[Senate Hearing 112-598]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 112-598


 
                  THE NUCLEAR WASTE ADMINISTRATION ACT

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

                                HEARING

                               before the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                                   TO

 RECEIVE TESTIMONY ON S. 3469, THE NUCLEAR WASTE ADMINISTRATION ACT OF 
                                  2012

                               __________

                           SEPTEMBER 12, 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

Barron, Henry B., President and Chief Executive Officer, 
  Constellation Energy Nuclear Group, LLC, Baltimore, MD.........    27
Bingaman, Hon. Jeff, U.S. Senator From New Mexico................     1
Fettus, Geoffrey H., Senior Attorney, Nuclear Program, Natural 
  Resources Defense Council......................................    33
Heller, Hon. Dean, U.S. Senator From Nevada......................     2
Lyons, Peter B., Assistant Secretary for Nuclear Energy, 
  Department of Energy...........................................    10
Meserve, Richard A., President, Carnegie Institution for Science.     7
Murkowski, Hon. Lisa, U.S. Senator From Alaska...................     2
Scowcroft, General Brent, Co-Chairman, Blue Ribbon Commission on 
  America's Nuclear Future.......................................     4

                               APPENDIXES
                               Appendix I

Responses to additional questions................................    47

                              Appendix II

Additional material submitted for the record.....................    63


                  THE NUCLEAR WASTE ADMINISTRATION ACT

                              ----------                              


                     WEDNESDAY, SEPTEMBER 12, 2012

                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:30 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. Why don't we start the hearing? The 
committee meets this morning to consider S. 3469, the Nuclear 
Waste Administration Act of 2012.
    S. 3469 is intended to implement the recommendations of the 
Blue Ribbon Commission that Secretary Chu appointed to review 
the nuclear waste program. The Blue Ribbon Commission issued 
its final report in January. This committee heard from the 2 
chairs of the Commission, General Brent Scowcroft and 
Representative Lee Hamilton on that report in February.
    The Blue Ribbon Commission was worthy of its name. It was 
made up of 15 highly distinguished individuals from academia, 
from industry, from public service. They approached their task 
conscientiously and diligently. They produced a very thorough 
and comprehensive report.
    The Commission presented us with 8 clear, concise and 
straight forward recommendations. I've tried to implement those 
recommendations in the bill that is now before us for this 
hearing. I worked closely with Senator Murkowski and the Chair 
and Ranking Member of the Energy and Water Appropriations 
Subcommittee, Senator Feinstein and Senator Alexander in the 
effort.
    Regrettably, we were not as successful as the Blue Ribbon 
Commission was in reaching a unanimous bipartisan consensus. 
Although we were able to agree on most issues, we could not 
agree on the siting process for storage facilities and how to 
ensure that temporary storage facilities do not become 
permanent substitutes for an underground repository. With time 
running out on this Congress, we agreed that I should go ahead 
and introduce the bill as it stands and hold this hearing on 
the bill. Leave it to the next Congress to continue working on 
the issue.
    We're very fortunate to have General Scowcroft back with us 
this morning. We're sorry that Congressman Hamilton could not 
be with us. We extend to him and his family our sincere 
condolences on the tragic death of his wife, Nancy, last month.
    We appreciate Dr. Meserve stepping in for Congressman 
Hamilton today.
    We also welcome back Assistant Secretary Lyons to offer the 
Administration's views on the bill.
    Following this panel we will hear from Mr. Henry Barron, 
the President and Chief Executive Officer of Constellation 
Energy Nuclear Group.
    Mr. Geoffrey Fettus, who is the Senior Attorney at the 
National or the Natural Resources Defense Council.
    Let me defer to Senator Murkowski for any comments she'd 
like to make.

          STATEMENT OF HON. DEAN HELLER, U.S. SENATOR
                          FROM NEVADA

    Mr. Chairman and Ranking Member Murkowski, I want to start 
by thanking you for holding this hearing today. While S. 3469 
does not totally take Yucca Mountain off the table, I am 
pleased that we are discussing legislation that recognizes the 
need for consent-based nuclear waste repository siting and 
provides a potential path forward beyond Yucca Mountain.
    My home state of Nevada is home to the proposed Yucca 
Mountain Nuclear Waste Repository. I have long had serious 
concerns about the safety of Yucca Mountain and the suitability 
of Southern Nevada as the final resting place of our spent 
nuclear material. With the amendment of the Nuclear Waste 
Policy Act in 1987, 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. With the stroke of 
a pen, objective evaluation of Yucca Mountain as one option 
among many ceased and the study of alternative storage methods 
and sites was curtailed. Given the politicized history of Yucca 
Mountain, I don't trust the federal government to appropriately 
manage a repository at the site.
    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, and not by politicians in Washington. I appreciate 
the effort to create a sound solution to long-term nuclear 
waste storage that Chairman Bingaman and Ranking Member 
Murkowski are seeking through the Nuclear Waste Administration 
Act of 2012. It is my hope that the lessons learned from Yucca 
Mountain, such as the importance of consent-based siting and 
truly objective evaluation of any proposed site, will not be 
lost on our future efforts. I look forward to working with my 
colleagues to find safe and viable alternatives to Yucca 
Mountain for the long-term storage of nuclear waste.

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

    Senator Murkowski. Thank you, Mr. Chairman. I do thank you 
for holding this hearing on a topic that, I think we would all 
agree, needs to be resolved in order for nuclear energy to play 
the role that, I believe, that it's clearly capable of in 
meeting our Nation's energy needs.
    I have expressed some skepticism in the past about the need 
to delay progress on resolving these issues while the Blue 
Ribbon Commission deliberated. But, as you have stated and I 
will absolutely concur, the Blue Ribbon Commission is an 
extremely credible group. It has produced a thoughtful product 
regarding how to move our Nation's spent nuclear fuel program 
forward. I fully recognize and appreciate that.
    Now there may be little that is actually truly new in the 
proposals that came out of the Blue Ribbon Commission. But I am 
optimistic that the report has ignited a heightened sense of 
urgency and renewed focus on these issues. As the Commission's 
report notes the government's failure to address our nuclear 
waste issues is damaging to the development of future nuclear 
power and simultaneously worsening our Nation's financial 
situation.
    I think that we need to act on this. I think we need to act 
soon.
    Mr. Chairman, the legislation that you introduced is 
indicative of months of good, productive discussions. As you've 
noted, that you led along with Senator Feinstein, Senator 
Alexander and myself discussing the ways to end the--to address 
the back end of the nuclear fuel cycle. I congratulate you on 
moving the discussion forward, putting the marker out there and 
allowing us to begin the very critical, the very important 
discussion that must advance.
    While we couldn't ultimately bridge the issue of linking 
progress on interim storage and a permanent repository, I want 
to be clear to those following these discussions that while 
prospects for legislative enactment in this Congress are not 
favorable. We're all very honest with that. We will continue 
the effort next year and build upon the progress that the 
Chairman has begun.
    Now I will also note that the Senate Energy and Water 
Appropriations bill contains language that seeks to move 
interim storage forward in a timely manner. I think we 
recognize that we're going to be dealing with a shorter term 
CR, perhaps in the next couple days, perhaps next week. I'm 
hopeful that the interim storage language will be included when 
Congress acts on a full Fiscal Year 2013 spending bill.
    In addition we would be remiss if we did not examine the 
impact of the Court of Appeals for the District of Columbia's 
remand on the NRC's waste confidence decision on new license 
applications and license renewals and how that legislation, 
along the lines of S. 3469, could help address the court's 
concerns.
    Again, Mr. Chairman, I thank you for holding the hearing, 
advancing the legislation and the discussion and look forward 
to the witnesses this morning.
    The Chairman. Thank you very much.
    Let me, once again, just introduce this first panel.
    General Brent Scowcroft, the Co-Chair of the Blue Ribbon 
Commission on America's Nuclear Future.
    Dr. Richard Meserve, the President of the Carnegie 
Institution for Science.
    Dr. Peter Lyons, who is the Assistant Secretary for Nuclear 
Energy with the U.S. Department of Energy.
    So, General Scowcroft, why don't you go ahead and begin, if 
you'd like. Each of you take what time you think you need to 
explain the main points you'd like to make about the proposed 
legislation.

STATEMENT OF GENERAL BRENT SCOWCROFT, CO-CHAIRMAN, BLUE RIBBON 
             COMMISSION ON AMERICA'S NUCLEAR FUTURE

    General Scowcroft. Thank you very much, Chairman Bingaman.
    Mr. Chairman, Ranking Member Murkowski, it's a great 
pleasure to appear before you today to discuss S. 3469, the 
Nuclear Waste Administration Act of 2012.
    I would like at the outset to pass along Co-Chairman 
Hamilton's sincere regrets for not being here with us today. As 
you said, Mrs. Hamilton lost her life in a tragic accident last 
month. Co-Chairman Hamilton is home in Indiana attending to 
family matters. It was a great privilege for me to serve 
alongside him as Co-Chairman of the Blue Ribbon Commission. We 
join you in extending our deepest sympathies to him.
    I'm very pleased that Commission member, Dick Meserve is 
able to join with me this morning.
    We were also most pleased to receive the invitation to 
testify today because we believe our Nation simply must craft a 
sustainable solution to the nuclear waste management issue. The 
legislation that Senator Bingaman has introduced is an 
outstanding beginning to what we recognize could be an extended 
legislative process.
    We are also pleased to be here because it gives us a chance 
to publicly thank Chairman Bingaman for his service to the 
Nation as he prepares to retire at the end of this session. 
Thank you, Senator Bingaman for all you have done to help craft 
sensible energy policy for the United States. Your leadership 
on the nuclear waste issue and on energy issues in general will 
be sorely missed. Thank you for allowing us the opportunity to 
testify before you today.
    As you know the Blue Ribbon Commission on which we served 
was formed by the Secretary of Energy at the direction of the 
President. Our task 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 delivered our final report 
to the Secretary of Energy in January of this year and made 8 
key recommendations.
    Your committee was fully briefed on these recommendations 
when Co-Chairman Hamilton and I testified in February. So I 
will not go into detail about the individual recommendations 
again. Rather let me just remind the committee that our 
Commission viewed these 8 recommendations as an integrated set 
and that they would be most effective if implemented as a 
complete package.
    Now I will turn the microphone over to Mr. Meserve.
    [The joint prepared statement of General Scowcroft and Mr. 
Meserve follows:]

Prepared Statement of General Brent Scowcroft, Co-Chairman, and Richard 
 A. Meserve, Commissioner, Blue Ribbon Commission on America's Nuclear 
                                 Future

                              INTRODUCTION

    Chairman Bingaman, Ranking Member Murkowski, distinguished members 
of the committee, it is a pleasure to appear before you today to 
discuss S. 3469, the Nuclear Waste Administration Act of 2012.
    Before we begin, I would like to pass along Co-Chairman Hamilton's 
sincerest regrets for not being here with us today. As you may know, 
Mrs. Hamilton died in a tragic accident last month and Congressman 
Hamilton is home in Indiana tending to family affairs. It was a great 
privilege to serve alongside him as co-chairman of the Blue Ribbon 
Commission and we extend him our deepest sympathies. I am pleased that 
Dick Meserve is available to join me this morning.
    We were also most pleased to receive the invitation to testify 
today because we believe our nation simply must craft a sustainable 
solution to the nuclear waste management issue. The legislation that 
Senator Bingaman has introduced is an outstanding beginning to what we 
recognize could be an extended legislative process. We are also pleased 
to be here because it gives us a chance to publicly thank Chairman 
Bingaman for his service to the nation as he prepares to retire at the 
end of this session. Thank you, Senator Bingaman, for all you've done 
to help craft sensible energy policy for the United States. Your 
leadership on the nuclear waste issue and on energy issues in general 
will be sorely missed. Thank you for allowing us the opportunity to 
testify before you today.
BRC Report Overview
    As you know, the Blue Ribbon Commission on which we served 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 delivered our final report to the Secretary in January of this 
year, and made eight key recommendations:

          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 advances in nuclear energy technology and for 
        workforce development; and
          8. Active U.S. leadership in international efforts to address 
        safety, non-proliferation, and security concerns.

    Your committee was fully briefed on the recommendations of our 
Commission when Co-Chairman Hamilton and I testified in February of 
this year, so I will not go into detail about the individual 
recommendations. Rather, let me just remind the committee that our 
Commission viewed these eight recommendations as an integrated set, and 
that they would be most effective if implemented as a complete package.
Views on S. 3469
    We are pleased to see that Senator Bingaman's draft legislation 
incorporates many of the changes to existing law that will be required 
to implement our Commission's recommendations. In particular, S. 3469 
would implement the Commission's recommendations to authorize a 
consent-based process for nuclear waste facility siting, to be 
conducted by an entity removed from the Department of Energy, with 
access to Nuclear Waste Fee payments and the balance of the Nuclear 
Waste Fund. The bill's provisions requiring development of generic 
radiation protection standards for repositories and a mission plan for 
the Nuclear Waste Administration are also consistent with the 
Commission's recommendations.
    While S. 3469 generally mirrors the Commission's recommendations, 
there are a few areas of difference that we believe are worth 
highlighting and exploring. In particular:

          1. The Commission recommended the establishment of a 
        congressionally chartered corporation to carry out the waste 
        program. The draft legislation proposes instead to create a 
        Nuclear Waste Administration, an agency of the federal 
        government, to carry out this role. While both approaches would 
        assure appropriate focus, we recommended a federally chartered 
        corporation in order to assure the necessary management 
        stability for the long-term task of advancing the waste program 
        and to provide a degree of isolation from short-term political 
        pressures. In particular, a new waste management organization 
        will need the leadership of a strong chief executive with 
        exceptional management, political, and technical skills and 
        experience and tenure that extends longer than the political 
        cycle--objectives that might be more easily achieved through a 
        corporation than a federal agency. We urge the committee to 
        reconsider this aspect of the legislation.
          2. The proposed legislation places limits on the amount of 
        spent fuel that can be accepted for consolidated storage prior 
        to congressional ratification of a consent agreement for a 
        repository. We understand that this provision reflects a 
        concern that any consolidated storage facility could become a 
        de facto disposal facility, which is why existing law prohibits 
        the construction of a storage facility before construction 
        authorization has been issued for a first repository. The Blue 
        Ribbon Commission concluded that `` the current rigid 
        legislative restriction . . .  should be eliminated,'' but also 
        emphasized that ``the challenge of establishing positive 
        linkages such that progress on storage does not undermine, but 
        rather supports progress on repository development remains an 
        important one.'' Our review did not lead us to recommend any 
        specific linkages because we concluded that the volume of fuel 
        to be accepted in consolidated storage could be one of the many 
        elements of the negotiation between the nuclear waste 
        management organization and potential host governments. We 
        appreciate that the bill allows consolidated storage to begin 
        at a scale sufficient to provide for acceptance of all of the 
        spent fuel from shutdown reactors, as we recommended, and that 
        full scale storage could begin considerably earlier than is 
        possible under current law. However, we encourage the committee 
        to give careful consideration to alternative approaches for 
        ensuring that a storage facility is a complement to a 
        repository. We suggest that there may be benefits in allowing 
        the linkage provisions to be the subject of negotiations 
        between the waste management organization and potential storage 
        facility hosts, subject to final approval by Congress.
          3. And finally, although the Nuclear Waste Oversight Board 
        called for in Section 205 is generally consistent with our 
        Commission's recommendation for independent oversight of the 
        waste management organization, we believe its membership should 
        be expanded. The oversight board as set forth in Section 205 
        would only include members from the federal government, 
        presumably subject to regular turnover on a political cycle. We 
        believe that broader representation and further assurance of 
        stability would be appropriate. To achieve this end, we 
        encourage the committee to consider adding representatives from 
        outside of government, as called for in our Commission's 
        recommendations. Non-governmental members could come from 
        organizations contributing to the Nuclear Waste Fund, state 
        public utility commissions, the environmental non-governmental 
        organization community, representatives of workers involved in 
        the construction or operation of radioactive waste management 
        facilities, and others. This supplementation of the board's 
        membership would reinforce the federal commitment to a consent-
        based process.

    While we think these three differences between S. 3469 and our 
Commission's recommendations are important and are worthy of further 
consideration, we do not in any way want to imply dissatisfaction with 
the efforts of the committee. Chairman Bingaman, Ranking Member 
Murkowski and other Senators, particularly Senators Feinstein and 
Alexander, have shown great leadership in their willingness to engage 
in serious bipartisan discussions about the future of nuclear waste 
management in the United States. In a year presenting many demands on 
the Congress, we commend your attention to the problem of charting a 
new course for addressing nuclear waste.
Concerns about Lack of Administration Action
    I am unable to provide you with any insights as to the views of the 
Administration to our report because the Administration has not yet 
released an implementation plan in response to our recommendations. 
That plan was due at the end of July, so we cannot say for certain 
whether the Administration will demonstrate the same level of 
seriousness that is reflected in your draft legislation. Our Commission 
report was issued in January, and despite initial positive signals from 
the Administration, we have seen little in the way of concrete action. 
We are particularly disappointed to have received no formal reply to a 
December 2011 letter we sent the White House in which we urged action 
to provide assured access to utility waste disposal fees.
    In our letter and in our report we recommended several near-term 
actions that could be taken by the administration in cooperation with 
key committees in Congress and the Congressional Budget Office to give 
greater access to the nuclear waste fees going forward, while waiting 
for legislation--such as S. 3469--that would provide a comprehensive 
fix to the funding of the program. Failure to fix the funding problem 
could undermine key recommendations of the Commission. For example, the 
parallel storage and disposal programs we recommend could be in 
competition for limited funds instead of being mutually supportive, and 
a consent-based siting process that provides assurances to host 
communities that a storage facility or repository will be a positive 
asset could be undermined if access to a source of funding for promised 
benefits is not assured.
    Our Commission believed that fixing the funding problem is vital. 
We believe that steps towards implementation of near-term proposals 
that do not have to wait for comprehensive legislative action would be 
a clear and unmistakable signal that the Administration and Congress 
are willing to take the difficult yet necessary measures to put our 
nation's nuclear waste management program back on track and enable its 
success.
Conclusion
    In conclusion, and as we said to this committee in February, the 
national interest demands that our nuclear waste program be fixed. 
Complacency with a failed nuclear waste management system is not an 
option and the need for a new strategy is urgent. We believe the bill 
that Senator Bingaman has prepared represents a very useful starting 
point for an important discussion.
    Thank you for having us here today. We appreciate the opportunity 
to share our views on S. 3469 and we look forward to your questions.

     STATEMENT OF RICHARD A. MESERVE, PRESIDENT, CARNEGIE 
                    INSTITUTION FOR SCIENCE

    Mr. Meserve. Thank you, General.
    We are pleased to see that Senator Bingaman's draft 
legislation incorporates many of the changes to existing law 
that will be required to implement the Commission's 
recommendations. In particular, Senate S. 3469 would implement 
the Commission's recommendations to authorize a consent based 
process for nuclear facility siting being conducted by an 
entity removed from the Department of Energy with unfettered 
access to nuclear waste fee payments and the balance of the 
Nuclear Waste Fund. The bill's provisions requiring development 
of generic radiation protection standards for repositories and 
a mission plan for the Nuclear Waste Administration are also 
consistent with our recommendations.
    While the bill generally mirrors the Commission's 
recommendations, there are a few areas of difference that we 
believe are worth highlighting and exploring.
    First, the Commission recommended the establishment of a 
congressionally chartered corporation to carry out the waste 
program. The draft legislation proposes instead to create a 
Nuclear Waste Administration, an agency of the Federal 
Government, to carry out this role.
    While both approaches would assure appropriate focus, we 
recommended a federally chartered corporation in order to 
assure the necessary management stability for the long term 
task of advancing the waste program and to provide a degree of 
isolation from short term political pressures. In particular, a 
new waste management organization will need the leadership of a 
strong chief executive with exceptional management, political 
and technical skills and experience and tenure that extends 
longer than the political cycle, objectives that may be more 
easily achieved through a corporation than through a Federal 
agency. We urge that the committee reconsider this aspect of 
the legislation.
    Second, the proposed legislation places limits on the 
amount of spent fuel that can be accepted for consolidated 
storage prior to congressional ratification of a consent 
agreement for a repository.
    We understand that this provision reflects a concern that 
any consolidated storage facility could become a de facto 
disposal facility which is why existing law prohibits 
construction of a storage facility before construction 
authorization has been issued for a first repository.
    The Blue Ribbon Commission concluded and I'm quoting, 
``that the current rigid legislative restrictions should be 
eliminated.'' But we also emphasize and I'm quoting again, 
``the challenge of establishing positive linkages such that 
progress on storage does not undermine, but rather supports 
progress on repository development remains an important one.''
    Our review did not lead us to recommend any specific 
linkages because we concluded that the volume of fuel to be 
accepted in consolidated storage could be one of the many 
elements of negotiation between the Nuclear Waste Management 
Organization and potential host governments. We appreciate that 
the bill allows consolidated storage to begin at a scale 
sufficient to provide for acceptance of all the spent fuel from 
shut down reactors, as we recommended. That full scale storage 
could begin considerably earlier than is possible under current 
law.
    However, we encourage the committee to give careful 
consideration to alternative approaches for ensuring that a 
storage facility is a complement to a repository. We suggest 
that there may be benefits in allowing the linkage of 
provisions to be the subject of negotiations between the Waste 
Management Organization and potential storage facility hosts 
subject, of course, to final approval by Congress.
    Third, we note that although the Nuclear Waste Oversight 
Board, called for in section 205, is generally consistent with 
our Commission's recommendation for independent oversight of 
the Waste Management Organizations. We believe its membership 
should be expanded. The Oversight Board, as set forth in 
Section 205, would only include members from the Federal 
Government, presumably subject to regular turnover on a 
political cycle. We believe that broader representation and 
further assurance of stability would be appropriate.
    To achieve this end we encourage the committee to consider 
adding representatives from outside the government, as called 
for in our Commission's recommendations. Non-governmental 
members could come from organizations contributing to the 
Nuclear Waste Fund, state public utility commissions, the 
environmental non-governmental organization community, 
representatives of workers involved in the construction or 
operation of waste management facilities and others. This 
supplementation of the board's membership would reinforce the 
Federal commitment to a consent based process.
    While we think that these differences between S. 3469 and 
our Commission's recommendations and are important and are 
worthy of further consideration, we do not in any way want to 
imply dissatisfaction with the efforts of the committee.
    Chairman Bingaman, Ranking Member Murkowski and other 
Senators, particularly Senators Feinstein and Alexander, have 
shown great leadership in their willingness to engage in 
serious bipartisan discussions about the future of nuclear 
waste management in the United States. In a year presenting 
many demands on the Congress we commend you for your attention 
to the problem of chartering a new course for addressing this 
important problem.
    Now I'll turn the microphone back over to General 
Scowcroft.
    General Scowcroft. We are unable to provide you with any 
insights as to the views of the Administration to our report 
because the Administration has not yet released an 
implementation plan in response to our recommendations. That 
plan was due at the end of July, so we cannot say for certain 
whether the Administration will demonstrate the same level of 
seriousness that is reflected in your draft legislation.
    Our Commission report was issued in January. Despite 
initial positive signals from the Administration, we have seen 
little in the way of concrete action. We are particularly 
disappointed to have received no formal reply to a December 
2011 letter we sent to the White House, in which we urged 
action to provide assured access to utility waste disposal 
fees.
    In our letter and in our report we recommended several near 
term actions that could be taken by the Administration in 
cooperation with key committees in Congress and the 
Congressional Budget Office to give greater access to the 
Nuclear Waste Fees going forward while waiting for legislation, 
such as S. 3469, that would provide a comprehensive fix to the 
funding of the program. Failure to fix the funding program 
could undermine key recommendations of the Commission.
    For example, the parallel storage and disposal programs we 
recommend could be in competition for limited funds instead of 
being mutually supportive. A consent based siting process that 
provides assurance to host communities that a storage facility 
or repository will be a positive asset, could be undermined if 
access to a source of funding for promised benefits is not 
assured.
    Our Commission believed that fixing the funding problem is 
vital. We believe that steps toward implementation of near term 
proposals, that do not have to wait for comprehensive 
legislative action would be a clear and unmistakable signal 
that the Administration and Congress are willing to take the 
difficult, yet necessary measures, to put our Nation's nuclear 
waste management program back on track and enable its success.
    In conclusion, and as we said to this committee in last 
February, the national interest demands that our nuclear waste 
program be fixed. Complacency with a failed nuclear waste 
management system is not an option. The need for a new strategy 
is urgent.
    We believe the bill that Senator Bingaman has prepared 
represents a very useful starting point for an important 
discussion.
    Thank you for having us here today. We appreciate the 
opportunity to share our views on S. 3469. We look forward to 
your questions.
    The Chairman. Thank you very much.
    Dr. Lyons, why don't you go right ahead?

 STATEMENT OF PETER B. LYONS, ASSISTANT SECRETARY FOR NUCLEAR 
                  ENERGY, DEPARTMENT OF ENERGY

    Mr. Lyons. Thank you.
    Chairman Bingaman, Ranking Member Murkowski and Senator 
Wyden, thank you very much for the opportunity to appear before 
you today to discuss nuclear waste management issues and S. 
3469. Thank you for your leadership on this important issue.
    Nuclear power is an integral part of the Administration's 
all of the above clean energy strategy. But for nuclear energy 
to remain a viable component of the Nation's energy portfolio, 
we must develop a sustainable fuel cycle with a well understood 
and well accepted fuel management strategy. While used fuel is 
safely stored today, the current storage certainly does not 
represent a permanent solution. Because acceptance of waste did 
not begin in 1998, a substantial cost has been presented to the 
taxpayers to reimburse utilities for the cost of ongoing 
storage that will continue to grow until the government 
fulfills its obligations.
    The Blue Ribbon Commission on America's Nuclear Future or 
the BRC worked through a public, open and transparent process 
on recommendations to support a new strategy for the back end 
of the nuclear fuel cycle. Senator Bingaman's bill addresses 
many of the BRC's recommendations. While the Administration is 
still finalizing its framework for the management of nuclear 
waste, there are key elements that any strategy must address.
    No matter what organization, funding, storage and disposal 
decisions are made moving forward the consent based approach to 
siting endorsed by the BRC is critical to success. The 
Administration supports working with Congress to develop a 
process that is transparent, adaptive and technically sound. 
Experiences in other countries indicate that a consent based 
process, developed through engagement with key stakeholders and 
with significant public involvement offers the greatest 
probability for success.
    The BRC recommended the establishment of a new, single 
purpose organization for management and disposal. The 
Administration agrees that some organizational change is needed 
to provide the stability, focus and credibility needed to build 
public trust and confidence.
    The BRC highlighted issues associated with the Nuclear 
Waste Fund. A new approach to funding should assure that the 
fees paid by taxpayers using nuclear generated electricity 
support the Nation's nuclear waste management strategy. In 
addition, the organization needs timely access to the funds 
necessary to execute its mission.
    Any new funding structure must balance increased funding 
flexibility with rigorous spending oversight while still 
providing accountability to the President and to Congress. 
Different models can achieve this goal. This will be an area of 
continued discussion between Congress and the Administration.
    The BRC recommended that the United States develop one or 
more consolidated storage facilities. Building such a storage 
capacity could enable the government to move more rapidly to 
fulfill its contractual responsibilities and thus reduce future 
liabilities. Storage can add security and flexibility to a 
system for permanent waste disposal. But as the BRC recommended 
some form of linkage between opening a consolidated storage 
facility and progress toward a repository is necessary so that 
the storage facility does not become a de facto permanent 
facility.
    The Administration supports exploring this issue with 
Congress. In addition the Administration supports the broad 
scientific and international consensus that a geologic 
repository is the most effective, permanent solution to 
disposition of high level wastes.
    The Administration agrees with the BRC that the Department 
should continue R and D on possible future fuel cycle options. 
In the near term the Department will move forward with R and D 
activities within the constraints of existing legislation.
    The Administration would again like to thank the BRC for 
their dedicated work in developing a path forward. They 
highlighted a need for changes in current law and the 
Administration will work with Congress to define a responsible 
and achievable path forward.
    In closing, the Administration thanks Senator Bingaman for 
his important contribution toward new legislation. It provides 
a strong base for mature dialog to continue.
    On a very personal note, Mr. Chairman, this may be the last 
time that I testify before you. We've interacted for many 
years, especially when I served on the staff of this committee. 
I've been honored with the opportunity to work with you and 
your outstanding staff on many important issues. Your 
dedication to public service, your thoughtful consideration of 
complex issues provides a superb model for public service.
    Thank you for your service to the Nation, sir.
    Thank you.
    [The prepared statement of Mr. Lyons follows:]

 Prepared Statement of Peter B. Lyons, Assistant Secretary for Nuclear 
                      Energy, Department of Energy

    Chairman Bingaman, Ranking Member Murkowski, and Members of the 
Committee, thank you for the opportunity to appear before you today to 
discuss nuclear waste management issues and S. 3469, The Nuclear Waste 
Administration Act of 2012. Thank you for your leadership on this 
important issue.
    Nuclear power is an integral part of our ``all-of-the-above'' 
energy strategy. It provides twenty percent of our nation's electricity 
supply, and the Administration is working to expand the safe use of 
nuclear power through support for new nuclear power plants 
incorporating state-of-the-art passive safety features as well as cost-
shared technical support for licensing two designs for small modular 
reactors. Nuclear energy is an important contributor to our nation's 
energy security, and promotes clean-energy jobs. Nuclear energy 
production also provides important environmental benefits by producing 
little carbon dioxide or conventional air pollutant emissions.
    The United States must develop a sustainable fuel cycle and used 
fuel management strategy to ensure that nuclear power continues to be a 
safe, reliable resource for our nation's long-term energy supply and 
security. Because acceptance of waste did not begin in 1998, as 
mandated by the Nuclear Waste Policy Act, a substantial cost has been 
presented to the taxpayers to reimburse utilities for the cost of 
ongoing storage and will continue to grow until the government fulfills 
its obligations.
    The Blue Ribbon Commission on America's Nuclear Future (BRC) 
released its final report on January 26, 2012. The Commissioners worked 
collaboratively and constructively--through a public, open and 
transparent process--on recommendations to support a new strategy for 
the back end of the nuclear fuel cycle. The Nuclear Waste 
Administration Act of 2012 addresses many of the BRC's recommendations, 
and while the Administration is still finalizing its framework for the 
management of nuclear waste, there are key elements that any strategy 
must address.

Organization
    The BRC recommended the establishment of a new, single-purpose 
organization charged with the management and disposal of high level 
waste and the associated interface with the waste generators. The 
Administration agrees that a new waste management and disposal 
organization could have advantages in terms of stability, focus, and 
other characteristics that will be important to future success. At the 
same time, it is evident that the success of any future waste 
management organization will be driven by many factors and unforeseen 
circumstances. The organizational form is only one of these factors. Of 
equal or greater importance are decisions about other organizational 
characteristics to ensure that the organization has adequate authority 
and leadership to execute its mission, and balances the need for 
independence of the organization with appropriate oversight mechanisms. 
Whatever form the new organization takes, organizational stability, 
leadership continuity, oversight and accountability, and public 
credibility are critical attributes for future success. The 
Administration looks forward to working with Congress to design a 
governance structure that meets these objectives.

Funding
    Following the Nuclear Waste Policy Act of 1982 (NWPA), utilities 
entered into contracts with the federal government, which agreed to 
accept and permanently dispose of utilities' used nuclear fuel in 
exchange for a fee that would be paid by ratepayers using nuclear 
generated electricity. All NWF spending is subject to annual 
appropriations and is required to compete with other priorities within 
the budget, even though the funds collected can only be used for 
purposes authorized under the NWPA. Since the enactment of the NWPA, $8 
billion has been appropriated from the NWF to date. The current balance 
of the NWF is estimated at $27 billion. Fee collections of more than 
$750 million annually combined with accrued interest will continue to 
grow the Fund.
    For any organization to be effective in the performance of this 
complex mission, it needs timely access to funds in the amounts 
necessary to execute its mission. The BRC highlighted this need noting, 
``.the success of a revitalized nuclear waste management program will 
depend on making the revenues generated by the nuclear waste fee and 
the balance in the NWF available when needed and in the amounts needed 
to implement the program.''
    Any new funding structure for this program will need to balance 
increased funding flexibility and rigorous spending oversight to help 
assure that the program is implemented in the most cost-effective 
manner possible, while still holding the organization accountable to 
the President and Congress. The Administration looks forward to working 
with Congress to find a solution that meets these objectives.

Disposal and Storage
    The Administration supports the broad scientific and international 
consensus that a geologic repository is the most effective permanent 
solution to dispose of high level waste. While this does not preclude 
any decision about future fuel cycle options, it is evident that a 
once-through cycle is appropriate for the foreseeable future. Cost, 
proliferation risks, environmental concerns, economics, and technology 
limitations are some of the issues associated with closing the fuel 
cycle in the U.S. through use of recycling. The Administration agrees 
with the BRC that any new organization should focus on the development 
and operation of storage and repository facilities while the Department 
continues R&D on possible future fuel cycle options.
    The BRC recommended that the U.S. develop one or more consolidated 
storage facilities. Building consolidated storage capacity could enable 
the government to move more rapidly to fulfill its contractual 
responsibilities and thus reduce future liability costs. While 
consolidated storage can add security and flexibility to a system for 
permanent waste disposal, some form of linkage between opening a 
consolidated storage facility and progress toward a permanent 
repository is necessary so that potential host states and communities 
for consolidated storage facilities are not saddled with a de facto 
permanent facility. The Administration supports exploring this issue 
with Congress.

