U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

57–736 PDF 2010

BUDGET IMPLICATIONS OF 

CLOSINGYUCCAMOUNTAIN 

HEARING 

BEFORE THE

COMMITTEE ON THE BUDGET 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

HEARING HELD IN WASHINGTON, DC, JULY 27, 2010 

Serial No. 111–30 

Printed for the use of the Committee on the Budget 

( 

Available on the Internet: 

http://www.gpoaccess.gov/congress/house/budget/index.html 
(II) 

COMMITTEE ON THE BUDGET 

JOHN M. SPRATT, JR., South Carolina, Chairman 

ALLYSON Y. SCHWARTZ, Pennsylvania 

MARCY KAPTUR, Ohio 

XAVIER BECERRA, California 

LLOYD DOGGETT, Texas 

EARL BLUMENAUER, Oregon 

MARION BERRY, Arkansas 

ALLEN BOYD, Florida 

JAMES P. MCGOVERN, Massachusetts 

NIKI TSONGAS, Massachusetts 

BOB ETHERIDGE, North Carolina 

BETTY MCCOLLUM, Minnesota 

JOHN A. YARMUTH, Kentucky 

ROBERT E. ANDREWS, New Jersey 

ROSA L. DELAURO, Connecticut, 

CHET EDWARDS, Texas 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

JAMES R. LANGEVIN, Rhode Island 

RICK LARSEN, Washington 

TIMOTHY H. BISHOP, New York 

GWEN MOORE, Wisconsin 

GERALD E. CONNOLLY, Virginia 

KURT SCHRADER, Oregon 

DENNIS MOORE, Kansas 

PAUL RYAN, Wisconsin, 

Ranking Minority Member 

JEB HENSARLING, Texas 

SCOTT GARRETT, New Jersey 

MARIO DIAZ–BALART, Florida 

MICHAEL K. SIMPSON, Idaho 

PATRICK T. MCHENRY, North Carolina 

CONNIE MACK, Florida 

JOHN CAMPBELL, California 

JIM JORDAN, Ohio 

CYNTHIA M. LUMMIS, Wyoming 

STEVE AUSTRIA, Ohio 

ROBERT B. ADERHOLT, Alabama 

DEVIN NUNES, California 

GREGG HARPER, Mississippi 

CHARLES K. DJOU, Hawaii 

PROFESSIONAL STAFF

THOMAS S. KAHN, Staff Director and Chief Counsel 

AUSTIN SMYTHE, Minority Staff Director 
(III) 

C O N T E N T S 

Page 

Hearing held in Washington, DC, July 27, 2010 .................................................. 1 

Hon. John M. Spratt, Jr., Chairman, Committee on the Budget ................. 1 

Prepared statement of ............................................................................... 6 

Additional submission: 

Kim Cawley, Chief, Natural and Physical Resources, Cost Estimates Unit, Congressional Budget Office, prepared statement 

of ...................................................................................................... 3 

Hon. Paul Ryan, Ranking Minority Member, Committee on the Budget .... 7 

Dr. Kristina M. Johnson, Under Secretary of Energy, U.S. Department 

of Energy ....................................................................................................... 8 

Prepared statement of ............................................................................... 9 

Michael F. Hertz, Deputy Assistant Attorney General, Civil Division, 

U.S. Department of Justice .......................................................................... 11 

Prepared statement of ............................................................................... 13 

Hon. Rick Larsen, a Representative in Congress from the State of Washington, submission for the record: 

Congressional letter dated July 6, 2010, to Hon. Steven Chu, Secretary, U.S. Department of Energy ...................................................... 33 

David Wright, South Carolina Public Service Commissioner ....................... 43 

Prepared statement of ............................................................................... 46 

Hon. Gerald E. Connolly, a Representative in Congress from the State 

of Virginia, prepared statement of .............................................................. 53 

(1) 

BUDGET IMPLICATIONS OF 

CLOSING YUCCA MOUNTAIN 

TUESDAY, JULY 27, 2010 

HOUSE OF REPRESENTATIVES, COMMITTEE ON THE BUDGET, Washington, DC. 

The Committee met, pursuant to call, at 10:20 a.m., in room 210, 

Cannon House Office Building, Hon. John M. Spratt, Jr. [Chairman 

of the Committee] presiding. 

Present: Representatives Spratt, Kaptur, Becerra, Doggett, 

Etheridge, McCollum, Scott, Larsen, Connolly, Schrader, Ryan, 

Simpson, Jordan, Nunes, Lummis. 

Chairman SPRATT. Good morning, and welcome to the Budget 

Committee hearing. Our topic today is the budget implications of 

the administration’s proposal to close the Yucca Mountain Nuclear 

Waste Project. Speaking for myself, I am opposed to the administration’s decision to terminate Yucca Mountain for several reasons. 

First, I am concerned that the federal government’s failure to resolve the problem of nuclear waste disposal has significant implications for the federal budget, which is our jurisdiction. Second, it 

also means that nuclear waste that belongs in a permanent repository will instead be stored indefinitely at sites including my state 

and my district. 

Radioactive waste is a byproduct of this nation’s energy production and defense. By law, disposing of spent nuclear fuel and high 

level waste is a federal responsibility. But because the federal government is not meeting its obligation, waste is being stored indefinitely at more than 120 sites across the nation. In addition to the 

several sites that are in my district, South Carolina, my state, has 

the Savannah River Site, of which we are justly proud. But it 

stores more than 37 million gallons of nuclear waste, a grim legacy 

of the Cold War. 

This approach is not what Congress had in mind. The Nuclear 

Waste Policy Act of 1982 set up a system for dealing with this 

waste. That plan or process included a fee collected from the electric utilities, who have paid for taking the waste off their hands beginning in 1998, twelve years ago. After decades of study and analysis by experts, the government decided to have a single national 

nuclear waste repository. Later, Congress approved Yucca Mountain, Nevada, as the site and the Department of Energy submitted 

the license application with the Nuclear Regulatory Commission. 

But after decades of analysis and decisions, and after billions of 

dollars in fees collected and appropriations made, the administration decided last year to drop—abandon—Yucca Mountain Project. 
2 

This March, the administration told the Nuclear Regulatory Commission that it wanted to withdraw the license application for 

Yucca Mountain with prejudice. The Commission is in the midst of 

deciding whether to allow that. In addition, there are several pending lawsuits challenging the administration’s right to do what it 

has done. 

I have called for the administration to instead move forward with 

Yucca Mountain as required by law. I have been joined in this view 

by many others in Congress. Our goal for this hearing is to gain 

a better understanding of the budget implications of the administration’s proposal to close Yucca Mountain. First of all, how much 

have we spent on the project so far? A basic question for a Budget 

Committee to ask. What happens if the project is indeed stopped 

with prejudice? How much does the federal government owe to 

these utilities for failing to meet its obligations, or our obligations? 

I am doubtful there are easy alternatives or welcome options to the 

Yucca Mountain site. If we abandon Yucca where do we go to find 

a suitable alternative? 

We have several excellent witnesses today to pursue the answers 

to those questions and I want to thank them for their participation. 

First, from the Department of Energy we welcome Under Secretary 

Kristina Johnson. She is accompanied by the Department of Energy’s General Counsel Scott Blake Harris. Dr. Johnson, Mr. Harris, 

thank you both for joining us today. 

Also on our first panel from the Department of Justice we have 

Michael Hertz. He is the Deputy Assistant Attorney General in the 

Civil Division. Mr. Hertz, we welcome you again and appreciate 

your coming. 

After we hear from these government witnesses, we will get a 

view of this problem from the state and local level. We will hear 

testimony from Mr. David Wright, who is Vice Chairman of the 

Public Service Commission of South Carolina. Mr. Wright, I thank 

you also, sir, for coming. 

In addition, the Committee has just received from the Congressional Budget Office updated estimates of the funding and liabilities related to Yucca Mountain. For the record, CBO estimates, 

one, the nuclear industry has paid more than $17 billion in fees 

since 1983 for the federal government to remove nuclear waste, 

and they contribute $750 million to $800 million more each year. 

Second, another $14 billion in interest has been credited to the nuclear waste trust fund. CBO’s statement also addresses how much 

has been spent on nuclear waste removal. More than $7 million 

from the fund has been spent, a large percentage of it for Yucca 

Mountain. Congress has appropriated another $4 billion to deal 

with defense related waste. And finally, CBO tallies the budget 

cost of failing to meet federal obligations. The government has paid 

more than $700 million to date, with more to come, in judgments 

and settlements with the nuclear industry. Potential total liabilities, including the sums above, could exceed $13 billion, according 

to the latest estimates. 

Without objection, we will make the CBO statement in its fullness part of the record. Hearing none, so ordered. 

[The prepared statement of CBO follows:] 
3 

1See the statement of Kim Cawley, Congressional Budget Office, The Federal Government’s 

Responsibilities and Liabilities under the Nuclear Waste Policy Act, before the House Committee on the Budget, July 16, 2009. 2Department of Energy, Office of Civilian Radioactive Waste Management, Analysis of the 

Total System Life Cycle Cost of the Civilian Radioactive Waste Management Program, DOE/ 

RW-0591 (July 2008). 

PREPARED STATEMENT OF KIM CAWLEY, CHIEF, NATURAL AND PHYSICAL RESOURCES, 

COST ESTIMATES UNIT, CONGRESSIONAL BUDGET OFFICE

Mr. Chairman, Congressman Ryan, and Members of the Committee, I am pleased 

to provide updated information about the federal government’s responsibilities and 

liabilities under the Nuclear Waste Policy Act of 1982 (NWPA). Since I testified on 

this topic in 2009, there have been a number of important developments.1 After signaling its intention to terminate a project to build a geologic repository for nuclear 

waste at Yucca Mountain—the only site where such waste is authorized to be stored 

under current law—the Administration announced in January 2010 the formation 

of a Blue Ribbon Commission to make recommendations on alternative means of 

storing, processing, and disposing of nuclear waste. In March, the Administration 

filed a motion with the Nuclear Regulatory Commission (NRC) to withdraw its license application to construct a permanent repository at Yucca Mountain. That motion was denied in June by a three-member NRC panel; the Administration has subsequently appealed that decision. 

Despite those developments, the federal government remains responsible for permanently disposing of spent nuclear fuel generated by civilian facilities, and the 

owners of those facilities continue to pay fees for that service. Regardless of how 

the government meets that responsibility, that task will require a significant 

amount of federal spending over many decades. 

THE FEDERAL GOVERNMENT’S RESPONSIBILITIES

UNDER THE NUCLEAR WASTE POLICY ACT

The Nuclear Waste Policy Act requires the federal government to take possession 

of and permanently dispose of spent nuclear fuel generated at civilian nuclear reactors and to dispose of radioactive waste that results from federal activities in manufacturing nuclear weapons. Under current law, the only solution that the government is authorized to pursue involves permanent disposal of waste at a geologic repository, and Yucca Mountain in Nevada is the only place where such a repository 

may be located. 

Under the NWPA, the federal government, through the Department of Energy 

(DOE), faces substantial costs to establish a repository for the nation’s nuclear 

waste. It has also incurred contractual obligations to remove waste from civilian nuclear facilities. The government will also be responsible for disposing of waste from 

any new facilities built in the future. 

FINANCING THE COSTS OF DISPOSING OF NUCLEAR WASTE

The NWPA addressed how the disposal of spent nuclear fuel and defense-related 

waste was to be paid for. Under that act, the costs are to be borne by the parties 

that generate it, and the law authorizes DOE to levy fees on the nuclear power industry to cover the costs for the waste it generates. The law also authorizes appropriations from the Treasury’s general fund to pay for disposing of high-level radioactive waste generated by the nation’s defense programs. 

In 2008, DOE published an estimate of the total costs—including those for transportation and project management—associated with geologic disposal of waste generated by existing nuclear plants. At that time, Yucca Mountain was assumed to 

be the primary repository. In DOE’s estimation, the project would cost about $96 

billion in 2007 dollars over a period of more than 100 years.2 DOE has not published an updated estimate of the cost of completing a geologic repository for the 

nation’s nuclear waste. 

FINANCING THE COSTS ASSOCIATED WITH CIVILIAN NUCLEAR WASTE

Starting in 1983, the NWPA authorized DOE to charge electric utilities fees to 

cover the costs of disposing of the nuclear waste they generate. Utilities today pay 

annual fees at a rate of 1 mil (0.1 cent) per kilowatt-hour of the electricity they sell 

that is generated by nuclear power plants. In addition to the ongoing yearly fees, 

the NWPA established one-time fees to cover the costs of disposing of waste that 

was generated before the law was enacted. DOE provided utilities with several op-
4 

3Data supplied to the Congressional Budget Office in July 2010 by the Department of Energy. 

tions for paying that one-time charge, but several utilities have not yet paid the fee, 

and a significant amount remains uncollected. 

The fees, which are recorded in the budget as offsetting receipts (a credit against 

direct spending), are deposited into the Treasury’s Nuclear Waste Fund. The NWPA 

authorized appropriations from the Nuclear Waste Fund to cover the costs of the 

civilian nuclear waste program. In addition, the law authorized the Secretary of the 

Treasury to invest the fund’s unspent balances in nonmarketable Treasury securities, which are credited with interest. 

Table 1 summarizes the government’s receipts and disbursements related to the 

nuclear waste disposal program from 1983 through the end of fiscal year 2009. During that time, $31.0 billion was credited to the Nuclear Waste Fund. That amount 

includes fees paid by the nuclear industry totaling $17.1 billion as well as $13.8 billion from intragovernmental transfers of interest credited to the fund. Cumulative 

expenditures from the fund during that period totaled about $7.3 billion, mostly for 

analyses related to the waste disposal program and for initial design work by DOE 

on the Yucca Mountain facility. The NRC and other federal entities also received 

modest appropriations from the fund for work related to the program, leaving an 

unspent balance of $23.6 billion at the end of fiscal year 2009. CBO estimates that 

in 2010, another $2.0 billion will be credited to the fund—nearly $800 million from 

fees and the rest from interest. Expenditures in 2010 will total $0.2 billion, bringing 

the fund’s end-of-year balance to $25.4 billion, CBO estimates. 

TABLE 1.—CUMULATIVE RECEIPTS AND DISBURSEMENTS OF THE NUCLEAR WASTE FUND 

[Billions of dollars] 

Cumulative Totals 

1983 Through 2009 Estimated 2010 

Deposits: 

Annual fees ............................................................................................................. 15.6 0.8 

One-time fees ......................................................................................................... 1.5 0

Subtotal, cash receipts ...................................................................................... 17.1 0.8 

Interest credited a ................................................................................................... 13.8 1.2 

Total Deposits ................................................................................................ 31.0 2.0 

Disbursements ................................................................................................................. 7.3 0.2 

Fund Balance ................................................................................................................... 23.6 25.4 

Memorandum: 

Appropriations from the General Fund for Defense-Related Activities ................. 3.7 0.1 

Source: Department of Energy and Congressional Budget Office. 

Notes: Amounts are in nominal dollars. Components may not add up to totals because of rounding. 

a Intragovernmental transfers from general revenues. 

If all of today’s 104 licensed nuclear reactors continue to generate electricity, future annual receipts from industry fees are likely to average between $750 million 

and $800 million for at least the next decade. Most U.S. nuclear power plants began 

operating in the mid-1970s or during the 1980s under 40-year licenses. The NRC 

has approved 20-year extensions to the licenses of more than half of the plants in 

operation today, and it anticipates that many of the others will apply for such extensions. When those plants reach the end of their license extensions (or their economically useful lives) and cease operations—probably in the 2030s and 2040s—they will 

no longer pay fees to the Nuclear Waste Fund to dispose of their waste. 

Receipts from the one-time fees that remain unpaid and become due once the federal repository is opened currently amount to about $3.2 billion, DOE estimates.3

Interest accrues on the balances due from those one-time fees until the utilities pay 

them to the government; therefore, eventual deposits of such fees will probably be 

significantly greater than the current balances due. Also accruing and adding significantly to the fund’s balances are credits of interest on the fund’s unspent dollars. 

Those amounts are intragovernmental transfers because the fund’s balance is invested in U.S. Treasury securities, and thus, the crediting of interest does not create 

net receipts to the federal government. However, such amounts add to the resources 

that are authorized to be used for the waste disposal program. 
5 

4Department of Energy, Office of Civilian Radioactive Waste Management, Analysis of the 

Total System Life Cycle Cost of the Civilian Radioactive Waste Management Program, DOE/ 

RW-0591 (July 2008). 5 Information supplied to CBO in July 2010 by the Department of Energy. 

6 Ibid. 

7 Ibid. 

FINANCING THE COSTS ASSOCIATED WITH DEFENSE-RELATED NUCLEAR WASTE

In addition to the amounts appropriated from the fees and interest credited to the 

Nuclear Waste Fund, the Congress has provided annual appropriations to the nuclear waste program to cover the costs that DOE estimates are related to the disposal of nuclear waste generated by federal defense programs. In 2008, DOE determined that about one-fifth of the total life-cycle costs of the waste disposal program 

was attributable to that endeavor and that this share of the program’s total costs 

should be paid for with appropriations from the general fund of the Treasury.4 Since 

1993, the Congress has provided about $3.8 billion from the general fund for such 

costs—roughly half of the budgetary resources provided to the waste program so far. 

CONTRACTUAL OBLIGATIONS AND LIABILITIES FOR NUCLEAR WASTE

Under contracts signed with electric utilities pursuant to the Nuclear Waste Policy Act, DOE was scheduled to start removing waste from storage sites at individual 

power plants for transport to a federal storage or disposal facility by 1998. After the 

federal government missed its 1998 contractual deadline to start collecting waste, 

electric utilities began—successfully—to sue the government for resulting damages, 

which are paid from the Treasury’s Judgment Fund. 

Pursuant to the Department of Justice’s settlements with electric utilities, utilities have been reimbursed for the costs they incurred because of DOE’s partial 

breach of its contracts. Such costs are unique to each nuclear power plant and depend partly on the age and operating status of the plant and the size and configuration of the plant’s available space for nuclear waste storage. 

