[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
         IMPLEMENTING THE NUCLEAR WASTE POLICY ACT: NEXT STEPS

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

                                HEARING

                               BEFORE THE

              SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 10, 2013

                               __________

                           Serial No. 113-79



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                    COMMITTEE ON ENERGY AND COMMERCE

                          FRED UPTON, Michigan
                                 Chairman

RALPH M. HALL, Texas                 HENRY A. WAXMAN, California
JOE BARTON, Texas                      Ranking Member
  Chairman Emeritus                  JOHN D. DINGELL, Michigan
ED WHITFIELD, Kentucky               FRANK PALLONE, Jr., New Jersey
JOHN SHIMKUS, Illinois               BOBBY L. RUSH, Illinois
JOSEPH R. PITTS, Pennsylvania        ANNA G. ESHOO, California
GREG WALDEN, Oregon                  ELIOT L. ENGEL, New York
LEE TERRY, Nebraska                  GENE GREEN, Texas
MIKE ROGERS, Michigan                DIANA DeGETTE, Colorado
TIM MURPHY, Pennsylvania             LOIS CAPPS, California
MICHAEL C. BURGESS, Texas            MICHAEL F. DOYLE, Pennsylvania
MARSHA BLACKBURN, Tennessee          JANICE D. SCHAKOWSKY, Illinois
  Vice Chairman                      JIM MATHESON, Utah
PHIL GINGREY, Georgia                G.K. BUTTERFIELD, North Carolina
STEVE SCALISE, Louisiana             JOHN BARROW, Georgia
ROBERT E. LATTA, Ohio                DORIS O. MATSUI, California
CATHY McMORRIS RODGERS, Washington   DONNA M. CHRISTENSEN, Virgin 
GREGG HARPER, Mississippi            Islands
LEONARD LANCE, New Jersey            KATHY CASTOR, Florida
BILL CASSIDY, Louisiana              JOHN P. SARBANES, Maryland
BRETT GUTHRIE, Kentucky              JERRY McNERNEY, California
PETE OLSON, Texas                    BRUCE L. BRALEY, Iowa
DAVID B. McKINLEY, West Virginia     PETER WELCH, Vermont
CORY GARDNER, Colorado               BEN RAY LUJAN, New Mexico
MIKE POMPEO, Kansas                  PAUL TONKO, New York
ADAM KINZINGER, Illinois
H. MORGAN GRIFFITH, Virginia
GUS M. BILIRAKIS, Florida
BILL JOHNSON, Ohio
BILLY LONG, Missouri
RENEE L. ELLMERS, North Carolina

                                 7_____

              Subcommittee on Environment and the Economy

                         JOHN SHIMKUS, Illinois
                                 Chairman
PHIL GINGREY, Georgia                PAUL TONKO, New York
  Vice Chairman                        Ranking Member
RALPH M. HALL, Texas                 FRANK PALLONE, Jr., New Jersey
ED WHITFIELD, Kentucky               GENE GREEN, Texas
JOSEPH R. PITTS, Pennsylvania        DIANA DeGETTE, Colorado
TIM MURPHY, Pennsylvania             LOIS CAPPS, California
ROBERT E. LATTA, Ohio                JERRY McNERNEY, California
GREGG HARPER, Mississippi            JOHN D. DINGELL, Michigan
BILL CASSIDY, Louisiana              JANICE D. SCHAKOWSKY, Illinois
DAVID B. McKINLEY, West Virginia     JOHN BARROW, Georgia
GUS M. BILIRAKIS, Florida            DORIS O. MATSUI, California
BILL JOHNSON, Ohio                   HENRY A. WAXMAN, California (ex 
JOE BARTON, Texas                        officio)
FRED UPTON, Michigan (ex officio)

                                  (ii)


                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. John Shimkus, a Representative in Congress from the State of 
  Illinois, opening statement....................................    48
    Prepared statement...........................................    49
Hon. Paul Tonko, a Representative in Congress from the State of 
  New York, opening statement....................................    50
Hon. Gene Green, a Representative in Congress from the State of 
  Texas, opening statement.......................................    51
Hon. Fred Upton, a Representative in Congress from the State of 
  Michigan, opening statement....................................    52
    Prepared statement...........................................    53
Hon. Henry A. Waxman, a Representative in Congress from the State 
  of California, opening statement...............................    53

                               Witnesses

Allison M. Macfarlane, Chairman, Nuclear Regulatory Commission...    55
    Prepared statement...........................................    57
    Answers to submitted questions...............................    99
Peter B. Lyons, Assistant Secretary for Nuclear Energy, 
  Department of Energy...........................................    64
    Prepared statement...........................................    66
    Answers to submitted questions...............................   116

                           Submitted Material

Opinion, dated August 13, 2013, In Re: Aiken County, et al., 
  Petitioners, State of Nevada, Intervenor, On Petition for Writ 
  of Mandamus, U.S. Court of Appeals for the District of Columbia 
  Circuit, submitted by Mr. Shimkus..............................     2
Editorial, dated August 20, 2013, ``Time to Stop Stalling on 
  Nuclear Waste,'' The New York Times, submitted by Mr. Shimkus..    32
Letter of August 23, 2013, from Mr. Upton and Mr. Shimkus to Ms. 
  Macfarlane, submitted by Mr. Shimkus...........................    34
Letter of September 6, 2013, from Ms. Macfarlane to Mr. Upton, 
  submitted by Mr. Shimkus.......................................    37
Letter of August 26, 2013, from Mr. Upton and Mr. Shimkus to 
  Ernest Moniz, Secretary, Department of Energy, submitted by Mr. 
  Shimkus........................................................    40
Letter of August 30, 2013, from Mr. Lyons to Mr. Shimkus, 
  submitted by Mr. Shimkus.......................................    42


         IMPLEMENTING THE NUCLEAR WASTE POLICY ACT: NEXT STEPS

                              ----------                              


                      TUESDAY, SEPTEMBER 10, 2013

                  House of Representatives,
       Subcommittee on Environment and the Economy,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:03 a.m., in 
room 2123 of the Rayburn House Office Building, Hon. John 
Shimkus (chairman of the subcommittee) presiding.
    Members present: Representatives Shimkus, Gingrey, 
Whitfield, Pitts, Murphy, Latta, Harper, McKinley, Bilirakis, 
Johnson, Upton (ex officio), Tonko, Green, Capps, McNerney, 
Dingell, Barrow, and Waxman (ex officio).
    Staff present: Nick Abraham, Legislative Clerk; Gary 
Andres, Staff Director; Charlotte Baker, Press Secretary; David 
Bell, Staff Assistant; Sean Bonyun, Communications Director; 
Andy Caputo, Professional Staff Member; Vincent Esposito, 
Fellow, Nuclear Programs; Brad Grantz, Policy Coordinator, 
Oversight and Investigations; David McCarthy, Chief Counsel, 
Environment and the Economy; Chris Sarley, Policy Coordinator, 
Environment and the Economy; Peter Spencer, Professional Staff 
Member, Oversight; Tom Wilbur, Digital Media Advisor; Jeff 
Baran, Democratic Senior Counsel; Alison Cassady, Democratic 
Senior Professional Staff Member; Greg Dotson, Democratic Staff 
Director, Energy and Environment; and Caitlin Haberman, 
Democratic Policy Analyst.
    Mr. Shimkus. The committee will come to order. And we would 
like to welcome our colleagues back from the break and also our 
folks on the first panel.
    Before we get down to my opening statement, I want to ask 
unanimous consent to submit for the record the August 13, 2013, 
decision of the U.S. Court of Appeals for the DC Circuit to 
issue a writ of mandamus. Without objection, so ordered.
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    Mr. Shimkus. I also would ask unanimous consent to submit 
for the record an August 20 editorial by The New York Times 
entitled, ``Time to Stop Stalling on Nuclear Waste.'' Without 
objection, so ordered.
    [The information follows:]

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    Mr. Shimkus. I also ask unanimous consent to submit for the 
record a letter that Chairman Upton and I sent to the NRC on 
August 23 discussing the recent decision of the U.S. Court of 
Appeals for the DC Circuit and the NRC's response dated 
September 6, 2013. Without objection, so ordered.
    [The information follows:]

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    Mr. Shimkus. Then, finally, Chairman Upton and I received a 
letter from Ranking Members Waxman and Tonko indicating their 
desire to examine the status of Fukushima Nuclear Plant in 
Japan. We look forward to discussing those issues with the full 
commission when they appear this fall. And so we want to thank 
you for that input.
    And I would like to recognize myself for 5 minutes for my 
opening statement.

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

    On August 13, the U.S. Court of Appeals for the District of 
Columbia Circuit granted a writ of mandamus stating that ``the 
Nuclear Regulatory Commission must promptly continue with the 
legally mandated licensing process.'' The purpose of our 
hearing today is to examine the next steps for the NRC and the 
Department of Energy to implement the court's decision.
    Thank you, Chairman Macfarlane and Assistant Secretary 
Lyons, for your testimony today.
    In its decision, the court rebuked the NRC for ``simply 
flouting the law,'' something this committee recognized long 
ago. How is it that an independent agency with a clear 
statutory responsibility is criticized by a Federal court for 
having ``no current intention of complying with the law''?
    Today's hearing will be focused on looking forward, but we 
have to be cognizant of the agency actions that led to this 
situation and vigilant against resurgent efforts to undermine 
the statutory process. The Commission's recent order to give 
the parties until September 30 to comment on how the NRC should 
proceed, however well-intentioned, is eerily reminiscent of 
past NRC efforts to slow the review process and to stall the 
release of its Safety Evaluation Report.
    On June 3, 2008, the DOE filed a license application for 
construction authorization to build a repository at Yucca 
Mountain. NRC accepted the application and docketed it on 
September 8, 2008. By the end of 2009, it was becoming clear 
that the DOE would close down the Yucca Mountain program, 
abandoning the 30 years of research and $15 billion invested. 
By March 3, 2010, the DOE filed a motion to withdraw the 
license application in a manner that would prevent any further 
consideration of the site.
    On June 29, 2010, the NRC's Construction Authorization 
Board denied DOE's motion. In spite of this, then-NRC Chairman 
Greg Jaczko was already laying the groundwork to unilaterally 
cease the NRC's review of the license application, as we 
learned in our hearing to review the NRC Inspector General's 
report on this subject.
    According to the IG's report, in spring of 2010, NRC staff 
informed Chairman Jaczko that they were ahead of schedule and 
could issue SER Volumes 1 and 3 earlier than the previously 
projected dates of August and November 2010. This is very 
important information. In fact, the NRC executive director had 
the impression that Volume 3 would be ready for publication in 
the summer of 2010. In June 2010, Chairman Jaczko directed the 
staff in a memo to maintain their public schedule and not issue 
Volumes 1 and 3 early.
    At that point, it was clear to the deputy executive 
director that the chairman planned to close down the license 
review on October 1 and that ``the practical effect of the 
Chairman's June memorandum was that it prevented the staff from 
issuing Volume 3 should it have been finalized prior to October 
1.''
    Indeed, on October 4, Chairman Jaczko directed the staff to 
cease its review of the license citing the Continuing 
Resolution even though the CR would continue to provide funding 
for the review at the existing level of $29 million. He later 
told the IG that it was his responsibility to manage the 
agency's workload and workflow with regard to scheduling.
    Here we are, nearly a month after the DC Circuit issued a 
writ of mandamus, and the NRC's only action we have seen so far 
is to invite the parties to comment by September 30. 
Electricity consumers and taxpayers have waited 30 years and 
paid $15 billion to find out whether our independent nuclear 
safety regulator concluded that Yucca Mountain would be safe or 
not. Releasing the SER is the next step in the NRC process. The 
NRC has the money to do it. A Federal court has ruled that the 
NRC must proceed, and the NRC says hold on; let's ask the 
parties what they think. This does not seem like the posture of 
an agency intent on complying with a writ of mandamus. Instead, 
the NRC appears again to be stalling.
    I won't speak for other members on this committee but I 
want to be very clear: I strongly believe the NRC's first order 
of business is to complete and release the Safety Evaluation 
Report. Transparency in this matter is essential to rebuilding 
the agency's reputation as an independent and objective 
regulator.
    [The prepared statement of Mr. Shimkus follows:]

                Prepared Statement of Hon. John Shimkus

    On August 13, the U.S. Court of Appeals for the District of 
Columbia Circuit granted a writ of mandamus stating that ``the 
Nuclear Regulatory Commission must promptly continue with the 
legally mandated licensing process.'' The purpose of our 
hearing today is to examine the next steps for NRC and the 
Department of Energy to implement the court's decision. Thank 
you, Chairman Macfarlane and Assistant Secretary Lyons for 
testifying today.
    In its decision, the court rebuked the NRC for ``simply 
flouting the law,'' something this committee recognized long 
ago. How is it that an independent agency with a clear 
statutory responsibility is criticized by a Federal court for 
having ``no current intention of complying with the law''? 
Today's hearing will be focused on looking forward, but we have 
to be cognizant of the agency actions that led to this 
situation and vigilant against resurgent efforts to undermine 
the statutory process. The commission's recent order to give 
the parties until September 30th to comment on how the NRC 
should proceed, however wellintentioned, is eerily reminiscent 
of past NRC efforts to slow the review process and to stall the 
release of its safety evaluation report.
    On June 3, 2008, the DOE filed a license application for 
construction authorization to build a repository at Yucca 
Mountain. NRC accepted the application and docketed it on Sept. 
8, 2008. By the end of 2009, it was becoming clear that the DOE 
would close down the Yucca Mountain program, abandoning the 30 
years of research and $15 billion invested. By March 3, 2010, 
the DOE filed a motion to withdraw the license application in a 
manner that would prevent any future consideration of the site. 
On June 29 of 2010, the NRC's Construction Authorization Board 
denied DOE's motion. In spite of this, then NRC Chairman Greg 
Jaczko was already laying the groundwork to unilaterally cease 
the NRC's review of the license application as we learned in 
our hearing to review the NRC Inspector General's report on 
this subject.
    According to the IG's report, in spring of 2010, NRC staff 
informed Chairman Jaczko that they were ahead of schedule and 
could issue SER Volumes 1 and 3 earlier than the previously 
projected dates of August and November of 2010. In fact, the 
NRC Executive Director had the impression that Volume 3 would 
be ready for publication in summer 2010. In June of 2010, 
Chairman Jaczko directed the staff in a memo to maintain their 
public schedule--and not to issue Volumes 1 and 3 early.
    At that point, it was clear to the deputy executive 
director that the chairman planned to close down the license 
review on October 1st and that ``the practical effect of the 
Chairman's June memorandum was that it prevented the staff from 
issuing Volume 3 should it have been finalized prior to October 
1.'' Indeed on October 4th, Chairman Jaczko directed the staff 
to cease its review of the license citing the continuing 
resolution even though the CR would continue to provide funding 
for the review at the existing level of $29 million. He later 
told the IG that it was his responsibility to manage the 
agency's workload and workflow with regard to scheduling.
    Here we are, nearly a month after the DC Circuit issued a 
writ of mandamus, and the NRC's only action we've seen so far 
is to invite the parties to comment.by September 30. 
Electricity consumers and taxpayers have waited 30 years and 
paid $15 billion to find out whether our independent nuclear 
safety regulator concluded that Yucca Mountain would be safe or 
not, releasing the SER is the next step in the NRC's process, 
the NRC has the money to do it, a Federal court has ruled that 
the NRC must proceed, and the NRC says ``hold on, let's ask the 
parties what they think.'' This does not seem like the posture 
of an agency intent on complying with a writ of mandamus. 
Instead, the NRC appears to again be stalling. I won't speak 
for other members on this committee, but I want to be very 
clear: I strongly believe the NRC's first order of business is 
to complete and release the Safety Evaluation Report. 
Transparency in this matter is essential to rebuilding the 
agency's reputation as an independent and objective regulator.

