Senate Report 107-159 - APPROVAL OF YUCCA MOUNTAIN SITE

[Senate Report 107-159]
[From the U.S. Government Publishing Office]

Calendar No. 412
107th Congress Report
SENATE
2d Session 107-159

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APPROVAL OF YUCCA MOUNTAIN SITE

_______

June 10, 2002.--Ordered to be printed

_______

Mr. Bingaman, from the Committee on Energy and Natural Resources,
submitted the following

R E P O R T

[To accompany S.J. Res. 34]

The Committee on Energy and Natural Resources, to which was
referred the joint resolution (S.J. Res. 34) approving the site
at Yucca Mountain, Nevada, for the development of a repository
for the disposal of high-level radioactive waste and spent
nuclear fuel, pursuant to the Nuclear Waste Policy Act of 1982,
having considered the same, reports favorably thereon without
amendment and recommends that the joint resolution do pass.

purpose of the measure

The purpose of S.J. Res. 34 is to approve the site at Yucca
Mountain, Nevada for the development of a repository for the
disposal of high-level radioactive waste and spent nuclear fuel
pursuant to the Nuclear Waste Policy Act of 1982. Timely
enactment of S.J. Res 34 will allow the Secretary of Energy to
apply to the Nuclear Regulatory Commission for a license to
build a repository at Yucca Mountain. Failure to enact the
resolution within the 90-day period prescribed by the Act, on
the other hand, will terminate the repository program
established by the Act.

BACKGROUND AND NEED

Congress passed the Nuclear Waste Policy Act of 1982 to
provide for the timely siting, construction, and operation of
an underground repository for the permanent disposal of the
nation's high-level radioactive waste and spent nuclear fuel.
As used in the Act, the term ``high-level radioactive waste''
refers to the mixture of caustic chemicals and highly
radioactive waste products that remain after uranium and
plutonium have been chemically removed from spent nuclear fuel.
Spent nuclear fuel refers to irradiated nuclear fuel that has
been withdrawn from a nuclear reactor, but has not been
``reprocessed'' to separate and remove the uranium and
plutonium from the waste products.

Sources and Volumes

The United States has been generating spent nuclear fuel
and high-level radioactive waste since scientists discovered,
six decades ago, that, when bombarded by neutrons in a nuclear
reactor, some uranium atoms are transformed into a new element,
plutonium, while others are split apart, producing highly
radioactive waste products, radiation, and heat.
During the Second World War, the Army's Manhattan Engineer
District built the Nation's first nuclear reactors at Hanford,
Washington, for the purpose of producing plutonium. The Army
began extracting plutonium from spent uranium fuel discharged
from the first of these reactors in the final days of 1944. The
plutonium was sent to Los Alamos, New Mexico, where it was
fashioned into the atomic bomb that was tested at the
Alamogordo air base on July 16, 1945, and the one that
destroyed Nagasaki, Japan on August 9, 1945. The mixture of
caustic chemicals and highly radioactive waste products that
remained after the plutonium was removed was poured into a
steel tank, near the Columbia River, until a better solution
could be found.
The Federal Government, acting through the Army (1944-
1946), the Atomic Energy Commission (1947-1974), the Energy
Research and Development Administration (1975-1977), and the
Department of Energy (1977-1988), continued to produce
plutonium for nuclear weapons at Hanford, Washington and at
Savannah River, South Carolina, for the next 44 years. The
high-level radioactive waste resulting from the Government's
plutonium production efforts at these two sites and, to a
lesser extent, the recovery of uranium from spent fuel at the
Idaho NationalEngineering and Environmental Laboratory in
Idaho, is still stored in metal tanks at the three sites. These tanks
were not designed to last forever. One of the oldest of the Hanford
tanks began leaking in 1958 and 15 were leaking by 1973. There are
about 100 million gallons of these wastes in tanks awaiting permanent
disposal.
The Federal Government is also responsible for disposing of
spent nuclear fuel from civilian nuclear power plants. The
Government began encouraging electric utility companies to
build nuclear power plants to produce electricity from uranium
fuel in 1954. The first of these plants began operating at
Shippingport, Pennsylvania in 1957. A total of 118 have been
built, of which 104, at 72 sites 33 States, remain in
operation. These plants have generated an estimated 45,000 tons
of spent nuclear fuel and continue to generate another 2,000
tons every year.
Initially, both Federal policy makers and electric utility
officials assumed that spent nuclear fuel from civilian nuclear
power plants would be reprocessed to recover recyclable uranium
and plutonium. By 1976, however, three separate attempts by
private companies to build commercial plants to reprocess
civilian nuclear power plant fuel had ended in failure. Both
President Ford and President Carter opposed commercial
reprocessing because of the nuclear proliferation risk it
posed. President Reagan tried, unsuccessfully, to rekindle
commercial interest in reprocessing, but unfavorable economics
discouraged any further attempts to build a commercial
reprocessing plan in this country.
In place of reprocessing, in 1980, President Carter
proposed a comprehensive national program to dispose of
unreprocessed commercial spent nuclear fuel in ``mined geologic
repositories.'' Congress ultimately adopted this approach in
the Nuclear Waste Policy Act of 1982. The Act required the
Secretary of Energy to sign contracts with electric utility
companies obligating the Government to take title to their
spent nuclear fuel and to begin disposing of it in a geologic
repository by January 31, 1998 in return for the payment of
fees. The courts have since held that the contracts created a
binding legal obligation on the Federal Government to dispose
of the utilities' spent nuclear fuel.
In addition to commercial spent nuclear fuel, the
Department of Energy stores about 2,500 metric tons of
unreprocessed spent nuclear fuel from its plutonium production
reactors, naval propulsion reactors, and foreign and domestic
research reactors at Hanford, Savannah River, and the Idaho
National Engineering and Environmental Laboratory.

