[Senate Hearing 112-295]
[From the U.S. Government Publishing Office]
S. Hrg. 112-295
BLUE RIBBON COMMISSION REPORT
=======================================================================
HEARING
before the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
TO
RECEIVE TESTIMONY ON THE FINAL REPORT OF THE BLUE RIBBON COMMISSION ON
AMERICA'S NUCLEAR FUTURE
__________
FEBRUARY 2, 2012
Printed for the use of the
Committee on Energy and Natural Resources
----------
U.S. GOVERNMENT PRINTING OFFICE
73-236 PDF WASHINGTON : 2011
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
COMMITTEE ON ENERGY AND NATURAL RESOURCES
JEFF BINGAMAN, New Mexico, Chairman
RON WYDEN, Oregon LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota JOHN BARRASSO, Wyoming
MARY L. LANDRIEU, Louisiana JAMES E. RISCH, Idaho
MARIA CANTWELL, Washington MIKE LEE, Utah
BERNARD SANDERS, Vermont RAND PAUL, Kentucky
DEBBIE STABENOW, Michigan DANIEL COATS, Indiana
MARK UDALL, Colorado ROB PORTMAN, Ohio
JEANNE SHAHEEN, New Hampshire JOHN HOEVEN, North Dakota
AL FRANKEN, Minnesota DEAN HELLER, Nevada
JOE MANCHIN, III, West Virginia BOB CORKER, Tennessee
CHRISTOPHER A. COONS, Delaware
Robert M. Simon, Staff Director
Sam E. Fowler, Chief Counsel
McKie Campbell, Republican Staff Director
Karen K. Billups, Republican Chief Counsel
C O N T E N T S
----------
STATEMENTS
Page
Bingaman, Hon. Jeff, U.S. Senator From New Mexico................ 1
Hamilton, Hon. Lee, Co-Chair, Blue Ribbon Commission on America's
Nuclear Future................................................. 4
Murkowski, Hon. Lisa, U.S. Senator From Alaska................... 2
Scowcroft, General Brent, Co-Chair, Blue Ribbon Commission on
America's Nuclear Future....................................... 16
APPENDIX
Responses to additional questions................................ 41
BLUE RIBBON COMMISSION REPORT
----------
THURSDAY, FEBRUARY 2, 2012
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC.
The committee met, pursuant to notice, at 9:34 a.m. in room
SD-366, Dirksen Senate Office Building, Hon. Jeff Bingaman,
chairman, presiding.
OPENING STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR FROM NEW
MEXICO
The Chairman. OK. The committee will come to order.
The committee meets this morning to hear about the
recommendations of the Blue Ribbon Commission on nuclear waste.
We're very honored that General Brent Scowcroft is here, and
Congressman Lee Hamilton. They are the co-chairs of this
Commission.
We're also honored that Senator Domenici is here, our
former chairman, and a distinguished member of this Blue Ribbon
Commission.
The two chairmen, indeed the entire Commission, all 15
members, are to be commended for their work. They were asked to
look into a problem that has resisted solution, that remains
highly controversial, and that everyone agrees needs to be
solved.
They did their job openly and thoroughly, they stayed
focused on the tasks that were assigned to them, and they have
produced a solid and eminently sensible report. They have
presented us with 8 clear, concise, and straightforward
recommendations.
Now is the difficult part. Implementing the recommendations
obviously will require legislation. It will be up to Congress
to absorb these Commission recommendations, to translate them
into legislation, and to forge the political consensus that is
needed to enact a bill into law.
The Commission admits that none of the major elements of
its strategy are new. We've known for decades that we need a
permanent waste repository, we need a community to host it--at
least one--and we need a transportation system to get the waste
there, and a dedicated source of funds to pay for it.
After years of work, we thought Congress had found a path
forward in 1982, when Congress passed the Nuclear Waste Policy
Act, which set up a fair, objective, and science-based process
to pick repository sites.
President Reagan signed the Nuclear Waste Policy Act into
law and praised the bipartisan cooperation and resolve and good
sense that made it possible. Those traits deserted us in 1987.
Bowing to public opposition and budget constraints, Congress
short-circuited the siting process and focused all of our
efforts on Yucca Mountain.
That has now proven to have been a mistake. The Blue Ribbon
Commission has provided us with a road map for putting the
program back on track, but it obviously will once again take
bipartisan cooperation, resolve, and good sense on our part to
act on its recommendations.
So let me defer to Senator Murkowski for any opening
statements she'd like to make.
STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR
FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman. Good morning
and welcome to the very distinguished panel. General, Mr.
Hamilton, thank you for your leadership on the Blue Ribbon
Commission.
To my friend, our friend here on the committee, and a true
leader in this area, Senator Domenici, it's good to see you,
and thank you for your participation and assistance with this.
I think that this is a very timely hearing on the Blue
Ribbon Commission's report, their recommendations. The issue of
nuclear waste, as the Chairman has mentioned, and the
management has been frustrating Congress, multiple
administrations, utilities, ratepayers, clearly for decades
now. Efforts to address it through the Nuclear Waste Policy Act
of 1982, and the 1987 amendments remain unresolved.
Taxpayers thus far have paid over $2 billion in damages
resulting from the government's failure to take title to the
used nuclear fuel. Department of Energy estimates that if title
were to be taken by the year 2021, the total liability incurred
would be just over $13 billion.
Some in industry are estimating that the total cost would
be closer to $50 billion, if not possibly higher. So we're
talking incredible liability here.
General Scowcroft, Representative Hamilton, I have great
admiration for your willingness to tackle this assignment.
When the Blue Ribbon Commission was first announced, it was
my belief that its credibility would be determined by the
members of the Commission, and your participation, and that of
Senator Domenici, has certainly given it credibility, and I
thank you.
It was also my belief at the time that the administration's
decision to form a commission was simply kicking the can down
the road, that we would be in the exact same position as we
were at the time of its formation.
I think I was wrong. I think we're actually in a worse
position than we were before, and I'd like to explain why.
Any possibility of advancing legislation to address the
back end of the nuclear fuel cycle was effectively put on hold
when the Commission conducted its review. In the meantime, the
administration shut down all of its activity on Yucca Mountain.
The Department of Energy attempted to withdraw its
application for the Yucca repository, an effort that was
rejected by the NRC Licensing Board. Given the NRC's inability
to break a tie vote, it appears that a court will need to
therefore decide the issue.
So at this point, the possibility of the Federal Government
meeting its contractual obligations by the year 2021 seems even
more unlikely than it was when the Commission was first formed.
It took us over 30 years and over $10 billion to get this
far on the Yucca Mountain repository site, and while I believe
Yucca remains a possibility, we must also consider the
potential of starting anew.
In looking at our own and other Nations' siting processes,
the timeframe to establish a repository seems to be roughly 20
to 40 years. While I'd like to believe that we've learned
enough along the way to speed up the siting process, the odds
are closer to industry's estimate of what the total liability
cost will end up being.
Now, as the Commission report notes, the government's
failure to address our nuclear waste issues is damaging to the
development of future nuclear power, and is simultaneously
worsening our Nation's financial situation. I think we need to
act, and I think we need to do it soon.
The Commission's report, as the chairman has mentioned,
doesn't necessarily break a lot of new ground, but I think it
is sensible in terms of its approach.
We've seen proposals along the lines of most of the
recommendations in the past, so they're not necessarily new
issues for this committee to take up and consider.
Senator Landrieu and I earlier this year introduced the
Nuclear Fuel Storage Improvement Act to provide for interim
used nuclear fuel storage capacity along the lines of the
Commission's recommendation.
I was also a co-sponsor of Senator Voinovich's Federal--
Fed-Corp proposal in the last Congress to create a quasi-
governmental entity to take over the management of the back end
of the fuel cycle, much like the Blue Ribbon Commission
recommends. It may be time to reintroduce that legislation, or
perhaps something similar to that.
Trickiest part, of course, and in my view the issue that
needs to be addressed first, is the money. Accessing and
utilizing the Nuclear Waste Fund creates a scoring problem with
no real easy solution. At the same time, a stable, sufficient
funding stream is needed, not just for whichever entity ends up
handling the spent fuel management, but also the States and
local units of government that agree to host the storage and
the repository sites.
The Blue Ribbon Commission has resurrected a proposal by
the DOE to administratively change the timing of fee payments,
thus bypassing any legislative PAYGO requirement.
So I look forward to hearing more from all of you on this
proposal, and other potential ways to resolve this very complex
issue.
Again, I thank you for your contributions and your
leadership in this area.
The Chairman. Thank you very much.
Congressman Hamilton, I understand you're going to start
off with the testimony and then General Scowcroft will give his
views. Obviously we would welcome any views Senator Domenici
would want to offer as well.
Go right ahead. We appreciate you being here.
STATEMENT OF HON. LEE HAMILTON, CO-CHAIR, BLUE RIBBON
COMMISSION ON AMERICA'S NUCLEAR FUTURE
Mr. Hamilton. Thank you very much, Chairman Bingaman, and
Ranking Member Murkowski. I ask unanimous consent that the full
testimony be submitted into the record.
The Chairman. We will include everyone's full statement.
Mr. Hamilton. We thank you, of course, for allowing us the
opportunity to testify.
We have appreciated for some years the leadership of this
committee on a variety of issues, but especially with regard to
nuclear waste management.
It's a very special pleasure for me to work with General
Scowcroft. By any measure, he's one of the great Americans, and
he's been a marvelous co-chairman.
Likewise, we were extraordinarily privileged to have
Senator Domenici on the Commission, and he--again, and again,
and again--made valuable contributions to our work.
All of the members of the Commission and the staff itself
were outstanding, and they enabled us to reach a unanimous
report, which we present to you today.
We came away from our review quite frustrated, of course,
by the decades--you've already referred to this--of not being
able to resolve this.
Seeing Senator Udall here reminds me of Mo Udall standing
up in the House of Representatives many years ago saying,
``Shame on the members of the House of Representatives because
you haven't solved the problem of what to do with nuclear
waste.''
Here we are, almost 50 years later, maybe 40, and we still
haven't solved it.
So, at the same time, we come through this process--we're
confident that we can turn this record around. Because of the
observations the two of you made, it's urgent that we do so.
You're well aware, of course, that the process that we have
been following is just basically broken down, and that the
Nuclear Waste Policy Act simply hasn't worked to produce a
timely solution to what you do with these hazardous materials.
What we have found is that our Nation's coming to grips
with this issue has been damaging to the Nation, and of course,
as you pointed out, very costly.
It's been damaging in a number of ways. It's set back the
prospect for the development of nuclear energy. We've got to
solve this problem before we go ahead--there are other problems
to be resolved, but this has to be resolved before nuclear
energy can really meet its potential.
We are impressed again and again during our testimony about
the damage to U.S.--to the confidence in the U.S. Government to
solve a problem.
People really have been turned off by the performance of
the Federal Government with regard to nuclear waste, those who
follow it closely, and so there's been a lot of damage, if you
would, to the Federal Government's competence.
Another aspect of it, terribly important, is we've suffered
a lot of damage, because of our inability to solve this
problem, to our international standing as a leader on global
issues relating to nuclear safety, nonproliferation, and
security.
In addition to that, as Senator Murkowski has pointed out,
the cost of this is just getting out of hand: a heavy cost to
utility ratepayers, a heavy cost to the American taxpayer, a
heavy cost to the communities that have been unwilling hosts to
long term storage.
So we have a fundamental obligation. It's a legal
obligation; it's an ethical obligation to the generation that
follows us. We're the ones that created this problem, and we
ought to be able to say to the generation that follows us that
we've solved the problem. But of course we haven't.
They didn't have anything to do with creating the problem.
We're the ones that created it, and therefore we think there's
a very strong obligation--not just legal, but ethical as well--
to see that we can handle these nuclear materials.
At the same time, we want to give to that future generation
the options--in other words, we don't want to lock them in to a
certain path--the options that they can do whatever is possible
to make their choices and make this work out all well.
Sixty-five thousand metric tons of inventory, spent nuclear
fuel, are spread across the country today. We're creating about
2,000 metric tons per year. So the action needed is urgent.
We have several key elements to our recommendations. You
have them in the report; I'll just summarize them very quickly,
or summarize 3 of them and then turn over to General Scowcroft
to summarize the others.
We think they're integrated. That is, we think they're all
part of a whole. Some parts may be more important than others,
but we want a truly integrated national nuclear waste
management system, and that's what we tried to recommend.
First of all--a consent-based approach deciding future
nuclear waste management facilities. It's pretty clear, both
with the experience in the United States and in other countries
abroad, that any attempt to force a solution, top-down, a
federally mandated solution if you will, over the objections of
State and local communities--far from being more efficient, is
going to take longer, it's going to cost more, and you're going
to have less--fewer odds of success.
By contrast, what we're recommending is an adaptive,
staged, consent-based approach. We base it on successful siting
processes in the United States. Senator Domenici can testify to
this with regard to the WIPP program in New Mexico. We've
succeeded at this in this country. So we know how to do it.
Of course, there's been some positive outcomes in Spain,
Finland, Sweden, other countries, so that we know this can be
done.
We believe that this consent-based approach that we're
talking about can provide the flexibility and sustain--very
important--sustain the public trust and confidence that's
needed through a very, very long process under the best of
circumstances.
Second, we recommend a new organization dedicated solely to
implementing the waste management program, and empowered with
the authority and the resources to succeed.
To be very blunt about it, the overall record of the DOE
and the Federal Government here has not inspired trust or
confidence.
We listened to hours and hours of testimony on this point,
and they said--it was pretty hard to find anybody that said a
nice thing about the way the Federal Government has handled
this.
So, the Commission concludes that what you really need is
new institutional leadership, and specifically, we say you have
to have a single purpose organization, congressionally
chartered. We recommend appointed by the President, confirmed
by the Senate for the membership, but there's a lot of
flexibility here.
But we believe this kind of an organization is best suited
to give the stability, the credibility, and the focus that you
need in this kind of an organization to succeed.
Now, it has to have some things to go along with it. It has
to have the implementing authority. It's got to have assured
access to funds, and it's got to have very rigorous oversight
by the U.S. Congress in order for it to succeed. But we think
that's the way to go.
The third point I want to make in the recommendations is
that the access to the funds nuclear utility ratepayers are
providing for the purpose of nuclear waste management have to
be available.
You all know that the law has provided that the nuclear
utilities are assessed a fee on every kilowatt hour produced of
nuclear energy, and then the payment is in exchange for the
Federal Government's contractual commitment to begin accepting
commercial spent fuel, beginning January 1998.
That's all set up; it was set up very well. We like the
concept of that. The only problem is the Fund has not worked as
it is intended to work because of a series of decisions made in
the executive branch, some made in the Congress. The annual
fees are effectively not accessible to the access program, the
waste program. That's about $750 million a year.
Instead, the waste program has now to compete for Federal
funding each year, and is therefore subject to exactly the
budget constraints and uncertainties that the Fund was created
to avoid.
That has to be remedied, and we think and hope it should be
remedied immediately to allow the program to succeed.
The other recommendations will be put forward by my
colleague, co-partner, co-chairman, General Scowcroft.
[The joint prepared statement of Mr. Hamilton and General
Scowcroft follows:]
Prepared Statement of Hon. Lee Hamilton and General Brent Scowcroft,
Co-Chairmen, Blue Ribbon Commission on America's Nuclear Future
introduction
Chairman Bingaman, Ranking Member Murkowski, members of the
Committee, it is a pleasure to appear before you today to discuss the
final recommendations of the Blue Ribbon Commission on America's
Nuclear Future. We appreciate the leadership this Committee has shown
in confronting some of our nation's biggest challenges, which certainly
include the focus of this hearing--managing spent nuclear fuel and high
level nuclear waste in the United States. Thank you for allowing us the
opportunity to testify before you today.
Before we begin, we would also like to thank the 13 other members
of the Commission who worked so hard in creating our final report. As
the Co-Chairmen of the Commission, we were delighted to work with such
a talented and dedicated group of fellow Commissioners. We are thankful
for the expertise and insights they brought to our endeavors. Their
professionalism led to our final report having unanimous approval; all
of the Commissioners have agreed to our final report, a fact which we
believe speaks to the strength of our recommendations.
As you aware, the Blue Ribbon Commission was formed by the
Secretary of Energy at the direction of the President. Our charge was
to conduct a comprehensive review of policies for managing the back end
of the nuclear fuel cycle and to recommend a new strategy. We came away
from our review frustrated by decades of unmet commitments to the
American people, yet confident that we can turn this record around.
framing the issue
Mr. Chairman, as we are all too well aware, America's nuclear waste
management program is at an impasse. The Administration's decision to
halt work on a repository at Yucca Mountain is but the latest indicator
of a policy that has been troubled for decades and has now all but
completely broken down. The approach laid out under the 1987 Amendments
to the Nuclear Waste Policy Act has simply not worked to produce a
timely solution for dealing with the nation's most hazardous
radioactive materials. The United States has traveled nearly 25 years
down the current path only to come to a point where continuing to rely
on the same approach seems destined to bring further controversy,
litigation, and protracted delay.
What we have found is that our nation's failure to come to grips
with the nuclear waste issue has already proved damaging and costly. It
will be even more damaging and more costly the longer it continues:
damaging to prospects for maintaining a potentially important energy
supply option for the future, damaging to state--federal relations and
public confidence in the federal government's competence, and damaging
to America's standing in the world as a source of nuclear expertise and
as a leader on global issues of nuclear safety, non-proliferation, and
security.
This failure is also costly to utility ratepayers who continue to
pay for a nuclear waste management solution that has yet to be
delivered, to communities that have become unwilling hosts of long-term
waste storage facilities, and to U.S. taxpayers who face billions in
liabilities as a result of the failure to meet federal waste management
commitments. The national interest demands that our nuclear waste
program be fixed.
The need for a new strategy is urgent, not just to address these
damages and costs, but also because this generation has a fundamental
ethical obligation to avoid burdening future generations with finding a
safe permanent solution for managing hazardous nuclear materials they
had no part in creating. At the same time, we owe it to future
generations to avoid foreclosing options wherever possible so that they
can make choices--about the use of nuclear energy as a low-carbon
energy resource and about the management of the nuclear fuel cycle--
based on emerging technologies and developments and their own best
interests.
Put simply, the overall record of the U.S. nuclear waste program
has been one of broken promises and unmet commitments. And yet the
Commission finds reasons for confidence that we can turn this record
around. To be sure, decades of failed efforts to develop a repository
for spent fuel and high-level waste have produced frustration and a
deep erosion of trust in the federal government. But they have also
produced important insights, a clearer understanding of the technical
and social issues to be resolved, and at least one significant success
story--the WIPP facility in New Mexico. Moreover, many people have
looked at aspects of this record and come to similar conclusions.
the scale of the problem
Mr. Chairman, before we discuss our recommendations it is useful to
briefly review the scale of the nuclear waste problem in the U.S. As
this Committee is certainly aware, there are 104 commercial nuclear
power reactors operating in the United States today, supplying
approximately 20 percent of our nation's electricity needs. The
industry as a whole generates more than 2,000 metric tons of spent
nuclear fuel on an annual basis. At present, nearly all of the nation's
existing inventory of approximately 65,000 metric tons of spent fuel is
being stored at the reactor sites where it was generated--about three-
quarters of it in shielded concrete pools and the remainder in dry
casks above ground. Roughly speaking, this spent fuel would cover one
football field to a depth of approximately 20 feet. This inventory also
includes approximately 3,000 metric tons of what we've called
``stranded'' spent fuel, fuel in storage at ten sites where nuclear
power reactors have been shut down and are no longer operating.
In addition to the civilian spent nuclear fuel, there is a
considerable inventory of DOE-managed nuclear waste--in the form of
both spent nuclear fuel and of liquid high level waste. The current
inventory of DOE-managed spent fuel represents a relatively small
fraction of the nation's total civilian spent-fuel inventory:
approximately 2,500 metric tons. Along with spent nuclear fuel, DOE
manages an inventory of high level waste totaling more than 3,000
canisters of vitrified wastes and some 90 million gallons of liquids,
sludges and solids from past fuel reprocessing operations for weapons
production. Most of this waste is being stored at DOE's Hanford, Idaho
National Laboratory, and Savannah River sites. In addition, there is a
small amount of vitrified high level waste from reprocessing fuel from
both commercial power reactors and government reactors at the West
Valley site in New York that will also require disposal.
our approach
Fulfilling our charter has required the Commission to investigate a
wide range of issues and listen to a broad spectrum of concerned
stakeholders. It became clear to us early on that many of the problems
facing our nuclear waste program have their roots in social distrust
and lack of confidence in government, so we strove to make the
Commission's work as inclusive, transparent, and accessible as
possible. We heard from hundreds of invited witnesses, toured nuclear
waste management facilities in the U.S. and abroad, and received
thousands of comments at more than two dozen public meetings and
through our web site.
The Commission released a draft report for public comment in July
of 2011. To facilitate meaningful discussion about our draft report, we
arranged for a series of public meetings to be held in cooperation with
regional state government groups. These meetings were held in Atlanta,
Boston, Denver, Minneapolis, and Washington, DC, and were quite helpful
in gaining useful insights that are reflected in our final report.
In total, we received and reviewed several thousand comments on our
draft report. We are indebted to the many people who have given us the
benefit of their expertise, advice, and guidance. A full list of the
Commission's meetings is included in a longer version of this statement
that we intend to submit for the record.
key elements of the blue ribbon commission's final recommendations
Mr. Chairman, the strategy we recommend in our final report has
eight key elements:
1. A new, consent-based approach to siting future nuclear
waste management facilities.
2. A new organization dedicated solely to implementing the
waste management program and empowered with the authority and
resources to succeed.
3. Access to the funds nuclear utility ratepayers are
providing for the purpose of nuclear waste management.
4. Prompt efforts to develop one or more geologic disposal
facilities.
5. Prompt efforts to develop one or more consolidated storage
facilities.
6. Prompt efforts to prepare for the eventual large-scale
transport of spent nuclear fuel and high-level waste to
consolidated storage and disposal facilities when such
facilities become available.
7. Support for continued U.S. innovation in nuclear energy
technology and for workforce development.
8. Active U.S. leadership in international efforts to address
safety, waste management, non-proliferation, and security
concerns.
Although the elements of this strategy will not be new to Members
and staff of this Committee who have followed the U.S. nuclear waste
program over the years, we are certain they are all necessary to
establish a truly integrated national nuclear waste management system,
to create the institutional leadership and wherewithal to get the job
done, and to ensure that the United States remains at the forefront of
technology developments and international responses to evolving nuclear
safety, non-proliferation, and security concerns.
A few general points about the Commission's proposed strategy are
worth emphasizing before our recommendations are discussed in greater
detail here today. First is the issue of cost. In this time of acute
concern about the federal budget deficit and high energy prices, we
have been sensitive to the concern that our recommendations--
particularly those that involve launching a new approach and a new
organization for nuclear waste management--could add to the financial
burden on the U.S. Treasury and on American taxpayers and utility
ratepayers. Certainly it will cost something to implement a successful
U.S. waste management program; however, trying to implement a deeply
flawed program is even more costly, for all the reasons already
mentioned. In fact, U.S. ratepayers are already paying for waste
disposal (through a fee collected on each kilowatt-hour of nuclear-
generated electricity)--but the program they're paying for isn't
working.
Overall, we are confident that our waste management recommendations
can be implemented using revenue streams already dedicated for this
purpose--in particular the Nuclear Waste Fund and fee. Other Commission
recommendations--particularly those concerning nuclear technology
programs and international policies--are broadly consistent with the
program plans of the relevant agencies.
Another overarching point concerns timing and implementation. All
of our recommendations are interconnected and will take time to
implement fully, particularly since many elements of the strategy we
propose require legislative action to amend the Nuclear Waste Policy
Act and other relevant laws. Nevertheless, prompt action can and should
be taken in several areas, without waiting for legislative action, to
get the waste management program back on track.
One of the many actions we recommend the Administration take in the
near-term is to ensure that funds already being collected from nuclear
utility ratepayers to cover the costs of spent fuel disposal are
available to serve their intended purpose. In our report we suggest a
series of actions that can be taken promptly to give the waste program
the budgetary certainty that will be essential for long-term success.
We also recommend steps the Department of Energy should take to enable
implementation of our consolidated storage recommendations, including
efforts to provide assistance to states and regional state government
groups that can be used to begin transportation planning and to support
local and tribal officials in areas likely to be traversed by spent
fuel shipments.
Finally, there are several questions the Commission was not
chartered to address. We have not rendered an opinion on the
suitability of the Yucca Mountain site or any other specific site, nor
have we commented on the request to withdraw the license application
for Yucca Mountain. Instead, we focused on developing a sound strategy
for future storage and disposal facilities and operations that we
believe can and should be implemented regardless of what happens with
Yucca Mountain. We have also not offered a judgment about the
appropriate role of nuclear power in the nation's future energy supply
mix.
These are all important questions that will engage policy makers
and the public in the years ahead. However, none of them alters the
urgent need to change and improve our strategy for managing the high-
level wastes and spent fuel that already exist and will continue to
accumulate so long as nuclear reactors operate in this country. That is
the focus of the Commission's work and of the specific recommendations
that follow.
further discussion of the brc's recommendations
Mr. Chairman, as we mentioned previously, there are eight key
elements to our strategy that are essential to the future success of
the nuclear waste management program in the United States. We will now
discuss those in more detail.