Consent-Based Siting
    No matter what organization, funding, and storage decisions are 
made moving forward, a consent-based approach to siting is critical to 
success. The Administration supports working with Congress to develop a 
consent- based process that is transparent, adaptive, and technically 
sound. The BRC emphasized that flexibility, patience, responsiveness 
and a heavy emphasis on consultation and cooperation will all be 
necessary in the siting process and in all aspects of implementation. 
Experiences in other countries indicate that a consent-based process--
developed through engagement with states, tribes, local governments, 
key stakeholders, and the public--offers a greater probability of 
success. DOE is currently evaluating critical success factors in the 
siting of nuclear facilities in the U.S. and abroad to facilitate the 
development of a siting process.

Activities in FY 2012 and Proposed in FY 2013
    There are a number of key R&D areas that the Administration has 
recognized as foundational to the nation's nuclear waste management 
program, and was pursuing even prior to the release of the Commission's 
recommendations. Planned activities in the areas of transportation, 
storage, and disposal align with the BRC suggestions and in the near 
term, the Department will move forward with R&D in these areas, within 
the constraints of existing legislation.
            Transportation
    The Department is evaluating the inventory, transportation 
interface, and shipping status of used nuclear fuel at nuclear power 
sites. The Department is re-engaging the regional transportation groups 
to understand stakeholder issues as we work to finalize the policy and 
procedures for providing technical assistance and funds. The 
Administration will also draw from the successful transportation 
approaches used to support shipments to the Waste Isolation Pilot Plant 
(WIPP) in New Mexico.
            Storage
    The Department is evaluating the possibility of direct disposal of 
existing storage containers in various geologic media; understanding 
material degradation in storage and transportation systems over 
extended periods of time; and the development of standardized canister 
concepts for transportation, storage, and disposal.
            Disposal
    The Department is conducting R&D related to disposal in the 
following areas: evaluating back-filled engineered barriers systems and 
materials; evaluating geologic media for their impacts on waste 
isolation; evaluating thermal management options for various geologic 
media; and developing a R&D plan for deep borehole disposal. The role 
of retrievability in the geologic disposal of nuclear waste remains an 
important issue that may need further consideration.

Closing
    The Administration would like to thank the BRC Commissioners for 
their dedicated work in developing a path forward in nuclear waste 
management. The BRC highlighted the need for changes in current law and 
the Administration thanks Chairman Bingaman for his important 
contribution to moving the discussion forward with this new 
legislation. The Nuclear Waste Administration Act of 2012 provides a 
base from which our dialogue can continue and the Administration 
remains committed to working with Congress to define a responsible and 
achievable path forward to manage our nation's used nuclear fuel and 
nuclear waste.

    The Chairman. Thank you very much. Thank all 3 witnesses 
for excellent testimony.
    Let me start with a few questions.
    I think all of you have highlighted this issue of linkage 
which is a concern that, I think, all of us here in the 
Congress, in the Senate who worked on this issue, have tried to 
focus on as well.
    I think there's an agreement that we need a permanent 
geologic repository.
    There's an agreement that there's a need to provide storage 
until the repository is available.
    Third, that there's a need for a mechanism to ensure that 
the temporary storage facility does not take the place of a 
long term repository and end up becoming a de facto permanent 
solution to this problem.
    So what we seem to disagree on is what that mechanism ought 
to be. I think it's important that Congress identify the 
mechanism and put it into the law whether the one that I 
propose in this legislation is the best one will be for a 
future Congress to decide. But at least this has the advantage, 
as I think some of you have acknowledged, of providing more 
than 3 times as much storage capacity as the shut down reactors 
need and also of allowing full scale storage to begin 
considerably earlier than is possible under current law.
    You recommend that we leave the linkage question to the 
state or community hosting the storage facility to negotiate, 
presumably in the form of deadlines or volume limitations. I 
guess one obvious question is what happens if a state is 
willing to host a storage facility without linkages? Should we 
then abandon a repository program if the state is willing to 
host a storage facility without requiring any linkage?
    Another question is what happens if a host state insists on 
linkages but the repository is not built? How would the state 
enforce its linkages? By sending the waste back to the 
utilities that generated the waste or by fines or by damages? 
Would that not just put us right back where we are today with 
the taxpayers liable for billions of dollars of damages because 
we do not have any repository?
    So those are concerns that I have. I'd just welcome 
comments from any of the witnesses about how we resolve these 
issues. If we don't put something in the Federal law that 
establishes a linkage and we just say it's up to each 
individual jurisdiction or state to negotiate to require that 
linkage, to me that's a very thin read to hang our prospects of 
getting a future repository built on.
    Dr. Meserve, did you have a perspective on that?
    Mr. Meserve. Let me say, I think that, as you've indicated, 
the linkage point is a crucial one. It is very important to 
evaluate it. It is completely true that a storage facility is 
not an alternative to a repository.
    We need a repository and storage may well be something that 
is safe for an extended period of time. But it is not the long 
term answer. So we do need to make sure that we have incentives 
and a process by which we achieve a repository.
    I think our concern about--with the draft legislation was 
in part on the severe constraint that the linkage would impose. 
As I understand the draft legislation, there are 2 constraints.
    One is that before the passage of the act any repository 
that, excuse me, any storage facility that was basically 
undertaken would be limited to a limited volume of material. 
But that after the act is passed there could not be a storage 
facility until a consent agreement is ratified by the Congress.
    So you have a situation in which we have something like the 
current law that storage just couldn't happen once the statute 
passed absent a repository consent agreement actually subject 
to ratification.
    One of the things that we tried to emphasize in our report 
was the crucial importance of adaptability. So I think that I'm 
trying to express, although we recognize there were a need for 
linkages, I think somewhat more flexibility might be 
appropriate. I would be concerned after the statute is passed 
of an absolute rigid requirement that holds up a storage 
facility given the many benefits that we see of having in terms 
of storage.
    The Chairman. Let me just ask on that. My impression is 
that, what our proposed legislation calls for, is that if there 
is in fact a storage facility established under the language 
passed in the Appropriations bill prior to the enactment of 
this bill, that storage facility could continue to be 
constructed. That storage facility could accept waste. But it 
could only accept waste up to the limit of the ten million, or 
the ten thousand ton number.
    Mr. Meserve. That's correct.
    The Chairman. So what we are doing is we're saying that at 
some point you have to quit moving waste to a storage facility 
until you can go ahead and sign an agreement to pursue a 
repository. But is that your understanding so we don't have a 
disagreement about what the bill calls for?
    Mr. Meserve. That is my understanding. Although I think the 
legislation goes further than that. That if we do not 
establish, you're quite correct, that if under existing law we 
build a storage facility the statute would limit the amount of 
material that could go to it.
    If we don't establish such a storage facility or are unable 
to do so within--by the time this statute is passed, my 
understanding of the language is that there is an absolute 
prohibition on proceeding with the storage facility until there 
is a consent agreement that is ratified by the Congress. So 
that there is a limited window for a storage facility that the 
statute provides, but that window closes if you haven't been 
able to exploit the opportunity to establish a storage facility 
before enactment.
    The Chairman. I think that's wrong. But at any rate, I 
appreciate that clarification of the way you're reading it.
    Mr. Meserve. But to come back to your basic question. It 
seems implausible to me that any community that would enter 
into an agreement with a storage, for a storage facility 
without some understanding that it is for a limited term. So 
you're first hypothetical that of a situation in which a 
community agreed for storage and didn't establish any linkage 
would seem to me to be unlikely except in the circumstance 
where the community also wanted to be a disposal facility.
    In that circumstance you'd--and the bill encourages the new 
Administration to have a joint facility for both storage and 
disposal. In that circumstance I think that, you know, you may 
have a need for establishing rigid linkages, maybe less than 
otherwise would be the case because it would be in that 
community's interest as part of the agreement to make sure that 
there is a disposal facility and that their aggressive means 
that are included in the consent agreement to assure that that 
proceeds.
    There also is a--you asked the question well what if there 
were linkages and we just didn't have a disposal facility? I 
think that the answer for that is that is a situation, of 
course, we confront today with regard to government commitments 
that have not been fulfilled. The answer to that has been 
rather severe penalties that the government pays to proceed to 
put pressure to make sure that Federal commitments are 
fulfilled.
    The Chairman. Senator Murkowski.
    Senator Murkowski. Let's continue talking about the consent 
based approach because I think as we've discussed this that's a 
logical, certainly more doable way to achieve the goal here 
when we're talking about our nuclear waste repository. There's 
been a lot of focus on Sweden as an example where consent based 
approach was workable. But it's my understanding that within 
Sweden the situation there was that the municipalities that 
agreed were already host to nuclear facilities.
    So it kind of begs the question whether or not we're more 
likely to achieve a consent based approach or acceptance from a 
state or a government, local government, that has existing 
nuclear facilities. So the question to you, Mr.--General 
Scowcroft and Dr. Meserve, is when you were considering the 
recommendations within the BRC did you, were you, able to 
identify locations that currently host nuclear sites that also 
have the viable geologic potential to be a repository site? Was 
this part of the consideration when you advanced the concept of 
a consent based approach?
    Mr. Meserve. We did not undertake an examination of any 
particular site or of the siting factors. So we did not do any 
kind of a study as to the regions which might have appropriate 
geology to be a disposal facility. We viewed that as being 
outside our charge and was not something that we did.
    I think it is, in fact, the case that communities that have 
experience with nuclear facilities and have had good experience 
with them may be more likely to be prepared to undertake 
becoming a storage or disposal facility. But I wouldn't 
prejudge that matter. I think that there may well be some other 
communities, although perhaps it's an easier task at a place 
that already has such experience because we have many such 
regions in the United States.
    We have, you know, 65 locations where we have nuclear power 
plants and many other DOE facilities where the people have 
experience. So and the--although there are geologic constraints 
on the siting, there are, I think, diverse, my personal view is 
that there are diverse geologies that could be appropriate for 
a disposal facility in that it's not like there's a unique 
region in the United States is the sole one we could consider 
for a disposal facility. I think there are many areas that may 
well be appropriate.
    Senator Murkowski. Dr. Lyons, the comment has been made 
that the Administration has failed to meet the timeline for the 
implementation plan which I understand was due July 31. Also 
has failed to reply to this letter back in December of last 
year regarding a waste disposal fee. Can you give me some sense 
as to what actions the Administration has taken to date to 
follow up on the Blue Ribbon Commission recommendation?
    I think the words that you used were you're developing a 
framework. What does that mean? When might we expect some kind 
of an implementation plan? Where are you?
    Mr. Lyons. There's been very substantial work, Senator, 
within the Administration, within the Department toward 
developing a framework or a strategy for the Administration's 
response to the BRC. That work does continue. I think it's at 
least nearing the conclusion.
    It's a complex issue, a very important issue. We're working 
very diligently to make sure that it is done in a very 
responsible way. The effort is very much ongoing.
    As far as the letter that the General referred to, I'll 
need to check on that. I'm not aware of the details of this 
letter to which a response was not received. I'll certainly 
check on that and be happy to either inform the committee and/
or the General on the status of that.
    As far as actions that we are taking. There's a wide range 
of R and D activities that we can undertake under existing 
legislation ranging from work on characterization on a generic 
basis for different repository media, working on some of the 
transportation issues, a variety of dry cask issues. But we 
are--our R and D now must be framed within the existing 
legislation.
    Senator Murkowski. If the implementation due date or the 
implementation plan due date was July 31 and you have now 
missed that by 2 months. When do you expect that you might be 
able to produce that?
    Mr. Lyons. I can't provide a specific date, Senator, other 
than it is under careful review within the Administration. I 
think it will be soon. But I am not in a position to provide a 
specific date.
    Senator Murkowski. Do you know who in the Administration 
would be able to give us better guidance on that?
    Mr. Lyons. It's a broad process within the Administration 
with many people involved. I'm giving you the best information 
I can, Senator. I don't know how to provide any more 
specificity.
    Senator Murkowski. If you can provide us a better estimate. 
Are we a month away? Are we 6 months away or a year away? I 
think that that would be helpful.
    Mr. Lyons. We'll certainly work to provide that level of 
detail back to you.
    Senator Murkowski. Thank you, Mr. Chairman.
    The Chairman. Senator Wyden.
    Senator Wyden. Thank you, Mr. Chairman.
    It's been an excellent panel. I want to start with you, if 
I might, Dr. Meserve. I'm particularly struck.
    You have expertise obviously in safety issues as a result 
of being at the NRC. I'm also very interested in the work that 
you've done with spent fuel pools because this has great 
implications. The work you all did after 9/11.
    This has great implications for Fukushima. So I'm 
interested in following up with you on that as well. But I want 
to make my first question, the one that I think is central to 
this debate and that's really striking the balance.
    You've got safety issues if you keep the waste onsite. 
You've got safety issues if you ship it somewhere. You have to 
be sympathetic to the fact that rate payers have paid tens of 
billions of dollars for a Federal high level waste repository. 
They haven't gotten one.
    Tell me, in effect, you're in our shoes. How do you strike 
that balance between these safety issues which have to be 
paramount. There are really 2 types of them as I suggested and 
the question of the rate payer issue? How would you strike that 
balance?
    Mr. Meserve. I would say that I very much appreciate the 
question.
    It is something with which the Nuclear Regulatory 
Commission has to grapple all the time in that there's certain 
requirements for assuring adequate protection of the public 
health and safety that are absolute minimum requirements 
regardless of cost that have to be fulfilled. If you--there are 
requirements you might impose that are above and beyond that 
level, you may well get to sort of looking at the costs verses 
the benefit kind of analysis to make those decisions.
    With regard to the spent fuel issue, I should say that we 
did recommend a storage facility. There would be costs and 
risks associated with the transport of the material twice in 
the sense that if one sends it first to a storage facility and 
then has to transport it a second time. So that there are some 
additional risks associated with transporting it twice rather 
than just directly to a facility that could take it for 
disposal.
    The experience has been that after extensive work on 
transport that it is a remarkably record--it's a remarkable 
record of safety for that transport. DOE has done a lot of it. 
There's been some in the civilian sector as well.
    That there are--that the benefits of having a storage 
facility are sufficiently great. We see that the additional 
risk associated with transport, in the view of the Commission, 
was vastly outweighed by the benefits of having a storage 
facility in order to meet the commitment to those communities 
that have, all they have is spent fuel that's sitting on them.
    There are sites that may not be the optimal place to 
actually store it for long term. There are cost advantages for 
centralizing. There's research advantages. There's greater 
capability that could be at a centralized storage facility for 
monitoring and for undertaking R and D on spent fuel.
    So there's lots of things that we think that, in the 
tradeoffs, that make that safety balance something that's worth 
doing with regard to a storage facility.
    Senator Wyden. Let me ask you one other one.
    Senator Cantwell and I are particularly concerned in our 
part of the world because Hanford adjoins the Columbia River. 
The Columbia River is literally, our life blood in terms of 
economics and recreation and fish, a whole host of issues. 
Folks in our part of the world and also Idaho and South 
Carolina and other parts of the country were hoping that high 
level waste from the weapons programs, the nuclear weapons 
programs at Hanford and other locations, would go to a 
permanent repository. Obviously that has not happened. We have 
not seen it.
    In your view, how important is it to make a priority out of 
ensuring that these defense wastes, these dangerous defense 
wastes--and by the way, Mr. Chairman, I would ask unanimous 
consent at this point to put into the record an article from 
Monday's Wall Street Journal which documents the continuing 
problems at Hanford.
    The Chairman. We will include that.
    Senator Wyden. Thank you, Mr. Chairman.
    The question for you, Dr. Meserve, if I could, is how 
important is it in your view that you prioritize this question 
of cleaning up the defense waste? It's important in our part of 
the world, Oregon and Washington. But I think it's important 
for many other Americans as well and to ensure that you have 
that priority by putting in place a permanent repository for 
these dangerous defense wastes.
    Mr. Meserve. Let's say that your question goes somewhat 
beyond what the Commission examined. I can give you a personal 
view, but I can't speak for the Commission.
    I think it is very important for many of these DOE 
facilities to make sure that you have stabilized the waste in a 
fashion that they are not subject to escaping. Your concerns 
that you have at Hanford are ones that, of course, I and many 
others share that there's a lot of waste that's in single wall 
tanks with the tanks deteriorating. The danger that that 
material will escape. So it's very important, I think, to be--
to get those materials under control, stabilized, vitrified and 
put into a form where they are protected from the environment.
    I think the question that's a separate question, in my 
view, as to whether one it's essential that you then transport 
from someplace for ultimate disposal. If they, I think, that 
they could well be, once the material is stabilized could be 
stored at the Hanford site in a way that would be safe and 
secure.
    I realize that there are legal prohibitions on that as a 
result of the consent agreements. So there are little 
dimensions to this issue. But I don't doubt that there is a way 
to be able to store those materials safely at the Hanford site 
awaiting their ultimate disposal. I completely agree that we do 
have to find a disposal facility.
    The important thing is to find a way to stabilize them 
first.
    Senator Wyden. My time is up. I can assure you that storage 
on the banks of the Columbia River is not seen as a permanent 
solution in my part of the world.
    Thank you, Mr. Chairman.
    Mr. Meserve. Nor should it be.
    The Chairman. Thank you.
    Senator Cantwell.
    Senator Cantwell. Thank you.
    Dr. Meserve, I think you're, maybe you're, clarifying your 
last. You went from a possibility to not likely to no.
    I mean, here's the issue. It's unacceptable for this waste 
to be stored at Hanford. It's unacceptable.
    So last hearing I think you were here, General Scowcroft 
with our former colleague, Senator Domenici and Lee Hamilton 
and others, where we started talking about separating the 
defense waste from--well we got into a format where we couldn't 
get more feedback from the Blue Ribbon Commission. So I just 
want to highlight that we are talking about progress at Hanford 
in the context of they could have vitrification done by--
starting the process by 2019.
    So here is this military waste that is different and is not 
made for reprocessing in the context of the witches brew of 
materials that's there. So we're not going to reprocess it. So 
talking about retrieval of that particular waste is not, in my 
mind, a priority.
    So why shouldn't we be looking at a separate treatment 
process or something that could be disposed of much more 
rapidly? Obviously we're, lot of people, are talking about salt 
formations is cheaper, readily available, something that could 
be done now. Why shouldn't we be looking at that?
    General Scowcroft.
    Mr. Meserve. In fact our Blue Ribbon Commission report did 
recommend that that very issue of whether the defense waste 
should be co-mingled with the spent fuel and go to a single 
repository is an open question in our view. The current policy 
is that all that material should go to a single repository.
    We urged in our report that that issue be re-examined. 
That, as you indicate, the characteristics of the defense waste 
are different from the spent fuel. They would not be retrieved 
for possible reprocessing. They're typically much cooler and 
therefore the challenge of disposal is much easier. So you can 
have options that might be available for that material that are 
not appropriate for spent fuel.
    We did suggest that this was something that ought to be the 
policy that was established in the Reagan era that all these 
materials should go to a single repository is something that 
should be re-examined because the circumstances are now 
different.
    Senator Cantwell. General Scowcroft, did you want to add to 
that?
    General Scowcroft. No, that's basically. We did not raise 
all that issue ourselves. We ran out of time, but did suggest 
that that be done.
    Senator Cantwell. We look at it as we have had this burden 
for 7 years in the Tri-Cities.
    General Scowcroft. Yes.
    Senator Cantwell. Now we'd like to get to move on to the 
next chapter of economic development. So here we are about 
ready to get caught up in this large debate again when this 
could be separated out, dealt with and move forward. It is the 
largest cleanup site, probably in the entire world.
    So getting it done and getting it tackled in the most 
efficient way, in the most cost effective way means not getting 
it tangled up in this larger debate. So I hope that we move 
forward on this.
    I would just say, Mr. Chairman, I can't move forward on any 
legislation that doesn't have a path for separating the 
military waste and getting this done. This is what we need to 
do. We need to move forward on it.
    So I thank the Chairman.
    The Chairman. Senator Franken.
    Senator Franken. Thank you, Mr. Chairman. Thank you, 
Gentlemen.
    The Columbia River is a very important river. I appreciate 
that both members to my left here are concerned about that. We 
have a river that starts in Minnesota called the Mississippi 
River and we kind of think that's important too. I don't know 
if you've heard of it.
    Yes, OK, good.
    Prairie Island has a nuclear reactor there. I do want to 
acknowledge that the Secretary Ron Johnson of Prairie Island 
Indian Community is here today. Their storage is becoming a 
very urgent problem.
    Dr. Lyons, you studied what was going on at Fukushima. 
There is real concern over spent fuel pools. There was a fear 
of the loss of the cooling water in those pools could result in 
some of the spent fuel catching fire and spreading radiation. 
Fortunately it didn't happen in that case.
    But it does highlight the need, I think, for better 
monitoring of the pools to track the status of cooling water. 
Without cooling water there is, of course, the risk of 
overheating and a potential catastrophic release. That's why I 
think it's important to transfer that spent fuel from pools 
into dry cask storage.
    My question is typically spent fuel sits in these pools for 
at least 5 years, sometimes much longer. But I understand that 
some spent fuel has been transferred in less than, sooner than, 
the 5 year waiting period. Can the current waiting period be 
shortened?
    Mr. Lyons. Perhaps several responses, Senator Franken.
    You mentioned the concerns at Fukushima on the status of 
spent fuel pools. You mentioned that as it turned out the pools 
were probably OK, but they did not have instrumentation to 
identify that. As you're probably well aware this is an NRC 
issue. But the NRC as they issued their first 3 orders post 
Fukushima one of those 3 orders demands improved 
instrumentation on spent fuel pools in the United States which 
I think is a very wise move by the NRC.
    I think your specific question is can you transfer sooner 
than 5 years?
    Senator Franken. Yes.
    Mr. Lyons. I might note that Sweden transports its fuel in 
dry casks 1 year after it's been moved from the reactor. So can 
you do it? Certainly.
    Those are very specialized casks in order to maintain 
appropriate cooling during the transfer. So if your question 
is--to specifically answer your question, can you do it sooner 
than 5 years? Yes, but it takes specially developed casks to 
handle the cooling.
    Senator Franken. But we have those casks? I mean, they 
exist.
    Mr. Lyons. I am not aware of the existence of those casks 
in the U.S. But the design exists.
    Senator Franken. The technology exists and OK.
    Now I've seen at Monticello these above ground casks, but 
they can also be stored underground. Am I right?
    Mr. Lyons. I may not have followed that question, sir.
    The current--most of the casks in the country are the 
vertical, free standing.
    Senator Franken. Right.
    Mr. Lyons. On a concrete pad. There are some exceptions to 
horizontal concrete emplacements as well that are also 
acceptable. But whatever they are they, of course, go through 
the NRC safety review.
    Senator Franken. OK.
    Let me ask this. Can we--we're looking for a way to 
transport the spent fuel, if it's in casks, to a secondary 
location and then from the secondary location to a tertiary 
location eventually. Is that the basic?
    Any one of you. That's a yes, right? I mean, that's a 
possibility that we're looking at.
    Mr. Lyons. Yes, except it would be quite possible to 
request proposals from locations and States, maybe tribes, that 
are interested in providing both storage and repository which 
would avoid that interim transportation step. But that would 
remain to be seen as we move through siting processes.
    Senator Franken. OK.
    Is there--I know my time is up. But can I just pursue this 
a little bit?
    The--and I'm sorry I wasn't here for the other questions 
and testimony. Are we prioritizing now finding one enormous 
storage facility like Yucca or are we prioritizing a kind of 
interim plan to site some of this waste in regional areas and 
then ultimately going to one large site?
    Mr. Lyons. Senator, I think the way I'd respond is that 
remains to be determined through the legislative process. The 
different possibilities you outlined, any one of those, would 
require a change in the Nuclear Waste Policy Act. So Congress 
and certainly the Administration looks forward to working with 
Congress would define the process that you have questioned 
here.
    Senator Franken. OK, because it seems to me that there's 
becoming some--I mean, there's a time question here. There's a 
question of when this stuff is going to happen. We have to 
determine what order we do things. What is the most feasible in 
the not so long term.
    I mean, we have a short term problem. We're beginning to 
have a short term problem, certainly Prairie Island and 
certainly at other reactors in this country.
    Mr. Lyons. Senator, can I respond to that?
    Senator Franken. Yes, yes.
    Mr. Lyons. I think your comments highlight the importance 
of legislation. In order to move forward the Department has 
very limited options under the existing legislation.
    Senator Franken. Thank you.
    The Chairman. Let me just ask a couple other questions 
either to this first one would either for General Scowcroft or 
Dr. Meserve, whoever would want to respond. I think it's an 
obvious point. But I think it's useful to put it on the record.
    This consent based process that the Commission is 
recommending has the consent of the local jurisdiction and the 
State as an addition to the determination of technical 
suitability, as I understand it. There is no effort or no 
suggestion by the Commission that there should be less of a 
requirement for technical suitability either for a storage, 
location of a storage facility or location of a repository. We 
would not be in any way substituting the consent of the local 
jurisdiction for the requirement that it meet all the technical 
requirements.
    Is that an accurate description?
    General Scowcroft. Yes, I think that is an accurate 
description. In other words the suitability of the site would 
come first and then the consent process.
    The Chairman. I appreciate that.
    Let me ask Dr. Lyons one other question.
    Current law and the Department's contracts with utilities 
commit the Department of Energy to dispose of the spent fuel, 
not stopping--not storing it until it can be reprocessed, but 
rather disposing of it. The Blue Ribbon Commission's report 
affirms that view. This legislation that I've introduced 
affirms that view.
    The Department is clear, as I understand it, that 
reprocessing is not a preferable alternative to deep geologic 
disposal of spent fuel at this time or in the foreseeable 
future. Is that an accurate interpretation of the 
Administration's position?
    Mr. Lyons. Yes, Senator, that is an accurate 
interpretation. We have strong research programs that are 
looking at different reprocessing approaches. If reprocessing 
were to become possible within the country, I think it would be 
based on many considerations certainly environmental, economic, 
would be at least some of those considerations. Non-
proliferation would be another important consideration.
    With the technologies available today, yes, we see that for 
the foreseeable future the once through cycle moving directly 
toward disposal is the appropriate one.
    If I could add just one comment though, sir, on the 
question you just asked about consent basing. One thing I found 
fascinating yesterday was the announcement from Canada that as 
they went out on a consent based approach for a repository they 
had 19 communities volunteer to be evaluated. That's at least--
that's just the start of the process. But I found it very 
interesting.
    The Chairman. I agree. But it was, as you point out, it's 
one of the first steps in a very multi-step process that they 
intend to go through to decide where to establish a repository.
    Senator Murkowski, did you have additional questions?
    Senator Murkowski. Mr. Chairman, thank you.
    I mentioned in my opening statement the District Court of 
Appeals remand on the Nuclear Regulatory Commission's waste 
confidence decision. Can I ask each of you whether or not you 
believe that this decision will have any impact on either new 
builds or re-licensing of existing reactors? Where do you think 
this puts us?
    Mr. Meserve. Of course this action took place after the 
Blue Ribbon Commission completed its work. So I can give a 
personal view.
    I have read in the trade press that the NRC has indicated 
it will not proceed with issuing further licenses having to do 
with either renewals or for new plants until the waste 
confidence issue is resolved. But the expectation was that they 
are proceeding expeditiously to try to deal with the issues 
that have been raised by the Court of Appeals. The expectation 
is that it will not adversely impact the domestic industry, 
that they'll be able to take action soon enough that this will 
not be an inhibition on the process with regard to renewals and 
new plants.
    Senator Murkowski. Dr. Lyons.
    Mr. Lyons. Yes, Senator. It's my understanding that the NRC 
has laid out a 2-year schedule by which, through which they 
will be addressing the waste confidence issue. There's 
certainly been very strong statements in the trade press about 
the consensus within the NRC to move ahead on that schedule.
    If that schedule is maintained and I certainly agree with 
Dr. Meserve that I don't think there would be a significant 
adverse impact on the types of decisions you questioned.
    Senator Murkowski. Dr. Meserve, you mentioned the construct 
within Senator Bingaman's legislation about the 
Administration's set up. You spoke about a corporate approach 
verses Federal agency. As we were discussing both on the 
appropriators and the authorizers, the 4 of us discussing how 
such an entity might be formed. We kept coming back to how do 
we insure, to the greatest extent possible that there is an 
insulation from politics, from political manipulation.
    Are you satisfied that as this is constructed in the 
legislation before us that we have found that, the right spot, 
in terms of political insulation or is this an issue that we 
never be able to separate ourselves from the politics?
    Mr. Meserve. Let me say that the thrust of my comments was 
directed, in part, at I think that the proposal in the 
legislation would have the new waste organization be a Federal 
agency which presumably puts it under more direct influence by 
political process than otherwise would be the case.
    We had recommended a Federal corporation, in part, to 
provide greater insulation than would be--a Federal agency 
would have. But also there's an element of the task of dealing 
with spent fuel is a process that's going to take decades. 
Having stability in the policies and the management is 
important.
    As I indicated in my testimony it was a concern that if 
it's a Federal agency then there will be a turnover or likely 
turnover of the people on a political cycle of, you know, every 
4 years or sooner. That you may not have the kind of stability 
that you'd want to have in undertaking a long term task where 
you need a consistent strategy and knowledgeable people that 
have experience and sort of know where all the bodies are 
buried in terms of what problems that can arise.
    So we came down on the side of a Federal corporation but I 
recognize that there is a need for balancing this independence 
verses accountability and, you know, that these are hard 
questions. I don't want to--this is an area where I think that 
further conversation and exploration would be appropriate.
    Senator Murkowski. Thank you, Mr. Chairman.
    The Chairman. Senator Cantwell, did you have additional 
questions?
    Senator Cantwell. Just quickly, Mr. Chairman, if I could 
just to ask the panelists, Dr. Lyons or Dr. Meserve about 
whether you think cost effectiveness goes hand in hand with 
suitability of the site. I mean, I'm assuming that we should be 
looking at the cost effectiveness of different formations. I 
wanted to ask you specifically if you thought that salt 
formations could deliver a potential cost savings compared to 
other geological media types.
    Mr. Meserve. I think the way the current statute works for 
something that I would encourage the continuation is that 
there's some absolute minimum requirements that have to be 
satisfied regardless of cost. That then there may be some 
balancing around the edges of that. But that there are, I think 
the public would require assurance that you haven't taken the 
cheapest option because it's for reasons that it's cheap. That, 
you know, there are minimum.
    Senator Cantwell. We definitely know that well in the 
Northwest.
    [Laughter.]
    Senator Cantwell. I think we have argued with every energy 
secretary that's come up with an idea of doing something on the 
cheap. So anyway.
    Mr. Meserve. But and we did not, as I mentioned earlier, 
look into the specifics of various types of formations. It is, 
in fact, the only successful operating disposal facility for 
materials of a general nature, somewhat similar to spent fuel, 
is the waste isolation pilot project which is in salt, that's 
in New Mexico. Very successful facility.
    That certainly might be a--well, one would certainly look 
at salt as among the options that would be appropriate for a 
disposal facility.
    Senator Cantwell. Doctor.
    Mr. Meserve. But we did not look into the details of the 
geologic materials.
    Senator Cantwell. Dr. Lyons, did you have anything to add 
to that?
    Mr. Lyons. I appreciate your comment--your question, 
Senator.
    It seems to me that as we launch into any process along 
these lines, utilizing the consent base, is the first question 
will be which communities respond with which formations. Then 
subsequent to that will have to be the detailed evaluation of 
that geologic formation. I think the first criteria is 
certainly going to have to be the safety evaluations. But I do 
agree with you that yes, cost should be folded in.
    To me it's not the first order. The first order is going to 
be safety. But subsequent considerations, tiebreakers, if you 
will, certainly could involve cost as another issue. So 
environmental attributes may well be another. There may be many 
attributes that come into the evaluation as your proceed down 
through any selection process. Cost has to be one of them.
    Senator Cantwell. I was assuming suitability first and then 
looking at cost.
    To Dr. Meserve's point, I mean the National Academy of 
Science is, I think, in the 50s recommended salt as one of 
the--because of its great attributes of disposal. Now we, as 
you said, have this one site that is focused on salt. Somehow 
we, because we were on to looking at retrieval as a different 
question for, you know, this other kind of waste, we got off of 
this track. So I hope that we will bring light to the fact that 
it really is a viable option.
    So, thank you, Mr. Chairman.
    The Chairman. Senator Franken, did you have additional 
questions?
    Senator Franken. Yes.
    I, of course, favor a consent based approach. I just want 
to go on record as saying that.
    I'm just sort of wondering. There were alternatives to 
Yucca before Yucca was chosen. Am I right?
    Have those sites been considered again or we're not that 
far along in this process or where are we in terms of looking 
at what were the alternative sites to Yucca?
    Mr. Lyons. There certainly were alternative sites that were 
evaluated under the original legislation in 1982. It was then 
the amendments in 1987 that basically said, thou shalt only 
study or consider Yucca Mountain. The geologies of the other 
sites would be part of the generic evaluation of geologies that 
we're considering.
    But under a consent basis we're certainly not evaluating 
now any specific site. All we would be doing now is looking at 
generic issues associated with different geologies. Hopefully, 
in the very near term working with Congress on legislation that 
moves forward that allows us to get into the consent process. 
Then utilize the consent process to identify prospective sites 
and begin the detailed evaluation of the sites that come 
through that process, sir.
    Senator Franken. OK. Assuming that we do the legislation 
that would allow that do we--there must have been very close 
scrutiny of these alternative sites. Are any of them 
particularly promising?
    You know, what I'm kind of wondering about here is 
timeline. Because there's permanent and then there is 
permanent. You know, 200 years could be looked at as permanent 
but some of this stuff sticks around for a million years. 
That's really permanent. OK.
    So and what I'm really thinking about is, and this is comes 
to cost effective. If you find someplace that's cool that works 
for 200 years and we've got reactors round the country that 
are--have too much waste, that they are storing too much waste 
and they are by the Mississippi River or by the Columbia River. 
We can say, OK, for the next--what is the process of thinking 
about this in terms of what we select.
    What do we need first? What do we need to proceed to either 
going to regional? What is going to effectively solve the 
problems of the reactors that have more waste than they can 
deal with?
    Mr. Lyons. As the BRC recommended, one can move much more 
expeditiously toward consolidated storage than a repository. 
The Administration is certainly interested in exploring 
consolidated storage options along with repository options.
    But on a consent basis I believe the appropriate sequence 
of events has to be first, the proposals from the local, State, 
tribal entities, followed by the evaluation of the geology.
    Now we have generic programs either within the Department, 
particularly on salt, where the U.S. is clearly the world 
leader on the suitability of salt formations.
    We have international agreements where we are trying to 
draw on the experience, for example, Sweden and Finland, on 
granite based repositories, France and Switzerland on shale 
based repositories.
    So there's a substantial body of knowledge that already 
exists on the utilization of different geologies. We would 
bring that information to bear as we move through the 
evaluation of sites that are proposed initially through the 
consent based process.
    Senator Franken. OK.
    Thank you. Thank you, Mr. Chairman.
    The Chairman. Thank you all very much. I think this has 
been very useful testimony. We appreciate you taking time to be 
here.
    We do have a second panel. Let me introduce them. Dismiss 
this panel. But thank you again for your great service to the 
country.
    Panel 2 is--consists of Mr. Henry Barron, who is President 
and CEO of Constellation Energy Nuclear Group in Baltimore.
    Mr. Geoffrey Fettus, who is the Senior Attorney with the 
Nuclear Program of the Natural Resources Defense Council.
    We appreciate both of you being here. Why don't you go 
ahead and tell us the main points you think we need to 
understand about this issue. We're anxious to hear your views, 
starting with you, Mr. Barron. Go right ahead.