    Mr. Shimkus. And with that, I yield back the balance of my 
time and I yield to the ranking member, Mr. Tonko, for 5 
minutes.

   OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF NEW YORK

    Mr. Tonko. Thank you, Chair Shimkus. Good morning, 
everyone.
    And the United States Court of Appeals has now issued a 
ruling ordering the Nuclear Regulatory Commission to resume 
review of the Yucca Mountain license application. I do not 
think this action alone has resolved much related to the 
ongoing questions about the fate of nuclear waste. The court 
decision does not reverse the opposition to the Yucca Mountain 
project in the State of Nevada. It does not require the NRC or 
DOE to move forward without additional appropriated funds. And 
at this time, there is still a possibility that one or more of 
the parties to this case will appeal the ruling.
    It seems we all still have a great deal of work to do if we 
are to move nuclear waste policy forward. Yucca Mountain may or 
may not be part of this policy. Even if it is, we are still 
many years, perhaps decades, from placing the first waste into 
this repository. If nuclear power is to play a role in our 
future energy supply, we need to explore other options for 
dealing with this waste that could be implemented more quickly.
    I do not expect we will resolve anything today. I hope we 
will be able to move forward and work together to provide a 
constructive solution to this very critical, very important 
problem.
    I want to thank Chair Macfarlane and Dr. Lyons for 
appearing before the subcommittee today and would yield my 
remaining time to the gentleman from Texas, Mr. Green.

   OPENING STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF TEXAS

    Mr. Green. I thank my colleague and our ranking member for 
yielding.
    Mr. Chairman, thank you for holding this timely hearing on 
nuclear waste at Yucca Mountain. I also want to thank Chair 
Macfarlane and Assistant Secretary Lyons for joining us this 
morning.
    Earlier this year, Chair Macfarlane and her fellow 
commissioners before this very subcommittee committed to 
honoring the court's decision concerning the review of Yucca 
Mountain license application. Since that time, the DC court 
ruled that the NRC must resume its review in accordance with 
the Nuclear Waste Policy Act.
    I hope to hear in today's hearing that the NRC and DOE will 
be following through with earlier statements and will use the 
available resources to move the review process as far along as 
possible. This should include plan to complete the Safety 
Evaluation Reports which this subcommittee is told would take 
an estimated 6 to 8 months to complete at a cost of 6.5 
million. This should be all the more the case in light of the 
fact that the NRC currently has over 11 million and DOE has 16 
million in unobligated funds appropriated specifically for 
Yucca licensing activities.
    I also look forward to hearing how the NRC will be putting 
together the best staff possible to complete the SERs, 
hopefully with assigning many of the same people who worked on 
the review process before it was halted prematurely.
    Finally, I believe the court's ruling gives this committee, 
the Energy Department, and the NRC an opportunity to redouble 
our collective efforts in finding a final solution on this 
matter that can be based on consensus science in honor of the 
$15 billion investment the American people have already made 
towards a permanent SNF storage.
    Our country has a real serious and pending issue at hand 
with regard to the storage and the disposal of nuclear waste 
and must be dealt with sooner rather than later. Currently 
spent fuel and reprocessed waste is stored at nuclear plants 
and 77 sites scattered across the U.S. mounting to over 70,000 
metric tons of spent nuclear fuel. Local communities are 
spending millions of dollars annually to ensure the safety and 
protection of our nuclear waste. Even with these current sites, 
we are still producing nuclear waste, and that waste will need 
to be stored for at least 1,000 years.
    If we do not take action by following the circuit court's 
decision or Congress finding a different path forward on this 
important issue, all of us--DOE, NRC, and Congress--will be 
letting down the very people we were sent here for and endanger 
the health and safety of our communities.
    Again, I thank Chair Macfarlane and Assistant Secretary 
Lyons for appearing today and I look forward to your testimony. 
And I again thank my colleague for my time.
    Mr. Shimkus. The gentleman yields back his time. The chair 
now recognizes the chairman of the full committee, Mr. Upton, 
for 5 minutes.

   OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Mr. Upton. Thank you, Mr. Chairman. And I appreciate Chair 
Macfarlane and Dr. Lyons here today this morning as well.
    As we know, the court recently ordered the NRC to proceed 
with the Yucca Mountain license review. And the first task in 
complying with the court's mandate and with the Nuclear Waste 
Policy Act is in fact to release the Safety Evaluation Report. 
Fortunately, you do indeed have the resources to proceed with 
that release.
    Congress needs the opportunity to examine the NRC's long-
overdue unredacted technical analysis, and the public who paid 
for it deserve to know the report's conclusions. During the 
last 3 years the administration has been suppressing this 
document, Congress has been denied an informed discussion about 
next steps.
    For quite some time, Members on both sides of the aisle 
have been saying--with our words and with our votes--Yucca 
Mountain is in fact the law of the land. And a month ago, in 
August, the DC Circuit Court did agree and ordered that NRC 
must proceed with the license review. The path forward is 
unmistakable. Compliance with the law is not optional.
    The framework of the Nuclear Waste Policy Act is simple: 
electricity consumers pay for the cost of used fuel disposal as 
part of the cost of that electricity, and taxpayers pay for the 
disposal costs of the high-level waste legacy of the Cold War. 
But the reality of our current situation is in fact a lot 
different. With no progress on a permanent repository, both 
ratepayers and taxpayers continue to be charged, yet they 
aren't getting what they are paying for.
    DOE is spending the Nuclear Waste Fund money to shut down a 
licensing process which the court has said must proceed. NRC is 
spending resources to revise a Waste Confidence Rule as a 
result of the repository program being shut down. And DOE is 
spending taxpayer money on a sidetrack effort to supplant Yucca 
Mountain.
    Unfortunately, the disjointed policies have resulted in 
higher costs. Moreover, electricity consumers are investing 
about $750 million each year for fuel disposal, but none of the 
money is currently being spent for that purpose and used fuel 
sits at reactor sites, piling up even more costs to consumers.
    Resumption of the Yucca Mountain program remains the 
clearest, fastest, and most fiscally responsible way for the 
government to meet its obligation to provide disposal, to 
mitigate liability costs, and to reestablish a solid basis for 
the Waste Confidence Rule. Not to mention, it is the law.
    Politics needs to be removed once and for all from this 
process. We have got to remember that while the administrations 
come and go, used fuel is here to stay, and after three decades 
it is time that we finally achieve a permanent storage site. 
The NRC's completion of the SER is the necessary and long-
overdue next step.
    The issue has enjoyed a long history of bipartisanship and 
we will work very hard to continue that tradition until the job 
gets done.
    And I yield back my time.
    [The prepared statement of Mr. Upton follows:]

                 Prepared Statement of Hon. Fred Upton

    The court recently ordered NRC to proceed with the Yucca 
Mountain license review. And the first task in complying with 
the court's mandate, and with the Nuclear Waste Policy Act, is 
releasing the Safety Evaluation Report. Fortunately, you 
already have the resources to proceed with its release.
    Congress needs the opportunity to examine the NRC's long-
overdue unredacted technical analysis, and the public who paid 
for it deserve to know the report's conclusions. During the 
three years the administration has been suppressing this 
document, Congress has been denied an informed discussion about 
next steps.
    For quite some time, members on both sides of the aisle 
have been saying--with our words and our votes--``Yucca 
Mountain is the law of the land.'' A month ago, the DC Circuit 
court agreed and ordered that NRC must proceed with the license 
review. The path forward is unmistakable. Compliance with the 
law is not optional.
    The framework of the Nuclear Waste Policy Act is simple: 
electricity consumers pay for the cost of used fuel disposal as 
part of the cost of that electricity, and taxpayers pay for the 
disposal costs of the highlevel waste legacy of the Cold War. 
But the reality of our current situation is much different. 
With no progress on a permanent repository, both ratepayers and 
taxpayers continue to be charged, yet they aren't getting what 
they paid for.
    DOE is spending Nuclear Waste Fund money to shut down a 
licensing process which the court has said must proceed. NRC is 
spending resources to revise a waste confidence rule as a 
result of the repository program being shut down. And DOE is 
spending taxpayer money on a sidetrack effort to supplant Yucca 
Mountain.
    Unfortunately, the disjointed policies have resulted in 
higher costs. Moreover, electricity consumers are investing 
about $750 million per year for fuel disposal, but none of the 
money is currently being spent for that purpose and used fuel 
sits at reactor sites, piling up even more costs to consumers.
    Resumption of the Yucca Mountain program remains the 
clearest, fastest, and most fiscally responsible way for the 
government to meet its obligation to provide disposal, to 
mitigate liability costs, and to reestablish a solid basis for 
the waste confidence rule. Not to mention, it is the law.
    Politics needs to be removed once and for all from this 
process. We must remember, whileadministrations come and go, 
used fuel is here to stay, and after three decades it is time 
we finally achieve a permanent storage site. The NRC's 
completion of the SER is the necessary and long-overdue next 
step.
    This issue has enjoyed a long history of bipartisanship and 
we will work to continue that tradition until the job gets 
done.

    Mr. Shimkus. The gentleman yields back his time. The chair 
now recognizes the ranking member of the full committee, Mr. 
Waxman, for 5 minutes.

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

    Mr. Waxman. Thank you, Mr. Chairman.
    Our nuclear waste laws are not working. Instead of holding 
yet another hearing on Yucca Mountain, this committee should be 
working to reform them. In 1987, Congress designated Yucca 
Mountain in Nevada as the sole site to be considered for a 
permanent geologic repository for spent nuclear fuel and high-
level radioactive waste. There was no plan B. This decision to 
short-circuit the site selection process was widely viewed as 
political and provoked strong opposition in Nevada.
    Twenty-five years later, it is clear that this top-down 
approach has broken down. President Obama wisely sought a new 
approach. He chartered a Blue Ribbon Commission to develop a 
new strategy for managing the country's nuclear waste. Last 
year, we heard testimony from the co-chairs of this Blue Ribbon 
Commission on the recommendations that resulted from their 2-
year effort.
    In July, Secretary Moniz testified about DOE's strategy for 
implementing many of those recommendations. He argued that a 
consent-based approach to siting was essential and his 
testimony raised a number of important policy questions, such 
as whether to create a new organization to manage the nuclear 
waste problem, how to use nuclear waste fees, and whether to 
construct one or more consolidated interim storage facilities 
in addition to one or more permanent geologic repositories.
    These are policy questions that require Congress to 
respond. Answering these questions requires an open mind and 
willingness to move past a narrow obsession with Yucca 
Mountain. But this committee seems fixated on Yucca Mountain.
    In August, the Court of Appeals issued a decision on the 
legality of the Nuclear Regulatory Commission's decision to 
suspend its review of DOE's application for a permanent 
repository at Yucca Mountain. The court ordered NRC to continue 
its review of the Yucca Mountain license application as long as 
it has any appropriated funds to do so. The problem with this 
decision is that NRC has just spent money so that 11 million in 
leftover funds is available for this purpose. This amount is 
not nearly enough to complete the review. In fact, the 
dissenting judge argued that the court was ordering NRC to ``do 
a useless thing'' because most of the $11 million would be 
spent restarting the process and the rest spent putting the 
materials back into storage.
    The reality is that the court decision has not really 
changed anything. The decision does nothing to reduce the long-
standing public opposition to Yucca Mountain. It does not 
establish a consent-based siting process or a new organization 
to focus on the waste problem, and it does not solve the tricky 
funding and appropriations issues to make sure that the funds 
put aside for constructing a repository or storage facility can 
actually be used for that purpose. A court decision was never 
going to resolve any of these issues.
    Today, the majority has summoned NRC and DOE for another 
meeting of the Yucca Mountain fan club, but the Commission 
hasn't had a chance to evaluate its options, develop its 
response to the court decisions, or even decide whether to 
appeal the decision. We should spend our witnesses' valuable 
time discussing other pressing nuclear safety issues.
    Yesterday, I sent a letter requesting a hearing on the 
troubling developments at the Fukushima plant in Japan. 
Radioactive water is leaking into the ground and the Pacific 
Ocean. Some hotspots have radiation levels high enough to 
deliver a lethal dose in 4 hours. The events in Japan deserve 
the subcommittee's attention, as do NRC's ongoing 
implementation of lessons learned from the Fukushima disaster 
and the closure of the San Onofre plant in California.
    Yucca Mountain has become a hopelessly divisive issue. The 
sooner we recognize this and start considering a truer reform, 
the sooner we will be able to fulfill our responsibility to 
craft a sustainable nuclear waste policy for the Nation. Thank 
you, Mr. Chairman. I yield back my time.
    Mr. Shimkus. The gentleman yields back his time. I would 
now like to recognize myself for 5 minutes. Oh, I am sorry. I 
am so excited about going to questions. So let me now recognize 
Madam Chairman from the Nuclear Regulatory Commission, Ms. 
Macfarlane, for 5 minutes for an opening statement.