1. A New Consent-Based Approach to Siting
Siting storage or disposal facilities has been the most consistent
and most intractable challenge for the U.S. nuclear waste management
program. Of course, the first requirement in siting any facility
centers on the ability to demonstrate adequate protection of public
health and safety and the environment. Beyond this threshold criterion,
finding sites where all affected units of government, including the
host state or tribe, regional and local authorities, and the host
community, are willing to support or at least accept a facility has
proved exceptionally difficult. The erosion of trust in the federal
government's nuclear waste management program has only made this
challenge more difficult. And whenever one or more units of government
are opposed, the odds of success drop greatly. The crux of the
challenge derives from a federal/state/tribal/local rights dilemma that
is far from unique to the nuclear waste issue--no simple formula exists
for resolving it. Experience in the United States and in other nations
suggests that any attempt to force a top-down, federally mandated
solution over the objections of a state or community--far from being
more efficient--will take longer, cost more, and have lower odds of
ultimate success.
By contrast, the approach we recommend is explicitly adaptive,
staged, and consent-based. Based on a review of successful siting
processes in the United States and abroad--including most notably the
siting of a disposal facility for transuranic radioactive waste, the
Waste Isolation Pilot Plant (WIPP) in New Mexico, and recent positive
outcomes in Finland, Sweden, Spain and France--we believe this type of
approach can provide the flexibility and sustain the public trust and
confidence needed to see controversial facilities through to
completion.
In practical terms, this means encouraging communities to volunteer
to be considered to host a new nuclear waste management facility while
also allowing for the waste management organization to approach
communities that it believes can meet the siting requirements. Siting
processes for waste management facilities should include a flexible and
substantial incentive program.
The approach we recommend also recognizes that successful siting
decisions are most likely to result from a complex and perhaps extended
set of negotiations between the implementing organization and
potentially affected state, tribal, and local governments, and other
entities. It would be desirable for these negotiations to result in a
partnership agreement or some other form of legally enforceable
agreement with the organization to ensure that commitments to and by
host states, tribes, and communities are upheld. All affected levels of
government must have, at a minimum, a meaningful consultative role in
important decisions; additionally, both host states and tribes should
retain--or where appropriate, be delegated--direct authority over
aspects of regulation, permitting, and operations where oversight below
the federal level can be exercised effectively and in a way that is
helpful in protecting the interests and gaining the confidence of
affected communities and citizens. At the same time, host state, tribal
and local governments have responsibilities to work productively with
the federal government to help advance the national interest.
In this context, any process that is prescribed in detail up front
is unlikely to work. Transparency, flexibility, patience,
responsiveness, and a heavy emphasis on consultation and cooperation
will all be necessary--indeed, these are attributes that should apply
not just to siting but to every aspect of program implementation.
This discussion raises another issue highlighted in numerous
comments to the BRC: the question of how to define ``consent.'' The
Commission takes the view that this question ultimately has to be
answered by a potential host jurisdiction, using whatever means and
timing it sees fit. We believe that a good gauge of consent would be
the willingness of the affected units of government--the host states,
tribes, and local communities--to enter into legally binding agreements
with the facility operator, where these agreements enable states,
tribes, or communities to have confidence that they can protect the
interests of their citizens.
All siting processes take time; however, an adaptive, staged
approach may seem particularly slow and open-ended. This will be
frustrating to stakeholders and to members of the public who are
understandably anxious to know when they can expect to see results. The
Commission shares this frustration--greater certainty and a quicker
resolution would have been our preference also. Experience, however,
leads us to conclude that there is no short-cut, and that any attempt
to short-circuit the process will most likely lead to more delay. That
said, we also believe that attention to process must not come at the
expense of progress and we are sympathetic to the numerous comments we
received asking us to include a more detailed and specific set of
milestones in our final report. Obviously there is an inherent tension
between recommending an adaptive, consent-based process and setting out
deadlines or progress requirements in advance. But we agree that it
will be important--without imposing inflexible deadlines--to set
reasonable performance goals and milestones for major phases of program
development and implementation so that Congress can hold the waste
management organization accountable and so that stakeholders and the
public can have confidence the program is moving forward. Other
countries have taken this approach, in several cases identifying target
timeframes, rather than specific dates for completing stages in their
process. For example the implementing organization might consider a
range of, say, 15 to 20 years to accomplish site identification and
characterization and to conduct the licensing process for a geologic
repository. A notional timeframe for siting and developing a
consolidated storage facility would presumably be shorter, perhaps on
the order of 5 to 10 years.
2. A New Organization to Implement the Waste Management Program
The U.S. Department of Energy (DOE) and its predecessor agencies
have had primary responsibility for implementing U.S. nuclear waste
policy for more than 50 years. In that time, DOE has achieved some
notable successes, as shown by the WIPP experience and recent
improvements in waste cleanup performance at several DOE sites. The
overall record of DOE and of the federal government as a whole,
however, has not inspired widespread confidence or trust in our
nation's nuclear waste management program. For this and other reasons,
the Commission concludes that a new, single-purpose organization is
needed to provide the stability, focus, and credibility needed to get
the waste program back on track. We believe a congressionally chartered
federal corporation offers the best model, but whatever the specific
form of the new organization it must possess the attributes,
independence, and resources to effectively carry out its mission.
The central task of the new organization would be to site, license,
build, and operate facilities for the safe consolidated storage and
final disposal of spent fuel and high-level nuclear waste at a
reasonable cost and within a reasonable timeframe. In addition, the new
organization would be responsible for arranging for the safe transport
of waste and spent fuel to or between storage and disposal facilities,
and for undertaking applied research, development, and demonstration
(RD&D) activities directly relevant to its waste management mission
(e.g., testing the long-term performance of fuel in dry casks and
during subsequent transportation).
For the new organization to succeed, a substantial degree of
implementing authority and assured access to funds must be paired with
rigorous financial, technical, and regulatory oversight by Congress and
the appropriate government agencies. We recommend that the organization
be directed by a board nominated by the President, confirmed by the
Senate, and selected to represent a range of expertise and
perspectives. Independent scientific and technical oversight of the
nuclear waste management program is essential and should continue to be
provided for out of nuclear waste fee payments. In addition, the
presence of clearly independent, competent regulators is essential; we
recommend the existing roles of the U.S. Environmental Protection
Agency in establishing standards and the Nuclear Regulatory Commission
(NRC) in licensing and regulating waste management facilities be
preserved but that steps be taken to ensure ongoing cooperation and
coordination between these agencies.
Late in our review we heard from several states that host DOE
defense waste that they agree with the proposal to establish a new
organization to manage civilian wastes, but believe the government can
more effectively meet its commitments if responsibility for defense
waste disposal remains with DOE. Others argued strongly that the
current U.S. policy of comingling defense and civilian wastes should be
retained. We are not in a position to comprehensively assess the
implications of any actions that might affect DOE's compliance with its
cleanup agreements, and we did not have the time or the resources
necessary to thoroughly evaluate the many factors that must be
considered by the Administration and Congress in making such a
determination. The Commission therefore urges the Administration to
launch an immediate review of the implications of leaving
responsibility for disposal of defense waste and other DOE-owned waste
with DOE versus moving it to a new waste management organization. The
implementation of other BRC recommendations, however, should not wait
for the commingling issue to be resolved. Congressional and
Administration efforts to implement our recommendations can and should
proceed as expeditiously as possible
3. Access to Utility Waste Disposal Fees for their Intended Purpose
The 1982 NWPA created a ``polluter pays'' funding mechanism to
ensure that the full costs of disposing of commercial spent fuel would
be paid by utilities (and their ratepayers), with no impact on
taxpayers or the federal budget. Nuclear utilities are assessed a fee
on every kilowatt-hour of nuclear-generated electricity as a quid pro
quo payment in exchange for the federal government's contractual
commitment to begin accepting commercial spent fuel beginning by
January 31, 1998. Fee revenues go to the government's Nuclear Waste
Fund, which was established for the sole purpose of covering the cost
of disposing of civilian nuclear waste and ensuring that the waste
program would not have to compete with other funding priorities. In
contrast, costs for disposing of defense nuclear wastes are paid by
taxpayers through appropriations from the Treasury.
The Fund does not work as intended. A series of Executive Branch
and Congressional actions has made annual fee revenues (approximately
$750 million per year) and the unspent $27 billion balance in the Fund
effectively inaccessible to the waste program. Instead, the waste
program must compete for federal funding each year and is therefore
subject to exactly the budget constraints and uncertainties that the
Fund was created to avoid. This situation must be remedied to allow the
program to succeed.
In the near term, the Administration should offer to amend DOE's
standard contract with nuclear utilities so that utilities remit only
the portion of the annual fee that is appropriated for waste management
each year and place the rest in a trust account, held by a qualified
third-party institution, to be available when needed. At the same time,
the Office of Management and Budget should work with the Congressional
budget committees and the Congressional Budget Office to change the
budgetary treatment of annual fee receipts so that these receipts can
directly offset appropriations for the waste program. These actions are
urgent because they enable key subsequent actions the Commission
recommends. Therefore, we urge the Administration to act promptly to
implement these changes (preferably in Fiscal Year 2013). For the
longer term, legislation is needed to transfer the unspent balance in
the Fund to the new waste management organization so that it can carry
out its civilian nuclear waste obligations independent of annual
appropriations (but with Congressional oversight)--similar to the
budgeting authority now given to the Tennessee Valley Authority and
Bonneville Power Administration.
We recognize that these actions mean no longer counting nuclear
waste fee receipts against the federal budget deficit and that the
result will be a modest negative impact on annual budget calculations.
The point here is that the federal government is contractually bound to
use these funds to manage spent fuel. The bill will come due at some
point. Meanwhile, failure to correct the funding problem does the
federal budget no favors in a context where taxpayers remain liable for
mounting damages, compensated through the Judgment Fund, for the
federal government's continued inability to deliver on its waste
management obligations. These liabilities are already in the billions
of dollars and could increase by hundreds of millions of dollars
annually for each additional year of delay.
4. Prompt Efforts to Develop a New Geologic Disposal Facility
Deep geologic disposal capacity is an essential component of a
comprehensive nuclear waste management system for the simple reason
that very long-term isolation from the environment is the only
responsible way to manage nuclear materials with a low probability of
re-use, including defense and commercial reprocessing wastes and many
forms of spent fuel currently in government hands. The conclusion that
disposal is needed and that deep geologic disposal is the
scientifically preferred approach has been reached by every expert
panel that has looked at the issue and by every other country that is
pursuing a nuclear waste management program.
Some commenters have urged the prompt adoption of recycling of
spent fuel as a response to the waste disposal challenge, as well as a
means to extend fuel supply. It is the Commission's view that it would
be premature for the United States to commit, as a matter of policy, to
``closing'' the nuclear fuel cycle given the large uncertainties that
exist about the merits and commercial viability of different fuel
cycles and technology options. Future evaluations of potential
alternative fuel cycles must account for linkages among all elements of
the fuel cycle (including waste transportation, storage, and disposal)
and for broader safety, security, and non-proliferation concerns.
Moreover, all spent fuel reprocessing or recycle options generate waste
streams that require a permanent disposal solution. In any event, we
believe permanent disposal will very likely also be needed to safely
manage at least some portion of the commercial spent fuel inventory
even if a closed fuel cycle were adopted.
The Commission recognizes that current law establishes Yucca
Mountain in Nevada as the site for the first U.S. repository for spent
fuel and high-level waste, provided the license application submitted
by DOE meets relevant requirements. The Blue Ribbon Commission was not
chartered as a siting commission. Accordingly we have not evaluated
Yucca Mountain or any other location as a potential site for the
storage or disposal of spent nuclear fuel and high-level waste, nor
have we taken a position on the Administration's request to withdraw
the license application. We simply note that regardless what happens
with Yucca Mountain, the U.S. inventory of spent nuclear fuel will soon
exceed the amount that can be legally emplaced at this site until a
second repository is in operation. So under current law, the United
States will need to find a new disposal site even if Yucca Mountain
goes forward. We believe the approach set forth here provides the best
strategy for assuring continued progress, regardless of the fate of
Yucca Mountain.
5. Prompt Efforts to Develop One or More Consolidated Storage
Facilities
Safe and secure storage is another critical element of an
integrated and flexible national waste management system. Fortunately,
experience shows that storage--either at or away from the sites where
the waste was generated--can be implemented safely and cost-
effectively. Indeed, a longer period of time in storage offers a number
of benefits because it allows the spent fuel to cool while keeping
options for future actions open.
Developing consolidated storage capacity would allow the federal
government to begin the orderly transfer of spent fuel from reactor
sites to safe and secure centralized facilities independent of the
schedule for operating a permanent repository. The arguments in favor
of consolidated storage are strongest for ``stranded'' spent fuel from
shutdown plant sites. Stranded fuel should be first in line for
transfer to a consolidated facility so that these plant sites can be
completely decommissioned and put to other beneficial uses. Looking
beyond the issue of today's stranded fuel, the availability of
consolidated storage will provide valuable flexibility in the nuclear
waste management system that could achieve meaningful cost savings for
both ratepayers and taxpayers when a significant number of plants are
shut down in the future, can provide emergency back-up storage in the
event that spent fuel needs to be moved quickly from a reactor site,
and would provide an excellent platform for ongoing R&D to better
understand how the storage systems currently in use at both commercial
and DOE sites perform over time.
For consolidated storage to be of greatest value to the waste
management system, the current rigid legislative restriction that
prevents a storage facility developed under the NWPA from operating
significantly earlier than a repository should be eliminated. At the
same time, efforts to develop consolidated storage must not hamper
efforts to move forward with the development of disposal capacity. To
allay the concerns of states and communities that a consolidated
storage facility might become a de facto disposal site, a program to
establish consolidated storage must be accompanied by a parallel
disposal program that is effective, focused, and making discernible
progress in the eyes of key stakeholders and the public. Progress on
both fronts is needed and must be sought without further delay.
Even with timely development of consolidated storage facilities, a
large quantity of spent fuel will remain at reactor sites for many
decades before it can be accepted by the federal waste management
program. Current at-reactor storage practices and safeguards are being
scrutinized in light of the lessons that are emerging from Fukushima.
In addition, the Commission recommends that the National Academy of
Sciences (NAS) conduct a thorough assessment of lessons learned from
Fukushima and their implications for conclusions reached in earlier NAS
studies on the safety and security of current storage arrangements for
spent nuclear fuel and high-level waste in the United States. This
effort would complement investigations already underway by the NRC and
other organizations. More broadly, it will also be vital to continue
vigorous public and private research and regulatory oversight efforts
in areas such as spent fuel and storage system degradation phenomena,
vulnerability to sabotage and terrorism, full-scale cask testing, and
others. As part of this process, it is appropriate for the NRC to
examine the advantages and disadvantages of options such as
``hardened'' onsite storage that have been proposed to enhance security
at storage sites.
6. Early Preparation for the Eventual Large-Scale Transport of Spent
Nuclear Fuel and High-Level Waste to Consolidated Storage and
Disposal Facilities
The current system of standards and regulations governing the
transport of spent fuel and other nuclear materials appears to have
functioned well, and the safety record for past shipments of these
types of materials is excellent. But the current set of transport-
related regulations will need to be updated to accommodate changes in
fueling practices. Moreover, past performance does not guarantee that
future transport operations will match the record to date, particularly
as the logistics involved expand to accommodate a much larger number of
shipments. Past experiences in the United States and abroad, and
extensive comments to the Commission, indicate that many people fear
the transportation of nuclear materials. Thus greater transport demands
are likely to raise new public concerns.
As with siting fixed facilities, planning for associated
transportation needs has historically drawn intense interest. Transport
operations typically also have the potential to affect a far larger
number of communities. The Commission believes that state, tribal and
local officials should be extensively involved in transportation
planning and should be given the resources necessary to discharge their
roles and obligations in this arena. Accordingly, DOE should (1)
finalize procedures and regulations for providing technical assistance
and funds for training to local governments and tribes pursuant to
Section 180(c) of the NWPA and (2) begin to provide such funding,
independent from progress on facility siting. While it would be
premature to fully fund a technical assistance program before knowing
with some certainty where the destination sites for spent fuel are
going to be, substantial benefits can be gained from a modest early
investment in planning for the early transport of spent fuel from
shutdown reactor sites.
Planning and providing for adequate transportation capacity while
simultaneously addressing related stakeholder concerns will take time
and present logistical and technical challenges. Given that
transportation represents a crucial link in the overall storage and
disposal system, it will be important to allow substantial lead-time to
assess and resolve transportation issues well in advance of when
materials would be expected to actually begin shipping to a new
facility. For many years, states have been working cooperatively with
DOE to plan for shipments, often through agreements with regional
groupings of states and in ways that involve radiological health, law
enforcement, and emergency response personnel. As has been shown with
the WIPP program and other significant waste shipping campaigns,
planning, training and execution involves many different parties and
takes time. In addition, specialized equipment may be required that
will need to be designed, fabricated and tested before being placed
into service. Historically, some programs have treated transportation
planning as an afterthought. No successful programs have done so.
7. Support for Advances in Nuclear Energy Technology and for Workforce
Development
Advances in nuclear energy technology have the potential to deliver
an array of benefits across a wide range of energy policy goals. The
Commission believes these benefits--in light of the environmental and
energy security challenges the United States and the world will
confront this century--justify sustained public-and private-sector
support for RD&D on advanced reactor and fuel cycle technologies. In
the near term, opportunities exist to improve the safety and
performance of existing light-water reactors and spent fuel and high-
level waste storage, transport, and disposal systems. Longer term, the
possibility exists to advance ``game-changing'' innovations that offer
potentially large advantages over current technologies and systems.
The Commission believes the general direction of the current DOE
research and development (R&D) program is appropriate, although we also
urge DOE to take advantage of the Quadrennial Energy Review process to
refine its nuclear R&D ``roadmap.'' We are not making a specific
recommendation concerning future DOE funding for nuclear energy RD&D;
in light of the extraordinary fiscal pressures the federal government
will confront in coming years, we believe that budget decisions must be
made in the context of a broader discussion about priorities and
funding for energy RD&D more generally.
One area where the Commission recommends increased effort involves
ongoing work by the NRC to develop a regulatory framework for advanced
nuclear energy systems. Such a framework can help guide the design of
new systems and lower barriers to commercial investment by increasing
confidence that new systems can be successfully licensed. Specifically,
the Commission recommends that adequate federal funding be provided to
the NRC to support a robust effort in this area. We also support the
NRC's risk-informed, performance-based approach to developing
regulations for advanced nuclear energy systems, including NRC's
ongoing review of the current waste classification system (changes to
the existing system may eventually require a change in law).
Another area where further investment is needed is nuclear
workforce development. Specifically, the Commission recommends expanded
federal, joint labor-management and university-based support for
advanced science, technology, engineering, and mathematics training to
develop the skilled workforce needed to support an effective waste
management program as well as a viable domestic nuclear industry. At
the same time, DOE and the nuclear energy industry should work to
ensure that valuable existing capabilities and assets, including
critical infrastructure and human expertise, are maintained. Finally,
the jurisdictions of safety and health agencies should be clarified and
aligned. New site-independent safety standards should be developed by
the safety and health agencies responsible for protecting nuclear
workers through a coordinated joint process that actively engages and
solicits input from all relevant constituencies. Efforts to support
uniform levels of safety and health in the nuclear industry should be
undertaken with federal, industry, and joint labor-management
leadership. Safety and health practices in the nuclear construction
industry should provide a model for other activities in the nuclear
industry.
8. Active U.S. Leadership in International Efforts to Address Safety,
Non-Proliferation and Security Concerns
As more nations consider pursuing nuclear energy or expanding their
nuclear programs, U.S. leadership is urgently needed on issues of
safety, non-proliferation, and security/counter-terrorism. Many
countries, especially those just embarking on commercial nuclear power
development, have relatively small programs and may lack the regulatory
and oversight resources available to countries with more established
programs. International assistance may be required to ensure they do
not create disproportionate safety, physical security, and
proliferation risks. In many cases, mitigating these risks will depend
less on technological interventions than on the ability to strengthen
international institutions and safeguards while promoting multilateral
cooperation and coordination. From the U.S. perspective, two further
points are particularly important: First, with so many players in the
international nuclear technology and policy arena, the United States
will increasingly have to lead by engagement and by example. Second,
the United States cannot exercise effective leadership on issues
related to the back end of the nuclear fuel cycle so long as its own
program is in disarray; effective domestic policies are needed to
support America's international agenda.
The Fukushima accident has focused new attention on nuclear safety
worldwide. Globally, some 60 new reactors are under construction and
more than 60 countries that do not have nuclear power plants have
expressed interest in acquiring them. These nations will have to
operate their facilities safely and plan for safe storage and
disposition of spent nuclear fuel. The United States should help launch
a concerted international safety initiative--encompassing organizations
like the International Atomic Energy Agency (IAEA) as well as
regulators, vendors, operators, and technical support organizations--to
assure the safe use of nuclear energy and the safe management of
nuclear waste in all countries that pursue nuclear technology.
Nuclear weapons proliferation has been a central concern of U.S.
nuclear policy from the earliest days of the nuclear era. These
concerns are still prominent, especially where the deployment of
uranium enrichment, reprocessing, and recycled fuel fabrication
technology is being contemplated. As countries with relatively less
nuclear experience acquire nuclear energy systems, the United States
should work with the IAEA, nuclear power states, private industry, and
others in the international community to ensure that all spent fuel
remains under effective and transparent control and does not become
``orphaned'' anywhere in the world with inadequate safeguards and
security.
Longer term, the United States should support the use of multi-
national fuel-cycle facilities, under comprehensive IAEA safeguards, as
a way to give more countries reliable access to the benefits of nuclear
power while simultaneously reducing proliferation risks. U.S.
sponsorship of the recently-created IAEA global nuclear fuel bank is an
important step toward establishing such access while reducing a driver
for some states to engage in uranium enrichment. But more is needed.
The U.S. government should propose that the IAEA lead a new initiative,
with active U.S. participation, to explore the creation of one or more
multi-national spent fuel storage or disposal facilities.
In addition, the United States should support the evolution of
spent fuel ``take-away'' arrangements as a way to allow some countries,
particularly those with relatively small national programs, to avoid
the costly and politically difficult step of providing for spent fuel
disposal on their soil and to reduce associated safety and security
risks. An existing program to accept highly-enriched uranium fuel from
research reactors abroad for storage in the United States has provided
a demonstration--albeit a limited one--of the national security value
of such arrangements. The capability to accept limited quantities of
spent fuel from foreign commercial reactors could be similarly valuable
from a national security perspective. As the United States moves
forward with developing its own consolidated storage and disposal
capacity, it should work with the IAEA and with existing and emerging
nuclear nations to establish conditions under which one or more
nations, including the United States, can offer to take foreign spent
fuel for ultimate disposition.
The susceptibility of nuclear materials or facilities to
intentional acts of theft or sabotage for terrorist purposes is a
relatively newer concern but one that has received considerable
attention since 9/11. The United States should continue to work with
countries of the former Soviet Union and other nations through
initiatives such as the Nunn-Lugar Cooperative Threat Reduction Program
and the Global Initiative to Combat Nuclear Terrorism to prevent,
detect, and respond to nuclear terrorism threats. Domestically,
evolving terrorism threats and security risks must be closely monitored
by the NRC, the Department of Homeland Security, and other responsible
agencies to ensure that any additional security measures needed to
counter those threats are identified and promptly implemented. The
recent events at Fukushima have--as they should--prompted the NRC and
the industry to re-examine the adequacy of ``mitigative strategies''
for coping with large-scale events (like an explosion or fire) or
catastrophic system failures (like a sudden loss of power or cooling);
as noted previously, we also recommend that Congress charter the
National Academy of Sciences to assess lessons learned from Fukushima
with respect to the storage of spent fuel.
tying it together
In conclusion, the problem of nuclear waste may be unique in the
sense that there is wide agreement about the outlines of the solution.
Simply put, we know what we have to do, we know we have to do it, and
we even know how to do it. Experience in the United States and abroad
has shown that suitable sites for deep geologic repositories for
nuclear waste can be identified and developed. The knowledge and
experience we need are in hand and the necessary funds have been and
are being collected. Rather the core difficulty remains what it has
always been: finding a way to site these inherently controversial
facilities and to conduct the waste management program in a manner that
allows all stakeholders, but most especially host communities, states,
and tribes, to conclude that their interests have been adequately
protected and their well-being enhanced--not merely sacrificed or
overridden by the interests of the country as a whole.
This is by no means a small difficulty, but we have witnessed other
countries make significant progress with a flexible approach to siting
that puts a high degree of emphasis on transparency, accountability,
and meaningful consultation. Indeed, our friends in Spain have just
succeeded in selecting a site for a consolidated storage facility by
using the kind of consent-based process we recommend. Here at home, we
have had more than a decade of successful operation of WIPP. And most
recently, the Fukushima accident in Japan has reminded Americans that
we have little physical capacity at present to do anything with spent
nuclear fuel other than to leave it where it is. Against this backdrop,
the conditions for progress are arguably more promising than they have
been in some time. But we will only know if we start, which is what we
urge the Administration and Congress to do, without further delay.
Thank you for having us here today, and we look forward to your
questions.
STATEMENT OF GENERAL BRENT SCOWCROFT, USAF (RET.), CO-CHAIR,
BLUE RIBBON COMMISSION ON AMERICA'S NUCLEAR FUTURE
General Scowcroft. Thank you, Lee.