EXISTING LIABILITIES UNDER THE NUCLEAR WASTE POLICY ACT

According to DOE, as of June 2010, electric utilities filed 72 lawsuits seeking compensation for costs they incurred because the federal government could not begin 

to accept nuclear waste for disposal in 1998. Of those lawsuits, 11 have been settled, 

and about $725 million has been paid under those settlements. Ten other cases have 

been dismissed, and one affirmed judgment has resulted in a payment of $35 million 

to the Tennessee Valley Authority (a government entity). Of the 50 pending cases, 

20 have been decided, but some are subject to post-trial motions. If those decisions 

stand, the federal government’s liabilities, including amounts already paid pursuant 

to settlements, will total $1.8 billion.5 Because judicial claims for damages are made 

retrospectively, many more cases can be expected in the coming decades as utilities 

seek to recover their ongoing costs for storing nuclear waste long after they expected 

it to be removed and sent to a permanent disposal site. 

FUTURE LIABILITIES UNDER THE NUCLEAR WASTE POLICY ACT

DOE currently estimates that, if it begins to accept waste in 2021, taxpayers’ liabilities to electric utilities—including amounts already paid—will total $13.1 billion 

(in today’s dollars).6 Further, DOE anticipates that payments from the Judgment 

Fund will occur for several decades. DOE has previously estimated that liabilities 

will increase—by roughly $500 million annually—if the schedule for completing the 

planned repository slips further beyond 2021 and waste continues to accumulate at 

utilities’ storage sites.7

In addition, it is not clear how the Administration’s decision to terminate the 

Yucca Mountain repository will affect the federal government’s liabilities to electric 

utilities. If DOE is found at some point to have fully breached its contractual commitments, the federal government’s liabilities could increase considerably. 

Ultimately, a change in law would be required to authorize DOE to permanently 

dispose of all of the waste anticipated to be generated by existing nuclear facilities 

at a site other than Yucca Mountain. Even if such legislation is enacted, federal liabilities will remain substantial, and payments from the Judgment Fund to compensate utilities for storing waste will continue for many years. 

Chairman SPRATT. Before turning to our witnesses for their testimony, let me turn to our Ranking Member, Mr. Ryan, for his opening statement. Mr. Ryan? 
6 

[The prepared statement of John M. Spratt, Jr. follows:] 

PREPARED STATEMENT OF HON. JOHN M. SPRATT, JR., CHAIRMAN, COMMITTEE ON THE BUDGET

Good morning and welcome to this Budget Committee hearing. Our topic today 

is the Budget Implications of the Administration’s proposal to close the Yucca Mountain nuclear waste project. 

I oppose the Administration’s decision to terminate the Yucca Mountain project 

for two reasons. First, I am concerned that the federal government’s failure to resolve the problem of nuclear waste disposal has significant implications for the federal budget. Second, it also means that nuclear waste that belongs in a permanent 

repository is instead being stored indefinitely at sites including in my state and my 

district. 

Radioactive waste is a by-product of our nation’s energy production and defense. 

By law, disposing of spent nuclear fuel and high-level waste is a Federal responsibility. However, because the Federal government is not meeting its obligation, waste 

is being stored indefinitely at more than 120 sites across the nation. In addition to 

the several sites that are in my district, South Carolina also has the Savannah 

River site, which stores more than 37 million gallons of nuclear waste as a legacy 

of the Cold War. 

This approach is not what Congress had in mind. The Nuclear Waste Policy Act 

of 1982 set up a system for dealing with this waste. That plan included a fee collected from utilities to help pay for taking the waste off their hands beginning in 

1998. 

After decades of study and analysis by experts, the government decided to have 

a single national nuclear waste repository. Later, Congress approved Yucca Mountain, Nevada, as the site, and the Department of Energy submitted the license application with the Nuclear Regulatory Commission. 

However, after decades of analysis and decisions, and after billions of dollars in 

fees collected and appropriations made, the Administration decided last year to 

abandon the Yucca Mountain project. 

This March, the Administration told the Nuclear Regulatory Commission it wanted to withdraw the license application for Yucca Mountain. The commission is in 

the midst of deciding whether to allow that. In addition, there are several pending 

lawsuits challenging the Administration’s right to do that. 

I have called for the Administration to instead move forward on Yucca Mountain 

as required by law. I have been joined in this view by others in Congress. 

My goal for this hearing is to gain a better understanding of the budget implications of the Administration’s proposal to close Yucca Mountain: 

• How much have we spent on the project so far? 

• How much will we need for the future? 

• What happens if the project is indeed stopped? 

• How much does the Federal government owe to these utilities for failing to meet 

its obligations? 

I am doubtful that there are easy alternatives to the Yucca Mountain site. If we 

abandon Yucca Mountain, where are we going to find a suitable alternative? 

We have several excellent witnesses today, and I want to thank them for their 

participation in this hearing. 

First, from the Department of Energy, we welcome Under Secretary Kristina 

Johnson. She is accompanied by the Department of Energy’s General Counsel, Scott 

Blake Harris. Dr. Johnson and Mr. Harris, thank you for joining us today. 

Also on our first panel, from the Department of Justice, we have Michael Hertz. 

Mr. Hertz is Deputy Assistant Attorney General in the Civil Division. Mr. Hertz, 

we thank you for being here today as well. 

After we hear from these government witnesses, we will get a view of this problem from the state and local level. We will hear testimony from Mr. David Wright, 

who is Vice Chairman of the Public Service Commission of South Carolina. Mr. 

Wright, thank you for joining us. 

In addition, the committee just received from the Congressional Budget Office updated estimates of funding and liabilities related to Yucca Mountain. CBO estimates: 

• The nuclear industry has paid more than $17 billion in fees since 1983 for the 

Federal government to remove nuclear waste, and they contribute $750 to $800 million more each year. 

• Another $14 billion in interest has been credited to the Nuclear Waste Fund. 

CBO’s statement also addresses how much has been spent on nuclear waste removal: 
7 

• More than $7 billion from the Fund has been spent—a large percentage of it 

for Yucca Mountain. 

• Congress has appropriated another $4 billion directly to deal with defense-related waste. 

Finally, CBO tallies the budget costs of failing to meet Federal obligations: 

• The government has paid more than $700 million in legal judgments and settlements with the nuclear industry. 

• Potential total liabilities—including the sums above—exceed $13 billion. 

Without objection, CBO’s statement will be made part of the record. 

Before turning to our witnesses for their testimony, let me turn to our Ranking 

Member, Mr. Ryan, for an opening statement. 

Mr. RYAN. Thank you, Mr. Chairman, for this hearing. I might 

be a little less diplomatic, but I will be brief. 

It is clear that safe and permanent storage of high level and 

spent nuclear fuel waste is a critical element to our long term energy strategy. It is also important, has important budgetary implications that if not addressed will only serve to worsen our already 

bleak fiscal picture. 

Over the past twenty-five years we have already spent $10 billion in taxpayer and ratepayer funds to study Yucca Mountain as 

a suitable site for nuclear waste storage. These studies show that 

Yucca, in fact, is suitable for nuclear waste storage, and Congress 

has confirmed this conclusion. Yet the administration has, for what 

I think are political reasons, determined that Yucca is not a workable option and is proposing millions more of taxpayer dollars be 

spent on further studies. This delaying tactic is a waste of taxpayer 

dollars and a hindrance to permanently resolving this issue. 

In addition to the futility of these studies, it would also expose 

taxpayers to large liabilities from the government’s broken promise 

on nuclear waste storage. Courts have already awarded utility companies over $1 billion in damages for the government’s breach of 

contract. And DOE estimates the government’s total liability relating to lawsuits is $12.3 billion. Abandoning Yucca, or even further 

delay, would add billions more to this already unacceptable liability. Abandoning Yucca is also clearly at odds with the administration’s promise to let science guide our decision making process and 

instead puts political calculations ahead of the national interest. 

Mr. Chairman, we do not need further studies on Yucca. I look 

forward to the testimony of today’s witnesses and hope that we can 

move forward in resolving this issue. Thank you. 

Chairman SPRATT. Thank you, Mr. Ryan. Before proceeding with 

our witnesses, I would ask unanimous consent that all members be 

allowed to submit an opening statement for the record at this 

point. Without objection, so ordered. 

We welcome all of our witnesses today and would advise each of 

you that your prepared statements have been made part of the 

record so that you can summarize as you see fit. But we welcome 

you to take as much time as you see necessary to fully explore and 

state your case. 

Dr. Johnson, let us begin with you, and thank you again for coming. The floor is yours. 
8 

STATEMENTS OF KRISTINA M. JOHNSON, UNDER SECRETARY, 

ACCOMPANIED BY SCOTT BLAKE HARRIS, GENERAL COUNSEL, U.S. DEPARTMENT OF ENERGY; AND MICHAEL F. 

HERTZ, DEPUTY ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION 

STATEMENT OF KRISTINA M. JOHNSON 

Ms. JOHNSON. Thank you. Thank you very much. Mr. Chairman, 

members of the Committee, my name is Kristina Johnson and I am 

the Under Secretary of Energy. I appreciate the invitation to appear before the Committee to discuss issues surrounding the government’s responsibility for the safe management and disposition 

of nuclear waste. 

The Department remains committed to meeting its obligations 

for disposing of spent nuclear fuel and high level radioactive waste. 

To that end, the Secretary at the direction of the President has established a Blue Ribbon Commission on America’s Nuclear Future, 

chaired by former Congressman Lee Hamilton and General Brent 

Scowcroft. The Commission is evaluating options and will make 

recommendations for developing a safe, long term solution to managing the nation’s used nuclear fuel and nuclear waste. The Blue 

Ribbon Commission is working expeditiously and is expected to 

submit its draft report within a year from now and its final report 

six months later. 

As you know, the administration has decided that Yucca Mountain is not an option for a repository for spent nuclear fuel and 

high level waste. Consistent with that decision, on March 3, 2010, 

the Department filed a motion in the Nuclear Regulatory Commission Licensing Proceedings asking for permission to withdraw its license application for a Yucca Mountain repository. On June 29th 

the designated NRC Atomic Safety and Licensing Board denied the 

Department’s motion. On June 30th, the Commission invited the 

participants in the licensing proceeding to submit briefs on whether 

the Commission should review and affirm or reverse the Board’s 

decision. The NRC has not yet made a ruling. The Department remains confident in its legal authority to withdraw the application. 

The Nuclear Waste Policy Act authorizes the Secretary to enter 

into contracts with commercial nuclear utilities and commercial research reactor operators that own and generate spent nuclear fuel. 

Under the terms of these contracts, in return for the payment of 

a fee of one mill per kilowatt hour the government was to begin 

disposing of spent nuclear fuel starting in 1998. The fees collected 

under these standard contracts are deposited into the Nuclear 

Waste Fund. As you commented, the fund currently has a balance 

of approximately $25 billion which is invested in U.S. Treasury instruments. The government receives approximately $750 million 

per year in revenues from ongoing nuclear generation, and the 

fund averages approximately $1 billion annual return in its investments. To date, utility contract holders have paid nearly $18 billion 

in fees. 

It is important to note that the government’s obligation under 

these contracts is to dispose of the spent fuel. The contracts specify 

no method or location for the disposal. It is also important to understand that contracts going forward to take used fuel from newly 
9 

built reactors would contain provisions different from the earlier 

original contracts under which the government has been found liable and which are discussed. 

The Department has in recent years developed a new standard 

contract for utilities planning to build new commercial reactors. 

Under these new standard contracts, the Department would not be 

required to complete disposal of the spent fuel until twenty years 

after the expiration of the operation license and any extensions 

thereto. Assuming such a reactor became operational in 2020, any 

liability resulting from the obligation to accept used fuel from the 

reactor most likely would not come into effect until the end of this 

century. 

Beginning in 1998, most contract holders initiated lawsuits 

against the government due to the delay in beginning the acceptance of the spent nuclear fuel as required by the contracts. Courts 

have determined the delay was a partial breach of contract by the 

government, and numerous trials have been held to determine the 

amount of damages to be awarded. Last year, the Department estimated the liabilities under current law resulting from the delay in 

beginning waste acceptance from 1998 to 2020 could be as much 

as $13 billion. We have not attempted to update this estimate. As 

you know, the Department of Justice is in charge of defending 

these cases. I understand that Deputy Assistant Attorney General 

Hertz will address the status of the litigation. 

The Department remains committed to meeting its obligations 

for managing and ultimately disposing of spent nuclear fuel and 

high level radioactive waste. The Blue Ribbon Commission provides 

an opportunity for a dialogue on how best to address this challenging issue, and the Commission’s recommendations will provide 

a basis for working with Congress to revise the national policy. The 

Department looks forward to an ongoing dialogue with members of 

Congress, interested stakeholders, and others as alternate waste 

management approaches are reviewed. 

Thank you for this opportunity to discuss these issues, and I 

would be pleased to answer any questions the Committee may have 

at this time. Thank you. 

[The prepared statement of Kristin M. Johnson follows:] 

PREPARED STATEMENT OF DR. KRISTINA M. JOHNSON, 

UNDER SECRETARY OF ENERGY, U.S. DEPARTMENT OF ENERGY

Mr. Chairman and Members of the Committee, my name is Kristina M. Johnson, 

Under Secretary of Energy. I appreciate the invitation to appear before the Committee to discuss issues surrounding the Government’s responsibility for the safe 

management and disposition of nuclear waste. 

The Department remains committed to meeting its obligations for disposing of 

spent nuclear fuel and high-level radioactive waste. To that end, the Secretary, at 

the direction of the President, has established a Blue Ribbon Commission on America’s Nuclear Future chaired by former Congressman Lee Hamilton and General 

Brent Scowcroft. The Commission is evaluating options and will make recommendations for developing a safe, long-term solution to managing the Nation’s used nuclear fuel and nuclear waste. The Blue Ribbon Commission is working expeditiously; 

it is expected to submit its draft report within a year from now, and its final report 

six months later. 

As you know, the Administration has decided that Yucca Mountain is not an option for a repository for spent nuclear fuel and high-level waste. Consistent with 

that decision, on March 3, 2010 the Department filed a motion in the Nuclear Regulatory Commission (NRC) licensing proceeding, asking permission to withdraw its 

license application for a Yucca Mountain repository. On June 29, 2010 the des-
10 

ignated NRC Atomic Safety and Licensing Board denied the Department’s motion. 

On June 30, 2010, the Commission invited the participants in the licensing proceeding to submit briefs on whether the Commission should review and affirm or 

reverse the Board’s decision. The NRC has not yet made a ruling. The Department 

remains confident in its legal authority to withdraw the application. 

THE STANDARD CONTRACTS

The Nuclear Waste Policy Act authorizes the Secretary to enter into contracts 

with commercial nuclear utilities and commercial research reactor operators that 

own and generate spent nuclear fuel. Under the terms of these contracts, in return 

for the payment of a fee of 1 mill per kilowatt-hour, the Government was to begin 

disposing of the spent nuclear fuel starting in 1998. 

The fees collected under these standard contracts are deposited in the Nuclear 

Waste Fund. The Fund currently has a balance of approximately $25 billion which 

is invested in U.S. Treasury instruments. The Government receives over $750 million per year in revenues from on-going nuclear generation, and the Fund averages 

approximately $1 billion annual return on its investments. To date, utility contract 

holders have paid nearly $18 billion in fees. 

It is important to note that the Government’s obligation under these contracts is 

to dispose of the spent fuel; the contracts specify no method of or location for disposal. It is also important to understand that contracts going forward—to take used 

fuel from newly built reactors—contain provisions different from the earlier original 

contracts under which the Government has been found liable (and which are discussed below). 

The Department has in recent years developed a new standard contract for utilities planning to build new commercial reactors. Under these new standard contracts, the Department would not be required to complete disposal of the spent fuel 

until 20 years after expiration of the operating license and any extensions thereto. 

Assuming such a reactor became operational in 2020, any liability resulting from 

the obligation to accept used fuel from that reactor most likely would not come into 

effect until the end of this century. 

LIABILITY UNDER THE ORIGINAL VERSION OF THE STANDARD CONTRACT

Beginning in 1998, most contract holders initiated lawsuits against the Government due to the delay in beginning the acceptance of spent nuclear fuel as required 

by the contracts. Courts have determined the delay was a partial breach of contract 

by the Government, and numerous trials have been held to determine the amount 

of damages to be awarded. 

Last year, the Department estimated the liabilities under current law resulting 

from the delay in beginning waste acceptance (from 1998 to 2020) could be as much 

as $13.1 billion. We have not attempted to update that estimate. 

As you know, the Department of Justice is in charge of defending these cases. I 

understand Deputy Assistant Attorney General Hertz will address the status of the 

litigation. 

CONCLUSION

The Department remains committed to meeting its obligations for managing and 

ultimately disposing of spent nuclear fuel and high-level radioactive waste. The Blue 

Ribbon Commission provides an opportunity for a dialogue on how best to address 

this challenging issue, and the Commission’s recommendations will provide a basis 

for working with Congress to revise the national policy. The Department looks forward to an ongoing dialogue with members of Congress, interested stakeholders, 

and others as alternative waste management approaches are reviewed. 

Thank you for this opportunity to discuss these issues, and I would be pleased 

to answer any questions the Committee may have at this time. 

Chairman SPRATT. Mr. Harris? 

Mr. HARRIS. Mr. Chairman, I have no prepared statement. But 

if you do not mind, I would take just a second to make a personal 

statement. I have been practicing law in Washington for thirty-four 

years. This is the third federal agency in which I have served. This 

is only the second time that I have had the opportunity to appear 

before a Committee of the House of Representatives. And I just 

want to tell you it is an honor to be here today. Thank you. 

Chairman SPRATT. And we are happy to have you. Mr. Hertz? 
11 

STATEMENT OF MICHAEL F. HERTZ 

Mr. HERTZ. Thank you, Mr. Chairman. My name is Michael 

Hertz. I am a Deputy Assistant Attorney General in the Civil Division of the Department of Justice, the division that is handling the 

spent nuclear fuel contract litigation. I have testified before this 

Committee twice before, and I am privileged to be here for a third 

time. 

As I have before I would like to touch on three points this morning. One, the origin of the litigation that we are handling. Two, the 

status of that litigation. And three, the liabilities that we are facing 

and the costs of that litigation. 

As you know, in 1983 pursuant to the Nuclear Waste Policy Act 

the Department of Energy entered into seventy-six standard contracts with commercial utilities that were producing nuclear power. 