    STATEMENTS OF ALLISON M. MACFARLANE, CHAIRMAN, NUCLEAR 
REGULATORY COMMISSION, AND PETER B. LYONS, ASSISTANT SECRETARY 
            FOR NUCLEAR ENERGY, DEPARTMENT OF ENERGY

               STATEMENT OF ALLISON M. MACFARLANE

    Ms. Macfarlane. Thank you, Chairman Shimkus.
    Good morning, Chairman Shimkus, Ranking Member Tonko, and 
distinguished members of the subcommittee. On behalf of the 
U.S. Nuclear Regulatory Commission, I appreciate the 
opportunity to appear before you to discuss the actions the NRC 
is taking to comply with the court's decision on Yucca Mountain 
licensing activities. I am also pleased to appear with 
Assistant Secretary Lyons.
    The written testimony I have submitted for the record 
contains information about the NRC's response to the recent 
court decision on Yucca Mountain and the status of the NRC's 
technical and adjudicatory activities at the time they were 
suspended in 2011.
    As you are aware, on August 13, a panel of the U.S. Court 
of Appeals for the DC Circuit directed the NRC to resume its 
review of the Department of Energy's application to construct a 
geologic repository for high-level nuclear waste at Yucca 
Mountain. On August 30, the Commission issued an order 
requesting that all parties to the suspended adjudication 
provide their views within 30 days on how the NRC should 
continue with the licensing process. The Commission has also 
directed the NRC offices to gather pertinent budgeting 
information during this comment period.
    The Commission will make an objective, transparent, and 
collegial determination about the path forward based on the 
internal and external input we receive. Because the Commission 
has not yet reached its decision, it would be inappropriate for 
me to speculate about what the final direction would be.
    In March 2010, the DOE filed a motion to withdraw its 
license application, and at the end of fiscal year 2011, the 
NRC formally suspended its review. Between the time that the 
DOE submitted its application in 2008 and the suspension in 
2011, the NRC staff conducted its regulatory review. Among 
other things, the staff's technical actions included work on 
the Safety Evaluation Report, otherwise known as the SER, the 5 
volumes of which were left in various stages of completion.
    Separately, on the adjudicatory side, multiple parties 
filed petitions seeking a hearing in this licensing proceeding 
and the Atomic Safety Licensing Board, or ASLB, granted most of 
the hearing requests. The focus of adjudicatory hearings is on 
whether the license applicant has demonstrated that the 
regulations have been met and the license should be issued. As 
the license applicant in this case, the DOE bears the burden of 
making this demonstration.
    When the adjudicatory proceeding was suspended, the ASLB 
closed out all activities associated with the hearing process 
on the DOE application. At that time, a total of 288 
contentions had been pending resolution on the merits. To date, 
no evidentiary hearings have been held.
    In addition, the NRC had created a web-based Licensing 
Support Network, otherwise known as the LSN. This is required 
by our regulations as a means for making all documents related 
to the adjudicatory proceedings available electronically to all 
participants. The NRC has preserved these records but the LSN 
is no longer active.
    I recognize that the completion of the 5-volume SER is of 
particular interest. The NRC is confronted with challenges 
associated with reconstituting a multidisciplinary team to 
resume the licensing process. In addition, this milestone 
represents one, albeit important, element in the overall 
required licensing process. All of the issues raised before the 
ASLB must also be resolved.
    Finally, a completed adjudicated Environmental Impact 
Statement and supplement is also necessary for a licensed 
decision.
    As this committee is aware, the NRC does not have 
sufficient resources to complete all the remaining steps. As 
part of the normal license review process, the NRC would also 
need the DOE's participation as the applicant to address any 
issues the NRC identifies. I defer to DOE officials to address 
the Department's ability to do so.
    Chairman Shimkus, Ranking Member Tonko, and members of the 
subcommittee, the Commission will act expeditiously to direct 
the staff on how to expend the agency's remaining resources 
under the Nuclear Waste Fund. The Commission's recent order 
will help ensure that our decision has the full benefit of 
views submitted by various parties to the adjudicatory 
proceedings. We will provide additional information to the 
subcommittee through monthly reports as our decision process 
continues.
    I would be pleased now to respond to your questions.
    [The prepared statement of Ms. Macfarlane follows:]

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    Mr. Shimkus. Thank you, Madam Chair.
    I now would like to recognize Mr. Peter Lyons, Assistant 
Secretary for Nuclear Energy.
    Sir, you are recognized for 5 minutes.

                  STATEMENT OF PETER B. LYONS

    Mr. Lyons. Thank you, Mr. Chairman Shimkus, Ranking Member 
Tonko, and members of the subcommittee. I appreciate your 
invitation to testify at the subcommittee's hearing today.
    The administration takes seriously its obligations to 
manage and dispose of used nuclear fuel and high-level 
radioactive waste, as emphasized in the testimony of Secretary 
Moniz to this subcommittee just a few weeks ago.
    President Obama has made climate change mitigation a 
priority and set a goal of reducing emissions in the range of 
17 percent below 2005 levels by 2020. He has emphasized the 
important role of nuclear power in his all-of-the-above clean 
energy strategy.
    Nuclear power remains the United States single largest 
contributor with more than 60 percent of non-greenhouse gas 
emitting electric power generation while it has reliably and 
economically contributed almost 20 percent of electrical 
generation in the United States over the past two decades. We 
believe that nuclear energy will continue to be an important 
part of the Nation's low carbon future. Finding a solution to 
managing and disposing of the Nation's high-level radioactive 
waste and used nuclear fuel is a long-standing challenge. Such 
a solution, however, is necessary to assure the future 
viability of this important carbon-free energy supply and 
further strengthen America's standing as a global leader on 
issues of nuclear safety and nonproliferation.
    The administration's strategy for the management and 
disposal of used nuclear fuel and high-level radioactive waste 
provides a framework for the administration and Congress to 
continue to develop the path forward for disposal of nuclear 
waste and provides near-term actions to be implemented by the 
Department of Energy pending enactment of new legislation. We 
are facing a unique opportunity to address the needs of the 
back end of the nuclear fuel cycle by setting it on a 
sustainable path providing the flexibility needed to engage 
potential host communities and anticipate advancements in 
technology development. The administration is ready and willing 
to engage with both chambers of Congress to move forward.
    Since Secretary Moniz testified before this subcommittee, 
the U.S. Court of Appeals for the DC Circuit has issued a writ 
of mandamus ordering the NRC to resume its review of the Yucca 
Mountain license application. On August 30, the NRC issued an 
order inviting all participants in the license proceeding to 
provide by September 30 their views as to how the agency should 
proceed. The Department is carefully considering how to respond 
to this order.
    As we have long made clear, however, the Department will 
comply with NRC or judicial orders that are directed to DOE 
subject of course to the availability of appropriated funds. 
And as recently reported to the subcommittee, the Department 
currently has approximately 16 million in unobligated funds 
originally appropriated for Yucca Mountain licensing 
activities, and in addition, the Department has approximately 
30 million in obligated on cost of balances already committed 
on existing contracts.
    As we have said consistently, any workable solution for the 
final disposition of used fuel and nuclear waste must be based 
not only on sound science but also on achieving public 
acceptance at the local, State, and tribal levels. When this 
administration took office, the timeline for opening Yucca 
Mountain had already been pushed back by two decades with no 
end in sight. It was clear that stalemate could continue 
indefinitely. Rather than continuing to spend billions of 
dollars more on a project that faces such strong opposition, 
the administration believes a pathway similar to that that the 
Blue Ribbon Commission laid out, a consent-based solution, is 
one that meets the country's national and energy security needs 
and has the potential to gain the necessary public acceptance.
    The administration looks forward to working with this 
committee and other Members of Congress on crafting a path 
forward for used nuclear fuel and high-level waste management 
and disposal. This progress is critical to assure that the 
benefits of nuclear power are available to current and future 
generations.
    And I will be pleased to answer questions that you folks 
may have.
    [The prepared statement of Mr. Lyons follows:]