Mr. Chairman, Ranking Member Murkowski, I want to thank the
committee for its willingness to listen to our presentation,
and say at the outset it's an honor for me to be asked to
participate in an issue I think is so deeply in the national
interest.
It's a delight to be associated with the Commission
members, with my co-chairman, former Congressman, and former
Senator Domenici, and the outstanding members of the
Commission, which gave a perspective to us from almost every
aspect of this problem.
Element number 4 in our 8 elements are prompt efforts to
develop one or more geologic disposal facilities. The
conclusion that disposal is needed, and that deep geologic
disposal is the scientifically preferred approach, has been
reached by every expert panel that has looked at this issue,
and by every other country that is pursuing a nuclear waste
management program.
Moreover, all spent fuel reprocessing or recycle options,
either that already are available, or those under active
development at this time, still generate waste streams that
will require a permanent disposal solution.
The Commission recognizes that current law establishes
Yucca Mountain in Nevada as the site for the first U.S.
repository for spent fuel and high-level waste.
The Blue Ribbon Commission was not chartered as a siting
commission. Accordingly, we have not evaluated Yucca Mountain
or any other particular location as a potential site for
storage or disposal of spent nuclear fuel and high-level waste.
Nor have we taken a position on the President--on the
Administration's request to withdraw the license applications.
We simply note that regardless of what happens with respect
to Yucca Mountain, the U.S. inventory of spent nuclear fuel
will soon exceed the amount that can legally be emplaced at
this site until a second repository is in operation.
So, under current law, the United States will need to find
a current new disposal site, whether or not Yucca Mountain goes
forward.
We believe the approach set forth here provides the best
strategy for assuring continued progress regardless of the fate
of Yucca Mountain.
Our 5th element of our recommendations is prompt efforts to
develop one or more consolidated storage facilities. Here let
me point out, or emphasize, the difference between storage and
disposal. Storage is a temporary condition; disposal means
permanent while retrievability may be an issue. So those are
the differences between storage and disposal.
Developing consolidated storage capacity would allow the
Federal Government to begin the orderly transfer of spend fuel
from the reactor sites to safe and secure, centralized
facilities independent of the schedule for operating--opening
and operating a permanent repository.
The arguments in favor of consolidated storage like this
are strongest for what is termed ``stranded'' fuel, that is
spent fuel from shut down plant sites, of which there are ten
now across the country.
Stranded fuel should be first in line for transfer to a
consolidated facility so that these plant sites can be
completely decommissioned and put to other beneficial uses.
This is a very expensive stranded fuel operation.
Looking beyond the issue of today's stranded fuel, the
availability of storage--consolidated storage itself will
provide valuable flexibility in nuclear waste management
systems that could achieve meaningful cost savings.
It could provide backup storage in the event that spent
fuel needs to be moved quickly from a reactor site, and would
provide an excellent platform for ongoing R&D to better
understand how the storage systems currently in use, at both
commercial and DOE sites, perform over time.
The sixth element of our recommendation is prompt efforts
to prepare for the eventual large-scale transport of spent
nuclear fuel and high-level waste to consolidated storage and
disposal facilities, when such facilities become available.
The current system of standards and regulations governing
the transport of spent fuel and other nuclear materials has
functioned really very well, and the safety record for past
shipments of these types of materials is excellent.
That being said, past experiences in the United States and
abroad, and extensive comments made to our Commission, indicate
that many people have a fear of the transportation of nuclear
materials. Thus, more transport demands for nuclear materials
are likely to raise additional public concerns.
In order to allay these concerns, while ensuring the
highest levels of transport safety, the Commission believes
that State, tribal, and local officials should be extensively
involved in transportation planning, and should be given the
resources to discharge their roles and obligations in this
area.
Historically, some programs have created transportation
planning as an afterthought. No successful programs have done
so.
The seventh recommendation is support for advances in
nuclear energy technology and work force development. Advances
in nuclear energy technology have the potential to deliver an
array of benefits across a wide range of energy policy goals.
The Commission believes these benefits, in light of the
environmental and energy security challenges the United States
and the world will inevitably confront in this century, justify
sustained public and private sector support for RD&D on
advanced reactor and fuel cycle technologies.
The Commission also recommends expanded Federal, joint
labor-management and university-based support for advanced
science, technology, engineering, and mathematics training to
develop the skilled work force needed to support an effective
waste management program, as well as viable domestic nuclear
industry.
At the same time, DOE and the nuclear energy industry
should work to ensure that valuable existing capabilities and
assets, including critical infrastructure and human expertise,
are maintained. This long hiatus has led to a sharp decline in
the skills required.
The last element is active U.S. leadership in international
efforts to address safety, nonproliferation, and security
concerns we believe are important.
As more Nations consider pursuing nuclear energy or are
expanding their nuclear programs, U.S. leadership, we believe,
is essential on issues of safety, nonproliferation, security,
and counterterrorism issues.
From the U.S. perspective, 2 points are particularly
important. First, with so many players in the international
nuclear technology and policy arena, the United States will
increasingly have to lead by engagement and by example.
Second, the United States cannot affect effective
leadership on issues related to the back end of the fuel cycle
so long as its own program is in its current state of disarray.
Effective domestic policies are needed to support our
international agenda.
In conclusion, the problem of nuclear waste may be unique
in the sense there is wide agreement about the outlines of the
solution. Simply put, we know what we have to do, we know we
have to do it, we even know how to do it. Experience in the
United States and abroad has shown that suitable sites for deep
geologic repositories for nuclear waste can be identified and
developed. The knowledge and experience we need are in hand,
and the necessary funds have been--are being--collected.
The core difficulty remains what it has always been:
finding a way to site these inherently controversial facilities
and to conduct a waste management program in a manner that
allows all stakeholders, especially those host communities,
States, tribes, to conclude that their interests have been
adequately protected, and their well-being enhanced--not merely
sacrificed or overridden by the interests of the country as a
whole.
We believe the conditions for progress are arguably more
promising than they have been in some time, but we will only
know if we start. Which is what we urge the administration and
the Congress to do without delay.
Thank you for having us here today. We intend to submit as
co-chairmen. Hamilton has said a full version of our testimony.
We look forward to your questions.
The Chairman. Thank you very much.
Let me just ask if Senator Domenici wanted to make any
comment at this point--he's certainly welcome to.
Senator Domenici. Mr. Chairman, just a couple of minutes.
The Chairman. Please, go ahead.
Senator Domenici. I believe it's imperative that the
committee understands that there is already in existence a law
that causes the nuclear utility companies to pay approximately
$750 million a year.
Now one would say with that much money coming in--and it
is, and it will for some time to come--why don't we have all
the money we need to carry out a program?
You should know that the reason it doesn't work is because,
under the budget process, that money is part of the total
moneys available for appropriate for domestic affairs. It just
goes into the pot. It isn't set aside for this.
So when you go to Appropriations for a few tens of millions
of dollars, you are not using your own money, which the law
said was yours. You're having to compete among everybody's
appropriated money.
Now we suggest that you fix that by statute. That's your
prerogative. If you introduce a statute, bipartisan, here, if
you introduce one, you should do what is recommended here and
set up a new company and have the money run through it to do
what it is supposed to do with the money, and to change the
budget allocation with the new bill.
We told you how to do it, and we got the best budget
experts around to show us and tell us this was the right way.
If it was done, nobody should complain because it is their
money. It is money--they shouldn't be collecting it from these
thousands of utility payers if it's going in the general fund
of the United States. So that's the biggest point I think we
have to understand.
The second one is that this recommendation says that the
location shall be consensual. That means we will not have the
Yucca fight, because a site will want it or we won't be
building it there.
So in other words, we are gambling, and I think properly,
that more than one community sees what's involved and if they
have a chance, visit the WIPP to see how a low-level
transuranic site one mile underground is handled.
There will be more than one, which would be saying they
want it. That's very important that you know it is going to
happen.
We've already had communities come and ask us--and Senator
Bingaman, you must know that your constituents, many of them,
are already exploring with the communities of Carlsbad and
Hobbs, et cetera, unifying to apply to this when it's ready. So
I would just want to make those points. The others are very
beautifully set out for you.
It's an excellent report. I hope the two of you, as a
chairman and ranking member, see fit to introduce a bill that
carries out the purposes, and that you back it. You will have a
lot of support because it is the right thing to do, it is fair,
and the country ought to be angry that we've set all this money
for all these years--it's now almost 30 billions of dollars--
that belong in nuclear waste, it's just going in the Federal
Treasury and being used for the deficit.
That's not the right thing. Wearing my budget hat, I would
say that has to be that way until it's changed, and that's
correct. So you should change it, just like we changed it for
the gasoline tax. It was in trust, but not in trust. I said it
should remain the way it is, and Senator Graham and others said
it should be held aside like it says, and they won. You've
already won with this Commission saying it belongs to nuclear
waste; it doesn't belong to the budget.
So you've got to fix that or you don't have money for this
program. But if you fix it, you have $750 million a year, and
we think that's, in early stages, more than you need, and then
it goes in trust if you have extra money until you need it. So
that part is pretty good, I think, and understandable.
I thank you for giving me a couple minutes. Thank you.
The Chairman. Thank you very much. Thank you, all of you,
for your excellent testimony.
Let me start with a few questions. I'm sure each of us will
have questions.
Under the Nuclear Waste Policy Act of 1982, I think the
concept there was let's find the best geologic site and then
persuade the public to accept the waste going to that site.
That was the concept behind it, at least.
Seems that the proposal that your Commission is making is
somewhat reversed, in that you're saying let's find a site that
the public would like, or the public would accept, and then
hope that the proper geology exists at that site.
What do you suggest we do in this legislation, if we do
legislation, to ensure that the geology is right? I think you
might find that there are communities that want to have this,
but that the concerns about proper storage and safety and all
of that might get short shift in the rush to put it where
communities are willing to take it.
Mr. Hamilton, did you have a thought on that?
Mr. Hamilton. Look, there isn't any magic bullet here. We
do recommend a consent-based process. That has to be very
flexible. You can't spell it out ahead of time, and you have to
give the players, this new organization, Department of Energy,
the local communities, the tribal groups, States, and so forth,
quite a bit of running room.
We don't recommend either way that you suggest. That is to
say we think the top-down forced solution, proposed solution,
hasn't worked. Federal Government tries to impose Yucca on the
people of Nevada. That hasn't worked. We say that it has to be
a negotiated process. It is quite possible that communities
will volunteer. After all, there are a lot of benefits to one
of these facilities: a lot of jobs created and other things.
So, if a community has the right geographical and
geological assets, they might volunteer. On the other hand,
they may have those assets and not volunteer, in which case we
think the Federal Government may very well have to offer some
incentives to get them to come into the negotiating process.
So it's going to be different, I guess, in different
places, but you have to have an organization that has the
ability to manage and conduct this site selection process. You
have to give that organization the tools that it needs to
engage in the negotiations, and you want to encourage
communities to come forward.
So when we talk about consent-based, we're talking about
transparency, we're talking about flexibility, accountability,
responsiveness, and consultation and all the rest. It's easy to
talk about those things. We know, as a matter of fact, this
process we're recommending is not a surefire guarantee. It's
going to take a lot of negotiation between the interested
parties to achieve.
General Scowcroft. Mr. Chairman, if I could. We have not
really reversed the process. We say first there should be a
general set of criteria for sites that are reasonable. There's
a great deal known about appropriate sites.
Now if some community comes forward with a site that has
not been identified as appropriate, then of course we would
have to look at it and judge it. But we would start--this new
organization would start by getting some EPA set of criteria
that have to be met.
The Chairman. Yes, Senator Domenici.
Senator Domenici. Mr. Chairman, I believe in the report
that we recommended that the Nuclear Regulatory Commission
establish now a safety standard that any site must meet. In
other words, we'll have a safety standard going into the
process NRC will establish, and if you don't have that, you're
not--consent or otherwise, doesn't matter, you're not going to
get it. It's not going to bet here. It's going to have to meet
the standard. I think that's a very important thing we did.
The Chairman. All right.
Let me ask about the connection between establishment of
these independent--or these--I think you call them consolidated
storage facilities, which are of an interim nature as I
understand it, or a temporary nature.
The siting of those as it relates to the siting of a
permanent repository--it does seem like transportation
increases cost, transportation of the waste increases cost--
transportation increases danger of an accident. You don't want
to structure a system for handling nuclear waste that increases
the amount of transportation involved.
I remember we had quite a discussion back in the 1980s, I
believe, when Senator Murkowski's father was the chairman here,
maybe in the 1990s, about whether or not we should go ahead and
just establish an interim site at Yucca Mountain or very near
Yucca Mountain. A concern was raised there, no, no, that
wouldn't be a smart thing to do or an appropriate thing to do
until we have a determination that we're going to use Yucca
Mountain as a permanent site.
So that's a set of concerns. How do you see the
decisionmaking with regard to these interim sites being related
to the decisionmaking with regard to location of a permanent
site?
General Scowcroft, if you want to address that.
General Scowcroft. Yes, of course.
I think ideally there would be some connection. It may be
difficult because our notion is we need to--we can proceed
faster on the storage site then we will be able to do on a
permanent disposal site.
But I would note in the case of the WIPP facility, the
local people are already establishing ground that could be used
for a storage facility, which of course would be ideal given
the relationship to WIPP.
So the two are clearly interrelated, but there's the issue
of timing that might force us to develop storage sites before
we know precisely where the permanent site will be.
Mr. Hamilton. What has to happen is you have to operate on
parallel tracks. You've got to move ahead with the consolidated
storage, and at the same time you've got to move ahead with
regard to a repository. The interaction between the two becomes
very important.
You've got to give these folks hope that this problem can
be solved eventually, and of course that's what the repository
is for.
You mentioned the problem of transportation. We didn't pay
enough attention to that early on in the commission. We had our
draft report circulated and we got a lot of criticism on it,
constructive, with regard to transportation.
I've had experience, and I imagine many of you have had
experience with the fear that exists among people about
transporting nuclear waste across Indiana, or Oregon, or
wherever. It's genuine.
The fact of the matter is, our record on transportation of
nuclear waste is very, very good. I don't think there's been a
single serious accident. So we've had a good track record.
But of course you are right. If you move a lot of this
waste material from a variety of sites now around the country
to three or four, or one or two, whatever, consolidated storage
places, you're going to increase the amount of transportation
required. As the General said in his testimony, this had tended
to be overlooked.
What has to happen here is a lot of planning, and
consultation, and education has to precede the actual movement
of the materials. That hasn't happened.
So you have to begin planning immediately as to how the
transportation is going to be done. You have to involve the
local communities; you have to educate people about the safety
of the process. All of this is a complex matter.
There are clear advantages to having consolidated storage
sites. Those advantages include moving the stranded fuel at
many sites today where the reactors are present, and getting it
in one central place. You'll increase your safety in all
likelihood, but you also have the advantages, I might say with
regard to stranded fuel, there are ten sites today where shut
down reactors are in place. You'll want to get that stuff out
of there and put it into a consolidated storage site. But
you're going to save money in the long run, I think, if you use
that--if those sites can be used for constructive purposes
other than just having the stuff sit there.
But a consolidated storage site would provide a backup
storage capacity; it provides a very good platform for research
and development, and we think it's an important part of the
overall process. But it has to be in parallel.
You can't set up these storage places and quit there,
because people then will begin to have in their frame of mind
this is going to be permanent, this is going to be forever.
You've got to give them confidence and hope that the process is
going to move forward and get that stuff eventually into a
permanent site disposal.
The Chairman. Senator Murkowski.
Senator Murkowski. Thank you, Mr. Chairman.
I appreciate what you're saying, Congressman, about the
parallel tracks. You do have to give that promise or make good
on that promise that it will have a permanent repository.
Let me ask you this, and the Commission chose not to
address the potential for nuclear fuel recycling. But if we're
looking at how we build out the consolidated storage
facilities, these interim facilities, but recognize that the
waste streams that we may see from a recycling plant are likely
to be sufficiently different than that of spent fuel, wouldn't
that have some kind of bearing on either the design, the cost
of the repository, possibly even the criteria that might go
into a permanent repository? So that as we're trying to pursue
these parallel tracks, maybe we don't have all that we need to
make that determination for the permanent repository at this
point and time?
Mr. Hamilton. You're raising the question of reprocessing
and recycling.
Senator Murkowski. Right, which I know was not addressed
within the report.
Mr. Hamilton. We did look at it, and obviously there are
people who support that idea of reprocessing. We don't rule
that out, we just think it's premature at this point to make a
judgment that that's the way to go with regard to handling the
nuclear fuel cycle.
It's important to remember that all spent fuel reprocessing
or recycling options produces nuclear waste. It doesn't remove
it. May reduce it. We've found that the reprocessing proposal,
recycling, does not fundamentally change the way you have to
look at the waste management program.
We don't want to rule it out, and we know that some
countries like France are doing it--it's very expensive,
incidentally, as a process. But we keep that option open. We
just say that you're going to have to have waste management
under any circumstance. If you can reduce the amount of waste,
obviously that's advantageous.
Senator Murkowski. That's better, but you don't think that
that would sufficiently alter any criteria that you may be
looking at, at this point and time.
Mr. Hamilton. That's correct.
Senator Murkowski. All right.
Let me ask about--and Senator Domenici brought this up with
the issue of the funding--this idea of a FEDCorp is one that I
have certainly considered and think makes some good sense.
But if you structure it as has been proposed with access to
the funding that you have recommended, do you have any
suggestions as to how we insulate such an entity to prevent the
politics from being a driving force within the decisionmaking
process?
I think we know how complicated that can or will make
things. Have you given any thought to how we might structure
that? I throw that out to any of you.
Senator Domenici. Let me say, Senator, in setting up the
corporation, we provide the best possible way that we know,
around here at least, to get good people on that board, the
board of directors of that company will be appointed by the
President, confirmed by the Senate.
There's no way we can assure that they will be free of
politics or that process will be, but it would appear to us
that this approach is the best possible thing we could do to
make this work.
Right now it doesn't work at all even though the money is
there. It's all commingled. They would have no business other
than the establishment of the waste process facilities and the
rules, and use the money appropriately.
I can't give you any other answer other than those
processes are calculated to see that it's done properly. Who
knows around here whether it'll work. We think it will, though,
much better than it is now.
Senator Murkowski. Of course you do have some apprehension
out there now as we look at some of these quasi-Federal
agencies that have this independence and this autonomy, and
have created some serous problems.
So it's not only ensuring that the politics don't
intervene, but that you don't have an agency that will have the
ability to go run amok, if you will.
Mr. Hamilton. It's obviously going to take a lot of
oversight to make it work, and of course you've got to have the
right people on the board or it'll never work in the
organization.
But we hope that the administration can move forward
immediately with regard to correcting this funding process, the
inaccessibility of these funds.
General Scowcroft and I have written a letter to the
President asking him to do it in the budget, I guess that's
going to be submitted here in a few days to the Congress.
What could happen is that the Secretary of Energy would
amend the standard nuclear waste contracts with nuclear
utilities. He's authorized to do that under current law. He can
move that fee up and down so that the utilities remit only a
portion of the amount that is needed, and then you put the rest
of it into a trust fund or trust account that would be held by
a third party institution. All of this is spelled out in the
report.
At the same time, we recommend that the OMB and the
congressional budget committees change the budgetary treatment
of these annual receipts so that they go directly into an
appropriation for the waste management program.
In the longer term, you're going to need legislation to
transfer the unspent balance in the fund to the new waste
management organization.
So all of this can be done--or, excuse me, a lot of this
can be done without legislative approval now. To get us on the
right track, to get this funding problem fixed, if you would,
right away, and it can be done by administrative action,
largely--and I very much hope that the President will agree
with that.
The Department of Energy Secretary, Mr. Chu, has--I don't
want to speak for him, obviously, he can speak for himself--but
he has certainly indicated his positive comments about the
recommendations we have made with regard to moving ahead now on
correcting the problems in the funding.
Senator Murkowski. Thank you.
General Scowcroft. Senator, I think one of the primary
reasons we suggested a government corporation rather than a
private entity was to minimize the chances of this running
amok.
Because we think that this is an issue, and nuclear waste
is so important, the government has to retain responsibility
but move the operation away from the political atmosphere that
it has in DOE.
The Chairman. Senator Wyden.
Senator Wyden. Thank you, Mr. Chairman. Thank you, Mr.
Chairman and Senator Murkowski. I know we're going to tackle
this as we've always done in a bipartisan way.
In this particularly important hearing we have 3 wonderful
public servants, two of whom I got to serve with in the House
and in the Senate, and General Scowcroft, you're extraordinary
service is legion.
Here's how I come to this. First, I can't help but noting
that the staff has pointed out that this is Groundhog Day.
[Laughter.]
Senator Wyden. You know, we've gone at this thing again,
and again, and again. Let me start with you, if I could,
Congressman Hamilton, old friend.
You know, on this question of voluntarism, it seems to me
as important as that is, it's really not voluntarism. It's good
science. All of these issues are constantly driven by good
science policy. I know you shared this view as well.
I mean, at the end of the day if somebody volunteers, we
still have to find a way on the repository issue to make sure
it's a safe place where you can keep it for a thousand years.
So if you would, give me your sense of how we can figure
out a way to link the idea of getting people to volunteer--
which nobody I think in their right mind could be opposed to--
can link that in a very practical way to getting the good
science that, at the end of the day, is going to help us figure
out how to do this.
Mr. Hamilton. Obviously you have to have good science. You
cannot dump this stuff in a place that can't contain it for a
long, long period of time.
So what has to be done is the Federal Government--and it is
my understanding, at least under today's authorities in law--
it's up to the EPA to develop generic disposal standards and
the necessary regulatory requirements to go along with that. So
that those standards, scientifically based, would have to be a
prerequisite, if you would, of moving ahead with regard to any
site.
So when I'm speaking about voluntary I didn't mean to
exclude the good science part of it, obviously.
Senator Wyden. I understand.
Mr. Hamilton. The two things have to go together.
Senator Wyden. I think we'll want to follow up with your
staff some more, because obviously you've done a lot of good
work in this area. But that was my one concern in terms of the
big picture issue, is how the link was going to work between
voluntarism and good science.
Let me--if I might--ask you three, because of your
expertise, a question on the defense waste issue. Maybe we'll
bring you into this, General Scowcroft, because of your
military background. This is something that concerns folks in
our part of the world, Senator Cantwell's constituents, and
hundreds of thousands of folks in the Northwest because the
Columbia River, Hanford, you know, really are our lifeblood.
Concerned about how the process is going to go forward to
dispose of high-level waste from the nuclear weapons program.
Over the years there's been a sense it really went to
Hanford because, well, Hanford was there. When you think about
Yucca, I mean, one of the unfortunate secrets about Yucca was
that it wasn't going to be big enough for all of the waste that
needed to be disposed of. I mean, for 70,000 tons of spent
fuel, your own report indicated that we would need much more
than that. You all note continued operations, current plans
would roughly double the amount of spent fuel by 10-50.
So the bottom line is that our country needs to find
capacity to dispose of a lot more nuclear waste than really has
gotten out, one, and that putting all of the nuclear waste eggs
in one basket--like some thought about with respect to Yucca--
seemed to me to be a questionable approach from the get-go.
I'd be interested in the thoughts of the 3 of you, whoever
wants to take it, I thought of you Mr. Hamilton, and General
Scowcroft, all of you, Senator Domenici as well. How many
disposal sites do you all think the Federal Government ought to
be pursuing to deal with this defense waste issue? What's your
sense? Congressman Hamilton, you want to start? Any of you
three.
Mr. Hamilton. I think what we said in the report is one or
more. We really did not try to make a judgment about that. I
would think almost certainly it would be more than one, but my
judgment would be we'd end up with several.
There are plenty of sites I think available in the United
States that would qualify, but we did not make a recommendation
nor did we try to say how many.
Senator Wyden. My time is getting to run out. General
Scowcroft, Senator Domenici, either of you on that?
General Scowcroft. I think that is correct. Whatever
happens to Yucca Mountain, for example, we will need another
site, we know. So there will be at least two. I think we had
not--we did not have the resources nor the time to make the
differentiation between government-created waste, which is much
of what is at Hanford, and commercial reactor fuel.
So, one of our recommendations is to urge a quick study on
whether or not the government-owned fuel--or, the government-
owned waste--should be a part of this system, or whether DOE
should continue to manage that. We simply didn't have the time
to look into that.
Senator Wyden. Last words from my friend Senator Domenici,
if he wants it.
Senator Domenici. I think you ought to--in response to your
question, I would suggest that the committee take a good look
at the reality of military waste or defense waste. Much of it
is ready to be disposed of; it's already been put in glass,
whatever the words are for that. What do you call that when
it's been--it's gone through the process of vitrification and
it's ready.
We did not have the time to pass on whether we should
separate that out and go with a repository for it all its own,
but we suggested that the executive branch look quickly at what
should be treated differently and proceed, perhaps, with
dispatch to establish a facility for the military.
Actually if you wanted to prove up something you could do
that one and do it first. It is ready and it is not reusable. I
mean, it doesn't have to wait around to be reused. It is
finished. It's going to be in that form and never used again,
and there's a lot of it ready to go.
Senator Wyden. Thank you, Mr. Chairman.
The Chairman. Senator Risch.
Senator Risch. Thank you.
Gentlemen, I was really looking forward to the report,
being from Idaho. We're very anxious to have a permanent
repository identified. I was hoping it was going to be one page
with a picture of the United States and a red arrow pointing to
a spot.
[Laughter.]
Senator Risch. But obviously that didn't happen, nor did it
come close to that, so I was deeply disappointed.
