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



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

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



 
                    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.

                                  
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