The Search for a Solution

From the beginning of the nuclear weapons program,
scientists and policy makers knew that tank storage of high-
level radioactive waste was only a temporary solution, but they
did not regard finding a permanent solution as an urgent
necessity. In 1957, the National Academy of Sciences assured
the Atomic Energy Commission that ``radioactive waste can be
disposed of safely in a variety of ways and at a large number
of sites in the United States.'' Following the Academy's
pronouncement, as Representatives Morris K. Udall later
observed, ``an opiate of confidence'' descended upon Federal
policy makers and rendered them ``apathetic towards
addressing'' the serious technical, social, and political
difficulties that finding a permanent solution to the nation's
nuclear waste problem involves.
After more than 30 years of indecision and missteps,
President Carter finally proposed a comprehensive and
methodical approach to solving the problem in 1980. President
Carter called for ``an expanded and diversified program'' aimed
at ``locating and characterizing a number of potential
repository sites in a variety of different geologic
environments with diverse rock types.'' After four or five
sites had been thoroughly studied and found potentially
suitable, one or more would be selected for development as a
repository.
By 1982, a solid consensus had emerged around the major
elements of the approach broadly outlined by President Carter
and, in the words of the committee report on the House bill,
``on the need for legislation to solidify a program and keep it
on track.'' This consensus led to the passage of the Nuclear
Waste Policy Act of 1982 in December of that year. President
Reagan called the Act ``a milestone for progress and the
ability of our democratic system to resolve a sophisticated and
divisive issue'' when he signed it into law the following
January.
As originally enacted, the Nuclear Waste Policy Act
entrusted the Secretary of Energy with the task of choosing
sites for the development of two deep geologic repositories for
the permanent disposal of spent nuclear fuel and high-level
radioactive waste. To do this, the Act first required the
Secretary of Energy to nominate at least five sites that he
determined to be suitable for further examination, to evaluate
them against general siting guidelines, and then to recommend
three of the five to the President for more extensive
examination of their geology.
In 1986, the Secretary selected Yucca Mountain as one of
the three candidate sites for the first repository and ranked
it as the most promising of the five nominated sites. In 1987,
however, before the Secretary could characterize any of the
three sites, Congress amended the Act to streamline the site
selection program. Faced with mounting public opposition to the
site selection process and the rapidly rising estimates of the
cost of studying more than one site, Congress directed the
Secretary to focus his siting efforts on Yucca Mountain alone,
barred further consideration of the other two sites, and
terminated the second repository program.
The Nuclear Waste Policy Act, amended in 1987, still
required the Secretary of Energy to carry out ``appropriate
site characterization activities'' at Yucca Mountain to
determine if the site is suitable for the development of a
repository. Based upon the extensive body of scientific
information about Yucca Mountain collected during the site
characterization process and the years leading up to the formal
characterization process, the Secretary decided that the site
is suitable and, on February 14, 2002, recommended the site to
the President. On the following day, the President determined
that the Yucca Mountain site is ``qualified for application for
a construction authorization for a repository,'' and
recommended the site to Congress.

The Need for a Repository

A geologic repository is needed to isolate high-level
radioactive waste and spent nuclear fuel from the public and
the environment. Given adequate resources and vigilance, these
wastes could, of course, continue to be stored above ground, as
they have been over the past 58 years, in metal tanks, concrete
pools, and metal canisters. But surface storage methods require
constant monitoring and ongoing maintenance to ensure their
integrity. Continued reliance on such methods would shift the
burden of perpetual maintenance to future generations. The
final environmental impact statement on the Yucca Mountain
project notes that permanent at-reactor storage would require
complete replacement of the storage canisters every 100 years
or they will ``eventually release radioactive materials to the
environment, contaminating the atmosphere, soil, surface water,
and groundwater. * * *'' As the National Academy of Sciences
concluded last year, ``After four decades of study, geological
disposal remains the only scientific and technically credible
long-term solution available to meet the need for safety
without reliance on active management.''

The Governor's Veto and the Need for the Resolution

The Nuclear Waste Policy Act provides that, once the
Secretary of Energy recommends the Yucca Mountain site to the
President, and the President recommends it to Congress, the
Governor of Nevada has the opportunity to submit a ``notice of
disapproval'' to Congress, along with ``a statement of reasons
explaining why'' he objects to the recommended site. On April
8, the Governor of Nevada exercised this authority and
submitted a notice of disapproval and statement of reasons.
Under the terms of the Nuclear Waste Policy Act, the
Governor's notice will have the effect of terminating further
consideration of the Yucca Mountain site for the repository
unless both Houses of Congress pass, and the President signs
into law, a joint resolution approving the site within 90 days
of continuous session after the notice of disapproval was
received. The House of Representatives passed such a resolution
on May 8, 2002. If the Senate fails to pass the resolution by
the statutory deadline (estimated to fall on or about July 25),
the Governor's veto of the President's site recommendation will
stand, and the Secretary will be barred from applying to the
Nuclear Regulatory Commission for a license to build the
repository at Yucca Mountain. The Nuclear Waste Policy Act does
not permit the Secretary to consider sites other than Yucca
Mountain. If the Senate fails to act and thereby sustains the
Governor's veto, the 45,000 metric tons of commercial spent
nuclear fuel, the 2,500 metric tons of spent nuclear fuel from
naval, research and production reactors, and the 100 million
gallons of high-level radioactive defense waste will remain
where they are now stored indefinitely.

