NUCLEAR WASTE STORAGE AND 

DISPOSAL POLICY, AND 

HYDROELECTRIC LICENSE 

EXTENSION AND ENERGY 

EFFICIENCY LEGISLATION 

HEARING 

BEFORE THE 

SUBCOMMITTEE ON ENERGY AND AIR QUALITY 

OF THE 

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED NINTH CONGRESS 

SECOND SESSION 

SEPTEMBER 13, 2006 

Serial No. 109-138 

Printed for the use of the Committee on Energy and Commerce 

Available via the World Wide Web: http://www.access.gpo.gov/congress/house 

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 2006 

For sale by the Superintendent of Documents, U.S. Government Printing Office 

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31-463PDF 
COMMITTEE ON ENERGY AND COMMERCE 

JOE BARTON, Texas, Chairman 

RALPH M. HALL, Texas 

MICHAEL BILIRAKIS, Florida 

 Vice Chairman 

FRED UPTON, Michigan 

CLIFF STEARNS, Florida 

PAUL E. GILLMOR, Ohio 

NATHAN DEAL, Georgia 

ED WHITFIELD, Kentucky 

CHARLIE NORWOOD, Georgia 

BARBARA CUBIN, Wyoming 

JOHN SHIMKUS, Illinois 

HEATHER WILSON, New Mexico 

JOHN B. SHADEGG, Arizona 

CHARLES W. “CHIP” PICKERING, Mississippi 

 Vice Chairman

VITO FOSSELLA, New York 

ROY BLUNT, Missouri

STEVE BUYER, Indiana 

GEORGE RADANOVICH, California 

CHARLES F. BASS, New Hampshire 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE FERGUSON, New Jersey 

MIKE ROGERS, Michigan 

C.L. “BUTCH” OTTER, Idaho 

SUE MYRICK, North Carolina 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

JOHN D. DINGELL, Michigan 

 Ranking Member 

HENRY A. WAXMAN, California 

EDWARD J. MARKEY, Massachusetts 

RICK BOUCHER, Virginia 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

SHERROD BROWN, Ohio 

BART GORDON, Tennessee 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

BART STUPAK, Michigan 

ELIOT L. ENGEL, New York 

ALBERT R. WYNN, Maryland 

GENE GREEN, Texas 

TED STRICKLAND, Ohio 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MIKE DOYLE, Pennsylvania 

TOM ALLEN, Maine 

JIM DAVIS, Florida 

JAN SCHAKOWSKY, Illinois 

HILDA L. SOLIS, California 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

BUD ALBRIGHT, Staff Director 

DAVID CAVICKE, General Counsel

REID P. F. STUNTZ, Minority Staff Director and Chief Counsel

SUBCOMMITTEE ON ENERGY AND AIR QUALITY 

RALPH M. HALL, Texas, Chairman 

MICHAEL BILIRAKIS, Florida 

ED WHITFIELD, Kentucky 

CHARLIE NORWOOD, Georgia 

BARBARA CUBIN, Wyoming 

JOHN SHIMKUS, Illinois 

HEATHER WILSON, New Mexico 

JOHN B. SHADEGG, Arizona 

CHARLES W. “CHIP” PICKERING, Mississippi 

VITO FOSSELLA, New York 

GEORGE RADANOVICH, California 

MARY BONO, California 

GREG WALDEN, Oregon 

MIKE ROGERS, Michigan 

C.L. “BUTCH” OTTER, Idaho 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

JOE BARTON, Texas 

(EX OFFICIO) 

RICK BOUCHER, Virginia 

 Ranking Member 

MIKE ROSS, Arkansas 

HENRY A. WAXMAN, California 

EDWARD J. MARKEY, Massachusetts 

ELIOT L. ENGEL, New York 

ALBERT R. WYNN, Maryland 

GENE GREEN, Texas 

TED STRICKLAND, Ohio 

LOIS CAPPS, California 

MIKE DOYLE, Pennsylvania 

TOM ALLEN, Maine 

JIM DAVIS, Florida 

HILDA L. SOLIS, California 

CHARLES A. GONZALEZ, Texas 

JOHN D. DINGELL, Michigan 

 (EX OFFICIO)

(II)
CONTENTS 

Page 

Testimony of: 

Sproat, III, Hon. Edward F., Director, Office of Civilian Radioactive Waste 

Management, U.S. Department of Energy.................................................................... 16 

Reyes, Luis A., Executive Director for Operations, U.S. Nuclear Regulatory 

Commission.................................................................................................................... 20 

Wise, Hon. Stan, Chairman, Georgia Public Service Commission, on behalf of 

National Association of Regulatory Utility Commissioners ......................................... 44 

Earley, Jr., Anthony F., Chairman and Chief Executive Officer, DTE Energy 

Company, on behalf of Nuclear Energy Institute .......................................................... 52 

Boyd, Michele, Legislative Director, Public Citizen.......................................................... 63 

Otter, Hon. C. L. “Butch”, Member, U.S. House of Representatives ................................ 82 

Mollohan, Hon. Alan B., Member, U.S. House of Representatives................................... 214 

Robinson, Mark J., Director, Office of Energy Projects, Federal Energy Regulatory 

Commission.................................................................................................................... 238 

Additional material submitted for the record: 

Sproat III, Hon. Edward F., Director, Office of Civilian Radioactive Waste 

Management, U.S. Department of Energy, response for the record.............................. 247 

Reyes, Luis A., Executive Director for Operations, U.S. Nuclear Regulatory 

Commission, response for the record............................................................................. 251 

Wise, Hon. Stan, Chairman, Georgia Public Service Commission, on behalf of 

National Association of Regulatory Utility Commissioners, response for the record.. 254 

Earley, Jr., Anthony F., Chairman and Chief Executive Officer, DTE Energy 

Company, on behalf of Nuclear Energy Institute, response for the record ................... 258 

(III) 

(1) 

NUCLEAR WASTE STORAGE AND 

DISPOSAL POLICY, AND 

HYDROELECTRIC LICENSE 

EXTENSION AND ENERGY 

EFFICIENCY LEGISLATION 

WEDNESDAY, SEPTEMBER 13, 2006 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON ENERGY AND COMMERCE, 

SUBCOMMITTEE ON ENERGY AND AIR QUALITY, 

Washington, DC. 

The subcommittee met, pursuant to notice, at 2:00 p.m., in Room 

2322 of the Rayburn House Office Building, Hon. Ralph M. Hall 

(Chairman) presiding. 

 Members present: Representatives Hall, Norwood, Shimkus, Otter, 

Murphy, Burgess, Barton (ex officio), Boucher, Markey, Green, and 

Dingell (ex officio). 

 Staff present: David McCarthy, Chief Counsel for Energy and the 

Environment; Kurt Bilas, Counsel; Annie Caputo, Professional Staff 

Member; Elizabeth Stack, Policy Coordinator; Peter Kielty, Legislative 

Clerk; Sue Sheridan, Minority Senior Counsel; and Bruce Harris, 

Minority Professional Staff Member. 

 MR. HALL. The committee will come to order. I would like to, of 

course, welcome all the witnesses to this committee with a particular 

warm welcome to fellow members, Congressman Otter and 

Congressman Mollohan. A warm welcome to all of them but to our 

associates, we always like to see them come before the committee. 

Without objection, the subcommittee will proceed pursuant to committee 

rule 4E, which allows members the opportunity to defer opening 

statements for extra questioning time. I recognize myself for an opening 

statement. 

 First, I want to thank Ranking Member Rick Boucher and Chairman 

Barton and Ranking Member Dingell of the full committee for their help 

in setting up this hearing. Nuclear and hydroelectric energy are the 

mainstays of our Nation’s energy supply and resolving these issues 

before us today is just absolutely critical to insuring that our country 

continues to receive the benefits of these clean energy sources. 
2

 First, let me comment on nuclear waste. Yucca Mountain is a 

necessary solution for hazardous disposal of our Nation’s nuclear waste. 

I have said before, and said it before and before and before, we owe it to 

our children and to our grandchildren to live up to the commitment to 

build a safe and secure repository. Today’s hearing is an opportunity for 

us to hear from the stakeholders regarding their opinions on the various 

legislative proposals regarding nuclear waste storage and disposal, and 

any additional recommendations that they might have. I know many 

people are frustrated with the length of time we have been working on 

this issue and how much longer it will be until the repository opens. 

 I think that frustration leads people to question whether Yucca 

Mountain will ever open and to suggest that we proceed with interim 

storage instead. I have supported interim storage provisions in the past at 

Yucca Mountain. We should not allow the pursuit of interim storage to 

slow progress in the repository. After addressing nuclear issues, we will 

turn to five bills that provide for hydroelectric license extension. These 

bills address seven projects in five States and have been introduced by 

Republicans and Democrats. 

Our first hydro panel will consist of two of our colleagues, 

Congressman Butch Otter from Idaho, and Congressman Alan Mollohan 

from West Virginia to discuss the bills that they have introduced to 

extend the licensing for projects in their States. We will also hear from 

Mark Robinson of the Federal Energy Regulatory Commission on 

FERC’s view on these five bills. I encourage my colleagues to use this 

hearing to gain a better understanding of the issues before us in 

preparation for possible legislative action. I remind all members have 

the opportunity to submit questions for the record following the hearing. 

I ask the witnesses to please respond to these questions as soon as you 

can. I look forward to working with you and listening to your testimony 

today, so as we get underway I will recognize Mr. Boucher for an 

opening statement. 

 [The prepared statement of Hon. Ralph M. Hall follows:] 

PREPARED STATEMENT OF THE HON. RALPH M. HALL, CHAIRMAN, SUBCOMMITTEE ON 

ENERGY AND AIR QUALITY

The Subcommittee will come to order. I would like to welcome all of the witnesses 

to this Committee with a particularly warm welcome to our fellow Members, 

Congressmen Otter and Mollohan. Without objection, the Subcommittee will proceed 

pursuant to Committee Rule 4(e), which allows Members the opportunity to defer 

opening statements for extra questioning time. 

The Chair recognizes himself for an opening statement. First, I want to thank 

Ranking Member Rick Boucher, and Chairman Barton and Ranking Member Dingell of 

the Full Committee for their help in setting up this hearing. Nuclear and hydroelectric 

energy are mainstays of our nation’s energy supply. Resolving the issues before us today 
3

is critical to ensuring that our country continues to receive the benefits of these clean 

energy sources. 

First, let me comment on nuclear waste. Yucca Mountain is a necessary solution for 

how to dispose of our nation’s nuclear waste. As I’ve said before, we owe it to our 

children and grandchildren to live up to the commitment to build a safe and secure 

repository. 

Today’s hearing is an opportunity for us to hear from stakeholders regarding their 

opinions on the various legislative proposals regarding nuclear waste storage and 

disposal, and any additional recommendations they have. 

I know many people are frustrated with the length of time we have been working on 

this issue and how much longer it will be until the repository opens. I think that 

frustration leads people to question whether Yucca Mountain will EVER open and to 

suggest that we proceed with interim storage instead. I’ve supported interim storage 

provisions in the past, at Yucca Mountain. However, a short term fix should not detratct 

from the focus and resources needed for the long-term solution – the pursuit of interim 

storage should not slow progress on the repository. 

After addressing nuclear issues, we will turn to 5 bills that provide for hydroelectric 

license extensions. These bills address 7 projects in 5 States and have been introduced by 

Republicans and Democrats. Our first panel will consist of two of our colleagues, 

Congressman Butch Otter from Idaho and Congressman Allan Mollohan from West 

Virginia, to discuss the bills that they have introduced to extend the FERC licenses for 

projects in their States. We will also hear from Mark Robinson of the Federal Energy 

Regulatory Commission on FERC’s views on these 5 bills. 

I encourage my colleagues to use this hearing to gain a better understanding of the 

issue before us in preparation for possible legislative action. I remind all Members of the 

opportunity to submit questions for the record following the hearing. I ask the witnesses 

to please respond those questions as soon as you can. I look forward to working with 

you, and listening to your testimony today. 

 MR. BOUCHER. Thank you very much, Mr. Chairman, and I want to 

commend you for convening today’s hearing on our nuclear waste 

disposal and storage policies, as well as on legislation providing for 

hydroelectric license extensions in several selected circumstances. I will 

focus my comments this afternoon on the nuclear waste portion of 

today’s hearing. This is a matter of great concern to many stakeholders 

including the electricity consumers who are paying every year into the 

Nuclear Waste Fund. 