DOE agreed that by January 31, 1998, it would begin accepting 

spent nuclear fuel. In return the utilities agreed to make quarterly 

payments into the Nuclear Waste Fund, and they began making 

those payments in 1983. As is well known, DOE has not yet commenced accepting spent nuclear fuel. However, DOE has clearly 

stated its continuing commitment to meet its obligations for disposing of spent nuclear fuel and high level radioactive waste. 

In response to DOE’s delay, utility companies filed seventy-two 

cases in the United States Court of Federal Claims alleging that 

DOE’s delay in beginning to accept spent nuclear fuel constituted 

a breach of contract. The Court of Appeals for the Federal Circuit 

agreed with that and ruled that it constituted a breach, but it held 

that it was a partial breach. Partial, in response to both the fact 

that the utilities kept paying the fees, and the government maintained its obligation to dispose of the spent nuclear fuel. 

Utilities’ damage claims are largely for the costs incurred to store 

spent nuclear fuel that they allege DOE would have expected absent the breach. That is, storage costs that utilities allege that they 

would not have expended had DOE begun timely performance 

under the contracts. In addition, some of the utilities have alleged 

diminution in value claims for utility plants that they have sold to 

other utilities. Total claims to date approximately $5.7 billion, although I would note in the cases that we have filed, there are no 

claims data in thirteen of the pending cases yet. As has been stated, DOE estimated its potential liability in 2009 at about $13.1 billion, assuming that a start date of acceptance would begin in 2020. 

That estimate was created before the administration announced 

that it would not proceed to build the repository at Yucca Mountain. 

Because these are partial breach cases, the utilities have to return to court at least once every six years to file new claims. So, 

we will probably continue to litigate these claims until DOE begins 

accepting spent nuclear fuel. 

Of the seventy-two cases filed, six of them are what we refer to 

as ‘‘round two’’ cases. That is, cases where utilities would come 

back to file a second claim. Thirty-two cases remain pending before 

the trial court, the United States Court of Federal Claims. Four 

cases, there have been final judgment where we are making a determination whether to appeal. There are thirteen final judgments 
12 

on appeal. There are five final unappealable judgments. Eleven 

cases have been settled. And six cases were voluntarily withdrawn. 

The government’s liability for judgments that have already been 

entered, many of which are not final or are subject to appeal, and 

settlements currently stands at approximately $2 billion. I would 

note that last year when I was before this Committee that figure 

was $1.3 billion. This $2 billion amount covers approximately 60 

percent of the claim years of liability. That is, that liability that accrued between January 31, 1998, and the end of 2009. In total, the 

government has paid out approximately $760 million pursuant to 

settlement and one trial court judgment that was not appealed. Additional government liability will continue to accrue for as long as 

DOE is delayed in commencing spent nuclear fuel at contractually 

required rates. 

To give you an idea of the extent of the litigation, the Department has conducted two spent nuclear trials this year where the 

total claim by the utilities was approximately $70 million. Next 

year, we are expecting to have eight trials in 2011, where the 

amount the utilities claim is approximately $900 million. And in 

2012, we are expecting six trials, the first three of which we expect 

the total claims to be $212 million, and we do not have claims data 

for the other three that will be heard in that year. 

While we are asserting legitimate defenses to these claims, we 

have also made concerted efforts to settle them. As I noted, we 

have paid out a certain amount in settlement. We have settled 

cases, seventeen of the standard contracts in eleven of the cases. 

I would note also that we have recently begun discussions with the 

utilities as a group to explore the possibility of reaching a standard 

agreement with a larger segment of the utilities whose claims are 

currently pending. 

Because many of the major recurring issues have been resolved, 

the ultimate success of many types of claims is now more predictable to both the government and the utilities, which may make settlement more possible. 

The payments of settlements and judgments to date have all 

been paid out of the Judgment Fund. In 2002 the United States 

Court of Appeals for the Eleventh Circuit determined that the Nuclear Waste Fund was not available to pay these judgments or to 

pay settlements. The litigation costs—and we are also unaware of 

any statutory requirement that DOE is required to reimburse the 

Judgment Fund. So these funds come from the Judgment Fund the 

Treasury holds. The litigation costs that we have incurred to date, 

the government’s cost of close to $200 million. We are spending approximately twelve to fifteen attorney man years per year on defending these cases. The costs constitute about $29 million in attorney costs, $111 million in expert fees, $52 million in litigation support costs. I would note that the President’s budget for fiscal year 

2011 has requested an $11 million increase for the Civil Division 

to handle more effectively this litigation, and we would urge the 

Congress to pass that. 

Absent settlement, these litigation costs will continue to be incurred into the foreseeable future. Until DOE begins SNF acceptance or another suitable arrangement is made with the industry, 

the government’s underlying liability will continue to accrue. 
13 

I look forward to responding to questions from the Committee. 

Thank you. 

[The prepared statement of Michael F. Hertz follows:] 

PREPARED STATEMENT OF MICHAEL F. HERTZ, DEPUTY ASSISTANT

ATTORNEY GENERAL, CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE

Mr. Chairman, and members of the Committee, I am Michael F. Hertz, and I am 

a Deputy Assistant Attorney General of the Department of Justice, Civil Division. 

I am pleased to testify today regarding the status of litigation concerning the Department of Energy’s obligations under the Nuclear Waste Policy Act (‘‘NWPA’’) of 

1982. I testified before the Committee in October 2007 and July 2009 regarding the 

same subject, and this testimony updates and supplements the testimony that I 

have previously provided. Let me note at the outset that much of the litigation 

about which you have asked the Department of Justice to provide testimony is still 

pending in the Federal courts. As a result, the Department’s pending matter policy 

applies to any discussion of those cases. Pursuant to that policy, I will be happy to 

discuss matters that are in the public record. Background In 1983, pursuant to the 

NWPA, the Department of Energy (‘‘DOE’’) entered into 76 standard contracts with 

entities, mostly commercial utilities, that were producing nuclear power. Through 

the standard contracts, DOE agreed that by January 31, 1998, it would begin accepting spent nuclear fuel and high-level radioactive waste (collectively, ‘‘SNF’’) created by the utilities. In return, the utilities agreed to make quarterly payments into 

the Nuclear Waste Fund (‘‘NWF’’) created by the statute. The utilities began making 

payments into the NWF in 1983. To date, DOE has not yet commenced accepting 

SNF. The commencement date for SNF acceptance at a Federal facility is currently 

unknown; however, DOE has clearly stated its continued commitment to meeting its 

obligations for disposing of spent nuclear fuel and high-level radioactive waste. Status Of Court Of Federal Claims Litigation 

In response to DOE’s delay, utility companies have filed 72 cases in the United 

States Court of Federal Claims, alleging that DOE’s delay in beginning SNF acceptance constituted a breach of contract. The Court of Appeals for the Federal Circuit, 

in Maine Yankee Atomic Power Co. v. United States, 225 F.3d 1336, 1341 (Fed. Cir. 

2000), has ruled that the delay constitutes such a breach. 

The utilities’ damages claims are largely for the costs incurred to store SNF that 

they allege DOE would have accepted from them absent the breach—specifically, 

storage costs that utilities allege they would not have expended had DOE begun 

timely performance under the standard contracts. In addition, several utilities have 

alleged damages arising from the ‘‘diminution-in-value’’ of their plants as the result 

of DOE’s delay, claiming that they realized these damages when they sold their 

plants to other utilities as part of the sale. 

DOE’s most recent estimate of potential liability, which was formulated in 2009 

and assumed a projected start date of SNF acceptance of 2020, was as much as 

$13.1 billion. This estimate does not fully account for the Government’s defenses or 

the possibility that plaintiffs will not be able to prove the full extent of their claims, 

and they were created before the Administration’s 2009 announcement that it would 

not proceed to build a repository at Yucca Mountain, Nevada. 

The United States Court of Appeals for the Federal Circuit has held that, because 

the utilities are continuing to perform their obligations under the standard contracts 

by paying money to the NWF with the expectation of future performance, all claims 

for breach of the standard contracts are ‘‘partial’’ rather than ‘‘total’’ and damages 

are only available through the date of the complaints that have been filed. Indiana 

Michigan Power Co. v. United States, 422 F.3d 1369 (Fed. Cir. 2005). To comply 

with the applicable statute of limitations, utilities must file new cases with the trial 

court at least every six years to recover any costs incurred as the result of DOE’s 

delay, and, absent settlement, we will continue to litigate these claims until after 

DOE begins accepting SNF. 

Of the 72 lawsuits filed, 50 cases remain pending either in the Court of Federal 

Claims or in the Court of Appeals for the Federal Circuit, 11 have been settled, six 

were voluntarily withdrawn, and five have been litigated through final unappealable 

judgment. Of the 50 pending cases, the trial court has entered judgment in 17 cases, 

13 of which are pending on appeal and the time to appeal on the remaining four 

of which has not yet elapsed. Six of the 72 cases represent ‘‘second-round’’ claims— 

that is, claims that seek recovery for expenditures incurred after the claim period 

for their initial claims and that are required to be brought in a second lawsuit as 

a result of the partial nature of the Government’s breach. 
14 

The Government’s liability for judgments that have already been entered (most 

of which are not final because of appeals or remands) and settlements currently 

stands at approximately $2.0 billion. This amount covers approximately 60% of the 

claim-years of liability (that is, the total number of individual years in which individual contract-holders could seek damages for DOE’s failure to accept SNF) that 

accrued between January 31, 1998 and the end of 2009. In total, the Government 

has paid approximately $760 million pursuant to settlements and one trial court 

judgment that was not appealed. In addition to the approximately 40% of the claimyears through 2009 that are not already the subject of settlements or judgments, 

additional Government liability will accrue for as long as DOE is delayed in commencing SNF acceptance at contractually required rates. 

As noted, I provided testimony to this Committee concerning these cases in October 2007 and July 2009. Both prior to and since these times, the Department has 

been actively involved in trying cases, and the judgments issued in these cases have 

resulted in a large number of appeals being filed and handled. The following chart 

depicts the progression of SNF cases through trial and to appeal as of October 2007, 

July 2009, and July 2010: 

The Department of Justice has conducted 2 SNF trials in 2010. Barring settlements and excluding cases that may be remanded for further proceedings by the 

Federal Circuit, our current estimate is that we will conduct 8 trials in 2011 and 

6 trials in 2012. Because the plaintiffs are suing for partial breach, we also anticipate that, absent settlement, the number of pending cases will increase as additional utilities file second-round claims. 

While asserting legitimate defenses to plaintiffs’ claims in litigation, we also have 

made concerted efforts to settle claims. The settlements resolving claims on 17 of 

the standard contracts in 11 of the cases involve six companies: Exelon Generation, 

LLC; South Carolina Electric & Gas Company; Omaha Public Power District; Duke 

Power Company; Florida Power & Light Company; and PSEG Nuclear LLC. These 

settlements provide for the periodic submission of claims to the contracting officer 

for costs incurred since the date of the last submission. 

We have also recently begun discussions with the utilities as a group to explore 

the possibility of reaching a standard settlement with a larger segment of the utilities whose claims are currently pending. Because many of the major recurring 

issues have been resolved as the cases have worked their way through trial and the 

appellate process, the ultimate success of many types of claims is now more predictable to both the Government and the utilities. Because the claims of a substantial 

number of the utilities are not substantially affected by issues that require resolution at the appellate level, it may be possible to implement an administrative claims 

process with these utilities that is less expensive and more efficient than litigation 

and that achieves largely the same results. 

PROCEEDINGS IN OTHER FORUMS

There are several matters currently pending in the United States Court of Appeals for the District of Columbia Circuit and before the Nuclear Regulatory Commission (‘‘NRC’’) that are related to DOE’s obligation to accept SNF. Those cases do 

not directly implicate the breach of contract cases in the Court of Federal Claims 

and the Federal Circuit, but could have some effect upon the issues likely to arise 

during the litigation. 

In In Re Aiken County (D.C. Cir.), the States of South Carolina and Washington, 

a county in South Carolina, and three individuals are seeking review of the Secretary of Energy’s decision to move to withdraw the license application and to terminate other activities related to development of the Yucca Mountain site for a permanent repository for nuclear waste. The District of Columbia Circuit has consolidated 

the various petitions and is handling them on an expedited basis, with the Government’s brief currently due to be filed on July 28, 2010. In a related matter, an Atomic Safety and Licensing Board of the Nuclear Regulatory Commission has recently 

held that the Secretary of Energy lacks authority to withdraw the previously submitted license application for Yucca Mountain, and the full NRC has requested 

briefing from interested parties regarding whether it should ‘‘review, and reverse or 

uphold, the Board’s decision.’’ 

In addition, in National Association of Regulatory Utility Commissioners v. 

United States Department of Energy (D.C. Cir.), two industry groups and several 

nuclear reactor owners have filed petitions, which have been consolidated, challenging the continued collection of NWF fees. Payment Of Judgments And Settlements 

To date, all payments to the utilities have come from the Judgment Fund. In Alabama Power Co. v. United States Department of Energy, 307 F.3d 1300 (11th Cir. 
15 

2002), the Court of Appeals for the Eleventh Circuit ruled that the Government 

could not use the NWF to pay for any of the damages that the utilities incur as 

a result of DOE’s delay. The only other available funding source that has been identified to date is the Judgment Fund. We are also unaware of any statutory requirement that DOE be required to reimburse the Judgment Fund for judgments paid, 

unlike other statutory schemes that govern the adjudication of contract and other 

monetary disputes with the Government. Litigation Costs 

The costs to the Government to litigate these cases are significant. The Depart- ment of Justice has expended approximately $29 million in attorney costs, $111 million in expert funds, and $52 million in litigation support costs in defense of these 

suits. In addition, DOE has expended many manhours to support this effort. Absent 

settlement, these litigation costs will continue to be incurred into the foreseeable future, just as, until DOE begins SNF acceptance (or other suitable arrangement is 

made with the industry), the Government’s underlying liability will continue to accrue. 

Chairman SPRATT. Let me just ask you for the record if the numbers that I read previously by CBO comport with your understanding of the costs, the different costs, of this situation? 

Mr. HERTZ. I had a quick opportunity to look at CBO’s statement 

this morning, and I thought they were pretty accurate, pretty consistent with the numbers that I gave you this morning as well, and 

that we have at the Department as well. 

Chairman SPRATT. We will give you a copy and if there is any 

deviation that should be noted for the record, we would appreciate 

your doing so. 

Mr. Hertz, do you agree that the Department of Energy has the 

authority to terminate with prejudice? 

Mr. HERTZ. Mr. Chairman, that matter is in litigation now, both 

before the Nuclear Regulatory Commission in a case that the Department of Energy is handling, and it has been challenged in the 

D.C. Circuit. And I am really not prepared to comment on pending 

litigation. I will note that the Department of Justice is defending 

the Department of Energy’s decision to file the motion in the litigation in the D.C. Circuit. 

Chairman SPRATT. Supporting what position? 

Mr. HERTZ. Supporting the position of the Department of Energy 

that it had authority to file the motion to withdraw the application 

for a repository at Yucca Mountain. 

Chairman SPRATT. And what parties have taken up the other 

side of that issue? 

Mr. HERTZ. What parties? 

Chairman SPRATT. Yes, sir. 

Mr. HERTZ. I think a number of the utilities and some of the 

trade groups have filed that case in the D.C. Circuit, and Aiken 

County, South Carolina, as well. 

Chairman SPRATT. Dr. Johnson, it is said frequently that Yucca 

is not ‘‘a workable option.’’ Would you explain to us what ‘‘workable’’ means in this context? 

Ms. JOHNSON. Well, thank you very much, Mr. Chairman. As 

Secretary Chu has said, over the past two decades the science and 

technology for managing the back end of the fuel cycle has accelerated our understanding. And I will give you a few examples there. 

When we are thinking about managing the back end of the fuel 

cycle, we have improved our understanding of the kinds of forms 

of high level waste that we will get. We have improved our understanding for proliferation resistant and recycling technology. We 

operate right now the only deep geologic storage facility in the 
16 

world at the Waste Isolation Pilot Plant in New Mexico that has 

received 5,000 shipments since it started operating in 1999. 

Chairman SPRATT. That is in a salt dome. Are you suggesting a 

salt dome would be the alternative location for a deep geologic repository? 

Ms. JOHNSON. I am not suggesting that. But if I may, just to continue where my thinking is going and to answer your question. In 

addition, we also have accelerated our understanding of high performance computing in the nuclear sense. Taking a page from the 

Stockpile Stewardship Program, we know how to model and simulate nuclear materials in a way that we had not when the Nuclear 

Waste Policy Act was passed in 1982. And as a result, this administration believes that it is time to step back and to look at what 

we have learned, and to see if there is a better solution with broader support. Which is why we are standing up the Blue Ribbon Commission with distinguished individuals to help make recommendations on how we might better manage the back end of the fuel 

cycle. 

Chairman SPRATT. But in the case of NEPA—— 

Ms. JOHNSON. Right. 

Chairman SPRATT [continuing]. The basic requirement is that all 

viable options be considered. You are ruling out in the consideration of new alternatives consideration of Yucca Mountain. Do you 

think that is compliant with the NEPA, the spirit and letter? 

Ms. JOHNSON. The Blue Ribbon Commission will consider many 

options, including deep geologic storage. But it is not a siting organization or committee. So, therefore, it will not consider Yucca or 

any other site in any other state. 

Chairman SPRATT. But it will consider deep geological repositories, not Yucca? 

Ms. JOHNSON. Deep geologic repository of spent nuclear fuel is 

one of the options that I am sure it will be considering, since it has 

been asked by the Secretary and charged to consider all options 

that may result in a better solution to the long term disposition of 

spent nuclear fuel and high level waste. 

Chairman SPRATT. Would Yucca be on the table? 

Ms. JOHNSON. Again, the Blue Ribbon Commission, Mr. Chairman, is not a siting committee. It is looking for making recommendations on the best possible solutions to managing the back 

end of the fuel cycle. 

Chairman SPRATT. I am still fetching for why Yucca is unworkable after all of these years, and all of this money spent, we come 

to the unilateral decision that Yucca is not a workable option? 