LEGISLATIVE HISTORY

S.J. Res. 34 is rooted in section 115 of the Nuclear Waste
Policy Act of 1982, which prescribes its text and the rules for
its consideration by the Senate. It was introduced by Senator
Bingaman (by request) on April 9 in accordance with section
115(d)(2)(A) of the Act and referred to the Committee on Energy
and Natural Resources on the same day in accordance with
section 115(d)(2)(B).
The Committee held three days of hearings on the resolution
to approve the President's site recommendation. On May 16,
2002, the Secretary of Energy testified in support of the
resolution and the President's recommendation. The Committee
invited the Governor of Nevada to testify in opposition to the
President's recommendation, but the Governor was unable to
attend. A panel of witnesses chosen by the two Senators from
Nevada to represent the views of the State from Nevada
testified in the Governor's place on May 22 and an additional
witness represented Nevada's views on May 23. The Nuclear
Regulatory Commission, the Chairman of the Nuclear Waste
Technical Review Board, the Assistant Secretary for Air and
Radiation of the Environmental Protection Agency, and the
Director of the Natural Resources and Environment Team of the
General Accounting Office also testified on May 23.
Representative Tauzin introduced an identical measure (H.J.
Res. 87) in the House of Representatives on April 11, 2002. It
was ordered reported by the Committee on Energy and Commerce on
April 25, 2002 by a vote of 41 to 6 (H. Rept. 107-425). The
House of Representatives passed H.J. Res. 87 on May 8, 2002 by
a vote of 306 to 117. H.J. Res. 87 was received in the Senate
and placed on the Calendar (Calendar No. 368) on May 9, 2002
pursuant to section 115(d)(5)(A) of the Nuclear Waste Policy
Act of 1982.
The Committee on Energy and Natural Resources considered
S.J. Res. 34 at its business meeting on June 5, 2002.

COMMITTEE CONSIDERATION

Based upon our understanding of the purpose of the State
veto provisions of the Nuclear Waste Policy Act and the intent
of the framers of the Act, we view the Committee's fourfold:

(A) to review the Governor's statement of reasons and
supporting testimony and documents to determine if the
Governor has raised an objection sufficient to
eliminate Yucca Mountain from consideration or warrant
terminating the repository program at this point;
(B) to review the President and Secretary's site
recommendation and supporting testimony and documents
to determine if the Administration has made a case for
allowing the program to go forward to the next step--
applying to the Nuclear Regulatory Commission for
authorization to construct the repository;
(C) to determine whether proceeding with the
repository program over the objections of the State is
in the national interest; and, finally,
(D) to determine whether to recommend that the Senate
pass the resolution approving the President's site
recommendation.