Where are we going here? I mean, here we are, February 2,
2012. We're the same place we've been year after year after
year. Who's going to do this? When is it going to be done?
Where is the location going to be?
We have spent billions, and billions, and billions, the
most powerful country in the world, and we can't figure out
what to do with this. Help me out here, where are we going?
General Scowcroft. Senator, that's what we tried to solve.
But as Mr. Hamilton said, you know, there's no easy answer. But
I think we've got the right answer. I think we're going in the
right direction.
As we look at other countries who have struggled with this,
the ones who have made progress are the ones who have dealt--
have adopted this consent approach. That is, you make it
valuable to local communities. In Sweden's case, they bid for
it.
So, rather than start--or continue the way we have, which
is force it down, you guys are the ones who are going to do it
whether you like it or not, to make it an attractive thing to
have happen, which has been the case in Finland, Sweden, Spain,
and it's going that direction in Canada.
We think that's the way to go. I think if we can get this
thing started and going--it's not going to be done tomorrow,
there's no question about it. It's going to take a matter of
some decades.
Mr. Hamilton. There's a lot of frustration here, Senator,
as you expressed, because we haven't moved forward on it.
We took a guess in the report as to how long it would take,
and we said 15-20 years, I believe, to identify and locate a
geologic repository, and 5 to 10 years a consolidated storage
site. Now those are guesses, but it is important here that you
have some realism about what can be done and how quickly it can
be done.
We've wasted, as you suggest, an awful lot of time----
Senator Risch. Money.
Mr. Hamilton. Money in dealing with this, a huge amount of
both. So the frustration levels are understandably and
justifiably high. But, having said that, to do it right is
going to take some time, and people have to get into their
mindset on this that it is going to take decades to solve this
problem and not years.
Senator Domenici. Senator, might I say--I didn't get to
know you very well by the time I left the Senate but I know
from whence you come and who you follow, so I would expect you
to be anxious about this and wondering.
But I would throw it back to you and say we have concluded
there's no way to do it without some new laws, so if you agree
with us then I would throw it back to you. You ought to help us
by getting on board and working to get this law changed.
Second, the administration has to change the funding
mechanism, as our chairman has indicated, or there's no chance
to have the money used for what it's supposed to be. We have
entangled it so much, we've got to untangle it whether we like
it or not. We've got to do that.
So I'd say you ought to help us, and the committee ought to
push the administration to support the Hamilton-Scowcroft
letter, which recommends that they make some changes to get
things going.
Mr. Hamilton. One of the questions the House Members raised
with us was how long is it going to take to set up the new
organization? That's your question, that's not our question. We
can't answer that. I'd like to see the new organization set up
this year. I doubt very much if that's possible with all that
you've got on your plate, but at the House side they were
talking 2 or 3 years to set up the new organization.
Now what we don't want to happen is to have everything come
to a stop until the new organization is set up, if it is set
up. That would be awful. That would be another 2 or 3 years of
dead in the water.
So we therefore suggest that the administration move ahead
on the funding, as Senator Domenici has said, and in other
areas so that we're just not losing valuable time.
Senator Risch. I think saying that I'm deeply disappointed
is an understatement, and I think that's true for the American
people.
Second, I appreciate what you've done and admire your
perseverance, but I really question about sitting around
waiting for someone to jump up and say, ``We want to take
this,'' because so far that hasn't happened or come anywhere
close to that.
Not only that, but when somebody does that there's always
neighbors in the same neighborhood that say, ``Absolutely
not,'' then you're deeply divided.
Just as importantly, you've got to transport this stuff. In
Idaho we've had--even the transportation has caused horrendous
problems. Somebody's got to take the bull by the horns and do
it.
Thank you, Mr. Chairman.
The Chairman. Senator Udall.
Senator Udall. Thank you, Mr. Chairman.
Good morning, gentlemen. Thank you for all the important
work you did on the Blue Ribbon Commission, and more broadly,
for all your service to America for all these years. You're
shining examples to all of us. When I grow up I want to be like
all 3 of you.
[Laughter.]
Senator Udall. I support and encourage responsible
development of safe nuclear power, and I think it's the goal
that colleagues on both sides of the aisle share. In
particular, you in your report highlighted the need for a well-
designed Federal R&D program so that we could lead the world in
advancements in nuclear technology.
One of the long-term efforts you cite as a potential is a
game-changing nuclear technology development that would have
large benefits in the areas of jobs, energy security, and
economic growth. You particularly talk about small modular
nuclear reactors.
The chairman, the ranking member and I, and a number of
other members of this committee have had a real strong interest
in SMR, which we believe would make nuclear power more safe,
secure, and cost-effective.
Could you expand, in that spirit, the Commission's
recommendations to encourage further R&D in innovative small
modular reactors, which would hopefully be safer and would have
better financing structures?
Mr. Hamilton. We had on our Commission some real experts on
this, and the General and I are not the experts on the nuclear
technology. What we feel is that the advances that are taking
place today in nuclear energy technology have the potential to
deliver a lot of benefits in the future.
What we cannot do at this point--I believe I'm correct in
saying this--that we know exactly what needs to be done for the
future of nuclear energy. In other words, the field is
sufficiently fluid, that there are a lot of options still being
explored.
So, we left it that we would support vigorous, robust,
advanced R&D research on advanced reactors and on fuel cycle
technologies. In the near term, of course, we have to focus a
lot on the safety and performance of existing reactors.
Right in the middle of our work, Fukushima occurred and
that focused our attention, of course, on the whole safety
question.
In the longer term, we think that the game-changing
technologies may very well appear, and we hope they do. They
could dramatically change. So what you have to do is put into
place a process here that doesn't lock us in, that keeps the
options open for us in the future to see how the science
develops, and then be in a position that you can take advantage
of the science.
Senator Udall. General Scowcroft, do you----
General Scowcroft. Yes, we were not asked to make
recommendations about a nuclear future or a nonnuclear future
for the country. But we felt that in order to look ahead and to
try to deal with a future where energy becomes more and more
expensive, and more and more desirable and necessary around the
world, that we ought to keep our options open--and therefore,
both in reactor design and in ways to deal with the fuel so
that we can use more than about the 1 percent of the energy
value that we use now, to see if there are not better ways to
go.
As I say, that was not a primary focus. Whatever--whatever
science can do, so far there's no one who has said, ``Yes, we
can literally use it all in a way that there is no waste.'' So
we focused on that aspect, which was what our charter was.
Mr. Hamilton. Senator Domenici, you wanted to make a
statement--and then he has to leave.
Senator Domenici.
Senator Domenici. Mr. Chairman, Senator Udall, I apologize
for interrupting.
I just wanted to say to the Senator from Idaho--I believe
you should meet the leadership of the city of Carlsbad, New
Mexico, and Hobbs, New Mexico, and I believe you should visit,
if you have not, the Waste Isolation Pilot Project one mile
underground in New Mexico, harboring a 10-year effort wherein
high-level transuranic waste has been buried.
The people in that area are led by individuals who are
informed about waste. They could come here and take a seat up
there with you all and--pardon me, but do better than we do.
They know more about it, they have been with it and arguing
for it for years. They are the kind of leaders we're looking
for in the country for other sites, if any, because that's how
you'll get it done. It is very safe when it's done right, and
it's very remunerative to the society that surrounds it if done
right. New Mexico is a shining light in that regard, there's no
question about it.
Now you have to prove that if you--looking at a medium, you
have to prove that the heat that would be added in addition to
the transuranic to get the high level, that that salt or
whatever geological formation will contain that extra heat--you
should know that even though that sounds like it ought to be
done next week and you would say, ``Get on with it,'' some
predict that will take quite a long time to get done, to see
what the heat level that will be containable--if you just move
into that salt.
Salt is being used as one of the excellent modiem. That one
there has not moved, that salt has not moved in 40 million
years. So you're into some very, very safe areas.
I just wanted to say that because it should be on the
record, and you should know that there are people at the local
level who are going to support this, that have learned that it
is good. We're not going to get it any faster than we are
producing local leaders that are willing to stick their necks
out and fight for it.
We expect that. We expect Governors to do it. If they
don't, it's pretty hard to get it done.
I thank you, Mr. Chairman, I'm sorry that I have to leave.
The Chairman. Thank you for being here.
Did you want to make a comment? Then we'll go back to
Senator Udall.
Senator Risch. Very briefly--I haven't spoken to the county
commissioners in Nye County, Nevada, but they tell me that
they're fully on board with this and want to proceed with Yucca
Mountain. If you can't do that, then where are you going to go?
Here's the county commissioner, which is the highest local
authority that there is, and they say, ``Come on, bring it
on,'' and we won't do it, so.
Senator Cantwell. Mr. Chairman.
I know we're still on Senator Udall's time, but Senator
Domenici brought up a very interesting, and very prevalent, and
very important point for us in Washington State and the Tri-
Cities, and that is the possibility of prioritizing the
military waste and moving forward more quickly on that.
We just can't allow Washington State to be the repository
for 90 percent of the Nation's high-level waste and then think
we've done our job. So I know this wasn't the primary problem
the report was addressing, but now you've brought up an
interesting point here, so I want to follow up on it, and how
we could proceed on that recommendation or on Senator
Domenici's comments, I should say.
Mr. Chairman. Senator Udall was in the middle of his
questioning. I hesitate----
Senator Cantwell. So maybe Senator Domenici and I could
follow up. I know he's leaving, but this is a very important
issue; so I appreciate your comments this morning and will look
forward to hearing more from you--maybe officially for the
record. Thank you.
Senator Udall. Mr. Chairman, I'm a patient man. I think
this is an important conversation, but I would reclaim----
Mr. Chairman. It's very possible that Congressman Hamilton
or General Scowcroft would have a comment on this issue when we
get to Senator Cantwell's questions.
So why don't you go ahead, Senator Udall.
Senator Udall. I'm reclaiming my time from the chairman,
Senator Risch and Senator Cantwell.
[Laughter.]
Senator Risch. Himself.
Senator Udall. Myself. To talk just briefly, I think I had
about 40 or 50 seconds left before we had an important set of
statements from Senator Domenici.
What can we be doing at the IAEA level to build on the
successes there, but also the ongoing challenges that we face
at the international level tied to global nuclear safety and
security?
General Scowcroft. I think what we ought to be doing at the
IAEA--or let's say at a global level--is to be taking steps to
internationalize the fuel cycle so that we don't have every
country, like Iran for example, that says, ``Yes, we want
nuclear power, we want to enrich uranium.'' Now we have the
case, UAE has just decided they want nuclear power and they
said, ``We're not going to enrich uranium.'' Those are the
kinds of things that we ought to focus on.
So, if we can internationalize the fuel cycle so that the
IAEA is responsible for making sure that any country with
reactors that meet the safety and security standards has fuel
available, and that we can take away that spent fuel
afterwards.
That seems to me what the country ought to be looking at in
terms of going forward. There are some 60 nuclear plants now
being started. Whether we go ahead with nuclear power or not,
the world is. The only way we can influence it is to get our
own act in order and try to do it in a way which doesn't leave
us a badly proliferated world.
Senator Udall. Thank you, General Scowcroft.
Thank you, Chairman Bingaman.
A 10-second final comment: I know there's plenty of blame
that could be apportioned for the situation we find ourselves
in, but I appreciate the tone that you have said and
Congressman Hamilton, Chairman Hamilton, you did this in the
House yesterday, which was say, ``Look, we can spend all our
time blaming each other but our strength has always been as a
country we learn the lessons and then we move forward.''
Hopefully that's what we can do in this important policy arena.
Thank you again for your hard work.
General Scowcroft. That's basically what we're
recommending, and I understand Senator Risch's irritation and
complaint.
But there is no simple way to do this. We think we have a
process which will work, and as I said, our Commission is
composed of members with very different ideas about nuclear
energy itself, and from different parts of the industry. We
have come--surprising to me--to a unanimous conclusion about
our recommendations.
I didn't think when I first sat down with the Commission--I
didn't think we had a prayer of coming up with a consensus
report.
Senator Udall. You did, you must have prayed overtime.
[Laughter.]
Senator Udall. Thank you, Mr. Chairman.
Mr. Hamilton. Senator Udall, we make 3 areas in the
international area--we make recommendations in 3 areas. One is
safety, one is nonproliferation, and the other is security. In
each of those areas, particularly in the latter 2, you're
really going to have international involvement or you're not
going to solve the problem.
We can't solve the problem of nonproliferation by
ourselves. We've got to have the support of certain countries
and the international community. These countries are going to
go after the development of nuclear energy, there's not much
doubt about that. We want to make sure that they go about it in
a way which will protect nonproliferation interests, for
example.
That will require high-level diplomatic efforts on our
part, but also working with and strengthening, in my view, the
IAEA. It's a very important organization here.
Senator Udall. Thank you.
The Chairman. Thank you.
Senator Heller.
Senator Heller. I have a comment I'd like to read into, or
a statement I'd like to read into the record. But to start
with, I'd just like to broaden our perspective, perhaps with
some of my colleagues here, that the argument for or against
Yucca Mountain doesn't begin and end in Nye County. I think
that's fair to say.
These are good county commissioners and I've met with them
all, and I understand their concerns. I think it's important,
though, to understand that both United States Senators,
Governors, lieutenant Governor, the majority of the State
Senate, the majority of State legislature, for that matter, is
opposed to this site. So, anyway, again I understand where the
local government is on this particular issue, but I would hope
that our perspective is much broader.
But to begin my statement, Nevada is home to Yucca
Mountain. Our State has been dealing with this boondoggle
project for literally decades. I'm grateful to have an
opportunity to talk about this issue because of the serious
implications that it has with the State of Nevada.
I know many of my colleagues disagree with me on this
issue. The irony of the situation is that both opinions stem
from concerns relating to the importance of the Nation's
nuclear waste in our respective backyards. In other words,
don't put it on our backyards, we want it in your backyard.
According to the Government Accountability Office over the
past 20 years, the proposed site has suffered from gross
mismanagement, faulty science and research, contract
mismanagement, and most alarmingly, questions about the safety
and design of the site and its impact on its surrounding
environment and people.
I'm a strong supporter of a need to responsibly develop our
Nation's energy resources, including--including--nuclear
energy. However, the key to my position is the need to be
responsible, and the history of Yucca Mountain is far from
responsible.
Congress approved the Nuclear Waste Policy Act in 1982,
which charged the Department of Energy with the responsibility
of finding an appropriate repository site for the disposal of
spent nuclear material.
At the time, Yucca Mountain was one of many, many proposed
geological sites to investigate based on rigorous guidelines.
Unfortunately, the Act was then amended in 1987 to concentrate
only on one site: Yucca Mountain.
Nevada, a State without any nuclear power plants, was
legally compelled to bear the sole burden of long-term storage
of the Nation's nuclear waste. This decision in 1987
infuriated--or initiated a one-sided debate, and a study of
alternatives has been curtailed ever since, infuriating many in
Nevada.
Given the historically politicized nature of this project,
I don't trust the Federal Government to appropriately manage
the proposed Yucca Mountain facility. I believe Nevadans have
the right to be safe in their own backyards. I recognize the
need to address the problem of spent nuclear fuel, but it must
be solved through careful consideration of all alternatives
based on credible scientific information rather than by
politicians here in Washington.
The Blue Ribbon coalition report seeks to provide a
framework to do just that. I would argue that if the process
would work without Yucca Mountain, it proves that Yucca
Mountain isn't essential.
Having said that, I spent some time with a university
regent from the University of Texas, and I'm not a scientist.
But he said there's a difference between fusion reactors and
fission reactors. I don't know that anybody on the panel can
answer this question, but accordingly, based on this
information, onsite waste is minimized. It's still being
studied; let me say it's very positive results.
Developments look up--looks like it's going upwards, and
many of the energy companies are involved in this particular
study. If you get a chance to take a look at any of this or get
any background information on what alternatives can be done, as
opposed to just burying nuclear waste in the ground?
General Scowcroft. Senator, I can agree with many of the
comments that you made, which is why our Commission was
established. We focused on many of the points that you raised
on the history of it in the United States to try to fix it.
We did not--and were not chartered to--look into the
technology of nuclear reactors or of reprocessing. But we did
look at it, and we had a few experts on the committee to know
that there are scientifically a number of promising
developments. We did not focus on any one other than the
general statement that we should pursue vigorously R&D both in
reactor design and in reprocessing technology.
Mr. Hamilton. What we found confirmed much of what you just
said. I noted you said you don't trust the Federal Government--
I think you said something like that in your statement.
We heard that 150 times in the process, many of them from
your State, who said they don't trust the Federal Government
and the process that was followed. You talked about it being--
Nevada being legally compelled to have this as the sole site
repository. That's exactly right.
That has a certain appeal to it if you don't live in
Nevada, but we don't think it works. We don't think it has
worked to force the decision down. You spoke about a buy-in by
the local community--that's what the consent process is all
about that we recommend.
You have to have the buy-in not just for the folks at the
Department of Energy, and the experts, and the scientists, you
have to have the buy-in of the local community or it's not
going to work.
So the consent process that we put forward is difficult,
it's hard, it's going to call for tough negotiations, but we
think it's the only way to go to reach a solution here.
So I am very sympathetic to the comments that you make
about what's happened at Yucca, and I think so many mistakes
were made in that process that we say this is not going to
work.
Senator Heller. Mr. Chairman, thank you.
I don't have any further questions or comments. I just want
to thank the Commission for their hard work and effort, and
thank those on the panel today for their overall view and
insight on the situation.
The Chairman. Thank you very much.
Senator Shaheen.
Senator Shaheen. Thank you, Mr. Chairman.
Thank you to both of our panelists, not only for being here
today and taking on this issue, but for your continued
willingness to take on contentious issues facing the country.
New Hampshire is home to the Seabrook Nuclear Power Plant.
We are right across the border from Vermont Yankee, so there
has been a lot of--there have been a lot of issues raised over
the years relative to nuclear power in the State.
Back before the 1997 amendments that Senator Heller talked
about, New Hampshire was identified as a potential site for
nuclear waste like Yucca Mountain.
I think it's fair to say that that's one of the most
controversial issues that I've ever seen addressed in New
Hampshire.
I understand what you're saying about the consent question,
but it's still not clear to me how this will work. What's going
to initiate that kind of an effort at a local level in a State
or community that will actually produce the process that would
develop a consensus around taking nuclear waste?
I agree with the thesis that you've got to have support
from the community, the State, but it's still not clear to me
how that actually gets accomplished. So I wonder if you could
speak to that a little more.
Mr. Hamilton. I think it can be accomplished locally up,
and nationally down. I don't think you can tell which way it'll
go. But it could very well be that the national government, DOE
or whatever, would locate potential sites and say to a
community in New Hampshire, ``You've got a spot here that
scientifically works,'' or we think it works. Then the New
Hampshire community may say, ``Well, that's wonderful. We're
not interested.''
In that case, I think the negotiations have come to an end
and it won't work. Then the Federal Government may come back
and say, ``OK, you don't particularly want it, but let me say
we're going to give you blank number dollars, we're going to
create so many jobs, you may want to reconsider.'' The
negotiating process goes forward.
It may also start at the local level, and people who know
that they have facilities that--assets in the community that
might work, would contact the Federal Government.
We can't predict how this process will go forward. We think
it has to be a negotiating process, it has to be consent, and
by that, at the end of the day, we mean there has to be an
agreement struck.
It has to be an agreement among the parties, and that
includes the new organization we're talking about. If it is, in
fact, created, it includes the local communities at county,
city, State levels, and it'll certainly include a lot of others
because there's a huge nuclear community out there in this
country.
So it's not a process that we can spell out for you, but
the initiative could come locally or nationally.
Senator Shaheen. Does it not--I'm sorry, go ahead, General
Scowcroft.
General Scowcroft. It has worked elsewhere. There's an
additional difficulty in the United States because we have a
Federal system. No other country in which this worked has
intermediate government levels like our State government levels
with so much power. That is a seriously complicated factor as
Senator Heller just announced.
But we can't think of a better way of doing it, and one of
our overall national responsibilities is to deal with the
Federal structure in a way that can serve the American people
as a whole, and individually.
I don't think it's beyond--I think the example of New
Mexico and the WIPP plant is very instructive. Because there,
there is some difference between State level and local level.
But it has been subordinated in a way which we found very
positive and very encouraging.
Mr. Hamilton. You might say that in the WIPP case, Carlsbad
volunteered. In other words, the initiative in that case, which
we cite repeatedly as being a successful instance, came
locally, initially.
Senator Shaheen. I'm almost out of time, but I want to
follow up, if I can, just on one issue that you had addressed,
Congressman Hamilton, talking about the transportation
concerns. Because that's something that we hear a great deal of
concern about in New Hampshire, given our proximity the plants
by a lot of small communities.
You talked about the great record that the nuclear industry
has had to date from moving waste. Can you quantify how much of
it moves, in a way that helps us envision just what that means?
Mr. Hamilton. No, I cannot quantify that for you, but I'm
sure we can furnish it for you.
Senator Shaheen. That'd be great. Thank you.
Mr. Hamilton. I've had that experience. They were talking
about moving nuclear waste across my district in Indiana. I'd
go to a public meeting--instead of having 20 people there,
there would be several hundred people there. I'm sure anybody
that's had that experience knows it. They come to that meeting
mad because they don't want it to go across their areas.
So there's a lot of work that has to be done here on
transportation--a lot of work.
General Scowcroft. I think--I can say that the WIPP
facility in New Mexico has received over 10,000 shipments, and
the Western Governors' Association has really developed a very
efficient and effective system to move it.
As Lee has said, there have not been any serious accidents.
But the thing is, if you organize the police and the local
authorities, then if there is an accident they can be on it
instantaneously. But if they don't know what to do, sure.
That's why we focused on the transportation aspect of it.
Senator Shaheen. Thank you.
The Chairman. Senator Cantwell.
Senator Cantwell. Thank you, Mr. Chairman. I apologize
earlier for jumping in with Senator Risch and others on Senator
Udall's time.
I pointed out to the Senator that Rocky Flats is in a
better cleanup position than Hanford is, and that's why I felt
I needed to jump in on his time.
I want to go back to that subject. Obviously Hanford played
an incredible role for our country and we're very proud of
that. We've been working very diligently on something that's
very complex and very costly, and we're hopefully going to get
to an endpoint here as vitrified glass logs start to be
produced in the next 7 to 10 years. But they need a place to
go.
Senator Wyden suggested that the first waste to be looked
at ought to be this military waste, and considering the
complexity of the issue, the timeframe for discussing where
that should go, in my mind should be now.
So General Scowcroft or Mr. Hamilton, not to have you
address what Senator Domenici brought up, but do you have
particular thoughts about the urgency of dealing with the
military waste at Hanford?
General Scowcroft. One of the reasons that we turned to
storage facilities was exactly this point. Because a lot of
people have said, ``Well, why do you want storage facilities in
addition to disposal sites?'' Because that just means more
sites that you have to locate, more transportation, and so on.
But it's exactly to take care of the waste, the government
waste at Hanford and also especially the stranded waste at
nuclear power plants that are shut down. Yet they have to have
this full security system and so on to guard them.
So, the storage facilities that we recommend can be built
much more quickly than a disposal, and that's what we hope.
Mr. Hamilton. I think if I'm correct, you would know most
of the waste at Hanford is defense waste, is it not?
Senator Cantwell. Yes.
Mr. Hamilton. We visited Hanford. We have some
understanding of what you have encountered there. Incidentally,
the people were very gracious to us there and very constructive
in their suggestions to us.
Quite frankly, we did not make a recommendation with regard
to defense waste. The question came to us kind of late in the
process. We did not really have the resources available in the
committee to comprehensively assess the implications of whether
defense waste and civilian waste should be commingled, as I
think it is today, or since the Reagan administration I
believe.
So we ended up, frankly just saying to the administration
that they ought to launch an immediate review of the
implications of defense waste. So we did not address us.
Senator Cantwell. I'm well aware that you didn't. That's
why I'm here this morning, because I do think it's a
shortcoming of the process.
Because the issue at hand is that Hanford is the site with
the majority of the Nation's military waste. We've been in a
diligent process to clean it up. It's not that every solution
put on the table in the past has been sufficient. I mean,
getting a commitment for how much was going to be put in Yucca
Mountain was also a very challenging thing, and that site was
only ever going to take a small percentage of Hanford's waste.
So this is about getting an answer for Hanford and where
this waste will ultimately go. We will now have waste in a
shippable form in these vitrified logs within 7 to 10 years. So
we can move forward.
We can't allow Hanford to become the de facto storage
place. We can't. So I appreciate that what you're saying here
this morning is that you see a path where Hanford waste could
be the first waste to be prioritized and you're actually asking
the administration to do something about that.
Mr. Hamilton. I think it's very important we give those
folks some hope out there, that there is a solution underway.
For a long time I think they've operated with the feeling that
there really isn't any hope. De facto, they're going to be the
repository and we don't want that. That's not the way to do it.
Senator Cantwell. I hope we use the science available to us
today and move forward to a solution to the Hanford waste
problem.
I'll never forget when we had the Western Electricity
Crisis and we saw rates go skyrocketing and we had hearings.
The toughest question we got was from a 10-year-old who said,
``What did you learn in the 1970s, and what have you done to
correct it?''
I think that's the question for us today. What have we
learned over the last 3 decades about how difficult this
process is, and what are we going to do to correct it?
So to me moving forward on doing something about the
military waste is critical.
So, thank you gentlemen.