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    Mr. Shimkus. I thank you.
    Now, before I start my questions, Madam Chairman, I am 
going to hand you four documents that I will be referring to in 
my questions. And I would like to recognize myself for 5 
minutes.
    Madam Chairman, have you read the June 6, 2011, NRC 
Inspector General's report that I referred to in my opening 
statement?
    Ms. Macfarlane. Sorry. Can you repeat the question?
    Mr. Shimkus. It is right in front of you. Have you ever 
read that June 6, 2011, NRC Inspector General's report that I 
referred to in my opening statement? And if you would, could 
you please read----
    Ms. Macfarlane. I----
    Mr. Shimkus [continuing]. The highlighted excerpt from the 
IG's report on page 28 regarding comments by the NRC's 
assistant general counsel?
    Ms. Macfarlane. Sure. You want me to read this?
    Mr. Shimkus. Please.
    Ms. Macfarlane. Sure. And for the record I have not read 
this before.
    Mr. Shimkus. OK. Then it is instructional to do so.
    Ms. Macfarlane. Good. She said that as of--she, I assume, 
is the assistant----
    Mr. Shimkus. Assistant general counsel.
    Ms. Macfarlane [continuing]. General counsel. She said that 
``as of July 15, 2010, Volume 3 had been provided to the NMSS 
director and was reported to be substantially complete. 
However, the document was undergoing additional editing and 
formatting, including a final quality control check to assure 
appropriate nomenclature, proper numbering and sequencing, and 
other minor administrative changes that may be necessary to 
ensure completeness and accuracy.''
    Mr. Shimkus. Thank you. So Volume 3 was substantially 
complete except for editing and formatting. In fact, when 
Chairman Jaczko directed the staff to stop their work on 
October 4, 2010, the NRC was within about 3 months of issuing 
Volume 4, within 5 months of issuing Volume 2, and just 6 
months from releasing Volume 5. And you kind of mentioned in 
your opening statement at various stages. According to the 
NRC's internal schedule, which this committee examined in our 
June 2011 hearing with the IG.
    Now, I want to turn your attention to a commission 
memorandum and order labeled CLI-09-14, which you also have 
with you, which states, ``today, we respond to appeals of the 
Construction Authorization Board's first prehearing conference 
order.''
    Ms. Macfarlane. I don't have it I am afraid.
    Mr. Shimkus. Oh. OK. I am sorry you don't have that. We can 
get it to you.
    But now, according to Federal regulations Part 2, Appendix 
D, which is the schedule for NRC to conduct the construction 
authorization proceeding, 150 days after the application was 
docketed, the Commission was supposed to rule on appeals for 
the first prehearing conference order, which we know the 
Commission did based upon CLI-09-14. Chairman Macfarlane, would 
you please read the next item, which is highlighted on the 
schedule, which is the next step to take.
    Ms. Macfarlane. Certainly, yes. So this is Appendix D to 
Part 2 of the 10 CFR. And this is the schedule for proceeding 
with--this is the process laid out----
    Mr. Shimkus. Right.
    Ms. Macfarlane [continuing]. In the regulations.
    Mr. Shimkus. Transparent.
    Ms. Macfarlane. Right.
    Mr. Shimkus. On your Web site--
    Ms. Macfarlane. Exactly.
    Mr. Shimkus [continuing]. For everyone to see.
    Ms. Macfarlane. So on day 548 the action is that the 
Nuclear Regulatory Commission staff issues the Safety 
Evaluation Report.
    Mr. Shimkus. Great. Thank you. This committee has 
previously established that NRC has enough funding to complete 
and release the SER in our February 28, 2013, so we are not 
going to allow you to commingle this financial debate based 
upon other activities. Our point is confirmed in testimony that 
you have the funds available to finish the SER.
    In our February 28, 2013, hearing you agreed that if the 
Court required NRC to move forward, you would do so. As you 
have just read, releasing the SER is the very next action for 
the NRC to take. Given that the NRC was required to begin 
complying with the writ of mandamus last week on September 3, 
is the NRC currently taking any action to complete the 
remaining SER volumes?
    Ms. Macfarlane. We have taken action already. The 
Commission is operating expeditiously on this matter. We issued 
an order that requested----
    Mr. Shimkus. But what have you done other than asking for 
other people to weigh in? What have you done in this month to 
start moving the SER forward?
    Ms. Macfarlane. Thank you for the question. We have asked 
our staff to provide us with budget information. We have to 
understand the lay of the land in terms of the----
    Mr. Shimkus. And you will be providing us monthly updates--
--
    Ms. Macfarlane. And we will provide you monthly----
    Mr. Shimkus. And we will ask you to provide monthly updates 
on exactly what we are doing to move the SER forward?
    Ms. Macfarlane. We will provide you monthly updates on 
where we are going and what we are doing. And I believe the 
first monthly update will begin in the middle of October.
    Mr. Shimkus. And my last question, the ``transparency 
page'' of the NRC Web site states, ``the U.S. Nuclear 
Regulatory Commission has a long-standing practice of 
conducting its regulatory responsibilities in an open and 
transparent manner.''
    Ms. Macfarlane. Um-hum.
    Mr. Shimkus. In that way, the NRC keeps the public informed 
of the agency's regulatory licensing and oversight activities, 
which you stated earlier. Dr. Macfarlane, especially in light 
of the NRC's commitment to transparency, you don't really see a 
scenario where the NRC will decide not to release a Safety 
Evaluation Report, do you?
    Ms. Macfarlane. You know, we are still deliberating on that 
so I can't say----
    Mr. Shimkus. So you might find a way in which you might 
not----
    Ms. Macfarlane. I can't say one way or the other but I----
    Mr. Shimkus. But the court has said you must and we know 
you have the money.
    Ms. Macfarlane. The court has said we must proceed with the 
licensing.
    Mr. Shimkus. And you have already testified that you have 
the money----
    Ms. Macfarlane. We----
    Mr. Shimkus [continuing]. For the Safety Evaluation Report.
    Ms. Macfarlane. We testified, I believe it was last 
spring--
    Mr. Shimkus. You testified----
    Ms. Macfarlane. Yes, that there----
    Mr. Shimkus [continuing]. That you would comply with the 
law.
    Ms. Macfarlane. I certainly did.
    Mr. Shimkus. And you would submit the Safety Evaluation 
Report, and you also testified that we have the money to do so. 
So the question is you don't see any scenario that you would 
not do this?
    Ms. Macfarlane. We are still taking views from the 
parties----
    Mr. Shimkus. So you do see a scenario where you may not do 
this?
    Ms. Macfarlane. We are still taking views from the parties 
and we will----
    Mr. Shimkus. Madam Macfarlane, are you going to comply with 
the law based upon your previous statements and the fact that 
you have money available to do so?
    Ms. Macfarlane. Of course we will comply with the law.
    Mr. Shimkus. Thank you very much.
    I would like to now recognize Mr. Tonko for 5 minutes.
    Mr. Tonko. Thank you, Chair Shimkus.
    I would like to thank Chair Macfarlane and Dr. Lyons for 
appearing before the subcommittee today, but I regret that we 
didn't wait a few weeks to let NRC and DOE take some time to 
figure out a path forward in light of the Court of Appeals 
decision. I therefore ask about the status of the proceedings 
so that Members will have a better sense of what questions you 
are able to answer at this time.
    On August 30, NRC issued an order inviting all participants 
to the Yucca Mountain proceeding to provide their views as to 
how the Commission should continue with the licensing process. 
This is an opportunity for both the opponents and supporters of 
Yucca Mountain to make suggestions to the Commission about how 
they should proceed. The deadline for providing their views, I 
believe, is September 30.
    So, Chair Macfarlane, are you able to testify today about 
the likely outcome of that stakeholder process?
    Ms. Macfarlane. No.
    Mr. Tonko. And, Dr. Lyons, has DOE responded to this order 
yet?
    Mr. Lyons. No, Mr. Tonko.
    Mr. Shimkus. Is your mike on or is it pulled close enough 
to you?
    Mr. Lyons. I am sorry. Is this better?
    Mr. Shimkus. Yes, sir.
    Mr. Lyons. OK. Mr. Tonko, we are awaiting action by the NRC 
with regard to their decision before we decide how to proceed 
with the licensing effort.
    Mr. Tonko. OK. Thank you. The Commission also directed the 
NRC staff to gather pertinent information, budget information, 
during this 30-day comment period. There is only $11 million 
available so you will need to know what the price tag would be 
for the range of possible activities. Chair Macfarlane, are you 
able to give definitive estimates today about the cost of 
various options without the budget information that is 
currently being developed?
    Ms. Macfarlane. No, I am not. That is why we asked the 
staff to collect the information for us.
    Mr. Tonko. Thank you. And how long after that September 30 
deadline will it take for NRC to compile all of the views and 
produce a plan for responding to that court decision?
    Ms. Macfarlane. I am not certain at this point in time but 
we will endeavor to work as expeditiously as possible.
    Mr. Tonko. I thank you for that. It makes sense for NRC to 
await the outcome of this public comment process before 
reaching conclusions about the very best way to spend the 
agency's limited resources. You should get the facts and do the 
stakeholder outreach before making decisions.
    So the story of the Yucca Mountain repository is a story of 
one group of stakeholders believing that they could ignore the 
concerns of another group of stakeholders. That is a mistake we 
do not want to repeat.
    There is the separate question of whether the Court of 
Appeals decision will be appealed. Chairman Macfarlane, has a 
window for NRC to appeal the court's decision closed?
    Ms. Macfarlane. I am sorry. Can you repeat the question?
    Mr. Tonko. Sure. Has the window for NRC to appeal the 
court's decision closed?
    Ms. Macfarlane. No, it has not.
    Mr. Tonko. OK. And will you be able to share NRC's plans to 
appeal or to not appeal the decision with us today?
    Ms. Macfarlane. No, I cannot.
    Mr. Tonko. Other parties may choose to appeal. Is that 
correct?
    Ms. Macfarlane. That is correct. Other parties may choose 
to appeal.
    Mr. Tonko. So we don't even know whether the Court of 
Appeals decision will be the final answer in this case?
    Ms. Macfarlane. That is correct.
    Mr. Tonko. In many ways, the Department of Energy's 
planning is contingent upon NRC determining its next step. Dr. 
Lyons, what actions can DOE take with regard to the license 
application before NRC determines how to proceed?
    Mr. Lyons. I am sorry. Could you repeat that question? I am 
not--
    Mr. Tonko. Sure. What actions can DOE take with regard to 
the license application before NRC determines how to proceed?
    Mr. Lyons. We really are in a position where we must await 
the actions by the NRC, understand their path forward, and what 
we may be required from the Department of Energy, and only then 
can I answer that question. It would be premature now.
    Mr. Tonko. Thank you. And, Chair Macfarlane, would you have 
been in a better position to answer the subcommittee's 
questions about implementation of the court's order in a few 
weeks?
    Ms. Macfarlane. In a few weeks, yes.
    Mr. Tonko. And, Dr. Lyons, what about you?
    Mr. Lyons. Yes. Once we understand the path forward 
identified by the NRC, we can then evaluate how we will 
respond.
    Mr. Tonko. Thank you. Well, I hope that members of the 
subcommittee will be mindful of the position have placed 
witnesses in by insisting that they testify today rather than 
in a few weeks. Members want to know what the plan is for 
responding to the court's order but the plan hasn't been 
developed yet. The court issued its order less than 2 weeks ago 
and the agencies need to examine the options and the cost of 
those options to see what can be done with the limited funds 
available.
    These are questions that will be answered in due time I am 
convinced. Unfortunately, it seems obvious that we won't get 
those answers today.
    And with that, I will yield back, Mr. Chair.
    Mr. Shimkus. The gentleman yields back his time. I would 
just remind my colleague that they have had 30 days since the 
court order, and we can always have them come back, which I am 
sure they would be happy to do so.
    Mr. Tonko. I am talking about valuable use of their time in 
a way that brings into working order all of the requirements 
that have been asked.
    Mr. Shimkus. And I am talking about oversight by the 
legislative branch over the executive branch and independent 
agencies.
    I yield now 5 minutes to Mr. Gingrey for his statement.
    Mr. Gingrey. I thank the chairman for yielding and I agree 
with him completely the importance of the oversight of the 
legislative branch over the executive branch, and as he just 
pointed out, you have had 30 days. And why should we waste 
additional time, therefore the timeliness of this hearing. And 
I do appreciate both of you being here.
    I strongly agree that the NRC should immediately work to 
issue the Safety Evaluation Report. The cost of completing and 
publicly releasing the SER has been estimated to be $6.5 
million. Now, that seems a little high to me, but as I 
understand it, the Safety Evaluation Report is comprised of 5 
volumes. Volume 1 was completed and released so that means 
there are 4 volumes left, as pointed out by Chairman Shimkus. 
Volume 3 was reportedly substantially complete. On page 27, the 
Inspector General's June 6 report, the IG report that the NMSS 
director believed that minimal resources were needed to 
complete the review process and issue Volume 3. She also 
commented that by September 30, 2010, NRC had all the 
information it needed from DOE to complete the SER.
    To Chairman Macfarlane, please answer yes or no, Chairman 
Macfarlane. So Volume 3 is substantially complete and requires 
minimal resources, correct? Yes or no?
    Ms. Macfarlane. I have not seen Volume 3 and I understand 
it is in some stage of completion but I do not know the entire 
stage of completion. I do not know how much, how many resources 
it will take to complete. That is why we have asked the staff 
to go and make some estimates--
    Mr. Gingrey. Yes, but therefore, it shouldn't take long to 
issue that one. Is that also correct?
    Ms. Macfarlane. It depends largely on what the staff says 
it needs. I think we need to understand something to begin with 
here that the staff that we had originally assigned to work on 
the Safety Evaluation Report have since been reassigned; a 
number of them have retired. And so it will take some time to 
reassemble this group. Being mindful that there are a number of 
staff who are working now on mission-critical issues and we 
need to be careful that we don't--
    Mr. Gingrey. Well, it seems----
    Ms. Macfarlane [continuing]. Lose that safety--
    Mr. Gingrey. Madam Chairman, it sounds like what you are 
saying is it depends heavily on whether they are go-getters or 
foot-draggers, this replacement team that you are talking 
about.
    Dr. Lyons, yes or no, is it your understanding that 
completing the SER doesn't require any additional information 
by the Department of Energy, thereby not costing the Department 
of Energy, DOE, any additional resources? Yes or no?
    Mr. Lyons. I can't respond to that, sir, because it would 
depend on whether the NRC asks us additional questions if they 
were to choose to move in that direction. I haven't seen the 
SER either and I have no idea what NRC may request of us.
    Mr. Gingrey. Well, during the June 14, 2011, hearing, this 
committee examined the NRC internal schedule for releasing the 
SER volumes. When former Chairman Jaczko shutdown the staff's 
review October the 4th, 2010, Volume 2 was about 5 months for 
being published. Now, this was 2010. Volume 4 was a little over 
3 months from being published, and Volume 5 was less than 6 
months from being published. That is a fact.
    Chairman Macfarlane, given these volumes were nearly ready 
and do not require any input from DOE, why should it cost $6.5 
million to complete and publish them?
    Ms. Macfarlane. I don't know how much it will cost to 
complete and publish these. That is why we have asked the staff 
to give us estimates of what they need in terms of resources 
and--
    Mr. Gingrey. Well, do you know this, Dr. Macfarlane? How 
much money will be spent seeking comments from the parties?
    Ms. Macfarlane. A de minimis amount.
    Mr. Gingrey. Does that money come from the Nuclear Waste 
Fund?
    Ms. Macfarlane. I am going to take that one for the record 
just to be sure.
    Mr. Gingrey. If you will get back to me on that----
    Ms. Macfarlane. Sure.
    Mr. Gingrey [continuing]. I would greatly appreciate it.
    And lastly, Dr. Macfarlane, will you commit to having the 
Commission approve all NWF expenditures, Nuclear Waste Fund 
expenditures?
    Ms. Macfarlane. Have the Commission--
    Mr. Gingrey. Will you commit to having the Commission 
approve all Nuclear Waste Fund expenditures?
    Ms. Macfarlane. I am going to have to take that one for the 