A. The Governor's Objections

The statement of reasons accompanying the Governor of
Nevada's notice of disapproval of the President's site
recommendation states that the recommendation is ``based on bad
science, bad law, and bad public policy.''
Under the heading of science, the Governor asserts that:
(1) Yucca Mountain is ``geologically unfit'' to isolate nuclear
waste; (2) the repository's design relies too heavily on
engineered barriers to contain radionuclides; (3) the computer
models assessing the repository's performance are too
uncertain; and (4) the design of the repository is still
unfinished.
Under the heading of law, the Governor notes that the State
of Nevada has filed several lawsuits against the Department of
Energy (DOE), the Environmental Protection Agency (EPA), and
the Nuclear Regulatory Commission (NRC) over various aspects of
the repository program. The only legal argument he develops
before the Committee is (5) that the DOE changed its site
suitability guidelines because, he says, Yucca Mountain could
not meet the original ones.
Under the heading of policy, the Governor argues that: (6)
the repository will not eliminate the need to store nuclear
waste at other sites; (7) shipping nuclear waste to Yucca
Mountain will pose serious transportation risks; and (8)
leaving nuclear waste where it is now stored is a preferable
alternative.
In a statement filed for the record after the Committee
completed its hearings, the Governor raises two new objections.
They are: (9) that an international peer review of the Yucca
Mountain project has found that ``DOE lacks sufficient
information * * * to predict the suitability and hydrogeologic
performance of the proposed repository''; and (10) that the NRC
will not examine or determine the geologic suitability of Yucca
Mountain in its licensing proceeding.
The Committee considers each of these ten issues in turn.
1. The Geology of the Site
The Governor asserts that Yucca Mountain is ``geologically
unfit'' for the repository because it ``appears to be at the
center of one of the most potentially active volcanic areas in
the West,'' it ``sits dead-center in one of the largest
earthquake vault zones east of California,'' and it is ``porous
to water,'' with ``rapid groundwater flow * * * more than 100
times greater than was expected.''
The Secretary of Energy paints an entirely different
picture of Yucca Mountain. He describes the site as
``geologically stable, in a closed groundwater basin, isolated
on thousands of acres of Federal land,'' far from any
metropolitan area. He further says the site is ``in the middle
of a desert,'' with little rainfall, most of which evaporates,
and little groundwater flow.
The Secretary's view finds substantial support in the views
of the United States Geological Survey (USGS). In a letter in
the record before the Committee, the Director of the USGS, Dr.
Charles Groat, states that ``the USGS believes that the
scientific work performed to date supports a decision to
recommend Yucca Mountain for development as a nuclear waste
repository.'' Dr. Groat lists the site's ``arid climate; the
very low rate of infiltration of precipitation into the
subsurface; the small percentage of infiltrating water that
could actually seep into'' the repository; and the great
distance to the water table as some of the many ``inherent
natural attributes of the site.'' While acknowledging the
possibility of earthquakes and volcanic eruptions, Dr. Groat
says that ``the USGS has confidence in the probabilistic
earthquake hazard analyses upon which'' the repository's design
will be based, and that the USGS believes that ``the
probability of a repository-piercing'' volcanic eruption ``is
very low.''
Dr. Groat states that the USGS has found ``no feature or
characteristic of the site that would preclude recommending''
it. That view is echoed by the Chairman of the Nuclear Waste
Technical Review Board, who testified that ``no individual
technical or scientific factor has been identified that would
automatically eliminate Yucca Mountain from consideration at
this point.'' Based on the weight of expert opinion before it,
the Committee cannot conclude that the Yucca Mountain site is
geologically unsuitable for development of the repository.
2. Reliance on Engineered Barriers
The Governor claims that the geology of Yucca Mountain is
so bad that DOE has had to abandon ``the very concept of
geologic isolation'' and resort to ``a series of fancy
engineered waste packages'' and a ``tangled web of man-made
contrivances * * * to compensate for the stunning geological
surprises at Yucca Mountain.''
The Secretary of Energy firmly rejected these
characterizations in his appearance before the Committee and
testified that the concept of deep geologic disposal has always
contemplated a combination of natural, geologic barriers and
engineered barriers. In addition, his written recommendation to
the President explains that the natural barrier provided by the
geology ofYucca Mountain will, most likely, prevent water from
reaching the waste and transporting radionuclides out of the repository
and into contact with people. Even if it does not, the Secretary
contends, the combination of engineered barriers afforded by the
proposed titanium drip shields, the corrosion-resistant waste packages,
and the waste form itself (metal-clad ceramic pellets in the case of
spent nuclear fuel and glass in the case of high-level radioactive
waste) will prevent the escape of radionuclides. Moreover, the
Secretary states that even assuming the failure of all of these
barriers the annual dose to the public will still meet the radiation
protection standards set by the EPA and the NRC.
The Committee agrees with the Secretary that the concept of
deep geologic disposal has always contemplated reliance on a
combination of geologic and engineered barriers to ensure the
safe containment radionuclides in a repository. (See H. Rept.
97-491, part 1, at 30.) The Nuclear Waste Policy Act not only
allows but requires the Secretary to consider engineered
barriers, including the form and packaging of the nuclear
waste, in making his site recommendation to the President. (42
U.S.C. 10134(a)(1)(B).) The NRC's licensing rule requires the
repository to include ``both natural barriers and an engineered
barrier system.'' (10 C.F.R. 63.113(a).)
Whether the combination of natural and engineered barriers
proposed by the Secretary will meet the licensing requirements
of the NRC will ultimately be for the Commission, rather than
this Committee, to decide. But the Committee believes that the
Secretary's reliance on a combination of natural and engineered
barriers is both permissible and appropriate.
3. Computer Models
The Governor asserts that ``DOE's computer models of Yucca
Mountain repository performance and radiation emissions
currently have an uncertainty factor of up to 10,000.''
The quality of DOE's computer models is a serious concern
because the NRC's licensing decision must ultimately depend
upon them. DOE must show the Commission that the repository
will meet EPA's radiation protection standards for 10,000
years. Absolute proof of the repository's ability to comply is,
as the NRC, EPA, and the Technical Review Board agree,
unattainable. Compliance with the NRC's licensing standards
will only be demonstrated through complex computer models of
the repository's future performance supported by the limited
data that is available.
Although some measure of uncertainty is inevitable in this
approach, the Committee is concerned that DOE's performance
assessment models may not provide enough assurance to support
the NRC's licensing decision. The Chairman of the Nuclear Waste
Technical Review Board testified that ``the technical basis for
the DOE's repository performance estimates is weak to moderate
at this time,'' and that ``the Board has limited confidence in
current performance estimates generated by the DOE's
performance assessment model.'' At the same time, Dr. Cohon
testified that the Board has identified several ways DOE can
improve its performance assessments and that DOE has made
progress in these areas. He also said that the Board's view
``would likely improve'' if DOE implements all of the Board's
recommendations.
The Committee takes the Board's criticisms very seriously.
They serve notice that DOE must improve the quality of its
performance assessment models or run the risk of not being able
to sustain its burden of proof in an NRC licensing proceeding.
Nonetheless, we do not believe, and we do not read the Board's
testimony as suggesting, that the current weaknesses in DOE's
performance assessment models warrant disapproval of the
President's decision to proceed with the Yucca Mountain site or
termination of the repository program at this point.
4. Completeness of the Design
The Governor states that ``DOE has yet to finish the very
design of the Yucca Mountain repository,'' and cities ``293
unresolved technical issues in 9 critical areas.'' As a result,
as both Dr. Gilinsky (testifying on behalf of the State of
Nevada) and the General Accounting Office point out, DOE will
be unable to submit a license application to the NRC until 2004
and will not comply with the statutory requirement that it file
an application within 90 days after Congress approves the
President's site recommendation.
The Committee agrees with the Secretary that the Nuclear
Waste Policy Act, at least implicitly, requires him to
determine if the Yucca Mountain site is ``suitable'' for the
development of the repository before he recommends it to the
President and the President recommends it to Congress, but it
does not require him to have satisfied every requirement for
the issuance of a license before making his site
recommendation. The important question, as the Chairman of the
Nuclear Regulatory Commission testified, is whether sufficient
information will exist to permit the Commission to begin its
licensing review once DOE files its license application. In
response to this question, the NRC Chairman testified that the
Commission is ``confident that DOE can assemble the information
necessary for an application that NRC can accept for review.''
The ``293 unresolved technical issues'' referred to by the
Governor (which the Secretary pointed out have already been
reduced to 252) reflect commitments DOE has made to provide
additional information to the NRC on specific issues.
The fact that DOE will not be able to file a license
application within 90 days after Congress approves the
President's site recommendation is regrettable but not
unexpected in a program that is already at least 12 years
behind schedule. The 90-day provision in section 114(b) of the
Nuclear Waste Policy Act is directory rather than mandatory and
does not affect the Secretary's ability to file an application,
or the Commission's ability to act on it, at a later date. (See
3 Sutherland, Statutory Construction Sec. 57:19 (2001 rev.).)
5. The Siting Guidelines
The Governor contends that DOE changed its original siting
guidelines because Yucca Mountain could not meet them. The
Governor, supported by Dr. Gilinsky's testimony and
Dr.Bartlett's affidavit, argues that the new guidelines make the
geology of the site irrelevant.
The Secretary firmly rejected this characterization of
events in his testimony before the Committee and in his written
recommendation to the President. The Secretary states that the
guidelines were changed ``to conform to changes in the
statutory and regulatory framework governing the siting process
and the scientific consensus regarding the best approach for
assessing the likely performance of a repository over long
periods of time.''
The history of the siting guidelines supports the
Secretary's stance. The original siting guidelines were
``general guidelines'' designed to help the Secretary compare
multiple ``candidate sites for recommendation'' for site
characterization. They served this purpose when, in 1986, the
Secretary ranked Yucca Mountain as the most promising of the
five candidate sites it evaluated under the guidelines. But
they were of no further use once Congress itself selected Yucca
Mountain as the only site for characterization in 1987 and the
Secretary was not required to use the general guidelines as the
basis for determining whether Yucca Mountain is suitable for
development as a repository. Nonetheless, in 1988, the
Secretary chose to do so.
In 1992, however, Congress required the Environmental
protection Agency to adopt radiation protection standards for
Yucca Mountain, and the Nuclear Regulatory Commission to modify
its licensing requirements for Yucca Mountain, consistent with
the recommendations of the National Academy of Sciences. Among
other things, the Academy recommended that Yucca Mountain be
judged on the basis of its performance as a ``total system,''
and not on the basis of multiple ``subsystem performance
requirements.'' The Committee agrees with the Secretary that,
once the EPA and the NRC had adopted licensing standards based
on total system performance, ``DOE had no choice but to amend
its Guidelines to conform with the new regulatory framework
established at Congress's direction by the National Academy of
Sciences, the EPA, and the NRC.''
6. The One Site ``Myth''
The Governor assails the argument the Secretary made in his
recommendation to the President that a single underground
repository at Yucca Mountain is preferable to ``131 aging
surface sites, scattered across 39 states.'' The Governor
points out that it will take DOE decades to move spent nuclear
fuel from the existing nuclear power plants to the repository,
during which time it will remain where it is now stored.
Moreover, he notes that the problem will be compounded if
additional nuclear power plants are built in the future.
The Committee accepts the logic of the Governor's argument,
but not the conclusion he draws from it. We agree with the
Governor that, even if the repository can be licensed and built
in accordance with the Secretary's schedule, it will take years
to begin, and decades to complete the shipment of high-level
radioactive waste and spent nuclear fuel to it. But we do not
see that as a reason to abandon the Nation's commitment to the
permanent disposal of these wastes in an underground
repository. We agree with the National Academy of Sciences that
``geological disposal remains the only scientifically credible
long-term solution available to meet the needs for safety
without reliance on active management.'' We see no reason to
abandon the commitment to geological disposal Congress made
twenty years ago.
7. Transportation
One of the principal arguments made by the Governor and the
witnesses who testified in support of his position is that
high-level radioactive waste and spent nuclear fuel cannot be
transported to the repository safely, that shipping this
material to the repository will be an enormous undertaking for
which the DOE is ill-prepared, and that such shipments will
invite terrorist attacks.
The Committee agrees with the Governor on the enormity of
the undertaking and on the need for far more planning,
training, analysis, and testing than has been done to date. The
Committee does not agree, however, that the challenges of
shipping nuclear waste to the repository are unsurmountable or
that such shipments need endanger the public health and safety
or the environment. The Secretary testified that over 2,700
shipments of spent nuclear fuel have been made safely over the
past 30 years. Both the Nuclear Regulatory Commission and the
Department of Transportation, the two agencies responsible for
regulating the transportation of nuclear waste, testified that
it can be safely and securely transported. The Committee fully
expects that DOE and its regulators can and will take all
precautions necessary to ensure that the transportation of
spent nuclear fuel and high-level radioactive waste is
conducted in a safe and secure manner. The Committee has no
reason to believe that they will not take such actions as may
be necessary to protect the public health and safety and the
common defense and security before any shipments are made to
the repository.
8. On-site Storage
The Governor proposes that, instead of building a deep
geologic repository at Yucca Mountain, DOE take title to the
utilities' spent nuclear fuel and pay the utilities to store it
where it is now, at the nuclear power plants that generated it.
He further suggests that DOE use the money that the utilities
paid DOE to dispose of their waste at Yucca Mountain to pay
them to keep it themselves. The Governor notes that DOE has
already adopted this approach with respect to the spent nuclear
fuel at the Peach Bottom plant in Pennsylvania to settle a
lawsuit with the plant's owner, PECO Energy.
The Governor's proposal does not offer a permanent solution
to the Nation's nuclear waste management problem. It would
relinquish the progress that has been made over the past 20
years and return us to the policy of wishfully waiting,
Macawber-like, for something to turn up. It would offer no
relief to nuclear power plants that have already shut down, no
relief to plants that are running out of room to store spent
fuel on site or may not be able to get State approval to store
spent nuclear fuel on site, and no relief to the states with
DOE facilities that are currently storing high-level
radioactive waste or spent nuclear fuel from naval reactors or
foreignor domestic research reactors. It would repudiate
binding agreements with the States to remove spent nuclear fuel and
high-level radioactive waste from DOE sites, and with the utilities to
remove spent nuclear fuel from their plants. As already noted,
permanent on-site storage will require costly, on-going maintenance or
it will lead to the eventual release of radioactive material into the
environment. We find nothing in the record before us that warrants
adopting such a course.
9. The International Peer Review Report
The Governor quotes four critical excerpts from an
international peer review of DOE's performance assessment for
the Yucca Mountain site recommendation. The peer review was
conducted, at DOE's request, by an International Review Team
from the International Atomic Energy Agency and the Nuclear
Energy Agency of the Organization for Economic Co-operation and
Development. The passages quoted by the Governor are critical
of DOE's understanding of the hydrogeology of Yucca Mountain
and DOE's computer models.
The Committee does not believe the passages selected by the
Governor fairly reflect the overall thrust of the report. While
the report criticizes DOE's performance assessment in some
respects, it praises DOE's work in others, calling DOE's models
``an impressive body of work,'' which is ``in line with
international best practice.'' The Committee believes that the
International Review Team's views are more fairly captured in
the Team's own ``statement regarding the adequacy of the
overall performance assessment approach for supporting the site
recommendation decision'':

