
disposal contract with the Department that would provide immediate and 
continuing financial relief to your company. In return for the 
settlement of pending and potential claims relating to the Department's 
delay, I am offering to modify your company's contract with the 
Department to postpone the payment of a portion of the fee your company 
pays into the Nuclear Waste Fund, thereby making available to your 
company a substantial amount of money that could be utilized to offset 
any costs that you may experience as a result of the Department's 
delay. The attachment to this letter provides further details of this 
proposal.
    I believe that the proposal, which the Department can accomplish 
promptly within its current authority and in a manner that does not 
jeopardize the long-term viability of our geologic disposal program, 
demonstrates the Department's willingness to deal in good faith in 
addressing the ramifications of our delay, and presents an attractive 
alternative to what could potentially be years of protracted litigation 
on this matter. I would appreciate it if you would advise the 
Department whether or not you would be interested in pursuing this 
settlement offer by June 15, 1998. Please contact Mr. David Zabransky 
of the Office of Civilian Radioactive Waste Management at (202) 586-
9198 with your views on this proposal or to arrange for a meeting with 
my representatives.
            Sincerely,
                                             Federico Pena.
Attachment.
                      settlement proposal details
    Amend individual contracts to allow a settling utility to retain a 
portion of the fees it is paying into the Nuclear Waste Fund until the 
Department is prepared to begin accepting that utility's spent fuel.
    The fees to be paid into the Nuclear Waste Fund by each utility for 
any given year would be limited to its share of the funds appropriated 
by Congress from the Nuclear Waste Fund to support the Civilian 
Radioactive Waste Management program for that year. The utility would 
retain the balance of its fees.
    Utilities would be allowed to invest the funds they retain, earning 
market rates of return. Any return on the investment which is above the 
interest due the government could be used by the utilities to cover 
their delay costs.
    When the Department is ready to begin the acceptance of spent fuel 
from a utility, that utility's deferred fees, plus interest at the 
Treasury rate, would be due and payable in full.
    Utilities would have to provide the Department with adequate 
assurance that the obligation to pay the deferred funds when due would 
be met.
    In return, settling utilities would agree not to file claims or 
seek damages from the Department due to its delay in waste acceptance.
                         impacts of settlement
    The proposed settlement could provide between $2.8 to $5.0 billion 
dollars in financial relief to utilities, beginning immediately.
    The settlement proposal avoids any further dispute or debate about 
whether delay costs must be paid out of the Nuclear Waste Fund.
    Our proposed settlement terms create a strong incentive for the 
Department to meet its obligation to accept spent fuel as quickly as 
possible.
    If adopted, the settlement would eliminate the costly and lengthy 
individual claims process, which would involve the Department's 
contracting officer, the Board of Contract Appeals and the Court of 
Federal Claims. 

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Question 5. Is the Commission's proposal consistent with the 
express requirements of the Nuclear Waste Policy Act?
    Answer. Based on the legal analysis we received, the BRC is 
confident that our recommendations are consistent with the requirements 
of the Nuclear Waste Policy Act.
                     reclassification of waste fees
    Question 6. At the hearing, Rep. Hamilton stated that he and 
General Scowcroft had written to the Administration, requesting that 
appropriations language be included in the FY 2013 budget to offset the 
fees collected against funds appropriated to the waste program. Please 
provide the Committee with a copy of the letter.
    Answer. A copy of this letter has been provided to the Committee. 
(see below)
                               attachment
                                    Blue Ribbon Commission,
                                                 December 12, 2011.
Hon. President Barack Obama,
The White House, 1600 Pennsylvania Avenue, NW, Washington, DC.
    Dear Mr. President:

    At your direction, the Secretary of Energy established the Blue 
Ribbon Commission on America's Nuclear Future to review policies for 
managing the back end of the nuclear fuel cycle and recommend a new 
strategy. We are pleased to be serving as Co-Chairmen of the 
Commission, and we are writing to you to highlight an important action 
we strongly believe should be reflected in your Fiscal Year 2013 
baseline budget projections.