Ms. JOHNSON. Again, stepping back for a minute and thinking 

about where we have come as a society over the last twenty-five 

years. If you think back in 1982 when the Nuclear Waste Policy 

Act came into being, that was a time when Intel introduced the 

8286 microprocessor, which had a processing speed of six to eight 

megahertz. It was before the Macintosh was introduced. It was before the IBM PC became available in 1986. We connected through 

a modem dial up. It was before widespread utilization of the analog 

cell phone, never mind the digital cell phone. In December, 2009, 

the Jaguar high performance computer at Oak Ridge National Lab 

was acknowledged as being the fastest computer in the world and 
17 

it achieved 1.25 petaflops. Given Moore’s Law, what has happened 

over the last thirty years, we have thirty thousand times the processing speed of a single processor. And high performance computing architectures that were not known at the time that the Nuclear Waste Policy Act came into being leverages that another ten 

thousand to a million times. Given also the capability we have developed through the Stockpile Stewardship Program, I think it is 

prudent to step back and see: can this new technology capability 

that has come online will help develop a better solution? 

Chairman SPRATT. Will this be, then, recycling? Reprocessing? 

Ms. JOHNSON. It could—— 

Chairman SPRATT. Is that what you have in mind as an alternative to—— 

Ms. JOHNSON. I do not want to presuppose what the Blue Ribbon 

Commission will recommend at this time. But I think it is important to realize what the technology may do now that we could not 

have envisioned even ten years ago. 

Chairman SPRATT. But if the Commission said, ‘‘Let us consider 

reprocessing.’’ Would that be in its purview? 

Ms. JOHNSON. I believe that the Blue Ribbon Commission has 

been directed to consider all possible methods for dealing with the 

back end of the fuel cycle, and we will look forward to getting those 

recommendations. But again, I do not want to presuppose or prejudice what they might say. They are a distinguished group of individuals. They include, as you know, former Senators Domenici, 

Hagel; Ms. Susan Eisenhower; and the Honorable Former Under 

Secretary Moniz to mention just a few, besides the leaders General 

Scowcroft and former Congressman Lee Hamilton. So, we are looking very much forward to their recommendations and providing all 

the information to help them in their deliberations. 

Chairman SPRATT. In the meantime there is a great deal of data 

and information and analytical results that have been achieved 

through the expenditure of $10 billion to $11 billion at Yucca 

Mountain. What do you do to preserve that data for future use? 

Ms. JOHNSON. That is a great question, and we have been very 

diligent about setting up six functional groups to look at the orderly shut down of Yucca Mountain. And that includes procurement and contracts, that includes transferring the records for management to legacy management within the Energy and Environment Programs at the Department of Energy. So, we are very conscious of records and data collection. We are even keeping the 

specimens of the rocks that have been used for some of the research at Yucca Mountain and preserving those as well. So, we are 

allocating the resources as well as the individuals to make sure 

that we retain all the knowledge gained from this endeavor. 

Chairman SPRATT. There are others here who have questions to 

ask, and I will come back to my additional questions. But one final 

question concerns the people—— 

Ms. JOHNSON. Right. 

Chairman SPRATT [continuing]. Who have engaged in this Yucca 

Mountain project. I understand there is somewhere between 2,500 

and 3,000 workers who have been, employees and contractors, who 

have been working on Yucca Mountain. What happens to their 

jobs? 
18 

Ms. JOHNSON. Again, thank you for the question. To my knowledge, it is 200 federal employees and about 400 contractors. 

Chairman SPRATT. 207? 

Ms. JOHNSON. 200 federal employees and about 400 contractors. 

And we have worked with the employees to help and support them 

in their careers. So, to the point where we now have only thirty 

federal employees that are still either considering retirement or 

considering other career options that we are supporting. And so we 

issued, the Deputy Secretary issued a memorandum which gives 

the RW employees preference in terms of jobs within the Department of Energy. And we have been very diligent about providing 

resources to help employees because we care very much about the 

individuals that we have worked with, to continue their career, or 

if they choose to separate, to help them in any way we can. 

Chairman SPRATT. Mr. Hertz, you mentioned several different 

elements of damages in addition to the damages due to delay in 

taking possession of the spent fuel. Included in your estimate were 

expert witness fees and attorneys. What were those numbers again, 

for those ancillary costs? 

Mr. HERTZ. The fees I was referring to are the costs that the government has incurred in defending these cases. And what I said 

was that the Department of Justice has expended about $200 million in defending the cases. 

Chairman SPRATT. Are we paying also the plaintiffs’ lawyers, the 

electric utilities that are suing? 

Mr. HERTZ. The plaintiffs’ lawyers are paid by the utilities. 

Chairman SPRATT. So, all the cost in bringing the suits, including 

expert witness fees and attorneys’ fees, are being borne at the 

present time by the utilities, by the plaintiffs? 

Mr. HERTZ. Each side is bearing its own costs. 

Chairman SPRATT. Okay. Thank you, sir. Mr. Ryan? 

Mr. RYAN. I will yield my time to Mr. Simpson. 

Chairman SPRATT. Mr. Simpson? 

Mr. SIMPSON. Thank you, Mr. Chairman. Thank you, Mr. Ryan. 

I appreciate it. This hearing would be almost funny if it were not 

so serious, because I honestly do not believe that there is anybody 

within the Department of Energy or here that believes that a good 

decision was made by shutting down Yucca Mountain. However, it 

is what it is. And we have to deal with what it is. And we all know 

the reason that the administration decided not to go forward with 

Yucca Mountain. 

Does the Administration, does the Department feel like it has to 

follow public law? 

Mr. HARRIS. Perhaps as the General Counsel that question is 

best directed to me, and the answer is absolutely yes, sir. 

Mr. SIMPSON. Public Law 107-200 passed in 2002 by Congress, 

signed by the President, establishes Yucca Mountain as the site for 

the permanent geological repository. The ASLB Board has twice 

ruled against the Department of Energy’s withdrawing its license 

application, although the NRC Commission has not followed up on 

that. In part, they stated that Congress had a say in this. It was 

not just up to the DOE to decide to withdraw the license application, that it had to go through Congress. Do you differ with that 

opinion? 
19 

Mr. HARRIS. Actually I do, sir, with all due respect. I differ in a 

couple of particular points. First, Congress did not, in fact, as I 

read the law designate Yucca Mountain as the nuclear repository 

in the sense that it directed that it be built. What it did in 2002, 

the way I read the law, is that it instructed the Secretary to go 

ahead and prepare and file an application, which of course was 

done. I think it was in 2008 when it was finally filed. 

Mr. SIMPSON. Well did we not override the State of Nevada’s objections? 

Mr. HARRIS. Yes, sir, you absolutely did that. You did, and that 

is what triggered the process, if you will, by which the application 

was filed. The question decided by the Board, and I believe decided 

incorrectly by the Board, is whether or not the direction to file an 

application meant that once it is filed it was now beyond the power 

of the Secretary of Energy and the administration to withdraw that 

application no matter what the Secretary, no matter what the Department, no matter what the administration believed about 

whether that was wise. I believe Congress, in setting up this statute, left that authority with the Secretary of Energy. And I believe 

we have applied it lawfully. Having said that, you are correct, the 

Board has disagreed. And that will be reviewed, I believe, by the 

Nuclear Regulatory Commission. 

Mr. SIMPSON. I can tell you that there are an awful lot of members of Congress that would disagree with that. Let me ask you 

again. The Blue Ribbon Commission, as you have said Dr. Johnson, 

is not a siting commission. Everyone, virtually everyone, including 

the Secretary, has stated that a deep geological repository will be 

necessary at some point. Whether it is Yucca Mountain or something else, we are going to have to have a deep geological repository. In the appropriation bill for $5 million for the Blue Ribbon 

Commission, we stated in there that they could only use that if 

Yucca Mountain was in fact an option. The Commission’s co-chair 

stated in their first press conference that Secretary Chu has made 

it quite clear that Yucca Mountain is not an option. What is going 

on with that? 

Ms. JOHNSON. Well, as you said, and thank you very much for 

the question, Secretary Chu has said that Yucca Mountain is not 

an option. And again I think that goes back to we are standing at 

a very interesting time, as you are well aware, in the restart of the 

civilian nuclear power industry. And as a result, given the stand 

of this administration with the recent conditional loan guarantees 

that have been issued for the new power plant in Vogtle, in Georgia. We understand that it is very important that we have the best 

workable solution for long term disposition of the spent nuclear 

fuel and high level waste. So, I think considering all the work that 

has, all the knowledge that has gone on in the last thirty years 

from high performance computing, to understanding the geology, to 

understanding the long-lived actinides, and how to make them 

shorter lived, as well as the transuranic waste experience from 

WIPP, I think that it is prudent to step back and to see what is 

the best possible solution to the long term disposition of spent nuclear fuel. 
20 

Mr. SIMPSON. But we will need a geological depository at some 

time? Because there is going to be some stuff left over, no matter 

what you do. 

Ms. JOHNSON. I am sure there will be some stuff left over. And 

again, not to predispose what might be recommended by the Blue 

Ribbon Commission. I do believe they will consider deep geologic 

storage. I do not know what shape, form, factor, or how deep. But 

again, I am looking forward to their recommendations and working 

with the Blue Ribbon Commission in the appropriate way to help 

our nation move forward on managing the back end of the fuel 

cycle. 

Mr. SIMPSON. If, with the administrations opinion, Yucca Mountain is off the table, is anything in any location or site in Nevada 

off the table? Or just Yucca Mountain? 

Ms. JOHNSON. Well, again, I think we are going to wait for the 

recommendations from the Blue Ribbon Commission, which is not 

a siting committee. 

Mr. SIMPSON. Let me ask Mr. Hertz, are the fines that are being 

paid, the penalties being paid by the federal government to the 

utilities, are those, are there penalties involved? Or are those mostly for the cost of the utilities’ storage of the nuclear waste that the 

federal government should be paying for? Their on site storage? 

Mr. HERTZ. They are not fines and penalties, they are damages. 

And they are damages that are being incurred. What the court does 

is it engages in an exercise of looking at the breach world and the 

non-breach world. What would have been the utility’s expense if 

the Department of Energy had not breached the contract? That is 

the base. Then you look at what the utility’s expense is in the 

breach world, because Energy has not picked up the spent nuclear 

fuel. Compare the two, the difference is damages. So, the government is paying essentially the increased storage capacity that is 

necessary at various utilities because the government has not come 

and picked up the spent nuclear fuel. 

Mr. SIMPSON. Will those costs increase in the future as more and 

more utilities sue the federal government? And effectively, you 

know, I do not know what case we have got to stand on, or what 

ground we have got to stand on. We have breached contract. 

Mr. HERTZ. As I have said, the Federal Circuit has said there 

has been a partial breach of the contract. Until we begin performing under the contract, until we begin picking up waste at 

what the Federal Circuit has decided was the contractual rate of 

acceptance that the government had agreed to, that we will keep 

incurring damages. The amount of damages in any given case is 

very individualized. You know, it depends on the configuration of 

the utility. It depends on what kind of storage they engage in, what 

their physical plant looks like. At some point, you would think that 

utilities build, I mean, they put spent nuclear fuel in pools, they 

have to remove it from the pools and put it on slabs. They have 

to store it. They incur expense to secure that. At some point, the 

current utilities will stop operating, they will stop producing spent 

nuclear fuel. If the federal government does not pick up, does not 

begin picking up the spent nuclear fuel, you will incur costs to secure those things on site. 
21 

Mr. SIMPSON. Currently, the damages are being paid out of the 

Judgment Fund? 

Mr. HERTZ. Correct. 

Mr. SIMPSON. There is $24 billion sitting in the nuclear waste 

disposal fund—— 

Mr. HERTZ. Correct. 

Mr. SIMPSON [continuing]. That the ratepayers and also the rest 

of the taxpayers have paid into that fund. If we are, if we do not 

move forward with completing this geological repository, can those 

funds be used to pay the utilities for their on site storage of the 

SNF that we have not taken charge of? 

Mr. HERTZ. Probably not without legislation. The government 

had argued that, early on when we settled a case for increased 

costs, that we should be able to pay those increased costs, that settlement out of the Nuclear Waste Fund. The United States Court 

of Appeals for the Eleventh Circuit disagreed with that under the 

Nuclear, under the Act, saying that those funds were only available 

essentially to design and build a repository. They were not designed for on site storage, which in effect that settlement was. So, 

unless there is legislation changing that, and legislation can 

change it. I mean it, you know, it is a decision of the court interpreting the Act as it existed at the time. 

Mr. SIMPSON. Should we stop charging the ratepayers for the 

construction of a waste repository when we are not doing it? 

Mr. HERTZ. You mean the fee, the annual fee that is being paid? 

Mr. SIMPSON. Right. 

Mr. HERTZ. Well, I mean, there is litigation that has been filed 

by some of the utilities challenging that. Challenging the Secretary’s determination not to reconsider setting the rate. And that 

litigation is being defended by the Department of Justice. I think, 

you know, under the Act as it exists now, the costs to build a repository, or to ultimately dispose of this, are to be borne by the utilities. You know, this is a question if you were to stop it, if the Secretary were to determine that, and then the Blue Ribbon Commission came up with another solution, and that was going to cost a 

certain amount, you would just have to ramp up the rate at that 

point. At least unless the law changed in some other respect. But 

under the law now the utilities have to bear the cost through this 

fund. 

Mr. HARRIS. Congressman? 

Mr. SIMPSON. Dr. Johnson, let me—go ahead. 

Mr. HARRIS. Might I add to that? 

Mr. SIMPSON. Sure. 

Mr. HARRIS. Though I do not want to discuss the details of the 

litigation, obviously, I thought I might express the Department of 

Energy’s view on this. In our view, we are absolutely required and 

committed to taking and disposing of the spent nuclear fuel. We believe we have an obligation that is commensurate with the obligation to take the fuel to charge the fee to be able eventually to dispose of it. We view the two obligations as inextricably linked in 

law. And that is why we are continuing with the spent nuclear fuel 

fee. We think our obligation to take it is tied, as a matter of law, 

to our obligation to charge the fee. 
22 

Mr. SIMPSON. Can I ask one last question, Mr. Chairman? Dr. 

Johnson, this year the mark up in the Energy and Water Subcommittee and also I believe in the Senate Energy and Water Subcommittee included no funds to proceed with Yucca Mountain for 

the licensing application. Should the NRC rule, as I believe they 

correctly will, that the administration cannot unilaterally withdraw 

the application, what will the Department do in terms of the $100 

million to $200 million that will be necessary to proceed with the 

license application? Will they come in and ask for a reprogramming 

to do that? Or will they just ignore it and say, ‘‘We do not have 

any funds?’’ 

Ms. JOHNSON. Thank you very much for the question. If the NRC 

were to rule, and we would follow the rulings, and we would follow 

the appropriate appropriations processes, and we would do what 

we need to do to follow what we have been directed to do by Congress and the NRC. 

Mr. SIMPSON. Do you not think it would be wise to put that $100 

million in there now, and then if we do not have to spend it that 

would be a wonderful thing? 

Ms. JOHNSON. I think we feel confident that we have the authority to withdraw the application. Therefore, we need to plan for 

what the President’s budget, which calls for no funding for continuing with the licensing. Having said that, we do have funds in 

nuclear energy to continue to look at research and how to manage 

the back end of the fuel cycle. We do have funds allocated in legacy 

management to continue with the records and the management of 

the records so that we do not lose the knowledge. We have funds 

allocated in general counsel in order to continue the processing of 

the contracts. So, I believe we are following a very well thought out 

process in order to be prepared to, when we get the recommendations from the Blue Ribbon Commission, to carry those out with 

your help and Appropriations. 

Mr. SIMPSON. If the Department, if the NRC rules that they cannot withdraw it, the license application, will the Department still 

have the personnel in place? Or is it being dismantled at a rate 

that we will have to appropriate money to put everybody back in 

place to proceed with the license application? 

Ms. JOHNSON. Certainly, we have been following a path to take 

care of the people, to make sure that they have opportunities as we 

believe that we have the right to withdraw the motion and to close 

down Yucca Mountain. So, we have had to move and make sure 

that the employees can find other positions. So, therefore, we will 

not have employees as of October 1, and we would have to restart 

that process. 

Mr. SIMPSON. Thank you. 

Chairman SPRATT. Ms. McCollum? 

Ms. MCCOLLUM. Thank you, Mr. Chairman. I think it is important to know a little bit where people are coming from, so I am 

going to make a couple of brief comments. And I want to thank you 

all for being here today, and I want to thank the Chairman particularly for holding this hearing. 

For over a decade, my time as a state legislator in Minnesota, 

I have worked on the issue of what to do with our nation’s nuclear 

waste. Minnesota tax ratepayers have already contributed $714 
23 

million to the Nuclear Waste Fund to find a permanent solution to 

this problem. And yet, the U.S. government still does not have an 

answer for how to store the nation’s radioactive waste. I am deeply 

troubled, very troubled by this. 

Until the administration can detail a real plan and commitment 

to resolving the issue of nuclear waste, it is irresponsible to abandon the study of Yucca Mountain as a viable option, particularly 

after $100 billion has already been spent on the project. The administration and many of my colleagues have pushed for a nuclear 

power plant expansion. I believe we should not even be discussing 

the future of nuclear power until we can start cleaning up our 

present toxic waste mess. 

Now, we have heard a lot about the consequences of Yucca 

Mountain and what it holds for Nevadans. But let me tell you 

about the serious consequences for Minnesotans. About thirty miles 

from my district, St. Paul, lies the Prairie Island Indian Community on the banks of the Mississippi River. The children of Prairie 

Island for over two decades have seen concrete casks of nuclear 

waste from their swing sets on a storage site that is owned and operated by Xcel Energy that was designed, designed to be only a 

temporary storage facility. This is unacceptable for human health, 

and for environmental hazards in this community like many others 

across America. And in fact, my understanding is that the Prairie 

Island community only has one emergency exit, because they only 

have one exit to leave the reservation in case of something happening. 

So, I think, you know, you really understand the thrust of my 

frustration. I am not anti-nuclear power. But I am anti-nuclear 

power expansion when we have not figured out how to solve our 

problem. Now, a lot of the questions have been asked about cost, 

and court cases. And Secretary, Dr. Johnson, you keep talking 

about, you know, moving forward, and the panel is going to come 

up, this blue ribbon panel is going to come up with the solution 

idea and not the storage idea. Is it, in your opinion, that this blue 

ribbon panel would find fault with Yucca Mountain? 

Ms. JOHNSON. Well, thank you very much for the questions, and 

again for the opportunity to address this. And I, like you, am very 

much pro-nuclear as one of the potential—— 

Ms. MCCOLLUM. I have limited time, so if you could just answer 

the question? 