  STATEMENT OF HENRY B. BARRON, PRESIDENT AND CHIEF EXECUTIVE 
OFFICER, CONSTELLATION ENERGY NUCLEAR GROUP, LLC, BALTIMORE, MD

    Mr. Barron. Thank you, Chairman Bingaman, Ranking Member 
Murkowski, Senators Franken and Cantwell. I appreciate this 
opportunity to speak today about the recently introduced 
Nuclear Waste Administration Act of 2012.
    I'm Brew Barron. I'm the President and CEO of Constellation 
Energy Nuclear Group and also a member of the Nuclear Energy 
Institute's Executive Committee. We welcome the Senate's 
leadership in addressing the Federal Government's role in the 
safe and secure management and disposal of commercial used 
nuclear fuel through this legislation and this year's 
Appropriations process.
    While the proposed legislation represents a positive start 
to restructuring the Federal program, it does not yet fully 
address the comprehensive changes we believe are needed. Under 
the law the DOE should have begun removing used fuel from 
commercial nuclear power plant sites 14 years ago. DOE 
continues to collect over $750 million per year from nuclear 
utilities and consumers and the fund accrues almost $1 billion 
in annual investment income on the remaining balance of over 
$26 billion.
    The collection of nuclear waste fees continues even though 
the DOE, without any technical basis, terminated the Yucca 
Mountain repository project in 2010. The industry has sued the 
DOE challenging the continued collection of the nuclear waste 
fees in the absence of a Federal program. The Blue Ribbon 
Commission on America's Nuclear Future recognized the urgency 
of addressing the past failures of the Federal program and 
developed 8 key recommendations that the industry supports.
    It's the industry's view that consolidated storage is the 
quickest route to the Federal Government to begin moving used 
fuel from commercial and Federal sites around the country and 
to limit the increase in damage awards beyond the $20.8 billion 
estimated by the DOE through 2020. Consolidated storage would 
be an appropriate use of resources and a prudent financial 
investment while continuing to preserve geologic disposal. 
Industry is confident that if a consolidated storage program 
begins in 2013 a consolidated storage facility can be 
operational by 2020.
    We should not lose sight of the fact that consolidated 
storage is not a complete answer. A geologic repository will be 
required and should be pursued simultaneously and vigorously 
with the development of a consolidated storage facility. 
However, repository, regardless of whether it is a restarted 
Yucca Mountain project or a new site, will take much longer 
than a consolidated storage facility and is highly dependent on 
available funding. Once a consolidated storage facility is 
operational priorities should be given to removing used fuel 
from shut down commercial sites that no longer have an 
operating reactor.
    A new Federal management entity with the operating 
characteristics of a private corporation, with a clear vision 
and accountabilities and obligations to its investors should 
assume responsibility for this program. Congress and the 
Administration should retain oversight authority. But this role 
should be structured to avoid creating an impediment to the 
efficient operation of a new management entity.
    The Board of Directors should be appointed by the President 
with the advice and consent of the Senate for terms that would 
span at least 2 Presidential Administrations and the Chairman 
of this Board should be elected by its members.
    The Chief Executive Officer should be appointed by the 
Board and not subject to the political uncertainties associated 
with Presidential appointments so that he or she can focus 
entirely on the task at hand with the requisite attention to 
nuclear safety and security that is expected from all employees 
of a nuclear industrial company.
    The proposed legislation should be altered in this regard.
    To avoid perpetuating the current funding limitations of 
the Federal used fuel management program, the new management 
entity should be given unrestricted access to the nuclear waste 
fees and fund with Congressional oversight of efficient use of 
these funds continuing. This will enable the new entity to 
manage and fund the development of storage and disposal 
facilities consistent with standard industry practices for 
other large scale nuclear safety related processes.
    A consent based siting process is essential to developing 
enduring local and State support for new used nuclear fuel 
management facilities. This process should not be 
prescriptively defined but permitted to develop organically 
among the interested parties. Willing communities and States 
should be allowed to reach their own conclusions regarding 
whether such a facility is a benefit or a burden and negotiate 
accordingly.
    Success will be measured with an agreement among the 
interested parties that is ultimately legally enforceable.
    The proposed Nuclear Waste Administration Act of 2012 is a 
significant step forward and would attract broad stakeholder 
support. Immediate action is necessary to establish a 
sustainable program and reduce the liabilities that the 
taxpayer--to the taxpayer as quickly as possible. Congress must 
act.
    Thank you for the opportunity to testify. I'll be pleased 
to answer your questions.
    [The prepared statement of Mr. Barron follows:]

 Prepared Statement of Henry B. Barron, President and Chief Executive 
    Officer, Constellation Energy Nuclear Group, LLC, Baltimore, MD

    Chairman Bingaman, Ranking Member Murkowski, members of the 
committee, thank you for the opportunity to speak today about the 
recently introduced Nuclear Waste Administration Act of 2012. We 
welcome the Senate's leadership in addressing the federal government's 
role in the safe and secure management and disposal of commercial used 
nuclear fuel through this legislation and this year's appropriations 
process. While the proposed legislation represents a positive start to 
overhauling the federal program, it does not provide the comprehensive 
changes that are needed.
    Over the past 70 years, applications of nuclear fission--including 
research, medicine, naval propulsion and power production--have 
produced immeasurable benefits for our society. They have also resulted 
in a large and growing inventory of used nuclear fuel and high-level 
radioactive waste. The commercial nuclear industry and the federal 
government have demonstrated that they can safely and securely store 
used nuclear fuel and high-level radioactive material. About 68,000 
metric tons of uranium (MTU) of commercial used fuel is safely managed 
at nuclear energy facilities, but storing the fuel on site was never 
meant to be a long-term solution. By now, the Department of Energy 
(DOE) already should have moved more than 25,000 MTU of reactor fuel 
from our sites and should be moving an additional 3,000 MTU per year.
    Consumers of electricity generated at nuclear energy facilities 
have committed more than $34 billion since 1982 to the Nuclear Waste 
Fund for the federal program that was supposed to have begun removing 
used fuel from commercial nuclear power plant sites 14 years ago. The 
Department of Energy continues to collect more than $750 million per 
year from consumers, and the fund accrues almost $1 billion in 
investment income on the remaining balance of over $26 billion. The 
collection of Nuclear Waste Fund fees is ongoing, despite the fact that 
the Department of Energy, without any technical basis, terminated the 
Yucca Mountain repository project in 2010.
    The industry and the DOE had been working for decades with 
considerable success on the development of a deep geologic repository 
in the United States for used nuclear fuel and high-level radioactive 
waste, until the program was terminated and the Office of Civilian 
Radioactive Waste Management (OCRWM) dissolved in 2010. These decisions 
were not supported by the industry and have resulted in court actions 
that would have otherwise been unnecessary. The industry continues to 
support the completion of the Yucca Mountain licensing process and as a 
result of the administration's actions, the industry has filed suit 
against DOE challenging the continued collection of the Nuclear Waste 
Fee in the absence of a federal program.
The Path to Success
    The Nation would be best served by adherence to the following 
principles that will ensure the establishment of a stable used nuclear 
fuel management policy and program:

   America must have a durable policy supported by a dedicated 
        and sustainable infrastructure to manage used nuclear fuel 
        responsibly.
   America must have a plan for the ultimate disposal of the 
        byproducts from nuclear energy.
   An ideal technical solution is not required to begin 
        implementation of a new policy direction. Evolutionary, and 
        perhaps revolutionary, advances in technology improvements can 
        be incorporated over time without deferring decisions until 
        decades of research are completed.
   The successes and failures of the past must be understood to 
        help guide future innovation, especially the need to build 
        public trust in the systems and facilities ultimately 
        developed.

    Legislative action is needed to put such an enduring policy and 
program in place.
    The Blue Ribbon Commission on America's Nuclear Future (BRC) was 
chartered by the Department of Energy in 2010 and was tasked with 
developing a path forward for the nation's used fuel and high-level 
radioactive waste management program. The Blue Ribbon Commission 
concluded that the United States needs a new, integrated strategy for 
managing the back end of the nuclear fuel cycle, including a new 
approach to siting nuclear waste storage and disposal facilities. The 
BRC outlined eight key recommendations, which are consistent with the 
aforementioned principles for a stable used fuel management policy and 
program, and have the potential to create a stable and enduring program 
that could be supported by all stakeholders:

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

Growing Federal Liability
    Even before the Office of Civilian Radioactive Waste Management was 
closed, the urgency for DOE to fulfill its statutory and contractual 
responsibilities to manage used fuel and high-level radioactive waste 
was growing, as was the associated cost to the taxpayer. The DOE was 
required by statute and contract to begin moving used fuel from reactor 
sites in 1998. The BRC report describes how taxpayers, through payments 
from the taxpayer-funded Judgment Fund, are paying for court-awarded 
damages from DOE's partial breach of its contracts with electric 
companies. DOE estimates that the damage awards from the Judgment Fund 
will total $20.8 billion if the federal government begins accepting 
used fuel in 2020. This expense, for which the taxpayer receives no 
benefit, is in addition to monies paid by consumers of electricity 
produced from nuclear energy into the Nuclear Waste Fund. The BRC 
estimates that the damage awards associated with the DOE's breach may 
increase by as much as $500 million for each year after 2020 that DOE 
does not begin to accept used fuel. It has become virtually impossible 
for the DOE to begin to meet its obligation to move used fuel before 
2020, given the absence of any federal program.
    The industry believes that a multi-pronged approach is necessary if 
the federal government's used fuel and high-level radioactive waste 
program is to be rebuilt and stakeholder confidence restored. This 
multipronged approach should include the following elements:

   Legislation instructing and funding DOE or the new 
        management entity to establish one or more consolidated storage 
        facilities for used nuclear fuel while simultaneously making 
        substantial progress towards developing a repository for 
        ultimate disposal
   The establishment of new organization dedicated solely to 
        implementing the waste management program and empowered with 
        the authority and resources to succeed
   Access to the funds that consumers have provided, and 
        continue to provide, for the purpose of managing high-level 
        radioactive material.

The Need for Consolidated Storage
    Consolidated storage, as recommended by the BRC, is the quickest 
route for the federal government to begin moving used fuel from nuclear 
energy facilities and to stem the increase in damage awards beyond the 
estimated $20.8 billion through 2020. In addition to storing used 
nuclear fuel from commercial facilities, a consolidated storage 
facility could also store DOE and U.S. naval reactor fuel. This could 
provide a pathway for the federal government to meet its obligations to 
remove this material from the various states where it is stored.
    Developing consolidated storage would be an appropriate use of 
resources and a prudent financial investment that would permit the 
federal government to begin meeting its obligations, limiting the 
damages paid by the taxpayers, and restoring faith in the federal 
program, paving the road for a repository to eventually be opened. By 
reducing liability, consolidated storage will free up resources and 
better enable the federal government to pursue and complete the 
ultimate goal of geologic disposal.
    In addition to the industry and the BRC, the National Conference of 
State Legislatures, the governors of Maine, Maryland, Pennsylvania, and 
Vermont and many other organizations and political leaders have all 
publicly called for action to implement the BRC recommendations and, 
specifically, development of a consolidated storage facility.

A New Federal Used Fuel Management Corporation is Needed
    A key element to the long-term success of a federal program is 
establishing a new entity to assume program management responsibility 
from the DOE. Industry supports the concept of a federal corporation as 
outlined in the BRC final report. The operating characteristics of a 
new management entity must more closely resemble those of a corporation 
with a clear mission and obligations to its investors rather than a 
federal agency in order to succeed. Congress and the administration 
should retain an oversight authority, but this role should be 
structured to avoid creating an impediment to the efficient operation 
of a new management entity.
    Similar to commercial companies, the chief executive officer of the 
new management entity should be selected and appointed by a board of 
directors. As the BRC recommends, the board should be appointed by the 
President with the advice and consent of the Senate for terms that 
would span at least two presidential administrations and the chairman 
of the board should be elected by its members. It is imperative that 
the CEO not be subjected to the political uncertainties associated with 
presidential appointments so that he or she can focus entirely on 
performing the task at hand with the requisite attention to nuclear 
safety and security that is expected from all employees of a nuclear 
industrial company. The instability that can be created as a result of 
the political appointment process is well-illustrated by the now-
defunct Office of Civilian Radioactive Waste Management (OCRWM). This 
office, whose director was appointed by the President and confirmed by 
the Senate, never realized stable long-term leadership because of the 
turnover of directors associated with changes at the White House. From 
1983 to 2010, OCWRM had six appointed and confirmed directors and nine 
acting directors. The incumbent director was replaced with every new 
administration.
    The Nuclear Waste Administration Act of 2012 would not sufficiently 
insulate the new Nuclear Waste Administration leadership from the 
political process since both the administrator and deputy administrator 
would be appointed by the President with the advice and consent of the 
Senate, as are the members of the proposed oversight committee. If 
implemented as proposed, both the Nuclear Waste Administration's senior 
management and the members of the oversight board would likely be 
replaced with every new administration, and the history of the federal 
government's failure to meet its statutory and contractual obligations 
would likely be repeated.

Direct Access to Sufficient Funding
    Enduring leadership is essential, but not sufficient in its own 
right to create a successful and sustainable program. As the Nuclear 
Waste Administration Act of 2012 recognizes and addresses, a new 
management entity must have direct access to and control over the funds 
necessary to implement the program. The industry and consumers have 
provided and continue to provide these funds. With a $26 billion 
balance in the Nuclear Waste Fund, almost $1 billion accruing in 
interest and approximately $750 million in Nuclear Waste Fees being 
deposited annually, funding for the government's program should be 
secure and available to program managers. Unfortunately, this has not 
been the case. The congressional budgeting and appropriations processes 
have resulted in appropriations to OCRWM being considered in the 
context of the overall DOE and federal government budget and not simply 
in the context of the available funds in the Nuclear Waste Fund. The 
BRC report, which discusses the Nuclear Waste Fund in great detail, 
states that ``a program that was intended to be fully self-financing 
now has to compete for limited discretionary funding in the annual 
appropriations process, while the contractual user fees intended to 
prevent this from happening are treated just like tax revenues and used 
to reduce the apparent deficit on the mandatory side of the federal 
budget (which deals with expenditures and receipts that are not subject 
to annual appropriations).'' Recognizing that these funds were 
collected with the indisputable intention of supporting clear statutory 
and contractual obligations, there is not a rational basis for 
considering their use discretionary.
    To avoid perpetuating the current funding limitations, a new 
management entity must be given unrestricted access to the Nuclear 
Waste Fees and the Nuclear Waste Fund with Congressional oversight of 
the efficient use of these funds continuing. This will enable it to 
appropriately manage and fund the development of storage and disposal 
facilities consistent with standard industry practices for other 
largescale nuclear safety related projects. The current legislation 
achieves this goal for the Nuclear Waste Fee payments. However, it 
could be enhanced with respect to access to the Nuclear Waste Fund.

Geologic Disposal is Critical
    The Nuclear Waste Administration Act of 2012 goes a long way 
towards achieving the multi-pronged approach outlined above. Ideally 
the elements of that approach (new management entity, surety of 
funding, consolidated storage while vigorously pursuing disposal) would 
be implemented simultaneously to create a solid foundation for a 
sustainable used nuclear fuel management program.
    The eventual completion of the Yucca Mountain repository (an 
endeavor that will cost more than $13 billion, according to a 2007 DOE 
report) or the siting and construction of a new repository will most 
likely take more than two decades depending on Congressional funding. 
By 2040, the damages paid by the taxpayer could be as much as $30 
billion. A consolidated storage facility could be built at a fraction 
of the cost of a repository. The Electric Power Research Institute 
(EPRI) estimates a 40,000 MTU storage facility could be built for 
approximately $500 million and industry estimates that such a facility 
could be opened by 2020 if work begins in 2013. If instructed by 
Congress to pursue consolidated storage, DOE or a new management entity 
could use this facility to meet DOE's statutory and contractual 
obligations by removing used fuel from commercial nuclear power sites, 
taking title to the used fuel, and shipping it to the storage facility 
where it would be stored until a final disposal or alternate 
disposition pathway is available.
    We should not lose sight of the fact that consolidated storage is 
not a complete answer. A geologic repository will be required and 
should be pursued simultaneously with the development of a consolidated 
storage facility. Attachment 1* provides a comparison of hypothetical 
timelines for the development of a consolidated storage facility and 
the Yucca Mountain project assuming that both programs are underway in 
2013. As the attachment illustrates, the completion date for Yucca 
Mountain would be highly dependent on the rate at which funds are 
expended. Despite the fact that the Nuclear Waste Fund has more than 
sufficient funding to complete the Yucca Mountain project, it is highly 
unlikely that the program could efficiently deploy the funding 
necessary (approaching $2 billion annually) to complete licensing and 
construction in the near term.
---------------------------------------------------------------------------
    * Attachment 1 has been retained in committee files.
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Priority to Shutdown Sites
    Once a consolidated storage facility has been authorized, the 
industry and the federal management entity should collaborate to ensure 
that transportation issues, including efficient ordering of used fuel 
acceptance from commercial sites, are appropriately addressed. Prior to 
removing used fuel from operating plant sites, the industry agrees that 
priority should be given to the shutdown commercial sites that no 
longer have an operating reactor. This approach, supported by the BRC 
and the Nuclear Waste Administration Act of 2012, has numerous 
advantages. It would permit the 10 shutdown sites, which in many cases 
have only used fuel storage remaining at the site, to be fully 
decommissioned and the land to be used for more beneficial purposes. In 
addition, the taxpayer, through the taxpayer-funded Judgment Fund, 
would no longer be liable for the continued cost of storing used fuel 
at these shutdown sites at a cost of approximately $8 million per year 
per site.

Consent-Based Facility Siting
    Strength of leadership and financial resources alone will not 
guarantee success in siting new facilities. As the BRC recommends and 
the Nuclear Waste Administration Act of 2012 implements, a consent-
based siting process is essential to developing enduring local and 
state support for new facilities. Since the release of the BRC report, 
the consent-based siting recommendation has received significant 
support as well as questions about how it would be implemented.
    A consent-based siting process should not be prescriptively 
defined, but permitted to develop organically among the interested 
parties. Regardless of the specific process for developing consent, 
success will be measured by an agreement among the interested parties 
that is legally enforceable. During the process, the parties involved 
must negotiate in good faith and be open to creative solutions to 
address issues that arise, including oversight, incentives and 
compensation. The management entity and the federal government should 
not attempt to predetermine the ``burden'' that a community or state 
should accept or impose restrictions on the development of a 
consolidated storage facility that are linked to milestones related to 
a disposal program. To do so would be contrary to the nature of a 
consent-based process. Congress and the new management entity or DOE 
must be willing to let communities and states reach their own 
conclusions about whether or not it is a burden to host a new facility 
and to let them identify the framework and restrictions under which 
they wish to operate. There are communities that would see hosting such 
facilities as a benefit. The siting and operation of the Waste 
Isolation Pilot Plant in New Mexico is proof that such a process can be 
successful.

Closing
    The Nuclear Waste Administration Act of 2012 is a significant step 
forward and, with the enhancements as discussed, it could create a 
sustainable program that would garner wide stakeholder support. The 
most important point, however, is that immediate action is necessary to 
establish a sustainable program and reduce the liabilities for the 
taxpayer as quickly as possible. Congress must act. Energy companies, 
their local communities and states, and American taxpayers deserve to 
have confidence in a federal program that will meet its statutory and 
contractual obligations to safely and securely accept, transport, 
store, and ultimately dispose of used nuclear fuel and high-level 
radioactive waste.

    The Chairman. Thank you very much.
    Mr. Fettus, why don't you go ahead?

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

    Mr. Fettus. Good morning.
    I'm Geoffrey Fettus, an attorney with the Natural Resources 
Defense Council. I want to thank the Chairman and the Ranking 
Member for inviting us to share our views on S. 3469. I've 
submitted written testimony to be included in the record and 
I'll focus briefly today on 4 points.
    Point 1.
    Chairman Bingaman wisely focused the bill on creating a new 
pathway to develop repositories. Repositories are the only 
technically, economically and morally viable solution. NRDC 
strongly supports that effort for the development of a new and 
improved legislative pathway.
    Turning to point 2.
    We fully support Chairman Bingaman's caution that any 
temporary storage facility must not become a permanent one. In 
significant measure S. 3469 is well constructed as it bars any 
future nuclear waste administration from taking title to and 
storing spent fuel before ratification of the consent 
agreements described in section 304. A provision that bars 
moving forward with interim consolidated storage facilities 
before a repository program is under full development wisely 
puts the horse before the cart. It ensures precisely the 
linkage the Chairman describes as necessary.
    But this sensible linkage, we think, is undone by the 
current form of section 306(b) which provides an exception for 
10,000 metric tons of spent nuclear fuel. Indeed the only 
situation where we see merit in a pilot project for storage and 
we do see that there could be merit, is to address stranded 
spent fuel at the 9 closed reactor sites or for spent fuel that 
fails to meet certain safety thresholds. Such a site would have 
to be in a hardened building like the outhouse facility in 
Germany.
    Potential volunteer sites that have already demonstrated 
consent are operating commercial reactors. Far less in the way 
of new infrastructure would be required and capacity for fuel 
management and transportation is already in place. Along with 
the consent necessary for hosting nuclear facilities in the 
first instance, nothing like this has been suggested. We urge 
the committee that simply providing an expedient storage option 
for industry that solves no problem like the stranded fuel or 
addresses no serious safety concerns fails to heed the careful 
caution expressed by Chairman Bingaman.
    Turning to point 3.
    The understanding that the polluter pays the bill for the 
contamination it creates is properly embedded in S. 3469. This 
bipartisan concept has a long history in American law. We 
support its inclusion here. Perpetuating this requirement that 
the industry must invest in solutions to the problems it 
creates is appropriate and any relaxation of any such 
requirement would result in immediate objection from NRDC and I 
would imagine many others including the taxpayer.
    Finally, point 4.
    Section 304 is the heart of S. 3469 and is most attentive 
to the BRC's strong recommendation of a consent based approach 
that we've talked about today. Indeed we applaud the general 
thrust. But any consent based approach will enjoy a higher 
probability of success if Congress removes the Atomic Energy 
Act's exemptions for radio nuclides from our Nation's water and 
hazardous waste laws.
    These anachronistic exemptions from environmental law are 
at the heart of state and public distrust of both government 
and commercial nuclear facilities. If EPA and the states had 
full legal authority and could treat radio nuclides, as they do 
other pollutants, clear cleanup standards could be promulgated. 
We could be farther along in remediating the toxic legacy of 
the cold war, mentioned by both Senators Cantwell and Wyden 
today.
    Further, we could avoid some ongoing disputes over 
operations at commercial nuclear facilities even the BRC 
recognized this as it noted that New Mexico's hazardous waste 
regulation of the WIPP facility is a critical element of public 
acceptance.
    Any regulatory change of this magnitude would have to be 
harmonized with NRC licensing jurisdiction over nuclear 
facilities and EPA's existing jurisdiction over radiation 
protection standards. But such a process is certainly within 
the capacity of those Federal agencies. Some states would 
assume environmental jurisdiction over radioactive material, 
others might not. But in either event improved clarity in 
regulatory structure and a meaningful state oversight role 
would allow, for the first time, consent based and transparent 
decisions to take place in the matter of developing 
repositories.
    We address closed fuel cycles and other matters in our 
written statement. I'm happy to take questions on those as 
well.
    But I'll close with one over arching premise that we hope 
guides congressional work on this matter. Years or decades from 
now others will face the precise predicament we face today 
unless Congress creates a transparent, equitable process with 
strong environmental standards that can't be manipulated in 
order to license a site that may not be suitable. Chairman 
Bingaman has made a really, in our estimation, a superb and 
meaningful start with S. 3469. With the addition of our 
recommendations, we are optimistic that meaningful solutions 
lie ahead.
    As I stated to the BRC almost 1 year ago in Denver, I can't 
guarantee that NRDC's recommendations will result in a 
solution. But I can point to strong evidence that following a 
course similar to the last 2 decades results in failure.
    I'd like to close with one personal note. As a former New 
Mexican, thank you Senator Bingaman for representing me 
brilliantly in Congress for all these years and also for my 
time in DC, for your just extraordinary staff.
    So, thank you again for this opportunity to testify. I'm 
happy to answer your questions.
    [The prepared statement of Mr. Fettus follows:]

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

Introduction
    Mr. Chairman and members of the Committee, thank you for providing 
the Natural Resources Defense Council, Inc. (NRDC) this opportunity to 
present our views on S. 3469, A Bill to establish a new organization to 
manage nuclear waste, provide a consensual process for siting nuclear 
waste facilities, ensure adequate funding for managing nuclear waste, 
and for other purposes.
    NRDC is a national, non-profit organization of scientists, lawyers, 
and environmental specialists, dedicated to protecting public health 
and the environment. Founded in 1970, NRDC serves more than one million 
members, supporters and environmental activists with offices in New 
York, Washington, Los Angeles, San Francisco, Chicago and Beijing. We 
have worked on nuclear waste issues since our founding, and we will 
continue to do so.
    NRDC commends the Chairman's focus on three fundamental principles 
that must be adhered to if America is ever to develop an adequate, safe 
solution for nuclear waste. First, Chairman Bingaman's S. 3469 
incorporates the principle that the waste from the nation's nuclear 
weapons program and its commercial nuclear power plants must be buried 
in technically sound deep geologic repositories, permanently isolated 
from the human and natural environments. That principle for disposal is 
consistent with more than 50 years of scientific consensus and, most 
recently, the views of President Obama's bipartisan Blue Ribbon 
Commission (BRC)./1/ No other solutions are technically, economically 
or morally viable over the long term and NRDC strongly supports the 
development of a science-based repository program that acknowledges the 
significant institutional challenges facing spent fuel storage and 
disposal.
---------------------------------------------------------------------------
    \1\ President Obama's ``Blue Ribbon Commission on America's Nuclear 
Future--Report to the Secretary of Energy, January 31, 2012'' 
(hereafter ``BRC Report'' or ``Final Report'').
---------------------------------------------------------------------------
    Second, we support Chairman Bingaman's careful analysis that any 
``temporary'' storage facility must not become a permanent one. This is 
a powerful principle that should guide the legislative process. NRDC 
concurs with the Chairman's caution that whatever case can be made for 
interim storage can be done ``only as an integral part of the 
repository program and not as an alternative to, or de facto substitute 
for, permanent disposal.'' Consistent with thirty years of national 
policy and the purpose of the Nuclear Waste Policy Act (NWPA), 42 
U.S.C. Sec.  10131(b)(1), Senator Bingaman has provided a crucial 
linkage between developing storage facilities and final repositories. 
We are, however, concerned that the pilot program offered in S. 3469 
upsets this precisely-defined architecture. The evidence of the past 30 
years shows that legislative efforts that sever such linkages between 
development of storage and final repository sites inevitably doom the 
process and virtually guarantee a repeat of the mistakes made in the 
failed Yucca Mountain effort.
    Third, properly embedded in S. 3469 is the fundamental concept that 
the polluter pays the bill for the contamination that it creates. This 
bipartisan concept has a long history in American law and it should 
remain in full force in any new nuclear waste legislation. Federal 
assumption of the waste burden is an extraordinary boon to the nuclear 
industry, a benefit enjoyed by no other electricity-producing industry. 
At minimum, perpetuating the requirement that the industry must invest 
in the solution is appropriate and any relaxation of such requirements 
would result in immediate objection from NRDC and a host of others.
    Chairman Bingaman has made a laudable effort and turned some of the 
stronger ideas in the recent BRC report into legislative language. We 
support fundamental components in the proposed bill, dispute other 
parts, and have several key suggestions for expansion and refinement of 
S.3469. But the Chairman's emphasis on the necessity of repositories 
and the need to link any potential storage site with the development of 
a disposal site is of lasting value. Any legislation that fails to 
adhere to these concepts will prolong the failures of the past 30 years 
in developing solutions for nuclear waste.

Five Recommendations
    Today, in commenting on specific sections of S. 3469, I offer five 
recommendations for ensuring the success of any legislative outcomes-
(1) recognize that repositories must remain the focus of any 
legislative effort; (2) create a coherent legal framework before 
commencing any geologic repository or interim storage site development 
process; (3) arrive at a consent-based approach for nuclear waste 
storage and disposal via a fundamental change in law; (4) address 
storage in a phased approach consistent with the careful architecture 
of S. 3469; and (5) exclude polarizing closed fuel cycle and 
reprocessing options from this effort to implement the interim storage 
and ultimate disposal missions.
    Importantly, our view on each area is premised on a single 
overarching caution: in order to avoid repeating the mistakes of the 
last three decades, Congress must create a transparent, equitable 
process incorporating strong public health and environmental standards 
insulated from gerrymandering or other distortions in order to ensure, 
at the conclusion of the process, the licensing of a suitable site (or 
sites). What follows are NRDC's detailed comments on S. 3469 and 
recommended prerequisites for establishing a protective and robust 
nuclear waste storage and disposal process.

            RECOMMENDATION 1--THE NECESSITY OF REPOSITORIES

Titles I and II--Comments on Sections 101-206
    Title I of S. 3469, in significant measure, recognizes our 
generation's ethical obligation to future generations regarding nuclear 
waste disposal. But we suggest an explicit adoption of the first 
purpose of the Nuclear Waste Policy Act (NWPA), 42 U.S.C. Sec.  
10131(b)(1), as the decision to isolate nuclear waste from the 
biosphere implicates critical issues of security, including: financial 
security, environmental protection, and public health. After more than 
55 years of failure, policy makers must look with clear eyes at the 
history of U.S. nuclear waste policy, an exercise that President 
Obama's Blue Ribbon Commission failed to do. The BRC recommended 
geologic repositories and S. 3469 suggests a new path to arrive at 
them, and we concur with and support efforts to develop geologic 
repositories. But we emphasize today that the record created by this 
hearing should fully reflect the story of how the Environmental 
Protection Agency (EPA), the Department of Energy (DOE), the Nuclear 
Regulatory Commission (NRC), the Justice Department, and the U.S. House 
and Senate together corrupted the process for developing and 
implementing licensing criteria for the Yucca Mountain repository. 
Failure to understand that history will doom any new effort.
    While the BRC recognized that the 1987 amendments to the NWPA were 
``highly prescriptive'' and ``widely viewed as being driven too heavily 
by political considerations,'' those observations are insufficiently 
critical assessments of what actually occurred. We recommend that 
Congress be clear about what happened to avoid repeating the mistakes 
of the past. Put bluntly, first DOE and then Congress corrupted the 
site selection process leading to Yucca Mountain as the only option. 
The original NWPA strategy contemplated DOE first choosing the best out 
of four or five geologic media, then selecting a best candidate site in 
each media alternative. Next, DOE was to narrow the choices to the best 
three alternatives, finally picking a preferred site for the first of 
two repositories. A similar process was to be used for a second 
repository. Such a process, if it had been allowed to fairly play out, 
would have been consistent with elements of the adaptive, phased, and 
science-based process to which the BRC referred.
    But instead, what happened was that DOE first selected sites that 
it had pre-determined. Then in May of 1986 DOE announced that it was 
abandoning a search for a second repository, and narrowed the candidate 
sites from nine to three, leaving in the mix the Hanford Reservation in 
Washington (in basalt medium), Deaf Smith County, Texas (in bedded salt 
medium) and Yucca Mountain in Nevada (in unsaturated volcanic tuff 
medium). Next, all equity in the site selection process was abandoned 
in 1987, when Congress, confronted with cost of characterizing three 
sites and strong opposition to the DOE program, amended the NWPA of 
1982 to direct DOE to abandon the two-repository strategy and to 
develop only the Yucca Mountain site. Not by coincidence, at the time, 
Yucca Mountain was DOE's preferred site, as well as being the 
politically expedient choice for Congress. The abandonment of the NWPA 
site selection process jettisoned any pretense of a science-based 
approach, led directly to the loss of support from the State of Nevada, 
diminished Congressional support (except to ensure that the proposed 
Yucca site remained the sole site), and eviscerated public support for 
the Yucca Mountain project.
    Briefly, with respect to Title II and the creation of a Nuclear 
Waste Administration, as NRDC has expressed numerous times over past 
years, the failures of the Atomic Energy Commission and its successor 
agencies (Energy Research Development Agency, DOE and the NRC) make the 
case that an alternative institutional vehicle for nuclear waste 
disposal is necessary. However, we note that any such new federal 
entity must be subject to all of the nation's environmental laws, 
including the National Environmental Policy Act (NEPA), 42 U.S.C. Sec.  
4321, et seq. We presume such is the case for this proposed agency. 
Alternative language may be necessary to clarify specific application 
of NEPA at certain junctures of the siting process (for example, in 
support of the initial guidelines), but it is clear to us that NEPA has 
full application to the newly proposed Nuclear Waste Administration.
    Additionally, it has long been NRDC's view that independent 
oversight is critical to safe and environmentally sound operation of 
DOE nuclear weapons production facilities and commercial nuclear 
facilities regulated by the NRC. Indeed, the full suite of 
environmental laws should have full application. We will address this 
issue in more detail when discussing Section 304. As a last note to 
this Title, the meaning of Section 102(4) should be expanded and 
clarified to remove the word ``centralized'' and the words ``safe, 
environmentally sound and publicly acceptable'' storage should be 
inserted to address several of the concepts we will detail in the 
testimony that follows.