 I was pleased to learn during our hearing in July on the status of the 

Yucca Mountain program that the Department of Energy has developed a 

new schedule and plans to submit a license application in the year 2008 

to the Nuclear Regulatory Commission with the opening of the 

repository expected to follow in the year 2017. While I am encouraged 

by the new schedule that DOE has put forward and even more 

encouraged by its apparent determination to meet that schedule, we are 

all still awaiting the receipt of an accompanying anticipated funding 

stream statement, and we hope we will be receiving that statement in the 

near future. That will be the schedule of money that will flow to DOE 

and to this program that would be required to meet the new schedule. 
4

 The longstanding matter of funding for the Yucca Mountain project 

continues to be of great concern. While the balance in the Nuclear Waste 

Fund is currently approximately $19 billion, annual appropriations for 

the Yucca Mountain program are only a fraction of the amount annually 

contributed by the ratepayers. This year, for example, the 

Administration has proposed $156 million for civilian nuclear waste 

disposal, but $750 million in rate payer contributions will go into the 

Nuclear Waste Fund during the current year. These monies are not 

walled off and protected and are therefore being spent for other purposes 

in order to fund the Federal government’s general operations, and that 

was never the intent at the time that ratepayers were taxed with funding 

the nuclear waste disposal program. 

 Over the past several years several legislative proposals to address 

the funding mechanism have been debated by this committee but because 

of objections from other committees no resolution has been reached on 

ways to secure funding to this project. I would say again it is a matter of 

paramount importance. It is in my view essential to secure for the Yucca 

Mountain project not only future rate payer contributions into the Fund, 

but also the existing balance of approximately $19 billion which has 

been paid for the purpose of establishing the repository. And as we 

consider legislation to secure future contributions, I think it must have a 

component that assures that the Yucca Mountain project receives the full 

balance, approximately 19 billion, currently residing within the Fund. 

 A number of new proposals have surfaced in recent months 

including the establishment of possible interim storage facilities and also 

the global nuclear energy partnership, a program which would promote 

nuclear waste reprocessing. I am interested in hearing about the potential 

merits of both of these proposals, but let me say that I am somewhat 

skeptical about the ability of DOE simultaneously to fund and staff those 

new efforts while continuing to meet the new schedule for opening 

Yucca Mountain. And I hope that our witnesses today will offer some 

comments on how that might happen if either or both of these new 

programs are put into effect. Thank you again, Mr. Chairman, and I 

yield back. 

 MR. HALL. I thank the gentleman. The Chair recognizes Dr. 

Norwood, the gentleman from Georgia, for an opening statement. 

 MR. NORWOOD. Thank you, Mr. Chairman, and thank you for 

holding this hearing today on a very important energy issue including 

nuclear and hydroelectric power issues. I have been a strong supporter 

of these types of power since coming to Congress and would very much 

like to see their expansion in these areas to promote clean, renewable 

power and diversification in our Nation’s energy portfolio. 

Unfortunately, I think that we keep seeing the same opposition from the 
5

usual suspects. These folks who oppose the energy bill oppose offshore 

exploration, oppose domestic resources in Alaska, oppose expanding 

refineries, and even oppose wind power when it hurts their vacation 

home view. 

 Yet, they are the first to vilify oil companies when trying to bring my 

product to market first to make us beholding to international energy 

moguls and the first to cry when their winter heating bill goes up or their 

power blacks out because of lack of infrastructure. Now we have the 

expansion of nuclear power before us, and as we have for some time, and 

the delays continue. I for one come from a State that is ready, is willing, 

is able to expand our nuclear power infrastructure, but the industry and 

the expansion are hamstrung by the failure to achieve some certainty that 

a plan will be in place for proper safe disposal of nuclear waste, all the 

while power bills slowly are creeping up and waste piles up. 

 This is a security issue. It is a power issue. It is an infrastructure 

issue, and it is a jobs issue. I would have thought that we could have 

agreed on all of these things, but clearly we do not. I look forward to this 

hearing. I look forward to being reassured by Mr. Sproat that after my 

visit to Yucca Mountain in 1995 he might actually open it and hopefully 

before 2008. Finally, I would like to welcome my friend and fellow 

Georgian, Mr. Stan Wise, who serves our home State with both 

dedication and distinction. I appreciate his service to Georgia and our 

constituents appreciate his efforts on their behalf back home. I know that 

he will be an able and informative witness for us here on this second 

panel. Thank you for coming today, Stan, and I look forward to your 

testimony. Thank you, Mr. Chairman. 

 MR. HALL. Thank you, Dr. Norwood. The Chair recognizes Dr. 

Murphy, the gentleman from Pennsylvania, for an opening statement. 

 MR. MURPHY. Thank you, Mr. Chairman, and thank you for holding 

this important hearing. As you know, we are in the unfortunate and 

tragic position in the United States of funding both sides in this war we 

are immersed in, a war that has been going on for some 30 years, 

curiously as long as we have also not been building nuclear power plants, 

building oil refineries, exploring for oil and natural gas to a very limited 

extent. In the meantime, countries like Iran take our oil money that 

people pay for every time they fill their tank and they have recently 

given I believe it was about $100 million worth of aid to Hezbollah in 

their fight against Israel. 

 We have countries like Venezuela who openly embrace other 

terrorist supporting Nations saying that they also see the United States as 

their enemy, all the while taking money from our citizens to fund their 

hostile comments and their hostile activities. The only way we can 

combat this is to have a diverse source of energy in this Nation that 
6

includes exploring for our own sources of oil off the Atlantic Coast, the 

Gulf Coast, the Pacific Coast, the Rocky Mountains in Alaska, and stop 

delaying this for the sake of politics and really see that we have to have 

some energy independence here, diversify our energy sources to include 

such things as clean coal technology which we have been funding but we 

need to move forward more aggressively on that, and also diversity with 

other sources, solar, hydroelectric, and nuclear being among them. 

 If we fail to do that, we are continuing to send money to people who 

use it against us to kill our citizens, people who are part of a network 

who have promised to kill some four million adults and two million 

children as part of their war against us. This is a serious undertaking. I 

am pleased that as a result of our energy bill, companies like 

Westinghouse Electric are now working actively to build nuclear power 

plants. But of course we can’t move forward on that unless they have a 

place to put the nuclear waste. A large part of the solution to America’s 

energy problem is American energy, and the more we see energy 

independence by diversifying our sources through such things as nuclear, 

clean coal, domestic source of oil, and other renewables, the better off 

we are as a Nation. 

 Like most Americans, I am tired, I am sick and tired of having 

hostile Nations dictate our economy while we sit back and here and 

argue politics instead of working on energy policy. This issue of Yucca 

Mountain is a major issue for our energy independence and the sooner 

we understand it is a major issue for our American peace the sooner we 

will move forward in doing the right thing. Thank you, Mr. Chairman. 

 MR. HALL. Thank you, sir. The Chair recognizes Honorable John 

Dingell for an opening statement. Mr. Dingell, welcome. 

 MR. DINGELL. Mr. Chairman, you are most courteous. 

 MR. HALL. You are worth waiting for. 

 MR. DINGELL. We will see after I finish this statement if you still 

want to hold that view. 

 MR. HALL. I may want to revise my statement. 

 MR. DINGELL. Mr. Chairman, thank you for this hearing. I applaud 

the attention which the subcommittee and the full committee have 

brought during this session to the Department of Energy’s DOE Yucca 

Mountain waste repository program. This program is long delayed. It 

has undergone an internal review which I hope will get it back on track 

so the DOE can prepare and file the license application with the Nuclear 

Regulatory Commission in the near future. It is important that this 

committee and this subcommittee stay on top of these changes, and I 

commend you, Mr. Chairman, and the Chairman of the full committee 

for your doing this. 
7

 I am pleased to have Director Sproat before the subcommittee today. 

While past delays in the program are regrettable, it was good to learn at 

our last hearing in July that Mr. Sproat believes DOE will be in a 

position to file an application by 2008 and potentially to open the 

repository in 2017. I am pleased that Tony Earley, a personal friend, and 

the Chairman and CEO of DTE Energy Company in my home State of 

Michigan will be testifying today on behalf of the Nuclear Energy 

Institute. 

 The nuclear industry has upheld its end of the bargain in terms of 

channeling funds into the Nuclear Waste Fund. I appreciate the support 

that the industry gives on funding reform and on other things related to 

these matters. This is sorely needed to protect it and the ratepayers’ 

investment. I hope that industry will support my efforts to find the 

means of halting the diversion of the $19 billion in the Fund, which sadly 

remains vulnerable to raids by the Budget and the Appropriations 

Committees, which is regularly diverted to other purposes for the reasons 

best understood by the Budget and Appropriations Committees. 

 Today’s hearing may shed light on questions surrounding the issue 

of centralized interim storage. The idea surfaces from time to time and 

indeed the Nuclear Waste Policy Act included a very narrow and 

specifically drawn version which expired in 1990. Similarly, during the 

106th Congress the committee referred the bill authorizing DOE to 

construct a strictly limited interim storage facility in Nevada. While 

interim storage may hold promise, we should not lose sight of the 

fundamental trade off that the Congress has waged in past debates that 

interim storage not grow so large as to undercut incentives for 

completing the repository. 

 Those who suggest the time has come to abandon this concern 

should be prepared to explain why ratepayers should be asked to pay for 

both the repository program and one or more interim storage facilities 

which will have substantial cost in addition to the cost of on-site storage. 

This brings me, Mr. Chairman, to my last observation. For years DOE 

has provided information to this committee projecting funding needs for 

the Yucca Mountain project for the following decade. This has enabled 

members to assess whether or not the program funding will be adequate 

and when DOE will need access to the corpus of the Nuclear Waste 

Funds to meet peak spending needs. 

 To date, DOE has not provided Congress with updated cost estimates 

that reflect the programmatic changes announced in July, and I hope that 

this hearing today will help us get some of that information. To be sure, 

I would rather that the Department take the time needed to get it right, 

rather than to hurry this information. The lack, however, of updated cost 

estimates precludes members from making an informed judgment about 
8

legislative proposals for centralized Federal interim storage. DOE did 

not include interim storage in its legislative proposal, and I share the 

concerns that several of my colleagues from both sides of the aisle 

expressed about the effect of such a new initiative and the impact it could 

have on DOE’s resources. In terms of process, a policy change of this 

magnitude is best considered by the regular order. If not, the product is 

likely to be disappointing and will make matters worse. 

 It would be a shame if the Congress saddled DOE with another layer 

of responsibilities that resulted in still more delay and still more 

litigation. With that, Mr. Chairman, I thank you for your kindness. I 

thank my colleagues for their attention, and I look forward to hearing 

from the witnesses, and I yield back the balance of my time. 

 MR. HALL. Thank you, Mr. Dingell. The Chair notes the presence 

of Mr. Barton, Chairman of the Energy and Commerce Committee. I 

recognize you, Mr. Chairman, for an opening statement. 

 CHAIRMAN BARTON. Thank you, Chairman Hall, for holding this 

hearing. Nuclear energy and hydropower both play crucial and growing 

roles in meeting our Nation’s energy needs. Solving the nuclear waste 

issue and facilitating hydroelectric licensing are crucial steps to insuring 

that these clean energy sources continue to be available. Two months 

ago your subcommittee heard testimony from the Department of Energy 

on the new schedule at Yucca Mountain. Meeting that ambitious 

schedule will require legislative action and funding. Mr. Sproat is here 

today. I am going to let you know that I remain committed to helping 

you meet that schedule. I am going to go everything I can to help you be 

successful in meeting that schedule. 

 I realize that 2017 is a long way off, but there is a growing desire on 

the part of some to pursue interim storage. As Chairman Hall has 

commented, I have also supported interim storage in the past at Yucca 

Mountain. However, building interim storage facilities in as many as 31 

States is not something that I support, and I don’t think the House will 

support it. I think it is unrealistic. I think it depletes the Nuclear Waste 

Fund, and I think it does not meet our obligation to the ratepayers who 

have paid for Yucca Mountain. To the extent interim storage is 

appropriate, let us locate it at Yucca Mountain. 

 The ratepayers that have paid into the waste fund for all these years 

are counting on Congress to do our part by building the repository. We 

owe them the value of that facility. We also owe it to our future 

generations to take care of the spent fuel that we already have on hand. 