Ms. JOHNSON. Oh, okay. 

Ms. MCCOLLUM. Because the clock is running for me now. 

Ms. JOHNSON. Oh, I see. Let me start again, then, if I will, to 

be succinct. As I was saying, I am pro-nuclear. Which means that 

I also am very concerned about how we manage the back end of 

the fuel cycle. And I just want to say that it has been shown that 

the storage on site, dry cask, by the Nuclear Regulatory Commission, is safe up to 100 years. And the International Atomic Energy 

Commission has said that dry cask storage is safe up to 300 years. 

So, the first thing is that we have time to figure out the best possible solutions for managing the back end of the fuel cycle. 

Ms. MCCOLLUM. Excuse me, Mr. Chairman. If I heard you correct, then, we will wait how many generations before we decide 

whether or not to do anything with this temporary storage? I 
24 

mean, temporary to me is not 100 or 300 years. So, my question 

is, is there something in the modeling that shows that Yucca 

Mountain would be less safe than storing nuclear waste in temporary storage facilities on the banks of rivers where children play 

nearby? 

Ms. JOHNSON. And as I was saying, it is safe to store it up to 

100 years, which gives us time to work on managing the back end 

of the fuel cycle. 

Ms. MCCOLLUM. Is that your idea of temporary storage? We were 

told that this was only temporary storage. Is 100 to 300 years temporary storage? 

Ms. JOHNSON. I believe that originally the storage and the long 

term solution was going to be at ten thousand to a million years. 

So in terms of relative to long term storage I think that up to 100 

years is within a temporary storage. I am not suggesting that we 

would actually store it for a hundred years. What I am saying is 

that we are doing active research in managing the back end of the 

fuel cycle. We have—— 

Ms. MCCOLLUM. Thank you. Thank you. 

Ms. JOHNSON. Okay. 

Ms. MCCOLLUM. Mr. Chairman, I am going to editorialize here 

in the few minutes that I have left. I do not think any reasonable 

person thinks 100 years is temporary. And the whole, the whole 

premise of reasonable storage and safe storage, Minnesota, when it 

made its decision to store, was told Yucca Mountain was going to 

be open. We were told it was going to be temporary. I was there. 

I heard the testimony. I saw the letters that came from the Department of Energy. I did not vote to store, because I was very skeptical until Yucca Mountain was open that it would be there. Mr. 

Chairman, this is a very, very serious issue, especially if we are 

considering nuclear power as part of the mix, which we should. But 

then we need to grapple with this and not push it down for another 

hundred years, for another two, three, five generations to deal 

with. Thank you, Mr. Chairman. 

Chairman SPRATT. I thank the lady. Mrs. Lummis? 

Mrs. LUMMIS. Thank you, Mr. Chairman. My question is for Mr. 

Harris. Why withdraw Yucca Mountain’s license application with 

prejudice? I mean, if we are going to have a Blue Ribbon Commission that is going to consider options, and as Dr. Johnson has 

pointed out the technology is such that we really need to step back 

in her view and evaluate all these options, why would you dismiss 

with prejudice? Why not dismiss without prejudice, so if the Blue 

Ribbon Commission ultimately determines that Yucca Mountain 

given all the options explored is exactly the right place? You have 

pulled it off the table. 

Mr. HARRIS. Thank you, Congresswoman. So I work with people 

who routinely use words like petaflops. And my job is to put into 

legal terminology what I understand their policy decisions to be. 

We filed our motion with prejudice because I understood it to accurately reflect the decision of the Department, the Secretary, and 

the administration to end the Yucca Mountain process and to move 

ahead with a different plan. Having said that, of course, that is 

being considered by the Nuclear Regulatory Commission now. And 

whether or not we are ultimately able to withdraw it with preju-
25 

dice will be decided by the NRC. I just want to point out, it is not 

a unilateral move we are making. We are seeking permission to do 

these things and I sought it in this sense because it is my understanding it reflects the decision that was made. 

Mrs. LUMMIS. So Mr. Harris, you are directly contradicting what 

Dr. Johnson testified to earlier in response to a question by Mr. 

Simpson, and which is that all options are on the table. So, how 

can—— 

Mr. HARRIS. If I contradicted her I promise you I did not do so 

deliberately. My understanding, again, of the Department’s policy 

is that Yucca Mountain is in fact off the table. I believe what she 

said in response to the earlier question was that the Blue Ribbon 

Commission is not a siting commission and is looking at alternatives. I may have misunderstood, but that was my understanding of her testimony. 

Mrs. LUMMIS. Excuse me, it might have been my misunderstanding. Dr. Johnson, so you really are saying Yucca Mountain is 

off the table? Completely off the table? 

Ms. JOHNSON. Yucca Mountain is not being considered as—— 

Mrs. LUMMIS. Well, that is, no. Is it off the table? 

Ms. JOHNSON. It is off the table. Yucca Mountain as a site is off 

the table. 

Mrs. LUMMIS. Because? What is the scientific justification for 

taking Yucca Mountain off the table? 

Ms. JOHNSON. Well, as I mentioned earlier, the Secretary said 

over the last two decades we have made great strides in the understanding of not only the forms of nuclear waste but how to manage 

the back end of the fuel cycle, reduce potentially the amount of nuclear waste, and therefore, come up with a better solution to managing the back end of the fuel cycle. And the only thing I just want 

to say, if I may—— 

Mrs. LUMMIS. Dr. Johnson? 

Ms. JOHNSON. Yes? 

Mrs. LUMMIS. I apologize, because we are on a clock. 

Ms. JOHNSON. Yes. 

Mrs. LUMMIS. And you do not see the clock. 

Ms. JOHNSON. Okay. 

Mrs. LUMMIS. So, you are saying that the panel has determined 

that scientifically there is something wrong with Yucca Mountain? 

Ms. JOHNSON. That is not what I said. What I said is the panel, 

the committee, the Blue Ribbon Commission, is not a siting commission, so it is not considering any particular site. It is considering all options to deal with the back end of the fuel cycle and to 

deal with spent nuclear fuel and high level waste. 

Mrs. LUMMIS. Dr. Johnson, President Obama in one of his first 

actions as President, was to send a memorandum to agencies saying, ‘‘Science and the scientific process must inform and guide the 

decisions of my administration. The public must be able to trust 

the science and scientific process informing public policy decisions.’’ 

Is the Blue Ribbon Commission adhering to this memo when you 

are not, when you are saying there is no scientific justification for 

taking Yucca Mountain off the table? 

Ms. JOHNSON. I did not say that. 

Mrs. LUMMIS. Okay, so what are you saying? 
26 

Ms. JOHNSON. What I said was, is that the Blue Ribbon Commission is being stood up to consider all options to manage the back 

end of the fuel cycle, and to make recommendations for a best possible solution that would have broad support. 

Mrs. LUMMIS. Okay, so now the issue is public support? 

Ms. JOHNSON. No, I did not say public support. I said broad support. The Blue Ribbon Commission is comprised of, it is an interesting commission as you know. It has got academics, it has got 

government, it has got not for profit, that are going to be considering what is the best possible way to proceed to manage the back 

end of the fuel cycle from an energy policy perspective. 

Mrs. LUMMIS. So it is energy policy? Not public policy? 

Ms. JOHNSON. The Blue Ribbon Commission is being set up to 

make recommendations to the Secretary of the Department of Energy on the best method and way to go after managing the back 

end of the fuel cycle. 

Mrs. LUMMIS. Thank you, Mr. Chairman. I have to say, you 

know, I share the frustration of my colleagues on this Committee 

with the scientific response being lacking. Thanks, Mr. Chairman. 

I yield back. 

Mr. SCOTT. Thank you, Mr. Chairman. Mr. Hertz, what is the annual amount of payments we are making based on the liabilities 

so far? 

Mr. HERTZ. I am not sure I can give it to you on an annual basis. 

I think one of the things I testified to is the increase in what our 

liability has been found since the year I testified. As I think I said, 

our current liabilities in the litigation, although some of it is still 

subject to appeal, is about $2 billion. Last year when I testified, it 

was only $1.3 billion. 

Mr. SCOTT. Now, once we are on the hook for liability you would 

expect that to continue, and others will come in, and that number 

will grow. Is that right? 

Mr. HERTZ. Well, a couple of things I have said. Some of those 

cases are still on appeal, so some of those judgments that are in 

that number may get reduced, one. Two, I think all of the utilities 

who could have sued us, virtually all of them have sued us. As I 

said, they sue us for a period of time up until they file their complaint. And—— 

Mr. SCOTT. Right. And then once you get judgment on that, then 

the next year, six months later they are going to come back for 

some more. 

Mr. HERTZ. Six years, six years later. 

Mr. SCOTT. Six years later they are going to come back for some 

more. 

Mr. HERTZ. Correct. Now—— 

Mr. SCOTT. So, once they have come in you would expect those 

to continue, you have to pay, and that number is going to grow. 

Mr. HERTZ. Well the total number will certainly grow. There is 

no question about it. Whether the amount each year grows per utility, I do not think we know. 

Mr. SCOTT. Well, this is the Budget Committee. We are trying to 

look for a number. 

Mr. HERTZ. Right. And I think the only numbers that we really 

have is the estimate from the Department of Energy, which was I 
27 

believe about $13 billion in total liability when they were predicting that—— 

Mr. SCOTT. Well, if you can give us some numbers as to what we 

are on the hook for now, and how much we can expect it to grow, 

that would be helpful to this Committee. 

Mr. HERTZ. You know, again, the best I can do is the numbers 

I have given you, and told you the amount that is coming up in 

trials over the next two years, which—— 

Mr. SCOTT. Okay. Well, if you can come up with some numbers 

that would be helpful because we are going to have to budget for 

some of this. Now, the, Dr. Johnson you have indicated that you 

have withdrawn, you made a motion to withdraw the application, 

right? What basis would the Commission have to deny that motion? 

Mr. HARRIS. You are asking us to argue the other side of the 

case. 

Mr. SCOTT. If they have the right to say no, how do you have the 

right to be there to begin with? 

Mr. HARRIS. Well, so the question is, what does the law require? 

Our review of the law is that the Atomic Energy Act, the Department of Energy Organization Act, and the Nuclear Waste Policy 

Act, allow the Secretary to make the decision to withdraw the application for the facility at Yucca Mountain. However, whether or 

not we are correct in our understanding of the law is something 

that is and will be decided in the first instance by the Nuclear Regulatory Commission. And so, we filed the motion basically asking 

for permission to withdraw, setting forth our understanding of the 

law. We have opponents who believe our understanding is incorrect. 

Mr. SCOTT. Well, what is the status, what is the status of that 

request? Were you not rejected? 

Mr. HARRIS. There is an administrative board, at sort of a trial 

level if you will, at the Nuclear Regulatory Commission that denied 

our motion. It said we misunderstood the law. 

Mr. SCOTT. Now how many times have you been denied? 

Mr. HARRIS. We have been denied one time by that board. The 

Nuclear Regulatory Commission on its own immediately issued an 

order asking the parties to brief the questions. One, whether it 

should review that decision? And two, if it is to review that decision whether it should affirm it or reverse it? That has been fully 

briefed, by the way, by all of the parties. And I anticipate that the 

Nuclear Regulatory Commission will decide the issue sometime in 

the next few months. 

Mr. SCOTT. What is the time table for the Blue Ribbon Commission to come up with a solution? 

Ms. JOHNSON. The time table for the Blue Ribbon Commission to 

make their recommendation is a year from now we will have received a draft report, and six months later we will receive their 

final report on recommendations. 

Mr. SCOTT. But that is not, that is not a solution. Then, that just 

gives you some options but not a solution. 

Ms. JOHNSON. That is correct. That is correct. 

Mr. SCOTT. So, you will start thinking about it in a year and a 

half? 
28 

Ms. JOHNSON. We will be, obviously we are doing R and D right 

now in the back end of the fuel cycle. But we are going to wait till 

we get their draft report—— 

Mr. SCOTT. Well—— 

Ms. JOHNSON [continuing]. So that we do not preclude, or presuppose, anything that the Blue Ribbon Commission might say. 

And if I could just—— 

Mr. SCOTT. Let me, I want to get into another question. You can 

answer them both at the same time. I think we have concluded 

that it has to go somewhere. If it does not go to Yucca Mountain, 

what was in second and third place? 

Ms. JOHNSON. So, right now, as I was mentioning before, the 

NRC has said that spent nuclear fuel can be stored on site in dry 

cask storage for up to a hundred years. The International Atomic 

Energy Commission has said that it is safe to be stored for up to 

three hundred years. That does not mean we are going to take a 

hundred years, and it certainly does not mean we are going to take 

three hundred years. It does mean that we have time to take a 

year to step back and get some of the smartest and brightest individuals that we have in this country to come up with recommendations that will give us a better solution than we have right now. 

And that does not preclude that we would not potentially be able 

to move faster than the approach that we are on now. It certainly 

does not mean we are going to take a hundred years. But it does 

give us time. 

Mr. SCOTT. But if it is not Yucca Mountain, what was in second 

or third place? 

Ms. JOHNSON. Again, I do not want to preclude the work of the 

Blue Ribbon Commission. And there is not a second or third place. 

We are looking forward to their recommendations. 

Mr. SCOTT. It was not South Carolina? 

Ms. JOHNSON. Again, the Blue Ribbon Commission is not a siting 

body, and they are not considering any site anywhere in the U.S. 

or elsewhere. 

Mr. SCOTT. Well, there must, there must have been second and 

third choices. Yucca Mountain did not come out of the air. I mean, 

you had choices. What, did—— 

Ms. JOHNSON. Yucca Mountain, I believe, was decided on over 

the course of the last twenty years. So, it was not just this last—— 

Mr. SCOTT. Has anybody suggested that another place is more 

appropriate? 

Ms. JOHNSON. Again, this is not a siting, the Blue Ribbon Commission is not a siting commission. So, we are not considering any 

particular site. 

Mr. HARRIS. Congressman, if I can help? At one point a number 

of different locations were being considered. At some point, Congress decided that the Department of Energy should proceed only 

with Yucca Mountain. I do not recall the specifics of that, and did 

not prep myself on that for this hearing. But there were a number 

of other sites that we were to consider, and Congress decided that 

we should proceed with Yucca Mountain. 

Chairman SPRATT. Mr. Nunes? 

Mr. NUNES. Thank you, Mr. Chairman. Mr. Harris, you seem 

fairly convinced that you are reading the law the right way and 
29 

that the Department of Energy, and the Secretary has the decision 

to close Yucca Mountain. You know, and despite Ms. Johnson just 

said that for twenty years the Congress was heading down the road 

of developing Yucca Mountain. And I just wonder, what are you 

going to do with Yucca Mountain now that you have decided to 

close it? 

Mr. HARRIS. I am convinced of my legal opinion, which probably 

is not a shock if you talk to lawyers very often. But I would have 

to defer to the Under Secretary about what will happen with Yucca 

after that. 

Mr. NUNES. I would like to see the plan for what you guys are 

going to do with it. Casino under the ground or something in Nevada? I would be—— 

Ms. JOHNSON. With all due respect, I am not sure that that is 

actually being planned right now. But I could take that under advisement, I guess. 

Mr. NUNES. Well, if you guys could get back to me with what the 

plans would be if it was in fact closed down? 

Ms. JOHNSON. Yes, sir. I will take that as a—— 

Mr. NUNES. And Mr. Chair, I would like to yield to Mr. Simpson. 

He had an additional question. I would like to yield the rest of my 

time to Mr. Simpson. 

Mr. SIMPSON. Thanks, Mr. Chairman. There were two sites being 

considered besides Yucca Mountain. One of them was, there were 

a number of them, and it was down to three sites. Hanford, Washington, and a place in Texas, and Congress ultimately decided 

Yucca Mountain would be the final place. 

And I also want to clear up, people seem to get Yucca Mountain 

and the Blue Ribbon Commission confused. The Blue Ribbon Commission is a commission that is going to look at the processes of 

how we deal with nuclear waste, and whether we can do it in a 

more efficient manner, whether we can reduce the volume of waste 

through reprocessing, other types of things. But ultimately, I think 

everybody agrees that you are going to have to have a geological 

repository at some time, at some location. Does that mean the 

other places are back on the table? Probably so, if the only place 

we are not going to consider is the place we have done fifty-two scientific studies on to make sure that it is the appropriate and everything else. The only place we know more about than anyplace else 

on Earth, we are not going to consider it. 

So, but this question. Is the Department considering in their 

budget the fact that we are currently investing, I cannot remember 

what, $14 billion in the waste treatment plant at Hanford, that will 

design waste based on the storage requirements at Yucca Mountain? And that we will probably have to redesign and rebuild much 

of that waste treatment, or at least a portion of that waste treatment plant, when we finally at some time ultimately come up with 

a decision of where to put it, and the requirements for that specific 

location? That we will have invested a whole lot of money based 

on Yucca Mountain being the place that will no longer be valid? 

Ms. JOHNSON. Thank you very much for the question. So, the 

waste treatment plant at Hanford is a very robust way of handling 

both low level waste and high level waste. The low level waste is 

not destined to go to Yucca. The high level waste is. 
30 

Mr. SIMPSON. Right. 

Ms. JOHNSON. So, because WIPP right now does not receive high 

level waste, because it is such a robust method, the glass vitrification, it would be suitable for long term storage appropriate for I believe any recommendation that might come out of the Blue Ribbon 

Commission. 

Mr. SIMPSON. Would the, well you are going to have to have a 

siting location, and that siting location is going to have to have requirements just like Yucca Mountain has requirements. If the 

waste that is produced by the waste treatment plant in Hanford 

does not meet those requirements of a new location, because we do 

not know what that new location is and what those requirements 

will be, are we going to have to invest a lot of money in redoing 

this? 

I guess what bothers me a whole lot, within the Department of 

Energy and our policy, the government’s policy over the last fifty 

years, is that we spend a lot of money and then respend a lot of 

money as we change as things go on and on and on. We buried 

waste out to the INL for years under the ground because guess 

what? Ground was the greatest protection there was. Unfortunately, it caused us some problems. Now, we are spending billions 

of dollars digging up that waste and sending it to the WIPP site. 

Are you worried? Is the Department looking at all this stuff? 

Ms. JOHNSON. So, Hanford has five different elements to it, as 

you probably know. 

Mr. SIMPSON. Right. 