record, too. I need to find out what the required process is in 
regulations and in the law.
    Mr. Gingrey. Well, I know you can't get that to me in 2 
seconds, but I would very much appreciate that information.
    Ms. Macfarlane. Absolutely.
    Mr. Gingrey. I yield back.
    Mr. Shimkus. The gentleman yields back the time.
    The chair now recognizes the chairman emeritus, Mr. 
Dingell, for 5 minutes.
    Mr. Dingell. Chairman, I commend you for the hearing. I 
thank you for the recognition. My questions will require mostly 
yes-or-no answers.
    And I want to begin by saying we have a fine mess on our 
hands. The taxpayers are paying, ratepayers are paying, money 
is being dissipated, work that should be done is not being 
done.
    Madam Chairman, I don't blame you for this. This antedates 
your work and a lot of it originates in a place in the United 
States Senate.
    In any event, according to a recent ruling by the DC 
Circuit Court in testimony you have given to this subcommittee, 
NRC has approximately $11 million in funding for the licensing 
review process. Since you last testified before this 
subcommittee in February, has the NRC spent any of these funds? 
Yes or no?
    Ms. Macfarlane. Since the court decision, the NRC spent a 
de minimis amount. We are now focused on going forward in 
determining how to spend that remaining amount.
    Mr. Dingell. Would you submit to us a statement of how much 
has been spent and how much remains in that fund?
    Now, Madam Chairman, I understand NRC has an open comment 
period soliciting feedback on how the Commission should move 
forward in light of the DC court's recent decision. One major 
step in the process is completion of the Safety Evaluation 
Report. One of the 5 volumes has already been completed and it 
is my understanding that the technological evaluation reports 
were completed on 3 of the 4 remaining volumes. Does NRC have 
staff in place to that is qualified to take these technical 
evaluations and complete the safety evaluations with the 
appropriate recommendations? Yes or no?
    Ms. Macfarlane. We don't have them all in place now. We are 
asking the staff to get back to us about staffing and resource 
needs.
    Mr. Dingell. Would you submit to us, please, a statement of 
the status of those matters for the record?
    If NRC were only to focus on completion of the Safety 
Evaluation Reports, do you believe you have enough funds to 
complete the work on the reports? Would you please answer yes 
or no?
    Ms. Macfarlane. As referenced earlier in previous 
testimony, we said that it would cost to 6.5 million to 
complete the SER--
    Mr. Dingell. So the answer is----
    Ms. Macfarlane [continuing]. But we have asked our staff to 
update that number.
    Mr. Dingell. Would you submit us a statement of the status 
of those funds, please?
    Now, Mr. Lyons, is DOE collecting fees into the Nuclear 
Waste Fund? Yes or no?
    Mr. Lyons. Yes, the funds continue to be--
    Mr. Dingell. Thank you. The DC Circuit Court decision in 
2012 ordered DOE to reevaluate the fee assessment. Since Yucca 
Mountain facility has not moved forward in recent years and 
there is still no statutorily alternative site for a permanent 
high-level waste repository, has DOE considered whether it 
should continue to assess the fee? Please answer yes or no.
    Mr. Lyons. Mr. Dingell, as Secretary Moniz discussed when 
he was with this subcommittee, the fees continue to be 
collected because they--
    Mr. Dingell. So----
    Mr. Lyons [continuing]. Reference a service of disposal of 
the used fuel.
    Mr. Dingell. Is that a yes or no, sir? My time is very 
limited. Please, yes or no? To the question, yes or no?
    Mr. Lyons. Again, these--
    Mr. Dingell. OK. Would you please submit additional 
information on that matter for purposes of the record?
    Now, because the Federal Government has not upheld its 
responsibility to provide a permanent high-level nuclear waste 
repository, it is my understanding that orders of nuclear 
facilities are suing the Federal Government for compensation to 
store waste on sites and locations across the country. 
According to the February 2012 report by CRS, there has been 
over $2 billion in awards and settlements as a result of these 
claims. These payments come from the judgment funded by 
taxpayers' dollars. The Department of Justice has spent 
approximately 200 million defending the government against 
these claims.
    Now, Madam Chairman, I urge NRC to focus on the completion 
of the Safety Evaluation Reports. Should the reports determine 
that the Yucca Mountain facility is appropriate, hopefully 
opponents will allow the process to move forward. Should the 
reports deem the Yucca Mountain unsafe, I think this committee 
and I are prepared to work with all of our colleagues to amend 
the Nuclear Waste Policy Act and to find a viable path forward 
in order to deal with the safe disposition of nuclear waste. We 
have to find a way forward and I believe that the completion of 
the Safety Evaluation Report will significantly help us follow 
the path forward. Will you please comment on that with a yes or 
no? Do you agree or not?
    Ms. Macfarlane. Completion of--
    Mr. Dingell. Just yes or no.
    Ms. Macfarlane. Completion of the Safety Evaluation Report 
is one step in the overall process and we are already receiving 
other--
    Mr. Dingell. Madam Chairman, I am going to ask you just yes 
or no and then I am going to ask you to submit a further 
statement for the record on the matter.
    Ms. Macfarlane. It is a complex situation. I can't answer 
yes or no.
    Mr. Dingell. All right. Well, this demonstrates what a 
magnificent mess we have here, and I don't blame you, Madam 
Chairman, but you sure have got to get busy to get it fixed.
    Thank you, Mr. Chairman.
    Mr. Shimkus. And I thank my colleagues.
    The chair now recognizes the gentleman from Kentucky, Mr. 
Whitfield, for 5 minutes.
    Mr. Whitfield. Chairman Shimkus, I want to thank you very 
much for having this important hearing.
    You know, my humble opinion, the Obama administration has 
really established a pattern of disregarding laws that they do 
not agree with.
    Now, in 1987 Congress passed the Act identifying Yucca 
Mountain as a primary national repository site. Prior to that, 
DOE looked at nine sites, but in '87 Congress acted. And in 
this decision I would like to just read some excerpts from this 
decision that was just issued. ``The Nuclear Regulatory 
Commission has continued to violate the law governing the Yucca 
Mountain licensing process. The statutory deadline for the 
Commission to complete the licensing process and approve or 
disapprove the Department of Energy's application has long 
since passed. Yet the Commission still has not issued the 
decision required by statute. Indeed by its own admission the 
Commission has no current intention of complying with the law. 
Rather, the Commission has simply shut down the review and 
consideration of the process.''
    Now, from a taxpayer standpoint, $15 billion has been spent 
on Yucca Mountain, and in 1983, the government entered into 
contracts with the 104 nuclear power plants roughly that the 
government would take possession of that material, that waste 
material in 1998. That time has come and gone and the Federal 
Government was sued because they did not take possession 
because Yucca Mountain was not completed. And so in addition to 
the $15 billion spent on Yucca Mountain, we now have judgments 
that, by 2020, is supposed equal $19 billion because the 
government cannot meet its contractual obligation.
    And so here the taxpayers are with a $17 trillion Federal 
debt, 34 billion spent on Yucca Mountain, and the court is 
saying that the Nuclear Regulatory Commission, which you are 
now responsible for, Chairman Macfarlane--you have been there 
for a year and a half--and I don't blame you for this because 
you did not take the action that precipitated these lawsuits, 
but with all of this money spent and with a clear violation of 
the Federal law, I would hope that you and Mr. Lyons--Mr. Lyons 
has been at the Department of Energy since the beginning of the 
Obama administration, I believe. I hope that you will do 
everything possible to expedite this, not try to rewrite the 
law, not try to change other people's opinion, but make a 
decision based on the safety issues. And even the court says 
there is $11 million available right now to start this process.
    And so can you commit to the committee that you intend to 
move forward to try to obey the law?
    Ms. Macfarlane. Certainly. We commit to moving as 
expeditiously as possible.
    Mr. Whitfield. And I hope that you will direct your staff 
to do the same.
    Ms. Macfarlane. We have already done so.
    Mr. Whitfield. Do you have any comments, Mr. Lyons?
    Mr. Lyons. I would only comment that the dollar values that 
you cite are precisely the reason why the administration feels 
strongly that it is important that we move forward on a 
workable solution as opposed to spending still more money on an 
unworkable solution.
    Mr. Whitfield. Well, I mean it is a Federal law right now 
that Yucca Mountain is the designated site. So I don't think 
that you all have a right to go around and--I mean, I know what 
the Blue Ribbon Commission said. They want to just start all 
over again, but we have a Federal law on the books. The courts 
have said that it needs to be enforced and the court has said 
that the Nuclear Regulatory Commission is violating the law. So 
with all due respect to the great work that you all do, the 
great responsibility that you have, I do think you also have a 
responsibility to be leaders and enforce the law and try to 
protect the taxpayers' money.
    And the President frequently talks about an all-of-the-
above policy. I support an all-of-the-above energy policy. And 
yet what he is doing in the area of nuclear would indicate that 
he is not really committed to that and we know that you cannot 
build a new coal-powered plant in America, the only country in 
the world where you cannot do so. So how can he say that he is 
for an all-of-the-above energy policy?
    And my time is expired.
    Mr. Shimkus. The gentleman's time is expired.
    The chair now recognizes the ranking member of the full 
committee, Mr. Waxman, for 5 minutes.
    Mr. Waxman. Thank you very much, Mr. Chairman.
    I would like to ask Chairwoman, Chair Macfarlane?
    Ms. Macfarlane. Chairman.
    Mr. Waxman. Chairman Macfarlane, you have testified today 
that the NRC is still formulating its response to the recent 
court ruling and that it is hard to discuss a plan that isn't 
yet created. Therefore, before turning to Yucca Mountain, I 
want to ask you and take this opportunity to inquire about some 
issues that are important to the people of California about 
recent events at the damaged Fukushima nuclear power plant in 
Japan.
    Over the last several months, news reports have painted a 
troubling picture of the situation at Fukushima. The Tokyo 
Electric Power Company, TEPCO, announced that pits and tanks 
holding vast amounts of radioactive wastewater had begun 
leaking. Contaminated water is flowing into the Pacific Ocean 
at the rate of about 300 tons per day. At the same time, 
Japanese officials have said that TEPCO may need to release 
contaminated water from the storage tanks into the ocean. Some 
news reports have raised concerns about whether radiation 
entering the Pacific Ocean from Fukushima could eventually 
reach the shoreline of the United States and its territories.
    Chairman Macfarlane, what impact if any will the 
contaminated water from Fukushima have on America's West Coast? 
What assurances can I give my constituents at this time?
    Ms. Macfarlane. Thanks for the question. This is an 
important issue and I know it has been in the news a lot lately 
so I know it is of concern to many people.
    Contaminated water has essentially, my understanding, been 
leaking from the Fukushima site since the beginning of the 
accident. One thing people should keep in mind is that the 
largest releases of contamination of radioactive materials were 
2 \1/2\ years ago, and they were significantly larger than 
anything that is being released on a daily basis now. But the 
good news is the Pacific Ocean is very large and any 
radionuclides that get into the Pacific Ocean near Fukushima 
will be diluted by many thousands of times by the time they get 
anywhere near the West Coast of the United States. And so in 
the end there will be very little harm or negligible harm to 
the West Coast of the United States. So people in the U.S.--
    Mr. Waxman. Well, that is comforting.
    Ms. Macfarlane. --can remain assured that they will be OK.
    Mr. Waxman. It appears that TEPCO did not adequately 
anticipate the challenges of managing vast amounts of 
radioactive wastewater over a long period of time. This raises 
questions about additional lessons that we can learn from the 
Japanese experience. What is NRC's Fukushima task force doing 
to review the wastewater challenges at the Fukushima plant and 
apply any lessons learned to U.S. facilities?
    Ms. Macfarlane. Well, we are certainly and we have been 
taking lessons through the entire accident and now as well, and 
my understanding is that some of our research folks are looking 
into the situation of dealing with large volumes of 
contaminated water after an accident now.
    Mr. Waxman. So you are continuing to prioritize preventing 
an accident at U.S. facilities but NRC has tasked some 
researchers with a question of how better to handle large 
primes of radioactive wastewater?
    Ms. Macfarlane. Yes.
    Mr. Waxman. Is that your position?
    Ms. Macfarlane. Yes. We are----
    Mr. Waxman. OK. Thank you.
    Yesterday, Ranking Member Tonko and I sent a letter to 
Chairman Upton asking that the committee schedule a hearing to 
review the recent events at Fukushima and the lessons we can 
learn from them, and I am hopeful we can agree that this is a 
topic worthy of bipartisan examination.
    Turning back to Yucca Mountain, the majority called this 
hearing to examine the recent court decisions requiring NRC to 
restart the license review process but the court didn't resolve 
the most fundamental outstanding question about the future of 
this possible waste repository.
    Dr. Lyons, did the court decision alter the State of 
Nevada's long-standing opposition to the project?
    Mr. Lyons. Well, I am not sure I am the best equipped to 
answer that question, sir, but not to my knowledge.
    Mr. Waxman. OK. The President's Blue Ribbon Commission 
recommended that Congress create a new organization devoted 
entirely to managing the nuclear waste problem. Did the court 
decision determine what that organization should look like?
    Mr. Lyons. The court decision did not address that, sir.
    Mr. Waxman. We also need to fix several funding and 
appropriations problems to make sure that the funds put aside 
for constructing a repository or storage facility can actually 
be used for that purpose. Did the court resolve those issues?
    Mr. Lyons. No, sir.
    Mr. Waxman. The court decision doesn't resolve any of the 
major policy questions facing this committee. We need to heed 
the advice of the Blue Ribbon Commission: adopt a new consent-
based approach to tackling the Nation's nuclear waste problem. 
Nothing in the court decision changes the fact that Congress 
needs to act in a bipartisan manner to accomplish this.
    Thank you, Mr. Chairman.
    Mr. Shimkus. The gentleman's time is expired.
    The chair now recognizes the gentleman from Ohio, Mr. 
Latta, for 5 minutes.
    Mr. Latta. Thank you, Mr. Chairman.
    And thank you very much to our witnesses for being with us 
today. I greatly appreciate hearing your testimony today.
    Chairman Macfarlane, if I could pose my first question to 
you, and if I may, I am going to have to read through a little 
bit here. But on April 11, 2011, from an order from the Nuclear 
Regulatory Commission's Atomic Safety and Licensing Board, it 
stated that in order to fulfill the responsibility to preserve 
the document discovery materials residing on the LSN, a system 
mandated by 10 CFR Part 2, Subpart J, et cetera, it said the 
board directs pursuant to its authority under the 10 CFR that 
each party shall take the following actions: preserve all LSN 
documents in PDF format, submit its LSN document collection 
together with the associated biographic files to the NRC Office 
Of Secretary on optical storage media specified in guidance for 
electronic submissions to the Commission for the inclusion in 
the docket, and then also for large collections taking more 
than a month to complete the PDF to submit those documents 
converted a little bit later. But it says that once received, 
the Secretary shall install the documents and associated 
biographic information into a separate LSN docket library on 
ADAMS for public access via www.NRC.gov.
    Then a little later at another date it states that on May 
12, 2012, an oral argument from the Aiken County case, one of 
the attorneys for the Commission stated, ``in other words, we 
would, presuming that we would order us to take back up we may 
not activate the LSN; we may simply treat the case as a larger 
paper case.''
    I guess, Chairman Macfarlane, my question then is if I 
understand this correctly, the LSN documents are available to 
all parties and the public at this time, and hence, the LSN 
would not need to be immediately reconstituted prior to the 
resumption of the proceeding. Is that correct?