The Chairman. Senator Murkowski.
Senator Murkowski. Thank you, Mr. Chairman.
Just kind of dovetailing on Senator Cantwell's comments in
response to what Senator Domenici proposed, that perhaps you
move first with the defense waste.
You have mentioned that we have ten stranded sites where
we're incurring pretty considerable expense for the security in
these areas. I don't know how much waste is actually at each of
these.
But it would seem to me that if you've got a situation
where there's no activity going on other than the security, it
may be possible to move first with those stranded sites, those
orphan sites, to move them into a consolidated storage. You
gain some of the confidence that we're talking about.
You know, Senator Risch's frustration is clearly palpable
here, but I think some of it goes to just the frustration that
the American public has on this issue.
As he said, ``If we can't figure out how we take care of
our waste, how we take care of your garbage, how can we do
anything as a government?''
So by moving to deal with these stranded sites first--and I
hesitate to call it a pilot project--but instead of trying to
figure out the whole bigger picture, is this something that you
considered as a Commission? Do you think this is a wise
approach to get us started, kind of addressing what all of you
had said, that there's an urgency to this. We've got to start
sometime. I think you've indicated that the timeline, even
moving to this consolidated storage was 5 to 10 years, I
believe is what you said. That's still a long ways away.
Is that an approach that you might recommend that we take,
is to move first with the stranded sites?
Mr. Hamilton. It is. We think the strongest argument is to
move the stranded fuel first into a disposal--a storage
facility.
Senator Murkowski. Recognizing--I'm assuming that you've
got these stranded sites all over the country. Do you move to
one consolidated storage, or is it regional? How do you advance
that? Because then again you're dealing with the transportation
issue, which I think we recognize is considerable.
Still, even though it is viewed as interim storage, you
still have a lot of the ``not in my backyard'' type of an
approach because of the concern that it may ultimately end up
being the de facto permanent repository. So how do we calm
those fears?
General Scowcroft. That's why we think it's going to take 5
to 10 years even for storage facilities. But again, we would
use the same consent-based process to site the storage
facilities.
Now you don't have the same criteria that you need for
disposal, but that's the way we would proceed. We do
specifically establish--one of the main reasons for the whole
storage facilities is to deal with the stranded fuel.
In the process, though, we can learn. We can learn more
about the transportation, we can learn more about how to go
about these things as we proceed, and that will be helpful as
we look at the disposal sites.
Senator Murkowski. Can you give me any sense as to how many
consolidated storage sites you might need, given the ten
stranded sites that we have now?
Mr. Hamilton. We said one or more, but the answer is we did
not try to determine----
Senator Murkowski. Several, I think is what you said.
Mr. Hamilton. How many consolidated sites there should be.
But the important thing that I think your question raises is
the linkage between the storage and the disposal. You just
cannot go down one track. You've got to do both of them. You've
got to start on looking for storage, you've got to start
looking at repository so you get away from this feeling that
several senators have expressed about people having no hope
that they'll ever get rid of this stuff.
General Scowcroft. But I would point out again at WIPP,
which is one place it has really worked, is the local
authorities there have already leased some land in anticipation
that they could be selected as the storage site, right next to
their permanent disposal.
So it sounds daunting, but we're not without hope that if
it's pursued diligently and carefully, it will work.
Senator Murkowski. I thank you. I think again, the more we
look at this, the more we realize, as you've repeated, there
are no easy answers here and this is why we're sitting here
years later, decades later, and millions and billions of
dollars later.
I do share your sense of urgency though, that we must get
moving on this. I appreciate the fact that the chairman, along
with the chairman and the ranking member on the Appropriations
Committee, are sitting down trying to figure out if we can
develop an action plan. So I'd hope to work with you and others
on this, extraordinarily important.
I thank you, Mr. Chairman, for your leadership on it as
well.
The Chairman. Thank you.
Let me just ask one other line of questions. This is on the
liability issue. You say in your report the Federal Government
is going to be liable--I think you say for an estimated $20.8
billion in damages under the utility contracts even if we are
able to start accepting waste by 2020, and that it will be
liable for an additional $500 million each year--for each year
of delay.
What do you see happening to that liability if we set up
this new entity that you're talking about, this new
governmental corporation. Would we want to transfer reliability
to that corporation?
I think it's clear from court decisions that these waste
contracts cannot get redress or damages out of the nuclear
waste fund. Is there any thought about what we do to deal with
this liability problem as part of your recommendations?
General Scowcroft. I don't think we focused on that.
Mr. Hamilton. I'm not sure I can answer your question,
Senator, but what we know is that these liabilities are coming
due every year now, and they are getting very, very sizable.
They are paid out of the judgment fund in the Treasury
Department, and they will explode in the years ahead.
Now if nothing is done here, that liability just continues
to grow. I think once you begin this process of putting into
place a plan for the handling of these waste materials, both in
storage and in disposal, what you will see then is a series of
negotiations to resolve these liability questions and to bring
them to an end.
I don't suggest that'll be easily done or quickly done, but
you will bring the process to an end in time if we put into
place a process for dealing with nuclear waste.
The Chairman. Would you expect this newly established
corporation to have the job of accomplishing that negotiation
as well, or do you think that would remain with the Department
of Energy?
Mr. Hamilton. Yes, I think that would be the center of it
because they will have the responsibility to build and to
manage the whole system, and this would be a big part of it a
very big part.
The Chairman. All right, General, did you want to comment?
General Scowcroft. No. No, This is something I think we
suggest that Congress is going to have to look at, in how to
deal with the liabilities.
The Chairman. All right. We very much appreciate the good
work that's gone into your report and your Commission's hard
work on this, and both of you very much being here to testify
today.
That will conclude our hearing.
[Whereupon, at 11:23 a.m. the hearing was adjourned.]
APPENDIX
Responses to Additional Questions
----------
Responses of the Blue Ribbon Commission to Questions From
Senator Bingaman
adequacy of the nuclear waste fee
The Department of Energy says it has spent about $7.5 billion from
the Nuclear Waste Fund in the past 29 years, most of which has been
spent on Yucca Mountain.
The program the Commission is proposing appears to be considerably
more expensive than the Yucca Mountain-only program. The Commission is
proposing, in addition to a geologic repository, one or more interim
storage facilities, more generous incentive payments to host states and
communities, more shipments to move spent fuel from reactors to interim
storage and then to a repository, more financial assistance to states
and tribes for transportation planning, and the cost of a new waste
management organization.
At the same time, the Commission says that it is confident that its
recommendations can be implemented using the existing nuclear waste
fee.
Question 1. Does that mean that the one mil per kilowatt-hour fee
is sufficient to pay for the proposed program or will the fee need to
be increased to ensure full-cost recovery for the expanded program?
Answer. The BRC makes no determination as to the adequacy of the
current level of the nuclear waste fee. Depending on a number of
factors affecting the needs of the program in the long term, the waste
fee may need to be increased or even decreased if necessary to ensure
full cost recovery as determined by the Secretary. The BRC notes that
the existing nuclear waste fee generates approximately $750 million per
year, and that any realistic program activity to implement the BRC's
recommendations in the short term will not likely need additional
funding.
Question 2. The Secretary of Energy currently has authority to
raise or lower the fee, but has never used it. Assuming that the fee
might need to be adjusted someday, who should have the authority to
adjust it? If responsibility for implementing the program is
transferred to a new government corporation, should the corporation
have that authority, or should it remain with the Secretary? What role,
if any, should Congress have in approving a fee increase?
Answer. Under current law, the Secretary of Energy is required to
make adjustments to the fee, as necessary, to ensure recovery of the
full costs of managing and disposing of commercial spent nuclear fuel.
Giving authority to review and approve fee increases to an independent
organization with suitable expertise and staff would enhance confidence
that the increases are just and reasonable and are not simply the
result of ineffective use of the program's resources. In 1984, DOE's
Advisory Panel on Alternative Means of Financing and Managing
Radioactive Waste Management Facilities (also known as the AMFM Panel)
recommended that a ``Waste Fund Oversight Commission'' be established
for the specific purpose of ensuring that NWF fees are being used cost-
effectively and to approve or disapprove proposed changes to the level
of the fee. In its 2001 update of the AMFM study, DOE instead
recommended that the Federal Energy Regulatory Commission (FERC) serve
this purpose.
Since the FERC already exists and deals with rate issues, the Blue
Ribbon Commission recommends that it be used for this function. As it
determines how to carry out this new responsibility, we encourage FERC
to consider the development of a ``joint board'' with state
commissioners as provided for under Section 209 of the Federal Power
Act.
The BRC believes that requiring congressional action for approving
nuclear waste fee changes could frustrate the objective of timely
adjustments to ensure that neither too little nor too much is being
collected, and could add to the belief by many stakeholders that the
process was being unduly influenced by political considerations.
Although the Nuclear Waste Policy Act of 1982 provides for a one-house
veto of any fee change, a subsequent court decision ruled that the one-
house veto provision is unconstitutional and that fee changes proposed
by the Secretary will automatically go into effect unless Congress
passes legislation to prevent it. In its 2010 Fee determination letter,
the DOE stated: ``The Eleventh Circuit in Alabama Power struck the
``unless' clause from the fee adjustment statutory provision as
violative of the Supreme Court decision in INS v. Chadha, 462 U.S.919
(1983). See Alabama Power Co. v U.S. Department of Energy, 307F. 3d
1300 (2002). As a result, the statute that remains reads `the adjusted
fee proposed by the Secretary shall be effective after a period of 90
days of continuous session have elapsed following the receipt of such
transmittal [to Congress],' while the clause `unless during such 90-day
period either House of Congress adopts a resolution disapproving the
Secretary's proposed adjustment. . .' was invalidated.''
Question 3. Should the utilities be expected to pay more if the
program is restructured?
Answer. Yes, if lifetime costs of the program increase as a result
of the restructuring. The Commission does not recommend a change to the
full-cost-recovery principle that was established in the Nuclear Waste
Policy Act and the contracts with utilities. Certainly it will cost
something to implement a successful U.S. waste management program;
however, trying to implement a flawed program that is not working could
be even more costly
authority to change the timing of fee collections
The Nuclear Waste Policy Act expressly require nuclear utilities,
through the waste contracts, to pay to the Secretary of Energy a fee of
one mill per kilowatt-hour on all electricity generated by nuclear
power and sold on or after April 7, 1983, and it expressly requires the
Secretary to deposit those fees in the Nuclear Waste Fund in the
Treasury.
The Commission proposes that the Secretary allow the utilities to
pay all or part of those fees to a ``third-party financial
institution,'' and asserts that the Secretary has the authority to do
so under existing law.
Question 4. Where in the Nuclear Waste Policy Act or other law is
the Secretary given authority to allow payment of fees to a third-party
financial institution, rather than to the Secretary for immediate
deposit into the Treasury?
Answer. During the course of its investigation, the BRC asked
outside legal counsel to examine this question. Their legal analysis of
BRC recommendations for near-term actions has been submitted to the
Committee.
Page 9 of this analysis states, ``Section 302(a) of the Nuclear
Waste Policy Act does not prescribe a specific method of collection of
the nuclear waste fee. Rather, it gives the Secretary authority to
establish procedures for the collection and the payment of the fees.
This section gives the DOE broad discretion to select the method of
collection and payment of the fee and a clear legal basis for
prescribing a method that differs from the current methods, if DOE
chooses to do so. There is nothing elsewhere in the NWPA that prohibits
the Secretary from changing the current process of fee collection and
payment, so long as contract-holders agree to the change. Moreover,
there is long-standing administrative precedent under the Standard
Contract for providing various options for structuring payment and
collection of the fee.''
The analysis also points out that the Secretary is required to
deposit funds in the NWF only upon ``realization'' of those funds.
``Realize'' is not defined in the NWPA, but the definition and
interpretation under other laws (e.g. the Internal Revenue Code)
support a conclusion that payment of nuclear waste fees into a third
party trust account would not constitute a ``realization'' by the
Secretary because the Secretary has not received or taken possession of
the funds, and the funds in the trust account would be subject to a
restriction precluding their disbursement except for specified
purposes. For these reasons, fees deposited directly into an
irrevocable trust account under the BRC's proposal would not be
``realized'' by the federal government unless and until they are drawn
down in accordance with the specific restrictions contained in the
trust instrument.
The analysis concludes, ``...we believe that there is a sound legal
basis for concluding that the Secretary's broad statutory authority
under the NWPA to prescribe procedures for the payment and collection
of the nuclear waste fee permits him to postpone the time of collection
of a portion of the fee. That authority, together with the Act's
specific direction respecting timing of deposit of fees in the
Treasury, permits the Secretary to require use of an irrevocable trust
account to safeguard the government's interest in ultimately receiving
the fees.''
We also note that our proposal to delay collection of part of the
fee is a modified version of an approach proposed by the Secretary of
Energy in 1998 as part of a litigation settlement concept.
Specifically, DOE proposed to offer to amend its contracts with
utilities to allow utilities to retain the portion of the 1 mill/kwh
fee that exceeded the annual appropriations level, to be paid (with
interest) later. In proposing this approach, the Secretary of Energy
stated that this ``can be accomplished promptly within [DOE's] current
authority.'' We have attached a copy of the May 18, 1998 letter from
Secretary of Energy Federico Pena to Alfred William Dahlberg, Chairman,
President, and Chief Executive Officer of Southern Company, making this
offer.
attachment
VanNess Feldman, Attorneys At Law,
1050 Thomas Jefferson, Street, NW,
Washington, DC.
TO: Blue Ribbon Commission on America's Nuclear Future
FROM: Van Ness Feldman, P.C.
DATE: July 29, 2011 (REVISED: October 11, 2011)
RE: Legal Analysis of Commission Recommendations for Near-Term Actions
At the request of the staff to the Blue Ribbon Commission on
America's Nuclear Future (``BRC''), we have reviewed whether certain
recommendations in the BRC's July 29, 2011 Draft Report respecting
near-term actions by the Department of Energy (``DOE'') or other
officers or agencies in the Executive Branch can be implemented under
existing law. These recommendations relate to:
(1) Initial steps to site, license and construct consolidated
interim storage facilities for spent nuclear fuel (``spent
fuel'');
(2) Changing the order in which DOE accepts spent fuel from
commercial nuclear reactor licenses (the ``queue'') under DOE's
Standard Contract;\1\ and
---------------------------------------------------------------------------
\1\ Standard Contract for Disposal of Spent Nuclear Fuel and for
High Level Radioactive Waste, 10 C.F.R. Sec. 961.11 (2011) (``Standard
Contract'').
---------------------------------------------------------------------------
(3) Changing the timing and method of payment of the nuclear
waste fee by licensees.
We conclude in Sections I-III of this memorandum that these
recommendations can be implemented under the existing provisions of the
Nuclear Waste Policy Act of 1982 (``NWPA''). We also conclude that the
BRC's recommendation respecting modifying the queue for spent fuel from
decommissioned reactors is consistent with the provisions of the
Standard Contract.\2\
---------------------------------------------------------------------------
\2\ Most of the provisions of the NWPA and Standard Contract we
discuss apply to high-level radioactive waste (``HLW'') as well as
spent fuel. For simplicity of presentation, we discuss only spent fuel
but our conclusions respecting spent fuel in general apply to HLW also.
---------------------------------------------------------------------------
Section IV of this memorandum examines the list of near-term action
recommendations provided in Chapter 12 of the Draft Report. The
recommendations that are directed at DOE can be implemented using funds
from the Nuclear Waste Fund (``NWF''), as long as the recommendation
fits within the scope of Section 302(d) of the NWPA and the requisite
appropriation is provided by Congress.
Section V of this memorandum reviews the federal government's
authority to accept spent fuel from foreign commercial reactors. This
concept was raised in Chapter 11 of the Draft Report under the
subsection on multilateral / multi-national fuel cycle options.
i. consolidated interim storage
A. Introduction
The BRC staff has asked us to address the statutory authority of
DOE to provide consolidated interim storage of commercial spent fuel.
In this section of our memorandum, we address the extent of DOE's
authority under the NWPA\3\ to investigate, site, develop, license,
construct, fund, and operate one or more consolidated interim storage
facilities, and whether the BRC's recommendations for near-term action
respecting consolidated interim storage can be implemented under
existing law.
---------------------------------------------------------------------------
\3\ 42 U.S.C. Sec. 10101, et seq. (2006).
---------------------------------------------------------------------------
B. Recommendations of Draft Report
The BRC makes the following recommendations respecting near-term
actions to initiate work on consolidated interim storage:
``Work toward a consolidated storage facility can begin
immediately under the existing provisions of the Nuclear Waste
Policy Act, which authorize the federal government to site and
design a monitored retrievable storage (MRS) facility and
obtain construction authorization. Further legislative action
would not be required until prior to designation of a MRS
facility site (and potentially not until the construction
phase), at which time Congress would need to amend the NWPA to
allow DOE to go forward independent of the status of a
permanent repository.''\4\
---------------------------------------------------------------------------
\4\ Draft Report, Sec. 5.2.2, pp. 41-42.
---------------------------------------------------------------------------
``[I]t is important to reiterate an earlier point: that
sufficient authority already exists under the NWPA to begin
laying the groundwork for consolidated storage without further
delay, assuming Congress makes appropriations available for
this purpose. Specific steps that DOE could take in the near
term include performing the systems analyses and design studies
needed to develop a conceptual design for a highly flexible,
initial federal interim spent fuel storage facility, assembling
information that would be helpful to the siting process for
such a facility, and working with nuclear utilities, the
nuclear industry, and other stakeholders to promote the
standardization of dry cask storage systems with an eye to
facilitating later transport and consolidation in centralized
storage and/or permanent disposal facilities.''\5\
---------------------------------------------------------------------------
\5\ Draft Report, Sec. 5.3, p. 48.
---------------------------------------------------------------------------
C. Authorities Under Existing Law
In 1982, Congress enacted the NWPA to address the issue of nuclear
waste. The NWPA created the current structure for nuclear waste
disposal in the United States by directing DOE to create a permanent
repository for spent fuel and high-level waste (``HLW'') using funds
derived from a 1 mil/kWh fee on civilian nuclear power generation, to
be paid into the NWF. In addition to authorizing a permanent geologic
repository at a site that was later identified as Yucca Mountain, the
NWPA provided two main avenues for DOE to provide temporary interim
storage for spent fuel.
Subtitle B of Title I of the NWPA established a limited interim
storage program. Section 135 authorized DOE to provide up to 1,900
metric tons of interim storage of commercial spent fuel under certain
restricted conditions.\6\ Section 136, however, limited DOE's authority
to enter into contracts for such interim storage to the period between
January 7, 1983, and January 1, 1990.\7\ Accordingly, this authority
expired in 1990.
---------------------------------------------------------------------------
\6\ NWPA Sec. 135, 42 U.S.C. Sec. 10155.
\7\ NWPA Sec. 136, 42 U.S.C. Sec. 10156.
---------------------------------------------------------------------------
Under Subtitle C of Title I of the NWPA, DOE has the authority to
site, construct and operate a Monitored Retrievable Storage (``MRS'')
facility.\8\ The MRS facility could serve as the kind of consolidated
interim storage facility contemplated by the BRC. It would accommodate
spent fuel and HLW from civilian activities, but, in contrast to a
permanent repository, the MRS facility would be designed to allow for
continuous monitoring, management and retrieval of the materials
pending further processing or disposal.\9\ Authority to proceed with
construction and expansion of the MRS facility is linked to progress on
licensing and construction of a permanent repository.\10\
---------------------------------------------------------------------------
\8\ Authority to site, construct and operate a MRS facility under
Section 141 of the NWPA expired when, by June 1, 1985, the Secretary of
Energy had not submitted a proposal to Congress. However, DOE still has
authority to site an MRS facility under Sections 142-149 of the NWPA,
42 U.S.C. Sec. Sec. 10162-69.
\9\ NWPA Sec. 141(b)(1)(A)-(D), 42 U.S.C. Sec. 10161(b)(1)(A)-
(D).
\10\ NWPA Sec. 148(d), 42 U.S.C. Sec. 10168(d).
---------------------------------------------------------------------------
Pursuant to the 1987 amendments to the NWPA, following issuance of
the Report of the MRS Review Commission described in the statute, DOE
was authorized (but not required) to begin a site selection process for
one MRS facility by conducting ``a survey and evaluation of potentially
suitable sites. . .''\11\ As the BRC has noted, there are many
activities that DOE could pursue in advance of site selection,
including ``performing the systems analyses and design studies needed
to develop a conceptual design for a highly flexible, initial federal
interim spent fuel storage facility, assembling information that would
be helpful to the siting process for such a facility, and working with
nuclear utilities, the nuclear industry, and other stakeholders to
promote the standardization of dry cask storage systems. . .''\12\
---------------------------------------------------------------------------
\11\ NWPA Sec. 144, 42 U.S.C. Sec. 10164. The MRS Review
Commission Report was issued on November 1, 1989.
\12\ Draft Report, Sec. 5.3, p. 48.
---------------------------------------------------------------------------
However, there may be questions as to whether DOE can formally
designate an MRS site without further legislation.\13\ Under Subtitle
C, DOE is barred from selecting a site for an MRS facility until the
Secretary of Energy (``Secretary'') has made a recommendation to the
President for a site for a permanent geologic repository.\14\ Secretary
Abraham recommended Yucca Mountain as the site to President Bush in
2002, and President Bush approved. However, in 2010, Secretary Chu
announced the termination of the Yucca Mountain Project, and sought
leave from the NRC to withdraw the Yucca Mountain Project license
application. While DOE has been careful to insist its decision to stop
work on the Yucca Mountain Project is not based on a finding that the
site is not suitable, DOE's termination of the Yucca Mountain Project
raises the question of whether the Secretary's 2002 recommendation that
the President approved the Yucca Mountain site for development as a
repository is still in effect. That question is likely to be litigated
by opponents of whatever MRS site may be selected.
---------------------------------------------------------------------------
\13\ Draft Report, Sec. 5.2.2, p. 43-44.
\14\ NWPA Sec. 145(b), 42 U.S.C. Sec. 10165(b).
---------------------------------------------------------------------------
If DOE asserts, and the courts agree, that the 2002 DOE
recommendation is still in effect, the Secretary could recommend to the
President a site for one MRS facility. State and affected Tribes' role
in the siting and development the MRS facility is similar to that for
siting and development of a permanent geologic repository.\15\ Under
Sections 143-149 of the NWPA, DOE is required to provide notice of at
least six months to the Governor and legislature of a State in which an
MRS facility is planned, or to the governing body of an affected Tribe
where an MRS facility is planned and promptly notifying the appropriate
State or Tribe when the site has been selected. The State or affected
Tribe may submit a notice of disapproval to Congress regarding site
selection, which Congress may override by Joint Resolution, as provided
in Section 115(c) of the NWPA. In addition, the State or Tribe may
enter into a benefits agreement with DOE pursuant to Section 170 of the
NWPA.\16\ If an MRS facility is selected by the President and the
selection becomes effective, DOE is directed to apply to the Nuclear
Regulatory Commission (``NRC'') for an MRS license.\17\ However, any
license issued by the NRC for a centralized interim storage facility
under the MRS provisions must specify that construction of the facility
cannot begin until after the NRC has issued a license for construction
of a geologic repository.\18\
---------------------------------------------------------------------------
\15\ NWPA Sec. 142, 42 U.S.C. Sec. 10162.
\16\ NWPA Sec. Sec. 145-47, 42 U.S.C. Sec. Sec. 10165-67.
\17\ NWPA Sec. 148(c), 42 U.S.C. Sec. 10168(c).
\18\ The NWPA also limits the MRS facility in several other ways,
some of which might warrant amendment prior to the construction phase.
These include limits on number (only one MRS facility), location
(specifically not allowed to be located in Nevada), size (maximum
capacity of 15,000 MTHM), and site selection process (prescribed by the
NWPA) for the MRS facility. See Sections 142-48 of the NWPA, 42 U.S.C.
Sec. Sec. 10162-68.
---------------------------------------------------------------------------
Thus, DOE has clear legislative authority under existing law to
take initial steps in selecting a site for an MRS. Depending on the
outcome of the current dispute over termination of the Yucca Mountain
Project and judicial interpretation of the effect of the Secretary's
termination action, DOE could also be authorized to proceed to site
selection and to take a number of further steps short of commencement
of construction. Commencement of construction clearly requires further
authorization.\19\
---------------------------------------------------------------------------
\19\ Although the Commission does not refer to DOE's authority
under the Atomic Energy Act (``AEA''), Sections 53 and 55 of the AEA
arguably provide authority for DOE to develop a consolidated interim
storage facility, independent of the provisions of the NWPA. See Van
Ness Feldman Memorandum to the BRC, ``Authority for Interim and
Monitored Retrievable Storage of Spent Nuclear Fuel'' (Nov. 11, 2010).
However, as explained in that memorandum, DOE has taken the position
that the NWPA cabins DOE's authority under the AEA to undertake storage
of commercial used fuel. See, e.g., DOE, Report to Congress on the
Demonstration of the Interim Storage of Spent Nuclear Fuel, DOE/RW-
0596, at 6-7 (Dec. 2008).
---------------------------------------------------------------------------
Finally, it is important to note that while the NWF is available to
fund specific MRS activities,\20\ use of the NWF for this or other
purposes is subject to appropriations.
---------------------------------------------------------------------------
\20\ NWPA Sec. 302(d), 42 U.S.C. Sec. 10222(d).