    In our draft report to the Secretary, issued in July of this year, 
the Commission recommends several actions that should be taken to get 
the nuclear waste management program back on track. High on our list of 
recommendations are actions that can and should be taken soon to 
provide assured access to utility waste disposal fees for their 
intended purpose. Unless action is taken in the near-term to fix the 
way these fees are treated in the federal budget, the nuclear waste 
strategy we recommend cannot succeed.
    Funds for the disposal of spent nuclear fuel from commercial power 
reactors are collected regularly through the assessment of a nuclear 
waste fee on nuclear-generated electricity as a quid pro quo payment in 
exchange for the federal government's contractual commitment to begin 
accepting commercial spent fuel for disposal beginning by January 31, 
1998. These fee payments, which total approximately $750 million per 
year, go to the government's Nuclear Waste Fund, which was established 
for the sole purpose of covering the cost of disposing of civilian 
nuclear waste and ensuring that the waste program would not have to 
compete with other funding priorities.
    As we have learned through our investigation, the Nuclear Waste 
Fund does not work as intended. A series of Executive Branch and 
Congressional actions has made annual fee revenues and the unspent $26 
billion balance in the Fund effectively inaccessible to the nuclear 
waste management program. Instead, the waste program must compete for 
federal funding each year and is therefore subject to exactly the 
budget constraints and uncertainties that the Fund was created to 
avoid. This situation must be remedied to allow the program to succeed.
    In the meantime, with the federal government having failed to meet 
its contractual obligation to begin receiving spent fuel beginning in 
1998, nuclear utilities have successfully sued the government for 
failure to perform and are receiving damage payments from the federal 
Judgment Fund. The government estimates its liability will grow to $16 
billion by 2020 and will increase by several hundred million dollars 
per year thereafter until it begins accepting spent fuel for disposal.
    We have recommended that your Administration offer to amend the 
standard nuclear waste contract with nuclear utilities, which you are 
authorized to do under current law, so that utilities remit only the 
portion of the annual nuclear waste fee that is appropriated for waste 
management each year. The rest of the funding would be placed in a 
trust account, held by a qualified third-party institution, to be 
available when needed. At the same time, we have recommended that the 
Office of Management and Budget work with the Congressional budget 
committees and the Congressional Budget Office to change the budgetary 
treatment of annual fee receipts so that these receipts can directly 
offset appropriations for the waste program.
    These actions are vital to enabling key subsequent actions the 
Commission recommends. Therefore, we respectfully request that you act 
promptly to implement these changes in your Fiscal Year 2013 budget 
proposal. We have heard repeatedly from those following our work that 
they expect our recommendations to lead to prompt action on the nuclear 
waste issue; we firmly believe that implementing our funding 
recommendations is an essential first step.
    We recognize that our recommendations, if adopted, would mean the 
nuclear waste fee receipts could no longer be counted against the 
federal budget deficit and that the result will be a negative impact of 
approximately $750 million on annual budget calculations. We appreciate 
that any budgetary actions that increase the size of the deficit are 
especially difficult to take in the present fiscal climate. However, it 
is clear that the federal government is contractually bound to use 
these funds to provide for ultimate disposal of spent nuclear fuel. In 
our view, a failure to correct the funding problem does the federal 
budget no favors in a context where taxpayers remain liable for 
mounting damages, compensated through the Judgment Fund, for the 
federal government's continued inability to deliver on its waste 
management obligations.
    In preparing our draft proposal we consulted with former Office of 
Management and Budget and Congressional budget staff, and our proposal 
enjoys the support of both the National Association of Regulatory 
Utility Commissioners, representing the ratepayers, and the Nuclear 
Energy Institute, representing the nuclear utilities. We should note 
that the federal government's failure to deliver on its statutory 
obligations with respect to commercial spent fuel disposal has prompted 
these organizations to pursue legal action against the government aimed 
at suspending entirely the collection of fees until such time as a new 
waste management plan for the country has been finalized.