  RECOMMENDATION 2--CREATE A COHERENT FRAMEWORK BEFORE COMMENCING THE 
                      NUCLEAR WASTE SITING PROCESS

Title III--Functions, Sections 301-308
    A. Comments on Section 305--To avoid repeating the failure of the 
proposed Yucca Mountain process, we urged the BRC and we urge this 
Committee now to be explicit and state clearly in legislation that both 
the standards for site screening and development criteria be in final 
form before any sites are considered. We also urge that generic 
radiation and environmental protection standards be established prior 
to consideration of any sites. S. 3469 has gone much of the way toward 
structuring such a result, but we have some specific concerns.
    Section 305 directs EPA to adopt, by rule, broadly- applicable 
standards for protection of the general environment from offsite 
releases from radioactive material in geologic repositories. Further, 
Section 305(b) directs NRC to then amend its regulations governing the 
licensing of geological repositories to be consistent with any 
comparable standard adopted by EPA. These requirements and the phasing 
of the agency actions are appropriate (first EPA sets the standards and 
then NRC ensures its licensing process meets those standards). However, 
the timeline required in S. 3469--not later than one year after the 
enactment of this Act and not later than 1 year after the adoption of 
generally applicable standards by EPA--provides inadequate time for the 
agencies to properly do their work. After repeated and flawed attempts 
to establish Yucca Mountain standards, we are optimistic that EPA will 
not need two decades and can get the job done in a reasonable amount of 
time, if given adequate resources./2/
---------------------------------------------------------------------------
    \2\ EPA repeatedly issued standards concerned more with licensing 
the site than establishing protective standards. EPA's original 1985 
standards were vacated in part because EPA had failed to fulfill its 
separate duty under the Safe Drinking Water Act, 42 U.S.C. Sec. 300h, 
to assure that underground sources of water will not be ``endangered'' 
by any underground injection. NRDC v. EPA, 824 F.2d 1258 (1st Cir. 
1987). EPA's second attempt to at setting standards that allow for a 
projected failure of geological isolation was again vacated, this time 
by the United States Court of Appeals for the D.C. Circuit. The D.C. 
Circuit found EPA's Yucca Mountain rule (and the corresponding NRC 
standard), which ended its period required compliance with the terms of 
those rules at 10,000 years was not ``based upon or consistent with'' 
the recommendations of the National Academy of Sciences as required by 
the 1992 Energy Policy Act and therefore must be vacated. Nuclear 
Energy Institute, Inc. v. EPA, 373 F.3d 1251 (2004).
---------------------------------------------------------------------------
    As this Committee is aware, at this time EPA has few staffing 
resources, consultants, or budget for standards preparation. It would 
take at least a year after enactment and subsequent Congressionally-
appropriated funds to properly staff the task. EPA would then have to 
do a rulemaking notice, preferably including hearings/meetings, develop 
a proposed rule for public comment, and then go about the task of 
issuing a publicly informed final rule. A constraint of one year (for 
both EPA and NRC) invites a rushed, inadequate job that hamstrings both 
agencies and likely denies the states, tribes, and public a meaningful 
opportunity to fully inform the process.
    Additionally, while the requirement to promulgate generic standards 
is welcome, care must be taken to insulate any site standard, 
development or regulatory framework from adverse pressures applied by 
the Office of Management and Budget, the Department of Justice, DOE and 
the NRC. Indeed, it is our assessment that past administrations' 
failures to protect EPA from just such pressures is why the development 
of the EPA standard setting process was so problematic. The one-year 
time frames invite just such pressure and we urge, in the alternative, 
Congressional attention to ensure EPA has adequate resources and time 
for the task.

       RECOMMENDATION 3--A FUNDAMENTAL CHANGE IN LAW IS NECESSARY

A. Comments on Section 304--Siting Nuclear Waste Facilities and 
        Amending the Atomic Energy Act
    1. The Necessary Change--Section 304 is the heart of S. 3469 and 
there is much to applaud here. The Section is attentive to BRC's 
recommendation in its Final Report of a ``consent-based, adaptive, and 
phased approach'' for developing geologic disposal options. We agree 
with the general thrust of such a conceptual framework for developing 
repositories, but any such ``consent-based'' process will enjoy a far 
higher probability of success in concert with a simple, but profound, 
change in the law. As the BRC's Final Report acknowledges but fails to 
meaningfully discuss, current federal law, including aspects of the 
Atomic Energy Act (AEA), has the effect of preempting almost all forms 
of state regulation over a high level radioactive waste facility and, 
indeed, over regulation of radionuclides in general.
    Congress should, via S. 3469 and after appropriate hearings on the 
proper scope, remove once and for all the AEA's exemptions for 
radionuclides from our nation's water and hazardous waste laws. These 
anachronistic exemptions from environmental law are at the heart of 
state and public distrust of both government and commercial nuclear 
facilities. A great deal of the structure of S. 3469 can help build a 
better nuclear waste management system, but we submit that decades from 
now the Nation will return to the same predicament (no matter how 
improved the architecture of said system) unless States are provided 
with meaningful regulatory authority under existing environmental laws.
    2. Section 304(a)--Section 304(a) sets out the general terms of a 
process that reflects the transparent, adaptive, consent based 
qualities called for by the BRC. Allowing affected communities to 
decide, and on what terms, they will host a nuclear waste facility is 
an important step forward that has not heretofore existed in nuclear 
legislation.
    3. Section 304(b)--Section 304(b) wisely provides for consistency 
with Section 112(a) of the NWPA but requires the issuance of guidelines 
not later than one year after the date of enactment of this Act. As 
with Section 305, we think one year an inadequate time frame. We 
support such consistency with the enumerated provisions in Section 
112(a) and agree that additional attention is important to detailed 
considerations such as minimizing impacts of transportation and 
handling and to not unduly burden states storing significant volumes of 
defense wastes is important. But it is our strong recommendation that 
more time should be provided for the agency to get up and running 
before final guidelines become statutory time restrictions. Indeed, 
such guidelines must comply with NEPA, and ensuring those guidelines 
are in place prior to consideration of any storage or disposal site 
could go a long way in avoiding the mistakes of the past.
    4. Section 304(c)--Section 304(c) sets up a process for determining 
candidate sites that, in general terms, could chart a process arriving 
at protective disposal solution, if it is: (1) undertaken subsequent to 
imposition of sound final site screening and development criteria and 
sound final generic radiation and environmental protection standards; 
and (2) not hamstrung or corrupted by Congress, other federal agencies 
or the Executive Branch. However, the Environmental Assessment required 
in Section 304(c)(4) should explicitly be termed an Environmental 
Impact Statement to ensure there is no confusion regarding NEPA 
obligations. 6
    5. Section 304(d)--Section 304(d) sets forth requirements for 
characterizing sites and for consulting agreements with potential 
nuclear waste recipient states. If performed in a careful, phased 
fashion prior to embarking on the final site suitability determination 
delineated in Section 304(e), such a characterization process could 
allow for the phased and adaptive approach recommended by the BRC. Key 
decisions could be revisited and modified as necessary along the way 
rather than being pre-determined, and the process itself could be 
flexible and produce decisions that are responsive to new information 
and new technical, social, or political developments.
    6. Section 304(f)--Section 304(f) seeks to provide legislative text 
responsive to the BRC's recommendation that any successful approach 
must be consent based--in the sense that affected communities will have 
an opportunity to decide whether to accept facility siting decisions 
and will retain significant local control. Several components in the 
proposed text merit attention. If such a provision were enacted into 
law, allowances for any recipient state to have regulatory oversight 
authority, and authority over operational limitations, are crucial 
recognitions of the need for meaningful state oversight that have been 
missing from previous efforts at nuclear waste disposal. Equally 
important is the statutory requirement that Congress must ratify (and, 
assuredly, the President must therefore sign) any consent agreement. 
And finally, the statutory direction that neither party (the federal or 
state government) may unilaterally amend or revoke the contract is a 
concept that NRDC fully supports.
    But for all those laudable qualities, we believe the suggested 
consent agreements will not solve the fundamental problem facing 
nuclear waste disposal. We suggest Congress, with its firm 
understanding of federalism, legislate a role for states in nuclear 
waste disposal by amending the Atomic Energy Act (AEA) to remove its 
express exemptions of radioactive material from environmental laws.
    State, local and tribal governments must be central in any 
prescription for a successful repository and waste storage program. The 
BRC recognized as much and noted federal and state tensions are often 
central in nuclear waste disputes. The BRC's Final Report states in 
pertinent part:

          We recognize that defining a meaningful and appropriate role 
        for states, tribes, and local governments under current law is 
        far from straightforward, given that the Atomic Energy Act of 
        1954 provides for exclusive federal jurisdiction over many 
        radioactive waste management issues. Nevertheless, we believe 
        it will be essential to affirm a role for states, tribes, and 
        local governments that is at once positive, proactive, and 
        substantively meaningful and thereby reduces rather than 
        increases the potential for conflict, confusion, and delay.

    Final Report at 56 (citation omitted).
    Without fundamental changes in the law to address such federal, 
state and tribal tensions, we will never approach closure and consent 
on transparent, phased, and adaptive decisions for nuclear waste 
siting. Indeed, even if such a provision as Section 304(f) is enacted 
into law, we think it likely disputes will continue unchecked unless 
Congress avails itself of the opportunity to finally suggest a decades-
overdue change in the law which we will now explore in more detail.
    A meaningful and appropriate role for states in nuclear waste 
siting can be accomplished in a straightforward manner by amending the 
Atomic Energy Act (AEA) to remove its express exemptions of radioactive 
material from environmental laws. The exemptions of radioactivity make 
it, in effect, a privileged pollutant. Exemptions from the Clean Water 
Act and the Resource Conservation and Recovery Act (RCRA) are at the 
foundation of state and, we submit, even fellow federal agency distrust 
of both commercial and government-run nuclear complexes.
    As this Committee is aware, most federal environmental laws 
expressly exclude ``source, special nuclear and byproduct material'' 
from the scope of health, safety and environmental regulation by EPA or 
the states, leaving the field to DOE and NRC. In the absence of clear 
language in those statutes authorizing EPA (or states where 
appropriate) to regulate the environmental and public health impacts of 
radioactive waste, DOE thereby retains broad authority over its vast 
amounts of radioactive waste, with EPA and state regulators then only 
able to push for stringent cleanups on the margins of the process. 
Indeed, the BRC Report discusses the State of New Mexico's efforts to 
regulate aspects of the Waste Isolation Pilot Plant RCRA as critical 
positive element in the development of the currently active site. Final 
Report at 21./3/ The NRC also retains far reaching safety and 
environmental regulatory authority over commercial nuclear facilities, 
with agreement states able to assume NRC authority, but only on the 
federal agency's terms.
---------------------------------------------------------------------------
    \3\ The BRC Report omits discussion of the fierce effort New Mexico 
waged to obtain RCRA authority over the site.
---------------------------------------------------------------------------
    States are welcome to consult with the NRC and the DOE, but the 
agencies can, and will, assert preemptive authority where they see fit. 
This has happened time and again at both commercial and DOE nuclear 
facilities. This outdated regulatory scheme is the focal point of the 
distrust that has poisoned federal and state relationships involved in 
managing and disposing of high-level radioactive waste (HLW) and spent 
nuclear fuel, with resulting significant impacts on public health and 
the environment.
    If EPA and the states had full legal authority and could treat 
radionuclides as they do other pollutants under environmental law, 
clear cleanup standards could be promulgated, and we could be much 
farther along in remediating the toxic legacy of the Cold War. Further, 
we could likely avoid some of the ongoing legal and regulatory disputes 
over operations at commercial nuclear facilities. Any regulatory change 
of this magnitude would have to be harmonized with appropriate NRC 
licensing jurisdiction over facilities and waste and harmonized with 
EPA's existing jurisdiction with respect to radiation standards: but 
such a process is certainly within the capacity of the current federal 
agencies and engaged stakeholders. Some states would assume regulatory 
jurisdiction over radioactive material, others might not. But in any 
event, substantially improved clarity in the regulatory structure and a 
meaningful state oversight role would allow, for the first time in this 
country, consent-based and transparent decisions to take place on the 
matter of developing storage sites and geologic repositories.
    In short, Section 304(f) is a detailed attempt to remedy regulatory 
deficiencies that could be more simply and effectively handled by 
ending exemptions under the AEA. Removing the ability of the United 
States to unilaterally break the terms of the contract could 
potentially give a state some measure of comfort that the agreement it 
had painstakingly negotiated will hold fast. But there would be nothing 
stopping Congress from revisiting this law, ratifying the consent 
agreements with conditions, and thereby removing whatever meaningful 
restraint a state might assert. Thus, ultimately what is offered as a 
thoughtful contract provision could be rendered inoperable, and could 
eviscerate a state's protection against altered, less favorable terms.
    By contrast, ending the anachronistic AEA exemptions solves the 
matter of meaningful state oversight and does not carry with it 
substantial likelihood of congressional terms and modifications exacted 
from states years into a good faith negotiation on a site. Indeed, 
while it would be possible for a future Congress to revisit the AEA and 
re-insert exemptions from environmental law, it would have to do so in 
a manner that would remove overdue jurisdictional authority from all 
states (or Congress would have to single out one state for special 
treatment). The difficulty of prevailing over the interest of all 50 
states rather than simply amending legislation that affects the 
interests of just one state should be apparent.

RECOMMENDATION 4--ADDRESS STORAGE IN A PHASED APPROACH CONSISTENT WITH 
                      THE ARCHITECTURE OF THE BILL

Comments on Section 306
    Chairman Bingaman introduced S. 3469 by echoing the BRC and 
cautioning that unless there is direct, clear linkage between progress 
on a storage facility and progress on a repository, providing temporary 
storage could thwart progress toward developing repositories and reduce 
incentives to find a long-term solution.'' The Chairman stated:

          The Commission makes a strong case for interim storage, but 
        ``only in the context of a parallel disposal program.'' I agree 
        with that conclusion. Interim storage can play an important 
        role in a comprehensive waste management program, but only as 
        an integral part of the repository program and not as an 
        alternative to, or de facto substitute for, permanent disposal.

    We agree. A link between storage and disposal is essential. We 
support the precise language in the text that ``[t]he Administrator may 
not possess, take title to, or store spent nuclear fuel at a storage 
facility licensed under this Act before ratification of a consent 
agreement for a repository under Section 304(f)(4).'' Such a provision 
wisely puts the horse before the cart and ensures just the linkage the 
Chairman understands and the BRC acknowledges is necessary. But this 
sensible process is undone by Section 306(b), which provides an 
exception for 10,000 metric tons of spent nuclear fuel.
    The exception opens the door to a storage facility that fails to 
follow the phased process so carefully constructed in the earlier 
sections. Rather than prematurely bypassing a careful process that can 
arrive at protective, environmentally sensible and scientifically 
defensible solutions, NRDC urges spent fuel storage efforts to focus on 
vigorous efforts by industry and by appropriate regulatory authorities 
to ensure that all near-term forms of storage meet high standards of 
safety and security for the decades-long time periods that interim 
storage sites will be in use. While NRDC can agree with the overall 
concept of consolidated interim storage for a measured amount of spent 
fuel that meets strong safety criteria (moving fuel from seismically 
active areas, for example) and removing the stranded fuel from 
decommissioned plants, we can only do so after the introduction of a 
phased approach, as the general architecture of S. 3469 suggests.
    Indeed, the only situation where NRDC sees merit in a pilot 
project(s) is to address the current total stranded spent fuel at the 
nine closed reactor sites, accommodated in a hardened building at one 
or more sites that follows the example of the Ahaus facility in 
Germany. Potential volunteer sites that have already demonstrated 
``consent'' are operating commercial reactors. Far less in the way of 
new infrastructure would be required and the capacity for fuel 
management and transportation is already in place, along with consent 
necessary for hosting nuclear facilities in the first instance.
    Indeed, the BRC cited no evidence for why continued reliance on 
densely-packed wet storage should be accepted as adequate in light of 
the health, safety and security risks that interim wet storage poses. 
Instead, the BRC was negligent in not recommending that Congress 
statutorily direct movement of spent fuel from wet pools to dry casks 
as soon as practical, i.e., as soon as spent fuel has cooled 
sufficiently to permit safe dry cask storage, generally about five 
years. Such a legislative direction would go far in addressing a number 
of public safety and environmental harms and do less damage to the 
careful architecture of this bill. With less fuel in the pool, an 
accident scenario in which cooling is lost would be less problematic 
through the extended time allotted by the slower boiling rate in the 
less crowded pools and the radiation source term would be reduced. The 
now standardized practice of onsite, hardened dry-cask storage poses 
clear benefits in terms of the mitigation of an accident or act of 
terrorism, either of which could lead to the release of quantities of 
radiation exceeding a reactor core melt.
    Moreover, as we and many others in the environmental and public 
health community noted to the BRC, current practice at U.S. reactor 
sites allows the spent fuel pools to be filled to near capacity, with 
most pools containing five times as much fuel as the reactor itself. We 
disagree with the Commission's unfounded conclusion that it sees ``no 
unmanageable safety or security issue associated with current methods 
of storage (dry or wet) at existing sites in the United States.'' Final 
Report at 32. This counter-factual conclusion is not borne out by the 
post-9/11 National Academy study of spent fuel storage, or by the 
recent post-Fukushima nuclear safety reviews at U.S. reactors that 
reveal significant deficiencies in back-up spent fuel cooling and 
instrumentation capability under the conditions of a station black-out. 
Particularly with respect to the 23 boiling water reactors (BWRs) in 
the United States, supplying emergency make-up water to a boiling pool 
inside the secondary containment can itself threaten, via excess heat 
and condensation, the performance of other critical reactor safety 
systems. Further, the elevated pools themselves are vulnerable to 
structural damage and debris from hydrogen explosions in a severe 
accident scenario, as occurred during the Fukushima accident.
    In short, unprotected or lightly sheltered spent fuel pools outside 
containment are vulnerable to disabling of their cooling systems in a 
severe natural event--such as a tornado, earthquake, fire, or flood--
and to direct destruction via a terrorist attack. On September 11, 
2001, Flight 11 passed directly over the Indian Point nuclear reactors 
and spent fuel pools, containing tons of discharged fuel in wet 
storage. None of the above-enumerated threats could be considered 
``well-managed'' under current NRC regulations or current independent 
licensee efforts. Congress should confront this matter directly and 
require unpacking of excess fuel from the pools and into hardened 
onsite storage. A pilot storage project that addresses none of these 
issues merely serves to undercut the meritorious sections of S. 3469.

Title IV--Funding and Legal Proceedings
    Sections 401 and 402 set forth terms of ensuring the ``polluter 
pays principle'' is appropriately enshrined in the law. Section 404 
appropriately provides for judicial review of final actions under 
S.3469. Section 406(b)(1)--which requires settlement of all nuclear 
waste breach of contract claims as a condition precedent before the 
Nuclear Waste Administration takes title to and stores any nuclear 
waste for the contract holder-merits particular positive notice as a 
thoughtful method that will ensure settlements and allow the program to 
proceed in an effective fashion. Section 406(d) bars new contracts 
before the Commission has licensed the Administrator to operate a 
repository or storage facility. This provision wisely sidesteps the 
liability issues of the past two decades and creates an incentive for 
all parties to work for a strong, protective nuclear waste storage and 
disposal program.
      recommendation 5--reject closed fuel cycles and reprocessing
    As a final matter, we applaud the focus in S. 3469 on storage and 
disposal rather than dragging into this proposed legislation the red 
herring that is reprocessing. Chairman Bingaman noted:

          The Commission wisely resisted the allure of reprocessing, 
        concluding that there is ``no currently available or reasonably 
        foreseeable'' alternative to deep geologic disposal. In short, 
        we need a deep geologic repository. Even if we were to 
        reprocess spent fuel, with all of the costs and environmental 
        issues it involves, we would still need to dispose of the 
        radioactive waste streams that reprocessing itself produces and 
        we would need to do so in a deep geologic repository.

    We concur. We also note that the analysis of advanced fuel cycle 
technologies contained in the BRC Final Report was inadequate, and its 
broad sweeping conclusions are not supported by a more rigorous 
comparison of current once-through versus advanced closed fuel cycles. 
As we demonstrated time and again to the BRC in our comments (see NRDC 
November 1, 2011 comments at 7-14), one can determine the relative 
attractiveness and economic outlook of various reactor and fuel cycle 
concepts and the likelihood that various options will be implemented in 
the United States.
    Consequently, rather than promoting a large research and 
development (R&D) program covering a wide range of alternative fuel 
cycles, Congress should look at the reality of the federal budget over 
the next decade and narrow the options and focus on those that are most 
promising. Given that there is no current or prospective closed fuel 
cycle that can economically compete with the current open cycle, 
Congress should prioritize R&D funding to support technologies that can 
mitigate climate change in the near-term at the least cost. This 
excludes government funded R&D on closed plutonium fuel cycles.
    Additionally, we are opposed to using (or attempts to use) the 
Nuclear Waste Fund to support development or deployment of reprocessing 
and fast-reactor technologies. Separating responsibility for waste 
management/disposal from other fuel cycle functions is key to garnering 
support and public trust from NRDC and many others, and we support S. 
3469's careful attention to this matter.

Conclusion
    S. 3469 has several important provisions that can help build a 
better nuclear waste management system, but decades from now others 
will face our current predicament unless Congress fundamentally revamps 
how nuclear waste is regulated and allows for meaningful State 
oversight by amending the AEA to remove its express exemptions of 
radioactive material from environmental laws.
    Thank you again for this opportunity and I am happy to answer any 
questions.

    The Chairman. Thank you both for your excellent testimony. 
Let me start with a couple of questions.
    Mr. Barron, many utilities have filed breach of contract 
claims against the Federal Government for failing to take 
nuclear waste as they committed to. In your view, are 
utilities, nuclear utilities, going to be willing to settle 
those breach of contract claims if Congress enacts something 
like we're talking about here with a Nuclear Waste 
Administration that is able to provide storage for the 
utility's spent fuel before a repository is available?
    Mr. Barron. What the utilities would like or what they 
expect is that the performance of removal and taking title to 
fuel in exchange for the fees that pay be accomplished. If that 
is being accomplished through transportation to a consolidated 
interim storage facility then the utility is no longer 
incurring damage. There is no longer an obligation.
    It is simply a question of a performance standard that 
wasn't met. Damages being incurred by the utility. The rate 
payer having to pay those damages.
    Once there is performance under the contract such that 
there are no longer any damages, there are no more damage 
claims to be paid.
    The Chairman. I guess you made reference to the importance 
of going ahead and insuring that the waste at shut down 
reactors be disposed or stored first or disposed of first. Are 
utilities willing to renegotiate the fuel acceptance schedule 
to achieve that result? Because I understand there's a fuel 
acceptance schedule that has already been established that does 
not contemplate that order.
    Mr. Barron. No, actually to the contrary. Within the 
standard contract it provides for the Secretary to give 
priority to fuel which is located at reactors that--at sites 
that do not have an operating--
    The Chairman. So that's already in the----
    Mr. Barron. The contract today would permit that to occur 
and as utilities, as an industry, we have concurred that we 
would not argue with such a determination.
    The Chairman. OK.
    Mr. Fettus, thank you for your comments. I know you were 
instrumental in this litigation that Senator Murkowski has 
referred to a few times here about in before the U.S. Court of 
Appeals for the District of Columbia with regard to the whole 
issue of confidence.
    I guess I would ask you to elaborate a little bit on this 
whole issue of linkage. One of the disputes that we've had or 
not disputes but disagreements, I would say, is whether or not 
we need to make provision in the law, some type of legal 
linkage in the law, that ensures that progress is made toward 
establishment of a permanent repository. As work goes forward 
with, or even storage of waste goes forward, at a storage 
facility or whether that can be left to a negotiation between 
the Federal Government and the individual jurisdictions 
involved.
    Do you have a strong view on that?
    Mr. Fettus. I do, Senator.
    I think you asked the question to the previous panel in a 
precise and correct fashion which is what would the position of 
a state be? What would their ability be to enforce if, for 
example, they made the deal to be a storage facility through a 
consent process and asked for some sort of meaningful oversight 
authority. Then the repository process for a whole host of 
reasons, that are maybe for example, not dissimilar to the last 
2 decades, blows up.
    That state, unless they want to take advantage of throwing 
fuel over the borders which I don't think is a likely option, 
really is in a dreadful position. Why I think your caution 
about the linkage must be in the law and not left to 
negotiation is absolutely correct because for that precise 
reason. States will have no, in our Federal system, states will 
have no significant or serious option to protect themselves if 
they make such deals without 1, meaningful regulatory authority 
and 2, a linkage that you've created in your very sequenced and 
adaptive legislation that allows for the process to go forward.
    Meaning, you cannot store more than--let's say there's a 
deal made on moving some safety, you know, spent fuel near 
seismic areas or near the Mississippi River or and if you--and 
also the stranded fuel, that's done. But at a certain point it 
stops unless there's a repository program ongoing. That has to 
be in the law or states will be essentially out of luck.
    So I think you've done it precisely right with the 
inclusion of what we suggested in our testimony.
    The Chairman. Senator Murkowski.
    Senator Murkowski. Mr. Barron, let me ask you the same 
question that I asked of the previous panel. That again relates 
to the D.C. Court of Appeals remand. What we heard from Dr. 
Lyons and General Scowcroft was that they didn't feel that this 
decision was going to impact negatively or delay any new builds 
or relicensing of existing reactors.
    Would you agree with them or do you have a different 
opinion?
    Mr. Barron. My opinion would be that I would agree with 
them. It's not clear. I mean, legally the NRC cannot issue 
those licenses that would depend on that waste, the confidence 
determination. I think there's still some work going on within 
the legal part of the NRC to determine exactly which types of 
licenses those are. That's not completely clear yet.
    The NRC does recognize that a lot of work has been done 
that supports a waste determination process. They think they 
can draw on that work. Within the 24-month period that Dr. 
Lyons spoke to, the NRC believes that they can produce a new 
rule.
    That would not surprise me. However if from there, there 
were further appeals on that just as the process moves along 
but it does not appear at this time that that particular action 
will have a detrimental effect. It's conceivable. But at this 
time does not appear to be probable.
    Senator Murkowski. Senator Cantwell focused on defense 
waste. In her opinion the need to address that specifically 
can--will either of you comment on her proposal that that be 
clearly defined, that the defense waste is addressed in a 
manner specific or certain to any legislation that might move 
forward.
    Mr. Barron. As an industry we have no opposition to the co-
mingling of the waste nor would we necessarily be opposed to a 
separation of those. I think at the root of the problem whether 
it's defense waste or commercial waste, is the necessary 
actions that will take to get a repository open in either case. 
Energy is focused on that, on removing whatever impediments 
there might be either to implementing the repository program as 
is defined under current law or creating a new law that would 
create an alternative to repository and have within it those 
provisions that would enable it to be successful. That is the 
underpinning of the problem that has to be addressed whether 
you're talking commercial nuclear waste or defense wastes.
    Senator Murkowski. Mr. Fettus.
    Mr. Fettus. Thank you, Senator Murkowski.
    There was an interesting day during one of the hearings of 
the Blue Ribbon Commission where 2 very estimable people from 
very disparate sides of the chess board on these issues, 
Beatrice Braillsford of the Snake River Alliance in Idaho and 
Steve Kraft of the Nuclear Energy Institute. Two very fine 
people, both completely agreed that the waste should be co-
mingled, that there's--that while there could be reasons in the 
structure of the fuel and the heat loading that there could be 
different repositories. What we need to have going is a 
repository program.
    So we have great faith that the kind of process that 
Senator Bingaman has set up here to move forward on the BRC's 
recommendations is--meets the needs of both the environmental 
community as well as the nuclear industry. That that's where 
the focus needs to be. Both high level waste from defense 
processes, from spent nuclear fuel reprocessing and spent fuel, 
need to go in a repository.
    Senator Murkowski. Thank you, Mr. Chairman.
    The Chairman. Senator Portman.
    Senator Portman. Thank you, Mr. Chairman.
    I apologize I was not here earlier. I was hoping to come to 
here Brent Scowcroft as well as you gentlemen. If I could just 
on the record congratulate General Scowcroft and also 
Congressman Hamilton for their good work. Thank them for their 
service. Say that I hope that we'll listen to some of the 
recommendations which seem so sensible.
    One of the ones that they recommended was that Congress get 
its act together with regard to the Appropriations process. I 
was frankly surprised to learn that the Nuclear Waste Fund 
which collects about $750 million bucks a year has a balance of 
$26 billion. Really because of the fight over disposal and 
specifically over Yucca Mountain, those funds have not been 
dispensed.
    I assume, Mr. Barron, as you look at the industry and its 
future that that's a concern of yours as well. Could you 
comment on that?
    Mr. Barron. Yes.
    The funds have been appropriated for a particular purpose. 
They are obligated both by statute and by contract for that 
particular purpose. The treatment of those funds as otherwise 
discretionary in terms of how they are made available just 
doesn't seem to have a rationale to it.
    The revolving or the capital waste fund that is suggested 
in this legislation, we believe, is the right way to go. But 
there shouldn't be the restrictions that subjected to the 
annual appropriations and authorizations process that are 
proposed in this legislation.
    We think it's a good step forward. But it has not quite 
arrived in terms of making the funds available that would 
enable any entity to meet any obligations that it enters into.
    Senator Portman. For you is this a matter of providing more 
certainty as to the liabilities and the costs?
    Mr. Barron. I think all the pieces have to go together. I 
don't think we can separate the waste fund from an effective 
management entity that has the wherewithal and continuity of 
leadership to be able to deliver it from the need for a consent 
based siting. The package of items that were put together and 
were put together by the BRC very well, really all fit 
together. We can't really isolate one as being key, more key 
than the other ones.
    Senator Portman. One of the things that they also talked 
about was in their report and I assume it's been part of your 
testimony today. I apologize I didn't hear it all. But that 
there needs to be an implementation plan, the Administration 
was supposed to have released its plan in July.
    I assume you've talked about this already and again, I 
apologize if I didn't hear your testimony earlier and either of 
you can respond.
    But one, why do you believe that the Administration has not 
responded including to the inquiries from the BRC?
    Second, what impact does this have on the industry in 
particular? Are you looking for more leadership from the 
Administration to, again, provide a way forward?
    Mr. Barron. I think it's important that we get leadership, 
seriousness about this problem from the Administration, the 
establishment of the BRC which as was previously stated, 
clearly was a Blue Ribbon panel. I think they made a very good 
effort in putting that together and charging them to come up 
with these recommendations.
    My hope that that attention and that priority that they put 
on when they established that panel can continue and that we 
can get actions and support from this Administration or the 
next Administration on those actions.
    Senator Portman. Mr. Fettus, are you eager to see the 
implementation plan or do you think that's not an important 
part of moving forward?
    Mr. Fettus. I think it's going to be very important when 
the Administration comes forward with it they answered a 
substantial number of questions from Senator Murkowski earlier 
in the hearing. We'd like to see it too.
    Senator Portman. Thank you, gentlemen.
    Thank you, Mr. Chairman.
    The Chairman. Senator Murkowski, did you have additional 
questions?
    Senator Murkowski. I did not, thank you.
    The Chairman. Let me thank these 2 witnesses. I think it's 
been excellent testimony.
    Let me indicate we have 3 statements for the record.
    One from the National Association of Regulatory Utility 
Commissioners.
    One from Energy Communities Alliance.
    One from the Eddie Lee Energy Alliance.
    We will include those in the record.
    The Chairman. Again, we appreciate the good testimony. I 
think it's been a useful hearing.
    That will conclude our hearing.
    [Whereupon, at 11:15 a.m. the hearing was adjourned.]