While presenting room for improvement, the TSPA-SR
[Total System Performance Assessment supporting the
Site Recommendation] methodology is soundly based and
has been implemented in a competent manner. Moreover,
the modeling incorporates many conservatisms, including
the extent to which water is able to contact the waste
packages, the performance of engineered barriers and
retardation provided by the geosphere.
Overall, the IRT [International Review Team]
considers that the implemented performance assessment
approach provides an adequate basis for supporting a
statement on likely compliance within the regulatory
period of 10,000 years and, accordingly, for the site
recommendation decision.
On the basis of a growing international consensus,
the IRT stresses that understanding of the repository
system and its performance and how it provides for
safety should be emphasized more in future iterations,
both during and beyond the regulatory period. Also,
further work is required to increase confidence in the
robustness of the TSPA (Emphasis in original.)
10. Consideration of Geology by the NRC
Finally, the Governor contends that the ``NRC will not be
examining or determining the geologic suitability of the Yucca
Mountain site * * *[,] only whether DOE's man-made waste
packages can keep radiation emissions to within standards set
by the Environmental Protection Agency.'' Dr. Gilinsky, a
former member of the NRC and now a consultant to the State of
Nevada, made a similar claim in his testimony before the
Committee.
The Committee asked the Chairman of the Nuclear Regulatory
Commission about Dr. Gilinsky's claim. Dr. Meserve replied that
``Mr. Gilinsky's testimony may reflect some misunderstanding of
both the statue and of our regulatory requirements, in that the
statute requires a consideration of both natural and engineered
barriers, as do our regulatory requirements.* * *'' Dr. Meserve
conceded that the NRC does not impose separate requirements for
natural and engineered barriers, but that is consistent with
the advice the Commission ``received from the National Academy
of Sciences that the [repository] system should be viewed as an
integrated whole and that all of the barriers should work
synergistically with each other, and that we should see the
integrated picture rather than looking at each barriers in
isolation.''
The Committee is satisfied that the NRC will required DOE
to demonstrate that the ``natural features of the geologic
setting,'' working in combination with the engineered barrier
system, will isolate radionuclides in the repository in
accordance with the Commission's licensing rule.
The Committee Findings on the Governors's Objections
The Governor raises serious questions about the geology of
the Yucca Mountain site, the design of the repository, the
credibility of DOE's performance assessments, and the safety of
nuclear waste transportation. These questions must be more
fully examined and resolved before the NRC can authorize
construction of the repository. But they should be resolved by
the Commission, rather than by the Committee or the Senate as a
whole. We cannot find on the basis of the record before us that
any of the objections raised by the Governor warrants
termination of the repository program at this point.
It bears repeating that enactment of the joint resolution
will not authorize construction of the repository or allow DOE
to put any radioactive waste or spent nuclear fuel in it or
even allow DOE to begin transporting waste to it. Enactment of
the joint resolution will only allow DOE to take the next step
in the process laid out by the Nuclear Waste Policy Act and
apply to the NRC for authorization to construct the repository
at Yucca Mountain. As Senator Henry M. Jackson noted during the
debate on the Act in 1982, ``the licensing process of the
Nuclear Regulatory Commission provides a further insurance to
the State that is legitimate concerns for the public health and
safety will be met. Beyond the Nuclear Regulatory Commission,
there is, of course, the full recourse to the judicial process
to insure that the Nuclear Regulatory Commission exercises its
proper role in protecting the public health and safety. These
considerations inthemselves constitute a considerable
protection for the State and its citizenry beyond the point in the
process at which a construction permit application is filed.''