    We believe our recommended actions are essential to the future 
success of the nuclear waste management program and we urge you to 
reflect our recommendations in your Fiscal Year 2013 budget proposal.
            With best regards,
                                           Lee H. Hamilton,
                                                       Co-Chairman.
                                           Brent Scowcroft,
                                                       Co-Chairman.
                        congressional oversight
    The Committee recommends that the unspent balance of the Nuclear 
Waste Fund, which is estimated to be nearly $27 billion, be transferred 
to the new nuclear waste management organization ``so that it can carry 
out its civilian nuclear waste obligations independent of annual 
appropriations (but with congressional oversight).'' It recommends that 
Congress transfer the entire balance of the Fund to the new 
organization on ``a defined schedule ... over a reasonable future time 
period,'' and yet still maintain rigorous oversight over the program.
    Question 7. Specifically, how does the Commission envision that 
Congress should exercise control over the new organization's use of the 
Fund if the Fund is no longer subject to appropriation?
    Answer. If responsibility for implementing the program is 
transferred to a new government corporation, along with greater budget 
control and assured access to the NWF, the new organization must also 
be subject to independent financial oversight to ensure that public 
resources are being used appropriately in support of waste program 
objectives. Beyond a board of directors, most proposals provide for 
additional oversight in the form of independent audits of the new 
organization's finances along with reviews by the Government 
Accountability Office (GAO). The NWPA already requires an annual GAO 
audit of the activities of DOE's OCRWM, as well as a comprehensive 
annual report by OCRWM on its activities and expenditures and an annual 
report to Congress from the Secretary of the Treasury (after 
consultation with the Secretary of Energy) on the financial condition 
and operations of the NWF. These requirements could simply be extended 
to the new organization (except that the organization would not report 
to Treasury through DOE). A mechanism for Congress to review regular 
updates of the organization's mission plan and budget would provide an 
additional vehicle for overseeing the organization's use of funds.
    If desired, legislation establishing the new organization could 
include an expedited process similar to that provided by the 
Congressional Review Act through which Congress could veto a proposed 
mission plan revision by passing a joint resolution, subject to 
presidential veto. This approach would allow substantial congressional 
control over changes in program direction and funding without requiring 
that legislation be passed to approve such changes whenever they are 
needed (or requiring approval to expend funds or otherwise proceed on a 
year to year basis).
                         site selection process
    The original Nuclear Waste Policy Act required the Secretary of 
Energy and the President to consider ``regional distribution of 
repositories'' in selecting repository sites and prohibited siting an 
interim storage facility in any state being considered for a 
repository, so that a single state would not have to host multiple 
disposal facilities.
    Question 8. Should the new waste management organization be 
required to consider ``regional distribution''?
    Answer. Consideration of ``regional distribution'' would likely 
make sense for the new waste management organization, since a regional 
distribution of facilities could potentially optimize the operation of 
the waste management enterprise. However the BRC does not believe that 
regional distribution of facilities should be mandated nor that any 
state should be prohibited from choosing to host multiple facilities--
provided that the consent-based process has been used in siting those 
facilities.
   Responses of the Blue Ribbon Commission to Questions From Senator 
                                Cantwell
ability of the yucca mountain facility to accept nuclear defense waste 
                              from hanford
    As the Blue Ribbon Commission Report mentions, the Hanford site 
currently is storing 2,480 metric tons of spent nuclear fuel and 
approximately 53 million gallons of high level waste--approximately 90 
percent of the nation's total high level defense waste. Some of this 
waste was expected to be transferred to the Yucca Mountain facility for 
geological disposal when it was completed.
    Question 1a. Can you please provide an approximate estimate of how 
much of Hanford's low-level waste and high-level waste at Hanford could 
be disposed at the Yucca Mountain facility if it were ever completed? 
Please take into consideration the national need to find disposal sites 
for both military waste and commercial spent fuel waste and any other 
relevant factors such as varying levels of radiation, safety risk, and 
storage requirements.