In the process we should not preclude future generations from applying 

advance technologies that almost certainly will be developed. You don’t 

have to be a nuclear engineer to know with certainty that future 

generations will almost certainly discover more effective solutions to the 
9

nuclear waste issue than we have today. As knowledge accumulates, 

new ideas will emerge and progress will happen. Therefore, I strongly 

believe that we should proceed with licensing and constructing the 

repository at Yucca Mountain in a way that maintains flexibility for 

future generations to incorporate the improvements that they devise. 

 The National Research Council has issued a report back in 2003 that 

was entitled one step at a time. It proposed a concept called adaptive 

staging. I am intrigued by the proposal and intend to study it further. 

Staged development of repositories is a concept that is gaining support 

internationally. It may provide a flexible framework for incorporating 

future innovations without delaying the current repository. As I have 

said before, I remain committed to doing everything I can as Chairman 

of the Energy and Commerce Committee to help the Department of 

Energy meet the 2017 time table for opening the Yucca Mountain 

repository. 

 There are legislative provisions that must be passed to accomplish 

that. I expect if there are other provisions that could be passed it would 

be helpful. In the coming months I hope to work with Mr. Dingell on a 

legislative package to put the Yucca Mountain program on a path to 

success. Support for Yucca Mountain has been bipartisan in this 

committee and in the House. It is my goal that the work we do on this 

issue will continue to be bipartisan. We should not let politics get in the 

way of addressing this important issue. The subcommittee today is also 

going to take up five bills, or review five bills, to extend their licenses to 

begin the construction of seven hydroelectric projects. 

 Last year’s Energy Policy Act contained important provisions 

regarding hydroelectric project licensing to encourage more 

hydroelectric generation. I see that the first panel after this panel 

contains two Members of Congress, Representatives Otter of Idaho, who 

is a member of this committee, and Alan Mollohan of West Virginia. I 

look forward to their testimony. With that, Mr. Chairman, I yield back. 

 [The prepared statement of Hon. Joe Barton follows:] 

PREPARED STATEMENT OF THE HON. JOE BARTON, CHAIRMAN, COMMITTEE ON ENERGY 

AND COMMERCE

Thank you, Chairman Hall for having this hearing. Nuclear energy and hydropower 

both play crucial and growing roles in meeting our nation’s energy needs. Solving the 

nuclear waste issue and facilitating hydroelectric licensing are crucial steps to ensuring 

that these clean sources of energy will continue to be available. 

Two months ago this Subcommittee heard testimony from the Department of Energy 

on the new schedule for Yucca Mountain. Meeting that ambitious schedule will require 

legislative action and funding. Mr. Sproat, I remain committed to helping you meet that 

schedule and will do everything I can to give you the tools you need to succeed. 

I realize 2017 is a long way off and that there is growing desire on the part of some 

to pursue interim storage. As Chairman Hall already commented, I have also supported 
10

interim storage in the past: at Yucca Mountain. However, building interim storage 

facilities in as many as 31 states in NOT something I support. It is unrealistic, depletes 

the Nuclear Waste Fund, and does not meet our obligation to the ratepayers who have 

paid for Yucca Mountain. 

They’re counting on Congress to do our part by finally building the repository. Not 

only do we owe THEM the value of the facility, we also owe it to future generations to 

take care of the spent nuclear fuel that our generation has benefited from. However, in 

the process we should not preclude future generations from applying advanced 

technologies that they will develop. 

You don’t have to be an engineer to know with certainty that future generations will 

discover more effective solutions to the nuclear waste issue. As knowledge accumulates, 

new ideas will emerge and progress will happen. Therefore, we should proceed with 

licensing and constructing the repository in a way that maintains flexibility for future 

generations to incorporate the improvements that they devise. The National Research 

Council issued a report in 2003 entitled, “One Step at a Time” which proposed a concept 

called, “Adaptive Staging.” I am intrigued by the proposal and intend to study it further. 

Staged development of repositories is a concept that is gaining support internationally 

and may provide a flexible framework for incorporating future innovations, without 

delaying the repository. 

As I’ve said before, I remain committed to doing everything I can to help DOE meet 

their 2017 opening date for the repository. There are legislative provisions that must be 

passed to accomplish that and I expect there are other provisions that would be helpful. 

In the coming months, I hope to work with Ranking Member Dingell on a legislative 

package to put the Yucca Mountain program on a path to success. Support for Yucca 

Mountain has been bipartisan on this Committee. It is my goal that the work we do on 

this issue will continue to be bipartisan. We should not let politics get in the way of 

addressing this important issue. 

The Subcommittee will also take up 5 bills to extend the FERC licenses to begin the 

construction of 7 hydroelectric projects. Last year’s Energy Policy Act contained 

important provisions regarding hydroelectric project licensing to encourage more 

hydroelectric generation. I see that the first hydro panel consists of 2 members of 

Congress – Representatives Butch Otter of Idaho and a member of the Energy and 

Commerce Committee, and Allan Mollohan of West Virginia. I look forward to their 

testimony. It is always encouraging to hear from people who want to see new energy 

facilities in their States. 

 MR. HALL. Mr. Chairman, I thank you. I recognize Mr. Shimkus, 

the gentleman from Illinois, for an opening statement. 

 MR. SHIMKUS. Thank you, Mr. Chairman, and I will be brief. I 

want to welcome our panel. This is an important hearing. I agree a lot 

obviously with the Chairman and even the Ranking Member. Divide and 

conquer is a strategy to delay, confuse, and stop the expansion of nuclear 

power in this country. That is why we were so excited, Mr. Sproat, when 

you gave your testimony and committing a time line. I want to join my 

Chairman in saying anything we can do to meet the 2008-2017 we want 

to do because the best signal we can send to the nuclear industry is that 

we are serious. We are serious about Yucca. 

 This interim proposal is just ridiculous. If we think that each State is 

going to not delay, confuse, obfuscate, I can’t even say the word, this 

process and delay interim storage for decades like the attempts that have 
11

been at Yucca Mountain, we haven’t been in Washington very long, so I 

want us to move forward. You have got a lot of supporters here. You 

can count me as one of them, and I look forward to working with you to 

achieve that end so that we can diversify our energy portfolio for all the 

reasons that members have already mentioned before. We want a 

competitive, electricity generation market. That means coal. I am from 

a leading coal State. That means nuclear and natural gas and 

hydroelectric. You want them to compete, and you don’t want to 

disenfranchise any of those competitors. I yield back, Mr. Chairman. 

 MR. HALL. Thank you. The Chair recognizes Mr. Otter, the 

gentleman from Idaho, for an opening statement. 

 MR. OTTER. Thank you, Mr. Chairman. I would to welcome the 

panel. Thank you for being here today. I would associate myself with 

the remarks of Mr. Shimkus and also our Chairman, and all those other 

remarks that says basically we are not much in favor of interim storage. 

The future of energy, I believe, in this country is nuclear. And the future 

of nuclear energy in this country is how we treat our waste. Can we 

clean up the messes that we have got? Can we take care of the messes 

that we would create? And to delay and to try to now establish an 

interim storage scheme which would actually delay the final resting place 

of the nuclear waste that we have, I think is a terrible mistake not only in 

terms of promises made and promises not yet kept, but I think it is also a 

terrible mistake in terms of how we are going to be able to view the role 

in which nuclear energy can play in the future in the United States. 

 I am aware and I am sure you too, sir, are aware of an agreement that 

we have in Idaho on the removal of nuclear waste, and there is a time 

line on that. And that time line since its inception of that contract is 12 

years now and certainly that agreement between the Department of 

Defense and Energy and the State of Idaho did allow for some time lines 

to be stretched, but it is getting perilously close now to an irreversible 

trend. And so I would join the rest of my colleagues in total support of 

going forward with permanent storage and getting those projects 

underway so that we really do have a future for nuclear energy in this 

country. Thank you, Mr. Chairman, and I yield back. 

 [Additional statements submitted for the record follows:] 

PREPARED STATEMENT OF THE HON. GENE GREEN, A REPRESENTATIVE IN CONGRESS FROM 

THE STATE OF TEXAS

Thank you Mr. Chairman for holding our third Nuclear Waste hearing in the 109th

Congress. 

It’s about that time when people start looking to pass all kinds of legislation in lame 

duck omnibus appropriations bills, so it is a good idea for our Committee to be paying 

close attention to this issue. 
12

The scope of the challenge of nuclear waste has been well documented by this 

Committee and elsewhere, but the language in the Senate Energy and Water 

Appropriations bill is a new wrinkle we must confront. 

Many on this Committee are very concerned with this language. By starting from 

scratch on new “interim” storage facilities at unknown locations, we are likely 

undercutting the Yucca Mountain project. 

With DOE and Congress struggling so hard to get Yucca moving, it’s hard to see 

how the federal government has the time and resources to set up any more nuclear 

storage facilities. 

If we switch course and pursue an interim nuclear storage facility, we run the risk of 

eliminating all the momentum behind Yucca Mountain. 

Some Yucca opponents support the Senate language, and they probably view this 

proposal as a strategy to delay Yucca Mountain indefinitely. 

As a result, it is going to be very difficult to site an interim facility since any area 

that is chosen will suspect they’re the new permanent facility. 

An interim facility will likely be smaller than Yucca Mountain which likely means 

that some nuclear waste will remain at on-site storage facilities for even longer than 

expected. 

Some facilities may be stuck with their waste because the interim facility won’t be 

big enough to take care of everyone, but it will be big enough to take away Yucca’s 

momentum. 

DOE needs to take a leadership role in the appropriations negotiations this year and 

do what is best for the entire nation’s safety and reliable electricity supply. 

If DOE sits on its hand on the sidelines it will be much easier for anti-Yucca 

elements in the Senate to sneak in through the back door and kill the Yucca Mountain 

project which Congress approved overwhelmingly. 

If that happens, the pro-nuclear Bush Administration may go down in history as the 

Administration that did the most damage to the future of nuclear power in America. 

Thank you and I yield back. 

PREPARED STATEMENT OF THE HON. MIKE ROGERS, A REPRESENTATIVE IN CONGRESS FROM 

THE STATE OF MICHIGAN

Mr. Chairman: 

Thank you for convening this important hearing on nuclear waste storage and 

disposal policy. First and foremost, I would like to welcome from Michigan Mr. Tony 

Earley, Chairman and Chief Executive Officer of DTE Energy to the Committee. 

Mr. Earley, in your important role serving as Chairman of the Nuclear Energy 

Institute, the Committee welcomes your expertise on this important issue facing our 

region and the entire nation. 

Mr. Chairman, my home state of Michigan has four nuclear waste storage sites. Yet 

Michigan is also the home of the Great Lakes which contain 20 percent of the world's 

fresh water. I can assure you that Michiganders are very interested in securing and 

opening the permanent nuclear waste storage facility at Yucca Mountain, Nevada to get 

this hazardous material off of the shores of our precious lakes. 

Many of the provisions found in H.R. 5360 would take important steps to continue 

moving this process forward. This bill would go a long way toward providing certainty 

that the Yucca Mountain facility is progressing, ensure the funding stream already 

created goes toward Yucca as intended and by clarifying the licensing process. 

Mr. Chairman, thank you again for convening this important hearing. I look forward 

to working with you going forward on this issue. 
13

 MR. HALL. Thank you. We are very fortunate to have two 

gentlemen who are very much in the mix of discussions who we have 

here today. We appreciate once again your coming to our aid and giving 

us the advice that you are going to give us. Edward F. Sproat, III, 

Director of Office of Civilian Radioactive Waste Management, U.S. 

Department of Energy, I recognize you at this time hopefully for 5 

minutes but whatever it actually takes to summarize yours and then we 

will ask questions. I recognize you, Mr. Sproat. 

STATEMENTS OF HON. EDWARD F. SPROAT, III, DIRECTOR, 

OFFICE OF CIVILIAN RADIOACTIVE WASTE 

MANAGEMENT, U.S. DEPARTMENT OF ENERGY; AND 

LUIS A. REYES, EXECUTIVE DIRECTOR FOR 

OPERATIONS, U.S. NUCLEAR REGULATORY 

COMMISSION 

MR. SPROAT. Mr. Chairman, Congressman Boucher, members of 

the committee, thank you very much for the opportunity to appear before 

you today to talk about H.R. 5360, which is entitled the Nuclear Fuel 

Management and Disposal Act, and on behalf of the President and the 

Secretary, I would particularly like to thank Chairman Barton for his 

introduction of this important piece of legislation. Let me talk about--I 

am very encouraged by what the committee said this afternoon regarding 

your support for Yucca Mountain, and I want to talk specifically about 

what can we do for you to help make this happen, and that is what I want 

to talk about in 5 minutes or less. 