B. The Case for Going Forward

The Committee believes that the Secretary's recommendation
to the President, combined with his testimony before the
Committee, and the voluminous technical documents supporting
the recommendation meet the burden of going forward imposed by
the Act and are sufficient to justify allowing the Secretary to
submit a license application for the repository to the Nuclear
Regulatory Commission for its review.
The Committee finds support for its view in the testimony
of the agencies charged with overseeing and regulating the
repository program. The Chairman of the Nuclear Waste Technical
Review Board, which Congress established in 1987 to evaluate
the technical and scientific validity of DOE's site
characterization and transportation activities, testified that
``no individual technical or scientific factor has been
identified that would automatically eliminate Yucca Mountain
from consideration at this point. * * *'' The Assistant
Administrator for Air and Radiation of the Environmental
Protection Agency testified that ``EPA believes that disposal
in compliance with the EPA standards will be fully protective
of public health and the environment.'' The Chairman of the
Nuclear Regulatory Commission testified that ``the Commission
believes that deep geological disposal is appropriate for high-
level radioactive wastes and spent nuclear fuel and that such
wastes can be safely and securely transported to a disposal
location.'' While careful not to prejudge the Commission's
licensing decision, Dr. Meserve testified that, ``based on our
technical reviews and pre-licensing interactions,'' the
Commission is ``confident that DOE can assemble the information
necessary for an application that NRC can accept for review.''