    Ms. Macfarlane. The LSN documents are not available at this 
point in time. They are in a safe from my understanding. And so 
the LSN network would have to be reconstituted as part of 
moving forward. That is required in our regulations.
    Mr. Latta. OK. But could you explain that different then 
from this order from April 11, 2011? If these----
    Ms. Macfarlane. I am going to have to take that for the 
record so I can see that order and give you a proper----
    Mr. Latta. OK. I tell you what, we will get this to you 
because we need to get that answered because it is saying here 
that once received, and then when they are talking about the 
NRC Office of the Secretary shall install the documents and 
associated biographic information into a separate LSN docket 
library of ADAMS for public access via www.NRC.gov.
    Ms. Macfarlane. Yes.
    Mr. Latta. So we will get this to you, but if we will get 
an answer to that, please.
    Ms. Macfarlane. Absolutely.
    Mr. Latta. And right now with the DOE's NRC action 
shutdown, the Yucca Mountain program and the license review 
triggered the 2 mandamus cases and the waste case before the DC 
Circuit Court, Dr. Lyons, if I could ask, since DOE has really 
caused, you know, the mess that is on out there by attempting 
to withdraw the license and the court has now corrected it, 
will you commit to this committee that DOE will not attempt to 
slow or obstruct the resumption or pace of the licensing 
review?
    Mr. Lyons. At this point I can commit that we will continue 
to evaluate the NRC's decision and formulate a path forward. 
And I am not sure I heard all of your question.
    Mr. Latta. OK. But the question is when you say that you 
are going to commit to go forward, but you are not going to be 
slowing the process down to get to this decision, are you, 
where we are supposed to be?
    Mr. Lyons. We have committed to respond to NRC requests 
within available appropriations.
    Mr. Latta. Well, we really want to make sure because there 
is a lot of money being spent out there and it is taxpayers' 
dollars, and we want to make sure that this is not slowed or 
obstructed and we want to make sure that the pace is going on 
in the licensing review. So that is one of the things we would 
like to see that is committed from DOE.
    And, Mr. Chairman, I see my time is expired and I yield 
back the balance of my time.
    Mr. Shimkus. The gentleman yields back his time.
    The chair now recognizes the gentleman from Texas, Mr. 
Green, for 5 minutes.
    Mr. Green. Chairman Macfarlane, in the record of the 
hearing before this subcommittee on February the 28th, you and 
your fellow commissioners committed to honor the decision of 
the Court of Appeals for the DC Circuit Court concerning 
resumption of Yucca Mountain licensing process. Recognizing 
that commitment, the court statement regarding the need to 
comply with Congress direction on the Nuclear Waste Policy Act, 
do you believe the agency should appeal the decision?
    Ms. Macfarlane. I can't say at this time. The period for 
seeking review hasn't expired so it wouldn't be appropriate for 
me to comment.
    Mr. Green. Besides the August 30 commission order, what 
actions have been taken so far by the agency to respond to the 
court's decision?
    Ms. Macfarlane. We have issued an order asking the parties 
and participants to comment on how to proceed, and we have also 
requested from the staff budget information on how much it 
would cost to move forward to expend the 11 million.
    Mr. Green. The Safety Evaluation Reports will inform the 
public and Congress of the results of NRC's extensive review of 
the license application. A number of entities have recommended 
that completion and publication of the SER should be the NRC's 
first priority. What is your view?
    Ms. Macfarlane. It is a significant part of the process 
that we talked about earlier that is set out in Appendix D, but 
it certainly doesn't constitute the entire licensing decision. 
The SER will not in and of itself provide a licensing decision. 
We have to also complete the adjudicatory hearing and the 
Commission has to hear contested and uncontested issues.
    Mr. Green. OK. In my opening statement I was concerned 
about the funding. Parties in the Yucca Mountain licensing 
procedures have suggested the NRC reconstitute the hearing 
boards and restore the licensing network as a first priority. 
In light of the fact that their only remains 11.1 million 
available to NRC's review of the Yucca Mountain application, do 
you believe that implementing these suggestions would deplete 
those available funds without appreciably advancing the 
agency's review and adjudication of the application?
    Ms. Macfarlane. It would be inappropriate for me to comment 
now because we are still collecting information on this.
    Mr. Green. OK. Could you, when the time comes--I know if we 
could get our committee----
    Ms. Macfarlane. Certainly. The Commission will make all its 
decisions public.
    Mr. Green. Previously, NRC estimated 6 to 8 months was 
needed to complete all the volumes of the SER at the cost of 
6.5 million. The budget is within the appropriated unobligated 
funds now available at the Commission. What steps have you 
taken to evaluate the basis for the 6.5 million estimate? Do 
you believe that 6.5 million is accurate?
    Ms. Macfarlane. We have asked the staff to go back and give 
us an updated estimate of that, and so we are waiting to see 
what the staff says.
    Mr. Green. Are there any other efficiencies that the agency 
can adopt to it reduce the cost of completing the SERs without 
sacrificing their quality?
    Ms. Macfarlane. Well, we are in the process of collecting 
all that information now, so we will have a better answer for 
you in some time.
    Mr. Green. What schedule do you believe is reasonable for 
the NRC to complete and publish the SERs?
    Ms. Macfarlane. Again, that is information that we are 
collecting right now. I can't comment.
    Mr. Green. Given the import of the SERs as a part of the 
record, the NRC's adjudicatory proceedings, would you agree 
that the resumption of the hearings should occur only after the 
completion of the SERs?
    Ms. Macfarlane. Again, we have to hear from all of the 
parties and participants to the proceeding and we have to get 
information from the staff on resources required.
    Mr. Green. The Yucca Mountain license application utilized 
the total system performance assessment as a methodology to 
assess the long-term performance of the repository's 
acceptability. Chairman Macfarlane, before you became a member 
of the Commission, you were critical of that methodology. Can 
you assure the public that you can objectively evaluate the 
license application and include its reliance on the TPSA?
    Ms. Macfarlane. Absolutely. I have an open mind on this 
matter--on the Yucca Mountain licensing matter and I will 
maintain an open mind on it.
    Mr. Green. When do you expect to be able to issue an order 
or a staff requirements memorandum announcing the Commission's 
response to the court's decision?
    Ms. Macfarlane. Well, we already did issue one order----
    Mr. Green. OK.
    Ms. Macfarlane [continuing]. Asking the parties to comment 
and requesting the staff to collect budget information, and 
then the next steps I can't tell you exactly when we will----
    Mr. Green. So----
    Ms. Macfarlane [continuing]. But we are working as 
expeditiously as possible.
    Mr. Green. So there is no time frame on the staff reporting 
back?
    Ms. Macfarlane. The staff will report back and the parties 
will comment by the end of September. September 30 I believe is 
the close date for that information.
    Mr. Green. OK. Mr. Chairman, thank you. Obviously, we need 
some more hearings.
    Mr. Shimkus. Thank you.
    And now the chair now recognizes the gentleman from West 
Virginia, Mr. McKinley, for 5 minutes.
    Mr. McKinley. Thank you, Mr. Chairman.
    Several questions. One is I just was verifying the quote 
that was given on August 21. It was kind of a revealing quote 
from Senator Reid when the question was raised to him with a 
news broadcast in Nevada about the thoughts of the court 
decision. His response was ``as a result of political 
compromise, we put some really bad judges on the circuit court 
and they produced a 2 to 1 decision requiring the Nuclear 
Regulatory Commission to license Yucca Mountain. Their opinion 
means nothing. Yucca Mountain is dead. It is padlocked. Nothing 
is going to happen there.''
    Now, we have had 3 votes in Congress over the last year on 
a vote of 4 to 1 ratio saying we want something to happen. 
Well, was Harry Reid correct that nothing is going to happen? 
It means nothing for the vote of the court and the vote of 
Congress to take this action? Either one of you.
    Ms. Macfarlane. I can't comment on the Senator's statement.
    Mr. McKinley. You can comment your opinion. Was he correct? 
I am just asking, was he correct?
    Ms. Macfarlane. I can't comment on the Senator's statement.
    Mr. McKinley. You don't know whether he was correct?
    Ms. Macfarlane. I can't comment on the Senator's statement.
    Mr. McKinley. OK. I hear you. Mr. Lyons?
    Mr. Lyons. Well----
    Mr. McKinley. Was he correct? Yes or no?
    Mr. Lyons. I certainly can't comment on what the Senator 
said. That is simply not appropriate. However, the court 
decision stands and we are awaiting----
    Mr. McKinley. Well, if you can't----
    Mr. Lyons [continuing]. The NRC's review of the court 
decision.
    Mr. McKinley. I know your answer is on the thing but I was 
just curious to see if you would say it aloud.
    But let's go back to this. Under the regulations, there was 
apparently an ability that the other States could override 
Nevada or that Congress could override Nevada, so I am just 
curious when they listen to the State of Nevada and this was a 
decision made and has been endorsed now by congressional votes 
that there is support, did you go back to the other 34 States 
and ask them their opinion before, Mr. Lyons?
    Mr. Lyons. I have to confess that I am not sure I am 
following the line of your questioning, sir.
    Mr. McKinley. Well, the issue comes down to whether or not 
the definition of public support. If the public support of 
Nevada overrides the--I believe there are 34 other States that 
have spent nuclear fuel rods. Did you go back and ask them 
whether or not they concurred with this decision to stop the 
movement in Yucca Mountain? I think the answer is yes or no. 
Did you go to the other 34 States and ask for their input?
    Mr. Lyons. The administration has stated on many 
occasions----
    Mr. McKinley. Yes----
    Mr. Lyons [continuing]. A workable solution is a path 
forward.
    Mr. McKinley. So I am going to assume unless you say 
otherwise the answer is no. You only went to Nevada with that.
    Can you tell me, if the Congress has acted this way, what 
authority do you have just to deem away an act of Congress that 
we are not going to do this, that we are not going to proceed? 
The court has had to step in and make you do it.
    Mr. Shimkus. If the gentleman would yield. And to the 
members of the panel, you better take the questions seriously 
because he is asking a question why didn't you comply with the 
law? That is the basic question. If you are confused about what 
Mr. McKinley is asking, he is asking why the NRC walked away 
without a public hearing and not complied with the law and he 
is asking you for the DOE perspective why did the 
administration not comply with the law? And I think that is a 
very serious charge.
    Ms. Macfarlane. Let me say from the NRC's perspective that 
we of course intend to follow the law. We are now following the 
law. We are moving forward. We are forward-focused on this.
    And in terms of your question of did you ask other States, 
we have asked all parties to the legal proceeding and 
participants to comment now moving forward.
    Mr. McKinley. So the other States, they have agreed?
    Ms. Macfarlane. It is up to them whether they comment.
    Mr. McKinley. OK. Just one in closing in a few seconds I 
have left on it, there was testimony earlier about in Michigan 
and elsewhere but at least in Michigan there was some $600 
million has been spent in the Yucca Mountain project out there. 
If we don't advance this, are they going to be reimbursed? Or 
what did the State of Michigan get for the $600 million that 
the taxpayers spent at Yucca Mountain? What did they get for 
that?
    Ms. Macfarlane. You know, we as the NRC, our job is to 
ensure that a repository application and the repository itself 
would be safe and operate safely. That is our job. So in terms 
of policy questions associated with the Nuclear Waste Fund, 
that is something that I defer to the Department, to the 
administration and the Congress.
    Mr. McKinley. OK. I am sorry.
    Mr. Shimkus. OK. The gentleman's time is expired.
    The chair now recognizes the gentleman from California, Mr. 
McNerney, for 5 minutes.
    Mr. McNerney. Well, thank you, Mr. Chairman.
    Chairman Macfarlane, it seems to me that the hearing we are 
holding here this morning is premature. We should be holding 
this hearing in 2 weeks or a month later, that you would be 
able to answer a lot of questions that have been asked this 
morning more satisfactorily. Would you agree with that?
    Ms. Macfarlane. I think in a number of weeks or a month or 
two, we will certainly be able to have more satisfying answers 
for you.
    Mr. McNerney. Would you be able to produce a more concrete 
answer in terms of when you would be ready to answer the 
questions that have been asked this morning?
    Ms. Macfarlane. In a number of weeks or a month, certainly 
after the time has expired for parties to comment and the staff 
to get back to us after the end of September and after we have 
a little bit of time to sift through those, we will have a much 
better idea of what the plan is to move forward.
    Mr. Shimkus. Would the gentleman yield? Not to take away 
from your time, but the full commission will be coming back 
this fall and that will give us an opportunity also to fully 
vet this.
    Ms. Macfarlane. End of October we will be back.
    Mr. McNerney. Thank you.
    Well, focusing funds on the Safety Evaluation Report is 
presumably one of the options that the Commission will be 
looking at but the safety report is just one of many steps 
needed. You have mentioned a couple of these. There will need 
to be an Environmental Impact Statement would need to be 
supplemented, more than 300 claims would have to be conducted, 
adjudicated, more than 100 depositions taken, and then there 
would need to be evidentiary hearings, and then the final 
decision will be made by the Commission. Is that about right?
    Ms. Macfarlane. There are some other steps in there, too. 
The Licensing Support Network that has gotten some discussion 
this morning would have to be put back and there are some other 
issues as well that the Environmental Impact Statement would 
have to be completed and the supplement would have to be 
completed as well.
    Mr. McNerney. Dr. Lyons, even if the license were issued 
sometime in the future, there would need to be more steps that 
would have to happen before the repository would be 
operational. For example, the State of Nevada is strongly 
opposed to the project and they would need to issue a number of 
permits. The Congress and the President would have to sign a 
land withdrawal bill and the Department of Energy would need to 
actually build the repository with tens of billions of dollars 
in appropriations over the next few years. Is that about right?
    Mr. Lyons. That is all correct, sir.
    Mr. McNerney. So, Mr. Chairman, it is clear to me that the 
NRC and the DOE do not have sufficient funds to complete the 
Yucca Mountain licensing, and there is still a lot of public 
opposition in the State of Nevada. The Court of Appeals 
decision doesn't change either one of those facts. It is time 
for us in the subcommittee to start grappling with the tough 
policy questions we need to answer in order to establish a new 
consensus-based siting process that has a real chance of 
getting a repository built.
    With that, I will yield back.
    Mr. Shimkus. The gentleman yields back his time.
    The chair now recognizes the gentleman from Pennsylvania, 
Mr. Pitts, for 5 minutes.
    Mr. Pitts. I thank the gentleman. I apologize for coming in 
and out. We have a couple of hearings going on at the same 
time.
    Chairman Macfarlane, in your written testimony you state 
``in September 2008 the NRC staff adopted the EIS subject to 
additional supplementation on groundwater analysis. In October 
2008 the DOE had notified the NRC of its intent to supplement 
the EIS. Subsequently, in July of 2009, the DOE notified the 
NRC that it had decided not to prepare a supplement. To satisfy 
National Environmental Policy Act, NEPA, obligations, the EIS 
would need to be supplemented.''
    Now, I have here a report dated July of 2009 from DOE's 
Office of Civilian Radioactive Waste Management entitled 
``Analysis Of Post-Closure Groundwater Impacts.'' And this 
document notes the NRC staff's September 8, 2008, adoption 
report regarding the DOE's Environmental Impact Statements, 
EIS, and indicates ``in response to NRC's staff adoption 
report, DOE has prepared this analysis of post-closure 
groundwater impacts. This analysis of post-closure groundwater 
impacts addresses the information identified by the NRC staff 