 Two months ago I came before this committee, and I laid out the 

new best achievable schedule for the Yucca Mountain project showing 

that we believed under optimum circumstances the best achievable date 

of opening Yucca Mountain is March of 2017. I got criticized in a 

number of quarters about how unrealistic that schedule was, and I want 

to make it very clear that the schedule is best achievable, not most 

probable, and there is a difference. And I want to make it very clear that 

the legislation that the Administration sent up here to Capitol Hill back in 

the spring and here in the House as H.R. 5360 is absolutely positively 

critical to making that March, 2017 date. 

 I can tell you unequivocally that if we don’t get that legislation, I 

have a zero chance of making that March, 2017 date, and I am prepared 

to go into some of the details as to why that is the case, and so that is 

why I am here, to try and make that case to you about how important that 

piece of legislation is to allow us to open that repository by March of 

2017. There have been a number of discussions about this legislation, 

and there are a number of misconceptions out there about what it is 
14

asking for and what it is intending to do. I am going to hit the highlights 

very quickly and try and put it in plain English because there are a 

number of--it is very legalistic in a number of ways, and I want to try and 

keep it very simple and very straightforward. 

 Number one is around the waste fund; this legislation is not about 

taking Yucca Mountain off budget. It is not about taking away from 

Congress its right of appropriations for Yucca Mountain. This is about 

making the annual receipts in the Nuclear Waste Fund and characterizing 

them as discretionary. And what that allows the various appropriations 

committees to do is to take that money, the receipts as they come in, 

appropriate them for Yucca Mountain without impacting the committee’s 

budget limits that they are given for the budget process. It does still 

maintain congressional control of the appropriations process over Yucca 

Mountain so that is very important to understand. 

 Just one last point on money before I move on. There have been a 

couple questions raised about the cash flows which you asked about 

when I was here 2 months ago. The cash flow estimates for the Yucca 

Mountain project are in the final stages of being put together through the 

entire construction period of the project. We are bringing in an outside, 

independent architect engineering firm to do an independent review of 

the methodology and the numbers that we have for that. I expect that 

independent review to be done in early October. Once that is done, we 

will present that to you in an appropriate forum so that you have those 

cash flows, but that is where we stand with that right now. I understand 

you would like to have those as soon as possible but we want to make 

sure they are right. 

 The second issue in the bill concerns land withdrawal, and to make it 

very simple, in order for the NRC to license the repository, DOE as the 

licensee needs to show that it has control of the repository area. I can’t 

do that unless that land is withdrawn from public use and public access, 

and what the legislation allows us to do is give the Secretary of Energy 

control that way and make determinations how it is to be used. That is 

critical to the licensing process of Yucca Mountain. 

 The third area is removal of a 70,000 metric tons limit on the 

capacity of Yucca Mountain. Right now with the current fleet of nuclear 

plants and with the license extensions they have open, we will have 

Yucca Mountain totally committed within the next several years. 

 What this legislation is proposing is to remove that administrative 

limit that is in the Nuclear Waste Policy Act and allow the NRC to 

determine during the licensing process what the maximum allowable 

capacity of Yucca Mountain should be. What I can tell you is that the 

Nuclear Waste Policy Act also requires me to report to Congress 

between January 1, 2007, and 2010, if I believe, there is a need for a 
15

second repository. If we do not remove this administrative cap, I can tell 

you I will present a report to the Congress certainly during my tenure 

that says we need a second repository, national repository, if that 70,000 

metric ton limit is retained. 

 The next issue is around water, and this is about can we get the water 

we need to operate and construct Yucca Mountain, and we are not trying 

to usurp the State of Nevada’s water rights here. What we are asking for 

is the Congress to declare Yucca Mountain in the public interest because 

right now the State of Nevada legislature has declared it not in the public 

interest and therefore the State water engineer cannot give us a permit to 

withdraw water. So all we are asking is that the Congress declare Yucca 

Mountain in the public interest, basically overriding the Nevada 

legislature’s alternate determination and then allowing us to go in front 

of the State water engineer and present our case. That is all we are 

asking for. We are not trying to usurp Nevada’s rights in terms of 

control of their water. 

 In terms of waste confidence, this is an issue that a number of people 

have talked about. This is about trying to make it very clear so that the 

NRC and the Congress believe that the disposal of spent nuclear fuel is 

an issue that the NRC does not need to consider in their environmental 

impact statements for new plants or for license extensions of existing 

plants. This is an issue of vital importance to the industry and to our 

ability to move forward with nuclear energy in this country. 

 The sixth area is around transportation, and there has been a lot of 

misinformation around this issue also. Very simply, the Department of 

Energy already has authority to transport spent nuclear fuel and high 

level waste under the Atomic Energy Act. What we are asking for is 

authority under that Atomic Energy Act to use an existing Department of 

Transportation pre-emption process so that, if we get to a locality that is 

obstinate and not willing to work with us in the planning process to allow 

us to plan the transportation routes, that we can use the existing 

Department of Transportation pre-emption process, which is very well 

developed and very complete. This gives us an alternative process to 

work around any obstructions we might get at a local level. 

 We are not asking for, nor do we have any plans not to work very 

directly with county, State, local, and tribal members in planning the 

transportation routes. That is what we have done in the past. That is 

what we plan on doing in the future. But we need this alternative preemption process that the Department of Transportation has in place so 

that we can apply it to our shipments. There is also a request to clarify 

our capability to build infrastructure for the rail line to Yucca Mountain. 

And just to be clear about that, we believe we already have the authority 

to do these things. What we are trying to be clear about is that these 
16

actions are connected to Yucca Mountain, but we believe, and we are 

trying to clarify, that we have the authority to do these activities before 

receipt of a construction authorization from the NRC, without 

prejudicing the NRC decision-making process for the construction 

authorization. 

 That is the focus of this. It does not in any way affect NRC’s 

authority over the nuclear safety aspects of licensing Yucca Mountain. 

This is strictly about the connected actions and allowing us to start 

activities like building the Nevada railroad spur prior to issuance of a 

construction authorization for Yucca Mountain by the NRC, and that is 

important to be able to meet our schedule. The last area that I just want 

to talk about very quickly is the several issues associated with trying to 

clarify Federal authority over duplicative regulatory review processes. 

One is around air quality. We are asking that the EPA be given authority 

to regulate our air quality permits for Yucca Mountain and not the State 

of Nevada. 

 Secondly, for the materials to be buried at Yucca Mountain, right 

now the Resource Conservation and Recovery Act, RCRA, applies. It is 

a law that is very focused on shallow burial of hazardous wastes. It is 

our contention and belief that NRC licensing of the materials that we are 

putting into a deep geological repository is a much more stringent set of 

regulations than what the RCRA law would require, and we are asking 

elimination of the duplicative reviews and regulatory frameworks that 

both RCRA and NRC regulations would require. 

 And then finally for those infrastructure improvements that I talked 

about before, we just want to clarify that EPA has authority over the 

environmental impact statement reviews of those connected actions. So 

in summary, Mr. Chairman, the President, the Secretary, and I all believe 

that this legislation is critical to achieving that schedule that I gave you 2 

months ago for opening Yucca Mountain by March of 2017, and we 

respectfully request that the Congress act on this legislation. 

 [The prepared statement of Hon. Edward F. Sproat, III follows:] 

PREPARED STATEMENT OF THE HON. EDWARD F. SPROAT, III, DIRECTOR, OFFICE OF 

CIVILIAN RADIOACTIVE WASTE MANAGEMENT, U.S. DEPARTMENT OF ENERGY

Mr. Chairman and Members of the Committee, thank you for the opportunity to 

appear before you today to discuss H.R. 5360 entitled the “Nuclear Fuel Management 

and Disposal Act.” Enactment of this bill would significantly enhance the Nation’s ability 

to manage and dispose of spent nuclear fuel and high-level radioactive waste. I thank 

Chairman Barton for taking up this critical issue and introducing the legislation. 

Over the last 50 years, our country has benefited greatly from nuclear energy and the 

power of the atom. We need to ensure a strong and diversified energy mix to fuel our 

Nation’s economy, and nuclear power is an important component of that mix. Currently 

more than 50,000 metric tons of spent nuclear fuel is located at more than 100 aboveground sites in 39 states, and every year reactors in the United States produce an 
17

additional approximately 2,000 metric tons of spent fuel. In order to ensure the future 

viability of our nuclear generating capacity, we need a safe, permanent, geologic 

repository for spent nuclear fuel at Yucca Mountain. 

Recently the Department announced its plans to submit a License Application for 

the repository to the Nuclear Regulatory Commission (NRC) by June 30, 2008, and to 

initiate repository operations in 2017. This opening date of 2017 is a “best-achievable 

schedule” and is predicated upon enactment of the pending legislation. This proposed 

legislation addresses many of the uncertainties, currently beyond the control of the 

Department, that have the potential to significantly delay the opening date for the 

repository. I would like to briefly summarize the bill’s provisions for the Committee. 

First, the most important factor in moving the Yucca Mountain Project forward is 

the ability of the Department to have access to the Nuclear Waste Fund to ensure 

adequate funding is available to meet the requirements necessary to construct and operate 

a repository. By making a technical budgetary scoring change, the proposed legislation 

would correct a structural budget problem by changing the budgetary treatment of the 

Nuclear Waste Fund fee, from mandatory receipts to discretionary offsetting collections 

equal to annual appropriations from the fund. Funding for the Program would still have 

to be requested by the President and Congressional appropriations from the Fund would 

still be required. 

Second, to meet NRC licensing requirements it will also be necessary for Congress 

to approve the permanent withdrawal of the lands needed for the operational area of the 

repository. The bill would withdraw permanently from public use approximately 

147,000 acres of land in Nye County, Nevada. The Department is confident that the 

permanent withdrawal of land would meet the NRC licensing requirement for the Yucca 

Mountain repository and would help assure protection of public health and the 

environment. 

Third, to promote efficient management and disposal of the current and projected 

future inventories of commercial spent nuclear fuel located at reactors throughout the 

United States, the proposed legislation would eliminate the current statutory 70,000 

metric ton cap on disposal capacity at Yucca Mountain and allow for maximum use of 

the mountain’s true technical capacity. By eliminating an artificial statutory limit and 

allowing the NRC to evaluate the actual capacity at Yucca Mountain, this provision 

would help provide for safe isolation of the Nation’s entire commercial spent nuclear fuel 

inventory from existing reactors, including life extensions, and may postpone the need for 

a second repository elsewhere until the next century. 

In addition, the proposed legislation includes a number of provisions that would 

promote prompt consideration of issues associated with the Yucca Mountain repository 

or would address other matters that have the potential to cause delays in moving forward 

with the Yucca Mountain Project. 

First, the proposed legislation contains provisions that would provide for a more 

streamlined NRC licensing process by amending the licensing process in several respects. 

In particular, the legislation would make clear that an application for construction 

authorization need not include information on surface facilities other than those facilities 

necessary for initial operations. The bill would also establish an expedited one-year 

schedule and a simplified, informal process for the NRC to consider the license 

amendment for the Department to receive and possess nuclear materials as well as for 

other future license amendment actions. The bill would also direct that the NRC, 

consistent with other provisions of the Nuclear Waste Policy Act of 1982, need not 

consider in its environmental review any actions taken outside of the geologic repository 

operations area; this will help focus the licensing process. 

Second, the proposed legislation would permit early initiation of infrastructure and 

pre-construction activities at the Yucca Mountain site for utility, communications, and 

safety upgrades, and the construction of a rail line to connect the Yucca Mountain site 
18

with the national rail network prior to receipt of an NRC construction authorization for 

the repository. Construction of repository surface and sub-surface nuclear facilities 

would still require a construction authorization from the NRC. 

Third, the proposed legislation includes additional provisions that would simplify 

the regulatory framework for the repository. In particular, the legislation would designate 

the Environmental Protection Agency as the appropriate agency to issue, administer, and 

enforce any air quality permits required in connection with the Yucca Mountain 

repository. Material owned, transported and stored in NRC-licensed containers and 

NRC-licensed materials at Yucca Mountain would also be exempt from Federal, State, 

and local environmental requirements under the Resource Conservation and Recovery 

Act. The intent is to ensure that dual regulatory requirements do not apply to the same 

waste streams, once they are ready to be shipped to a repository for disposal. These 

provisions would simplify the regulatory framework for the repository without 

compromising environmental protection or safety. 