                               APPENDIXES

                              ----------                              


                               Appendix I

                   Responses to Additional Questions

                              ----------                              

    Responses of Henry B. Barron to Questions From Senator Cantwell

    I believe a key part of solving our nation's nuclear waste 
challenges is to recognize that we need to prioritize addressing 
certain types of waste first--such as waste stranded at shutdown 
reactor sites and defense waste that has built up for decades. Not all 
nuclear waste is the same, and I do not plan to support any legislation 
that does not remedy the mistakes of the past that has precluded more 
feasible solutions for our nation's defense waste.
    As I'm sure you know, Hanford is the largest nuclear cleanup site 
in North America. We have been diligently trying to clean up this site, 
an incredible complex and costly endeavor. While it is a constant 
struggle to keep this monumental effort on track, I proud of incredible 
efforts of Hanford workers and we are making real progress. But we need 
an end point. Once we clean up and isolate this toxic legacy, we need a 
place for it to go.
    It is unacceptable to me, and to the constituents I represent, for 
Hanford to be the de facto repository for 90 percent of the nation's 
high-level radioactive defense waste.
    While proud of the service to help secure our nation during World 
War II and the Cold War, the Tri-Cities region has contributed and 
sacrificed enough during the 70 years in which a large portion of my 
state has been put off limits to economic development or other uses.
    The problem as I see it is that our nation's nuclear waste policy 
treats civilian nuclear waste and defense waste the same, with defense 
waste almost as an afterthought. That's a problem for two important 
reasons: First, our defense waste is not suitable for on-site storage 
and Hanford's Waste Treatment Plant is scheduled to produce vitrified 
high level waste in 2019. And second, defense waste is a witch's brew 
of nuclear byproducts that can never be reprocessed for electricity 
generation. Therefore, it can be disposed of permanently, possibly in 
ways that are faster and cheaper than civilian waste.
    Question 1a. Do you agree that nuclear waste that we would never 
want to retrieve but can be permanently disposed of should be treated 
differently?
    Answer. Nuclear waste, both commercial used fuel and defense 
related materials, must be disposed of and can be disposed of in the 
same geologic repository as was the plan with the Yucca Mountain 
repository.
    There are two issues to consider in the context of retrievability: 
nuclear fuel recycle (only applicable to commercial used nuclear fuel) 
and safety.
    I agree that the geologic disposal facility for defense wastes 
should not have a retrievability requirement associated with it other 
than for safety considerations. In regards to safety, the very 
successful Waste Isolation Pilot Plant addresses this issue in the 
governing regulations, 40 CFR 194.4(b)(1), by requiring the DOE to 
retrieve as soon as practicable and to the extent practicable any waste 
placed in the Waste Isolation Pilot Plant (WIPP) if the EPA 
Administrator revokes WIPP's certification. A similar approach for the 
disposal of the remaining defense related wastes would be acceptable.
    Imposing a retrievability requirement on commercial used fuel for 
the purpose of recycling is also not necessary for near term disposal 
efforts. If the search for a second repository, other than Yucca 
Mountain, is conducted it would be unfortunate to reject out-of-hand an 
otherwise acceptable site because it would be impossible to retrieve a 
waste package from that site for the purpose of recycling.
    Lack of retrievability does not eliminate the potential for recycle 
of commercial used nuclear fuel. Even if the United States decides to 
begin recycling commercial used nuclear fuel after placing it in a 
repository, there will still be more than enough used fuel available 
for recycling without having to retrieve it from the repository. Given 
the time frames involved in restarting and completing the Yucca 
Mountain repository, or developing, planning, licensing, and 
constructing a new repository, it is doubtful that significant amounts 
of used fuel will have been placed in a repository by the time 
recycling technologies could be deployed at commercial scale.
    Question 1b. Have you studied whether permanent disposal in salt 
formations could be a cheaper and more readily available alternative to 
other geological storage options?
    Answer. Geologic disposal in salt formations is technically 
feasible for both defense wastes and commercial used nuclear fuel. 
However, I am unable to offer an opinion about whether disposal in salt 
could be less expensive in the long term relative to other geologic 
formations. At this point, the quickest path to a deep geologic 
repository would be the continuation of the Yucca Mountain project. 
Extensive studies and testing have already been performed at the site 
and the NRC review of the license application should be completed. If 
the search for a second repository begins, the total cost to dispose of 
both commercial and defense related materials should be one of the 
factors used to choose a site in a willing host community and state.
    Question 1c. How do we make sure that defense waste does not get 
lost in the nuclear waste debate this time around?
    Answer. Increased focus on this issue by both the Administration 
and Congress is needed to ensure that both defense waste and commercial 
used nuclear fuel are properly disposed. The industry believes that 
consolidated storage, as recommended by the Blue Ribbon Commission, is 
the quickest route for the federal government to begin moving used fuel 
from nuclear energy facilities and to stem the increase in damage. In 
addition to storing used nuclear fuel from commercial facilities, a 
consolidated storage facility could also store DOE and U.S. naval 
reactor fuel. This could provide a pathway for the federal government 
to meet its obligations to remove this material from the various states 
where it is stored.
    Question 2. Unfortunately, the requirement that nuclear waste be 
retrievable for up to a century blocks many potential sites. There are 
communities that would welcome our nation's nuclear waste; but while 
they are located near technically-sound, cost-effective geologic 
formations, high level waste placed there cannot be retrieved.
    So maybe it's time to reconsider this retrievability requirement. 
The mere possibility of future uses for the nuclear waste should not 
block progress on siting a nuclear repository and geologically 
disposing of our nation's nuclear waste. This is especially true for 
defense waste, which has even lower prospects for reuse than commercial 
waste.
    Question 2a. Given the bleak prospects for recycling or otherwise 
using nuclear waste, should this retrievability requirement block 
siting a repository in a technically-sound, cost-effective place that 
is willing to accept waste?
    Answer. As discussed above in the answer to question 1a, 
retrievability should be a consideration in repository design. However, 
retrievability should not be the sole consideration and should not 
necessarily block the siting of a repository in a willing host 
community and state.
    Question 2b. If the insistence on this retrievability requirement 
for commercial waste continues, do you think we ought to consider a 
separate repository for defense waste without such a restriction--a 
potential dual-path forward envisioned by the original Nuclear Waste 
Policy Act of 1982?
    Answer. The issue of retrievability should not stand in the way of 
the disposal of either commercial used fuel or defense wastes and 
retrievability should only be one of many considerations in repository 
design and should not necessarily block the siting of a repository in a 
willing host community and state.
    Question 3. After 25 years of getting nowhere with political 
wrangling, I believe we need to correct our course and get back to the 
basics of science, economics, and consensus-building. We need to find 
places with technically-sound cost-effective geologies that want to 
host a repository. And we need to ensure that these new places have the 
capacity to take all of our nation's nuclear waste, both commercial and 
defense.
    The Yucca saga illustrates the problem of allowing politics to 
overwhelm science and economics. And why we need to get back to the 
basics envisioned in the original Nuclear Waste Policy Act of 1982. We 
know that the geologic formations at Yucca do not necessarily offer the 
most cost effective solution, and there are still questions about 
whether they even offer a safe, technically-sound environment for long-
term geologic storage. Yucca is tectonically active, with both seismic 
and volcanic activity. Faulting, or shifting of tectonic plates, could 
allow water to corrode the waste packages and transport nuclear 
material well beyond the repository. Volcanic activity could 
potentially disperse radionuclides into the atmosphere and ground 
water.
    While the risk of volcanic activity at Yucca is highly uncertain, 
the Yucca site is bounded by numerous known faults: among others, the 
Solitario Canyon and Sundance faults to the west and the Ghost Dance 
fault to the east.
    In 1992, a 5.6-magnitude earthquake originated just 13 miles south 
of Yucca. And in June 2002, a 4.4-magnitude earthquake struck slightly 
further to the east of Yucca. These events are not exactly reassuring 
to the millions of Americans downstream or downwind of Yucca.
    Question 3a. Do you see the Blue Ribbon Commission recommendations 
and Chairman Bingaman's legislation as a renewed call to correct our 
course? Choosing science, economics, and consensus over the failed 
political wrangling of the past 25 years, going back to many of the 
principles of the original Nuclear Waste Policy Act of 1982?
    Answer. The industry applauded the efforts of the Blue Ribbon 
Commission and believes it successfully outlined a path forward that 
Congress and the Administration should follow. The industry also 
compliments Chairman Bingaman for proposing legislation that would 
implement a portion of the Commission's recommendations and for 
continuing the dialogue concerning used nuclear fuel management. The 
nuclear industry is committed to participating in this dialogue and to 
creating a sustainable federal used fuel and defense waste management 
program. The most appropriate path to a science based determination of 
the acceptability of the Yucca Mountain repository is to enable the 
nation's nuclear safety regulatory body, the Nuclear Regulatory 
Commission, to complete the review of the Yucca Mountain license 
application.
    Completing the licensing process, regardless of the outcome, would 
offer valuable scientific and regulatory insights and data for future 
disposal efforts in addition to the vast amounts of scientific data 
already accumulated for the Yucca Mountain repository.
    Question 3b. For such a complex challenge as disposing of nuclear 
waste for millions of years, do you believe technical considerations 
should trump political ones to the maximum extent possible?
    Answer. As stated in this question, the challenge of used nuclear 
fuel disposal is a complex one and isolating the federal program from 
undue political influence will be essential to the long term success of 
the program. To this end, the industry fully supports the Blue Ribbon 
Commission's recommendation for the formation of a new management 
entity to assume responsibility for this program. The new management 
entity must have guaranteed access to the nuclear waste fund and the 
nuclear waste fees, and the authority to pursue options within the 
bounds of US laws and regulations.
    If additional repositories are sited, technical considerations will 
bear heavily on the feasibility of a site. However, political 
considerations will also have to be addressed through an open and 
collaborative process where the willing host community and state have 
the right to shape the program in a consent-based process.
    Question 4. I would like to discuss the economics of different 
geologic formations. While there are multiple ways and places to secure 
nuclear waste safely, the costs of doing so are different. I believe 
that these costs should be considered when selecting among technically-
sound sites.
    A recent study compared the costs of repositories capable of 
holding 83,000 metric tons of heavy metals in different geologic media. 
It found that siting a repository in volcanic tuff or crystalline rock 
costs two to three times that of a repository in massive salt 
formations.
    These extra costs came primarily from the development and 
characterization of the site, more expensive and complex surface and 
subsurface facilities, and extensive packaging, barriers and shields 
necessary to keep the waste intact. Because of the potential cost 
savings, I think we need to take a hard look at salt formations 
throughout the country as potential sites for a repository.
    Question 4a. Do you believe that cost should be an important factor 
when selecting among sites that can safely dispose of waste and have 
support within the community?
    Answer. If a second repository siting process is begun, cost should 
be considered when looking at various sites, but it is only one of many 
considerations. For example, the cost to the taxpayer for the disposal 
of defense wastes may be reduced if the cost of developing a single 
repository for both commercial and defense wastes is partially offset 
with funds from the nuclear waste fund. For this reason, consideration 
of a single geologic repository should remain an option.
    Question 4b. Do you agree that salt formations could deliver 
potential cost savings compared to other geologic media types and 
deserve consideration?
    Answer. I am unable to offer an opinion on the potential cost 
savings of a particular geology compared to another. As previously 
discussed, cost should be only one factor in the site determination 
process for additional repositories.
    Question 5. It is simply unacceptable for Hanford to become the de 
facto repository for 90 percent of the nation's high-level radioactive 
defense waste. Back in the 1980's when a number of repository sites 
were analyzed, Hanford placed last in terms of cost-effectiveness.
    These high costs were in part due to the extraordinary technical 
challenges. According to a National Research Council report, the high 
internal stresses within the basalt formation at Hanford poses a risk 
of ``rock bursts'' when opened up to atmospheric pressure. And the U.S. 
Geological Survey found that the high water pressure in the deep 
aquifer poses the danger of catastrophic flooding.
    Question 5a. Do the cost-effectiveness of meeting technical 
requirements and inherent suitability of a site go hand-in-hand?
    Answer. As previously discussed, cost will only be one factor in 
the site determination process if a search for additional repositories 
is initiated.
    Question 5b. Do you agree that cost-effectiveness is an important 
consideration that partially takes the suitability of a repository site 
into account?
    Answer. I agree that cost effectiveness will be an important 
consideration. However, it must be viewed holistically with other 
considerations.
    Question 6. I am pleased to see that this legislation repeals the 
limit on the amount of waste able to be disposed at a repository. This 
was a well-kept secret about Yucca. Even if Yucca were licensed under 
current law, it would not be able to accommodate all of our nuclear 
waste, neither civilian nor defense. I believe a litmus test for any 
new federal nuclear waste policy is whether it can dispose of our 
nation's nuclear waste--all of it.
    This has been one of my biggest concerns with the Yucca proposal. 
Of the 70,000 ton limit for waste at Yucca, only 7,000 tons were set 
aside for defense waste. Of that 7,000 tons for defense waste, only 
4,667 tons would be allocated for high level waste.
    Although the total number of tons of high level defense waste is 
somewhat uncertain, just three percent of DOE's inventory of vitrified 
High Level Waste would be accounted for under the planning basis of 
4,667 tons of heavy metal for DOE High Level Waste when compared to 
over 170,000 tons of heavy metal DOE reprocessed fuel.
    In practice, a higher percentage could probably be accommodated 
because a portion of the radioactivity has already been lost. According 
to an historical estimation method, the limit of high level defense 
waste at Yucca would still not have been able to accommodate the high 
level waste at Hanford because this limit accounts for less than half 
of all defense high level waste.
    An even smaller percentage of Hanford waste would have been able to 
go to Yucca under current law. Any way you cut it, there simply is not 
enough capacity without a repeal of this limit.
    Question 6a. Are there any technical or safety reasons for the 
current limit of 70,000 tons? If so, does this mean that we need 
multiple repositories to accommodate all of our nation's waste?
    Answer. There are no technical or safety reasons for the current 
legal limit of 70,000 MTU for the Yucca Mountain repository. Both the 
Department of Energy and the Electric Power Research Institute have 
estimated that the Yucca Mountain repository could hold more than 
125,000 MTU. Therefore, if the Yucca Mountain repository is opened and 
the legal limit of 70,000 MTU is lifted, it would be decades before a 
second repository would be needed, if at all.
    Question 6b. Why do you think over half of our nation's high level 
defense waste was left out of the plan at Yucca?
    Answer. I am not in a position to offer an opinion as to the legal 
capacity of defense related waste in the Yucca Mountain repository. 
However, if the Yucca Mountain repository is opened and the legal limit 
of 70,000 MTU is lifted, there would be ample space available for both 
commercial and defense related wastes.

    Responses of Henry B. Barron to Questions From Senator Barrasso

    Question 1. In your testimony, you state that a new Federal used-
fuel-management corporation is needed. Specifically, you say that: ``A 
key element to the long-term success of a federal program is 
establishing a new entity to assume program management responsibility 
from the DOE.'' A. Why do you believe a new Federal corporation is 
needed to manage the nation's nuclear waste? B. Is there any reason why 
DOE couldn't manage the nation's nuclear waste if given sufficient 
authorization by Congress? If we pursue a consent-based process, won't 
we significantly reduce the likelihood that political pressure will 
interfere with siting decisions?
    Answer. A. There are two reasons why a federal corporation solely 
dedicated to implementing the used fuel management program is needed: 
sustainable access to its dedicated funding and sustainability of 
dedicated program leadership essential to accomplishing the mission.
    The Nuclear Waste Fund, as originally conceived, was intended to be 
dedicated to the federal used fuel program. However, since 1982 there 
have been changes to the federal budget process that now make the used 
fuel management program compete with the rest of the federal 
appropriations process for receiving its own funds. Properly written, 
new legislation should dedicate the Nuclear Waste Fund, Fees and earned 
interest to a new federal corporation for the purpose for which it was 
paid.
    A dedicated federal corporation where the CEO answers to the Board 
of Directors and is not subject to the political appointment process 
would be able to create an organization that has a single focus on its 
mission, safety culture, management systems and processes. Regardless 
of its mission as established under the law, the current administration 
has demonstrated that an administrative department is not sufficiently 
insulated from the political cycles to support a program of this 
importance and duration.
    Answer. B. As the history of the federal used fuel management 
program demonstrates, further insulation from political uncertainties 
is needed. While the consent-based siting approach might help with 
reducing political pressures on siting a second repository, it is not 
sufficient. For example, the consent-based approach does not address 
access to dedicated funding-a key issue for the sustainability of the 
program.
    Question 2. In your testimony, you state that: ``Industry supports 
the concept of a federal corporation as outlined in the [Blue Ribbon 
Commission's] report.'' How widespread is industry's support for the 
creation of a new organization to manage our nation's nuclear waste?
    Answer. Industry support for a federal corporation as outlined by 
the BRC is widespread as evidenced by industry testimony to the BRC and 
the diverse support from NEI members companies and NEI's board of 
directors, as well as the National Association of Regulatory Utility 
Commissioners.
    Question 3. In your testimony, you state that the Federal 
government: ``should not attempt to . . . impose restrictions on the 
development of a consolidated storage facility that are linked to 
milestones related to a disposal program.'' If the Federal government 
does not set any conditions on temporary storage facilities, how do we 
prevent temporary storage facilities from effectively becoming a long-
term solution?
    Answer. Included in my testimony was a comparative evaluation of 
the schedules for a consolidated storage facility and a restarted Yucca 
Mountain project. This timeline demonstrates that even with the most 
ambitious plans for both projects, a consolidated storage facility is 
the fastest way to begin to move used fuel and lessens the liabilities 
for the federal government. But these two processes need to move ahead 
in parallel, as consolidated storage is not the final solution. As 
constructed above, a federal corporation dedicated to the achievement 
of both these objectives provides the greatest potential for success.
    One of the tenets of the consent-based approach is flexibility to 
work with interested communities to form an agreement that considers 
local concerns, including the fear of becoming a de facto long-term 
storage facility. Certain negotiated timelines or incentives could be 
included to allay those fears. But any direct linkage between the 
siting of repository and the siting of a consolidated storage facility 
risks further delays in an already stymied program.
    Question 4. In your testimony, you explain that taxpayer liability 
for DOE's failure to remove nuclear waste from nuclear energy 
facilities will reach $20.8 billion in 2020. You also say that: ``By 
2040, the damages paid by the taxpayer could be as much as $30 
billion,'' and that: ``Consolidated storage . . . is the quickest route 
for the federal government to . . . stem the increase in damage 
awards.'' Are there other reasons for the Federal government to develop 
consolidated storage facilities? If so, what are they?
    Answer. The primary motivation for a consolidated storage facility 
is to have a facility where the federal government can move used fuel 
to and begin to meet its statutory and contractual obligations until a 
repository is available. Once the facility is constructed and 
operational for this purpose, I can envision the facility having 
additional benefits. For example, there is currently a research effort 
underway to study the long term effects on used fuel of extended 
storage in dry casks beyond the time periods originally contemplated. 
Additional research facilities may be necessary for this effort and a 
logical location for such facilities could be the consolidated storage 
facility.
                                 ______
                                 
  Responses of Lieutenant General Scowcroft and Richard A. Meserve to 
                    Questions From Senator Cantwell

    Question 1. I believe a key part of solving our nation's nuclear 
waste challenges is to recognize that we need to prioritize addressing 
certain types of waste first-- such as waste stranded at shutdown 
reactor sites and defense waste that has built up for decades. Not all 
nuclear waste is the same, and I do not plan to support any legislation 
that does not remedy the mistakes of the past that has precluded more 
feasible solutions for our nation's defense waste.
    As I'm sure you know, Hanford is the largest nuclear cleanup site 
in North America. We have been diligently trying to clean up this site, 
an incredible complex and costly endeavor. While it is a constant 
struggle to keep this monumental effort on track, I proud of incredible 
efforts of Hanford workers and we are making real progress. But we need 
an end point. Once we clean up and isolate this toxic legacy, we need a 
place for it to go.
    It is unacceptable to me, and to the constituents I represent, for 
Hanford to be the de facto repository for 90 percent of the nation's 
high-level radioactive defense waste.
    While proud of the service to help secure our nation during World 
War II and the Cold War, the Tri-Cities region has contributed and 
sacrificed enough during the 70 years in which a large portion of my 
state has been put off limits to economic development or other uses.
    The problem as I see it is that our nation's nuclear waste policy 
treats civilian nuclear waste and defense waste the same, with defense 
waste almost as an afterthought.
    That's a problem for two important reasons: First, our defense 
waste is not suitable for on-site storage and Hanford's Waste Treatment 
Plant is scheduled to produce vitrified high level waste in 2019. And 
second, defense waste is a witch's brew of nuclear byproducts that can 
never be reprocessed for electricity generation. Therefore, it can be 
disposed of permanently, possibly in ways that are faster and cheaper 
than civilian waste.
    Question 1a. Do you agree that nuclear waste that we would never 
want to retrieve but can be permanently disposed of should be treated 
differently?
    Answer. The Reagan Administration decided that defense and civilian 
waste should be disposed of together with commercial waste 
(``commingled'') in ``one or more of the repositories to be developed 
under [the Nuclear Waste Policy Act]'' (the default option in the Act) 
rather than using a separate defense-only repository developed outside 
of the context of the Act. The properties of defense waste and civilian 
waste are different from each other, which could open up different 
disposal options that would still meet generally applicable regulatory 
standards, and, as you note, it is highly unlikely that defense waste 
will ever be considered for reprocessing. Moreover, the circumstances 
are now different from those at the time of the Reagan Administration 
decision, including the facts that the development of a repository 
under the Nuclear Waste Policy Act has been delayed and that the 
Department of Energy has entered into various agreements requiring the 
removal of defense waste by dates certain. These considerations argue 
for a reconsideration of the decision to commingle the waste. However, 
the difficulty to date of establishing even a single repository and the 
cost of licensing two repositories are considerations that point to 
maintenance of a commingled repository. The BRC did not make a 
recommendation to resolve the issue, but 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.''
    Question 1b. Have you studied whether permanent disposal in salt 
formations could be a cheaper and more readily available alternative to 
other geological storage options?
    Answer. Geology is a very important factor in disposal and will 
affect costs. However, the BRC discussed the various geologic options 
in only a general way, without evaluating their relative merits:

          The rock types that have been considered for a deep geologic 
        repository have included bedded and domed rock salts, 
        crystalline rocks (i.e., granite or gneiss), clay, shale, 
        volcanic tuffs, basalt, and various other types of sedimentary 
        rocks. Each of these rock types and their particular geologic 
        environments have advantages and disadvantages from a strictly 
        technical perspective, and different geologic settings and 
        emplacement methods may be better for particular types of 
        waste. However, many or all of them may ultimately be found to 
        demonstrate acceptable performance for a wide range of 
        wastes.''

    We note, however, the Waste Isolation Pilot Plant for defense 
transuranic waste is in salt and has been very successful to date.
    Question 1c. How do we make sure that defense waste does not get 
lost in the nuclear waste debate this time around?
    Answer. The Nuclear Waste Policy Act of 1982, as amended, does 
address defense wastes. Any future legislation should do so as well. 
Moreover, as noted above, the BRC recommended reexamination of the 
commingling decision.
    Question 1d. By not addressing defense waste specifically, does 
that imply that you and the Blue Ribbon Commission believe defense 
waste should be treated separately from civilian waste?
    Answer. As discussed above, the BRC recognized the potential to 
treat defense and civilian wastes separately and urged the 
Administration to launch an immediate review of the matter.
    Question 2. Unfortunately, the requirement that nuclear waste be 
retrievable for up to a century blocks many potential sites. There are 
communities that would welcome our nation's nuclear waste; but while 
they are located near technically-sound, cost-effective geologic 
formations, high level waste placed there cannot be retrieved.
    So maybe it's time to reconsider this retrievability requirement. 
The mere possibility of future uses for the nuclear waste should not 
block progress on siting a nuclear repository and geologically 
disposing of our nation's nuclear waste. This is especially true for 
defense waste, which has even lower prospects for reuse than commercial 
waste.
    Question 2a. Given the bleak prospects for recycling or otherwise 
using nuclear waste, should this retrievability requirement block 
siting a repository in a technically-sound, cost-effective place that 
is willing to accept waste?
    Answer. The BRC concluded that any decision to pursue recycling 
should be deferred, but that the option to recover the energy value of 
at least some spent fuel should be preserved for future generations. We 
recommended the pursuit of R&D related to recycling so that such an 
option could be available in the future. As you note, it is highly 
unlikely that defense waste will be recycled and thus the preservation 
of the opportunity to recycle is not important for that waste.
    Your question points to the challenge of retrievability for up to a 
century. Retrievability for some period has generally been viewed as 
desirable not only to provide the opportunity for recycling as to 
enable the monitoring of the repository in its early years and to 
reverse course if necessary if that monitoring reveals unexpected 
problems. BRC concluded that retrievability requirements for this 
purpose are reasonable, and that the current requirements can be met in 
a wide range of media including salt:

          Our view is that existing requirements concerning 
        retrievability at mined repository sites (at 40 Code of Federal 
        Regulations [CFR] 191 and 10 CFR 60.111 (b)) are appropriate 
        and should be retained. These requirements are intended to 
        ensure that emplaced waste can be removed if the repository is 
        not behaving as anticipated or if its performance is called 
        into question for any reason prior to permanent closure--they 
        are not intended for the purpose of retaining easy access to 
        emplaced materials for possible later recovery and reuse. Past 
        evaluations have indicated that a wide range of candidate mined 
        repository sites in different geologic media (including 
        granite, salt and volcanic tuff) could meet these existing 
        retrievability requirements. On the other hand, we recognize 
        that the same level of retrievability may not be practical or 
        necessary in the context of other disposal approaches, such as 
        deep boreholes. In that case, related regulatory requirements 
        and time periods can and should be reassessed as part of a 
        larger evaluation of disposal system performance objectives.''

    Question 2b. If the insistence on this retrievability requirement 
for commercial waste continues, do you think we ought to consider a 
separate repository for defense waste without such a restriction--a 
potential dual-path forward envisioned by the original Nuclear Waste 
Policy Act of 1982?
    Answer. As noted in response to your previous question, the BRC 
recommended the reexamination of the decision to commingle defense with 
civilian waste. However, while allowed by the Nuclear Waste Policy Act, 
a defense-only repository would still be subject to the same NRC 
regulations that apply to a repository containing commercial waste. It 
thus would have to meet the same retrievability requirements. As noted 
above, past evaluations indicate that a wide range of geologic media, 
including salt, can meet these requirements.
    Question 3. After 25 years of getting nowhere with political 
wrangling, I believe we need to correct our course and get back to the 
basics of science, economics, and consensus-building. We need to find 
places with technically-sound, cost-effective geologies that want to 
host a repository. And we need to ensure that these new places have the 
capacity to take all of our nation's nuclear waste, both commercial and 
defense.
    The Yucca saga illustrates the problem of allowing politics to 
overwhelm science and economics. And why we need to get back to the 
basics envisioned in the original Nuclear Waste Policy Act of 1982. We 
know that the geologic formations at Yucca do not necessarily offer the 
most cost effective solution, and there are still questions about 
whether they even offer a safe, technically-sound environment for long-
term geologic storage.
    Yucca is tectonically active, with both seismic and volcanic 
activity. Faulting, or shifting of tectonic plates, could allow water 
to corrode the waste packages and transport nuclear material well 
beyond the repository. Volcanic activity could potentially disperse 
radionuclides into the atmosphere and ground water.
    While the risk of volcanic activity at Yucca is highly uncertain, 
the Yucca site is bounded by numerous known faults: among others, the 
Solitario Canyon and Sundance faults to the west and the Ghost Dance 
fault to the east.
    In 1992, a 5.6-magnitude earthquake originated just 13 miles south 
of Yucca. And in June 2002, a 4.4-magnitude earthquake struck slightly 
further to the east of Yucca. These events are not exactly reassuring 
to the millions of Americans downstream or downwind of Yucca.
    Question 3a. Do you see the Blue Ribbon Commission recommendations 
and Chairman Bingaman's legislation as a renewed call to correct our 
course? Choosing science, economics, and consensus over the failed 
political wrangling of the past 25 years, going back to many of the 
principles of the original Nuclear Waste Policy Act of 1982?
    Answer. The BRC did not render an opinion on the suitability of the 
Yucca Mountain site, but instead 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. Chairman Bingaman's legislation, which incorporates 
many of the changes to existing law that will be required to implement 
the Commission's recommendations, is a very helpful step in the process 
of revisiting our national policy with regard to the disposition of 
high level nuclear waste.
    Question 3b. For such a complex challenge as disposing of nuclear 
waste for millions of years, do you believe technical considerations 
should trump political ones to the maximum extent possible?
    Answer. The highest priority should be to ensure that any 
repository isolates high level nuclear waste from the human environment 
for the necessary long periods of time.
    Question 4. I would like to discuss the economics of different 
geologic formations. While there are multiple ways and places to secure 
nuclear waste safely, the costs of doing so are different. I believe 
that these costs should be considered when selecting among technically-
sound sites.
    Answer. A recent study compared the costs of repositories capable 
of holding 83,000 metric tons of heavy metals in different geologic 
media. It found that siting a repository in volcanic tuff or 
crystalline rock costs two to three times that of a repository in 
massive salt formations.
    These extra costs came primarily from the development and 
characterization of the site, more expensive and complex surface and 
subsurface facilities, and extensive packaging, barriers and shields 
necessary to keep the waste intact. Because of the potential cost 
savings, I think we need to take a hard look at salt formations 
throughout the country as potential sites for a repository.
    Question 4a. Do you believe that cost should be an important factor 
when selecting among sites that can safely dispose of waste and have 
support within the community?
    Answer. As noted above, cost should not be the most important 
factor in determining an appropriate location for a disposal facility. 
It might be one of the factors that serves as a ``tie-breaker'' for 
sites that are otherwise acceptable.
    Question 4b. Do you agree that salt formations could deliver 
potential cost savings compared to other geologic media types and 
deserve consideration?
    Answer. The BRC did not consider the advantages and disadvantages 
of various types of geology for a disposal facility.
    Question 5. It is simply unacceptable for Hanford to become the de 
facto repository for 90 percent of the nation's high-level radioactive 
defense waste. Back in the 1980's when a number of repository sites 
were analyzed, Hanford placed last in terms of cost-effectiveness.
    These high costs were in part due to the extraordinary technical 
challenges. According to a National Research Council report, the high 
internal stresses within the basalt formation at Hanford poses a risk 
of ``rock bursts'' when opened up to atmospheric pressure. And the U.S. 
Geological Survey found that the high water pressure in the deep 
aquifer poses the danger of catastrophic flooding.
    Question 5a. Do the cost-effectiveness of meeting technical 
requirements and inherent suitability of a site go hand-in-hand?
    Answer. The suitability of a site is an essential ingredient is 
establishing the effectiveness of a site.
    Question 5b. Do you agree that cost-effectiveness is an important 
consideration that partially takes the suitability of a repository site 
into account?
    Answer. Yes.
    Question 6. I am pleased to see that this legislation repeals the 
limit on the amount of waste able to be disposed at a repository. This 
was a well-kept secret about Yucca. Even if Yucca were licensed under 
current law, it would not be able to accommodate all of our nuclear 
waste, neither civilian nor defense. I believe a litmus test for any 
new federal nuclear waste policy is whether it can dispose of our 
nation's nuclear waste--all of it.
    This has been one of my biggest concerns with the Yucca proposal. 
Of the 70,000 ton limit for waste at Yucca, only 7,000 tons were set 
aside for defense waste. Of that 7,000 tons for defense waste, only 
4,667 tons would be allocated for high level waste.
    Although the total number of tons of high level defense waste is 
somewhat uncertain, just three percent of DOE's inventory of vitrified 
High Level Waste would be accounted for under the planning basis of 
4,667 tons of heavy metal for DOE High Level Waste when compared to 
over 170,000 tons of heavy metal DOE reprocessed fuel.
    In practice, a higher percentage could probably be accommodated 
because a portion of the radioactivity has already been lost. According 
to an historical estimation method, the limit of high level defense 
waste at Yucca would still not have been able to accommodate the high 
level waste at Hanford because this limit accounts for less than half 
of all defense high level waste.
    An even smaller percentage of Hanford waste would have been able to 
go to Yucca under current law. Any way you cut it, there simply is not 
enough capacity without a repeal of this limit.
    Question 6a. Are there any technical or safety reasons for the 
current limit of 70,000 tons? If so, does this mean that we need 
multiple repositories to accommodate all of our nation's waste?
    Answer. The BRC did not examine the limitations of the Yucca 
Mountain site. However, we did point out that the mass limitation for 
Yucca Mountain in the Nuclear Waste Policy Act was not based on 
technical constraints:.

          Recognizing the need for a Congressional mandate to overcome 
        opposition to the selection of any given site, Congress sought 
        through the NWPA to establish a fair and technically sound 
        process for selecting repository locations. In fact, to avoid 
        the perception that any one state or locale would be asked to 
        bear the entire burden of the nation's nuclear waste management 
        obligations, the Act provided for the selection of two 
        repository sites (though not stipulated in the legislation 
        itself, it was widely assumed that one of these sites would be 
        located in the West, the other in the East). And to further 
        ensure that the end result would not be a single, national 
        repository, Congress included provisions explicitly limiting 
        the capacity of the first repository to 70,000 metric tons 
        until a second repository was opened.''

    Question 6b. Why do you think over half of our nation's high level 
defense waste was left out of the plan at Yucca?
    Answer. The BRC did not examine this aspect of the Yucca Mountain 
project.