as needed to supplement DOE's Environmental Impact 
Statements.''
    I have another document here from the NRC's Web site 
indicating that the supporting documentation for this report 
was provided to the NRC's public document room and the NRC's 
file center. Dr. Lyons, do you know whether DOE provided NRC 
the groundwater analysis Chairman Macfarlane mentions in her 
testimony?
    Mr. Lyons. The report that you reference, sir, was provided 
by the Department of Energy and it was--at least the 
understanding of our staff at the time that the supplemental 
details would be added by the NRC to the EIS. That could be 
revisited if the NRC wishes, but yes, we have provided that 
documentation as you cited.
    Mr. Pitts. Chairman Macfarlane, is it possible that your 
staff made a mistake and the DOE did actually send the 
supplement that you need for the EIS?
    Ms. Macfarlane. My understanding is that we still need the 
supplement to the EIS, but I can get back to you with the 
longer answer for the record.
    Mr. Pitts. Did you want to respond, Dr. Lyons?
    Mr. Lyons. I think we are both saying the same thing. The 
EIS needs to be supplemented. The question is we think we have 
provided the information to the NRC to do the supplement, but 
if they wish us to do it, we would use the information that we 
provided to them. There may be a misunderstanding simply on who 
is going to write the supplement, but we provided the 
information.
    Mr. Pitts. Well, is there an open action item here or can 
we cross this off the list of things that you folks need to do 
to comply with the court?
    Ms. Macfarlane. Clearly, the supplement needs to be 
completed, and this is one of the other steps that would have 
to be done to complete the licensing process, and it is a step 
that we would have to try to understand the resource allocation 
for and whether it would be the Department of Energy who would 
take this on or the NRC.
    Mr. Pitts. OK.
    Ms. Macfarlane. But this is something that needs to be 
completed and needs to be decided how to move forward.
    Mr. Pitts. Now, this administration shut down the Yucca 
Mountain program, and the issue that brings us here today, 
contrary to the Nuclear Waste Policy Act and stranding spent 
nuclear fuel indefinitely at plants across the country, Dr. 
Lyons, was there a scientific reason for shutting it down?
    Mr. Lyons. As we have testified in other hearings, our 
concern has been whether this is a workable solution to move 
forward, and I believe that without a consent-based process, it 
is not a workable solution.
    Mr. Shimkus. Will the gentleman yield?
    So that is a no, Mr. Lyons? That is a no that it wasn't a 
science-based decision to shut it down? That is what you just 
said. You are saying it was a political----
    Mr. Lyons. The Department of Energy submitted the license 
application based on the technical requirements.
    Mr. Shimkus. Your answer to his question was no, that it 
was not science-based, it was a politically based decision. 
That is fine.
    Mr. Lyons. Mr. Shimkus----
    Mr. Shimkus. I will yield back to the gentleman from 
Pennsylvania.
    Mr. Lyons. We can debate what you mean by a politically 
based decision. I am simply----
    Mr. Shimkus. I am using your words, not mine. You are the 
one who just meandered on that it wasn't science-based. The 
question was was it science-based? And you said no.
    Mr. Lyons. Based on a----
    Mr. Shimkus. It is a consensus-based analysis, and we have 
always heard this story before. So your answer to my colleague 
from Pennsylvania was no.
    Mr. Lyons. I have attempted to indicate the range of issues 
that were considered, sir.
    Mr. Shimkus. We got you on record as no.
    The gentleman from Pennsylvania has expired.
    Mr. Pitts. Thank you, Mr. Chairman.
    Mr. Shimkus. The chair now recognizes the gentleman from 
Georgia, Mr. Barrow, for 5 minutes.
    Mr. Barrow. Thank you, Mr. Chairman.
    And, Chair Macfarlane, I want to begin by thanking you for 
your personal interest in the expansion of nuclear generating 
capacity in this country. It has gone on in my backyard in 
Georgia and next door in South Carolina and you have taken a 
personal interest in this and I want to commend you for that 
and thank you and encourage you to help us through this renewal 
of nuclear energy generation in this country.
    I gather that you all want input from the interested 
parties as to how best to proceed. I want to offer some input 
as to how best to proceed. Assuming that the Court of Appeals 
decision becomes final in the law of the case, I take it that 
the usual practice in cases of this sort is that the SER is 
formally adopted before you enter into any adjudicatory 
proceedings to rule on any contentions that raise objections to 
the SER. Is that correct?
    Ms. Macfarlane. That is correct.
    Mr. Barrow. There is no reason to depart from that in this 
instance, is there?
    Ms. Macfarlane. Well, it depends on the parties and the 
participants and their views. We do have to weigh them all 
moving forward----
    Mr. Barrow. I understand you have to weigh their views but 
you all get to decide how you proceed, how you go forward.
    Ms. Macfarlane. Right. I mean we are trying to understand 
what we can do with the limited resources that exist at the 
moment.
    Mr. Barrow. Of course. And I guess the input I want to 
offer is that it seems to me it would make very little sense to 
enter into any formal adjudicatory proceedings to rule on any 
contentions that raise objections to the SER before the SER is 
even adopted.
    Ms. Macfarlane. Yes.
    Mr. Barrow. The input that I would offer is it would make 
no sense whatsoever to be having hearings on objections to the 
SER before it is adopted and then at some distant time in the 
future have it adopted, and then have post-adoption contentions 
raising further objections ruled on later on. Let's just keep 
it one step at a time, shall we, one war at a time as Lincoln 
said.
    Ms. Macfarlane. I do very much so appreciate your input and 
we will take that into consideration as we deliberate and move 
forward.
    Mr. Barrow. Thank you very much. No further questions.
    Mr. Shimkus. The gentleman yields back his time.
    The chair now recognizes the other gentleman from 
Pennsylvania, Mr. Murphy, for 5 minutes.
    Mr. Murphy. Thank you, Mr. Chairman.
    To both of you, the fiscal year 2011 Continuing Resolution 
was the last time NRC and DOE received funding for the license 
review. Am I correct on that, Ms. Macfarlane?
    Ms. Macfarlane. I am sorry, the fiscal year--
    Mr. Murphy. The fiscal year 2011 Continuing Resolution was 
the last time NRC and DOE received funding for license review--
    Ms. Macfarlane. Yes.
    Mr. Murphy [continuing]. Am I correct, Mr. Lyons, is that 
true as well?
    Ms. Macfarlane. I do believe that is correct.
    Mr. Murphy. And the purpose of that funding was to carry 
out the purposes of the Nuclear Waste Policy Act, am I correct?
    Ms. Macfarlane. Sorry?
    Mr. Murphy. The purpose of that funding was to carry out 
the purposes of the Nuclear Waste Policy Act?
    Ms. Macfarlane. Yes.
    Mr. Murphy. Am I correct?
    Ms. Macfarlane. Certainly.
    Mr. Murphy. And, Dr. Lyons, but DOE used that money for the 
opposite purpose, to shut down the Yucca Mountain program in an 
attempt to withdraw the license application, am I correct?
    Mr. Lyons. The fiscal year 2010 funding was used for 
shutdown of the program, yes.
    Mr. Murphy. All right. And, Dr. Macfarlane, the NRC also 
used that money to suspend the license review, correct?
    Ms. Macfarlane. Correct.
    Mr. Murphy. And, Dr. Lyons, how much money from the Nuclear 
Waste Fund did DOE spend to shut down the program?
    Mr. Lyons. I would prefer to give you a precise number. It 
was around 130 million but we can give it to you precisely in 
writing.
    Mr. Murphy. I have 138 million. I just wanted to be sure 
but let me know the precise number.
    Chairman Macfarlane, how much money from the Nuclear Waste 
Fund did NRC spend to suspend the license review?
    Ms. Macfarlane. I believe it was 7.4 million.
    Mr. Murphy. OK. I thought it was a little bit more. Could 
you double-check the number, please?
    Ms. Macfarlane. I can certainly double-check the number.
    Mr. Murphy. So, to both of you, together your two agencies 
have spent, by my calculations, a little bit under $150 million 
of electricity consumers' money shutting down a license review 
that the court has now said you have to complete. So 
electricity consumers throughout this country paid for you to 
conduct the license review, not to scuttle it. So how will your 
agencies restore that money to its lawful purpose?
    Ms. Macfarlane. In terms of the Nuclear Regulatory 
Commission, this is actually an issue that is under 
adjudication right now and so it is not appropriate for me to 
comment.
    Mr. Murphy. Are you going to have the money to do that?
    Ms. Macfarlane. Sorry?
    Mr. Murphy. Are you going to have the money to restore 
that?
    Ms. Macfarlane. Again, this is an issue that we have asked 
the staff to collect information on all budgeting----
    Mr. Murphy. And, Dr. Lyons, do you have a different answer 
on that? Do you have any idea where the money is going to come 
from?
    Mr. Lyons. In my written testimony I gave the numbers for 
the currently available funds that we have, either unobligated 
or costed and obligated.
    Mr. Murphy. I appreciate that but I am trying to get to the 
point that isn't it fair that you have to restore that money to 
back to what its legal purpose was for? Am I correct?
    Mr. Lyons. The position of the administration continues to 
be that if we want to stop wasting money, we should be moving 
in a direction to have a workable--
    Mr. Murphy. Well, no, no, no----
    Mr. Shimkus. Will the gentleman yield for one second?
    Mr. Murphy. Yes.
    Mr. Shimkus. Aren't you saying that the NRC and the DOE 
spent $150 million to break the law?
    Mr. Murphy. That is what I am hearing and now you are 
talking about something else.
    Look, we need a straightforward answer on this. You know, 
the fairness to the American people who have been paying these 
rates is that money was misused by DOE and by NRC. And so now 
what I am asking you is are you going to work on a plan to 
restore that, you are talking about finding other ways to not 
waste money. This is a colossal waste of money. So now I don't 
understand. So just give me a straightforward answer. Isn't it 
fair that you find a way to restore that money to its lawful 
legal purpose?
    Mr. Lyons. I am not aware, sir, what that mechanism would 
be. Perhaps someone on your side is. I am not aware of what 
that mechanism would be.
    Mr. Murphy. Oh, no, it is not my responsibility to fix your 
problem. Your breaking the law is not my responsibility to fix 
it. The misuse of money from your agencies is not the 
responsibility of the American people to come up with another 
answer. It is your responsibility. We are going to hold you to 
that.
    Chairman McFarlane, in your testimony you mentioned the NRC 
currently has 13.6 million available to fund resumption of 
license review. Is that enough to fully comply with the court's 
decision?
    Ms. Macfarlane. Let me clarify. We have 11.1 million 
available and 2.6 million in obligated----
    Mr. Murphy. Will that be enough to complete the application 
review and issue a decision?
    Ms. Macfarlane. And issue the license?
    Mr. Murphy. Yes.
    Ms. Macfarlane. Absolutely not.
    Mr. Murphy. But you are both legally responsible now for 
complying with the law.
    Ms. Macfarlane. We will comply with the law, sir.
    Mr. Shimkus. Would the gentleman yield? Ask that question 
on the Safety Evaluation Report. That is the question that we 
still need to get a firm answer from the chairman.
    Mr. Murphy. So let me ask that. On the Safety Evaluation 
Report, will you be able to comply?
    Ms. Macfarlane. We have asked the staff to update the 
information, update the resources needed to complete the Safety 
Evaluation Report and to do a number of other entities, and as 
soon as we get that information, the Commission will be able to 
provide a written response.
    Mr. Murphy. So just to cut to the chase, it sounds like 
neither of your agencies has enough resources to complete the 
licensing review mandated by the court and by law. So when was 
the last time either of your agencies asked for funding in your 
budget proposal to do any of this?
    Mr. Lyons. The last funding we received was fiscal year 
2010 to the best of my memory.
    Mr. Murphy. You haven't asked for any since then to comply? 
You have not asked for any since then?
    Mr. Lyons. That is correct.
    Mr. Murphy. Will you be forwarding a supplemental budget 
request to fund these?
    Mr. Lyons. Until we know the requirements from the NRC, 
until we have evaluated a path forward, it would simply be 
premature for me to speculate on whether that would be the 
course of action, sir.
    Mr. Murphy. Mr. Chairman, there is still follow-up here. 
The law says you have got to comply, the court said you have to 
comply, you said you don't have the money to comply, and now 
you are saying it is speculation to find out if you are going 
to--this is a simple thing that if your desire is to comply 
with the courts and you are legally bound to do so by law and 
you don't have the money to do it, I would hope that that is 
already in the works to say we are going to need more money to 
move forward on this and comply with the law. Do you have to 
hesitate on that?
    Mr. Lyons. I would give you essentially the same response, 
sir. It is just simply premature at this stage of the process 
to speculate what will be required of the Department or to 
commit to any course of action.
    Mr. Murphy. I appreciate the note you have been handed but 
I am asking you this is----
    Mr. Shimkus. The gentleman's time is expired.
    The chair now recognizes the gentlelady from California for 
5 minutes.
    Ms. Capps. I thank you, Mr. Chairman.
    And thank you to our witnesses today for your testimony and 
for being here.
    Nuclear fuel storage obviously is an important issue, and 
for communities with nuclear power plants, it is a very local 
issue. That is the case with my district. I represent San Luis 
Obispo, California, which is home to Diablo Canyon nuclear 
power plant.
    Before I get to fuel storage, I wanted to follow up on an 
issue I raised with you, Chairwoman Macfarlane, last time you 
testified and that is the topic of seismic safety. We are 
seeing fresh reminders from Fukushima of just how devastating 
an earthquake can be if we are not fully prepared. And as you 
know, Diablo Canyon sits on both the Hosgri and the recently 
discovered shoreline faults. Last February, I asked you about a 
peer-reviewed study by Dr. Jeanne Harderbeck that concludes an 
earthquake much larger than current NRC estimates is possible 
along these very fault lines. I asked whether or not NRC is 
incorporating Dr. Harderbeck's findings into its safety 
standards for Diablo Canyon. Your written response states ``the 
NRC staff believes that the views expressed by Dr. Harderbeck's 
paper will be fully considered by the experts involved in the 
seismic hazard reevaluation process.''
    So my question is, to give you an opportunity right now to 
update us on whether the NRC is taking any additional actions 
to address the concerns raised in this report.
    Ms. Macfarlane. So I believe that Dr. Harderbeck presented 
at the second Seismic Hazard Workshop that happened this past 
year, and her theories on the shoreline fault activity rate, 
the geometry, the fault geometry will be included in the 
overall seismic hazard characterization model.
    Mrs. Capps. Does it involve any changes or concrete 
actions?
    Ms. Macfarlane. Well, we will see the results of the model 
at the next workshop, which I believe is coming up in the 
spring.
    Mrs. Capps. OK. So we can expect a follow-up----
    Ms. Macfarlane. Yes.
    Mrs. Capps [continuing]. Report after that time?
    Ms. Macfarlane. Yes.
    Mrs. Capps. We will stay in touch with you on that and I 
appreciate that answer very much.
    And now to the topic at hand today, fuel storage, given our 
inability to implement a permanent solution, my constituents 
are very concerned about Diablo Canyon becoming a de facto 
permanent storage site. I am sure other facilities around the 
country may have the same concerns. I have been pleased to see 
more spent fuel being moved into dry cask storage at Diablo 
Canyon and also across the country, but these casks are really 
not permanent solutions.
    A few weeks ago I asked Secretary Moniz about this and he 
said the casks are safe for about 100 years. Chairwoman 
Macfarlane, do you agree with this estimate?
    Ms. Macfarlane. Well, we are actively trying to understand 
aging issues that are associated with casks. This is an 
important area of research for us at the Nuclear Regulatory 
Commission.
    Mrs. Capps. So you don't want to comment on his estimate of 
100 years?
    Ms. Macfarlane. We license the casks for 20 years and we 
have given a 20-year extension. We will continue to see if 
further extensions are warranted.
    Mrs. Capps. Obviously, spent fuel has got to be safely 
stored for much longer than 20 years, even if it is 
reauthorized, and longer than 100 years. My follow-up question 
then to you is has the NRC evaluated onsite storage solutions 
that can safely store fuel for longer than 100 years? Because 