    Answer. The Nuclear Waste Policy Act, as amended, prohibits the 
U.S. Nuclear Regulatory Commission from approving the emplacement of 
more than 70,000 MTHM (metric tons of heavy metal) into the first 
national repository until a second repository is in operation [Section 
114(d)].
    In 1985, the DOE published a report that required the Secretary of 
Energy to recommend to the President whether defense high-level 
radioactive waste should be disposed of in a geologic repository along 
with commercial spent nuclear fuel. That report provided the basis, in 
part, for the President's determination that defense high-level 
radioactive waste should be disposed of in a geologic repository. Given 
that determination, DOE decided to allocate 10 percent of the capacity 
of the first repository (or ?7,000 MTHM) for the disposal of DOE spent 
nuclear fuel (2,333 MTHM) and high-level radioactive waste (4,667 
MTHM).
    The DOE's 2008 report to Congress on the need for a second 
repository concluded that the ``inventories of commercial and Federal 
Government SNF and HLW in the United States are projected to exceed 
70,000 MTHM by 2010, therefore additional repository capacity is 
needed.'' Based on a range of alternative configurations for a 
repository at Yucca Mountain, the report concluded that ``those studies 
provide confidence that a repository at Yucca Mountain has the capacity 
to handle all of the DOE SNF and HLW and the projected inventory of 
commercial SNF assuming operating life extensions for all of the 
existing commercial nuclear power reactors.''
    Some lower-level wastes such as Greater-Than-Class-C waste and 
Special-Performance-Assessment-Required wastes were included in an 
addendum (Inventory Module 2) of the final environmental impact 
statement for Yucca Mountain (DOE/EIS-0250; Final Environmental Impact 
Statement for a Geologic Repository for the Disposal of Spent Nuclear 
Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, 
Nevada February 2002, Appendix A--Inventory and Characteristics of 
Spent Nuclear Fuel, High-Level Radioactive Waste, and Other Materials), 
but are not part of the initial 70,000 MTHM plans. Low-level wastes, 
suitable for surface and/or shallow land burial are not to be emplaced 
at Yucca Mountain.
    Question 1b. Can you please help us understand how the 56 million 
gallons of radioactive and chemical waste that is expected to be 
vitrified at Hanford's Waste Treatment Plant beginning in 2019 compares 
in volume to the commercial spent fuel that was planned to be disposed 
at the Yucca Mountain facility? Can Hanford's vitrified waste be stored 
in the same way and proximity as commercial spent fuel? Are there 
additional safety, engineering, and licensing concerns for storing 
Hanford's defense waste as compared to commercial spent fuel in the 
context of the Yucca Mountain Facility?
    Answer. The BRC did not perform any detailed analysis of the 
defense wastes, and cannot provide insights about the technical 
differences affecting disposal of the defense wastes versus the 
commercial wastes. In submitting a license application to the U.S. 
Nuclear Regulatory Commission for Yucca Mountain, the DOE presumably 
believed there were no technical barriers for safely placing the 
contemplated quantities and types of defense and commercial wastes 
together in Yucca Mountain. However, the NRC would ultimately need to 
determine whether or not the DOE's design would comply with regulatory 
standards.
  ability of the waste isolation pilot plant (wipp) to accept nuclear 
                       defense waste from hanford
    Waste retrievability and reversibility have historically been major 
limiting factors in the siting and cost of proposed waste disposal 
facilities. Yet the high level waste at the Hanford site is scheduled 
to be vitrified in the Waste Treatment Plant beginning in 2019, a 
process that will render materials in high level waste both stable and 
unrecoverable for future commercial or nuclear purposes. In addition, 
the Waste Isolation Pilot Plant (WIPP) seems to have high potential 
storage capacity and considerable geologic advantages over other sites. 
In the light of these facts, I would appreciate your thoughts on the 
following questions:
    Question 2a. Given that 5,106 cubic meters of Hanford waste have 
already been shipped to WIPP for geologic disposal, is there any 
technical barrier to disposal of additional volumes of vitrified high 
level waste, spent nuclear fuel, and other wastes from Hanford at the 
WIPP facility? Could the facility potentially accommodate higher levels 
of both contact-handled and remote-handled wastes?