Ms. JOHNSON. So, there is the waste tanks themselves, there is 

the low level waste facility, there is a high level waste facility, 

there is an analytical laboratory, and the balance of systems. Hanford is on track to come on line between 2019 and 2020. So, where 

we are now is we believe that the processing that we have designed 

going on at Hanford will be able to handle low level waste to go 

to WIPP, high level waste to go to a permanent storage, and will 

be consistent and compatible with the recommendations that come 

out of the Blue Ribbon Commission. 

Mr. SIMPSON. Thank you. 

Chairman SPRATT. Mr. Etheridge? 

Mr. ETHERIDGE. Thank you, Mr. Chairman. And let me thank 

you for this hearing, and thank our witnesses for your testimony. 

I do not need to remind any of us, but I think it goes without saying that nuclear power is an important part of our alternative and 

renewable energy debate. And for my home state it is a big piece 

because they are looking at expanding. And as a part of our nation’s effort to reduce our dependence on foreign oil as a way to 

help level that up and down of the cost of energy over time. And 

I think it will help contribute to international stability where we 

now have a lot of instability. And I think an important priority has 

to be in that process for reducing our national debt. And that is 

really what this Committee is about, is talking about budgeting. 

I just came from a meeting a few minutes ago that I chair with 

some new Dems about, I co-chair that Committee on Budget Discipline, and we have been talking about that. So, I am concerned 

about the cost we are talking about here. Because every time we, 

as we say on the farm, we replow a field, it costs some energy to 
31 

replow that field. And we are spending money to replow it. And depending on which numbers you come out with, we are talking 

about about $13.1 billion or somewhere in that number. That is a 

lot of money. And these dollars affect every taxpayer. 

So, let me ask any of you three who want to respond to this. 

What are our options to reduce this liability and protect the taxpayers’ investment, number one? And number two, we have talked 

about now, and I know this is, you said Yucca Mountain is closed. 

But would it be less expensive or more expensive if we did use that 

site? And are there other possibilities that would work that will 

help protect the taxpayer? That is really what we are about here. 

How do we protect the people who pay the bill? 

Mr. HARRIS. Congressman, can I perhaps start off with that 

question? The $13.1 billion you are referring to is the current estimate of potential liability for paying utilities for not having taken 

the spent nuclear fuel. We can—— 

Mr. ETHERIDGE. Let me interrupt you just a second, then I will 

come back to your question. 

Mr. HARRIS. Surely. Yes, sir. 

Mr. ETHERIDGE. We use a lot of nuclear fuel. And in my home 

state, we have invested about $868 million so far into the fund. 

Mr. HARRIS. Into the fund, yes, sir. 

Mr. ETHERIDGE. Okay, excuse me. Go ahead. 

Mr. HARRIS. Yes, sir. I do understand that. The point is, the government’s liability is solely a function of when it begins to take the 

waste and how much of that waste it takes. It is a direct correlation. It is conceivable to come up with a plan that would allow us 

to begin to take waste even before Yucca Mountain could have 

come online. For example, and this is just a hypothetical, we are 

currently prohibited by law from doing interim disposal. That is a 

legal prohibition. Were the Blue Ribbon Commission to recommend 

interim disposal, I am not saying it will. But were it to, were Congress to decide this was a good idea, I am not saying it will or 

should, but there are possibilities that would allow us to go forward 

to take nuclear waste more quickly than we even could have with 

Yucca Mountain. And that would have a direct impact on the liability of the United States government to the utilities. 

Mr. ETHERIDGE. Any comment, Dr. Johnson? 

Ms. JOHNSON. I wanted, if you would not mind repeating your 

second question? But before you do that I just want to say that I 

am very aware that the State of North Carolina is largely dependent right now on coal, with sixty-some percent of it coming from 

coal, and coal that is actually imported from surrounding states. 

And so, I do believe that nuclear will be an ever bigger part of the 

solution, particularly for states such as—— 

Mr. ETHERIDGE. And they are in the process of looking at more 

nuclear. But my point is, that they have already paid a substantial 

amount in it. 

Ms. JOHNSON. Right. 

Mr. ETHERIDGE. And the longer we wait, that cost is going to 

continue to be out there with no resolution. Mr. Hertz? 

Mr. HERTZ. Let me say I agree with Mr. Harris. You know, the 

government’s liability is a direct function of how quickly and how 

soon we begin to pick up the waste. I think the other possibilities 
32 

include if we are able to come up with a settlement plan that substitutes administrative resolution of the utilities’ claims as opposed 

to court litigation. You know, there could be, you know, it is not, 

it should come as no surprise that often in court litigation you get 

extravagant claims, at least initially. You know, in an administrative process where the rules were more well defined in terms of 

what the government would pay for in terms of damages versus 

what it will not pay for, could ultimately save the government some 

money as well. And that is one of the things we are looking at in 

terms of a, you know, a long range settlement, or if Congress were 

to enact some kind of administrative mechanism to resolve these 

claims as opposed to litigation. 

Mr. ETHERIDGE. Thank you. I think the issue is not about litigation, because that is after the fact. The question is, we have not 

gotten the job done so the taxpayers are paying twice. They are 

paying through the rate that is going into the fund. And ultimately, 

if there is litigation and a penalty, they are going to get to pay a 

second time, because the government does not have any money, it 

comes from the taxpayer. And I think that was the point I was trying to make. I yield back, Mr. Chairman. 

Chairman SPRATT. Mr. Larsen? 

Mr. LARSEN. Thank you, Mr. Chairman, for the hearing. And 

just, I would like to start by asking unanimous consent to enter for 

the record a letter that was sent earlier this month signed by ninety-one members of the House regarding this issue to Secretary 

Chu? Unanimous consent to enter that into the record? 

Chairman SPRATT. Without objection, so ordered. 

Mr. LARSEN. Thank you. 

[The letter to Secretary Chu follows:] 
33 
34 
35 
36 
37 

Mr. LARSEN. I was going through the testimony of Mr. Wright, 

who is testifying next. And page eight of his testimony is actually 

sort of Washington State’s argument in this. And I think it is just 

important to note that, and this echoes what Mr. Etheridge said, 

that the states of Idaho, South Carolina, and Washington State indeed have agreements with the federal government with a date certain to move defense waste out of their respective states. Significant penalties to the federal government are incurred if the agreements are not complied with. It is yet another way that all taxpayers and not just ratepayers are having to pay for compensation 

for the government’s failure to build the site at Yucca. And as well, 
38 

I want to make a point before asking a question, that earlier the 

discussion was about what the federal government has had to pay 

to litigate. There is a large amount of money as well that states 

are having to pay to litigate to get the federal government to do 

its job. And we are certainly paying that cost in Washington State. 

Fortunately, there is a firm consensus in Washington State that 

the federal government should do its job and clean up Hanford as 

well as moving forward on Yucca. 

But I would like to ask Dr. Johnson to reconcile a statement 

from the charter of the Commission on, its advisory committee 

charter. Three C: Options for permanent disposal of * * * Excuse 

me, the Commission is supposed to look at options for permanent 

disposal of used fuel and/or high level nuclear waste including deep 

geological disposal. So, in fact, the Blue Ribbon Commission is in 

fact looking at deep geological disposal, but apparently not looking 

at Yucca Mountain. Is that correct? 

Ms. JOHNSON. That is correct. 

Mr. LARSEN. So, if they are not into a siting decision, it seems 

to me that they are looking at deep geological disposal, certainly 

they are not going to point to a place on the map. But it seems to 

me that, and I do not want to prejudge what they are going to say, 

but I will. They are going to say something along the lines, if they 

get to this point, they are going to have to say, ‘‘Look, your disposal 

site has to have these characteristics, it needs to be so far away 

from folks,’’ and it is going to, you know, the map is going to shrink 

on us. And it is going to end up being maybe not an actual piece 

of acreage but it is going to be a general direction. It certainly 

seems to me. Does that make sense to you? 

Ms. JOHNSON. Well, thank you very much for the question. 

Again, the Blue Ribbon Commission is not a siting organization. It 

is considering, as you said—— 

Mr. LARSEN. I am sorry, I know they are not a siting organization. I am asking you if my statement makes sense to you, that if 

they are not going to site but they are looking at deep geological 

disposal they are going to have to look at certain geological characteristics around this country. And that is going to shrink the map 

for where deep geological disposal goes. Does that make sense to 

you or not? 

Ms. JOHNSON. So, the Blue Ribbon Commission is looking at 

many options. It is looking at processes, as well as policy—— 

Mr. LARSEN. Right, I got that. 

Ms. JOHNSON [continuing]. As well as the technology. So, we do 

not want to presuppose what they are going to recommend. 

Mr. LARSEN. I do not either. Does it make sense to you what I 

said? 

Ms. JOHNSON. If you would not mind, could you say that one 

more time? 

Mr. LARSEN. No. 

Ms. JOHNSON. Okay. 

Mr. LARSEN. So, back to high level waste in Hanford, although 

you do not want to prejudge what they said, it sounded like you 

prejudged the Blue Ribbon Commission when you said the high 

level waste at Hanford with the WTP would be consistent and compatible with Blue Ribbon Commission recommendations. That 
39 

sounds to me like you are prejudging what they might say about 

high level waste at WTP. 

Ms. JOHNSON. The high level waste at WTP is going to be stored 

in, as the plan of record is right now, in a very robust vitrification 

form that would be able, in my view, to be stored anywhere. And 

I am not going to presuppose the options that the Blue Ribbon 

Commission is going to come up with for that ultimate long term 

disposition storage. 

Mr. LARSEN. No, I do not think you will, except earlier you did. 

You said it would be consistent and compatible with Blue Ribbon 

Commission recommendations. I will go back and look at what you 

said earlier to clarify what I said. 

Ms. JOHNSON. Okay. 

Mr. LARSEN. So, it sounded to me like you were in fact prejudging one aspect of what they might come up with. 

Ms. JOHNSON. Well, I also said earlier that the Hanford is going 

to come online in 2019 and 2020. We will have the recommendations from the Blue Ribbon Commission, the draft in a year and 

the final report within eighteen months. 

Mr. LARSEN. I would also say that that is not on track. On track 

was about 2015. It is off track, and it is going to be about 2019 to 

2020. 

Ms. JOHNSON. Right. 

Mr. LARSEN. Just for the record. 

Ms. JOHNSON. Yeah. And I appreciate your comments there. As 

you know, it has been rebaselined, and we have a new consent decree that has been established. And we have with the new baseline 

to finish this by 2019 or 2020. Thank you. 

Mr. LARSEN. Right. Thanks. Thank you, Mr. Chairman. 

Chairman SPRATT. Mr. Becerra? 

Mr. BECERRA. Thank you, Mr. Chairman. And thank you, the 

three of you, for your patience in answering the questions. I apologize for not being able to be here for the entire hearing, but I would 

like to ask a couple of questions. My understanding is, and maybe 

this has already been discussed so please forgive me if you are 

going to be repetitive in your response. My understanding is that 

whether or not we were to move forward with Yucca Mountain or 

any other potential site, that we still have not resolved the issue 

of what we do with, how we dispose of safely, with all of the nuclear contaminated materials that we might have generated by 

2020. Is that still the case? And Dr. Johnson, why do I not ask you 

that question. 

Ms. JOHNSON. Right. Thank you very much. We have learned a 

lot over the last twenty years about the technology and the research involved with managing the back end of the fuel cycle. We 

have learned that there are ways to modify the forms of some of 

the waste. We have learned about how to be better about proliferation proof, or I should say resistant, technologies that may involve 

recycling. And I think at this moment, given the way that technology has accelerated, we want to step back and see are there better solutions for managing the back end of the fuel cycle? And 

hence potentially reducing the amount of waste that we would be 

storing going forward? 
40 

Mr. BECERRA. Okay. So, there is some hope that we can come up 

with better ways to package the waste so that perhaps we will be 

able to more efficiently not only store it but dispose of it? 

Ms. JOHNSON. I think there are ways that we would consider 

that would be different than we are doing now. That does not mean 

that that would not be compatible with we are doing at the WTP. 

Because right now if you look at where we are with regard to the 

whole design cycle, there is still time should we choose. And we 

still continue to look for best practices to reduce the cost to the taxpayer. 

Mr. BECERRA. Yeah. And my sense is that once we make a decision on how to move forward, whether it is Yucca Mountain or anything else, we want to make sure that we have used every available piece of evidence and science to help guide us. Because once 

we move in a particular direction, it will be a heck of a lot harder 

to turn away from that and come up with something else. 

Ms. JOHNSON. Is that a question, or—— 

Mr. BECERRA. Or a comment. 

Ms. JOHNSON. Oh, okay. 

Mr. BECERRA. But I am assuming that we want to get it right. 

Ms. JOHNSON. Well, I think again, as I said, and before you were 

here, is that we are at an interesting time in the history of our nuclear power industry. And we started thirty years ago with the Nuclear Waste Policy Act, and times have very much changed in thirty years. And I think that one of the things that I realized in thinking and preparing for this briefing, is just how far we have come 

with our computational efforts. Where we can model and simulate 

what we would be doing in the back end of the fuel cycle, and point 

to opportunities to come up with a better solution. And that is a 

tool we have not utilized before for this particular application. We 

have utilized it brilliantly in the Stockpile Stewardship Program. 

In 1993, after the Comprehensive Test Ban Treaty, we decided 

we no longer were going to explode nuclear weapons in order to understand their aging. And therefore, what we had to do is combine 

simulation and modeling at a very detailed level with some of the 

experimental data that we had in order to predict how those nuclear materials would react and nuclear weapons would age over 

time. We have been very successful at doing that. 

We are in a position now where we can do the same thing and 

apply it towards clean up, apply it towards managing the back end 

of the fuel cycle, and give us opportunities to do a better job and 

a better solution. So, why not take advantage of that knowledge 

now, take a moment, step back, and see if there is a better solution? Because as the Secretary said, we can do better. 

Mr. BECERRA. I do not know what the solution is. I do know this. 

That we are asking you to captain the USS Enterprise and go 

where no human being has gone before. And for that reason, I hope 

that what you will do is apply every bit of brain power and evidence and technology that we have within our disposal to try to 

come up with a solution that can unify the country behind a particular proposal. I do not believe at this stage we are there. I appreciate the work that you have been trying to do. I understand the 

frustration that many feel. And I suspect we will continue to see 

lawsuits generated for any number of reasons. 
41 

But what I would urge you to do is to watch a few of the previous 

episodes of Star Trek and get a sense of how Captain Kirk was able 

to always prevail. Because we have to make sure that when we go 

where no human being has gone before, that we end up on the 

right planet. So, I thank you for having come and provided more 

insight on this issue. Mr. Chairman, I thank you very much. I yield 

back the balance of my time. 

Chairman SPRATT. Mr. Doggett? 

Mr. DOGGETT. I have no questions at this time, Mr. Chairman. 

Chairman SPRATT. Mr. Simpson, do you have anything further? 

Mr. SIMPSON. No, I have been questioned out. 

Chairman SPRATT. I have a couple, then we will call it quits. 

Looking back at the history of the defense waste program, and the 

defense nuclear program in particular, when we have come to junctures like this and had critical decisions to make, we have typically 

turned for outside advice to the National Academy of Sciences. And 

they have typically come back with very, very skilled and expert 

answers to our questions. Why in this case did we not follow that 

precedent, and choose for the membership of this Blue Ribbon 

Commission the NAS, National Academy of Sciences, as opposed to 

the group of individuals? All of whom are quite, quite renowned in 

their own right, but quite a few of whom are not technically versed 

in the subject matter. Why did we not choose to simply go back to 

the NAS and ask them for guidance? 

Ms. JOHNSON. Thank you very much for the question. As you 

said, the Blue Ribbon Commission is a committee, a commission, 

of very esteemed and distinguished individuals. And they do include members of the National Academy. They also include individuals that have served the country, including Senators Domenici 

and Hagel, and they are chaired by General Brent Scowcroft as 

well as Congressman Lee Hamilton. And I think that this distinguished committee will discharge their duties diligently and give us 

an excellent report. 

Chairman SPRATT. Well, thank you for your—— 

Mr. SIMPSON. Mr. Chairman? 

Chairman SPRATT. Mr. Simpson? 

Mr. SIMPSON. I do have one other comment or question, because 

I do not know that I got a really clear answer. Mr. Becerra mentioned that we have to make sure that we get this right. And I am 

not sure that there is any getting it right. What we can do is use 

the best technology that we have at the current time, and I am 

sure forty years from now it will be different. And we will say, ‘‘You 

know what? If we had known this back then, we could have done 

this.’’ Just like we are saying that now about what we decided in 

1980. And I think that is what this Blue Ribbon Commission is all 

about. So, I have no problem with what the Blue Ribbon Commission is looking at. 

But as I have stated, and I do not know that I got a clear answer 

from you, do you disagree with the Secretary of Energy that a geological repository, regardless of what you do. Regardless of what 

process you use, a geological repository will be needed at some 

time? 

Ms. JOHNSON. I would never disagree with the Secretary. 

Mr. SIMPSON. That is why I qualified the question that way. 
42 

Ms. JOHNSON. Stepping back again, you know, I understand 

what you are saying about, well, forty years from now we have a 

different view of what is going on. You know, let me see if I can 

put it in the way that there has been extraordinary progress over 

the last thirty years with regard to computation. With regard to 

our knowledge about the basic materials, and with regard to transuranic waste, high level waste, low level waste. And I think given 

that right now, when we are considering restarting, and we are restarting, and this administration has signaled its strong interest in 

restarting the civilian nuclear energy program, that it gives us a 

chance to take a year and six months from now to step back and 

say, ‘‘Let us find a better solution with broad support.’’ 

Mr. SIMPSON. That will end up in a geological repository? 

Ms. JOHNSON. Again, I do not want to preclude what the Blue 

Ribbon Commission might recommend. 

Mr. SIMPSON. Well, if they can find something else, that would 

be wonderful. But nobody believes they will, and nobody believes 

that is possible. That ultimately there is going to be a pile of gunk 

that has to go somewhere. 

Chairman SPRATT. Mr. Scott has a further question. 