Fourth, the proposed legislation would address the use of water needed to carry out 

the authorized functions under the Nuclear Waste Policy Act of 1982. This legislation 

would allow the Department to be treated like a private business in requesting water 

access, resulting in non-discriminatory treatment of the Department. The State of Nevada 

would still review and administer water allocation to the Department under this 

provision. 

Fifth, the proposed legislation would address transportation and ensure the expedited 

movement of shipments to Yucca Mountain. In this regard, the legislation would provide 

the flexibility for the DOE to regulate the transport of spent nuclear fuel and high-level 

radioactive waste to the repository in the same manner that we currently conduct 

transportation of nuclear weapons. The Department has been transporting such nuclear 

materials safely for many years. In addressing this issue, we are not proposing to change 

in any way our route planning activities with State, Tribal and local authorities or how we 

work with them on emergency planning, training, and education. This provision would 

reflect our longstanding commitment to transporting nuclear material in a manner that 

meets or exceeds NRC and Department of Transportation requirements for transportation 

of comparable material. Likewise, it would permit continuing our longstanding practice 

of working with State, Tribal and local governments, transportation service providers, 

and other Federal agencies to utilize their resources and expertise to the maximum extent 

practicable. 

Finally, the proposed legislation would promote the licensing of new nuclear 

facilities by addressing the need for a regulatory determination of waste confidence by 

the NRC in connection with proceedings for those new nuclear facilities. This provision 

directs the Commission to deem that sufficient capacity will be available to dispose of 

spent nuclear fuel in considering whether to permit the construction and operation of a 

nuclear reactor or a related facility. 

Conclusion 

Nuclear power has been demonstrated to be a safe, reliable, and efficient source of 

power. Enactment of the proposed legislation is necessary to allow the Yucca Mountain 

Project to move forward and to advance the Nation’s energy independence, energy 

security, and national security objectives. Mr. Chairman, I look forward to working with 

you and the Members of this Committee on this legislation to facilitate the construction 

and operation of the repository and to ensure the continued development of safe, clean, 

and efficient nuclear power in this country. I would be pleased to answer any questions 

at this time. 
19

 MR. HALL. Thank you. Mr. Luis, Reyes, we recognize you, 

Executive Director for Operations, U.S. Nuclear Regulatory 

Commission, for an opening statement. 

MR. REYES. Thank you, Mr. Chairman. Mr. Chairman and 

members of the committee, it is a pleasure to appear before you today on 

behalf of the Nuclear Regulatory Commission to discuss our capability to 

regulate the storage and disposal of spent nuclear fuel. Specifically, I 

plan to address some of the national spent fuel management strategies 

embodied in various legislative proposals currently under consideration 

by Congress. Since I plan to summarize my testimony, I will ask that my 

full statement be entered into the hearing record including an update for 

page six. 

 MR. HALL. Without objection. 

 MR. REYES. It is important to make clear at the outset that because 

of our role in the regulation of spent nuclear fuel and our potential role in 

considering an application for a high level radioactive waste repository at 

Yucca Mountain, Nevada, the Commission has not taken a position on 

most of the provisions in these legislative proposals. Therefore, I would 

like to focus on the impact certain of the proposals will have on the 

NRC. We have reviewed the language contained in the Senate 

appropriations bill and believe that the existing regulatory infrastructure 

could accommodate the alternative approaches to storing spent nuclear 

fuel. 

 We believe that we may be able to review and license concurrently 

the large number of facilities anticipated in the bill. However, in order to 

do so, we will need sufficient funding, the receipt of high-quality license 

applications, and considerably more time to review and adjudicate the 

applications. We have also reviewed S. 2610 and note that some 

provisions in the bill could affect the timing of our review of a 

Department of Energy application for authorization to receive and 

possess spent nuclear fuel and high level radioactive waste at Yucca 

Mountain. 

 Specifically, S. 2610 will require us to reach a final decision on 

receipt and possession within 1 year with the possibility of a 6-month 

extension. Such a requirement wouldn’t allow us enough time to 

complete both our safety review and the required adjudicatory 

proceeding in 1 year. The changes to a national spent fuel management 

strategy that are being considered in the various bills involve shipping 

spent fuel. The provisions in the bills may affect the transportation roles 

of the Department of Energy and the Department of Transportation. 

They do not appear to affect our role with respect to certifying casks as 

specified in the Nuclear Waste Policy Act. 
20

 The NRC believes that the existing transportation regulatory 

infrastructure can accommodate the various legislative actions being 

considered. However, as with the other topics addressed in this 

testimony, our ability to complete this work will depend upon sufficient 

appropriations and submittal of complete high-quality applications. In 

conclusion, the Commission understands the importance of addressing 

the storage, transportation, and disposal of high level radioactive waste in 

a systematic and integrated manner that is safe, timely, and efficient. 

 We urge Congress to assure that sufficient appropriations be made 

available to adequately fund regulatory infrastructure activities and 

increased staffing prior to receipt of new license applications. Provided 

that we receive sufficient resources and staffing levels are maintained 

and appropriate time is given to the agency to conduct its technical 

reviews and adjudications, we believe we can reach decisions on the 

relevant applications in a timely fashion, assuming high-quality license 

applications are received. 

 On behalf of the Commission, I appreciate the opportunity to testify 

today, and I look forward to working with you on this legislation, and I 

will take any questions you may have now. 

 [The prepared statement of Luis A. Reyes follows:] 

PREPARED STATEMENT OF LUIS A. REYES, EXECUTIVE DIRECTOR FOR OPERATIONS, U.S.

NUCLEAR REGULATORY COMMISSION

Introduction

Mr. Chairman and Members of the Committee, it is a pleasure to appear before you 

today to discuss the U.S. Nuclear Regulatory Commission’s (NRC’s) capability to 

regulate long-term and short-term spent nuclear fuel storage and disposal. Specifically, I 

plan to address some of the national spent fuel management strategies that are being 

considered in S. 2589, the “Nuclear Fuel Management and Disposal Act;” S. 2610, a bill 

“to enhance the management and disposal of spent nuclear fuel and high level radioactive 

waste, and for other purposes;” and Section 313 of H.R. 5427, the “Energy and Water 

Development Appropriations Act, 2007.” 

It is important to make clear at the outset that, because of the NRC’s role in the 

regulation of spent nuclear fuel and the potential application for a high-level radioactive 

waste repository at Yucca Mountain, Nevada, the Commission has not taken a position 

on most of the provisions in these legislative proposals. Therefore, I would like to focus 

on the impact the following proposals would have on the NRC. 

Interim Storage

Spent fuel storage and transportation are and can be accomplished both safely and 

securely, consistent with the current regulatory framework, regardless of the number of 

sites and their locations. The NRC has stated in its Waste Confidence Decision that, if 

necessary, spent fuel generated in any reactor can be stored safely and without significant 

environmental impact in its spent fuel storage pool or at either on site or off site interim 

storage facilities for at least 30 years beyond the licensed operational life of the reactor. 

In general, the Commission concluded that, if stored properly, spent fuel presents a low 

risk to the public during normal operation or under potential credible accident conditions 
21

and can be stored safely in either wet or dry storage systems without significant 

environmental impact for at least 100 years. 

It is important to note that the threat of sabotage has always been a factor in the 

design and licensing of spent fuel storage facilities. Following the September 11, 2001 

terrorist attacks, the NRC issued Orders to licensees to implement additional security 

measures, and undertook a comprehensive reassessment of the security of commercial 

nuclear facilities including those for spent fuel storage. Since 9/11, NRC has issued 

Orders to licensees to implement additional security measures. Dry spent fuel storage 

casks are robust structures, which are highly resistant to significant damage, and we are 

confident that storage of spent fuel in dry casks remains a safe and secure spent fuel 

management strategy. Spent fuel pools are strong structures constructed of very thick 

steel-reinforced concrete walls with stainless steel liners located inside protected areas. 

The NRC’s domestic safeguards program is focused on physically protecting and 

controlling spent nuclear fuel against sabotage, theft, and diversion. 

The NRC supports efforts to address interim storage issues in a timely manner. 

Nuclear power plants need to increase their spent fuel storage capacity to support plant 

operations. In order to maintain operational capability in the spent fuel pool, including 

full core off load capability, spent fuel must periodically be moved to dry cask storage. 

There are currently 43 licensed independent spent fuel storage installations (ISFSIs), and 

we expect in the next few years that this number will grow to over 50, as more power 

plants contend with filled spent fuel pools. The 43 current sites have successfully loaded 

and stored over 800 casks. An exceptional safety record has been achieved using dry 

cask storage technology. 

Safety and security are the key elements in a comprehensive spent fuel management 

strategy. We must also be cognizant of the need for efficiency and effectiveness in every 

element of spent fuel handling, storage, and transport systems. The NRC believes that 

instituting canister and infrastructure standards will make storage and transportation both 

safer and easier, facilitating interoperability among handling and loading activities at 

different reactors and ISFSIs. Standards will also improve the ease with which these 

activities can be licensed. Canister and infrastructure standards should be developed with 

input from industry, taking advantage of lessons learned from previous designs. 

The legislative proposal in H.R. 5427, as approved by the Senate Committee on 

Appropriations, includes new consolidation and preparation (CAP) facilities as part of a 

new national spent fuel management strategy. This proposal would significantly affect 

the NRC’s spent fuel storage oversight program and resource needs. Specifically, H.R. 

5427 calls for a high number of new storage facilities to be reviewed and licensed by 

NRC in a very short time span. Currently, the NRC has neither the monetary resources 

nor the necessary employee resources to support the technical review and adjudication of 

a large number of concurrent storage license applications as considered in H.R. 5427. 

Also, the time frames in the draft legislation, which must allow for license preparation by 

the applicant, environmental and safety reviews by NRC and completion of associated 

hearings before the Atomic Safety and Licensing Board Panel, are very short and likely 

not achievable. 

The NRC has reviewed the proposed legislation and believes that the existing 

regulatory infrastructure could accommodate the alternative approaches outlined in H.R. 

5427. Although the NRC believes that it may be able to review and license a large 

number of new facilities anticipated in H.R. 5427 concurrently, the following items 

would be necessary prerequisites for success: sufficient funding; receipt of complete, 

high-quality license applications; and considerably more time to review and adjudicate 

the applications. NRC believes that centralized storage or storage at multiple sites in 

different locations can be achieved safely, consistent with our regulatory system. One 

must approach spent fuel management as an integrated system, balancing the very small 

risks associated with storage and transportation components. The Commission is open to 
22

working with our stakeholders in support of a systematic and integrated approach that is 

safe, timely, and efficient. 

Transportation

The NRC believes that the current, well-established transportation regulatory system 

is protective of public health and safety. Spent nuclear fuel has been safely transported in 

the United States for more than 30 years. There has never been an accident involving the 

transportation of spent fuel resulting in a radiological release or death or injury from 

radiation. The National Academy of Sciences recently completed a three-year study that 

concluded that the radiological risks of spent fuel transportation are low and well 

understood and that the existing regulations are adequate to ensure safety. 

Any of the changes to a national spent fuel management strategy that are being 

considered (such as in S. 2589, S. 2610, and H.R. 5427) will involve shipping spent fuel. 

Federal regulation of spent fuel transportation is shared by the U.S. Department of 

Transportation (DOT) and the NRC. Generally, NRC does not regulate the U.S. 

Department of Energy’s (DOE’s) shipments of radioactive material; however, the 

Nuclear Waste Policy Act requires DOE to utilize NRC-certified casks for spent fuel 

shipments to a repository and to follow NRC’s advance notification requirements. The 

Commission has reviewed and certified a number of package designs which could be 

used to transport spent fuel. Provisions of S. 2589, S. 2610, and H.R. 5427 may affect 

the transportation roles of DOE and DOT, but do not appear to affect the NRC role to 

certify casks as specified in the Nuclear Waste Policy Act. Section 313(c) of H.R. 5427 

calls for licensing of DOE’s spent fuel shipments by NRC and DOT. This means that 

NRC’s physical protection requirements would be applicable to all of the DOE’s 

shipments of spent nuclear fuel, and to this extent H.R. 5427 will increase NRC’s 

responsibilities. 