    Answer. The BRC was directed not to investigate any specific 
locations or sites for geologic disposal or other nuclear facilities 
and therefore cannot comment on the barriers to additional disposal at 
the WIPP facility.
    Question 2b. Considering that WIPP has now been operated 
successfully for over a decade now, what barriers prevent the facility 
from being expanded beyond its current maximum of 175,500 cubic meters 
of defense-generated transuranic (TRU) waste?
    Answer. The BRC was directed not to investigate any specific 
locations or sites for geologic disposal or other nuclear facilities 
and therefore cannot comment on the barriers to additional disposal at 
the WIPP facility.
    Question 2c. What advantages or disadvantages do you see in using 
WIPP to dispose of Hanford waste in terms of cost, safety, and timing?
    Answer. Because the BRC did not evaluate any specific sites for 
waste disposal, we are unable to discuss the advantages or 
disadvantages of using WIPP to dispose of Hanford waste.
    Question 2d. Under the Land Withdrawal Act, does the Department of 
Energy have the authority to transfer larger quantities of defense 
wastes, including spent nuclear fuel and vitrified high level wastes, 
from Hanford to WIPP within the current limits of WIPP's license? If 
not, what authority would be necessary?
    Answer. Section 12 of the Waste Isolation Pilot Plant Land 
Withdrawal Act states that, ``The Secretary shall not transport high-
level radioactive waste or spent nuclear fuel to WIPP or emplace or 
dispose of such waste or fuel at WIPP.''
                     hanford waste characterization
    There seems to be significant confusion and apparent 
inconsistencies about the classification of nuclear waste at Hanford. 
There are a number of different units and categories to characterize 
the waste.
    The BRC report states that the Hanford Reservation stores ``by far 
the largest quantity of DOE's SNF inventory'' as well as most of the 90 
million gallons of DOE's high-level waste. The report characterizes the 
Hanford nuclear waste inventory in the following manner:


------------------------------------------------------------------------
                                          Spent Nuclear     High-Level
                                              Fuel             Waste
------------------------------------------------------------------------
Defense                                 2,172 MTHM
------------------------------------------------------------------------
Non-Defense                             309 MTHM
------------------------------------------------------------------------
Total DOE Canisters                     3,500             9,700
------------------------------------------------------------------------

    Question 3a. Could you provide more details about what each 
category includes and how to characterize the waste at Hanford?
    Answer. The values in the above chart are for the DOE total--and 
not for the Hanford site. The Hanford values for spent nuclear fuel for 
defense and non-defense purposes are 2,102 MTHM and 27 MTHM 
respectively. Defense related spent fuel includes fuels used to 
generate plutonium and other useful materials for weapons production, 
while non-defense spent fuel includes fuels utilized for research, 
commercial or other civilian applications. Wastes at Hanford that 
require, or might require, deep geologic disposal fit into five general 
categories: DOE spent nuclear fuel, high-level radioactive waste, 
surplus weapons-usable plutonium, commercial Greater-Than-Class-C 
waste, and DOE Special-Performance-Assessment-Required waste.
    We have included a paper that was written for us by Savannah River 
National Laboratory entitled, ``U.S. Radioactive Waste Inventory and 
Characteristics Related to Potential Future Nuclear Energy Systems'',* 
which may prove helpful. Any additional inventory information should be 
obtained from the Department of Energy's Office of Environmental 
Management.
---------------------------------------------------------------------------
    * Web site access: http://www.brc.gov/sites/default/files/
documents/brc--inventory--whitepaper--rev--2.pdf. Document also has 
been retained in committee files.
---------------------------------------------------------------------------
    Question 3b. Can the BRC also please provide a breakout of the 
quantities and types of spent nuclear fuel, high-level wastes, and 
other defense and non-defense nuclear wastes found at Hanford?