---------------------------------------------------------------------------
ii. modification of standard contract queue
A. Introduction
This section addresses issues relating to the acceptance priority
ranking (known as the ``queue'') established by the Standard Contract
between DOE and commercial nuclear reactor operators--in particular,
whether DOE may deviate from the general principal under the Standard
Contract that DOE accept the oldest fuel first (``OFF'') so as to give
priority to: (1) spent fuel located at decommissioned reactors, and (2)
spent fuel that has certain thermal characteristics.
B. Priority for Spent Fuel at Decommissioned Reactor Sites
1. Recommendations of Draft Report
The BRC makes the following recommendations respecting to giving
priority to acceptance of spent fuel at decommissioned nuclear
reactors:
``[T]he Commission recommends that spent fuel currently
being stored at shutdown reactor sites be `first in line' for
transfer to a consolidated interim storage facility.''\21\
---------------------------------------------------------------------------
\21\ Draft Report, Sec. 5.2.1, p. 47 (emphasis in original).
---------------------------------------------------------------------------
``The magnitude of the cost savings that could be achieved
by giving priority to shutdown sites appears to be large enough
(i.e., in the billions of dollars) to warrant DOE exercising
its right under the Standard Contract to move this fuel first.
Although this action would disrupt the queue specified in the
Standard Contract, as utilities continue to merge and a growing
number of reactors reach the end of their operating licenses,
every utility (or nearly every utility) will have one or more
shutdown plants. In that context, giving priority to moving
fuel from decommissioned sites is likely to be seen by all
parties involved as being in everyone's best interest.''\22\
---------------------------------------------------------------------------
\22\ Draft Report, Sec. 5.4, p. 47; see also Draft Report, Sec.
5.4, p. 46-48.
---------------------------------------------------------------------------
2. DOE Authority Under Standard Contract
The BRC recommends in Section 5.2.1 of the Draft Report that spent
fuel located at decommissioned reactor sites receive first priority for
disposal. A more detailed discussion in Section 5.4 makes similar
statements regarding a change in priority for acceptance of fuel under
the queue and notes that such a change is allowed by the Standard
Contract. These statements are clearly consistent with the provisions
of the Standard Contract. The Standard Contract requires DOE to
determine the acceptance priority based on the OFF principle. However,
Art. VI.B.1(b) of the Standard Contract provides an exception from the
OFF priority for ``[spent fuel] and/or HLW removed from a civilian
nuclear power reactor that has reached the end of its useful life or
has been shut down permanently for whatever reason.''
The BRC's recommendation to give priority to fuel from
decommissioned reactors is consistent with the provisions of the
Standard Contract that incorporate the OFF principle while allowing DOE
to deviate from the OFF acceptance priority in cases of emergencies or
decommissioned reactors.\23\
---------------------------------------------------------------------------
\23\ Standard Contract, Arts. V.D, VI.B.1.
---------------------------------------------------------------------------
C. Priority Acceptance Based on Thermal Characteristics
1. Recommendations of Draft Report The BRC makes the
following recommendations respecting modification of acceptance
priorities to take into account thermal characteristics of the
spent fuel:
``Consolidated storage also offers opportunities to simplify
repository operations. For example, by accumulating a
substantial inventory of spent fuel in one place, the storage
facility could take over some of the thermal management
activities that might be required for efficient repository
operation (e.g. blending hot and cool fuel assemblies to create
a uniform thermal load for waste packages). A consolidated
storage facility could even offer the option of packaging the
waste for disposal before it is shipped to the repository,
further simplifying operations at the repository site.''\24\
---------------------------------------------------------------------------
\24\ Draft Report, Sec. 5.2.4, p. 43.
---------------------------------------------------------------------------
``[A] consolidated storage facility could provide flexible,
safe, and cost-effective waste handling services (i.e.,
repackaging or sorting of fuel for final disposal) and could
facilitate the standardization of cask systems.''\25\
---------------------------------------------------------------------------
\25\ Draft Report, Sec. 5.2.6, p. 44.
---------------------------------------------------------------------------
``The Commission recognizes that existing contracts have
created a `queue' in terms of federal commitments to accept
spent fuel from specific utilities. Unfortunately, the existing
queue was not set up to maximize efficiencies or to minimize
the risks of fuel handling and transportation. Hence, we
believe it would be appropriate for DOE to re-visit the current
schedule as it is already authorized to do under certain
circumstances, recognizing that any changes to the current
queue may require the Department and utility contract holders
to re-negotiate some existing commitments. There may also be
circumstances where expedited removal of fuel from an operating
reactor is warranted. The Commission believes a more flexible
approach would benefit all parties involved.
Under DOE's Standard Contract with utilities, priority for the
acceptance of spent fuel is allocated to utilities according to the
`oldest fuel first' or `OFF' principle. This does not mean that
utilities would necessarily choose to ship their oldest fuel first
since they would have a contractual right to decide each year (subject
to DOE's approval) which fuel to ship from which reactor (with the
overall amount being determined by the OFF allocation).''\26\
---------------------------------------------------------------------------
\26\ Draft Report, Sec. 5.4, pp. 46-47.
``[T] he current approach may limit the ability to use at-
reactor storage as part of an integrated thermal management
strategy. . . . The ability to select which spent fuel is
delivered for disposal at a permanent repository each year may
avoid the need for additional storage to hold fuel that is too
hot for immediate emplacement. However, since utilities can
choose which fuel to deliver, they may prefer to send the
hottest eligible fuel in their pools, assuming that the plants
are still operating when waste acceptance begins. This may
require more complex thermal management activities at the
consolidated storage or disposal facility.''\27\
---------------------------------------------------------------------------
\27\ Id. at p. 50.
---------------------------------------------------------------------------
``As part of this effort the new organization should seek to
renegotiate contracts as necessary to implement cost-saving and
risk-reducing measures, while also recognizing the contractual
rights of current waste owners as originally established under
existing statutes, and as subsequently interpreted by the
courts.''\28\
---------------------------------------------------------------------------
\28\ Id. at p. 51.
---------------------------------------------------------------------------
2. DOE Authority Under Standard Contract
In Sections 5.2 and 5.4, the Draft Report discusses changing the
acceptance priority for the queue to prioritize spent fuel based on its
thermal characteristics. The discussion in Section 5.2 addresses the
issue as a potential option for simplifying and streamlining the waste
handling process, but does not address whether such a proposal is
consistent with the Standard Contract. Section 5.4, however, recognizes
``that any changes to the current queue may require the Department and
utility contract holders to re-negotiate some existing commitments.''
With this qualification, the Draft Report's ensuing discussion
regarding a possible change to the queue properly characterizes the
legal requirements imposed on DOE by the Standard Contract.
iii. modification of timing and method of payment of nuclear waste fee
A. Introduction
This section addresses the question of whether DOE has authority to
alter the current payment and collection process used to fund the
Nuclear Waste Fund. We conclude that through administrative action and
amendment to the Standard Contracts, the Secretary has the authority to
alter the current collection process of the NWF.
B. Recommendations of Draft Report
``In the near term, the Administration should offer to amend
DOE's standard contract with nuclear utilities so that
utilities remit only the portion of the annual fee that is
appropriated for waste management each year and place the rest
in a trust account, held by a qualified third-party
institution, to be available when needed.''\29\
---------------------------------------------------------------------------
\29\ Draft Report, Exec. Summ., Sec. 3, p. ix.
---------------------------------------------------------------------------
``The modified approach proposed here would require each
utility to place the unused fee receipts in an irrevocable
trust account at an approved, third-party financial
institution, allowing the money to be withdrawn only for the
purpose for which the trust account was created.''\30\
---------------------------------------------------------------------------
\30\ Draft Report, Section 8.3.1, p. 90.
---------------------------------------------------------------------------
C. Applicable Statutory and Regulatory Text
Section 302(a)(1) of the NWPA authorizes the Secretary to enter
into contracts for disposal of spent fuel and provides that such
contracts ``shall provide payment to the Secretary of fees pursuant to
paragraphs (2) and (3) sufficient to offset expenditures described in
subsection (d).'' Paragraph (2) provides that for civilian nuclear
power sold after April 7, 1983, the licensee shall pay a fee equal to
1.0 mil per kw/h. The Secretary has the authority to adjust this,
pursuant to paragraph (4). Paragraph (3) addresses spent fuel derived
from nuclear power sold on or before April 7, 1983. Paragraph (3) sets
a fee of 1 mil per kw/h and provides that ``[s]uch fee shall be paid to
the Treasury of the United States and shall be deposited in a separate
fund . . .'' Section 302(a)(4) provides that the Secretary ``shall
establish procedures for the collection and payment of the fees
established by paragraph (2) and paragraph (3).'' Section 302(c)(1)
provides that the Nuclear Waste Fund shall consist of ``all receipts,
proceeds, and recoveries realized by the Secretary . . . which shall be
deposited in the Waste Fund immediately upon their realization.''
Based on Section 302(a)(4)'s direction to establish procedures for
the collection and payment of fees, DOE issued regulations on fees and
terms of payment in 10 C.F.R. Sec. 961.11 (Article VIII of the
Standard Contract). Pursuant to Article VIII, DOE required that for
nuclear electricity sold after April 7, 1983, the utility pay the fee
on a quarterly basis. For spent fuel discharged prior to April 7, 1983,
DOE provided three payment options. Under Option 1, the fee payments
were prorated evenly over 40 quarters. Licensees were allowed to
accelerate the fee payments, which included interest on the outstanding
fee balance, by making full or partial lump sum payments. Option 2
enabled licensees to make a single payment consisting of the fee and
interest on the outstanding balance at anytime prior to the date of
first delivery to DOE of the spent fuel. Option 3 provided for a single
payment that consisted of all outstanding fees without interest. The
payment was required to be made prior to June 30, 1985, or two years
after the execution of the contract, whichever was later.
D. Analysis
Section 302(a) does not prescribe a specific method of collection
of the nuclear waste fee. Rather, it gives the Secretary authority ``to
establish procedures for the collection and the payment of the
fees.''\31\ This section gives the DOE broad discretion to select the
method of collection and payment of the fee and a clear legal basis for
prescribing a method that differs from the current methods, if DOE
chooses to do so. There is nothing elsewhere in the NWPA that prohibits
the Secretary from changing the current process of fee collection and
payment, so long as contract-holders agree to the change. Moreover,
there is long-standing administrative precedent under the Standard
Contract for providing various options for structuring payment and
collection of the fee.
---------------------------------------------------------------------------
\31\ NWPA, Sec. 302(a)(4).
---------------------------------------------------------------------------
As noted above, in its original Standard Contract regulations
(adopted in 1983, a year after enactment of the NWPA), the DOE offered
utilities three options for payment regarding pre-1983 spent fuel,
including an option that permitted licensees to delay payment of the
fee until delivery of the spent fuel to DOE. It is clear that the
current quarterly payment requirement thus has never been regarded as
the only method for payment of the nuclear waste fee.\32\
---------------------------------------------------------------------------
\32\ In addition to the precedent for alternative payment terms for
fees associated with Section 302(a)(3), it can be argued that the
language in Section 302(a)(2) is even more flexible than Section
302(a)(3). Unlike paragraph (3), paragraph (2) does not provide that
the fee ``shall be paid to the Treasury . . . '' 31 C.F.R. Sec. 380
(2011), 31 U.S.C. Sec. 3302(c)(1) (2006).
---------------------------------------------------------------------------
Thus, the broad statutory authority to set procedures for the
collection and payment of fees and administrative precedent both
support the argument that the Secretary could, through administrative
action, amend the current regulations to change the timing of payments.
However, any changes to future payments that modify the Standard
Contract would be subject to the Standard Contract regulations codified
at 10 C.F.R. Part 961. Art. XV of the Standard Contract provides that:
[T]he parties will negotiate and, to the extent mutually
agreed, amend this contract as the parties may deem to be
necessary or proper to reflect their respective interests;
provided, however, that any such amendment shall be consistent
with the DOE final rule published in the FEDERAL REGISTER on
April 18, 1983 entitled, ``Standard Contract for Disposal or
SNF and/or HLW'', as the same may be amended from time to
time.''
The legal effect of this provision is not entirely clear. It would
appear that the changes to implement the proposed modifications are not
consistent with the fee payment provisions of the final rule. However,
the Standard Contract rule permits ``deviations'' from the Standard
Contract, and through this procedure it may be possible to amend the
Standard Contract without amending the rule.\33\ In any case, the
changes to individual standard contracts would be subject to
negotiation and mutual agreement with the affected nuclear utilities.
---------------------------------------------------------------------------
\33\ 10 C.F.R. Sec. 961.4 (2011).
---------------------------------------------------------------------------
Assuming the Secretary has authority under the NWPA to delay the
date of payment of some portion of the nuclear waste fee, a further
question arises as to whether DOE has the authority to direct the
nuclear waste fee (or some portion thereof) to an irrevocable trust
account to ensure the monies are actually paid into the Treasury when
needed. Under the provisions of Section 3302 of Title 31, United States
Code (the ``Miscellaneous Receipts Act'' or ``MRA''), public funds
received by an official or agent of the U.S. Government must be
deposited in the Treasury as soon as practicable, except as provided by
another law. We are of the view that if the Secretary has authority to
delay receipt of the nuclear waste fee, as was done for the pre-April
1983 fuel, the Secretary also has authority to require safeguards, such
as a trust account, to ensure the delayed payments are in fact
collected and eventually paid into the Fund. Specifically, the
Secretary's broad authority to specify the method of payment and
collection of the nuclear waste fee constitutes authority ``provided by
another law,''\34\ making the MRA restrictions inapplicable in this
case.
---------------------------------------------------------------------------
\34\ 42 U.S.C. Sec. 3302 (a).
---------------------------------------------------------------------------
Moreover, the NWPA provides specific direction respecting deposit
of nuclear waste fees in the NWF. The Secretary is required to deposit
funds in the NWF only upon realization of those funds. ``Realize'' is
not defined in the NWPA, and the definition under other laws varies. In
the securities law context, ``realization'' has been held to mean ``to
convert an intangible right or property into real (tangible) property:
hence to convert any kind of property into money. . .''\35\ The
Internal Revenue Code (``Code'') defines ``realized'' as the ``money
received plus the fair market value of property (other than money)
received.''\36\ The Code's constructive receipt rules amplify this
concept to include income credited to, set apart for, or otherwise made
available to the taxpayer, unless the taxpayer's control is ``subject
to substantial limitations or restrictions.''\37\ Black's Law
Dictionary defines ``realize'' as ``conversion of non-cash assets into
cash assets.''\38\ Under any of these concepts, payment of nuclear
waste fees into a third party trust account would not appear to
constitute a ``realization'' by the Secretary. The Secretary has not
received or taken possession of the funds, and the funds in the trust
account are subject to a restriction that precludes their disbursement
except for specified purposes. For these reasons, fees deposited
directly into an irrevocable trust account under this proposal are not
``realized'' by the federal government unless and until they are drawn
down in accordance with the trust instrument.
---------------------------------------------------------------------------
\35\ Heli-Coil Corp. v. Webster, 352 F.2d 156, 167 n.14 (3d Cir.
1965) (citing McAvoy v. Schramme, 264 N.Y.S. 181 238 App. Div. 225
(1933)).
\36\ Internal Revenue Code of 1986, Sec. 1001(b), 42 U.S.C. Sec.
1001(b).
\37\ 26 C.F.R. Sec. 1.451.2(a) (2010).
\38\ BLACK'S LAW DICTIONARY 1379 (9th ed. 2009).
---------------------------------------------------------------------------
Accordingly, we believe that there is a sound legal basis for
concluding that the Secretary's broad statutory authority under the
NWPA to prescribe procedures for the payment and collection of the
nuclear waste fee permits him to postpone the time of collection of a
portion of the fee. That authority, together with the Act's specific
direction respecting timing of deposit of fees in the Treasury, permits
the Secretary to require use of an irrevocable trust account to
safeguard the government's interest in ultimately receiving the
fees.\39\
---------------------------------------------------------------------------
\39\ We would recommend that the Standard Contract amendments make
clear that monies in the trust accounts are the property of the trustee
until paid to or required to be paid to the NWF, and that the trustee
acts as fiduciary, not as agent of the United States. The Standard
Contract should also have to carefully set forth the terms and
conditions of this trust account as well as the qualifications of the
institutions holding the account.
---------------------------------------------------------------------------
iv. use of the nucear waste fund
A. Introduction
Chapter 12 of the Draft Report recommends various near-term actions
DOE could undertake to help fulfill its nuclear waste management
responsibilities. Those recommendations that fit within the specified
list of ``Use of the Waste Fund'' provided in Section 302(d) of the
NWPA arguably can be implemented with the use of the NWF (subject to
Congressional appropriations). In 2002, the Eleventh Circuit confirmed
that DOE may make expenditures from the NWF only for disposal
activities. The Court held:
First, the statute provides that the Secretary ``may make
expenditures from the Waste Fund . . . only for purposes of
radioactive waste disposal activities under subchapters I and
II of this chapter.'' 42 U.S.C. Sec. 10222(d). . . . The Act
makes a list of things that might be considered acts of
``disposal.'' [footnote omitted] Although the list is not
exhaustive, it is instructive of the kinds of activities that
might be characterized as ``disposal.'' The items in the list
all have one thing in common: they entail some sort of
advancement or step toward permanent disposal, or else an
incidental cost of maintaining a repository. None of them
encompass the maintenance of the status quo.\40\
---------------------------------------------------------------------------
\40\ Ala. Power Co. v. U.S. Dep't of Energy, 307 F.3d 1300, 1313-14
(11th Cir. 2002).
---------------------------------------------------------------------------
Section 302(d) of the NWPA provides:
(d) USE OF WASTE FUND.--The Secretary may make expenditures
from the Waste Fund, subject to subsection (e), only for
purposes of radioactive waste disposal activities under titles
I and II, including----
(1) the identification, development, licensing,
construction, operation, decommissioning, and post-
decommissioning maintenance and monitoring of any
repository, monitored, retrievable storage facility or
test and evaluation facility constructed under this
Act;
(2) the conducting of nongeneric research,
development, and demonstration activities under this
Act;
(3) the administrative cost of the radioactive waste
disposal program;
(4) any costs that may be incurred by the Secretary
in connection with the transportation, treating, or
packaging of spent nuclear fuel or high-level
radioactive waste to be disposed of in a repository, to
be stored in a monitored, retrievable storage site or
to be used in a test and evaluation facility;
(5) the costs associated with acquisition, design,
modification, replacement, operation, and construction
of facilities at a repository site, a monitored,
retrievable storage site or a test and evaluation
facility site and necessary or incident to such
repository, monitored, retrievable storage facility or
test and evaluation facility; and
(6) the provision of assistance to States, units of
general local government, and Indian tribes under
sections 116, 118, and 219.
No amount may be expended by the Secretary under this
subtitle for the construction or expansion of any facility
unless such construction or expansion is expressly authorized
by this or subsequent legislation. The Secretary hereby is
authorized to construct one repository and one test and
evaluation facility.\41\
---------------------------------------------------------------------------
\41\ NWPA Sec. 302(d), 42 U.S.C. Sec. 10222(d).
It is important to note that the ``Secretary,'' meaning the
Secretary of Energy, is the only person authorized to expend funds in
the NWF under the NWPA. Further, all such expenditures of the NWF can
be made only after Congress has appropriated the funds in the NWF for
such specific uses. Further, the NWPA provides that funds cannot be
expended for the construction of facilities unless their construction
is specifically authorized by Congress in the NWPA or elsewhere.
B. Analysis An examination of the Chapter 12 recommendations for near-
term action by DOE, as well as Congress and other agencies, and
how those recommendations fit or do not fit within the scope of
Section 302(d) of the NWPA is provided in the following table:
------------------------------------------------------------------------
Recommendation Availability of NWF
------------------------------------------------------------------------
Financing the Waste Program.--DOE The NWF is available to DOE for
should initiate a rulemaking to these activities under Section
revise the Standard Contract to 302(d)(3), as they could be
offer a new fee payment option in considered an administrative cost
which payments to the Waste Fund of the waste disposal program.
each year would be based on
actual appropriations from the
Waste Fund, with the remainder of
the one mil fee being placed in a
third-party escrow account by the
contract holder until needed. The
rulemaking should also address
other potential revisions
discussed in this report, e.g. to
allow reprioritization of spent
fuel receipt to increase
transportation efficiency and
facilitate closure of shutdown
reactor sites, and to incentivize
actions by contract holders (e.g.
use of standardized storage
systems) that would reduce
overall waste management system
costs. When the rulemaking is
complete, DOE should then offer
to enter into negotiations with
contract holders to revise
current contracts to include the
new provisions.
------------------------------------------------------------------------
Financing the Waste Program.--The This recommendation is outside the
Administration should work with scope of Section 302(d).
the appropriate Congressional
committees and the Congressional
Budget Office to reclassify
receipts from the nuclear waste
fee as discretionary offsetting
collections and allow them to be
used to offset appropriations for
the waste program.
------------------------------------------------------------------------
Financing the Waste Program.--The The NWF is arguably not available to
Administration, DOE, and DOJ DOE for these activities because
should work with nuclear DOE's partial breach of its
utilities and other stakeholders Standard Contract is not the kind
toward a fair and expeditious of activity that advances disposal
resolution of outstanding of the radioactive waste disposal
litigation and damage claims. program within the scope of Section
302(d).
Courts have found that these
judgments against DOE may not be
paid out of the NWF but instead
should be paid from the Treasury's
Judgment Fund.\42\
------------------------------------------------------------------------
Establishment of a New This recommendation is outside the
Organization.--The appropriate scope of Section 302(d).
Congressional committees should
begin hearings on establishment
of an independent waste
management organization as soon
as practicable. The Commission
recognizes that there are many
details that need to be worked
out in creating a new
institution, and believes that
the sooner the process of
obtaining the views of interested
parties and developing a detailed
legislative proposal can begin,
the better.
------------------------------------------------------------------------
Storage.--Using existing authority The NWF is available to DOE for
in the NWPA, DOE should begin these activities under Sections
laying the groundwork for 302(d)(1) and 302(d)(5).
implementing consolidated storage
and for improving the overall
integration of storage as a
planned part of the waste
management system without further
delay. Specific steps that DOE
could take in the near term
include:
Performing the
systems analyses and design
studies needed to develop a
conceptual design for a
highly flexible, initial
federal interim spent fuel
storage facility.
Preparing to
respond to requests for
information from
communities, states, or
tribes that might be
interested in learning more
about hosting a
consolidated storage
facility.
Working with
nuclear utilities, the
nuclear industry, and other
stakeholders to promote the
better integration of
storage into the waste
management system,
including standardization
of dry cask storage
systems. This effort should
include development of the
systems analyses needed to
provide quantitative
estimates of the system
benefits of utility actions
such as the use of
standardized storage
systems or agreements to
deliver fuel outside the
current OFF priority
ranking. (These analyses
would be needed to support
the provision of incentives
to utilities to undertake
actions such as using
standardized storage
systems or renegotiating
fuel acceptance contracts.)
------------------------------------------------------------------------
Storage.--The Administration This recommendation is outside the
should request, and Congress scope of Section 302(d).
should provide funding for, the
National Academy of Sciences to
conduct an independent
investigation of the events at
Fukushima and their implications
for safety and security
requirements at spent nuclear
fuel and high-level waste storage
sites in the United States.
------------------------------------------------------------------------
Transportation.--DOE should The NWF is available to DOE for
complete the development of these activities under Section
procedures and regulations for 302(d)(4).
providing technical assistance
and funds (pursuant to Section
180 (c) of the NWPA) for training
local and tribal officials in
areas traversed by spent fuel
shipments, in preparation for
movement of spent fuel from
shutdown reactor sites to
consolidated storage.
------------------------------------------------------------------------
Transportation.--NRC should The NWF is arguably limited to
reassess its plans for the expenditures of funds by the
Package Performance without Secretary of Energy, not the NRC.
regard to the status of the Yucca
Mountain project, and if it is
found to have independent value,
funding should be provided from
the Nuclear Waste Fund so that
the NRC can update these plans
and proceed with those tests.
------------------------------------------------------------------------
Disposal.--DOE should keep a The NWF is available to DOE for
repository program moving forward these activities under Sections
through valuable, non-site 302(d)(1) and 302(d)(2).
specific activities, including
R&D on geological media, work to
design improved engineered
barriers, and work on the
disposal requirements for
advanced fuel cycles. The work of
the Used Fuel Disposition
Campaign of DOE's Office of Used
Nuclear Fuel Disposition Research
& Development in this area should
be continued.
------------------------------------------------------------------------
Disposal.--DOE should develop an The NWF is available to DOE for
RD&D plan and roadmap for taking these activities under Section
the borehole disposal concept to 302(d)(2).
the point of a licensed
demonstration.
------------------------------------------------------------------------
Facility Siting.--To ensure that The NWF is arguably available to DOE
future siting efforts are for these activities under Section
informed by past experience, DOE 302(d)(3), as they could be
should build a data base of the considered an administrative cost
experience that has been gained of the program.
and relevant documentation
produced in efforts to site
nuclear waste facilities, in the
United States and abroad. This
would include the storage
facility and repository siting
efforts under the NWPA by both
DOE and the Nuclear Waste
Negotiator.
------------------------------------------------------------------------
Regulatory Actions.--The This recommendation is outside the
Administration should identify an scope of Section 302(d).
agency to take the lead in
defining an appropriate process
(with opportunity for public
input) for developing a generic
safety standard for geologic
disposal sites. The same lead
agency should coordinate the
implementation of this standard-
setting process with the aim of
developing draft regulations for
mined repositories and deep
borehole facilities.