Mr. SCOTT. Just to follow up on the time table for the Blue Ribbon Commission, you said in a year to year and a half you would 

get a recommendation. And then I guess at that point we will, they 

are not a siting committee, so at that point we will start looking 

for a site? As the gentleman from Idaho just mentioned. It has 

taken us, what, twenty or thirty years to get to this point with 

Yucca Mountain. Once we start, why would we not expect it to take 

twenty or thirty years with whatever site is picked, fighting tooth 

and nail against it, delaying, and doing everything they can, filing 

suit? Why should we think it would not take another thirty years 

to get to where we are now? 

Ms. JOHNSON. Right. Thank you very much for the question. In 

the charter 3-E, the Blue Ribbon Commission is being asked to recommend not only methods and ways to manage the back end of the 

fuel cycle but also for options for decision making processes and 

management of disposal. So, there is also a process they will be 

recommending as well as recommendations for how to manage the 

back end of the fuel cycle. And I have full confidence in the Blue 

Ribbon Commission to recommend processes and procedures that 

can be accomplished in a reasonable period of time. 

Mr. SCOTT. Thank you. 

Chairman SPRATT. Thank you. And to our panel, Dr. Johnson, 

Mr. Harris, Mr. Hertz, thank you very much for your patience, 

your forbearance, and for your forthright answers to our questions. 

We appreciate your coming here to participate in this hearing. 

Ms. JOHNSON. Thank you. 

Chairman SPRATT. Thank you very much indeed. 

Mr. HERTZ. Thank you, Mr. Chairman. 

Chairman SPRATT. Our next witness is Mr. David A. Wright, who 

is the Vice Chairman of the Public Service Commission of South 

Carolina. Mr. Wright, welcome indeed. Thank you very much for 

your participation in this hearing. As you may have noted, we have 

made your statement and the other statements part of the record 

so that you can summarize them as you see fit. But you may also 
43 

take your time and review thoroughly what you have presented for 

us. And we very much appreciate your coming. The floor is yours. 

STATEMENT OF DAVID A. WRIGHT, VICE CHAIRMAN, 

PUBLIC SERVICE COMMISSION OF SOUTH CAROLINA 

Mr. WRIGHT. Good morning, Mr. Chairman. I guess it is still 

morning. And members of the Committee, my name is David 

Wright, and I am Vice Chairman of the South Carolina Public 

Service Commission. In addition to that, I am past Chairman and 

current member of the Subcommittee on Nuclear Issues and Waste 

Disposal, and a member of the Full Electricity Committee of the 

National Association of Regulatory Utility Commissioners. And I 

also serve as Chairman of the Nuclear Waste Strategy Coalition. 

The issues that you are addressing today are very important to 

South Carolina and any state that is home to commercial spent nuclear fuel or the nation’s defense waste. I am grateful to have this 

opportunity to represent and share our views concerning the disposition of spent nuclear fuel, currently stored at nuclear power 

plant sites that is intended for ultimate disposal at the Yucca 

Mountain Geological Repository. 

By way of the Nuclear Waste Policy Act of 1982, the federal government became responsible for disposal of high level radioactive 

waste, including spent or used nuclear fuel from commercial reactors. Utilities, ratepayers, and regulators had the expectation from 

the NWPA that the Department of Energy would begin initial 

waste acceptance and disposal in the properly licensed and constructed repository by January 31, 1998. Utility ratepayers have 

paid and continue to pay for the disposal cost of the material. To 

date, ratepayers in states that receive power from commercial nuclear utilities have paid over $17 billion into the Nuclear Waste 

Fund. Including allocated interest, the Nuclear Waste Fund today 

totals almost $35 billion, but only a fraction of the money collected 

from ratepayers has actually been spent on the developing of the 

Yucca Mountain repository. The ratepayers in South Carolina, Mr. 

Chairman, have paid nearly $1.3 billion into the Nuclear Waste 

Fund, or more than $2.3 billion when interest is included. 

State public utility commissions, like mine, are one of the stakeholders on the disposition of used nuclear fuel from commercial reactors because the fees paid to the Nuclear Waste Fund by the current caretakers of the used fuel, that would be electric utilities, are 

passed onto ratepayers who are supplied with electricity from nuclear power generation. 

When the Director of the Office of Civilian Radioactive Waste 

Management within the Department of Energy submitted the 

Yucca Mountain repository license application in June of 2008, it 

was a comprehensive document. The eight thousand page document was the culmination of over twenty-five years of exhaustive 

investigation of the site. Like others, I expected the NRC to conduct a rigorous review and conduct an open, fair, and inclusive adjudicatory process. The filing of the license application was an important step, because it appeared to take the application out of the 

political arena and put it under a full blown court review that 

would be based on science, not politics. 
44 

Since 1998, when DOE failed to meet its obligation to begin 

waste acceptance for disposal, organizations that I and my state 

are a part of have simply asked that the government fulfill its part 

of the bargain and remove the spent fuel per the standard contract, 

since the utilities and ratepayers continue to pay for services not 

performed. That remains our position, as we believe that the license application shows that Yucca Mountain will meet the requirements of the NWPA and regulations. If Yucca Mountain cannot be licensed through the NRC process, or is licensed but not 

built, we interpret NWPA as still requiring DOE to develop and 

dispose of spent nuclear fuel in a geologic repository. Therefore, unless the law is repealed or amended to direct otherwise, Congress 

is the only body that can authorize DOE to conduct a site search 

for another suitable repository site. 

This is particularly costly, and most locations where the fuel pool 

cooling storage capacity at the reactor sites has long since been 

filled. In addition, the older fuel in the spent fuel pools is being removed and placed in concrete and steel containers called ‘‘dry cask’’ 

that are stored outside in concrete vaults. More than 62,000 metric 

tons of uranium is currently stored in pools or dry cask storage at 

nuclear plant sites in the United States. This amount increases 

with each refueling cycle, which generally occurs about every eighteen months. License applications for at least twenty-four new nuclear units have been submitted to the Nuclear Regulatory Commission. The amount of spent nuclear fuel to be stored will increase 

as new units are constructed and old units are relicensed, usually 

for an additional twenty years, as is happening with numerous reactors. 

Nearly 3,800 metric tons of uranium is stored at four nuclear 

plant sites in South Carolina, Mr. Chairman, which are home to 

seven reactors as you know. Two nuclear units at the V.C. Summer 

Nuclear Station in Jenkinsville, South Carolina, have been approved by the South Carolina Public Service Commission and are 

awaiting license approval by the NRC. License applications for another two units near Gaffney, South Carolina, have been submitted 

to the NRC but not to the South Carolina Public Service Commission. 

This nation will need more base load electric generation as the 

population grows and the economy recovers. Some areas, such as 

the Southeast in general, and South Carolina in particular, need 

for base load generation is needed in the near future. Renewable 

energy, conservation, and efficiency help to lessen the amount of 

base load generation needed but cannot entirely eliminate that 

need. The climate and health impacts of burning coal have forced 

utilities to depend upon gas fired and nuclear plants to meet the 

need for new base load generation. Without a solution to the storage of spent nuclear fuel, meaning a permanent repository, state 

regulators may be hesitant to approve the construction of new nuclear units, and utilities may be hesitant to construct new nuclear 

units, even if the NRC approves the license applications. Such circumstances could result in reduced electric reliability, brown outs, 

and increased costs of electricity as gas fired generation would be 

the only option, and its price would increase as the demand for natural gas increases, all else being equal. 
45 

Federal courts have already ruled that the federal government is 

liable for the added storage costs past the dates agreed in original 

contracts with spent fuel utilities. The Department of Energy already faces at least $1.5 billion in court judgments and legal expenses resulting from failure to meet the government’s obligations. 

In 2009, when DOE had a plan to begin waste acceptance and disposal at Yucca Mountain by 2017, DOE officials estimated that the 

liability for sixty-five cases could reach $12.3 billion, growing further by at least $500 million for each additional year of delay. DOE 

pays these court determined liabilities from the Judgment Fund. 

What is really happening is this: because of the federal government’s failure to construct a permanent repository, ratepayers are 

paying up to four times for ongoing spent fuel storage and future 

disposal. And that does not include decommissioning funds. First 

ratepayers are paying into the Nuclear Waste Fund for storage at 

the deep geologic repository at Yucca Mountain. Second, because of 

the initial delay, ratepayers have to pay through rates to expand 

and rerack their existing cooling pools in order to accommodate 

more waste. Third, ratepayers are continuing to pay through rates 

to keep the waste stored at the existing plant sites in dry cask storage. And finally, all taxpayers, not just ratepayers, are paying 

through taxes for judgments and settlements through the Judgment Fund. 

Congress should suspend collection of the nuclear waste fees 

until further notice and refund the Nuclear Waste Fund money to 

ratepayers if Yucca is not built. Not counting defense waste, over 

62,000 metric tons of spent fuel is stored in seventy-two operating 

and shut down reactor sites in thirty-four states. Individuals and 

organizations opposed to nuclear power will raise questions or even 

voice fears over safety and security at some of these storage facilities. Although the utilities and NRC contend that storage is safe 

and secure, it still costs ratepayers big money to implement individualized security programs for each of these locations around the 

country. How can this be more efficient, safe, secure, or cost effective than having all spent nuclear fuel and defense waste at one 

secure deep geologic location? 

Recently, there has been great interest in reprocessing, or recycling as some call it, of spent nuclear fuel. The organizations that 

I am a member of, including NARUC, have supported research into 

reprocessing and recycling and share the views that, if there will 

be substantial global nuclear power expansion, there will probably 

become a time when uranium becomes more scarce and expensive, 

and closing the fuel cycle will become necessary. But no matter the 

future course of this country, whether we reprocess, or recycle, or 

maintain the status quo, a geologic repository is still needed for defense related, high level radioactive waste that has already been 

reprocessed, or cannot be reprocessed, and the residue from any future reprocessing program. 

Finally, the states of Idaho and South Carolina, and maybe 

Washington as was mentioned a while ago, all have agreements 

with the federal government with a date certain to move defense 

waste out of their respective states. There are penalties, they are 

substantial, for the government’s failure to comply. And that is just 
46 

another way that the taxpayer, all taxpayers not just ratepayers, 

are going to pay for the government’s failure. 

Thank you for the time today, and I appreciate being here. And 

I will answer any questions that you may have. 

[The prepared statement of David A. Wright follows:] 

PREPARED STATEMENT OF DAVID WRIGHT, 

SOUTH CAROLINA PUBLIC SERVICE COMMISSIONER

Good Morning, Mr. Chairman and Members of the Committee. 

My name is David Wright and I am a legislatively elected commissioner and current Vice-Chairman of the South Carolina Public Service Commission. In addition 

to that, I am the past Chairman and current member of the Subcommittee on Nuclear Issues and Waste Disposal, and a member of the full Electricity Committee 

of the National Association of Regulatory Utility Commissioners, most often referred 

to as NARUC. I also serve as Chairman of the Nuclear Waste Strategy Coalition 

(NWSC). 

The issues that you are addressing in this hearing are very important to South 

Carolina and any other state that is the home to commercial spent nuclear fuel, or 

the nation’s defense waste. I am grateful to have this opportunity to represent and 

share our views concerning the disposition of spent nuclear fuel currently stored at 

nuclear power plant sites that is intended for ultimate disposal at the Yucca Mountain geologic repository. 

I believe it’s important to know how we got to where we are today, because it has 

led to the positions the organizations I represent currently hold. 

By way of the Nuclear Waste Policy Act of 1982 (NWPA), the federal government 

became responsible for disposal of high-level radioactive waste—including spent or 

used nuclear fuel from commercial reactors. Utilities, ratepayers and regulators had 

the expectation from the NWPA that the Department of Energy (DOE) would begin 

initial waste acceptance and disposal in the properly licensed and constructed repository by January 31, 1998, as the law and contracts signed with owners of spent 

fuel required. 

Utility ratepayers have paid, and continue to pay, for the disposal costs of the material. To date, ratepayers in states that receive power from commercial nuclear utilities have paid over $17 billion dollars into the Nuclear Waste Fund (NWF). Including allocated interest, the NWF today totals almost $35 billion, but only a fraction 

of the money collected from ratepayers has actually been spent on developing the 

Yucca Mountain repository. The ratepayers in South Carolina have paid nearly $1.3 

billion into the NWF, or more than $2.3 billion when interest is included. 

State public utilities commissions, like mine, are one of the stakeholders on the 

disposition of used nuclear fuel from commercial reactors because the fees paid to 

the Nuclear Waste Fund by the current caretakers of the used fuel, the electric utilities, are passed on to the ratepayers who are supplied with electricity from nuclear 

power generation. 

When the Director of the Office of Civilian Radioactive Waste Management 

(OCRWM) within the Department of Energy (DOE) submitted the Yucca Mountain 

repository license application (LA) in June 2008 it was a comprehensive document. 

The 8,000-page document was the culmination of over 25 years of exhaustive investigation of the site. 

Like others, I expected the NRC to conduct a rigorous review and conduct an 

open, fair and inclusive adjudicatory process. The filing of the license application 

was an important step, because it appeared to take the application out of the political arena and put it under a full-blown court review that would be based on 

science, not politics. 

Since 1998, when DOE failed to meet its statutory and contractual obligation to 

begin waste acceptance for disposal, organizations that I and my state are a part 

of have simply asked that the government fulfill its part of the NWPA disposal bargain and remove the spent fuel per the Standard Contract since the utilities and 

ratepayers continue to pay for services not performed. That remains our position, 

as we believe that the license application shows that Yucca Mountain will meet the 

requirements of the NWPA and regulations. 

If Yucca Mountain cannot be licensed through the NRC process, or is licensed but 

not built, we interpret NWPA as still requiring DOE to develop and dispose of spent 

nuclear fuel in a geologic repository. Therefore, unless the law is repealed or amended to direct otherwise, Congress is the only body that can authorize DOE to conduct 

a site search for another suitable repository site. 
47 

This is particularly costly in most locations where the fuel pool cooling storage 

capacity at the reactor sites has long since been filled. In addition, the older fuel 

in the spent fuel pools is being removed and placed in concrete and steel containers—called dry casks—that are stored outside in concrete vaults. 

More than 62,000 metric tons of uranium is currently stored in pools or dry cask 

storage at nuclear plant sites in the United States. This amount increases with each 

refueling cycle, which generally occurs about every 18 months. License applications 

for at least 24 new nuclear units have been submitted to the Nuclear Regulatory 

Commission (NRC). The amount of spent nuclear fuel to be stored will increase as 

new units are constructed and old units are re-licensed, usually for an additional 

20 years, as is happening with numerous reactors. 

Nearly 3,800 metric tons of Uranium is stored at four nuclear plant sites in South 

Carolina, which are home to seven reactors. Two new nuclear units at the VC Summer Nuclear Station in Jenkinsville, SC have been approved by the South Carolina 

Public Service Commission and are awaiting license approval by the NRC. License 

applications for another two nuclear units near Gaffney, SC have been submitted 

to the NRC, but not to the South Carolina Public Service Commission. 

This nation will need more base load electric generation as the population grows 

and the economy recovers. Some areas, such as the southeast in general and South 

Carolina in particular, need more base load generation in the near future. Renewable energy, conservation, and efficiency help to lessen the amount of base load generation needed, but cannot entirely eliminate that need. The climate and health impacts of burning coal have forced utilities to depend upon gas-fired and nuclear 

plants to meet the need for new base load generation. Without a solution to the storage of spent nuclear fuel, meaning a permanent repository, state regulators may be 

hesitant to approve the construction of new nuclear units and utilities may be hesitant to construct new nuclear units even if the NRC approves the license applications. Such circumstances could result in reduced electric reliability, brown outs, 

and increased cost of electricity as gas-fired generation would be the only option and 

its price would increase as the demand for natural gas increases, all else being 

equal. 

Federal courts have already ruled that the federal government is liable for the 

added storage costs past the dates agreed in original contracts with spent fuel utilities. The Department of Energy already faces at least $1.5 billion in court judgments and legal expenses resulting from failure to meet the government’s obligations. In 2009—when DOE had a plan to begin waste acceptance and disposal at 

Yucca Mountain by 2017—DOE officials estimated that the liability for 65 cases 

could reach $12.3 billion, growing further by at least $500 million for each additional year of delay. DOE pays these court-determined liabilities from the Judgment 

Fund. 

What is really happening is this—Because of the federal government’s failure to 

construct a permanent repository, ratepayers are paying up to four times for ongoing spent fuel storage and future disposal—and that does not include decommissioning funds. First, ratepayers are paying into the NWF for storage at the deep 

geologic repository at Yucca Mountain; second, because of the initial delay, ratepayers have to pay through rates to expand and re-rack their existing cooling pools 

in order to accommodate more waste; third, ratepayers are continuing to pay 

through rates to keep the waste stored at the existing plant sites in dry cast storage; and finally, all taxpayers—not just ratepayers—are paying through taxes for 

judgments and settlements through the Judgment Fund. 

Not counting defense waste, over 62 thousand metric tones of spent fuel is stored 

in 72 operating and shutdown reactor sites in 34 States. Individuals or organizations opposed to nuclear power will raise questions, or even voice fears, over safety 

and security at some of these storage facilities. Although the utilities and the NRC 

contend that storage is safe and secure, it still costs ratepayers big money to implement individualized security programs for each of these locations around the country. As the Office of Homeland Security increases security requirements, the cost 

for security programs at the plant sites will increase. 

How can this be more efficient, safe, secure or cost effective than having all spent 

nuclear fuel and defense waste at one secure, deep, geologic location? 

Recently, there has been great interest in the reprocessing, or recycling as some 

call it, of spent nuclear fuel. The organizations I am a member of, including 

NARUC, have supported research into reprocessing and recycling and shares the 

view that, if there will be substantial global nuclear power expansion, there will 

probably come a time when uranium becomes more scarce and expensive and closing 

the fuel cycle will become necessary. 

No matter the future course of this country—whether we reprocess, recycle, or 

maintain the status quo—a geologic repository is still going to be needed for de-
48 

fense-related high-level radioactive waste that has already been reprocessed or cannot be reprocessed, and, the residue from any future reprocessing program for commercial spent nuclear fuel. 

Finally, the states of Idaho and South Carolina, and maybe Washington, as well, 

have agreements with the federal government with a date certain to move defense 

waste out of their respective states. There are significant financial penalties to the 

federal government in the agreements for failure to comply—which is yet another 

way that all taxpayers, not just ratepayers, will have to pay compensation for the 

government’s failure to build the site at Yucca Mountain. 