    Answer. The most up-to-date information regarding the inventories 
of high-level waste across the DOE complex can be found at the 
Department of Energy's Office of Environmental Management.
    Response of the Blue Ribbon Commission to Question From Senator 
                               Murkowski
    We have heard a fair amount about Sweden's consent-based approach 
in developing its nuclear waste repository. My understanding, however, 
is that the two municipalities that competed to host the repository 
have existing nuclear facilities within their jurisdiction and as a 
result the local population was already supportive of nuclear in 
general, while other municipalities in Sweden that did not have nuclear 
facilities were not supportive of hosting a waste repository. This 
poses the question of whether we are more likely to achieve consent-
based acceptance from a state and local unit of government that has 
existing nuclear facilities.
    Question 1a. Did you run into similar public sentiment in the other 
countries you looked at?
    Answer. Similar public sentiment around existing nuclear facilities 
did exist in Finland and Sweden--and did contribute to successful 
siting of geologic repositories in those countries. However, other 
consent-based programs in Canada, France, and Spain, which all are in 
various stages of the siting process, have yet to show that pre-
existing public sentiment regarding existing nuclear facilities factors 
into the success of their respective programs. In general, all of the 
countries the BRC visited stressed that several other elements were 
critical in establishing a foundation for public trust and support for 
siting nuclear facilities, including:

   A clear and understandable legal framework
   An opt-out option for the local affected community, up to a 
        certain point in the process
   The availability of financing for local governments and 
        citizen organizations for conducting their own analyses of the 
        site and siting issues
   Compensation for allowing the investigation and 
        characterization of the proposed site
   A concerted effort to promote knowledge and awareness of the 
        nuclear waste issue and plans for addressing it through 
        mechanisms such as:

    --Seminars, study visits, and reviews conducted by the local 
            government
    --Information to and consultation with local inhabitants
    --Socioeconomic studies and evaluations of impacts on local 
            businesses

   Openness and transparency among and within the implementing 
        organization, the national government, local governments, and 
        the public.

    Question 1b. Are there potentially viable geologic sites in the 
United States near existing nuclear facilities where a repository would 
have public support?
    Answer. Since 1954, when the Atomic Energy Commission (AEC) 
initiated the search for a deep geologic repository, more than 60 
regions, areas, or sites involving nine different rock types have been 
investigated. Given there are 104 operating reactors and several DOE 
nuclear facilities spread across the country, it is likely that 
favorable geology does indeed overlap existing nuclear facilities. 
However, because the BRC was instructed not to examine the suitability 
of specific sites, we cannot comment on which sites offer suitable 
geology for disposal and have a potential for public support based on 
their proximity to existing facilities.
Responses of the Blue Ribbon Commission to Questions From Senator Risch
    Question 1. Idaho is among a number of states with high level waste 
that was created on-site by the federal government and we also house 
spent nuclear fuel from Three-Mile Island and West Valley in New York. 
You recommend creating a new entity to manage waste and disposal 
repositories, but the report does not provide details for how defense 
waste at sites like INL should be handled. How should defense wastes be 
treated and what entity should be responsible for it?
    Answer. The BRC heard comments from several states that host DOE 
defense waste in support of leaving responsibility for defense waste 
disposal with DOE. These states generally agreed with the proposal in 
the Commission's draft report to establish a new organization to manage 
civilian wastes, but believe the government can more effectively meet 
its national security obligations and cleanup commitments if 
responsibility for defense waste disposal remains with DOE. The 
Commission also heard from interested parties, such as NEI, who 
provided credible arguments for why the original commingling decision 
should be sustained. Whatever one's view of the pros and cons of the 
current policy, a decision to move responsibility for defense wastes to 
a new organization(versus leaving that responsibility with DOE) would 
have major implications for the scope of responsibility for the new 
organization, as well as for key questions of funding, governance, and 
Congressional oversight.