------------------------------------------------------------------------
Regulatory Actions.--The NRC This recommendation is outside the
should continue efforts to review scope of Section 302(d).
and potentially revise the
existing waste classification
system.
------------------------------------------------------------------------
Nuclear Workforce Development.-- These recommendations are outside
DOE, in cooperation with the U.S. the scope of Section 302(d) because
Department of Labor and the they do not directly relate to
Bureau of Labor Statistics, DOE's administrative obligations
should lead a public-private under the waste disposal program.
initiative to develop ongoing
labor demand projections and
forecast capacity for the nuclear
workforce, including the
workforce for science,
technology, engineering and
mathematics (STEM); crafts; and
emergency response and HAZMAT.
This capacity will help inform
expanded federal, joint labor-
management, and university-based
support for critical high-skill,
high-performance nuclear
workforce development needs,
including special attention to
the expansion of the emergency
response and HAZMAT-trained
workforce.
------------------------------------------------------------------------
International.--DOE should The NWF is arguably not available to
identify any legislative changes DOE for these activities because it
needed to authorize and direct is not clear that international
the U.S. waste management program safety, security, and non-
to support countries that pursue proliferation for all nuclear
nuclear technologies in infrastructure and materials are
developing capacity for the safe within the scope of DOE's
management of the associated administrative obligations under
radioactive wastes and to the waste disposal program.
encourage broad adherence to
strengthened international norms
for safety, security, and non-
proliferation for all nuclear
infrastructure and materials.
------------------------------------------------------------------------
\42\ Ala. Power Co. v. U.S. Dep't of Energy, 307 F.3d 1300 (11th Cir.
2002).
v. imports from foreign commercial reactors
A. Introduction
This section addresses the issue of the ability of the federal
government to accept spent fuel from foreign commercial reactors.
Specifically, the section focuses on the authority of DOE to import
foreign commercial spent fuel, as limited by Section 131(f) of the AEA,
a provision added to the AEA as part of the Nuclear Non-Proliferation
Act of 1978 (``NNPA'').\43\
---------------------------------------------------------------------------
\43\ Atomic Energy Act of 1954, Pub. L. 83-703, as amended, Sec.
131(f), 42 U.S.C. Sec. 2160(f) (added by Section 303(a) of the Nuclear
Non-Proliferation Act of 1978, Pub. L. No. 95-242, 92 Stat. 120 (22
U.S.C.A. Sec. 3201) (1978)).
---------------------------------------------------------------------------
B. Recommendations of Draft Report
In the Draft Report, the BRC recommends the following respecting
the import of spent fuel from foreign commercial reactors:
``A similar capability to accept spent fuel from foreign
commercial reactors, in cases where the President would choose
to authorize such imports for reasons of U.S. national
security, would be desirable within a larger policy framework
that creates a clear path for the safe and permanent
disposition of U.S. spent fuel.''\44\
---------------------------------------------------------------------------
\44\ Draft Report, Section 11.2.2, p. 131.
---------------------------------------------------------------------------
C. Applicable Statutory and Regulatory Text
The AEA, first enacted in 1946 and significantly amended in 1954,
was enacted for general purposes related to international cooperation
and nuclear nonproliferation; encouragement of the development and
utilization of atomic energy for peaceful purposes; support of research
and development in nuclear power and medical uses; and management of
the U.S. nuclear defense programs.\45\ To promote these purposes, the
AEA regulates civilian ownership and use of ``special nuclear
material.'' Special nuclear material is defined as ``plutonium, uranium
enriched in the isotope 233 or in the isotope 235,'' but does not
include source material.\46\ Commercial spent fuel is regulated under
the AEA as a special nuclear material because of its uranium-233,
uranium-235, or plutonium-239 content. The AEA authorizes DOE to
acquire special nuclear material, which includes foreign and domestic
spent fuel if DOE deems such action ``necessary to effectuate the
provisions of [the AEA].''\47\ The NRC is authorized to issue a license
to DOE to hold spent fuel from NRC-licensed reactors,\48\ but foreign
fuel held by DOE does not appear to be subject to a licensing
requirement.\49\
---------------------------------------------------------------------------
\45\ AEA Sec. 3, 42 U.S.C. Sec. 2013. For additional statements
of purpose within the statute, see, e.g., AEA Sec. Sec. 31(a), 81-82,
122, 42 U.S.C. Sec. Sec. 2051(a), 2111-12, 2152.
\46\ AEA Sec. 11(aa), 42 U.S.C. Sec. 2014(aa).
\47\ AEA Sec. 55, 42 U.S.C. Sec. 2075.
\48\ Energy Reorganization Act of 1974 Sec. 202, as amended, Pub.
L. 93-438, 88 Stat. 1232 (42 U.S.C. Sec. 5801) (1974).
\49\ Id.
---------------------------------------------------------------------------
The AEA authorizes DOE to enter into cooperation agreements (known
as ``Section 123 Agreements'') with other nations or groups of
nations.\50\ These agreements can be for a variety purposes and can
cover a range of materials.\51\ Section 131 of the AEA provides for
``subsequent agreements'' with these nations or groups of nations that
can provide for the import of the irradiated fuel into the United
States.
---------------------------------------------------------------------------
\50\ AEA Sec. 123, 42 U.S.C. Sec. 2153.
\51\ See, e.g., AEA Sec. Sec. 53, 54a, 57, 64, 82, 91, 103, 104,
or 144.
---------------------------------------------------------------------------
Subsequent arrangements can be for a variety of purposes, including
``arrangements for the storage or disposition of irradiated fuel
elements'' or ``any other arrangement which the President finds to be
important from the standpoint of preventing proliferation.''\52\ For
subsequent arrangements involving the direct or indirect commitment of
the United States for storage or other disposition, interim or
permanent, of any foreign spent nuclear fuel in the United States,
Section 131(f)(1) imposes three conditions, described below.
---------------------------------------------------------------------------
\52\ AEA Sec. 131(a)(2)(e), 42 U.S.C. Sec. 2160(a)(2)(e) and (g).
---------------------------------------------------------------------------
For purposes of Section 131(f), ``[f]oreign spent nuclear fuel'' is
``any nuclear fuel irradiated in any nuclear power reactor located
outside of the United States and operated by any foreign legal entity,
government or nongovernment, regardless of the legal ownership or other
control of the fuel or the reactor and regardless of the origin or
licensing of the fuel or reactor, but not including fuel irradiated in
a research reactor.''\53\
---------------------------------------------------------------------------
\53\ AEA Sec. 131(f)(4), 42 U.S.C. Sec. 2160(f)(4).
---------------------------------------------------------------------------
The first condition imposed by Section 131(f)(1)(A)(i) states that
DOE may not enter into such an arrangement unless the commitment ``has
been submitted to the Congress for a period of sixty days of continuous
session and been referred to the Committee on Foreign Affairs of the
House of representatives and the Committee on Foreign Relations of the
Senate;'' or the plan is subject to the terms of an approved ``detailed
generic plan for disposition or storage in the United States'' that has
already been subject to Congressional review. The statutory text
provides that the Congress may prevent the agreement from becoming
effective if it passes during the sixty-day period a concurrent
resolution ``stating in substance that it does not favor the commitment
. . ..'' This disapproval authority is, however, ineffective under
Consumers Union v. FTC, which held that provisions permitting the two
Houses to disapprove Executive action by concurrent resolution violate
the Presentment Clause of the Constitution.\54\ However, based on
section 281 of the AEA, which addresses separability, and precedent in
INS v. Chadha,\55\ it appears that the legislative veto provision could
be successfully severed from the rest of Section 131(f)(1)(a).\56\
Accordingly, DOE can go forward with an arrangement to which Section
131(f)(1) applies after the requisite 60-day notice to the relevant
Committees.
---------------------------------------------------------------------------
\54\ Consumers Union of U.S., Inc., et al v. FTC, et al, 691 F.2d
575 (D.C. Cir. 1982) aff'd sub nom. Process Gas Consumers Group v.
Consumer Energy Council, 463 U.S. 1216 (1983).
\55\ 462 U.S. 919, 932 (1983).
\56\ See Appendix A for further analysis regarding the severability
of the Congressional concurrent resolution requirement.
---------------------------------------------------------------------------
The second condition, provided in Section 131(f)(1)(B), requires
the Secretary to comply with Section 131(a). This requirement mandates
that the Secretary ``obtain the concurrence of the Secretary of State,
and consult with the Nuclear Regulatory Commission, and the Secretary
of Defense.''\57\
---------------------------------------------------------------------------
\57\ AEA Sec. 131(f)(1)(B), 42 U.S.C. Sec. 2160(f)(1)(B).
---------------------------------------------------------------------------
The third condition, provided in Section 131(f)(1)(C), requires the
Secretary to comply with ``all other statutory requirements of th[e
AEA], under sections 54 and 55 and any other applicable sections, and
any other requirements of law.''\58\ Section 54 generally authorizes
the Secretary to distribute special nuclear materials to foreign
nations or groups of nations pursuant to the terms of a cooperation
agreement and subject to certain restrictions related to compensation,
and to license others to make similar distributions. Section 54 also
provides that DOE may sign an agreement to repurchase any of the
special nuclear material distributed under a sale arrangement under
Section 54, or uranium remaining after irradiation of such special
nuclear material, or nuclear material produced in a nuclear reactor
located outside the United States through the use of special nuclear
material which was leased or sold pursuant to Section 54.
---------------------------------------------------------------------------
\58\ AEA Sec. 131(f)(1)(C), 42 U.S.C. Sec. 2160(f)(1)(C).
---------------------------------------------------------------------------
Section 55 of the AEA provides that DOE is authorized ``to the
extent it deems necessary to effectuate the provisions of [the AEA]''
to ``take, requisition, condemn or otherwise acquire any special
nuclear material or interest therein.''\59\ This authority could
arguably be read broadly in light of the stated purposes of the AEA,
which include development and utilization of atomic energy for peaceful
purposes to the maximum extent consistent with common defense and
security and public health and safety. Sections 161 and 171 of the AEA
authorize DOE to enter into contracts to acquire materials, to lease or
purchase real property, and to pay just compensation for any property
or interests taken by DOE. These three sections--Sections 55, 161, and
171--could be read to provide authority for DOE to take title to or
custody of commercial spent fuel.\60\
---------------------------------------------------------------------------
\59\ AEA Sec. 55, 42 U.S.C. Sec. 2075. Section 55 further
provides that any contract of purchase may be made without regard to
general government contracting laws upon certification by the Secretary
that such action is necessary for the common defense or otherwise not
practical.
\60\ AEA Sec. Sec. 161(e), (g), 171, 42 U.S.C. Sec. Sec. 2201(e),
(g), 2221.
---------------------------------------------------------------------------
The part of the third condition that requires the Secretary to
comply with ``any other requirements of law'' would make any
arrangement for the import of the spent fuel from foreign commercial
reactors subject to statutory and regulatory requirements governing
issues such as, but not limited to, the packaging and transportation of
spent fuel, public health and safety, and the environmental impacts of
the program. For example, any subsequent arrangement entered into by
DOE would be required to comply with the National Environmental Policy
Act.\61\ To the extent that a subsequent arrangement is inconsistent
with other applicable laws, further legislation may be necessary to
carry it out.\62\
---------------------------------------------------------------------------
\61\ 42 U.S.C. Sec. 4321, et seq.
\62\ Several other provisions of Federal law specifically relate to
import and storage of commercial reactor spent fuel, but in our opinion
they do not impose substantive limitations on DOE's authority under
Section 131 of the AEA. The provisions are described in Appendix B.
---------------------------------------------------------------------------
In emergency situations, Section 131(f)(2) provides an exemption
from the conditions in Section 131(f)(1).\63\ This exemption applies
where the President determines that a commitment under AEA Sections 54
or 55 for storage or other disposition is required by ``an emergency
situation,'' that such an action is in the national interest, and
notifies certain Congressional committees of the determination and
action.
---------------------------------------------------------------------------
\63\ AEA Sec. 131(f)(2), 42 U.S.C. Sec. 2160(f)(2).
---------------------------------------------------------------------------
scenario example
In a scenario where the Secretary seeks to implement
a program to import spent fuel from foreign commercial
reactors under Section 131(a)(2)(E), the Secretary
would need to ensure that the program complies with the
three conditions imposed by Section 131(f)(1). As
discussed above, these conditions incorporate by
reference Sections 131(a), 54, and 55, as well as any
additional requirements of relevant sections of the AEA
or other law. Thus, before entering into a proposed
subsequent arrangement, the Secretary must: (i) obtain
the concurrence of the Secretary of State and consult
with the NRC and Secretary of Defense; (ii) publish in
the Federal Register at least 15 days before the
proposed arrangement is to go into effect a notice of
the proposed arrangement, together with a written
determination by the Secretary that the arrangement
``will not be inimical to the common defense and
security;''\64\ and (iii) submit the proposed
arrangement to the Congress for a period of 60 days of
continuous session. The Secretary must also ensure
compliance with any other requirements of the AEA and
other law.
---------------------------------------------------------------------------
\64\ AEA Sec. 131(a)(1), 42 U.S.C. Sec. 2160(a)(1).
---------------------------------------------------------------------------
During the consultation process required by (i)
above, if ``in the view'' of the Secretary, the
Secretary of State, the Secretary of Defense or the NRC
the proposed arrangement ``might significantly
contribute to proliferation,'' the Secretary of State
must prepare a Nuclear Proliferation Assessment
Statement (``NPAS'').\65\ The NPAS describes the
safeguards, mechanisms, and peaceful use assurances
that will ensure that the assistance provided pursuant
to the arrangement will not be used to further any
military or nuclear explosive purpose.\66\ When a NPAS
is required, the Secretary may not publish the notice
and determination (see (ii) above) in the Federal
Register until either the Secretary receives the NPAS
from the Secretary of State or the time authorized
under Section 131(c) for the Secretary of State's
preparation of the NPAS expires.\67\ Under Section
131(c), the Secretary of State has 60 days to prepare
the NPAS. However, that 60 day time period may be
extended if, upon request by the Secretary of State,
the President waives the time restriction and provides
notice and justification to certain Congressional
committees.
---------------------------------------------------------------------------
\65\ AEA Sec. 131(a)(2), 42 U.S.C. Sec. 2160(a)(2).
\66\ AEA Sec. 131(a)(1)-(2), 42 U.S.C. Sec. 2160(a)(1)-(2).
Additional requirements related to the preparation of a NPAS are
provided in Section 123(a).
\67\ AEA Sec. 131(a)(1), 42 U.S.C. Sec. 2160(a)(1).
---------------------------------------------------------------------------
D. Analysis
Based on the definition provided in Section 131(f)(4), any foreign
spent fuel (other than from research reactors, which is specifically
excluded) under consideration for disposal in the U.S. would require an
arrangement with DOE that was reviewed by Congress and that met the
other requirements of Section 131 of the AEA. These requirements apply
to spent fuel irradiated abroad, regardless of who holds title to the
spent fuel. If Congress takes no action during its review period, the
arrangement becomes effective. However, the two-House disapproval
procedure provided in the statute is ineffective and severable from the
AEA, as explained above.
To the extent the Draft Report's recommendation about the import of
spent fuel from foreign commercial reactors anticipates an emergency
situation where such imports were required for national security
reasons, the exemption in Section 131(f)(2) would authorize the storage
or other disposal of limited quantities of foreign spent fuel in
emergency situations without Congressional review.\68\
---------------------------------------------------------------------------
\68\ AEA Sec. 131(f)(2), 42 U.S.C. Sec. 2160(f)(2).
---------------------------------------------------------------------------
vi. conclusion
Based on our analysis of the NWPA, AEA and other relevant statutory
and regulatory authorities, we conclude that the BRC's near-term
recommendations addressed in this Memorandum respecting consolidated
interim storage, the Standard Contract queue, and program funding can
be implemented under the existing provisions of the NWPA. We also
conclude that the BRC's recommendation respecting modifying the queue
for spent fuel from decommissioned reactors is consistent with the
provisions of the Standard Contract.
We conclude that the near-term action recommendations that are
directed at DOE can be implemented with the use of funds from the NWF,
as long as the recommendations fit within the scope of Section 302(d)
of the NWPA and there is a requisite appropriation from Congress. Those
near-term actions outside the scope of NWPA Section 302(d) would
require legislative changes.
We conclude that the DOE has authority under the AEA to accept
spent fuel from foreign commercial reactors, as long as the procedures
and criteria set forth in Section 131 of the AEA are met, including
requirements to comply with other provisions of the AEA and other
Federal statutes.
appendix a
Severability of Legislative Veto Provision in the Atomic Energy Act
Section 131(f)(1)(a) of the Atomic Energy Act,\69\ which may be
employed to bring spent nuclear fuel into the United States, contains a
legislative veto that is almost certainly unconstitutional according to
current Supreme Court jurisprudence.\70\ The question presented is
whether such legislative veto could be successfully severed from the
rest of section 131(f)(1)(a), and thus whether the executive agency is
able to employ the rest of the process outlined in section 131(f)(1)(a)
to import spent nuclear fuel. If such a process were followed, the
Secretary of Energy would provide notice to Congress, wait the
requisite 60 days, and then begin to import the spent nuclear fuel,
even though the House and Senate would be barred from stopping this
process through a legislative veto.
---------------------------------------------------------------------------
\69\ Atomic Energy Act of 1954, P.L. 83-703.
\70\ See, e.g., INS v. Chadha, 462 U.S. 919 (1983) and Consumers
Union v. FTC, 691 F.2d 575 (D.C. Cir. 1982), aff'd sub. nom. Process
Gas Consumers Group v. Consumer Energy Council, 463 U.S. 1216 (1983).
---------------------------------------------------------------------------
Several tenets of statutory construction affect severability. The
first is the rule which holds that statutes should be construed to
maintain their constitutionality whenever possible.\71\ Further, there
is a presumption in favor of severability because the legislature is
assumed not to have intended to pass an invalid act\72\ and a broader
than necessarily invalidation of a statute due to unconstitutionality
frustrates the intent of elected representatives.\73\ Thus, courts have
an obligation to uphold parts of a statute that can be separated from
the unconstitutional provisions,\74\ especially when Congressional
intent to allow such severability is clear.
---------------------------------------------------------------------------
\71\ See, e.g. El Paso & N.e. Ry. Co. v. Gutierrez, 215 U.S. 87
(1909).
\72\ See, e.g. Lidas, Inc. v. U.S., 238 F.3d 1076 (9th Cir. 2001).
\73\ U.S. v. Ameline, 376 F.3d 967 (9th Cir. 2004).
\74\ See, e.g. El Paso & N.e. Ry Co., 215 U.S. at 87.
---------------------------------------------------------------------------
It appears that the unconstitutional legislative veto clause in the
Atomic Energy Act could be successfully severed from the rest of the
Act because the legislative intent to allow such severability is made
explicit in the Act. Section 281 ``Separability,'' states: ``If any
provision of this Act or the application of such provision to any
person or circumstances, is held invalid, the remainder of this Act or
the application of such provision to persons or circumstances other
than those as to which it is held invalid, shall not be affected
thereby.'' In INS v. Chadha,\75\ the Court upheld the severability of a
legislative veto provision from the rest of the statute under similar
circumstances. There the Court states:
---------------------------------------------------------------------------
\75\ Chadha, 462 U.S. at 931-32.
Only recently this Court reaffirmed that the invalid portions
of a statute are to be severed ```[unless] it is evident that
the Legislature would not have enacted those provisions which
are within its power, independently of that which is not.'''
Buckley v. Valeo, 424 U.S. 1, 108 (1976), quoting Champlin
Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210,
234 (1932). Here, however, we need not embark on that elusive
inquiry since Congress itself has provided the answer to the
question of severability in Sec. 406 of the Immigration and
Nationality Act, note following 8 U. S. C. Sec. 1101, which
provides: ``If any particular provision of this Act, or the
application thereof to any person or circumstance, is held
invalid, the remainder of the Act and the application of such
provision to other persons or circumstances shall not be
affected thereby.'' (Emphasis added.)
This language is unambiguous and gives rise to a presumption
that Congress did not intend the validity of the Act as a
whole, or of any part of the Act, to depend upon whether the
veto clause of Sec. 244(c)(2) was invalid. The one-House veto
provision in Sec. 244(c)(2) is clearly a ``particular
provision'' of the Act as that language is used in the
severability clause. Congress clearly intended ``the remainder
of the Act'' to stand if ``any particular provision'' were held
invalid. Congress could not have more plainly authorized the
presumption that the provision for a one-House veto in Sec.
244(c)(2) is severable from the remainder of Sec. 244 and the
Act of which it is a part. See Electric Bond & Share Co. v.
SEC, 303 U.S. 419, 434 (1938).
The presumption as to the severability of the one-House veto
provision in Sec. 244(c)(2) is supported by the legislative
history of Sec. 244. That section and its precursors
supplanted the long-established pattern of dealing with
deportations like Chadha's on a case-by-case basis through
private bills. Although it may be that Congress was reluctant
to delegate final authority over cancellation of deportations,
such reluctance is not sufficient to overcome the presumption
of severability raised by Sec. 406.
Later in INS v. Chadha the Court also stated:
A provision is further presumed severable if what remains
after severance ``is fully operative as a law.'' Champlin
Refining Co. v. Corp. Comm'n, supra, at 234. There can be no
doubt that Sec. 244 is ``fully operative'' and workable
administrative machinery without the veto provision in Sec.
244(c)(2). Entirely independent of the one-House veto, the
administrative process enacted by Congress authorizes the
Attorney General to suspend an alien's deportation under Sec.
244(a). Congress' oversight of the exercise of this delegated
authority is preserved since all such suspensions will continue
to be reported to it under Sec. 244(c)(1). Absent the passage
of a bill to the contrary, deportation proceedings will be
canceled when the period specified in Sec. 244(c)(2) has
expired. Clearly, Sec. 244 survives as a workable
administrative mechanism without the one-House veto.\76\
---------------------------------------------------------------------------
\76\ Id. at 934-35.
As can be seen from the way the court addressed the issue in
Chadha, issues of statutory severability are usually fact-specific
undertakings that include asking whether Congress would have passed the
section of a bill without the unconstitutional provision or section of
a provision. This is largely a matter of the text of the act,
legislative intent,\77\ and legislative history. When there is a
severability clause in the statute itself, as in the case of the Atomic
Energy Act, the legislative intent is clear. Therefore, the provision
allowing for a legislative veto will very likely be able to be
successfully severed from the rest of the Act based on the intent of
Congress.
---------------------------------------------------------------------------
\77\ See, e.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936).
---------------------------------------------------------------------------
appendix b
Ancillary Provisions Relating to Foreign Commercial SNF
1. Section 107 of the Department Energy Act of 1978--Civilian
Applications.
This section, enacted prior to the NNPA, imposes limitations on use
of appropriated funds to store foreign spent nuclear fuel unless the
use is ``expressly authorized by legislation hereafter enacted'' or the
President submits a plan for such storage and neither House disapproves
within 30 days of continuous session.\78\ The relationship between
Section 107 and AEA Section 131 is unclear. There is some question
regarding the continued applicability of Section 107 to the storage of
foreign commercial fuel to which Section 131 of the AEA applies;
however, there is no question that the one-House veto provisions in
both statutes are unconstitutional under Chadha.\79\
---------------------------------------------------------------------------
\78\ Pub. L. No. 95-238, Sec. 107 (22 U.S.C. Sec. 3224a) (Feb.
25, 1978).
\79\ 462 U.S. at 932.
---------------------------------------------------------------------------
2. Section 104(a) of the NNPA.
Section 104(a) of the NNPA authorizes the President to ``negotiate
. . . binding international undertakings providing for'' inter alia,
``the establishment of repositories for the storage of spent nuclear
reactor fuel under effective international auspices and
inspection.''\80\ In addition, Section 104(f)(1) of the NNPA prohibits
the President from entering into any binding international undertaking
(other than a treaty) negotiated under Section 104(a) until the
President submits the undertaking to Congress and Congress approves it
by concurrent resolution. The two-House veto is unconstitutional under
Chadha and following cases, but because the NNPA lacks a severability
clause, it is unclear what the President's authority would be in this
case. However, since the limitation in Section 104(f)(1) applies only
to ``undertakings'' under NNPA Section 104(a), DOE's authority under
Section 131 of the AEA respecting foreign commercial SNF would appear
to be unaffected.
---------------------------------------------------------------------------
\80\ 22 U.S.C. Sec. 3223(a)(4) (2006).
---------------------------------------------------------------------------
attachment
The Secretary of Energy,
Washington, DC, May 18, 1998.
Mr. Alfred William Dahlberg,
Chairman, President, and Chief Executive Officer, Southern Company, 270
Peachtree Street, NW, Atlanta, GA.
Dear Mr. Dahlberg:
In April of last year, I met with a group of nuclear industry
executives to initiate a discussion of options available to the
Department for addressing our delay in accepting spent nuclear fuel by
January 31, 1998. Although no agreement was reached during that
meeting, I offered to continue those discussions. Over the past year
the Department has had a number of such discussions with individual
Standard Contract holders in an effort to resolve these issues.
Recently, the United States Court of Appeals for the District of
Columbia Circuit reiterated its view that utilities should seek any
relief warranted through the process set forth in the Standard
Contract.