Thank you for the opportunity to testify before you today. I look forward to your 

questions. I will also be happy to provide written answers to further questions, 

should you have any I am unable to answer today or for which you would like me 

to provide answers at a later date. 

Chairman SPRATT. South Carolina has a particular interest in 

this because we have defense waste generated at the Savannah 

River Site as well as bomb grade materials that are being brought 

onto site to be processed into a fuel that can be burned in commercial reactors. 

Mr. WRIGHT. Yes, sir. 

Chairman SPRATT. Are you comfortable with the, would you explain to the Committee the liquidated damages which we have in 

law in the event that the waste accepted in South Carolina is not 

timely processed and removed from the site? 

Mr. WRIGHT. Are you talking about from Savannah River Site? 

Chairman SPRATT. Yes, sir. 

Mr. WRIGHT. Well, the South Carolina Commission, Mr. Chairman, does not regulate or control SRS. So, I am not really, I guess, 

confident or comfortable answering the question because I do not 

know exactly how much that would be. But I would be more than 

happy to go home and get that answer for you, and get that written 

and submit that. 

Chairman SPRATT. If you do that, submit it for the record. Before 

we agreed to accept the bomb grade material in particular for reprocessing into fuel we stipulated with the Department of Energy 

that if they failed to perform this in a reasonable period of time, 

and we provided more than what was anticipated, then there would 

be damages payable to the State of South Carolina for the delay. 

Rather than having to prove the actual damages, we would be entitled to liquidated damages in a very substantial amount. 

Mr. WRIGHT. Yes, sir. 

Chairman SPRATT. The purpose being to encourage the Department of Energy to do what it was telling us it was going to do. 

Mr. WRIGHT. Yes, sir. And my understanding, just from the periphery of things where the defense waste in those states are concerned, I believe that Idaho’s date is the closest date. And using 

that as a model, I know that, I believe they are substantial, almost 

per day costs. 

Chairman SPRATT. Does the State have concerns that the dry 

cask storage and the alternative expedients that are being considered are adequate from a safety standpoint? 

Mr. WRIGHT. Mr. Chairman, it is my understanding and belief, 

because we are told and nobody really has disputed it in proceedings, that in order to get a license for a nuclear reactor you 

have got to prove that the fuel can be safely stored on site. But 

having said that, the deal that was cut with the federal government, and the utilities, and the ratepayers of this country were, we 
49 

are going to charge you one-tenth of a cent per kilowatt hour, and 

we are going to dispose of your waste in return for that. And it has 

been twenty-eight years, and that has not happened yet. 

Chairman SPRATT. I have a few more questions, but let me turn 

to the members who are here now and let me give them an opportunity. Mr. Simpson? 

Mr. SIMPSON. Thank you, Mr. Chairman. And thank you, Mr. 

Wright, for being here. Do not hold me to this, but it seems like 

Idaho’s agreement with the federal government, the penalty is like 

$60,000 a day. 

Mr. WRIGHT. That is the number that comes to mind. 

Mr. SIMPSON. And I think we were fairly cheap. I think South 

Carolina did a lot better job of negotiating. I think they were upwards of a million bucks a day or something for—— 

Mr. WRIGHT. It very well could be. But I would like to research 

that for the Chairman to be accurate. 

Mr. SIMPSON. Yeah. But you mentioned waste confidence. In 

order to build a new reactor, we have to have waste confidence. 

They have to show that there is going to be a path forward to disposal of the waste. How are we going to do that? How are we going 

to license any new reactors, or power plants, nuclear power plants, 

if we cannot meet that waste confidence rule of where the waste 

is going to go? 

Mr. WRIGHT. Well, I do believe it is going to become issues in 

proceedings. Because the proceedings that have gone forward so far 

have been with the understanding that there was going to be a repository built. You know, that change has just been a recent announcement, as things go, especially in the Yucca Mountain process. 

Mr. SIMPSON. Yeah. As I understand, it may fall on Congress to 

have to legislate waste confidence. Which I do not think was the 

original intent, but that is what they are talking about now. 

Mr. WRIGHT. Well, and that is my understanding, that Congress. 

I think under any scenario Congress has to take the lead and has 

to act on this. 

Mr. SIMPSON. Right. Should we suspend the taxes being paid by 

the ratepayers that use nuclear power? The tenth of a cent per kilowatt hour that they are paying? I was looking at the amounts. 

Most people look at that and say, ‘‘What is a tenth of a cent?’’ I 

think in New York it was, like, $81 million a year the ratepayers 

pay there that could stay in their economy. And at least suspend 

it until we decide where we are headed with this? Because we have 

got $24 billion, I think it is, sitting in that fund right now. 

Mr. WRIGHT. Well, there is, quite honestly, and my personal 

opinion is I think it ought to be considered and done, yes, sir. But 

there is litigation that is going forward now where that very issue 

is concerned. And NARUC is involved in that. 

Mr. SIMPSON. Could you tell me in general, what are the, what 

is the status of the storage pools, the capacity that currently exists 

at nuclear power plants around the country? Are they getting full, 

or—— 

Mr. WRIGHT. Yes, sir. And I believe, and I have that document 

I think with me. But the Nuclear Energy Institute does have a document that I can supply to the Committee that does show the reac-
50 

tors, and who is, whose pools are full and are now in dry cask, and 

those that are nearing being full and considering dry cask storage. 

Mr. SIMPSON. Okay. I thank you for being here. This is a dilemma that we are going to have to face somehow. 

Mr. WRIGHT. Yes, sir. 

Mr. SIMPSON. But it is a problem we need to address and solve. 

Mr. WRIGHT. Yes, sir. 

Mr. SIMPSON. I appreciate it. Thank you. 

Chairman SPRATT. Mr. Scott, do you have questions? 

Mr. SCOTT. Yes? 

Chairman SPRATT. Do you have questions? 

Mr. SCOTT. Thank you, Mr. Chairman. Mr. Wright, the federal 

government has made a motion to withdraw its application for 

Yucca Mountain. What do public service commissioners outside of 

Nevada think of that? 

Mr. WRIGHT. Well, they are not real happy about it, I can tell 

you that. I mean, a lot of us, and I can speak specifically to my 

committee, the Subcommittee on Nuclear Issues and Waste Disposal, which is made up of commissioners. And then, you know, not 

just my committee, but those that have defense waste in the states 

around the country, or even get power from across state lines. They 

may not have a reactor but they do pay into the fund. They do not 

understand the ‘‘with prejudice’’ thing at all. And one, we feel, commissioners do feel, especially the ones that have been involved in 

this issue, feel like there was a knife taken to us. Because we were 

encouraging working alongside the Department of Energy and 

pushing forward trying to get a license application submitted so 

that we could move forward and get the process started, and consider the science of Yucca Mountain. If science proves it is not 

workable, then it is not, and then the Congress can do what they 

want. But the commissioners, we were supportive of that and we 

were all working toward encouraging Congress to move forward 

with funding to make sure the license app could be defended, and 

then it is like they turned on us. 

Mr. SCOTT. Have the commissioners expressed an opinion as to 

whether or not the federal government has the legal authority to 

withdraw the application? 

Mr. WRIGHT. We do not believe that they do. And I can tell you, 

you know, in South Carolina we are part of that lawsuit process. 

You know, the bottom line is, you know, we have your waste, and 

you have our money. 

Mr. SCOTT. Now, there is a concept of total life cycle costs, when 

you try to charge for electricity, for example, charge for power, that 

you want to charge the total life cycle costs, not just the annual little costs. Because if there is a balloon, like disposal costs at the 

end, you want to have collected that going through. If you do not 

know what you are going to do for disposal, how do you set a reasonable cost for consumers for their electricity? 

Mr. WRIGHT. Well, I mean, one-tenth of a cent is one-tenth of a 

cent. That is what we are, that is what we are—— 

Mr. SCOTT. That is what you—— 

Mr. WRIGHT. The utilities are obligated to charge that to the 

ratepayer. 
51 

Mr. SCOTT. And the federal government is obligated to take the 

disposed waste, so that is your end cost? 

Mr. WRIGHT. That is what you would think, yes. 

Mr. SCOTT. Okay. Now, if they—— 

Mr. WRIGHT. But, but, taxpayers are having to pay, and ratepayers, through the Judgment Fund to settle these suits, too. 

Mr. SCOTT. And if they are paying to settle these lawsuits and 

have this ongoing expense of litigation, is that cost of litigation, is 

that cost passed on to the ratepayers in South Carolina? I mean, 

somebody has got to pay the cost of the litigation, if—— 

Mr. WRIGHT. Well, and in our State it is the State of South Carolina, the City of Aiken, that are involved in the litigation, so ratepayers would not be involved in that. There is not a utility in my 

state that is suing. Now, they are suing for the Judgment Fund for 

failure, and there have been settlements, I believe with Duke and 

with SCE&G. So, there have been settlements out of the Judgment 

Fund, but that does not come from the Nuclear Waste Fund. 

Mr. SCOTT. If we are not going to use Yucca Mountain, if Yucca 

Mountain is as we heard ‘‘off the table,’’ when would you expect us 

to have a site designated, open, and working? 

Mr. WRIGHT. Well, it is my position personally, and others too, 

but I am going to speak for myself right now. The Nuclear Waste 

Policy Act is pretty clear on that. Congress selected the site and 

went through a long process, and Yucca was selected at the end. 

And that is the law of the land. 

Mr. SCOTT. And if we start—— 

Mr. WRIGHT. And Congress has to change that. 

Mr. SCOTT. If we start from scratch, and start looking all over 

from scratch, how long do you think it would take to get to where 

we are now? 

Mr. WRIGHT. I would probably, my son would probably have 

great-grandchildren. I really have no idea. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Chairman SPRATT. Mr. Etheridge? 

Mr. ETHERIDGE. Thank you, Mr. Chairman. Thank you, Commissioner Wright, for being here today. I guess just like our southern 

neighbor, North Carolina taxpayers are, they have invested significantly in nuclear plants, are in the process of adding to that. 

Mr. WRIGHT. Yes, sir. 

Mr. ETHERIDGE. Or in the process of trying to do that. And we 

have been paying, trying to move toward building a more sustainable energy future, as I said earlier. And we rank, I think, probably 

fifth, or certainly in the top five, in the money invested in the Nuclear Waste Fund, somewhere in the neighborhood of, short of $900 

million. You stated in your testimony that ratepayers pay four 

times—— 

Mr. WRIGHT. Yes, sir. 

Mr. ETHERIDGE [continuing]. For waste—— 

Mr. WRIGHT. Not counting decommissioning funds. 

Mr. ETHERIDGE [continuing]. Yeah, for waste disposal. I would be 

interested in you expanding for the record how that affects the average homeowner’s bill each month, or a business consumer each 

month. 
52 

Mr. WRIGHT. Well, every utility, nuclear utility, has to come before commissioners for a rate proceeding, especially when they are 

looking at raising rates. Not too many of them will come to reduce 

rates, but you know, we welcome that when they do. But people are 

becoming more and more aware about the cost that they are having 

to pay for, whether it is to store the waste on site, the Nuclear 

Waste Fund fee, the security for the location where the waste is 

stored. And so, they see the multiple hits and they are starting to 

catch onto it, okay? For a long time they did not catch onto it. A 

lot of times even the staff of members of Congress did not know 

about it. But they are becoming more educated about it. And so, 

the more that it is talked about and they see it, I think, and especially in tough economic times. And it is more aggravated now because the cost of commodities, coal, natural gas, all those things 

that we are looking for, base load needs, are going up. And so at 

some point, along with taxes. So, at some point the customer and 

the consumer, ratepayer, taxpayer, they are all at some point a 

ratepayer and a taxpayer for sure, enough is enough. And they 

will, you know, it is going to get more difficult. 

Mr. ETHERIDGE. So, but what are the four times they pay? 

Mr. WRIGHT. The four times they pay? 

Mr. ETHERIDGE. Yes. 

Mr. WRIGHT. They pay to the Nuclear Waste Fund. 

Mr. ETHERIDGE. Right. 

Mr. WRIGHT. Okay? The one-tenth of a cent. Then they are paying into the fund, or through rates they are paying to enlarge their 

cooling pools to rerack, to expand to keep more waste. Then they 

are taking the waste that has filled the pool, okay? And they have 

got it, and it has been there for five years or longer. They are taking it out of the pool so they can put other waste in there to cool 

it. And then they are putting that in dry cask storage, and they 

are having to pay to store that on site. And then the fourth time 

that they are paying is, again is not just a ratepayer but a taxpayer, through the Judgment Fund to settle these lawsuits. 

Mr. ETHERIDGE. Thank you, Mr. Chairman. I yield back. 

Chairman SPRATT. And for all of these additional steps, the reracking and so forth, is that cost being sought and recovered in the 

litigation against the Department of Energy? 

Mr. WRIGHT. I am not exactly sure how that is all, I heard Mr. 

Harris try to explain that. Or maybe it was the gentleman over 

here, Mr. Hertz, and I was a little bit confused about that. But I 

do know that when the expansions are made at the nuclear facilities, that the ratepayer is paying that recovery cost there. I know 

that. 

Chairman SPRATT. And if this issue is not resolved within, say, 

the next ten years, will it be necessary for the nuclear plants in 

South Carolina to expand their pools for the placement of the casks 

with nuclear waste? 

Mr. WRIGHT. That is a good question, Mr. Chairman. I know that 

if they are full, they just continue to put it in dry cask storage. I 

do not know that they would enlarge the pools anywhere. But the 

new, you know, you have got the new plants that are going to be 

coming on line, two of them for sure, in, I think in 2016 and 2017, 

something like that, at the—— 
53 

Chairman SPRATT. That is my next question. Despite this issue, 

Duke, Progress Energy, and SCANA, three of Carolina’s utilities, 

are still pushing forward with plans for new reactors. 

Mr. WRIGHT. Well, the only two that have been through a rate 

proceeding, have been approved, are the two at V.C. Summer that 

are through SCANA, through SCE&G. The other plants have not 

come before us, but there has been paperwork filed at the NRC. 

But there has not been a proceeding before the State. So what they 

are going to do, I could not tell you what the utilities’ future for 

Duke or Progress are. But SCANA moved forward. But when 

SCANA moved forward, Yucca was still the end site, the geologic 

repository. 

Chairman SPRATT. We have several different engineering groups 

that have kind of merged efforts for several different providers, 

several different power companies. In order not to reinvent the 

wheel, they are working together on technology and design of new 

facilities. And in addition, of course, we have others in the State 

working on the creation of MOX fuel out of bomb grade materials. 

Mr. WRIGHT. Yes, sir. 

Chairman SPRATT. Have we had any layoffs or significant job 

losses as a result of the decisions by DOE to close Yucca Mountain? 

Mr. WRIGHT. I believe there has been some impact at SRS. I am 

not, I can get that for you. But I believe there has been some impact, but how much I do not have knowledge of that. 

Chairman SPRATT. It was my information that one group in particular in the Fort Mill area of the State, near Charlotte, closed 

down an office due to the fact that this decision—— 

Mr. WRIGHT. Yes, sir. I am sure that has happened. But to quantify it, I could not tell you how many people or, you know, what 

the economic impact is. Although I can certainly get that, because 

the City of Aiken would give me that information. 

Chairman SPRATT. If you get it and submit it for the record, we 

would appreciate it. 

Mr. WRIGHT. Yes, sir. I would be glad to do that. 

Chairman SPRATT. Any other questions of the witness? Thank 

you very much, Mr. Wright, for coming today. And I would ask 

unanimous consent that members who did not have the opportunity to ask questions be given seven days in order to submit 

questions for the record. Thank you very much, Mr. Wright, and 

the hearing is adjourned. 

[The prepared statement of Mr. Connolly follows:] 

PREPARED STATEMENT OF HON. GERALD E. CONNOLLY, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF VIRGINIA

Mr. Chairman, thank you for holding this hearing on the budgetary implications 

of the plan to close Yucca Mountain as a nuclear waste repository. I look forward 

to a discussion of the financial issues surrounding the storage of our nation’s growing stock of spent nuclear fuel and other radioactive waste. 

Nuclear and radioactive waste is an unfortunate byproduct of our nation’s 104 nuclear reactors and power plants, hospital waste, industrial waste, federal nuclear 

weapons programs, and other domestic sources. Nuclear power currently generates 

roughly 20 percent of the nation’s electricity. Most of the waste from these reactors 

is stored on the individual sites at this time. There is more than 56,000 metric tons 

of waste stored around the country at 121 different sites. In my own state of Virginia, more than 30 percent of our electricity is generated by two plants at North 

Ana and Surry. More than 2,000 metric tons of waste from the four reactors at those 

plants is stored on site in the Commonwealth. 
54 

For decades, we have heard various proposals on how nuclear waste can be made 

harmless to Americans’ health and to the environment. So far, none of these proposals have proved viable. 

Radioactive waste also poses a threat to national security and serves as a tempting target for those wishing to use the material for dirty, radiological bombs or other 

weapons of terror. Whether we as a nation continue to store nuclear waste in many 

different facilities, or move it to one central storage facility, there will be costs associated with safely and securely maintaining those storage locations and providing 

for the well being of American citizens. 

The President has made the closure of the Yucca Mountain repository a priority, 

and his Fiscal Year 2011 budget proposal terminates funding and saves $197 million. Although $10.4 billion has already been spent on the project since its inception 

in 1982, the total cost has been estimated to be $96 billion. Meanwhile, concerns 

continue over the impact of impact of this closure on the nation’s ability to continue 

to adequately store spent nuclear fuel and other radioactive waste at various locations throughout the nation. In addition, there are concerns about the federal government’s liability to the commercial nuclear power industry for failing to begin removing spent nuclear from their facilities. To date, the nuclear utility companies 

have paid $31 billion in fees for the Nuclear Waste Fund that may be in jeopardy 

should federal courts rule that the government is required to return those funds in 

the event of the lack of a federal disposal option. In addition, due to delays in receiving civilian waste, the federal government has paid out roughly $1 billion already, 

and may be facing at least $12 billion in further liabilities. 

The budgetary implications of the nation’s nuclear waste storage are complex and 

need to be addressed in a manner that protects the environmental, health and fiscal 

security of taxpayers. I look forward to this hearing and the testimony of Dr. Johnson, Mr. Harris, Mr. Hertz and Mr. Wright. 

[Whereupon, at 12:22 p.m., the Committee was adjourned.] 

Æ