this to me is such a pressing issue for my constituents but it 
certainly isn't limited to my constituents.
    Ms. Macfarlane. We are certainly looking at the issues of 
longer-term storage both in the casks and in the spent fuel 
pools, so this is an area that we are actively considering.
    Mrs. Capps. I appreciate that. Well, I firmly support 
finding a permanent solution, but I really think it is critical 
that we have a backup plan. And can you tell me if there is one 
of those in the works?
    Ms. Macfarlane. A backup plan for--that is a policy issue 
and I defer to Congress to develop that policy issue.
    Mrs. Capps. Well, then I defer to the chairman of this 
committee that that is something that we want to consider in 
the nature of our--and to our ranking member as well to the 
nature of our task that permanent storage is a huge issue with 
nuclear energy.
    Mr. Shimkus. Yes, and if the gentlelady would yield, we 
currently have a law to deal with that and we are just trying 
to enforce the administration to comply with the law.
    Mrs. Capps. All right. I yield back.
    Mr. Shimkus. The gentlelady yields back.
    The chair now recognizes the gentleman from Mississippi, 
Mr. Harper, for 5 minutes.
    Mr. Harper. Thank you, Mr. Chairman.
    And I thank each of you for being here today.
    And, Chairman Macfarlane, you just said regarding a backup 
plan you said I defer to Congress for that issue, but didn't 
Congress set the law that has been ignored that is the source 
of the opinion that was just handed down in August? And so we 
have that, yes, you say that but we have dealt with another 
experience through this.
    But I wanted to ask you some questions if I could. And I 
understand, Chairman Macfarlane, that several parties have 
signed a motion questioning your impartiality and requesting 
your recusal and that you decided I believe last night not to 
recuse yourself. Considering the motion for your recusal was 
pending at the time, I want to know did you participate in the 
Commission's order for the parties to submit comments by 
September the 30th?
    Ms. Macfarlane. I did take part in that and that was a 
ministerial issue.
    Mr. Harper. Do you know Angela Coggins, the former 
chairman's policy director and chief of staff?
    Ms. Macfarlane. No, I do not. I have never met her.
    Mr. Harper. Are you familiar with her role in the closure 
of the license review as described in the NRC Inspector 
General's report dated June 6, 2011?
    Ms. Macfarlane. No, I am not.
    Mr. Harper. But you do know now that she is working in the 
high-level waste section of the general counsel's office?
    Ms. Macfarlane. No, I did not know that.
    Mr. Harper. Well, those are things you might want to take a 
look at and I would encourage you to do that.
    And I would ask, too, that you review her past actions and 
review that IG report, look at her current role, and then 
answer back to us if you could let us know, given her past 
actions on this issue and her ability to influence future 
actions given her position, don't you think this contributes to 
the appearance that you are unable to be impartial? And I would 
like for you to answer that question and submit that in writing 
back to the committee after you have had a chance to review 
that and determine the position and history of Angela Coggins.
    Chairwoman Macfarlane, as the IG indicated in his report, 
the former chairman believed that stalling the public release 
of the SER volumes was within his responsibility to manage the 
staff. Do you believe that conforms to your responsibility as 
chairman to uphold the President's commitments for transparency 
and open government?
    Ms. Macfarlane. I am sorry. Could you repeat the question?
    Mr. Harper. Certainly. As the IG indicated in his report, 
your former chairman believed that stalling the public release 
of the SER volumes was within his responsibility to manage the 
staff. Do you believe that conforms to your responsibility as 
chairman to uphold the President's commitments for transparency 
and open government?
    Ms. Macfarlane. I can't comment on the actions of my 
predecessor.
    Mr. Harper. You are not aware of the history and the 
actions and the history of your agency?
    Ms. Macfarlane. I am not aware of the details of what 
occurred to do with Yucca Mountain before I--
    Mr. Harper. Are you not aware of the IG report?
    Ms. Macfarlane. I am aware that it exists but I have not 
read it.
    Mr. Harper. OK. And you have been in your role for how 
long?
    Ms. Macfarlane. For a year and 2 months.
    Mr. Harper. Wouldn't you think that during the course of 
the year and 2 months and hopefully by the time you have been 
there a year and 3 months that reading your IG report would be 
something that would be very important?
    Ms. Macfarlane. It is certainly an important issue. We have 
a large mission at the Nuclear Regulatory Commission to oversee 
the safety and security of over 100 reactors and over 20,000 
materials licensees. We have quite a bit on our plate. And 
until August 13, Yucca Mountain was not an active issue.
    Mr. Harper. Well, it was an active issue under the laws of 
this country, but your agency chose to ignore Congress even 
though you have said here today that you defer to Congress for 
a policy issue. There was a set law and you ignored that, did 
you not? Not you personally but your agency, and certainly now 
you have had it for a year and 2 months. But wouldn't an IG 
report be something that would be very important to be aware of 
in your role to make sure that you don't fall into any of those 
problems in the future?
    Ms. Macfarlane. Let me assure you this, that all decisions 
on the matter of Yucca Mountain will be full commission 
decisions and we will act collegially. I think my record shows 
we have acted over the last year and 2 months very collegially 
on all issues, and that is how we will work moving forward.
    Mr. Harper. But your agency unilaterally decided to ignore 
the law in this country, and now because the court has finally 
recognized that the executive authority has overstepped their 
bounds that we are now back trying to take care of something 
that should have long been done before. And I hope you 
understand our frustration. We want your agency to succeed. We 
want this to work for our country. And we urge you to continue 
to look at this and this concern that we have.
    And I yield back.
    Mr. Shimkus. The gentleman yields back his time.
    The chair now recognizes the gentleman from Florida, Mr. 
Bilirakis, for 5 minutes.
    Mr. Bilirakis. Thank you very much, Mr. Chairman. I 
appreciate it. Thanks for calling this hearing.
    The administration's shutdown of the Yucca Mountain program 
in 2010--again, they shut it down--the ramifications of that 
shutdown are still reverberating. In a decision last year 
remanding the NRC's Waste Confidence Rule, the DC court 
observed ``at this time there is not even a prospective site 
for repository, let alone progress toward the actual 
construction of one. The lack of progress on a permanent 
repository has caused considerable uncertainty regarding the 
environmental effects of temporary spent nuclear fuel storage 
and the reasonableness of continuing to license and relicense 
nuclear reactors.'' So the administration's actions to shut 
down the Yucca Mountain program have caused a Federal court 
order to question the reasonableness of licensing nuclear 
plants.
    Dr. Lyons, if the administration really supported nuclear 
energy, wouldn't it want to reconstitute the Yucca Mountain 
program? Shouldn't they reconstitute the Yucca Mountain 
program, Dr. Lyons? Isn't it a demonstration that the Federal 
Government's will to follow the law the surest way to restore 
the waste confidence and provide a solid basis for the NRC to 
license? If you can answer that question.
    Mr. Lyons. Thank you for your question. I noted in my 
testimony that we are already as a Nation 20 years past the 
anticipated opening of Yucca Mountain. We are at an impasse. 
The administration's approach is to try to work towards a 
workable solution that can move us past the impasse, and yes, 
support nuclear power by providing a consent-based approach to 
move ahead on this vital issue of the back end of the fuel 
cycle.
    Mr. Bilirakis. Would you like to comment as well?
    Ms. Macfarlane. Would I like----
    Mr. Bilirakis. Yes, please.
    Ms. Macfarlane. I didn't hear you. Not at this time.
    Mr. Shimkus. Would the gentleman yield?
    Mr. Bilirakis. Yes.
    Mr. Shimkus. The real question is because of the delay and 
the stopping of Yucca Mountain, the Waste Confidence Rule for 
interim storage has been attacked and is causing problems in 
local storage areas because we don't have a location. So now 
the Waste Confidence Rule is up for litigation or review, which 
continues to cause additional problems. Isn't that correct?
    Ms. Macfarlane. No, they have nothing to do with each other 
right now.
    Mr. Shimkus. They do have by the ruling and the statements 
Mr. Bilirakis just stated. The Waste Confidence Rule was 
predicated on a long-term geological storage.
    Ms. Macfarlane. Um-hum.
    Mr. Shimkus. When you walk away from a long-term geological 
storage, you upset the whole Waste Confidence Rule. So I find 
it incredulous that you would say they have nothing to do with 
each other.
    Ms. Macfarlane. Well, I say that simply because the court 
that ruled on the waste confidence decision required us to 
consider the case where there is no repository. And----
    Mr. Shimkus. And there is no repository because the 
administration has broken the law to not proceed.
    Ms. Macfarlane. I can't comment on that.
    Mr. Shimkus. But I can and Mr. Lyons can. Is that why?
    Mr. Lyons. As we have testified repeatedly, sir, our 
general counsel supported, endorsed our ability to withdraw the 
license back in that----
    Mr. Shimkus. So you are blaming your general counsel for 
making a ruling that you could break the law that upset the 
court on the Waste Confidence Rule?
    Mr. Lyons. And our focus is on finding a workable solution 
that can move this country forward.
    Mr. Shimkus. And I apologize if I take my colleague's time. 
Where is the only vote from a legislative body on the floor of 
either chamber that talks about a bipartisan movement, Mr. 
Lyons?
    Mr. Lyons. Again, sir, we are trying to find a workable----
    Mr. Shimkus. You talk bipartisanship, 4 to 1 by this 
chamber in the House 3 consecutive years in a row in supporting 
Yucca Mountain. So that is where the bipartisan agreement is 
and it is about time that the administration started following 
it.
    I yield back to Mr. Bilirakis.
    Mr. Bilirakis. One last question for Dr. Lyons. Do you 
believe that the science done by our national labs in support 
of Yucca Mountain license application was sound?
    Mr. Lyons. Yes.
    Mr. Bilirakis. Thank you.
    I yield back, Mr. Chairman.
    Mr. Shimkus. The gentleman yields back time.
    The chair now recognizes the gentleman from Ohio, Mr. 
Johnson, for 5 minutes.
    Mr. Johnson. I thank you, Mr. Chairman. You know, I want to 
make a couple of comments before I start.
    Dr. Macfarlane, you made the statement in your testimony 
several times this morning--you qualified your answers with 
``you must understand something.'' I hope that you understand 
something and that you have seen the resolve of this committee 
to hold your agency accountable to the American people and to 
the laws that have been duly passed by this Congress. We have 
multiple ways of doing that. It doesn't just involve hearings. 
So I hope you understand the seriousness with which we are 
approaching these issues.
    Dr. Lyons, in your testimony you said maybe someone on our 
side has a mechanism for restoring those lost funds. You used 
the phrase ``on your side.'' We are supposed to be on the same 
side. It is the side of the American people. And the way this 
system works is that Congress passes laws and the 
administration implements the law, not sidestep the law, not 
avoid the law, not remake the law, but comply with the law.
    So I hope both of you understand that it doesn't stop here 
today. We are going to hold you accountable. I hope that is 
clear.
    Dr. Lyons, the NRC is committed to provide this committee 
with a monthly report detailing their actions and expenditures 
to comply with the court's decision. Will you make that same 
commitment to provide us with a monthly report on DOE's actions 
and expenditures as the applicant in support of the license 
review?
    Mr. Lyons. We will be happy to commit to provide you with 
regular reports as there are events that lead to----
    Mr. Johnson. A monthly report. I asked about a monthly 
report detailing the actions. Are you willing to provide us 
with a monthly report on the Department of Energy's actions and 
expenditures?
    Mr. Lyons. If you wish it monthly----
    Mr. Johnson. A monthly report----
    Mr. Lyons. Yes, sir. We will do it monthly----
    Mr. Johnson. OK.
    Mr. Lyons. Our suggestion is doing it when there are 
changes----
    Mr. Johnson. Well, no, I want a monthly report. This 
committee wants a monthly report just like we are going to get 
from the NRC. Can you commit to that?
    Mr. Lyons. Yes, sir.
    Mr. Johnson. OK. Thank you.
    Initially, as the applicant, DOE advocated in favor of NRC 
granting construction authorization for a repository at Yucca 
Mountain. Later, DOE attempted to withdraw the application in 
such a way as to prevent the NRC from ever considering the 
Yucca Mountain in the future. In July when testifying before 
this committee, Secretary Moniz was asked if DOE would honor 
the court decision, and he indicated that DOE would follow the 
law.
    So, Dr. Lyons, now that the court has decided and the law 
is clear, will DOE as the applicant in this proceeding once 
again advocate in favor of NRC granting construction 
authorization?
    Mr. Lyons. Our path forward remains under evaluation. It 
depends on----
    Mr. Johnson. No, no, that wasn't the question. I am not 
asking you about the evaluation. I am asking you about what Dr. 
Moniz, what he said, was Secretary Moniz said, that DOE would 
follow the law. And so now I am asking you a very simple 
question. Now that the court has decided and the law is clear, 
will DOE as the applicant in the proceeding once again advocate 
in favor of NRC granting construction authorization? Will you 
follow the law?
    Mr. Lyons. We will certainly commit to following the law 
but----
    Mr. Johnson. Great. That is what I needed to know.
    Mr. Lyons [continuing]. It is premature to say what the 
exact path will be.
    Mr. Johnson. Next question. I would like to follow up on 
some questions that I posed to Secretary Moniz in July. In your 
July 22 response to Chairman Shimkus, you noted that DOE's 2014 
budget request money from the Nuclear Waste Fund to support 
storage and transportation activities for locations other than 
Yucca Mountain. Dr. Lyons, given the court's order, do you 
still believe that DOE is authorized to spend Nuclear Waste 
Fund money for purposes other than Yucca Mountain?
    Mr. Lyons. My response in that letter very carefully 
distinguished between generic R&D which continues to be our 
focus which is nonstop----
    Mr. Johnson. I am talking transportation activities. Let me 
repeat the question because it must not have been clear. You 
requested budget request from the Nuclear Waste Fund to support 
storage and transportation activities for locations other than 
Yucca Mountain. Given the court's order, do you still believe 
that DOE is authorized to spend Nuclear Waste Fund money for 
purposes other than Yucca Mountain, transportation activities, 
et cetera?
    Mr. Lyons. Since this is a----
    Mr. Johnson. Take your note because I think your guy back 
there in the back has got the answer for you. I think the 
answer is you should comply with the law, right?
    Mr. Lyons. Anything that we are doing on transportation at 
this point is location-neutral. On the specifics of exactly 
which----
    Mr. Johnson. If it is providing locations for any place 
other than Yucca Mountain, it is not location-neutral. And that 
is not the purpose of the Nuclear Waste Fund, Dr. Lyons. So 
given the court order, is it still your belief that DOE is 
authorized to spend Nuclear Waste Fund money for purposes other 
than Yucca Mountain? Because you and I both know what the law 
says.
    Mr. Lyons. Nuclear Waste Fund money will be spent on Titles 
I and II of the Nuclear Waste Policy Act. I will rely on 
general counsel as to exactly what falls within that category.
    Mr. Johnson. Clearly, I am not going to get a straight 
answer, Mr. Chairman. I yield back.
    Mr. Shimkus. The gentleman's time is expired.
    And we can pause and we are done. So we want to thank the 
panel for being here. I have to thank you. This is a tough 
issue. There are emotions rampant on both sides. We do 
appreciate you putting up with us, but you will see us again, I 
am sure.
    In conclusion, I would like to thank again you all for 
being here and the Members who participated and remind my 
colleagues that they have 10 business days to submit questions 
for the record. And I ask the witnesses all to agree to respond 
as promptly as possible to all questions.
    And with that, the hearing is adjourned.
    [Whereupon, at 12:00 p.m., the subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]

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