C. The National Interest

Twenty years ago, the 97th Congress found that ``a national
problem had been created by the accumulation of'' spent nuclear
fuel from commercial nuclear power plants and high-level
radioactive waste from national defense activities, and that
efforts to deal with this problem over the preceding 30 years
had been inadequate. It further found that ``radioactive waste
creates potential risks and requires safe and environmentally
acceptable methods of disposal.'' It responded to this problem
by establishing the present program for the orderly, step-by-
step program for the siting, licensing, and construction of a
deep geologic repository that will ``not rely on human
monitoring and maintenance to keep the wastes from entering the
biosphere'' and will ``ensure that such waste and spent fuel do
not adversely affect the public health and safety and the
environment of this or future generations.'' It also committed
to meeting both our military and civilian radioactive waste
responsibilities in the present, by the generation that
benefitted from the nuclear activities that created the waste,
so that they would not become a burden on future generations.
The Committee finds that continued progress towards the
permanent disposal of high-level radioactive waste and spent
nuclear fuel in a deep geologic repository that will isolate
these wastes from the accessible environment remains in the
national interest. None of the arguments presented to the
Committee outweigh the national interest in proceeding with
this program or warrant abandoning it at this stage.

COMMITTEE RECOMMENDATION AND TABULATION OF VOTES

The Senate Committee on Energy and Natural Resources, in
open business session on June 5, 2002, by majority vote of a
quorum present, recommends that the Senate pass S.J. Res. 34.
The rollcall vote on reporting the measure was 13 yeas, 10
nays as follows:
YEAS NAYS
Mr. Bingaman Mr. Akaka
Mr. Graham Mr. Dorgan
Ms. Landrieu* Mr. Wyden
Mr. Murkowski Mr. Johnson
Mr. Domenici Mr. Bayh*
Mr. Nickles Mrs. Feinstein
Mr. Craig Mr. Schumer
Mr. Thomas Mr. Cantwell
Mr. Shelby* Mr. Carper
Mr. Burns Mr. Campbell
Mr. Kyl
Mr. Hagel
Mr. Smith

* Indicates vote by proxy.

COST AND BUDGET CONSIDERATIONS

The following estimate of costs of this measure has been
provided by the Congressional Budget Office.

U.S. Congress,
Congressional Budget Office,
Washington, DC, June 5, 2002.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S.J. Res. 34, a bill
approving the site at Yucca Mountain, Nevada, for the
development of a repository for the disposal of high-level
radioactive waste and spent nuclear fuel, pursuant to the
Nuclear Waste Policy of 1982.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Lisa Cash
Driskill (for federal costs), and Elyse Goldman (for the state
and local impact).
Sincerely,
Steven Lieberman
(For Dan L. Crippen, Director).
Enclosure.

S.J. Res. 34--Approving the site at Yucca Mountain, Nevada, for the
development of a repository for the disposal of high-level
radioactive waste and spent nuclear fuel, pursuant to the
Nuclear Waste Policy Act of 1982

Summary: S.J. Res. 34 would provide Congressional approval
of the site at Yucca Mountain, Nevada, for the storage of
nuclear waste. In accordance with the Nuclear Waste Policy Act
(NWPA), such approval would allow the Department of Energy
(DOE) to apply for a license with the Nuclear Regulatory
Commission to construct a nuclear waste storage facility on the
approved site. Enacting S.J. Res 34 would not alter the
contractual relationship between DOE and those electric
utilities with nuclear power plants to dispose of nuclear waste
in exchange for the payment of annual fees. The resolution
would not affect direct spending or receipts, so pay-as-you-go
procedures would not apply.
Congressional approval of the Yucca Mountain site is
required before DOE can proceed with its plans to spend about
$10 billion over the next several years to develop the Yucca
Mountain site and begin receipt of waste in 2010. Based on
information from DOE, CBO estimates that implementing S.J. Res
34 would require the appropriation of about $12 billion over
the 2003-2012 period, to pay for licensing, construction, and
waste transportation activities over that period. All such
spending is subject to appropriation.
S.J. Res. 34 could increase the costs that Nevada and some
local governments would incur to comply with certain existing
federal requirements. The Unfunded Mandates Reform Act (UMRA)
is unclear about whether such costs would count as new mandates
under UMRA. In any event, CBO estimates that the annual direct
costs incurred by state and local governments over the next
five years would total significantly less than the threshold
established in the law ($58 million in 2002, adjusted annually
for inflation). S.J. Res. 34 contains no new private-sector
mandates as defined in UMRA.
Estimated cost to the Federal Government: The estimated
budgetary impact of S.J. Res. 34 is shown in the following
table. The costs of this legislation fall within budget
functions 270 (energy) and 050 (defense).

----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------
2002 2003 2004 2005 2006 2007
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION

Spending Under Current Law for Nuclear Waste Disposal:
Budget Authority\1\................................... 375 0 0 0 0 0
Estimated Outlays..................................... 366 48 0 0 0 0
Proposed Changes:
Estimated Authorization Level......................... 0 527 900 1,100 1,500 2,000
Estimated Outlays..................................... 0 369 788 1,040 1,380 1,850
Spending Under S.J. Res. 34 for Nuclear Waste Disposal:
Estimated Authorization Level......................... 375 527 900 1,100 1,500 2,000
Estimated Outlays..................................... 366 465 788 1,040 1,380 1,850
----------------------------------------------------------------------------------------------------------------
\1\ The 2002 level is the amount appropriated for that year.