  Responses of Lieutenant General Scowcroft and Richard A. Meserve to 
                    Questions From Senator Barrasso

    Question 1. The Blue Ribbon Commission's report advocates a 
consent-based approach to siting storage facilities and a permanent 
repository for our nation's nuclear waste. You repeat your support for 
a consent-based approach in your testimony. However, you go on to 
advocate for the creation of a new nuclear waste management 
organization--a Federally chartered corporation--that would be less 
politically accountable than a new Federal agency as envisioned in S. 
3469. If we pursue a consent-based approach, why is there a need to 
reduce political accountability?
    Answer. The BRC stated that the federally charted corporation 
should be politically accountable. Its board should be nominated by the 
President and confirmed by the Senate. It should be required to provide 
periodic reports to Congress on its activities, expenditures, and 
progress, and should be subject to periodic oversight hearings. Its 
financial affairs should be subject to examination by the Government 
Accountability Office.
    The fulfillment of the obligations of the new waste organization 
requires the consistent and aggressive pursuit of a long-term strategy. 
We did not recommend the establishment of a new federal agency because 
that approach would not provide the necessary long-term management 
stability that the task requires. We note that there may be 
opportunities for more effective consensus building as well by 
including representatives of the various stakeholders on the 
corporation's board--an opportunity that would not be provided by a 
federal agency.
    Question 2. In your testimony, you explain that S. 3469: ``places 
limits on the amount of spent fuel that can be accepted for 
consolidated storage prior to congressional ratification of a consent 
agreement for a repository.'' However, you say that the Commission 
concluded that: ``the volume of fuel to be accepted in consolidated 
storage could be one of the many elements of the negotiations between 
the nuclear waste management organization and potential host 
governments.'' Are you recommending that Congress place no limits on 
the amount of fuel that can be accepted into consolidated storage? If 
so, how does Congress ensure that consolidated storage does not 
effectively become a long-term solution?
    Answer. Storage does not offer a long-term solution to the waste 
problem and it should be clear in the legislation establishing the 
waste organization that its obligations include the expeditious pursuit 
of disposal. Spent fuel is now being stored at reactor sites around the 
country in a safe and secure manner. The existence of a consolidated 
storage site does not appreciably change the pressures to establish a 
clear disposal path for commercial spent fuel from the status quo.
    Given the many benefits of consolidated storage, the legislation 
should not establish barriers to the establishment and operation of a 
consolidated storage site or sites. We anticipate that the negotiation 
of the terms with the stakeholders proposing a storage location will no 
doubt include terms requiring that the stored waste be sent for 
disposal by certain deadlines. We concluded that many states and 
communities will be far less willing to be considered for a 
consolidated storage facility if they fear they will become the de 
facto hosts of a disposal site. This means that a program to establish 
consolidated storage will succeed only in the context of a parallel 
disposal program that is effective, focused, and making discernible 
progress in the eyes of key stakeholders and the public. A robust 
repository program, in other words, will be as important to the success 
of a consolidated storage program as the consolidated storage program 
will be to the success of a disposal program. Progress on both fronts 
is needed and should be sought without further delay.
    Question 3. The Yucca Mountain project goes back three decades and 
it seems we are nowhere near a long-term solution. Do you believe S. 
3469 will bring us closer to siting and constructing a permanent 
repository?
    Answer. We hope that the S.3469 will be an important first-step in 
the establishment of an effective long-term strategy for dealing with 
high-level waste. Because the 1987 amendments of the Nuclear Waste 
Policy Act restrict all repository site investigations to the single 
site at Yucca Mountain, new legislation is needed to authorize siting 
and development of a repository at any other site.
                                 ______
                                 
   Responses of Geoffrey H. Fettus to Questions From Senator Cantwell

                              INTRODUCTION

    As in initial matter, we share your concerns regarding the state of 
cleanup for the nation's high-level radioactive waste (HLW). Indeed, 
NRDC has been a leading force for the cleanup of the HLW waste tanks at 
the Hanford Nuclear Reservation in Washington and the similar HLW tanks 
in Idaho, South Carolina, and New York. We were at the center of the 
litigation and legislative battles approximately eight years ago over 
the Department of Energy's (DOE) efforts to obtain the authority to 
reclassify HLW as ``waste incidental to reprocessing.'' DOE succeeded 
in obtaining this reclassification authority via Section 3116 of the 
2005 Defense Authorization Act, but only in South Carolina and Idaho 
and not in Washington and New York. Despite this partial victory, 
cleanup at the Hanford site remains mired in pressure to cut costs and 
rely on expedient shortcuts rather than long term solutions that 
address the waste in the tanks. We remain engaged with Washington 
allies in working to ensure that the HLW at Hanford site is effectively 
cleaned up.
    But despite our shared concern over HLW, we are more apprehensive 
that shortcuts favoring addressing particular subsets of the national 
problem of spent nuclear fuel (SNF) and HLW will only add delay and 
hamper the development of a sound, protective and publicly acceptable 
geologic repository program. In our view the Blue Ribbon Commission on 
America's Nuclear Future--Report to the Secretary of Energy (BRC) 
included several recommendations that could help build a better nuclear 
waste management system, but decades from now others will face our 
current predicament unless Congress creates a transparent, equitable 
process with strong public health and environmental standards that 
cannot be manipulated in order to license a site (or sites) that may 
not be suitable. To do that, as it writes our path forward, Congress 
must ensure we not repeat the mistakes of the past.
    Key to avoiding those mistakes and creating a transparent process 
with strong standards is providing states with meaningful regulatory 
authority at the outset. I will expand on these thoughts in response to 
your specific questions, but as an introductory matter, Chairman 
Bingaman has made a laudable effort and turned some of the stronger 
ideas in the BRC report into legislative language. As evidenced in our 
testimony before the Committee, we support fundamental components in 
the proposed bill, dispute other parts, and have several suggestions 
for expansion and refinement of S. 3469. But the Chairman's emphasis on 
the necessity of repositories and the need to link any potential 
storage site with the development of a disposal site is of lasting 
value. Any legislation that fails to adhere to these concepts will 
prolong the failures of the past thirty years in developing solutions 
for nuclear waste.
    Question 1. I believe a key part of solving our nation's nuclear 
waste challenges is to recognize that we need to prioritize addressing 
certain types of waste first-- such as waste stranded at shutdown 
reactor sites and defense waste that has built up for decades. Not all 
nuclear waste is the same, and I do not plan to support any legislation 
that does not remedy the mistakes of the past that has precluded more 
feasible solutions for our nation's defense waste.
    As I'm sure you know, Hanford is the largest nuclear cleanup site 
in North America. We have been diligently trying to clean up this site, 
an incredible complex and costly endeavor. While it is a constant 
struggle to keep this monumental effort on track, I proud of incredible 
efforts of Hanford workers and we are making real progress. But we need 
an end point. Once we clean up and isolate this toxic legacy, we need a 
place for it to go.
    It is unacceptable to me, and to the constituents I represent, for 
Hanford to be the de facto repository for 90 percent of the nation's 
high-level radioactive defense waste.
    While proud of the service to help secure our nation during World 
War II and the Cold War, the Tri-Cities region has contributed and 
sacrificed enough during the 70 years in which a large portion of my 
state has been put off limits to economic development or other uses.
    The problem as I see it is that our nation's nuclear waste policy 
treats civilian nuclear waste and defense waste the same, with defense 
waste almost as an afterthought.
    That's a problem for two important reasons: First, our defense 
waste is not suitable for on-site storage and Hanford's Waste Treatment 
Plant is scheduled to produce vitrified high level waste in 2019. And 
second, defense waste is a witch's brew of nuclear byproducts that can 
never be reprocessed for electricity generation. Therefore, it can be 
disposed of permanently, possibly in ways that are faster and cheaper 
than civilian waste.
    Question 1a. Do you agree that nuclear waste that we would never 
want to retrieve but can be permanently disposed of should be treated 
differently?
    Answer. As a general matter, NRDC sees no need to dispose of SNF or 
HLW in a retrievable manner. If there are concerns about the integrity 
of a repository site, an ability to retrieve waste during some interim 
period of time before closure might be a useful feature, but we would 
hope that concerns over the geologic integrity of a site is a problem 
that would be addressed via the technical siting process rather than a 
back-end solution like the ability to retrieve waste.
    Additionally, while we understand your point that vitrified HLW is 
not as easily subject to reprocessing as SNF, we do not think that 
should affect the disposal path for either. In the case of both SNF and 
HLW, repositories will be necessary. As we noted a number of times 
before the BRC, there is no current or prospective closed fuel cycle 
(i.e., reprocessing and fast reactors) that can economically compete 
with the current open cycle and we see no likelihood of things 
changing. Spent-fuel reprocessing and plutonium-fueled fast reactors 
are well-proven commercial disasters. The United States, Europe, and 
Japan spent tens of billions of dollars in the 1970s and 1980s trying 
to develop plutonium fast-breeder reactors (like the Bush 
Administration's proposed Global Nuclear Energy Partnership ``advanced 
burner reactors,'' but with uranium ``blankets'' added to ``breed'' 
more plutonium than is consumed in the reactor). These fast reactors 
proved to be uneconomical, highly unreliable, and prone to fires due to 
leaking liquid sodium coolant, which burns spontaneously when it comes 
in contact with air or water. For a full discussion, see http://
www.nrdc.org/nuclear/gnep/agnep.asp.
    Question 1b. Have you studied whether permanent disposal in salt 
formations could be a cheaper and more readily available alternative to 
other geological storage options?
    Answer. No. We have neither ruled out nor ruled in disposal in salt 
and we think favoring any particular geologic medium invites precisely 
the same problems that derailed the efforts to establish a meaningful 
repository program over the last three decades.
    First, for decades NRC considered bedded salt as suitable for 
disposal either of reprocessed HLW or un-reprocessed spent fuel. Now, 
however, NRC has stated that salt formations are not being considered 
for spent fuel disposal for technical reasons. 73 Fed. Reg. 59,551, 
59555 (Oct. 9, 2008). Indeed, disposal in salt, which was the original 
basis for the NRC's analysis for estimating the environmental impact of 
high-level waste or spent fuel disposal, could only be considered 
suitable for HLW from reprocessing, but as noted, reprocessing is not 
current policy. Nor should it be. Rather, direct and commingled 
disposal of HLW and SNF, for which the NRC would not consider salt 
formations, is now the current policy.
    Second, as noted, favoring salt or any other specific geologic 
media at the outset of this new phase in the repository program effort 
would likely derail the process. To be specific, the BRC recognized 
that the 1987 amendments to the NWPA were ``highly prescriptive'' and 
``widely viewed as being driven too heavily by political 
considerations.'' Those observations are insufficiently critical 
assessments of what happened. We have recommended that Congress be 
clear about what happened to avoid repeating the mistakes of the past. 
Put bluntly, first DOE and then Congress corrupted the site selection 
process leading to Yucca Mountain as the only option by selecting 
politically expedient sites long before the science or the standards 
were complete.
    I refer you to my testimony for the longer explanation of what went 
wrong with the development of sites and the applicable standards (see 
Fettus Testimony at 2-4), and I reiterate here that Congress must be 
explicit and state clearly in legislation that not only the standards 
for site screening and development criteria be in final form before any 
sites are considered, but generic radiation and environmental 
protection standards for any such site be established as well. See BRC 
Disposal Subcommittee Report, at 74. The Subcommittee was right to 
state that the standard and supporting regulatory requirements to 
license a geologic repository should be generic--i.e., applicable to 
all sites.
    Indeed, not requiring the siting criteria or generic environmental 
standards to be in final form prior to developing potential storage and 
disposal sites ensures that the same gaming of the system will recur as 
played out over the last two decades. Pressing forward with any 
distinct 5 solution at this early stage would unravel the carefully 
constructed framework achieved by the BRC and Chairman Bingaman's S. 
3469.
    Question 1c. How do we make sure that defense waste does not get 
lost in the nuclear waste debate this time around?
    Answer. We do not necessarily agree that it has been ``lost,'' but 
we agree that more intensive Congressional oversight is necessary to 
ensure a protective cleanup results from the billions of dollars 
invested in addressing the toxic contamination left by the Cold War. As 
we noted at the outset, we share your concerns with the fact that the 
reprocessing of SNF produced approximately 100 million gallons of HLW, 
stored at DOE sites in more than 200 steel tanks buried just below the 
surface of the earth. These tanks range in size from a few hundred 
thousand gallons to more than 1 million gallons. This waste is 
primarily divided among three main production sites: Hanford, which has 
177 tanks storing more than 50 million gallons of HLW; Savannah River 
Site, which has 51 tanks (a few have been closed via the incidental 
waste exemption discussed above) storing more than 35 million gallons 
of HLW; and the Idaho National Laboratory, which had 11 tanks (7 have 
been closed via the incidental waste exemption) storing about 900,000 
gallons of HLW. The DOE EM budget includes more than $2 billion a year 
to address those HLW wastes.
    As you are all too aware as one of Washington's Senators, dozens of 
these storage tanks at Hanford have leaked HLW. Radioactive elements 
that have leaked out include cesium, strontium, tritium, technetium, 
iodine, plutonium and uranium. Some of these materials remain 
radioactive for hundreds of thousands of years. Non-radioactive but 
hazardous materials that have leaked include nitrates and metals such 
as chromium. If the reclassification authority that DOE has under its 
incidental waste exemption of Order 435.1 in South Carolina and Idaho 
is extended to Washington, DOE could abandon thousands (or potentially 
millions) of gallons of HLW near the Columbia River. If that were to 
occur, the concentration of radioactivity in abandoned sludges and 
sediments in the tanks could be as high, or even higher, than the 
concentration of radioactivity in the materials removed.
    So we agree with you. The current situation is not tenable and we 
support your efforts to ensure the toxic legacy of the Cold War is 
addressed at Hanford and at other nuclear weapons production sites. But 
to do that properly and not repeat the mistakes of the past, we 
encourage you to adhere to several of the principles embodied in 
Chairman Bingaman's S. 3469--foremost that waste from the nation's 
nuclear weapons program and its commercial nuclear power plants must be 
buried in technically sound deep geologic repositories, permanently 
isolated from the human and natural environments.
    But to ensure once and for all that the cleanup of the nuclear 
weapons complex receives the attention it deserves, we urge you to 
support our recommendation to amend the Atomic Energy Act (AEA) to 
remove its express exemptions of radioactive material from 
environmental laws. As we explained at length in our testimony, 
exemptions for radioactivity make it, in effect, a privileged 
pollutant. Exemptions from the Clean Water Act and the Resource 
Conservation and Recovery Act (RCRA) are at the foundation of state 
and, we submit, even fellow federal agency distrust of both commercial 
and government-run nuclear complexes. If EPA and the states had full 
legal authority and could treat radionuclides as they do other 
pollutants under environmental law, clear cleanup standards for DOE 
sites could be promulgated and we could be much farther along in 
remediating the toxic legacy of the Cold War. Further, we could likely 
avoid some of the ongoing legal and regulatory disputes over operations 
at commercial nuclear facilities. Any regulatory change of this 
magnitude would have to be harmonized with appropriate NRC licensing 
jurisdiction over facilities and waste and harmonized with EPA's 
existing jurisdiction with respect to radiation standards, but such a 
process is certainly within the capacity of the current federal 
agencies and engaged stakeholders. Some states would assume regulatory 
jurisdiction over radioactive material, others might not. Washington 
and Oregon, for example, might choose to work in concert to address the 
cleanup at Hanford. But in any event, substantially improved clarity in 
the regulatory structure and a meaningful state oversight role would 
allow, for the first time in this country, consent-based and 
transparent decisions to take place on cleanup of the nuclear weapons 
complex and developing storage sites and geologic repositories.
    Question 2. Unfortunately, the requirement that nuclear waste be 
retrievable for up to a century blocks many potential sites. There are 
communities that would welcome our nation's nuclear waste; but while 
they are located near technically-sound, cost-effective geologic 
formations, high level waste placed there cannot be retrieved.
    So maybe it's time to reconsider this retrievability requirement. 
The mere possibility of future uses for the nuclear waste should not 
block progress on siting a nuclear repository and geologically 
disposing of our nation's nuclear waste. This is especially true for 
defense waste, which has even lower prospects for reuse than commercial 
waste.
    Question 2a. Given the bleak prospects for recycling or otherwise 
using nuclear waste, should this retrievability requirement block 
siting a repository in a technically-sound, cost-effective place that 
is willing to accept waste?
    Answer. We concur with your assessment for reprocessing and fast 
reactors (see above at 3-4).
    A retrievability requirement should not block any single repository 
site, but any and all sites should go through the process we outlined 
above and that Senator Bingaman suggests in S. 3469. As we noted above, 
Congress should require the standards for site screening and 
development criteria be in final form before any sites are considered. 
Congress should also require generic radiation and environmental 
protection standards for any such site be established as well. See BRC 
Disposal Subcommittee Report, at 74. The BRC correctly stated that the 
standard and supporting regulatory requirements to license a geologic 
repository should be generic--i.e., applicable to all sites. Failing to 
impose such requirements invites the same gaming of the system we have 
seen play out over the last two decades. We encourage you to follow the 
carefully constructed framework set out by the BRC and Chairman 
Bingaman's S. 3469 with our suggested modifications.
    Question 2b. If the insistence on this retrievability requirement 
for commercial waste continues, do you think we ought to consider a 
separate repository for defense waste without such a restriction--a 
potential dual-path forward envisioned by the original Nuclear Waste 
Policy Act of 1982?
    Answer. We do not insist on an ability to retrieve the waste, but 
as noted above, we urge following the framework for a transparent, 
consent-based process set forth by the BRC, Chairman Bingaman, and with 
the modifications we suggest (such as amendments to the AEA). Whether 
there will be a need to revisit the commingling decision for SNF and 
HLW is a matter far down the road. At this stage, ensuring strong, 
protective legislation is passed will do the most to ensure the 
problems of the past are not revisited.
    Question 3a. Do you see the Blue Ribbon Commission recommendations 
and Chairman Bingaman's legislation as a renewed call to correct our 
course? Choosing science, economics, and consensus over the failed 
political wrangling of the past 25 years, going back to many of the 
principles of the original Nuclear Waste Policy Act of 1982?
    Answer. Yes. As we stated to the Senate Committee on Environment & 
Public Works in June of this year, we think the BRC delivered a useful, 
although limited, report that identified several components of what 
could become a successful strategy for the ultimate safe disposal of 
commercial and defense spent nuclear fuel and high-level radioactive 
waste. NRDC submitted both oral and written comments to the BRC and its 
subcommittees during the months the BRC conducted its work. Turning to 
the effort by Chairman Bingaman, we think S. 3469 sets a strong 
template with several important provisions that can help build a better 
nuclear waste management system, but decades from now others will face 
our current predicament unless Congress fundamentally revamps how 
nuclear waste is regulated and allows for meaningful State oversight by 
amending the AEA to remove its express exemptions of radioactive 
material from environmental laws.
    Question 3b. For such a complex challenge as disposing of nuclear 
waste for millions of years, do you believe technical considerations 
should trump political ones to the maximum extent possible?
    Answer. No. As we outlined in our testimony, NRDC strongly supports 
the development of a science-based repository program that acknowledges 
the significant institutional challenges facing SNF and HLW storage and 
disposal. We have outlined in our testimony how we might achieve 
progress on both technical and political/institutional fronts.
    Question 4. I would like to discuss the economics of different 
geologic formations. While there are multiple ways and places to secure 
nuclear waste safely, the costs of doing so are different. I believe 
that these costs should be considered when selecting among technically-
sound sites.
    A recent study compared the costs of repositories capable of 
holding 83,000 metric tons of heavy metals in different geologic media. 
It found that siting a repository in volcanic tuff or crystalline rock 
costs two to three times that of a repository in massive salt 
formations.
    These extra costs came primarily from the development and 
characterization of the site, more expensive and complex surface and 
subsurface facilities, and extensive packaging, barriers and shields 
necessary to keep the waste intact. Because of the potential cost 
savings, I think we need to take a hard look at salt formations 
throughout the country as potential sites for a repository.
    Question 4a. Do you believe that cost should be an important factor 
when selecting among sites that can safely dispose of waste and have 
support within the community?
    Answer. Cost is an important, but ultimately a secondary issue. The 
BRC Final Report puts an emphasis on the concept of ``intergenerational 
justice'' as an ethical framework for a nuclear waste disposal program. 
NRDC agrees and views this concept as the principal basis for seeking 
geologic disposal of the nuclear waste. This generation's ethical 
obligation to future generations regarding nuclear waste disposal 
involves critical issues of security, including financial security, 
environmental protection, and public health.
    Rather than focusing on cost, which is in significant measure the 
reason the site-selection process was corrupted, the aim of the program 
should be on a transparent, publicly acceptable process of selecting 
and arriving at technically suitable sites.
    Question 4b. Do you agree that salt formations could deliver 
potential cost savings compared to other geologic media types and 
deserve consideration?
    Answer. Salt, like any other geologic medium, deserves 
consideration that is part of a transparent, public process. See our 
response above at 4.
    Question 5. It is simply unacceptable for Hanford to become the de 
facto repository for 90 percent of the nation's high-level radioactive 
defense waste. Back in the 1980's when a number of repository sites 
were analyzed, Hanford placed last in terms of cost-effectiveness.
    These high costs were in part due to the extraordinary technical 
challenges. According to a National Research Council report, the high 
internal stresses within the basalt formation at Hanford poses a risk 
of ``rock bursts'' when opened up to atmospheric pressure. And the U.S. 
Geological Survey found that the high water pressure in the deep 
aquifer poses the danger of catastrophic flooding.
    Question 5a. Do the cost-effectiveness of meeting technical 
requirements and inherent suitability of a site go hand-in-hand?
    Answer. We agree that the state of Hanford's tanks is unacceptable 
as outlined above, but we disagree with your characterization that 
Hanford has 90 percent of the nation's HLW. We think that burden is 
shared as we described on page 5.
    Turning to your direct question, we think there could be a 
relationship between the geologic suitability of the site and the costs 
necessary to assess the geology's ability to isolate the waste, but 
that's a question that presupposes too many factual matters that would 
have to be developed in a transparent, public manner. We think if the 
focus stays on legislation that develops a science-based repository 
program that takes into account the significant institutional 
challenges facing SNF and HLW storage and disposal, all will be better 
served.
    Question 5b. Do you agree that cost-effectiveness is an important 
consideration that partially takes the suitability of a repository site 
into account?
    Answer. As we stated above, we think cost is a secondary issue.
    Question 6. I am pleased to see that this legislation repeals the 
limit on the amount of waste able to be disposed at a repository. This 
was a well-kept secret about Yucca. Even if Yucca were licensed under 
current law, it would not be able to accommodate all of our nuclear 
waste, neither civilian nor defense. I believe a litmus test for any 
new federal nuclear waste policy is whether it can dispose of our 
nation's nuclear waste--all of it.
    Answer. This has been one of my biggest concerns with the Yucca 
proposal. Of the 70,000 ton limit for waste at Yucca, only 7,000 tons 
were set aside for defense waste. Of that 7,000 tons for defense waste, 
only 4,667 tons would be allocated for high level waste.
    Although the total number of tons of high level defense waste is 
somewhat uncertain, just three percent of DOE's inventory of vitrified 
High Level Waste would be accounted for under the planning basis of 
4,667 tons of heavy metal for DOE High Level Waste when compared to 
over 170,000 tons of heavy metal DOE reprocessed fuel.
    In practice, a higher percentage could probably be accommodated 
because a portion of the radioactivity has already been lost. According 
to an historical estimation method, the limit of high level defense 
waste at Yucca would still not have been able to accommodate the high 
level waste at Hanford because this limit accounts for less than half 
of all defense high level waste.
    An even smaller percentage of Hanford waste would have been able to 
go to Yucca under current law. Any way you cut it, there simply is not 
enough capacity without a repeal of this limit.
    Question 6a. Are there any technical or safety reasons for the 
current limit of 70,000 tons? If so, does this mean that we need 
multiple repositories to accommodate all of our nation's waste?
    Answer. Technical or safety limitations on the amount of SNF and 
HLW that can be disposed of at any site will be dependent on site 
specific limitations. Whether or not we even get to raise these matters 
for particular sites will depend on whether any new legislation avoids 
the mistakes of the past.
    Question 6b. Why do you think over half of our nation's high level 
defense waste was left out of the plan at Yucca?
    Answer. Under the Nuclear Waste Policy Act of 1982, there were 
supposed to be two repositories and a balancing of the national burden 
for the disposal of SNF and HLW.
                                 ______
                                 
    [Responses to the following questions were not received at 
the time the hearing went to press:]

           Questions for Peter B. Lyons From Senator Barrasso

    S. 3469 would establish a new waste management agency. It would 
transfer to the agency the functions of the Secretary of Energy, 
relating to the siting, licensing, construction, and operation of 
nuclear management facilities. The Blue Ribbon Commission has called 
for the establishment of a new Federally chartered corporation to 
handle these responsibilities.
    Question 1a. Does the Administration support the creation of a new 
Federal agency to handle nuclear waste management?
    Question 1b. Does the Administration support the creation of a new 
Federally chartered corporation to handle nuclear waste management?
    Question 2. In your testimony, you explain that nuclear waste fee 
collections exceed $750 million each year. What benefits are ratepayers 
currently receiving in return for these fees?
    The Blue Ribbon Commission issued its report in January of this 
year. I understand the Administration was supposed to submit a plan to 
implement the recommendations by the end of July, but has yet to do so.
    Question 3a. What is the reason for the delay?
    Question 3b. When can Congress expect the Administration's 
implementation plan?
    Question 4. Does the Administration support S. 3469 as currently 
written? If not, do you recommend specific changes to the bill? If so, 
what are those changes?
    The Consolidated Appropriations Act for FY 2012 requires the 
Department of Energy (DOE) to submit to the House and Senate 
Appropriations Committees a revised excess uranium inventory management 
plan for FY 2013 through FY 2018 ``[n]o later than June 30, 2012.'' DOE 
has yet to submit such a plan.
    Question 5a. When will DOE submit the plan?
    Question 5b. Do you expect the management plan to be consistent 
with the May 15, 2012 Secretarial Determination?
    Question 6. Section 312(a) of the Consolidated Appropriations Act 
for FY 2012 reads as follows:

          Any determination (including a determination made prior to 
        the date of enactment of this Act) by the Secretary pursuant to 
        section 3112(d)(2)(B) of the USEC Privatization Act (110 Stat. 
        1321-335), as amended, that the sale or transfer of uranium 
        will not have an adverse material impact on the domestic 
        uranium mining, conversion, or enrichment industry shall be 
        valid for not more than 2 calendar years subsequent to such 
        determination. (emphasis added)

    Pursuant to the May 15, 2012 Secretarial Determination, DOE plans 
to transfer up to: (a) 2,400 metric tons of natural uranium per year 
between 2012 and 2021 to DOE contractors for cleanup services at the 
Paducah or Portsmouth gaseous diffusion plants; and (b) 400 metric tons 
of natural uranium equivalent per year contained in low-enriched 
uranium (LEU) to National Nuclear Security Administration contractors 
for down-blending highly enriched uranium to LEU from 2012 through 
2020. Are provisions 2) and 3) of the May 15, 2012 Secretarial 
Determination permissible under the two year limitation set forth in 
section 312(a)? If so, how?
    Question 7. On February 16, 2012, Secretary Chu testified before 
this Committee that:

          We have to be very careful about whether . . . bartering 
        [uranium] will affect the markets . . . If we introduce into 
        the market . . . 10 percent [of domestic fuel requirements] or 
        below . . . , we feel safe that it won't have a material impact 
        on the markets.

    If fully implemented, the May 15, 2012 Secretarial Determination 
would result in uranium transfers that exceed the 10 percent cap set 
forth in the DOE's 2008 Excess Uranium Management Plan.
    Question 7a. Does DOE believe that the market for uranium changed 
from February to May to justify exceeding the 10 percent cap?
    Question 7b. If so, what changed in the market for uranium between 
the February hearing and the May 15, 2012 Secretarial Determination? 
Please be specific.
    Question 8. How would DOE respond to changes in the global market 
for uranium to ensure that the sales and transfers envisioned under the 
May 15, 2012 Secretarial Determination do not have an adverse material 
impact on the America's uranium mining, conversion, or enrichment 
industry?

                              Appendix II

              Additional Material Submitted for the Record

                              ----------                              

  National Association of Regulatory Utility Commissioners,

                                                September 10, 2012.
Hon. Jeff Bingaman,
Chair, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
Hon. Lisa Murkowski,
Ranking Member, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Chairman Bingaman and Ranking Member Murkowski:
    The National Association of Regulatory Utility Commissioners 
(NARUC) would like to submit the following comments regarding the 
proposed Nuclear Waste Administration Act of 2012, S. 3469.
    NARUC and our member State public utility commissioners have been 
actively engaged in the issue of nuclear waste disposal since the 
Nuclear Waste Policy Act was enacted in 1983. We followed closely and 
participated in the work of the Blue Ribbon Commission on America's 
Nuclear Future and we want to contribute to implementing its 
recommendations so that the troubled program can get on track.
    Our interest in this issue centers around the consumers of nuclear 
utilities who have been bearing the ultimate cost of fees paid by their 
utilities for the electricity that is produced from the Nation's 104 
nuclear reactors. Those fee payments represent the ``grand bargain'' 
set in the Nuclear Waste Policy Act. Under the Act, the federal 
government is responsible for the safe disposal of both government and 
commercial nuclear waste, and those who have benefit (i.e. consumers of 
nuclear power) shall pay for the cost of disposal of waste products. 
Unfortunately, history has proven that the collection of fees has been 
the only aspect of the nuclear waste program that began on time and has 
functioned as designed.
    We should note for the record that NARUC is a party to litigation 
before the Court of Appeals District of Columbia Circuit seeking to 
require that the Nuclear Regulatory Commission resume the Yucca 
Mountain license application review and come to a final determination 
of whether a repository at Yucca Mountain meets regulatory requirements 
or not.
    The Blue Ribbon Commission on America's Nuclear Future in its 
January Report to the Secretary of Energy said all of its 
recommendations ``can and should be implemented regardless of what 
happens to Yucca Mountain.'' We had expected that the Administration 
would have provided some indication of whether and how it will 
implement those recommendations or how it intends to ``fulfill the 
Federal Government's obligations for managing and ultimately disposing 
of spent nuclear fuel and high-level radioactive waste'' as it pledged 
in 2009.
    We commend the leadership of this Committee for your collaborative 
efforts with members of the Energy and Water Appropriations 
Subcommittee to produce the proposed ``Nuclear Waste Administration Act 
of 2012,'' S. 3469, as a legislative vehicle to incorporate key 
provisions of the BRC Report into a modified Nuclear Waste Policy Act. 
We have some comments from the standpoint of ratepayers and in some 
instances in comparison with the BRC recommendations.
    You will not be surprised that our primary interest is on fixing 
the Nuclear Waste Fund. The BRC said it believed that ``the success of 
a revitalized waste management program will depend on making the 
revenues by the nuclear waste fee and the balance in the NWF available 
when needed and in the amounts needed to implement the program.'' The 
Commission called for reform in two stages:

   Near Term, within existing administrative authority: 
        Modifying existing contracts with utilities such that total 
        fees paid to the Treasury would match the amount appropriated 
        from the NWF in the same year. The balance would be placed in 
        irrevocable trust accounts (escrow) for future payments. The 
        fee revenue would be reclassified as offsetting receipts, 
        subject to concurrence by the Congressional Budget Office and 
        the Budget Committees.
   Congressional action required: The BRC recommended budget 
        autonomy for the new nuclear waste management organization that 
        would require legislation (such as S. 3469) to establish. 
        Specifically, the BRC recommended the legislation include a 
        ``defined schedule of payments to transfer the balance of the 
        Fund (the corpus) to the new organization over a reasonable 
        future time period starting 10 years after the organization is 
        established.''

    We are deeply disappointed that the Administration chose not to 
move ahead on the near-term action which was so carefully researched by 
the Blue Ribbon Commission and placed in their hands. We are not 
experts in federal fiscal rules, but given the importance of resolving 
this issue, we expected a better effort. This lack of action reminds us 
of a baseball saying--``You will never get a hit if you don't take a 
swing.''
    Thankfully, as it relates to the actions requiring congressional 
action, , S. 3469 steps up to the plate. The legislation creates an 
independent agency called the Nuclear Waste Administration that would 
be given most of the duties and authorities under the NWPA that are 
presently assigned to the Secretary of Energy. Still, we are concerned 
about how the program will be managed before legislation is enacted and 
how transition to the NWA is implemented. For the past two years, about 
$770 million in fees have been paid into the Nuclear Waste Fund 
annually and no money was appropriated for waste disposal. It appears, 
however, that the money was spent for other purposes and more ``IOU's'' 
were added to the Fund. We are anxious to see if FY 2014 is any 
different.
    Regarding the organizational form and function, we thought the 
federal corporation proposed by the BRC was well considered. We found 
the various oversight mechanisms ample, including a role for State 
utility commissioners to serve in the review of fee adequacy 
determination.
    Having seen extended vacancies in the senior DOE waste program 
manager's position caused by lengthy confirmation delays in the Senate 
during the Yucca period, we find the BRC federal corporation a well 
suited approach. This is because having presidentially appointed 
directors select the CEO better protects the position and provides 
greater program stability than the politically-appointed Administrator/
Deputy Administrator positions the NWA legislation would.
    Moreover, the bill does not heed the clear call for financial 
reform made by the BRC and it may impede the startup of the new 
organization. The Administration (so far) chooses to avoid a rejection 
of the near-term fee reclassification, so let us express some 
apprehension over how a Nuclear Waste Administration might be difficult 
to form if it cannot attract top-tier talent because of concerns over 
its financial stability. Potential applicants for the NWA Administrator 
position do want to see a secure financial foundation underlying the 
NWA or other organization.
    Additionally, we are puzzled by the appearance of different degrees 
of financial autonomy for the new Administration:

   In Sec. 301 the NWA is given authority for the ``collection, 
        adjustment, deposition and use of fees'' to accomplish waste 
        functions, yet
   Sec. 401 (c) says funds deposited in the Working Capital 
        Account ``shall be immediately be available. to carry out the 
        functions of the Administrator, except to the extent limited in 
        annual authorization or appropriation Acts.''