The NRC believes that the existing transportation regulatory infrastructure can 

accommodate the various legislative actions being considered. The transportation 

aspects of the various options and facilities do not present new or inherently different 

technical challenges. New transportation packages will need to be designed and certified 

to address: DOE initiatives on transport, aging, and disposal canisters; new types of 

spent fuel; or existing spent fuel that is not covered by current designs. As with the other 

topics addressed in this testimony, the NRC’s ability to complete this work will depend 

upon sufficient appropriations and the submittal of complete, high quality applications. 

Disposal

The NRC understands the importance of addressing disposal of high-level 

radioactive waste in a manner that is both safe and timely. The NRC has a record of 

moving responsibly and promptly to meet its obligations under the Nuclear Waste Policy 

Act. To prepare for conducting an independent safety review of a Yucca Mountain 

application, the Commission continues to conduct pre-license application activities aimed 

at providing guidance so that DOE can provide a high quality application. NRC is 

confident that we will be ready to receive an application if submitted in 2008 as is 

currently proposed by DOE. We are also confident that we will reach a timely decision 

on the application provided that the application is complete and of high-quality. 

The NRC offers the following comments on provisions in the proposed legislation, 

S. 2610, that could affect the timing of the NRC’s review of a DOE application for an 

authorization to receive and possess spent nuclear fuel and high-level radioactive waste at 

Yucca Mountain. The proposed legislation would require the NRC to reach a final 

decision on receipt and possession within one year (with the possibility of a six-month 

extension). This proposed requirement does not give the NRC sufficient time to 

complete its necessary proceedings. First, the NRC cannot complete both its safety 

review and the adjudicatory proceeding in one year. In particular, NRC will need to 
23

conduct a hearing. Even under the informal hearing process proposed in S. 2610, the 

NRC would need to adjudicate issues raised by participants that are admitted as 

contentions by the licensing board. It is difficult to predict the amount of time it will take 

to complete the review and adjudicate issues in controversy without knowing the scope 

and number of issues that will require adjudication as well as the number of parties 

involved. Second, the proposed legislation’s provision regarding surface facilities could 

be read to provide for staged consideration of surface facilities. In this case, the NRC 

would review certain facilities during the construction authorization phase and other 

facilities during the later receipt and possession phase. Facilities that otherwise could 

have been reviewed in the construction authorization phase might be shifted to the receipt 

and possession phase, increasing the scope of review for that phase despite the reduced 

time allowed for that review. 

S. 2589 and S. 2610 also contain a provision requiring the NRC, in deciding whether 

to permit the construction or operation of a nuclear reactor or any related facilities, to 

deem, without further consideration, that sufficient capacity will be available in a timely 

manner to dispose of spent nuclear fuel and high-level radioactive waste. H.R. 5427 

contains a similar provision. The NRC does not object to these provisions of the 

legislation. 

Conclusion 

The NRC fully understands the importance of addressing the storage, transportation 

and disposal of high-level radioactive waste in a systematic and integrated manner that is 

safe, timely, and efficient. We would urge the Congress to assure that sufficient 

appropriations be made available to adequately fund regulatory infrastructure activities 

and increased staffing prior to the receipt of license applications initiating licensing 

activities. Provided sufficient resources and staffing levels are maintained and 

appropriate time is given to the Agency to conduct the necessary technical reviews and 

adjudications, we believe that we can reach decisions on the relevant applications in a 

timely fashion, assuming high-quality license applications are received. 

We appreciate the opportunity to testify today and look forward to working with you 

on this legislation. 

 MR. HALL. We thank you, Mr. Reyes. Mr. Sproat, are you familiar 

with the concept called adaptive staging by the National Research 

Council? 

 MR. SPROAT. I haven’t read the report, Mr. Chairman, but I am 

aware of the concept and have done some reading about how other 

countries have utilized or are thinking of utilizing a concept like that. 

 MR. HALL. Are you in position to maybe give us a good idea of how 

it could be applied to the Yucca Mountain program? 

 MR. SPROAT. It is interesting, Mr. Chairman. When I was in front 

of this committee about 5 years ago when I was still with Excelon, 

somebody asked me a question very similar to that in terms of how do 

you think the licensing process for Yucca Mountain should proceed, and 

my thoughts on that haven’t really changed very much since then. The 

way the current licensing process for Yucca Mountain exists under 10 

C.F.R. Part 63, it is a multi-step process that requires a construction 

authorization first, an operating license second, and then a decision that 

actually permanently closes the repository, third. 
24

 Unfortunately, the way Part 63 is written right now all of the 

requirements that the repository has to meet including how it needs to 

perform up to a million years into the future, depending how the EPA 

standard is resolved, all of that analysis has to be shown, reviewed, and 

verified prior to receipt of a construction authorization. As Chairman 

Barton, I believe, said earlier this afternoon, we are going to know a heck 

of a lot more about the mountain, how it reacts, about new technologies 

that we haven’t even thought about 50 years from now, 75 years from 

now, than we do now. 

 So, it makes sense to me that we take a similar approach here. 

Unfortunately, as 10 C.F.R. Part 63 is written right now, it really is a 

very front-end loaded process. And just to give you an example, in Part 

63 there are criteria along the different steps of the process that the 

Commission needs defined before they can make a decision. 

Unfortunately, in Part 63, for the decision to close the repository, there 

are actually no acceptance criteria for the Commission to find have been 

met before they make a decision to close, and so it is left undefined in the 

current regulatory process. 

 MR. HALL. What would it take for DOE to implement the concept if 

you have gone that far into it? 

 MR. SPROAT. Well, we couldn’t implement a concept ourself. It 

really is the NRC’s regulations under 10 C.F.R. and in this case it is 10 

C.F.R. Part 63 as it is currently written. It is the regulatory construct for 

licensing Yucca Mountain, and that regulatory framework would have to 

be changed. 

 MR. HALL. And how would it impact the repository schedule and 

resources just in your opinion? 

 MR. SPROAT. I guess it is too early for me to be able to answer that 

question. It would really depend on how it would change. 

 MR. HALL. Mr. Reyes, in the industry’s testimony they indicate that 

the interim storage could be licensed expeditiously. How many licenses 

has the NRC issued for away from reactor independent spent fuel storage 

installations? 

 MR. REYES. There has been only one facility that has been licensed 

away from reactors. 

 MR. HALL. How long did that take? 

 MR. REYES. It took us about 8 years from application to final issue 

of the license. 

 MR. HALL. What do we have to hope for and to look to in future 

issuances? 

 MR. REYES. We could expedite the process. This particular 

example, the application was changed by the applicant several times, so 

there were hearings that required a lot of work by the staff, so we hope 
25

we could do it in a faster way but with only one example it is hard to 

know how long it will take us. 

 MR. HALL. What is a reasonable explanation for it taking that long? 

 MR. REYES. Well, I mentioned in my testimony emphasis on highquality applications. That particular application, the design was changed 

through the process, and the hearings identified technical issues that 

needed to be pursued. We think a facility away from a reactor that has a 

good application, 2 years perhaps with an extension of 6 additional 

months would be sufficient. 

 MR. HALL. I think my time expired. I recognize Mr. Boucher. 

 MR. BOUCHER. Thank you very much, Mr. Chairman. I want to also 

thank both of our witnesses for their testimony today. And, Mr. Sproat, 

again let me say how much I admire your determination and confidence 

to move this program forward. Along with others who have spoken from 

this panel, I also strongly support the Yucca project and wish you well 

and offer you assistance as you move the project forward. When do you 

think you will have your funding schedule to be submitted to us? 

 MR. SPROAT. I believe it should be very close--no later than the 

beginning of November. It should be around the end of October because 

we have it basically built now, but we are bringing in an outside, 

experienced company to do an independent review of our construction 

schedule, the cash flows associated with it so when we give you 

something that is more than just DOE saying here are the numbers. 

 MR. BOUCHER. That is a timely submittal, and we will certainly 

look forward to receiving it and reviewing it, and then having further 

discussions with you. I noted your support in your testimony for the 

Administration’s bill that has been put forward, and I also find most of 

the provisions in that measure to be constructive, but I want to ask you 

questions about two of the provisions of the bill. One thing the bill does 

not do is protect the $19 billion corpus that is currently in the Nuclear 

Waste Fund, monies that have been paid into the Fund to date and not 

appropriated for the Yucca Mountain project. 

 So my question to you is this. Can you build the Yucca Mountain 

project and have it open by 2017 only using the prospective payments of 

about $750 million annually that will be coming into the Fund? Over the 

10-year period between now and 2017 that is about $7.5 billion. Is that 

going to be enough for you to build Yucca Mountain? 

 MR. SPROAT. Well, we don’t have the final cash flows yet, but to 

maintain that best achievable schedule that we put out, where we would 

be both building the repository and building the transportation 

infrastructure, particularly the rail line, it is highly likely that we will 

exceed that amount in certain peak years of funding probably, but I 
26

wouldn’t expect to reach that peak funding profile for probably about 

another 10 to 11 years from where we are right now. 

 MR. BOUCHER. Well, you are supposed to have it open 10 years 

from next year and so at some point surely short of 10 years from now 

you would reach a peak funding profile. 

 MR. SPROAT. You are correct. I am wrong in that number. I got the 

math wrong. It is probably closer to 6 to 7 years out in terms of where 

that peak funding would occur. 

 MR. BOUCHER. Okay. So what you are saying is you are going to 

need some of this $19 billion that is within the corpus of the Fund itself. 

If the Administration’s bill doesn’t protect that money, what is your 

solution to that going to be? 

 MR. SPROAT. Well, I am not sure if it doesn’t--I certainly can’t 

address whether it protects it or not. I know there have been an awful lot 

of discussions and a lot of--at least within the Department we believe that 

there are a number of things that we can’t use that fund for and so, from 

my perspective, I believe the Fund is protected. 

 MR. BOUCHER. Mr. Sproat, there is nothing in the legislation that 

would require that these monies be set aside and reserved exclusively for 

the Yucca Mountain program and therein lies the basic problem. And so 

based upon the testimony that I am hearing today, I think we can 

probably anticipate you coming to the Congress and asking not only for 

the $750 million that will flow prospectively into that fund for your 

Yucca Mountain project, but also general appropriations on top of that. 

 MR. SPROAT. For the next--between now and the time we reach 

submittal of the license application in the next 2 1⁄2 years, the request that 

we proposed in the legislation for access to the annual receipts will be 

enough to get us through license application submittal for sure. At some 

point in time after that--and once I get the cash flows completed, I will 

be able to tell you with much more certainty exactly when--that amount 

of required funding would be exceeded. 

 MR. BOUCHER. All right. Well, fair enough, and this is a subject to 

be continued, but let me simply reiterate our concern that the legislation 

does not protect this $19 billion and assure that whatever portion of it 

you have to have you actually can get at the time that you need it. The 

second issue that I want to raise with you is that provision of the 

legislation that would essentially deem that there is sufficient capacity at 

Yucca Mountain to give waste confidence with respect to the opening of 

new nuclear plants in the United States. 

 I ask these questions from a perspective of one who supports the 

opening of new nuclear power plants. I think this has to be a part of our 

energy mix going forward, and additional nuclear power helps us with 

energy independence issues and with global warming concerns, and a 
27

range of other policy objectives, and so I think it is necessary. I am a 

little bit concerned, however, that the legislation says that we as 

Congress will simply make what is a technical determination that there is 

sufficient capacity at Yucca to accommodate all of the waste that will 

flow from newly licensed facilities. 

 This is a decision that the NRC has the authority to make and has 

historically been making, and in fact has already, I am told, found from a 

technical standpoint that there is sufficient capacity up until the year 

2025, and the NRC has continuing authority to adjust that estimate and 

make additional findings as events warrant. Why is not that ability of the 

NRC to make these determinations sufficient? Why are nuclear 

generating companies not likely to get through a licensing process in the 

absence of Congress actually making a factual determination that I 

frankly think we can’t make with regard to deeming sufficient capacity? 

 MR. SPROAT. That is a very good question. I am not sure the 

concern is quite as limited to the issue of is there capacity in Yucca 

Mountain. I think it is a little bit broader issue in terms of do we as a 

country have reasonable assurance that we have a path to dispose of or 

otherwise utilize our spent nuclear fuel coming out of our nuclear fleet. 