Building upon these discussions and in light of the Court's recent
ruling, I would like to propose a modification to your company's waste
disposal contract with the Department that would provide immediate and
continuing financial relief to your company. In return for the
settlement of pending and potential claims relating to the Department's
delay, I am offering to modify your company's contract with the
Department to postpone the payment of a portion of the fee your company
pays into the Nuclear Waste Fund, thereby making available to your
company a substantial amount of money that could be utilized to offset
any costs that you may experience as a result of the Department's
delay. The attachment to this letter provides further details of this
proposal.
I believe that the proposal, which the Department can accomplish
promptly within its current authority and in a manner that does not
jeopardize the long-term viability of our geologic disposal program,
demonstrates the Department's willingness to deal in good faith in
addressing the ramifications of our delay, and presents an attractive
alternative to what could potentially be years of protracted litigation
on this matter. I would appreciate it if you would advise the
Department whether or not you would be interested in pursuing this
settlement offer by June 15, 1998. Please contact Mr. David Zabransky
of the Office of Civilian Radioactive Waste Management at (202) 586-
9198 with your views on this proposal or to arrange for a meeting with
my representatives.
Sincerely,
Federico Pena.
Attachment.
settlement proposal details
Amend individual contracts to allow a settling utility to retain a
portion of the fees it is paying into the Nuclear Waste Fund until the
Department is prepared to begin accepting that utility's spent fuel.
The fees to be paid into the Nuclear Waste Fund by each utility for
any given year would be limited to its share of the funds appropriated
by Congress from the Nuclear Waste Fund to support the Civilian
Radioactive Waste Management program for that year. The utility would
retain the balance of its fees.
Utilities would be allowed to invest the funds they retain, earning
market rates of return. Any return on the investment which is above the
interest due the government could be used by the utilities to cover
their delay costs.
When the Department is ready to begin the acceptance of spent fuel
from a utility, that utility's deferred fees, plus interest at the
Treasury rate, would be due and payable in full.
Utilities would have to provide the Department with adequate
assurance that the obligation to pay the deferred funds when due would
be met.
In return, settling utilities would agree not to file claims or
seek damages from the Department due to its delay in waste acceptance.
impacts of settlement
The proposed settlement could provide between $2.8 to $5.0 billion
dollars in financial relief to utilities, beginning immediately.
The settlement proposal avoids any further dispute or debate about
whether delay costs must be paid out of the Nuclear Waste Fund.
Our proposed settlement terms create a strong incentive for the
Department to meet its obligation to accept spent fuel as quickly as
possible.
If adopted, the settlement would eliminate the costly and lengthy
individual claims process, which would involve the Department's
contracting officer, the Board of Contract Appeals and the Court of
Federal Claims.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Question 5. Is the Commission's proposal consistent with the
express requirements of the Nuclear Waste Policy Act?
Answer. Based on the legal analysis we received, the BRC is
confident that our recommendations are consistent with the requirements
of the Nuclear Waste Policy Act.
reclassification of waste fees
Question 6. At the hearing, Rep. Hamilton stated that he and
General Scowcroft had written to the Administration, requesting that
appropriations language be included in the FY 2013 budget to offset the
fees collected against funds appropriated to the waste program. Please
provide the Committee with a copy of the letter.
Answer. A copy of this letter has been provided to the Committee.
(see below)
attachment
Blue Ribbon Commission,
December 12, 2011.
Hon. President Barack Obama,
The White House, 1600 Pennsylvania Avenue, NW, Washington, DC.
Dear Mr. President:
At your direction, the Secretary of Energy established the Blue
Ribbon Commission on America's Nuclear Future to review policies for
managing the back end of the nuclear fuel cycle and recommend a new
strategy. We are pleased to be serving as Co-Chairmen of the
Commission, and we are writing to you to highlight an important action
we strongly believe should be reflected in your Fiscal Year 2013
baseline budget projections.
In our draft report to the Secretary, issued in July of this year,
the Commission recommends several actions that should be taken to get
the nuclear waste management program back on track. High on our list of
recommendations are actions that can and should be taken soon to
provide assured access to utility waste disposal fees for their
intended purpose. Unless action is taken in the near-term to fix the
way these fees are treated in the federal budget, the nuclear waste
strategy we recommend cannot succeed.
Funds for the disposal of spent nuclear fuel from commercial power
reactors are collected regularly through the assessment of a nuclear
waste fee on nuclear-generated electricity as a quid pro quo payment in
exchange for the federal government's contractual commitment to begin
accepting commercial spent fuel for disposal beginning by January 31,
1998. These fee payments, which total approximately $750 million per
year, go to the government's Nuclear Waste Fund, which was established
for the sole purpose of covering the cost of disposing of civilian
nuclear waste and ensuring that the waste program would not have to
compete with other funding priorities.
As we have learned through our investigation, the Nuclear Waste
Fund does not work as intended. A series of Executive Branch and
Congressional actions has made annual fee revenues and the unspent $26
billion balance in the Fund effectively inaccessible to the nuclear
waste management program. Instead, the waste program must compete for
federal funding each year and is therefore subject to exactly the
budget constraints and uncertainties that the Fund was created to
avoid. This situation must be remedied to allow the program to succeed.
In the meantime, with the federal government having failed to meet
its contractual obligation to begin receiving spent fuel beginning in
1998, nuclear utilities have successfully sued the government for
failure to perform and are receiving damage payments from the federal
Judgment Fund. The government estimates its liability will grow to $16
billion by 2020 and will increase by several hundred million dollars
per year thereafter until it begins accepting spent fuel for disposal.
We have recommended that your Administration offer to amend the
standard nuclear waste contract with nuclear utilities, which you are
authorized to do under current law, so that utilities remit only the
portion of the annual nuclear waste fee that is appropriated for waste
management each year. The rest of the funding would be placed in a
trust account, held by a qualified third-party institution, to be
available when needed. At the same time, we have recommended that the
Office of Management and Budget work with the Congressional budget
committees and the Congressional Budget Office to change the budgetary
treatment of annual fee receipts so that these receipts can directly
offset appropriations for the waste program.
These actions are vital to enabling key subsequent actions the
Commission recommends. Therefore, we respectfully request that you act
promptly to implement these changes in your Fiscal Year 2013 budget
proposal. We have heard repeatedly from those following our work that
they expect our recommendations to lead to prompt action on the nuclear
waste issue; we firmly believe that implementing our funding
recommendations is an essential first step.
We recognize that our recommendations, if adopted, would mean the
nuclear waste fee receipts could no longer be counted against the
federal budget deficit and that the result will be a negative impact of
approximately $750 million on annual budget calculations. We appreciate
that any budgetary actions that increase the size of the deficit are
especially difficult to take in the present fiscal climate. However, it
is clear that the federal government is contractually bound to use
these funds to provide for ultimate disposal of spent nuclear fuel. In
our view, a failure to correct the funding problem does the federal
budget no favors in a context where taxpayers remain liable for
mounting damages, compensated through the Judgment Fund, for the
federal government's continued inability to deliver on its waste
management obligations.
In preparing our draft proposal we consulted with former Office of
Management and Budget and Congressional budget staff, and our proposal
enjoys the support of both the National Association of Regulatory
Utility Commissioners, representing the ratepayers, and the Nuclear
Energy Institute, representing the nuclear utilities. We should note
that the federal government's failure to deliver on its statutory
obligations with respect to commercial spent fuel disposal has prompted
these organizations to pursue legal action against the government aimed
at suspending entirely the collection of fees until such time as a new
waste management plan for the country has been finalized.
We believe our recommended actions are essential to the future
success of the nuclear waste management program and we urge you to
reflect our recommendations in your Fiscal Year 2013 budget proposal.
With best regards,
Lee H. Hamilton,
Co-Chairman.
Brent Scowcroft,
Co-Chairman.
congressional oversight
The Committee recommends that the unspent balance of the Nuclear
Waste Fund, which is estimated to be nearly $27 billion, be transferred
to the new nuclear waste management organization ``so that it can carry
out its civilian nuclear waste obligations independent of annual
appropriations (but with congressional oversight).'' It recommends that
Congress transfer the entire balance of the Fund to the new
organization on ``a defined schedule ... over a reasonable future time
period,'' and yet still maintain rigorous oversight over the program.
Question 7. Specifically, how does the Commission envision that
Congress should exercise control over the new organization's use of the
Fund if the Fund is no longer subject to appropriation?
Answer. If responsibility for implementing the program is
transferred to a new government corporation, along with greater budget
control and assured access to the NWF, the new organization must also
be subject to independent financial oversight to ensure that public
resources are being used appropriately in support of waste program
objectives. Beyond a board of directors, most proposals provide for
additional oversight in the form of independent audits of the new
organization's finances along with reviews by the Government
Accountability Office (GAO). The NWPA already requires an annual GAO
audit of the activities of DOE's OCRWM, as well as a comprehensive
annual report by OCRWM on its activities and expenditures and an annual
report to Congress from the Secretary of the Treasury (after
consultation with the Secretary of Energy) on the financial condition
and operations of the NWF. These requirements could simply be extended
to the new organization (except that the organization would not report
to Treasury through DOE). A mechanism for Congress to review regular
updates of the organization's mission plan and budget would provide an
additional vehicle for overseeing the organization's use of funds.
If desired, legislation establishing the new organization could
include an expedited process similar to that provided by the
Congressional Review Act through which Congress could veto a proposed
mission plan revision by passing a joint resolution, subject to
presidential veto. This approach would allow substantial congressional
control over changes in program direction and funding without requiring
that legislation be passed to approve such changes whenever they are
needed (or requiring approval to expend funds or otherwise proceed on a
year to year basis).
site selection process
The original Nuclear Waste Policy Act required the Secretary of
Energy and the President to consider ``regional distribution of
repositories'' in selecting repository sites and prohibited siting an
interim storage facility in any state being considered for a
repository, so that a single state would not have to host multiple
disposal facilities.
Question 8. Should the new waste management organization be
required to consider ``regional distribution''?
Answer. Consideration of ``regional distribution'' would likely
make sense for the new waste management organization, since a regional
distribution of facilities could potentially optimize the operation of
the waste management enterprise. However the BRC does not believe that
regional distribution of facilities should be mandated nor that any
state should be prohibited from choosing to host multiple facilities--
provided that the consent-based process has been used in siting those
facilities.
Responses of the Blue Ribbon Commission to Questions From Senator
Cantwell
ability of the yucca mountain facility to accept nuclear defense waste
from hanford
As the Blue Ribbon Commission Report mentions, the Hanford site
currently is storing 2,480 metric tons of spent nuclear fuel and
approximately 53 million gallons of high level waste--approximately 90
percent of the nation's total high level defense waste. Some of this
waste was expected to be transferred to the Yucca Mountain facility for
geological disposal when it was completed.
Question 1a. Can you please provide an approximate estimate of how
much of Hanford's low-level waste and high-level waste at Hanford could
be disposed at the Yucca Mountain facility if it were ever completed?
Please take into consideration the national need to find disposal sites
for both military waste and commercial spent fuel waste and any other
relevant factors such as varying levels of radiation, safety risk, and
storage requirements.
Answer. The Nuclear Waste Policy Act, as amended, prohibits the
U.S. Nuclear Regulatory Commission from approving the emplacement of
more than 70,000 MTHM (metric tons of heavy metal) into the first
national repository until a second repository is in operation [Section
114(d)].
In 1985, the DOE published a report that required the Secretary of
Energy to recommend to the President whether defense high-level
radioactive waste should be disposed of in a geologic repository along
with commercial spent nuclear fuel. That report provided the basis, in
part, for the President's determination that defense high-level
radioactive waste should be disposed of in a geologic repository. Given
that determination, DOE decided to allocate 10 percent of the capacity
of the first repository (or ?7,000 MTHM) for the disposal of DOE spent
nuclear fuel (2,333 MTHM) and high-level radioactive waste (4,667
MTHM).
The DOE's 2008 report to Congress on the need for a second
repository concluded that the ``inventories of commercial and Federal
Government SNF and HLW in the United States are projected to exceed
70,000 MTHM by 2010, therefore additional repository capacity is
needed.'' Based on a range of alternative configurations for a
repository at Yucca Mountain, the report concluded that ``those studies
provide confidence that a repository at Yucca Mountain has the capacity
to handle all of the DOE SNF and HLW and the projected inventory of
commercial SNF assuming operating life extensions for all of the
existing commercial nuclear power reactors.''
Some lower-level wastes such as Greater-Than-Class-C waste and
Special-Performance-Assessment-Required wastes were included in an
addendum (Inventory Module 2) of the final environmental impact
statement for Yucca Mountain (DOE/EIS-0250; Final Environmental Impact
Statement for a Geologic Repository for the Disposal of Spent Nuclear
Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County,
Nevada February 2002, Appendix A--Inventory and Characteristics of
Spent Nuclear Fuel, High-Level Radioactive Waste, and Other Materials),
but are not part of the initial 70,000 MTHM plans. Low-level wastes,
suitable for surface and/or shallow land burial are not to be emplaced
at Yucca Mountain.
Question 1b. Can you please help us understand how the 56 million
gallons of radioactive and chemical waste that is expected to be
vitrified at Hanford's Waste Treatment Plant beginning in 2019 compares
in volume to the commercial spent fuel that was planned to be disposed
at the Yucca Mountain facility? Can Hanford's vitrified waste be stored
in the same way and proximity as commercial spent fuel? Are there
additional safety, engineering, and licensing concerns for storing
Hanford's defense waste as compared to commercial spent fuel in the
context of the Yucca Mountain Facility?
Answer. The BRC did not perform any detailed analysis of the
defense wastes, and cannot provide insights about the technical
differences affecting disposal of the defense wastes versus the
commercial wastes. In submitting a license application to the U.S.
Nuclear Regulatory Commission for Yucca Mountain, the DOE presumably
believed there were no technical barriers for safely placing the
contemplated quantities and types of defense and commercial wastes
together in Yucca Mountain. However, the NRC would ultimately need to
determine whether or not the DOE's design would comply with regulatory
standards.
ability of the waste isolation pilot plant (wipp) to accept nuclear
defense waste from hanford
Waste retrievability and reversibility have historically been major
limiting factors in the siting and cost of proposed waste disposal
facilities. Yet the high level waste at the Hanford site is scheduled
to be vitrified in the Waste Treatment Plant beginning in 2019, a
process that will render materials in high level waste both stable and
unrecoverable for future commercial or nuclear purposes. In addition,
the Waste Isolation Pilot Plant (WIPP) seems to have high potential
storage capacity and considerable geologic advantages over other sites.
In the light of these facts, I would appreciate your thoughts on the
following questions:
Question 2a. Given that 5,106 cubic meters of Hanford waste have
already been shipped to WIPP for geologic disposal, is there any
technical barrier to disposal of additional volumes of vitrified high
level waste, spent nuclear fuel, and other wastes from Hanford at the
WIPP facility? Could the facility potentially accommodate higher levels
of both contact-handled and remote-handled wastes?
Answer. The BRC was directed not to investigate any specific
locations or sites for geologic disposal or other nuclear facilities
and therefore cannot comment on the barriers to additional disposal at
the WIPP facility.
Question 2b. Considering that WIPP has now been operated
successfully for over a decade now, what barriers prevent the facility
from being expanded beyond its current maximum of 175,500 cubic meters
of defense-generated transuranic (TRU) waste?
Answer. The BRC was directed not to investigate any specific
locations or sites for geologic disposal or other nuclear facilities
and therefore cannot comment on the barriers to additional disposal at
the WIPP facility.
Question 2c. What advantages or disadvantages do you see in using
WIPP to dispose of Hanford waste in terms of cost, safety, and timing?
Answer. Because the BRC did not evaluate any specific sites for
waste disposal, we are unable to discuss the advantages or
disadvantages of using WIPP to dispose of Hanford waste.
Question 2d. Under the Land Withdrawal Act, does the Department of
Energy have the authority to transfer larger quantities of defense
wastes, including spent nuclear fuel and vitrified high level wastes,
from Hanford to WIPP within the current limits of WIPP's license? If
not, what authority would be necessary?
Answer. Section 12 of the Waste Isolation Pilot Plant Land
Withdrawal Act states that, ``The Secretary shall not transport high-
level radioactive waste or spent nuclear fuel to WIPP or emplace or
dispose of such waste or fuel at WIPP.''
hanford waste characterization
There seems to be significant confusion and apparent
inconsistencies about the classification of nuclear waste at Hanford.
There are a number of different units and categories to characterize
the waste.
The BRC report states that the Hanford Reservation stores ``by far
the largest quantity of DOE's SNF inventory'' as well as most of the 90
million gallons of DOE's high-level waste. The report characterizes the
Hanford nuclear waste inventory in the following manner:
------------------------------------------------------------------------
Spent Nuclear High-Level
Fuel Waste
------------------------------------------------------------------------
Defense 2,172 MTHM
------------------------------------------------------------------------
Non-Defense 309 MTHM
------------------------------------------------------------------------
Total DOE Canisters 3,500 9,700
------------------------------------------------------------------------
Question 3a. Could you provide more details about what each
category includes and how to characterize the waste at Hanford?
Answer. The values in the above chart are for the DOE total--and
not for the Hanford site. The Hanford values for spent nuclear fuel for
defense and non-defense purposes are 2,102 MTHM and 27 MTHM
respectively. Defense related spent fuel includes fuels used to
generate plutonium and other useful materials for weapons production,
while non-defense spent fuel includes fuels utilized for research,
commercial or other civilian applications. Wastes at Hanford that
require, or might require, deep geologic disposal fit into five general
categories: DOE spent nuclear fuel, high-level radioactive waste,
surplus weapons-usable plutonium, commercial Greater-Than-Class-C
waste, and DOE Special-Performance-Assessment-Required waste.
We have included a paper that was written for us by Savannah River
National Laboratory entitled, ``U.S. Radioactive Waste Inventory and
Characteristics Related to Potential Future Nuclear Energy Systems'',*
which may prove helpful. Any additional inventory information should be
obtained from the Department of Energy's Office of Environmental
Management.
---------------------------------------------------------------------------
* Web site access: http://www.brc.gov/sites/default/files/
documents/brc--inventory--whitepaper--rev--2.pdf. Document also has
been retained in committee files.
---------------------------------------------------------------------------
Question 3b. Can the BRC also please provide a breakout of the
quantities and types of spent nuclear fuel, high-level wastes, and
other defense and non-defense nuclear wastes found at Hanford?
Answer. The most up-to-date information regarding the inventories
of high-level waste across the DOE complex can be found at the
Department of Energy's Office of Environmental Management.
Response of the Blue Ribbon Commission to Question From Senator
Murkowski
We have heard a fair amount about Sweden's consent-based approach
in developing its nuclear waste repository. My understanding, however,
is that the two municipalities that competed to host the repository
have existing nuclear facilities within their jurisdiction and as a
result the local population was already supportive of nuclear in
general, while other municipalities in Sweden that did not have nuclear
facilities were not supportive of hosting a waste repository. This
poses the question of whether we are more likely to achieve consent-
based acceptance from a state and local unit of government that has
existing nuclear facilities.
Question 1a. Did you run into similar public sentiment in the other
countries you looked at?
Answer. Similar public sentiment around existing nuclear facilities
did exist in Finland and Sweden--and did contribute to successful
siting of geologic repositories in those countries. However, other
consent-based programs in Canada, France, and Spain, which all are in
various stages of the siting process, have yet to show that pre-
existing public sentiment regarding existing nuclear facilities factors
into the success of their respective programs. In general, all of the
countries the BRC visited stressed that several other elements were
critical in establishing a foundation for public trust and support for
siting nuclear facilities, including:
A clear and understandable legal framework
An opt-out option for the local affected community, up to a
certain point in the process
The availability of financing for local governments and
citizen organizations for conducting their own analyses of the
site and siting issues
Compensation for allowing the investigation and
characterization of the proposed site
A concerted effort to promote knowledge and awareness of the
nuclear waste issue and plans for addressing it through
mechanisms such as:
--Seminars, study visits, and reviews conducted by the local
government
--Information to and consultation with local inhabitants
--Socioeconomic studies and evaluations of impacts on local
businesses
Openness and transparency among and within the implementing
organization, the national government, local governments, and
the public.
Question 1b. Are there potentially viable geologic sites in the
United States near existing nuclear facilities where a repository would
have public support?
Answer. Since 1954, when the Atomic Energy Commission (AEC)
initiated the search for a deep geologic repository, more than 60
regions, areas, or sites involving nine different rock types have been
investigated. Given there are 104 operating reactors and several DOE
nuclear facilities spread across the country, it is likely that
favorable geology does indeed overlap existing nuclear facilities.
However, because the BRC was instructed not to examine the suitability
of specific sites, we cannot comment on which sites offer suitable
geology for disposal and have a potential for public support based on
their proximity to existing facilities.
Responses of the Blue Ribbon Commission to Questions From Senator Risch
Question 1. Idaho is among a number of states with high level waste
that was created on-site by the federal government and we also house
spent nuclear fuel from Three-Mile Island and West Valley in New York.
You recommend creating a new entity to manage waste and disposal
repositories, but the report does not provide details for how defense
waste at sites like INL should be handled. How should defense wastes be
treated and what entity should be responsible for it?
Answer. The BRC heard comments from several states that host DOE
defense waste in support of leaving responsibility for defense waste
disposal with DOE. These states generally agreed with the proposal in
the Commission's draft report to establish a new organization to manage
civilian wastes, but believe the government can more effectively meet
its national security obligations and cleanup commitments if
responsibility for defense waste disposal remains with DOE. The
Commission also heard from interested parties, such as NEI, who
provided credible arguments for why the original commingling decision
should be sustained. Whatever one's view of the pros and cons of the
current policy, a decision to move responsibility for defense wastes to
a new organization(versus leaving that responsibility with DOE) would
have major implications for the scope of responsibility for the new
organization, as well as for key questions of funding, governance, and
Congressional oversight.
The BRC was not in a position to comprehensively assess the
implications of any actions that might affect DOE's compliance with its
cleanup agreements, and we did not have the time or the resources
necessary to thoroughly evaluate the many factors that must be
considered by the Administration and Congress in making such a
determination. The Commission urged the Administration to launch an
immediate review of the implications of leaving responsibility for
disposal of defense waste and other DOE-owned waste with DOE versus
moving it to a new waste management organization. This review should
include an assessment of issues associated with the disposition of DOE-
owned wastes from non-defense sources (e.g. a portion of the high-level
waste now stored at West Valley, New York, and a variety of wastes now
in storage at INL such as damaged fuel from the Three Mile Island Unit
2 reactor). The implementation of other BRC recommendations, however,
should not wait for the commingling issue to be resolved.
Question 2. What path forward do you see for development of new
nuclear power in the United States? Without Yucca moving forward, it
will certainly be decades before another site is selected and vetted
and without a plan for a repository where does that leave new nuclear
projects?
Answer. The BRC believes a range of 15 to 20 years is appropriate
for the waste management organization to accomplish new site
identification and characterization and to conduct the licensing
process for a geologic repository. While the BRC made no
recommendations about the appropriate role of nuclear power in the
nation's (or the world's) future energy supply mix, their final report
does note that the successful management of spent nuclear fuel has long
been viewed as necessary if nuclear power is going to remain a viable
energy option. Laws in several states that put a moratorium on new
nuclear plant construction until certain waste management conditions
have been met, together with the NRC's Waste Confidence findings,
create the most direct linkage between progress on nuclear waste
disposal and the future prospects of the domestic nuclear power
industry.
In 2010 the NRC issued revisions to the agency's waste confidence
findings. The revisions expressed the NRC's confidence that: (1) the
nation's SNF can be safely stored for at least 60 years beyond the
licensed life of any reactor and (2) that sufficient repository
capacity will be available when necessary (though the NRC did not
specify an anticipated timeframe). The NRC also made clear, however,
that by revising its earlier waste confidence findings it did not
intend to signal that it was endorsing the indefinite storage of spent
fuel at reactor sites.
On February 17, 2011, the Natural Resources Defense Council filed a
petition for review with the United States Court of Appeals for the DC
Circuit challenging the NRC's most recent waste confidence rule. The
states of New Jersey, New York, Vermont, and Connecticut have also
challenged the rule.
Question 3. In your report, you suggest a number of incentives that
communities could be eligible for if they were willing to be a site for
a deep geological repository or a consolidated storage facility. How do
you define ``community''?
Answer. A community could be a village, town, city, county, or some
collection of those--depending on local circumstances.
Question 4. The $15 billion that has been spent on Yucca Mountain
is money that ratepayers and taxpayers will never get back. In
addition, counties surrounding the project have repeatedly said that
they want the project to move forward. Do you think the licensing
process for Yucca Mountain should move forward so that the project can
begin receiving waste so we can prove to the American people that the
process can be completed and move our country's nuclear future forward?
Answer. Because the BRC was directed by the Secretary of Energy not
to consider Yucca Mountain, the Commission has no official position on
that site. The BRC has not passed judgment on whether the Yucca
Mountain project should or should not be abandoned. What the BRC has
recommended is a strategy that can succeed regardless of the fate of
the Yucca Mountain project.
As you have noted, the Yucca Mountain project may indeed have
support from several surrounding counties. However, it does not have
support from a majority of its state or federal delegations. The BRC
describes a consent-based process as one in which all affected levels
of government must have, at a minimum, a meaningful consultative role
in important decisions, and we believe that a good gauge of consent
would be the willingness of the affected units of government--the host
states, tribes, and local communities--to enter into legally binding
agreements with the facility operator, where these agreements enable
states, tribes, or communities to have confidence that they can protect
the interests of their citizens.