    The Working Capital Fund seems to offer improved access to the fee 
revenue, which should be an improvement over the present arrangement. 
An even better strengthening of the NWA financial support, though, 
would have the interest earned on the balance in the Nuclear Waste Fund 
deposited in the Working Capital Fund. In recent years, that interest 
has been over $1 billion a year.
    The bill gives no indication on any disposition schedule like the 
BRC suggested; leaving some doubt about when and under what conditions 
the ``corpus,'' reportedly over $26 billion now, will be made available 
for the purpose it was collected. No one is saying there is a need to 
use that money now, but every calculation of the sufficiency of the 
fees rests on the assumption that 100 percent of past fees paid is 
available to the waste activities program, including interest. It seems 
ironic, then, that Section 403 provides direction that the NWA is to 
assume that sufficient funds will be appropriated to the NWA to cover 
the cost of defense waste disposal, yet there is no counterpart 
assurance that past fee revenue collected and supposedly held in the 
Nuclear Waste Fund will also be appropriated.
    We agree with the shift to a more co-equal ``consent-based'' 
approach to siting nuclear waste facilities. We hope that the 
implementing organization is given latitude to be adaptive to the 
circumstances of the States and localities involved. There are 
opportunities to employ the principles recommended by the BRC in 
pursuit of a consolidated interim storage facility for spent nuclear 
fuel from the decommissioned reactor storage sites. Successful 
development of such a facility--whether by DOE or a new organization--
would demonstrate that the government can safely transport and store 
spent nuclear fuel while pursuing a geologic repository. There are a 
number of cost estimates for building such a facility. One done by DOE 
in 2007 indicated a facility for the decommissioned sites could be 
built and operated for 15 years for the same amount of fees paid by all 
reactors in a single year.
    The bill includes many other important elements that we are not 
addressing here. Importantly, we want to continue to work with DOE 
until a new organization is formed and functional. We must be realistic 
about just how quickly we can move forward, even if Congress passes a 
bill. Issues such as the radiation standards, siting guidelines and 
development of a mission plan within a year, will take time. Indeed, 
just building a nucleus staff and creating a new organization will take 
time.
    As we stand at the threshold of dramatic sequestration reductions 
in federal agency budgets, there may be resistance to creating a new 
federal agency for any purpose. We considered it unfortunate that the 
Administration took credit in the FY 2010 Budget for termination of the 
Yucca Mountain program, rather than recognizing that the 
Administration--we believe--meant to cancel the Yucca Mountain project 
and to reset the development of the program at a different site or 
sites. We regret the disbanding of a residual staff within the 
Department of Energy that could tend to disposal affairs during the BRC 
deliberation and to aid in the establishment of a new waste management 
organization.
    In conclusion, NARUC appreciates the leadership in creating this 
bill-a positive step--although we remain apprehensive about ``limits'' 
on annual fees and worried over the corpus.
    The best media summation comes from July 4 New York Times: ``If 
nuclear power is to have a future in this country, politicians, 
scientists, and industry leaders need to commit to finding a solution 
instead of just hoping everything will somehow work out.''The BRC 
expressed much the same appeal in its Report, as its members ``believe 
it is long past time for the government to make good on its commitments 
to the American people to provide for the safe disposal of nuclear 
waste.''
            Sincerely,
                                           David A. Wright,
     NARUC President, Vice Chairman, South Carolina Public Service 
                                                        Commission.
                                 ______
                                 
              Statement of the Energy Communities Alliance

    Chairman Bingaman, Ranking Member Murkowski and Members of the 
Committee, we thank you for accepting our written testimony on S.3469, 
a bill to establish a new organization to manage nuclear waste, provide 
a consensual process for siting nuclear waste facilities, ensure 
adequate funding for managing nuclear waste, and for other purposes. We 
would also like to thank the sponsor of this bill: Senator Jeff 
Bingaman (D-NM). The Energy Communities Alliance (ECA) is the 
association of local governments that are adjacent to or impacted by 
Department of Energy (DOE) nuclear activities. Our members are either 
neighbors or hosts of DOE and National Nuclear Security Administration 
(NNSA) sites that currently produce or formerly produced defense 
nuclear waste, sites that store and process defense nuclear waste, and 
the sites that may potentially host a future interim storage facility, 
reprocessing facility or geologic repository.
    Founded in 1992, ECA is the only association to bring together and 
provide a central voice for local elected and appointed officials on 
DOE issues. Our sites are the sender and receiver sites for nuclear 
waste, and potential hosts for nuclear waste interim storage, recycling 
and disposal facilities. We believe that local governments have a 
critical role to play in any waste discussion, and we have stated this 
position many times in our testimony before the Blue Ribbon Commission 
on America's Nuclear Future (BRC). We applaud the efforts of this 
legislation to ensure that local governments are involved in waste 
decisions from the beginning.
    Our communities are most interested in the disposal of defense 
waste currently stored at many of our sites. As you consider this 
legislation, we ask you to take into account the impact these decisions 
will have on our communities. We would like to offer the following 
recommendations and comments on S.3469:

   Congress and the Administration Need to Re-Engage 
        Communities on HLW Issues
   ECA Supports the Inclusion of Local Governments in the 
        Decision-Making Process
   The Siting Process Must Allow Affected Communities to Decide 
        Whether, and on What Terms, the Affected Communities Will Host 
        a Nuclear Waste Facility
   Use a Phased, Adaptive Approach to the Sequence of Waste 
        Disposition--Move Defense Waste First.
   The Impacts of Transportation on Local Governments and 
        Communities Need to Be Addressed
   ECA Can Support a New Organization to Manage Nuclear Waste

    Many of our members currently call for Yucca Mountain licensing to 
be restarted. However, our organization also supports the Chairman's 
initiative to develop legislation to continue to move forward to create 
a High-Level Waste (HLW) Policy that can be implemented in the current 
political environment.
    Our members have jointly prepared the testimony we submit to you 
today.

Congress and the Administration Need to Re-Engage Communities on HLW 
        Issues
    ECA communities have been home to federally-owned and operated 
nuclear facilities for over half a century. ECA believes that any 
legislation must require that DOE, or any new entity responsible for 
nuclear waste management, engage these communities in a meaningful 
dialogue and take into account the impact on the states, tribes and 
local governments.
    Many of the local communities ECA represents currently store high-
level nuclear waste were, but were never intended to become permanent 
waste storage sites. These same communities have operated in good faith 
based on federal law, as codified in the NWPA, that the defense waste 
would ultimately be disposed of in a geologic repository. As hosts of 
DOE sites where this defense high-level waste has been produced and 
stored, our communities have unique health and safety concerns as well 
as resource needs.
    Several local governments have identified that, if certain 
conditions are met, the local community may be willing to accept a HLW 
disposal mission. Congress and the Administration should begin to re-
engage with these communities, and begin the process of assisting these 
communities and states to study the scientific data to determine if 
their communities are suitable for such a mission.
    ECA's high-level waste policy is attached as Appendix A.* In 
addition, we have attached ``Recommendations for The Blue Ribbon 
Commission On America's Nuclear Future To Involve Local Communities'' 
as Appendix B.* Further, additional ECA positions and meeting summaries 
can be found at www.energyca.org.
---------------------------------------------------------------------------
    * The appendixes have been retained in committee file.
---------------------------------------------------------------------------
ECA Supports the Inclusion of Local Governments in the Decision-Making 
        Process
    ECA supports the inclusion of local governments in the decision-
making process outlined in S.3469. We appreciate that the legislation 
takes into account the impact that storing, transporting and disposing 
of nuclear waste has and will have for communities at the local level.
    We agree with the language included in the Sec. 304. Siting Nuclear 
Waste Facilities:
          In siting nuclear waste facilities under this Act, the 
        Administration shall employ a process that (1) allows affected 
        communities to decide whether, and on what terms, the affected 
        communities will host a nuclear waste facility; (2) is open to 
        the public and allows interested persons to be heard in a 
        meaningful way; (3) is flexible and allows decisions to be 
        reviewed and modified in response to new information or new 
        technical, social, or political developments; and (4) is based 
        on sound science and meets public health, safety, and 
        environmental standards.''

    ECA, local elected officials, and many other impacted parties often 
highlight how important these four provisions are in successfully 
siting nuclear waste facilities. Most significantly to ECA, this 
legislation demonstrates an understanding that local communities face 
unique health and safety decisions as hosts of storage and disposal 
sites--and that they should be allowed to determine what is necessary 
to address their unique needs and concerns--an issue of paramount 
importance to ensure long-lasting support and concurrence.
    ECA also recognizes that states and local governments must work 
together meaningfully as early as possible in the process in order to 
avoid the pitfalls of the past, maximize positive outcomes and 
successfully site nuclear waste facilities.
    We also support the language included in the legislation requiring 
public hearings in the vicinity of the site and at least one other 
location within the state where the site is located. Local governments 
want the public to be informed of any proposed site characterization 
and have the opportunity to provide comments and recommendations to the 
federal government.
    Finally, in regards to a consent agreement for making a final 
determination of site suitability, ECA agrees with the terms and 
conditions outlined in S.3469:
    The terms and conditions of the consent agreement ``shall promote 
the economic and social well-being of the people living in the vicinity 
of the repository or storage facility; and (B) may include----

          (i) financial compensation and incentives;
          (ii) economic development assistance;
          (iii) operational limitations or requirements;
          (iv) regulatory oversight authority; and
          (v) in the case of a storage facility, an enforceable 
        deadline for removing nuclear waste from the storage facility.

    ECA believes local governments are uniquely positioned to negotiate 
these benefits on behalf of the impacted community. A community 
volunteering to host a nuclear waste facility should be prepared to 
identify what it needs and wants as a potential host.

The Siting Process Must Allow Affected Communities to Decide Whether, 
        and on What Terms, the Affected Communities Will Host a Nuclear 
        Waste Facility
    ECA supports the process described in S.3469 for siting nuclear 
waste facilities. Local governments of affected communities must be 
engaged early and actively in any siting process for any new nuclear 
facility. Meaningful involvement is critical at all steps in the 
process--developing the vision, refining the goals and priorities, and 
providing input when conflicts arise. Increased coordination and 
cooperation with the federal government will ensure that local 
governments and potential host communities better understand the 
federal government's approach, and it will keep local communities 
informed so they can understand priorities, concerns and goals.
    S.3469 states that preference will be given to sites determined to 
be suitable for co-location of a storage facility and repository. ECA 
would also note that special consideration should be given to sites 
that are determined to be suitable for co-location of a storage 
facility and a facility for recycling (or reprocessing) used fuel. We 
understand that recycling will not eliminate the need for a geologic 
repository, but it may allow what we currently consider ``waste'' to be 
a new energy resource. Further, several communities have already 
identified that they would be unlikely to accept the mission without a 
recycling or other similar mission.

Use a Phased, Adaptive Approach to the Sequence of Waste Disposition--
        Move Defense Waste First.
    As the local government hosts of the vast majority of defense-
related high-level waste and spent nuclear fuel in the country, we 
recommend that this Nation's defense-related high-level waste--
especially material that is never intended to be retrieved--be given 
priority over, and ``fast-tracked'' ahead of, commercial waste and 
moved out of our states and into a repository as soon as possible.
    Our Nation has approximately 2,460 metric tons of heavy metal 
(MTHM) high-level waste (approximately 2,150 MTHM defense and 310 MTHM 
non-defense) consolidated and stored mainly at the Hanford site in 
Washington, the Idaho National Laboratory in Idaho, and at the Savannah 
River Site in South Carolina--the latter alone has about 4,000 
canisters of vitrified high-level waste glass logs ready for disposal. 
This legacy defense waste differs from commercial spent nuclear fuel in 
a number of ways:

          1. It is older and has been awaiting permanent disposal 
        longer.
          2. It has different radioactive properties.
          3. Much of the defense high-level waste is being vitrified 
        and cannot be retrieved for recycling or reprocessing. It is 
        currently being ``packaged'' to Yucca Mountain standards and 
        stored in ``temporary'' buildings.
          4. It has only one disposition path: a geologic repository.
          5. Maintaining the status quo pending a decision regarding 
        commercial waste increases the risk to human health and the 
        environment. At Hanford, one million gallons of high-level 
        waste have already leaked from storage tanks.
          6. Maintaining the status quo is compromising other DOE 
        missions at the affected sites. For example, further delays 
        will violate legal commitments DOE has with states. Missing 
        milestones, failing to meet deadlines or failing to honor 
        agreements will adversely affect DOE's Office of Environmental 
        Management's cleanup program.
          7. There is a smaller volume of defense legacy high-level 
        waste than of spent nuclear fuel.
          8. Funding for management of legacy waste comes from a 
        different source than funding for management of commercial 
        waste.

    In addition, unlike spent nuclear fuel, defense high-level waste 
and storage of defense high-level waste is not regulated by a third 
party (the Nuclear Regulatory Commission regulates private spent 
nuclear fuel). Defense high-level radioactive waste is self-regulated 
by DOE. Defense high-level waste was created primarily to support the 
defense of our country and not for private energy production and in 
some cases has been shipped from one defense site to another for 
``temporary'' storage pursuant to agreements with states. Finally, 
defense high-level waste is being treated to address United States 
international treaty obligations in some cases.
    In the future the defense waste and commercial waste can be 
comingled in a repository once the commercial waste can move forward.
    ECA recommends that the Committee consider establishing a pilot 
program first (consistent with National Academy of Sciences' 
recommendations for adaptive staging) and the defense waste 
transitioned as part of the program. Doing so has several clear 
advantages. First, there is a smaller, more manageable scope of work 
where disposition may be achieved in a more timely manner. Second, 
demonstrating that the legacy waste can be successfully dispositioned 
can provide valuable lessons as the shift to commercial waste 
disposition occurs. Finally, and perhaps most importantly, public trust 
and confidence in the federal government will increase as the federal 
government demonstrates an ability to safely manage and dispose of 
nuclear waste and to keep its commitment to American taxpayers.

The Impacts of Transportation on Local Governments and Communities Need 
        to Be Addressed
    S.3469 outlines how States and Indian tribes will be provided with 
financial and technical assistance if plans are made to transport 
nuclear waste through their jurisdictions. Local governments in 
affected communities along transportation routes should be included 
among these groups as they, too, are responsible for public education 
and ensuring the safety of their citizens. Local governments provide 
services such as police and fire protection, water and waste water 
treatment and public health services. Training, equipment, and 
transportation safety programs for public safety officials and other 
emergency responders at the local level is extremely important and will 
help ensure consistency among all affected parties as waste moves 
across the country.

Energy Communities Alliance Can Support a New Organization to Manage 
        Nuclear Waste
    As elected officials at the local level, ECA members have the 
responsibility to protect the health, safety, quality of life and 
economic future of their citizens and the communities adjacent to DOE 
and NNSA sites where nuclear waste waits for final disposition in a 
repository.
    As ECA previously testified before the BRC, our members could 
support the creation of a new organization dedicated solely to 
implementing the nuclear waste management program, provided it has 
clear legislative authority, appropriate autonomy, appropriate 
oversight mechanisms, and access to required funding. Our members are 
still evaluating options for the structure of a new nuclear waste 
organization. ECA is encouraged that a primary purpose of the Nuclear 
Waste Administration will be ``to protect the public health and safety 
and the environment'' as it assumes the responsibility of the federal 
government to manage and dispose of nuclear waste.
    There is concern, however, about the timeline for creating this new 
entity given that in 1982, it took four years to begin substantive 
implementation of the NWPA. It will also take time to create a new 
regulatory structure. Increased delay means continued or even increased 
risks to our communities currently hosting ``de facto'' HLW storage 
sites with nuclear waste remaining beyond the timeframe originally 
committed to by the federal government. ECA recommends that the 
Committee consider empowering the Nuclear Waste Administration to 
allocate funds from a defense appropriations account to help ensure 
that local communities hosting sites with stranded defense-related HLW 
can address their unique health and safety concerns until a final 
disposition plan is implemented.
    ECA agrees that the Nuclear Waste Administration and the Nuclear 
Waste Oversight Board should have access to funds in the NWPA 
independent of the annual appropriations process. ECA believes the 
funds should be used as originally intended and outlined in Section 302 
of the NWPA in 1982.

Conclusion
    ECA appreciates the opportunity to provide testimony to you on 
S.3469, and we appreciated this Committee's work to address nuclear 
waste management now and begin to implement the recommendations made by 
the BRC. ECA supports the Chairman's efforts to make nuclear waste 
management a priority. ECA looks forward to providing any assistance we 
can as your work continues.
    ECA also thanks the Chairman for his long-term leadership in the 
Nuclear Energy and Nuclear Waste Cleanup and Disposition Area. His 
actions have made each of our communities and our country a better and 
safer place to live.
    More information about Energy Communities Alliance can be found at 
www.energyca.org.
                                 ______
                                 
        Statement of Eddy-Lea Energy Alliance LLC, Carlsbad, NM

    Dear Senators Bingaman, Murkowski, Feinstein and Alexander:
    We're writing to you on behalf of the Eddy-Lea Energy Alliance 
(ELEA), a limited liability company owned by the New Mexico public 
entities of the Cities of Hobbs and Carlsbad, and Lea County and Eddy 
County. ELEA is currently pursuing an interim storage facility for 
spent fuel on 1,000 acres of land about halfway between Carlsbad and 
Hobbs.
    We understand legislation is in development that will establish a 
new executive branch agency to take responsibility for siting storage 
and disposal facilities for the nation's spent fuel and high-level 
nuclear waste. We applaud your efforts in attempting to pursue the 
spirit of the recommendations made by the Blue Ribbon Commission on 
America's Nuclear Future and support many of them; however, we would 
like to address some items in the draft legislation that cause us 
concern. Our concerns are as follows:

   The draft legislation would require significant repository 
        progress prior to licensure of an interim storage facility.

    We believe this wording could put our nation's interim storage 
plans (including Sen. Feinstein's existing bill) at risk. If there is 
one lesson that has hopefully been learned over the past 30 years, it 
is that linking multiple processes that do not have to be connected 
runs the risk of causing nothing to ever move forward.
    It is our understanding that the impetus for interim storage is the 
fact that a repository for high level nuclear waste is 20 to 30 years 
away. We need to move nuclear material away from coastal areas, fault 
lines and population centers now--not wait for the repository stars to 
align themselves. In fact, if a repository is ready, why would interim 
storage even be needed?
    We realize that there is some concern that interim storage will 
become a permanent solution, but there are many more viable ways to 
address this concern, such as fines and timetables. Our nation's 
primary concerns are that our fuel pools are being over packed and that 
there is an incredible surging expense to taxpayers due to a lack of an 
immediate solution. Interim storage is meant to be a fast solution, but 
linking it to repository development will prevent that from being the 
case.
    The heart and soul of the BRC's recommendation is that a consent-
based process be put in place. A forced linking between interim storage 
and repository development feels like a paternalistic decision that 
interferes with a local region's and state's right to make decisions 
about the pros and cons of a facility.

   The bill does not provide for defense high level waste to go 
        to an interim storage facility. We strongly believe that the 
        DOE should retain the option of temporarily using interim 
        storage for defense high level waste, if needed. Consolidated 
        interim storage could save the DOE from spending hundreds of 
        millions of dollars by preventing the building of additional 
        facilities at its present locations. The DOE could also use 
        interim storage to reduce oversight costs while waiting for a 
        repository to be ready. On the other side of the issue, defense 
        high level waste could be a major, rapid contributor to the 
        viability of an interim storage facility. Keeping the DOE's 
        backing is important, and we recommend a revision that includes 
        provisions for the possibility of defense high level waste 
        interim storage.
   Guidelines that require the administrator to take into 
        account the extent storage would ``unduly burden a state'' that 
        already has defense waste or transuranic waste.

    Our concern is that the ``unduly burden'' language will be subject 
to significant misinterpretation in discussions that follow the 
creation of this bill. Our interpretation is that this language simply 
requests that these states deserve careful consideration. Many states 
may opt not to view storage as any sort of burden due to incentives, 
road payments and job creation opportunities. If the determination of 
burden vs. benefit is strictly left up to the individual state, such 
language could be productive.
    However, opponents of a specific storage site may interpret such 
language to mean that states that currently have nuclear waste 
facilities would not be eligible for storage because ``they have 
already done their share'' when it comes to the nation's nuclear waste 
needs. This is again a determination that should be made by each 
individual state rather than having the federal government decide. An 
incentive-based interim storage plan could be quite lucrative for an 
interested state--the federal government should avoid any language that 
might be somehow used, through misinterpretation, to punish states 
already involved in the nuclear waste process by making them less 
eligible for a desired facility.
    Furthermore, many of the states with existing nuclear waste 
facilities (including transuranic) are likely to be some of the 
nation's best locations for future storage due to geographic and 
geologic considerations, existing trained workforce availability, and 
regional socio-political understanding of nuclear waste issues. A 
misinterpretation of the ``unduly burden'' line could be used to 
eliminate many of the nation's best possible locations for interim 
storage.
    Senators, we ask that you look to our nation's recent past at some 
of the mistakes made during the formation of the Nuclear Waste Policy 
Act (and amendments). There were unique provisions, for example, placed 
in the NWPA forbidding certain types of future study of specific types 
of geology. Those type of misplaced, self-serving laws are still 
causing our nation legal difficulties today. When in doubt, we believe 
the best path forward in any legislation aiming to capture the spirit 
of the BRC's recommendations is to leave interpretations up to 
individual states and to avoid any federal language that might obstruct 
this process.
    In summary, our recommendations to the proposed bill, as it 
currently stands, are as follows:

          1. Delink interim storage from repository development.
          2. Establish language allowing for defense high level waste 
        to be stored in an interim storage facility.
          3. Remove the bill's ``unduly burden'' language as it applies 
        to states with TRU waste or defense waste to avoid probable 
        misinterpretation.

    We remain inspired by the bi-partisan, sincere efforts the four of 
you have displayed in putting together our nation's nuclear plan. We 
believe this bill, once complete, may well create a responsible 
national stewardship plan that will withstand the test of time. Our 
organization thanks you all again for your contributions to solving our 
nation's nuclear waste crisis and your decades of service to this great 
nation.
                                 ______
                                 
 Statement of David A. Wright, Chairman, South Carolina Public Service 
              Commission, Nuclear Waste Strategy Coalition

    Dear Chairman Bingaman & Ranking Member Murkowski:
    The Nuclear Waste Strategy Coalition (NWSC) thanks the Senate 
Energy & Natural Resources Committee for convening a hearing on 
important issues pertaining to nuclear waste disposal and submits the 
following comments regarding S. 3469, the Nuclear Waste Administration 
Act of 2012. Described by its sponsor as a bill to implement the 
recommendations of the Blue Ribbon Commission on America's Nuclear 
Future (BRC), S. 3469 and the related September 12th hearing provide an 
opportunity to begin building a record for future Congressional action 
on the BRC and other approaches to best meet the needs of our country 
with respect to nuclear waste policy reform.
    The BRC report contained many recommendations that our members have 
long supported, including funding reform to protect consumers' 
continuing fee payments and the Nuclear Waste Fund (NWF) balance; 
prompt development of consolidated interim storage and geologic 
disposal; and an independent waste management organization with the 
authority and resources to succeed.
    Although not addressed by the BRC, the proposed Yucca Mountain 
repository remains the nation's best hope for ``promptly'' developing 
geologic disposal. The Department of Energy (DOE) and the Nuclear 
Regulatory Commission (NRC) should resume the Yucca Mountain licensing 
process both as a requirement of law and as a matter of respect to 
taxpayers and electricity customers who have invested billions of 
dollars in the license application. The NWSC supports Yucca Mountain 
and the BRC recommendations, and we emphasize these are not mutually 
exclusive positions. Nothing in the BRC report precludes resumption of 
work on Yucca Mountain. In fact, the BRC recommendations may be viewed 
as complementary steps to address needs in the interim and over the 
longer-term. Specifically, consolidated interim storage is needed until 
a repository is opened, and an additional repository--perhaps sited 
using a consent-based process--will be needed under existing law.
    With that context, the NWSC provides feedback regarding certain 
provisions of S. 3469:

Independent Waste Management Organization
    Following years of budget cuts, management turnover, and missed 
deadlines, our members wholeheartedly support the BRC recommendation 
for a new, single-purpose organization to develop and implement a 
focused, integrated program for the transportation, storage, and 
disposal of nuclear waste. Such an organization could be structured 
numerous ways. We prefer models that ensure accountability but 
reasonably insulate the organization from political interference and 
excessive turnover in key positions. Additionally, stakeholders should 
serve in some type of oversight or advisory capacity. The proposed 
Nuclear Waste Administration in S. 3469 is lacking with respect to some 
of the key elements noted here. While not endorsing any one model at 
this point, we prefer the government-owned corporation model as 
recommended by the BRC over models that set up government agencies with 
both politically-appointed leadership and oversight boards that tend to 
change with every administration. Finally, regardless of the model 
chosen for transferring nuclear waste management functions out of DOE, 
guidance to facilitate a smooth transition would be helpful.

Funding Reform
    Consistent with the BRC recommendations, the Administration, with 
Congressional support, needs to fix the funding for the nuclear waste 
program. The BRC eloquently stated the importance of reforming the 
existing funding mechanism as follows:

          The success of a revitalized nuclear waste management program 
        will depend on making the revenues generated by the nuclear 
        waste fee and the balance in the NWF available when needed and 
        in the amounts needed to implement the program.

    In a letter to the President over a month before their report was 
issued, the BRC Co-Chairs delineated near-term steps for timely actions 
that the current unsustainable situation warrants. Unfortunately, those 
recommendations have not been followed. As for S. 3469's creation of a 
new Working Capital Fund, we commend the effort to stop future raiding 
of consumer payments intended for the program. However, access to the 
Working Capital Fund would be subject to appropriations, potentially 
limiting the Administrator's ability to carry out necessary program 
activities. Also, we support NARUC's suggestion to strengthen financial 
support of the new organization by transferring the interest earned on 
the NWF balance to the new Working Capital Fund. Finally, we would like 
assurance that the balance in the NWF will be made available when 
program needs dictate.

Consolidated Interim Storage
    Consolidated interim storage (CIS) should be authorized and funded 
as a safe, cost-effective option for managing spent nuclear fuel and 
high-level radioactive waste from decommissioned and operating plants. 
While a permanent facility is being licensed and constructed, one or 
more CIS facilities would permit the federal government to begin 
meeting its obligations and reduce taxpayer liabilities associated with 
the government's delay. As such, we support the BRC call for prompt 
efforts to develop CIS with used nuclear fuel from the decommissioned 
reactor sites ``first in line'' for transfer. We were delighted to see 
that approach in the Senate appropriations language introduced earlier 
this year, and we suggest that comprehensive reform proposals such as 
S. 3469 expressly include language to ensure that CIS is authorized.
    Although well-intentioned, the linkage between CIS and progress on 
a permanent disposal facility in S. 3469 prevents site-specific 
flexibility and does not need to be legislatively mandated. Recognizing 
a need for disposal under any scenario, the country must promptly site 
and construct a permanent disposal facility, and we urge Congressional 
efforts to properly fund the repository program accordingly. That would 
best ensure that current dry cask storage and future CIS facilities do 
not become de facto permanent disposal facilities. At the same time, we 
need authorization and appropriations for CIS that affords as much 
flexibility as possible. In a consent-based siting scenario, potential 
CIS facility host communities would be empowered to assess and manage 
the risks of becoming de facto permanent facilities, and they will 
undoubtedly do so.
    Additionally, the bill's requirement that utilities settle their 
lawsuits against the federal government in order to be permitted to use 
a CIS facility would seem to perpetuate the untenable situation of 
prolonged on-site dry cask storage and mounting federal government 
liability. We need not remind Congress about which entity has not met 
its obligations under the law and per its contracts with utilities. The 
federal government still has a roadmap for avoiding future liability 
via performance.

Consent-Based Siting
    With respect to consent-based siting processes, the NWSC emphasizes 
the need for flexibility so as not to limit creative and effective 
solutions that may be proposed by potential host communities. With that 
in mind, we agree that is important to have an enforceable agreement at 
some point.
    While many of the BRC recommendations require legislative 
solutions, DOE should take action immediately to advance BRC near-term 
recommendations under existing authority. Until that happens, DOE 
should be held accountable to deliver a plan that reflects a sense of 
urgency, outlines specific actions, and takes ownership for the 
country's high level radioactive waste. Therefore, we urge you to 
remind DOE of the Senate's interest in receiving the implementation 
plan.
    In addition, it appears likely that the court will soon order the 
NRC and DOE to resume the Yucca Mountain licensing process. DOE and NRC 
should have executable plans in place to do so. We urge you to request 
a specific plan, including the resources required for completing the 
licensing process, from DOE and NRC.
    Thank you for your leadership in initiating the dialogue pertaining 
to certain BRC recommendations. The NWSC stands ready to work with you 
and your Congressional colleagues, the Administration, and DOE to 
advance meaningful nuclear waste policy reform. Please let us know if 
you would like to discuss further.
                                 ______
                                 
                 National Conference of State Legislatures,

                                Washington, DC, September 14, 2012.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 304 
        Dirksen Senate Building, Washington, DC.
Hon. Lisa Murkowski,
Ranking Member, Committee on Energy and Natural Resources, U.S. Senate, 
        304 Dirksen Senate Building, Washington, DC.
Re: Nuclear Waste Administration Act of 2012 (S. 3469)

    Dear Chairman Bingaman and Ranking Member Murkowski,
    On behalf of the National Conference of State Legislatures (NCSL), 
I applaud this committee for moving the debate concerning America's 
nuclear energy issues forward by building on the recommendations for a 
new national radioactive waste management strategy made by the Blue 
Ribbon Commission on America's Nuclear Future (BRC) in its final report 
issued on January 26, 2012.
    NCSL is the bi-partisan national organization representing the 50 
state legislatures and the legislatures of our nation's commonwealths, 
territories and the District of Columbia. NCSL has a long history of 
working on nuclear energy issues. Specifically, NCSL's Nuclear 
Legislative Working Group, of which I am the chair, is comprised of 
state legislators from across the country who discuss issues 
surrounding nuclear energy including the safe handling, storage and 
transportation of waste. This long-standing group meets twice a year 
and also helps to form NCSL policy directives on this and other topics. 
I am also a member of NCSL's Executive Committee and serve on NCSL's 
Energy Supply Task Force. The task force explores current energy 
policies in the United States and makes recommendations for changes to 
current NCSL policy related to energy issues.
    NCSL has adopted two applicable policies on these topics, 
Radioactive Waste Management Policy Directive and National Energy 
Policy Directive, which have been submitted as attachments to these 
written remarks. These two policies serve as the foundation for these 
remarks and our support of congressional efforts to find a solution to 
nuclear waste management in the U.S. including:

   development and licensing of a high-level waste/used nuclear 
        fuel permanent disposal facility;
   establishment of consolidated interim storage facilities at 
        technically and scientifically suitable sites;
   creation of a public-private partnership to manage the back 
        end of the nuclear cycle; and
   efforts to ensure the Nuclear Waste Fund is used for its 
        intended purpose of managing radioactive wastes.

    NCSL commends the inclusion of state consultation in the consent 
based approach to siting radioactive waste facilities, within the 
Nuclear Waste Administration Act of 2012. However, it is vital that 
state legislators, and not just a state's governor, be consulted 
regularly to ensure that such a decision is made with the appropriate 
levels of support. Under the Nuclear Waste Policy Act, it is clearly 
stated that the Department of Energy will work with states, including 
state legislators. NCSL strongly urges this committee, as it moves 
forward to develop a program for the long-term treatment and disposal 
of high-level radioactive waste, to ensure adherence to this 
requirement.
    While Congress and the federal government work to develop long-term 
disposal solutions, NCSL supports federal action to develop 
consolidated interim storage facilities to temporarily house high level 
radioactive waste inventories until a permanent repository is 
operational. NCSL also supports use of the Nuclear Waste Fund to 
provide interim storage financing mechanisms and incentives to 
voluntary host communities. Addressing the need for interim storage 
facilities will help advance national efforts to address spent fuel 
storage and high level radioactive waste management as long term 
storage plans are developed.
    Finally, NCSL urges enactment of legislative language that would 
ensure that the Nuclear Waste Fund is used for its intended purpose to 
support the establishment and implementation of a nuclear waste 
management program. Additionally, such language should establish a 
firewall so that fees deposited in the Nuclear Waste Fund are used for 
nuclear waste management purposes and are not subject to non-related 
federal discretionary spending.
    Thank you for the opportunity to weigh in on this important issue. 
NCSL has a long history of working on issues related to nuclear waste 
management and welcome the opportunity to continue to work with 
Congress to advance this conversation and build on the recommendations 
of the Blue Ribbon Commission and the proposals discussed in today's 
hearing. Please feel free to contact NCSL staff Ben Husch 
([email protected]) or Tamra Spielvogel ([email protected]) 
for more information.
            Sincerely,
                                       Sally Young Jameson,
      Maryland House of Delegates, Chair, NCSL Nuclear Legislative 
                                                         Workgroup.