One of the things that is different today than where we were a year ago, 

with this issue is that we have as an Administration policy, said we are 

going to move forward with GNEP and with closing the fuel cycle. 

 Now there are a lot of questions around exactly the time line for that, 

how long that is going to take to proceed. But what we are arguing is 

that given that we have made a decision that we are just not going to take 

all fuel and put it in the ground forever, and that given the progress we 

are making and the schedules we have set for moving Yucca Mountain 

forward, there is a reasonable amount of data there for the Congress to 

make a determination that, in terms of a national level determination on 

waste confidence, do we have a good idea--do we have confidence that 

we know what we are going to do with spent nuclear waste? We think 

the answer is yes. The question of capacity of Yucca Mountain is a little 

bit, at least the way I view it, is a little bit of a separate issue of the 

70,000 metric ton limit and getting that lifted. 

 MR. BOUCHER. Okay. Well, let me turn to Mr. Reyes, and ask you a 

couple of questions about the idea of interim storage. In your statement 

you say that you support efforts to address interim storage generally. 

You also say that it could be accommodated within your regulatory 

structure, but you also say that you do not have the financial resources or 

the human resources with which to implement a regulatory program for 

interim storage, and so what you are basically saying is you can do it but 

you would have to have the money to do it with. 

 MR. REYES. That is correct. 
28

 MR. BOUCHER. Have you received any kind of assurance from shall 

we say the sponsors of this provision and the Senate appropriations bill 

that would mandate an interim storage program that you are going to be 

appropriated the money in order to carry this forward? 

 MR. REYES. We have had no discussions on that subject so we have 

no information regarding our budget, but we would have to receive 

appropriations or budget starting in fiscal year 2007 based on the 

proposed schedule. 

 MR. BOUCHER. So you would actually have to have money next 

year and we are now debating the FY 07 appropriations bills. We are in 

the season for doing that. Do you see anywhere in any of the various 

appropriations bills an appropriation that would give you the money you 

need to do this in FY 07? 

 MR. REYES. There is a discussion of a very modest amount, but let 

me give you how much of an impact this could be. If you end up with 

30, some away from reactor facilities that have to be licensed in a short 

amount of time, you are talking in the order of $300 million and a couple 

hundred FTE, full-time equivalents, so that in that worst case scenario 

there is a very significant impact. 

 MR. BOUCHER. Is there anything in any of the appropriations bills 

that would even get you started with this? 

 MR. REYES. No. 

 MR. BOUCHER. No. All right. Thank you, Mr. Reyes. Thank you, 

Mr. Chairman. 

 MR. SHIMKUS. [Presiding] I always enjoy Mr. Boucher and his 

great questions. I would like to now recognize the doctor from Georgia, 

Dr. Norwood. 

 MR. NORWOOD. Thank you very much, Mr. Chairman. Mr. Sproat, 

I am glad to see you back. We had you, I think, in July. 

 MR. SPROAT. Yes, sir. 

 MR. NORWOOD. You had been on the job about 3 weeks at the time. 

I am wondering how you feel about it now. 

 MR. SPROAT. Even better. 

 MR. NORWOOD. Are you as positive now that you will be able to 

open Yucca Mountain by 2017? 

 MR. SPROAT. As I said in the beginning of my opening statement, if 

I can get this legislative package that we have sent up here to the Hill to 

address some of these key issues around some of the issues that we need 

to get fixed around Yucca Mountain, my answer is yes. 

 MR. NORWOOD. You heard Chairman Barton talk about the interim 

storage. You are going to have to put it at Yucca to get it through this 

committee. I just want you to know. We can probably go along with a 

lot of the stuff that you want to do in there, but I don’t think you are 
29

going to find us very willing to store it around the country on an interim 

basis. 

 MR. SPROAT. Well, just for clarification the Administration has not 

proposed that, sir. 

 MR. NORWOOD. Yeah, but I know who did. Let me ask you if I 

may, have you had any time to look back or ask any questions over at the 

Department of what they have been doing the last 10 years? 

 MR. SPROAT. Yes, I have, sir. 

 MR. NORWOOD. I mean it borders on criminal, I think. How much 

money have we spent on Yucca in the last 10 years, do you know that? 

 MR. SPROAT. I don’t have the exact numbers. 

 MR. NORWOOD. When you all look it up, tell him, then he can tell 

me. 

 MR. SPROAT. Around $9 billion. 

 MR. NORWOOD. Nine billion dollars. Almost a billion a year. 

 MR. SPROAT. Yes. 

 MR. NORWOOD. And what have we gotten for that? 

 MR. SPROAT. We have a lot of scientific information and 

understanding of the mountain, of its geology, how it developed in the 

past and how we expect it to perform in the future, and we have a draft 

license application and a first cut at design of the surface facilities that 

quite frankly weren’t adequate to docket the license application back in 

2004. And so we are fixing the inadequacies in terms of that surface 

design and in terms of the further analysis of the mountain and how it is 

going to perform, or at least how we project it to perform out in the--not 

only beyond 10,000 years but out to a million years, which is what the 

current EPA draft standard requires us to do. So there is a lot of analysis 

still being done with that scientific data that has been collected over 

those years to put together that license application that I need to send to 

the NRC in 22 months. 

 MR. NORWOOD. My questions are based on a thought that keeps 

running through my head. The American people built the Pentagon in 16 

months. We have spent $10 billion in 10 years and now we are saying 

we have got to have 10 more years to keep doing analysis. Does that 

bother you any or is it just me? 

 MR. SPROAT. No, no, it would certainly bother me, and let me just 

clarify we are certainly not going to spend the next 10 years doing 

analysis. What we are doing now is design and the actual completion of 

the license application based on the analyses that have been done. And 

then we are going to spend the next at least 4 years defending that license 

application through the NRC licensing process. 

 MR. NORWOOD. Four years, Mr. Reyes? He got to spend 4 years 

over there defending his application? 
30

 MR. REYES. I think the legislation called for 3 years, but you have to 

remember there will be a lot of hearings involved in this process so it is 

more than a technical review. We have to defend our decision that it is 

technically sound which we are ready to do upon the application but it 

does take time, sir. 

 MR. NORWOOD. So we could build two Pentagons by the time he 

defends his application. I mean something is wrong with this basically 

that we can’t be a little more efficient. I have no idea what you do over 

there. I have no idea what the rules are. All I know is that that is an 

inordinate amount of time. Didn’t you just say earlier that a year and a 

half--I am sorry I didn’t hear all of it, but you said something to the 

effect that a year and a half wasn’t going to be near enough time for you 

to do something. 

 MR. REYES. This is a license for a facility for interim storage away 

from a reactor. 

 MR. NORWOOD. So you want 2 1⁄2 years to do that? 

 MR. REYES. Yes. 

 MR. NORWOOD. Mr. Chairman, I can’t do anything. I yield back. 

 MR. SPROAT. Mr. Norwood, if I could just clarify. 

 MR. NORWOOD. Yes, sir, Mr. Sproat. 

 MR. SPROAT. The cost numbers, that was $10 billion over the life of 

the program, not $10 billion total cost over the last 9 or 10 years, so I just 

wanted to clarify that. 

 MR. NORWOOD. Thank you, Mr. Sproat. 

 MR. SPROAT. It doesn’t make it any better. 

 MR. NORWOOD. No, it doesn’t. And I am counting on you. You 

come from the real world. I am counting on you to get this done and I 

am sure you can get it done before 2017. 

 MR. SPROAT. I will do my best. 

 MR. NORWOOD. Thank you, sir. 

 MR. SHIMKUS. The gentleman yields back. The Chair recognizes 

Dr. Murphy from Pennsylvania. 

 MR. MURPHY. Thank you. Mr. Chairman, and thank you both for 

being here. I wanted to follow up on some of these aspects too in terms 

of these other sites because I recognize we are trying to balance our 

needs to build more nuclear power plants and also dealing with this spent 

fuel. For example, on these temporary sites will they all be the same size 

or different sizes, and how much would each one cost? 

 MR. REYES. Well, the States will have to decide where they will 

have to put the interim locations and you have a lot of combinations. 

You have States which have operating reactors and licensed storage 

facilities at the reactor. You have States that have no reactors but do 

have storage facilities because there used to be an operating reactor there. 
31

So under the bill, as I understand it, the States will have to make a 

decision where to put the interim storage. 

 MR. MURPHY. But how much will each one of these facilities cost? 

 MR. REYES. I can only give you the review cost through the 

licensing process. I think the industry would be in a better position to 

talk about the cost of building it. 

 MR. SPROAT. I am probably the only one in the room that actually 

was involved with designing and constructing an interim spent fuel 

storage facility, but that was at a reactor so it was on land we owned and 

from the time we decided to do it to the time we actually completed 

construction was probably in the neighborhood of about between 5 and 6 

years; but that was a relatively simple approach compared to what we are 

talking about here, where it is away from reactors. They have to do an 

environmental impact statement. You have to have control of the land. 

It is more than just designing it and licensing the interim storage facility 

itself, which is pretty straightforward. It would obviously depend on the 

size, but you are talking at least, at least, $15 million a piece and that 

may be low depending on the amount of litigation and licensing time and 

processing time to finally get approval to actually build it. 

 The cost to build these by themselves is not that significant. It is 

basically a concrete pad with a fence, multiple fences, security systems 

around it, and the infrastructure to bring the spent fuel casks to the pads 

so the construction itself of the facility is not that-- 

 MR. MURPHY. The facility would have to be pretty secure in terms 

of bomb proof? 

 MR. SPROAT. The design bases for those facilities, at least the ones 

we built, I would not classify them as bomb proof but in terms of what 

the design basis threats are, I can’t talk about those. 

 MR. MURPHY. Basically similar to what we have at nuclear power 

plants? 

 MR. SPROAT. Yes. 

 MR. MURPHY. But you are saying it would be $15 million. How 

many years would it take? You said 5 or 6 years? 

 MR. SPROAT. Actually the critical path on building a facility away 

from the reactor would be the siting process, both the environmental 

impact statement and whatever litigation would be associated with the 

environmental impact statement and the NRC licensing process. Once 

you have that, the actual construction itself assuming the transportation 

infrastructure, was relatively simple. You could probably do it in a year, 

a year and 18 months. 

 MR. MURPHY. Construction in a year and 18 months. 

 MR. SPROAT. Yes. 
32

 MR. MURPHY. And all the other processes could add another 5 or 6 

years to that? 

 MR. SPROAT. Yes. 

 MR. MURPHY. If we have 5 or 6 years worth of helping attorneys 

and engineers and then a year and 18 months of actually building it, and 

yet the actual use of Yucca Mountain is 10, 11 years away, that seems 

pretty close, and we would spend several billion dollars along the way to 

build these interim facilities. 

 MR. SPROAT. That is the conclusion I drew. I think the last time I 

was here the committee asked me that exact same question, and that is 

what I said. It is pretty close time-wise, depending on how these interim 

storage facilities are sited and where they are sited, and the amount of 

time it takes to actually get a license to build them. 

 MR. MURPHY. So in closeness of time wise, and this is an issue I 

remember coming up before, and I am wondering if we have changed 

much, and that is it will cost us a lot of money. They will be ready just 

before Yucca Mountain will be opening anyway and so why are we 

doing this? I guess that we all--that is the question. 

 MR. SPROAT. That is a valid question. 

 MR. MURPHY. And do we have an answer? Will we have one today 

on that? 

 MR. SPROAT. I don’t. 

 MR. MURPHY. Okay. On that point, I don’t have any more 

questions either. 

 MR. SHIMKUS. The gentleman yields back his time. The Chair 

recognizes the gentleman from Texas, Mr. Green. 

 MR. GREEN. Thank you, Mr. Chairman. I want to follow up my 

colleague from Pennsylvania because that is my concern. And I have a 

district in Houston and we benefit from having a small portion of our 

electricity generated by nuclear power, and I think in our country we 

know that we have to have lots of ways to heat and cool our homes and 

nuclear power has to be an increasing use of it. My concern is that if we 

follow the path of Senate appropriations and we build this interim facility 

for nuclear waste, will that facility likely hold all the nuclear waste that is 

currently being stored at our own site power plants? Is that interim 

possibility, will it store what we have at South Texas or Glenrose in 

Texas or elsewhere? 