    The BRC was not in a position to comprehensively assess the 
implications of any actions that might affect DOE's compliance with its 
cleanup agreements, and we did not have the time or the resources 
necessary to thoroughly evaluate the many factors that must be 
considered by the Administration and Congress in making such a 
determination. The Commission urged the Administration to launch an 
immediate review of the implications of leaving responsibility for 
disposal of defense waste and other DOE-owned waste with DOE versus 
moving it to a new waste management organization. This review should 
include an assessment of issues associated with the disposition of DOE-
owned wastes from non-defense sources (e.g. a portion of the high-level 
waste now stored at West Valley, New York, and a variety of wastes now 
in storage at INL such as damaged fuel from the Three Mile Island Unit 
2 reactor). The implementation of other BRC recommendations, however, 
should not wait for the commingling issue to be resolved.
    Question 2. What path forward do you see for development of new 
nuclear power in the United States? Without Yucca moving forward, it 
will certainly be decades before another site is selected and vetted 
and without a plan for a repository where does that leave new nuclear 
projects?
    Answer. The BRC believes a range of 15 to 20 years is appropriate 
for the waste management organization to accomplish new site 
identification and characterization and to conduct the licensing 
process for a geologic repository. While the BRC made no 
recommendations about the appropriate role of nuclear power in the 
nation's (or the world's) future energy supply mix, their final report 
does note that the successful management of spent nuclear fuel has long 
been viewed as necessary if nuclear power is going to remain a viable 
energy option. Laws in several states that put a moratorium on new 
nuclear plant construction until certain waste management conditions 
have been met, together with the NRC's Waste Confidence findings, 
create the most direct linkage between progress on nuclear waste 
disposal and the future prospects of the domestic nuclear power 
industry.
    In 2010 the NRC issued revisions to the agency's waste confidence 
findings. The revisions expressed the NRC's confidence that: (1) the 
nation's SNF can be safely stored for at least 60 years beyond the 
licensed life of any reactor and (2) that sufficient repository 
capacity will be available when necessary (though the NRC did not 
specify an anticipated timeframe). The NRC also made clear, however, 
that by revising its earlier waste confidence findings it did not 
intend to signal that it was endorsing the indefinite storage of spent 
fuel at reactor sites.
    On February 17, 2011, the Natural Resources Defense Council filed a 
petition for review with the United States Court of Appeals for the DC 
Circuit challenging the NRC's most recent waste confidence rule. The 
states of New Jersey, New York, Vermont, and Connecticut have also 
challenged the rule.
    Question 3. In your report, you suggest a number of incentives that 
communities could be eligible for if they were willing to be a site for 
a deep geological repository or a consolidated storage facility. How do 
you define ``community''?
    Answer. A community could be a village, town, city, county, or some 
collection of those--depending on local circumstances.
    Question 4. The $15 billion that has been spent on Yucca Mountain 
is money that ratepayers and taxpayers will never get back. In 
addition, counties surrounding the project have repeatedly said that 
they want the project to move forward. Do you think the licensing 
process for Yucca Mountain should move forward so that the project can 
begin receiving waste so we can prove to the American people that the 
process can be completed and move our country's nuclear future forward?
    Answer. Because the BRC was directed by the Secretary of Energy not 
to consider Yucca Mountain, the Commission has no official position on 
that site. The BRC has not passed judgment on whether the Yucca 
Mountain project should or should not be abandoned. What the BRC has 
recommended is a strategy that can succeed regardless of the fate of 
the Yucca Mountain project.
    As you have noted, the Yucca Mountain project may indeed have 
support from several surrounding counties. However, it does not have 
support from a majority of its state or federal delegations. The BRC 
describes a consent-based process as one in which all affected levels 
of government must have, at a minimum, a meaningful consultative role 
in important decisions, and we believe that a good gauge of consent 
would be the willingness of the affected units of government--the host 
states, tribes, and local communities--to enter into legally binding 
agreements with the facility operator, where these agreements enable 
states, tribes, or communities to have confidence that they can protect 
the interests of their citizens.

                                    

      
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