               ATTACHMENT.--RADIOACTIVE WASTE MANAGEMENT

    The federal government should work with NCSL and similar 
organizations in an effort to ensure that state legislators are 
included in all aspects of nuclear waste management strategies.
    Low-Level Waste--NCSL maintains that states are best prepared to 
license and regulate lowlevel waste disposal facilities that operate 
within their borders in order to protect the health, safety and welfare 
of their citizens. NCSL urges the federal government to continue to 
provide states both with support and flexibility in their efforts to 
dispose of low-level radioactive waste. States and state compacts 
should have authority to limit/allow the import and export of waste to 
and from their state or region. The federal government should adopt 
policies that clarify the responsibility of the federal government for 
federal waste, identify any federal waste that might be disposed at 
compact facilities, and ensure that any federal waste disposed of at 
compact or unaffiliated state facilities is subject to negotiation and 
the same laws, regulations, fees and requirements as nonfederal waste. 
The federal government should adopt clear policies with regard to 
naturally occurring and accelerator produced radioactive material waste 
and mixed wastes that respect states' authority to protect the health, 
safety and welfare of their citizens. NCSL encourages the federal 
government to work with NCSL toward these ends.

High-Level Waste and Used Fuel Management
    NCSL urges the federal government to expeditiously research, 
develop and license a high level waste/used nuclear fuel disposal and 
consolidated interim storage facilities at technically and 
scientifically suitable sites. NCSL favors the creation of a public-
private partnership to manage the back end of the nuclear cycle. The 
federal government should consult with states at each step of the 
process to ensure they play an integral role in the development of 
high-level waste/used nuclear fuel storage and disposal policies and 
obtain state, local and tribal government informed consent before 
locating permanent disposal or consolidated interim storage facilities. 
The federal government should provide fair and equitable compensation 
to state and local governments of host states. This should include 
funding of independent oversight activities by state executive and 
legislative branches so that the host state may participate in and 
conduct its own assessments of a proposed waste repository site and 
disposal technology. The federal government should comply with state 
laws and regulations during the process of site selection and 
characterization, and the construction, operation and decommissioning 
of permanent disposal or consolidated interim storage facilities.
    Consolidated interim storage facilities should be licensed for a 
specific, limited period of time not to exceed 25 years. High-level 
waste/used nuclear fuel recycling should be a priority waste management 
strategy.
    Annual funding from the Nuclear Waste Fund should be used for 
nuclear waste management and not subject to non-related federal 
discretionary spending. These funds should be isolated for developing 
permanent disposal and consolidated interim storage facilities.

Transportation of Radioactive Waste and Used Nuclear Fuel
    NCSL urges the federal government to ensure safe and reliable modes 
of transportation of radioactive wastes. DOE should seek to enter into 
a memorandum of understanding with each corridor state to spell out 
responsibilities, liability, compensation, response time, cleanup, 
shipping, planning and other duties connected with emergency 
situations. State, local and tribal governments should be given funding 
and technical assistance for ongoing emergency preparedness, 
independent safety inspections of drivers, vehicles and shipping 
containers, training of state and local public safety officials along 
radioactive waste transportation routes, and state emergency management 
communications centers. State, local and tribal governments should be 
involved in a meaningful manner with regard to radiation emissions 
standards, cask designs, support facilities, transportation equipment 
and other elements of the transportation system. The federal government 
should respect state and tribal authority to assess reasonable fees 
which fund activities connected to the safe routine transportation of 
high-level waste/used nuclear fuel shipments. The federal government 
should assure transportation accident prevention through the use of 
superior drivers; carrier compliance with shipping contracts and all 
applicable federal, state and local regulations; independent safety 
inspections of drivers, vehicles and shipping containers; designation 
of safe parking areas during abnormal conditions; advance notice to the 
appropriate state and local agencies regarding shipments; and state 
access to information on shipments' status (i.e. real-time shipment 
tracking information where appropriate). Special criteria should be 
applied to the shipment of high-level waste/used nuclear fuel, 
including the development of guidelines for routing when shipping by 
rail, the use of dedicated trains moving at safe speeds for rail 
shipments, safety inspections at origin and enroute, and fullscale 
testing of casks used for used fuel transport.

Defense-Generated Transuranic (TRU) Waste
    NCSL urges the federal government to appropriate adequate funds and 
expedite its responsibilities with regard to disposal of defense-
generated transuranic (TRU) waste. The federal government should 
implement a compensation program that recognizes equity considerations 
for state and local governments hosting a TRU waste repository and the 
federal government's obligation to provide such compensation. Host 
communities should be given assistance to subsidize and maintain an 
independent environmental monitoring and analytical laboratory to 
assure the character of the waste and ensure public confidence and 
safety.

Federal Facilities Cleanup
    The states insist that the cleanup and disposal programs at the 
federal government's network of nuclear weapons production facilities 
and national research labs advance in a safe, costeffective and 
expeditious manner. The U.S. Department of Energy, the Department of 
Defense and any future owners should be subject to all state laws 
governing the cleanup of hazardous and radioactive waste materials. 
States are also committed to the cleanup and conversion of closed 
military and other federal facilities containing hazardous and 
radioactive waste materials to other beneficial uses as soon as 
possible. NCSL encourages the Department of Defense to lessen the 
impacts of closing these facilities by entering into partnerships with 
business and other private interests in order to turn them into sites 
of commerce and development.
    All federal cleanup efforts must be conducted in full consultation 
with the affected state, tribal and local governments. An ongoing 
dialogue with the states should be maintained to ensure effective state 
involvement in critical cleanup related decisions. Cleanup work must be 
accomplished in strict compliance with federal facility agreements and 
federal and state laws governing the cleanup of hazardous and 
radioactive waste materials. The federal government should give state 
and federal regulators complete enforcement authority necessary to 
ensure such compliance.
    The federal government should continue to use the contract review 
process to provide effective oversight and to evaluate integrated 
contracts for cost accountability. Cost-effective solutions must be 
developed and implemented by federal agencies to meet cleanup standards 
that protect human health and the environment. State, tribal and local 
governments must have a continuing, substantive role in the planning 
and oversight activities of the waste-management effort. The Department 
of Energy must recognize that cultural resources and artifacts may be 
present on DOE sites, and must partner with affected Indian tribes to 
identify and mitigate impacts to those resources.
    Pollution prevention practices should be followed and whenever 
possible recovered materials should be recycled or reused. Action 
should be taken to manage federal radioactive, hazardous, and mixed 
waste sites as soon as possible, but safety and quality cleanup must 
remain the priority. Federal cleanup efforts should enforce priorities 
and meet milestones set forth in federal-state consent orders regarding 
the cleanup of specific sites. A fully funded and comprehensive long-
term stewardship program for all of the federal facilities must be 
developed to ensure that communities are protected in perpetuity.

             ATTACHMENT.--NATIONAL ENERGY POLICY DIRECTIVE

    National Energy Policy Directive NCSL Energy, Transportation and 
Agriculture Standing Committee The National Conference of State 
Legislatures urges the federal government to continue working 
cooperatively with state, local, and tribal governments to develop, 
implement and maintain an expansive, integrated, environmentally-
sensitive and cost-effective national energy policy. Principles NCSL 
believes the following principles should guide the development and 
implementation of a national energy policy:

   Promotion of the most efficient and economical use of all 
        energy resources.
   Promotion of energy conservation and efficiency and the 
        development and use of alternative and renewable energy 
        supplies.
   Promotion and provision of incentives for the development 
        and optimal use of all energy resources and new facility 
        infrastructure.
   Assurance that various domestic energy sources are 
        continually developed, maintained and stored to prevent supply 
        emergencies and promote energy independence.
   Consideration and assessment of environmental costs and 
        benefits for all energy resources, fuels and technologies in 
        rendering legislative, regulatory and market decisions 
        regarding energy production and use.
   Provision of an affordable and reliable energy supply for 
        all citizens.
   Examine the feasibility of, and where feasible, promote 
        state-wide or regional minimum storage level requirements for 
        heating oil for states dependent on this fuel.
   Specification and balancing of clear lines of local, state 
        and federal regulatory authority.
   Development of both short and long-term strategies to 
        provide adequate energy supplies, efficient utilization of 
        those supplies and optimum cost effectiveness.
   Promotion of the education of school-age children regarding 
        energy resources, consumption, conservation, and production and 
        regarding environmental protection, safety and risks in energy 
        production.
   Assurance of expanded energy research and development and 
        broadening of the citizenry's access to energy-related 
        information.
   Assurance of participation of state and local officials in 
        the development and implementation of a national energy plan 
        and strategy.
   Avoidance of mandates, particularly unfunded mandates, upon 
        state and local governments as well as avoidance of pre-emptive 
        federal laws in developing a national energy policy.

Implementation
    NCSL believes development of a national energy strategy should 
contain at a minimum these components:

   An assessment and forecast of our nation's energy future and 
        its impacts;
   An evaluation and ranking of short and long-term energy 
        options available to the nation;
   An evaluation of possible energy futures which provide 
        greater benefits to our citizens;
   The development of recommendations for energy options and 
        energy futures that the nation should pursue, with the 
        establishment of national targets or goals;
   An evaluation and recommendation of implementation 
        mechanisms including, but not limited to, incentives, technical 
        assistance, educational programs, regulatory standards or 
        guidelines to achieve the targets or goals;
   Considers energy sources based on the lowest cost, cost 
        benefit analysis, revenue loss, cost to consumers, reliability, 
        and environmental or other impacts. Additionally, energy policy 
        alternatives that would improve our energy security without 
        imposing significant new costs, while balancing the need for 
        environmental protection, should be implemented.
   A coordinated effort between state and federal government in 
        the development of producing a national energy policy where the 
        federal government consults closely with state legislatures, 
        devising mechanisms to bring state legislatures into the energy 
        decision-making process as full participants on a continuing 
        basis and ensuring the inclusion of representatives of the 
        legislative branch of state government in all statefederal 
        working groups dealing with energy policy.

Conservation and Energy Efficiency
    NCSL supports a national energy policy that promotes energy 
efficiency in a variety of ways including both setting and 
strengthening policies as technologies improve while recognizing the 
significance of economic costs on various segments of the population 
including rural areas. NCSL supports the use of:

   Corporate Average Fuel Economy Standards for automobiles and 
        light duty trucks, including sport utility vehicles and 
        minivans;
   Energy efficiency provisions in model building codes 
        (including lighting efficiency standards and weatherization);
   ``Whole-building'' and life cycle costing approaches to 
        construction and retrofitting that integrate energy efficiency 
        technologies and practices;
   home appliance and heating and cooling unit efficiency 
        standards;
   Waste recycling and reduction standards for industrial 
        manufacturing;
   Standards for conservation in electrical production and 
        supply including cogeneration;
   Use of alternative energy; and
   A national transportation policy that emphasizes various 
        modes of transportation, including passenger rail and transit, 
        as well as promoting energy efficiency.

New Source Review Program (NSR)
    NCSL urges the Environmental Protection Agency (EPA) to reform the 
NSR program to achieve improvements that enhance the environment and 
increase production capacity, while encouraging efficiency, fuel 
diversity and the use of resources without weakening the requirements 
intended to reduce emissions from new or modified sources of air 
pollution. Routine maintenance, repair or replacement activities which 
are not major modifications should not trigger NSR requirements.

Government Support for Renewable Energy and Energy Efficient Products 
        and Industries
    NCSL believes that federal and state governments' leadership role 
in the purchase and use of new energy efficient and renewable energy 
technologies and products should be expanded and supports incentives 
for consumers to purchase energy efficient products. The federal 
government should continue to establish incentives for energy efficient 
fleet procurement industries and manufacturers of energy efficient 
products as well as continue to encourage the use of innovative 
financing technologies to increase energy efficiency in buildings such 
as performance contracting and long-term leasing and purchase 
agreements for energy efficient products. All government-owned 
buildings should make use of economical energy conservation programs, 
demonstrating state of the art efficiencies whenever possible.

Renewable Energy
    NCSL believes that in recognizing a spectrum of renewable energy 
resources including, but not limited to geothermal, hydropower, 
biomass, wind, photovoltaics and solar, the federal government should 
institute a long-range, stable Renewable Energy Development Program 
which identifies and supports development of renewable energy sources 
from research and development through demonstration projects and 
commercialization in a cooperative effort among industry, higher 
education, and national laboratories.
    NCSL recommends that:

   Federal action should be flexible, allowing for a range of 
        complementary strategies at the state and federal level 
        maintaining a strong role for state government in any federal 
        action.
   Federal legislation should provide states the authority and 
        flexibility to work within a overall framework that affords 
        states the ability to chose from a range of options & apply the 
        law effectively in the most cost effective, timely and 
        efficient manner for each state.
   Federal legislation should not preempt state governments 
        from enacting stricter or stronger measures within their 
        jurisdiction.
   Congress must authorize and appropriate sufficient funds for 
        state and federal governments to implement any federal 
        legislation. These funds should be newly authorized 
        appropriations, not reprogrammed resources.

Energy Emergency Preparedness
    NCSL believes that the federal government should support and 
enhance energy emergency preparedness in order to reduce the potential 
impact of petroleum supply disruptions.
    A national energy emergency preparedness program should include the 
following principles:

   Initial efforts should focus on strategies to reduce the 
        nation's dependence on foreign oil to avoid future emergencies.
   Voluntary conservation, is preference to mandatory measures, 
        wherever possible;
   When any mandatory responses are required, they should be 
        phased in, beginning with the least stringent measures, with 
        gasoline rationing reserved for only the most severe shortage;
   Minimize undue hardships on states and regions heavily 
        dependent on motor vehicle transportation with rationing 
        allotments and allocation plans being based on state and 
        regional needs and strategies rather than on national averages.
   Priority shall be given to home heating needs including home 
        heating oil and propane, provided homes are adequately 
        insulated.

    NCSL believes changes need to be made at the national level to 
ensure that the country has sufficient, affordable supplies of energy, 
by encouraging more efficient use of energy to reduce U.S. reliance on 
foreign oil. As such, federal investments in both energy efficiency and 
research in developing new and alternative energy technologies should 
figure significantly in a national energy policy.

Coal
    NCSL believes the federal government should support the efficient, 
responsible production and utilization of the United States vast 
resources of coal, largest reserves of any nation in the world, and the 
strategic global economic advantage it provides.

   Provide continued support for Clean Coal Technology 
        research, in partnership with the private sector. Such support, 
        through additional research and technology development in clean 
        coal usage, should include work in pre-combustion, combustion, 
        postcombustion, and coal conversion areas with desulfurization 
        efforts a top priority.
   Jointly address transboundary environmental issues with 
        Canada and Mexico.
   Continue to support the acid rain program of the Clean Air 
        Act of 1990 that phases--in reductions in emissions from coal 
        burning power plants.
   Seriously consider coal gasification as an alternative to 
        the use of coal in a conventional manner.
   Concurrently reclaim and restore mined lands to an 
        environmentally appropriate condition.
   Consider the effects on local infrastructure needs and the 
        costs of prime farmland protection and land reclamation in the 
        development of a national coal program.
   Accelerate the financing of activities under the abandoned 
        mine reclamation fund and a federal commitment to reclamation 
        should be strengthened.
   Avoid adopting federal policy that has implications for land 
        development or management without accommodating the laws and 
        policies of affected states.

Crude Oil
    NCSL believes the federal government should promote and encourage 
domestic production of crude oil in an efficient and environmentally 
sound manner in order to both supply United States consumers with a 
secure source of petroleum as well as provide a stabilizing influence 
to the world price of crude oil. As such, the extraction and 
transportation of crude oil must be done only with safeguards for the 
protection of the environment. The federal government should consider 
incentives for domestic exploration, maintenance of stripper wells, but 
excluding other extractions, and technological research for methods of 
enhanced oil and gas recovery that are environmentally safe and in 
accordance with state policy as well as an increase in research and 
development in the area of new energy generating technologies including 
but not limited to biofuels, electric cars, fuel cells, hybrid engines, 
and alternative fuels particularly for transportation.
    The federal government should manage United States imports by 
diversifying import suppliers, pursuing a Pan American Energy Alliance 
with Western Hemisphere producing nations, and expanding a dialogue 
with suppliers worldwide.

Oil Overcharge Settlement Funds
    NCSL is appreciative of Administrative and congressional action to 
disburse authorized unclaimed overcharge monies to the states, via the 
oil overcharge settlement funds.
    NCSL believes that the refunded oil overcharge money disbursed to 
states should be used for energy-related purposes. As emerging federal 
and state emphasis on conservation and energy efficiency programs has 
created a state need for additional funds to develop and implement new 
programs, some states are unable to meet the growing demands of their 
energy programs with state money alone. Therefore, NCSL strongly 
supports expeditious pass-through of oil overcharge settlement funds by 
the Department of Energy to states only to supplement, and not 
supplant, energy related programs. NCSL opposes efforts to reduce or 
eliminate or take credit for federal funding of existing energy related 
programs such as the Weatherization Assistance Program, the 
Institutional Conservation Program, the State Energy Conservation 
Program, and programs authorized to be funded by the Energy Policy Act 
of 1992, based on the receipt of oil overcharge settlement monies. NCSL 
also opposes the diversion of oil overcharge monies from their intended 
energy uses.
    Additionally, as oil overcharge and settlement funds are depleted, 
Congress is encouraged to appropriate replacement or supplemental funds 
to facilitate continued state involvement in worthwhile energy 
programs.

Natural Gas
    NCSL believes the United States should encourage domestic 
production of natural gas in an environmentally sound manner. The 
federal government should adopt legislation that funds and authorizes 
states to assume a more prominent role in the regulation of pipeline 
safety. A partnership with the federal government will enhance the 
safety of pipelines and the protection of residents by decreasing the 
risk of pipeline accidents.

State Primacy in Regulation of Oil and Gas and Production Wastes
    Since oil and gas exploration and production occur in several 
different states in distinct regions, NCSL believes that primary 
responsibility for the regulation of used oil and of oil and gas 
exploration and production wastes is best handled by the affected state 
to accommodate site-specific conditions and environmental 
considerations should not be preempted by federal legislation or 
regulation. As such, NCSL supports the continuation of exempting used 
oil and waste generated in oil and gas exploration and production from 
classification as hazardous waste under the Resource Conservation and 
Recovery Act (RCRA).

Revenues from On-Shore and Outer Continental Shelf Drilling
    The Federal Oil and Gas Royalty Management Act of 1982 (30 U.S.C. 
1701 et. seq.), requires 50 percent of the revenues from federal on-
shore drilling is paid to the state in which the lease is located and 
ensures that state legislatures shall direct the use of these funds.

   NCSL supports the state legislatures' role in the 
        appropriation of these funds.
   NCSL opposes any effort by Congress or the Administration to 
        reduce the revenue share paid to states in an effort to off-set 
        federal expenditures on a temporary or permanent basis.

    NCSL does not support or oppose additional exploration or 
production on the Outer Continental Shelf (OCS). However, to the extent 
that mineral extraction occurs, Congress is urged to:

   Authorize and appropriate 50 percent of the Outer 
        Continental Shelf (OCS) revenues to the states;
   Ensure the state legislatures' participation in the 
        appropriation of these funds; and
   Provide state lawmakers the flexibility to target these 
        funds to their respective state's natural resource priorities.
   OCS revenue sharing with the states should be in addition to 
        and not replace other Federal funding programs.
   Preserve state authority to impose moratoriums on or allow 
        for mineral exploration, development and production activities 
        on the OCS.
   Lift federal fees charged to states for use of sand, gravel 
        and shell resources taken from the OCS for use in beach 
        nourishment and other coastal erosion mitigation activities.
   Give states full review of development and production of 
        mineral resources on the OCS.

Nuclear
    NCSL believes that,

   Nuclear Energy generates an essential share of the nation's 
        clean, non-emitting, zero carbon baseload electricity.
   The Nuclear Regulatory Commission (NRC) should provide 
        strong, independent oversight of all commercial nuclear plant 
        operations, including plant licensing (both license extensions, 
        where appropriate, and over the ongoing construction of new 
        reactors) and used fuel and radioactive waste management, 
        transportation and disposal, to ensure public health and 
        safety. The rigorous NRC safety review process already employed 
        in certifying new reactor designs should be maintained as 
        additional designs are considered.
   The federally-supported public-private partnership that is 
        pursuing the design, development and licensing of Small Modular 
        Reactors should focus on maximizing the economic development 
        and positive trade balance potential of this emerging 
        technology. The federal government should assist the ongoing 
        efforts of various states to establish U.S. leadership in this 
        promising market.
   A federal government program for the long-term treatment and 
        disposal of used nuclear fuel and high-level radioactive waste, 
        already funded by nuclear utility ratepayers, should be pursued 
        with the highest priority given to the safe reprocessing or 
        transportation of waste and to the safety and technical 
        suitability of storage or disposal sites. Such a program should 
        be developed in full consultation with all of the affected 
        states.
   Meaningful and effective state participation is necessary in 
        public safety planning and transportation of commercial used 
        nuclear fuel and high-level waste.
   The recommendations of the Blue Ribbon Commission on 
        America's Nuclear Future appropriately comport with the 
        longstanding position of NCSL in favor of a path forward for 
        used fuel. In particular, NCSL favors: creation of a public-
        private partnership to manage the back end of the nuclear fuel 
        cycle; assurance that ratepayer contributions to the Nuclear 
        Waste Fund be available solely for their intended purpose; 
        establishment of one or more NRC-licensed centralized interim 
        used fuel storage facilities in willing host communities and 
        states (with consultation of all state, local and tribal 
        officials and other interested parties).
   States must continue to have the right to monitor operating 
        conditions at nuclear power plants, waste storage and disposal 
        facilities, and to exercise regulatory authority where 
        consistent with federal law.
   Federal funding should complement private sector investments 
        in the areas of waste management technologies, nuclear fusion, 
        and plant retrofit and life extension.
   The tax treatment of decommissioning funds should be updated 
        to ensure that existing funds are treated in the manner 
        intended by the tax laws and to reflect new business 
        conditions.

Electricity
    NCSL believes that the federal government should promote

   Energy efficiency and conservation to lower the demand for 
        electricity.
   The development of sources of electric energy that are 
        sufficient to meet national needs, secure from external threat, 
        reliable in availability and delivery, safe relative to people 
        and the environment, and efficient for use in homes, 
        businesses, industries, and as an alternative vehicular fuel.
   The implementation of aggressive efficiency and conservation 
        programs are implemented.
   Legislation that recognizes the tremendous regional 
        diversity, especially with regard to capacity of the 
        electricity sector

Public Benefits/Environment
    NCSL believes that:

   States should maintain the authority to require public 
        benefits programs on a nondiscriminatory basis, including those 
        that support reliable and universal service, energy efficiency, 
        renewable technologies, research and development, and lowincome 
        assistance. Additionally, existing federally sponsored public 
        benefits programs should be maintained in a restructured market 
        and electric industry restructuring should be consistent with 
        any federal environmental laws, including the Clean Air Act.
   Implementation of Federal legislation that fails to 
        recognize market mechanisms inevitably penalizes one region or 
        state or another and that mandate programs are counter to the 
        concept of restructuring, which encourages the efficiencies of 
        market competition.
   As states are in the best position to evaluate market force 
        considerations, Congressional legislation should not limit, 
        through the use of mandates or otherwise, state flexibility in 
        addressing market mechanisms in electric restructuring plans.
   Non-traditional energy production should be encouraged and 
        that the federal government must maintain and increase its 
        commitment to cost effective energy conservation and efficiency 
        while maintaining adequate and reliable energy. As such, power 
        providers, equipment and appliance manufacturers, and consumers 
        should be given legislative and regulatory incentives to 
        promote these goals.

Consumer Protection and Education
    NCSL believes that:

   The safety, reliability, quality, and sustainability of 
        services should be maintained or improved and that all 
        consumers should have access to adequate, safe, reliable, and 
        efficient energy services at fair and reasonable prices, as a 
        result of competition.
   States should retain the authority, with the assistance of 
        the federal government as needed, to protect consumers from 
        anticompetitive behavior, undue discrimination, poor service, 
        market power abuses, and unfair service practices.
   States should maintain the authority to establish or require 
        comprehensive consumer education and outreach programs to 
        minimize public confusion and provide information so consumers 
        are able to make informed choices and participate effectively 
        in a restructured market.

Regulatory Authority
    State regulatory bodies are close to consumers, utilities, 
industries, and concerned for state environmental and economic well 
being. State regulatory bodies are in the best position to evaluate 
consumer needs, and address questions relative to fuel choice, economic 
development implications, and system reliability.
    NCSL strongly supports and urges the continuation of the state 
legislative oversight for the approval and siting of all major energy 
conversion facilities, subject to minimum federal standards established 
only after the fullest consultation with state governments, both 
executive and legislative branch. State authority over the siting of 
energy facilities should not be preempted by federal law.
    NCSL acknowledges the need for a robust national transmission 
system that can support new technology and allow for additional power 
production to be brought onto the grid. NCSL urges Congress to allow 
provisions included in the 2005 Energy Policy Act relating to state 
authority of liquefied natural gas terminal siting to be implemented 
and studied before any attempt is made to expand the preemption to 
further limit the state role in siting of these energy infrastructure 
components. NCSL opposes any such expansion of these provision but 
urges Congress at a minimum to allow for the complete implementation of 
the new standards before reopening the issue.

Research and Development
    NCSL believes that the cornerstone of a national energy policy 
should include a broad research and development component. 
Specifically, federal government research and development funds for 
clean coal, nuclear research, basic science and related efforts ought 
to be continued. However, these efforts should be supplemented with 
increased long-term incentives and federal funding for research and 
development projects emphasizing emerging technologies, including, but 
not limited to, renewable resources, energy conservation, efficient use 
of energy, alternative fuels, oil and gas recovery, superconductivity, 
and fuel cell technology and should be designed to encourage private 
sector participation with federal and state representatives. NCSL urges 
Congress to provide explicit recognition in the Internal Revenue Code 
that sustainable energy (conservation, efficiency and customer sited 
renewable) is a private activity serving a public good.

Renewable Energy R&D Market Support
    NCSL encourages federal development of alternative technologies 
that improve renewable energy efficiencies, cut costs, and assist in 
integrating renewable energy into existing energy systems. The 
implementation of federal standards for the deployment of these new 
technologies should not undermine established programs at the state 
level to integrate these resources into existing energy systems. NCSL 
also believes in the need for a translation and distribution system for 
international technical and marketing papers on renewable energy and 
that the U.S. should strive for excellence in the use, manufacturing 
and marketing of renewable energy resources and technologies.

Wave Energy and Tidal Energy
    NCSL strongly believes that the United States should increasingly 
encourage all forms of renewable energy, including avenues of renewable 
energy that are not currently in the forefront; specifically wave 
energy, wave farms, and tidal energy.
    NCSL requests that the federal government demonstrate global 
leadership and:

   Recognize the importance of wave energy and tidal energy to 
        the future of the United States;
   Support the research and development of advances in wave 
        energy and tidal energy technology, including the ability to 
        tow and set up the equipment in the oceans through loan 
        guarantees, grants and tax incentives;
   Research and create a ``Wave Hub,'' or similar 
        infrastructure necessary for integrating wave- and tidal-energy 
        production facilities into the national grid; and
   Encourage the demonstration and deployment of wave energy 
        and tidal energy beyond the limited scope of R&D to ensure 
        competitive and equitable access for wave- and tidal-energy 
        projects and provide a fair opportunity to supply the nation 
        with a reliable and renewable energy.

Education and Information
    NCSL believes that it is essential that the nation, including its 
elementary and secondary school-age children, be made fully aware of 
energy use and costs, production processes, alternative energy 
resources, the importance of energy efficiency and conservation and the 
impact energy usage has on our environment. NCSL recommends that public 
and private sector education efforts be initiated, expanded and 
appropriately funded.
    The federal government should promote both energy conservation 
education and fund research into conservation technologies while 
federal funding of energy conservation programs, including grants to 
states, should be enhanced. Such efforts should emphasize that 
significant economic and environmental benefits can be achieved through 
increased efficiency and conservation.
    NCSL also believes that an essential step in formulating a balanced 
energy policy is to develop the necessary data and employ analytical 
methods and models to assess the efficiency, productivity costs and 
risks of the various energy choices available to the nation. As such, 
NCSL recommends the development of this analytic base by the Department 
of Energy, with assistance from the Departments of Defense, Treasury 
and State, and the Office of Management and Budget, in conjunction with 
the states.

Transportation
    NCSL believes that national transportation strategies must include 
public policy initiatives directed at broadening the efficient use of 
our energy resources. As such, policy initiatives should include, but 
not necessarily be limited to:

   Incentives and adequate funding for mass transit, high speed 
        rail, magnetic levitation and other emerging transportation 
        technologies;
   Fuel economy standards; and other market incentives for 
        improving the energy efficiency of automobiles and light 
        trucks;
   Federal, state, and local procurement policies favoring 
        efficient vehicles;
   The encouragement of public-private partnerships.
                                 ______
                                 
        Wall Street Journal Article submitted by Hon. Ron Wyden,
                        U.S. Senator From Oregon

   U.S. NEWS
   September 9, 2012, 7:36 p.m. ET

                       WASTE-PLANT DISPUTE BUILDS
            SAFETY AND DESIGN CONCERNS SLOW CONSTRUCTION OF 
                      NUCLEAR-PROCESSING FACILITY

By ANDREW MORSE
    The U.S. Department of Energy is slowing construction of a facility 
to process the country's largest accumulation of radioactive waste, 
amid an increasingly acrimonious dispute about the design and safety of 
the $12.2 billion project.
    Energy Secretary Steven Chu visited the Hanford site in southeast 
Washington state last week, which department officials said was part of 
efforts to assess the safety of the nuclear-waste complex. Mr. Chu was 
accompanied by an expert panel he assembled following a trip in June to 
the plant after concerns were raised about the safety culture at the 
facility.

Department of Energy
    An aerial view of the Hanford treatment plant in July.
    Mr. Chu and the experts are reviewing the safety of rooms that will 
hold radioactive waste as it is processed at the vast complex, which 
will cover 65 acres and house four nuclear facilities, in addition to 
other components.
    For decades, the government used the 586-square-mile Hanford site 
to produce plutonium for atomic weapons, including the Fat Man bomb 
dropped on Nagasaki during World War II. The work turned the land into 
one of the most toxic areas in the U.S., so after the Cold War, the 
DOE, the Environmental Protection Agency and the state set out to clean 
it.
    Hanford's problems were highlighted last month when a DOE official 
who oversees engineering at the plant faulted the primary contractor, 
Bechtel National Inc., for problems, concluding that the company was 
``not competent'' to serve as the facility's chief designer.
    Frank Russo, who manages the project for Bechtel National, a unit 
of Bechtel Corp., said many of the issues raised by the DOE official, 
Gary Brunson, are old and that the company had worked to fix problems. 
``All of them had been addressed at one time or another,'' Mr. Russo 
said.
    Separately, the DOE last month discovered radioactive material 
between the walls of one of the site's newer double-shelled waste-
storage tanks, which are designed to be superior to older single-shell 
tanks. The threat of leaks has been a concern for decades: In the past, 
according to a project website, one-third of the 177 underground tanks 
have experienced leakage of toxic material.
    The DOE has enhanced monitoring of the double-shelled tank and has 
declared that it is stable.

Associated Press
    Energy Secretary Steven Chu spoke to Hanford workers during a June 
visit.
    Concerns over key parts of the facility are slowing construction, 
because the facility is being designed as it is built; as design issues 
crop up, building has to slow until those issues are addressed.
    The issues are raising concerns of a delay in the opening of a 
project that has attracted the ire of environmentalists, federal 
lawmakers and even its own workers. The range of concerns include the 
safety and cost of the plant, as well as risks that radioactive sludge 
could seep into the nearby Columbia River.
    On Aug. 29, Washington Gov. Christine Gregoire, a Democrat, wrote 
to Mr. Chu asking that he explain why the plant's schedule was at risk. 
Ms. Gregoire sought a meeting with Mr. Chu while he was at the site, 
but the two weren't able to coordinate their schedules, her spokeswoman 
said.
    Expected to start full operations in 2022, the plant would separate 
and process 56 million gallons of radioactive and chemical waste. The 
waste would then be turned into glass logs-a form that makes it less 
likely to spread through the environment-that would be stored at the 
site. The plant is expected to operate for roughly 40 years.
    The facility, called the Waste Treatment and Immobilization Plant 
has been the subject of controversy for years. Managers on the project 
have raised concerns about the design, as well as the safety culture at 
the project. Employees have brought lawsuits against Bechtel National.
    One issue highlighted by Mr. Chu involves the design of a set of 18 
rooms that will hold waste as it is treated for processing. The rooms, 
called ``black cells'' because workers won't be able to enter them when 
the plant is running, were to be built with limited monitoring 
equipment. The DOE now is considering whether more instruments should 
be incorporated to monitor how the waste is settling, and whether 
openings should be larger so machinery, such as robots, could be sent 
in.
    As a result, the government has slowed work on pretreatment and 
high-level radioactive waste facilities, said David Huizenga, a senior 
DOE adviser. Construction of two other buildings, a lab and a low-
activity waste facility, are continuing on schedule, he said. The 
agency isn't fundamentally ``changing or questioning the design'' of 
the plant, Mr. Huizenga said.
    Tom Carpenter, the executive director of Hanford Challenge, a group 
that has expressed concerns about the plant's design and that has been 
skeptical about the progress of construction, says resolving design 
issues takes on a new urgency following the discovery of the 
radioactive material last month. ``I want this plant to work,'' Mr. 
Carpenter said. ``We have no Plan B.''

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