Basis of estimate: If the Congress enacts S.J. Res. 34, DOE
expects that it would apply for a license to construct a
storage facility at Yucca Mountain sometime in 2004 and that
the site would be ready to accept nuclear waste in 2010. The
Department of Defense and DOE have requested $527 million for
this program for fiscal year 2003. Based on information
contained in DOE's May 2001 report, Analysis of the Total
System Life Cycle Cost of the Civilian Radioactive Waste
Management Program, CBO estimates that implementing the
resolution would require the appropriation of about $6 billion
over the 2003-2007 period and about $12 billion over the 2003-
2012 period to prepare the site to dispose of waste. This
estimate includes program management, licensing, construction,
and transportation of waste to the site.
In accordance with the NWPA, on February 15, 2002, the
President recommended to the Congress that Yucca Mountain,
Nevada, be used for the storage of nuclear waste. Also in
accordance with the NWPA, on April 9, 2002, the Governor of
Nevada provided theCongress with a notice of disapproval of the
site. Following the Governor's disapproval notice, the Congress is now
deciding whether to enact legislation approving the site. Without such
legislation, the notice of disapproval would stand, and there would be
no further consideration of a nuclear waste storage facility at Yucca
Mountain.
Spending on nuclear waste disposal activities would very
likely continue in the absence of S.J. Res. 34, but CBO has no
basis for estimating the likely level of such spending. If S.J.
Res. 34 were not enacted, spending on the nuclear waste program
could be higher or lower than shown in the above table,
depending on how the program might be restructured. If Yucca
Mountain is not used as a nuclear waste repository, such
spending might include funding for interim storage, further
study of alternative disposal sites, or other program options.
In the May 2001 report, DOE estimates the future cost to
conduct the nuclear waste program is about $50 billion, in
constant 2000 dollars, for 2001 through closure and
decommissioning of Yucca Mountain in 2119. According to DOE,
about $9 billion has been spent since 1983 studying nuclear
waste disposal sites and preparing a recommendation for use of
the Yucca Mountain site.
Pay-as-you-go considerations: None.
Estimated impact on state, local, and tribal governments:
While the resolution, by itself, would establish no new
enforceable duties on state, local, or tribal governments,
shipments of nuclear waste to the Yucca Mountain site would
increase costs to the state of Nevada for complying with other
existing federal requirements. Additional spending by the state
would support a number of activities, including emergency
communications, emergency response planning and training,
inspections, and escort of waste shipments. UMRA is unclear
about whether such impacts on other existing federal
requirements would count as new mandates under UMRA. In any
event, CBO estimates that the annual direct costs incurred by
state and local governments over the next five years would
total significantly less than the threshold established in the
law ($58 million in 2002, adjusted annually for inflation).
Estimated impact on the private sector: S.R. Res. 34
contains no new private-sector mandates as defined in UMRA.
Previous CBO estimate: On April 30, 2002, CBO transmitted a
cost estimate for H.J. Res. 87, a similar resolution, as
ordered reported by the House Committee on Energy and Commerce
on April 25, 2002. The cost estimates for these two resolutions
are identical.
Estimate prepared by: Federal Costs: Lisa Cash Driskill;
Impact on State, Local, and Tribal Governments: Elyse Goldman;
and Impact on the Private Sector: Lauren Marks.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.

REGULATORY IMPACT EVALUATION

The bill is not a regulatory measure in the sense of
imposing Government established standards or significant
economic responsibilities on private individuals and
businesses.
No personal information will be collected in administering
the program. Therefore, there will be no impact on personal
privacy.
Little, if any, additional paperwork will result from the
enactment of S.J. Res. 34.

EXECUTIVE COMMUNICATIONS

The text of the letter from the Secretary of Energy to the
President of the Senate transmitting the proposed text of the
joint resolution and requesting prompt and favorable action by
the Senate thereon is set forth below:

The Secretary of Energy,
Washington, DC, April 9, 2002.
Hon. Richard B. Cheney,
President of the Senate,
Washington, DC.
Dear Mr. President: I transmit herewith a proposed joint
resolution that would approve, pursuant to the Nuclear Waste
Policy Act of 1982, the President's recommendation of February
15, 2002 that the Yucca Mountain site be designated as the
location for a potential repository for spent nuclear fuel and
high-level radioactive waste. Enactment of this joint
resolution is necessary to allow expert scientific and
technical examination of the safety of the site by the Nuclear
Regulatory Commission.
The President's recommendation and the supporting
Department of Energy materials accompanying it reflect over two
decades of publicly available and transparent scientific
examination of this site. That examination, conducted over 24
years at a cost of more than $4 billion, occurred with
benchmark analyses by the National Academy of Sciences and with
a view to compliance with extremely rigorous Environmental
Protection Agency standards. The overwhelming weight of
scientific evidence has now confirmed the suitability of the
site, and thereby has confirmed the choice made by Congress 15
years ago, in 1987, that the Government direct its scientific
inquiry exclusively to the Yucca Mountain site.
In addition to the sound science that supports this
project--a prerequisite for moving forward--fundamental
national security and energy policy considerations weigh
heavily in favor of proceeding with the Yucca Mountain program.
Spent fuel from our nuclear-powered aircraft carriers and
submarines must be permanently disposed of if we are to
continue using their special capabilities.
The project is critical for energy security as well.
Nuclear power provides 20 percent of the nation's electricity
and emits no airborne pollution or greenhouse gases. The
reactors we have today give us one of the cheapest and most
reliable forms of power generation we have. Securing the
benefits of this form of energy requires finding a permanent,
safe and secure site for disposal of spent nuclear fuel.
Yucca Mountain is essential for homeland security. More
than 161 million people live within 75 miles of one or more
nuclear waste sites, all of which were intended to be
temporary. We believe that today these sites are safe, but
prudence demands we consolidate this waste from widely
dispersed above-ground sites into a deep underground location
that can be better protected.
Twenty years ago Congress established that safe disposal of
spent nuclear fuel and high-level nuclear waste is a
responsibility of the Federal Government. The next step toward
fulfilling this responsibility to the future is to permit the
Yucca Mountain site to be designated, as the Nuclear Waste
Policy Act contemplates, so that its actual safety as a site
for a particular repository can be evaluated by the independent
and neutral experts at the Nuclear Regulatory Commission.
I urge the Congress to act promptly and favorably on the
proposed joint resolution so that the next stage of addressing
the merits of all remaining issues, by applying the independent
expertise of the Nuclear Regulatory Commission, can begin in
earnest.
Sincerely,
Spencer Abraham.

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee notes that no
changes in existing law are made by S.J. Res. 34 as ordered
reported.