 MR. SPROAT. I am not sure, as I read the appropriations bill 

language from the Senate, I don’t believe it is that specific in that it 

specifies sizes or locations. It gives a broad direction in terms of a 

number of potential, up to a certain maximum number, sites to be 

funded. It would depend on each State. As I understand the proposal, it 

would depend on each State to determine location and size of those 
33

facilities. Now one of the things I would clarify is that even if interim 

storage facilities are built, they would be built to handle spent fuel that 

has already come out of spent fuel pools at reactors and put into casks so 

they would strictly be dry storage in cask facilities. We would still have 

spent fuel at the reactor sites in the spent fuel pools. 

 MR. GREEN. But that is--I understand that because that was stated 

anyway. Does your office have the resources and ability to begin work 

on new interim storage facilities without losing the focus on the progress 

on Yucca Mountain? 

 MR. SPROAT. Not at the current time. 

 MR. GREEN. So you would need more resources. Since it would be 

difficult to pursue two nuclear storage projects at once, do you believe 

the effort behind this recent interim storage legislation is an intentional 

effort to delay or kill Yucca Mountain? 

 MR. SPROAT. I really have no opinion on that. I can’t speak to that, 

sir. 

 MR. GREEN. Mr. Reyes, if Congress and DOE go down the path of 

limiting the amount of interim storage capacity and progress on Yucca 

slows or halts, what will be the impact when you are reviewing 

applications for new reactors to new or existing nuclear power plants? 

 MR. REYES. The Commission has stated that we believe there is a 

confidence and solution to the waste would be obtained in this country so 

it would not have an immediate impact on the new license application 

but I think if you talk to the industry in their mind they want more 

confirmation than that before they invest money, so I think it is a 

decision from the private industry that it is looking for more 

confirmation that there is a final solution. 

 MR. GREEN. Both TXU and NRG Energy have announced plans to 

expand ours we have in Texas, and again we have to have lots of 

different ways to heat and cool our homes so both in South Texas and 

Comanche Peak. Can they go forward with their plans without Yucca 

Mountain on track? 

 MR. REYES. Yes. They can go forward. I think as a business 

decision you have to wonder if that is a good decision, but technically we 

can review and issue a license for new applications without having the 

issues that we are discussing fully resolved, but it raises a question with 

the industry as committing the resources, whether that is a good business 

decision. 

 MR. GREEN. Well, again, if we don’t have nuclear then we are going 

to see even more coal-fired plants. That may be okay for some parts of 

the country but some folks in Texas would rather not have that type of 

coal, and nuclear is a non-polluting substitute although again in Texas we 
34

like to use natural gas, but since we are still worried about our chemical 

industry we don’t want to compete with that. 

 MR. MURPHY. We like coal in Pennsylvania. It is a nice thing. 

 MR. GREEN. I imagine you all like coal in Pennsylvania. We used 

to like natural gas until we almost were running out. Thank you, Mr. 

Chairman. 

 MR. SHIMKUS. Thank you. I recognize myself for a couple minutes. 

Mr. Sproat, how many of our nuclear facilities are almost at maximum 

capacity of their interim storage on site, do you know that? In the energy 

bill there was a couple that we were at risk of having to make that tough 

decision of closing because they had no place to then move because they 

are almost at max capacity. Do we know that number? 

 MR. SPROAT. Just so I am clear, Congressman. Is your question 

around maximum capacity in their spent fuel pool or their interim storage 

facilities? 

 MR. SHIMKUS. Well-- 

 MR. SPROAT. Let me try and answer your question the best I can 

without--because I don’t know the exact numbers. But, for example, the 

plant that I was directly involved with licensing, building, and running, 

Limerick is currently going through--its spent fuel pool is going to be full 

within the next 24 months. Limerick Unit One came on line in 1984 and 

Limerick number two came on line in 1987 or 1988. So that kind of 

gives you an idea after plants have been on line between 15 to 16 years is 

when their spent fuel pools are becoming full. At that point in time they 

need to have an interim spent fuel storage facility licensed on site and 

ready to start unloading their fuel pools and putting those fuel bundles in 

their casks. 

 MR. SHIMKUS. Let me ask, when was the last nuclear power plant 

built in this country because you are talking about 20 years so when was 

the last-- 

 MR. REYES. The last one licensed was in 1996 but that plant took a 

long, long time to construct. 

 MR. SHIMKUS. So there are probably about 42 sites that have dry 

cask storage. 

 MR. REYES. The issue I think if I could form the issue a little 

different, there is no limit to dry cask storage at the site, but it is a large 

investment. If you are operating the facility and you don’t see a final 

solution in the horizon you want to have the capability to unload the fuel 

from the reactor for maintenance and repairs, et cetera, et cetera. You 

want to keep that flexibility. So because there is no final solution on the 

horizon you could continue to invest in dry cask storage. It is a large 

investment. It has to be reviewed by the NRC. It takes several years to 

go through the environmental review process and the safety process so it 
35

is a never-ending process where the industry pays to the Nuclear Waste 

Fund, and in addition to that they have to pay to-- 

 MR. SHIMKUS. They are paying twice. 

 MR. REYES. They are paying twice. They pay for our-- 

 MR. SHIMKUS. With no assurance of any final solution as to the 

promise the Federal government made years ago. 

 MR. REYES. That is correct. 

 MR. SHIMKUS. And that is what those of us who support moving 

sooner rather than later has tried to get additional risk off because we do 

believe that nuclear power ought to have a role. Again, I would say 

because I am from a coal State too, a diversified portfolio, that we are 

competitive, and it addresses a lot of the concerns. In the bill, not in the 

proposed changes, we have been talking about the 70,000 metric tons. 

That was established by the-- 

 MR. SPROAT. Nuclear Waste Policy Act. 

 MR. SHIMKUS. By legislators. 

 MR. SPROAT. That is correct. 

 MR. SHIMKUS. We said that amount. 

 MR. SPROAT. Yes. 

 MR. SHIMKUS. And I think part of the problem that sometimes we 

have here is--again that was guys like me, a MVA military guy, former 

high school teacher, no real--there wasn’t any--we didn’t do any 

scientific analysis to say 70,000 metric tons, did we? 

 MR. SPROAT. Not that is apparent to any of us, no. When the 

environmental impact statement for Yucca Mountain was done, it was 

analyzed for 120,000 metric ton capacity; so we have already analyzed 

the environmental impact of storing up to that much in the mountain. 

What we are asking for in the legislation is that as part of the licensing 

process, let us do analysis presented to the NRC and let the NRC license-

- 

 MR. SHIMKUS. You are proposing that we actually use science to 

maybe make the debate of what should be stored t there? 

 MR. SPROAT. Well, that and engineering too. 

 MR. SHIMKUS. And engineering too. Good. And I would obviously 

agree with you. I think there is some outside analysis that says that there 

could be more than 70,000 metric tons. Obviously, there has to be a lot 

more research, but that would address this second debate which it is 

going to force your hand should we not do anything which then as Dr. 

Norwood said would be more money, more time. And I think one of the 

reasons why we dipped in to the Federal policy makers have used the 

funds, and it depends on how you talk about budgeting and trust funds 

and where are the dollars really going because we haven’t set a secure 

policy to even convince ourselves that we are going to build Yucca 
36

Mountain, hence, we can rob and use these other dollars or forestall the 

tough decisions on spending until we actually see some positive 

movement that we are going to have to spend these dollars. 

 I would say it is partly the fault of Federal legislators for not being 

aggressive and being committed because there is a delay aspect here that 

a lot of people would like to see to stop progress. So my time has 

expired. The Chair recognizes my colleague and friend from 

Massachusetts, Mr. Markey. 

 MR. MARKEY. I thank the gentleman very much. Mr. Reyes, a 2005 

National Academy of Sciences report found that “Under some conditions 

a terrorist attack that partially or completely drained a spent fuel pool 

could lead to a propagating zirconium cladding fire and the release of 

large quantities of radioactive materials to the environment.” We know 

that Al Qaida wants to do that if they can get away with it, hijack a plane, 

a small plane, and dive bomb into one of these facilities without a 

containment dome around it. The National Academy concluded that it 

would be feasible to reduce the risk of a spent fuel fire by rearranging the 

spent fuel in the pool so that hotter fuel assemblies weren’t so densely 

packed together. 

 My understanding is that doing such rearranging would not take 

much time or cost much for the licensees to do. Has the NRC ordered its 

licensees to take this step or begun a rulemaking to require that it be 

done? 

 MR. REYES. All the fuel has been changed accordingly so instead of 

waiting for Federal processes the utilities understood the 

recommendation from the National Academy of Science and those pools 

today reflect that approach. It is called a checkerboard approach where 

you allow for the heat dissipation to be maximized. 

 MR. MARKEY. And that is now the policy of every single nuclear 

power plant in the United States? 

 MR. REYES. That is correct. 

 MR. MARKEY. Does that include all of the nuclear power plants that 

are retired as well? 

 MR. REYES. They have a different issue there. For example, if you 

think a facility that has been retired for over 10 years the cooling is at 

such a point that the academy did not address those because the heat 

dissipation is not relevant to the issue. 

 MR. MARKEY. Mr. Reyes, the National Academy also recommended 

other measures to better secure spent fuel pools from terrorist attacks. 

Those included, one, limiting the frequency of off loads of full reactor 

cores into spent fuel pools, two, requiring longer shut downs of the 

reactor before any fuel is off loaded, three, providing enhanced security 

when such off loads are made, and, four, development of a redundant and 
37

diverse response system to mitigate loss of pool coolant events that 

would be capable of operation even if the pool or overlying building 

were severely damaged. Has the NRC fully implemented each of those 

recommendations as well? 

 MR. REYES. Most of those recommendations have been 

implemented. In fact, in some cases they have been enhanced. 

 MR. MARKEY. Which of these have you not implemented? 

 MR. REYES. The particular one about enhancing security during 

some of the transfers because the security is already there so I think 

when they wrote--the academy report is kind of dated. We have taken a 

lot of action since then, but if you take the essence of the 

recommendations, we have acted on all of them. 

 MR. MARKEY. Thank you. Thank you very much. Mr. Sproat, on 

August 16, 2006, the Department’s Inspector General issued a report on 

the Office of the Civilian Radioactive Waste Management’s corrective 

action program. This report found that your office has not been 

effectively managing and resolving conditions adverse to quality at the 

Yucca Mountain project, specifically the DOE Inspector General found 

“over 100 potential conditions were not being managed in the corrective 

action program which should have been. More than half of the 

significant planned corrective actions had not been implemented in a 

timely manner, and corrective actions were not always effective and that 

conditions continued to recur even after management reported that 

appropriate corrective actions had been taken.” 

 This DOE IG report is a blistering indictment of your office’s 

management and oversight over the Yucca Mountain project, and it is 

only the latest of a series of critical reports revealing real problems at the 

Yucca Mountain project. Just last January the NRC blasted Bechtel for 

measurements that they were making in corrosion. We could go down 

the list. In light of the ongoing problems with your existing program and 

the clear problems in the Department’s management why should this 

committee enact the Administration’s proposed bill to further weaken 

environmental and procedural protections aimed at protecting the 

environment and insuring a sound scientific and technical evaluation of 

the site and its ability to be licensed by the NRC? 

 MR. SPROAT. Congressman, first of all, I would say that I would 

disagree with your characterization of the proposed legislation as a 

weakening of the oversight. What we are trying to do is very clear about 

NRC’s maintaining their oversight and control of the licensing process 

for Yucca Mountain. 

 MR. MARKEY. You want to exempt Yucca from RCRA, preempt 

State environmental and public safety laws, deem that waste confidence 

exists where it does not, and allow for construction to begin before all 
38

licensing questions are addressed. Why should we grant you all of those 

additional authorities, exemptions, from a process that already apparently 

doesn’t work and further weaken what little public safety and public 

participation already exist? 

 MR. SPROAT. Well, how I view the issue that you raise, 

Congressman, which is a very valid issue, around the effectiveness of the 

corrective action process and the quality processes within this project 

over its life, I acknowledge that those problems have existed in the past 

and still exist to some extent today. And what I am here to tell you is 

that I am personally invested and involved in fixing them. And the 

corrective action program, I have been on the job now for 10 weeks. I 

have been personally involved with meetings on that to get it fixed and 

fixed right. 

 MR. MARKEY. And that is good, and I think what you should do is 

honestly, and I appreciate the difficulty of your job after only 10 weeks, I 

think that we should have this hearing after you fixed all the problems. 

Then we should come back and talk about what additional legislative 

authority we are going to give you. But I think it would really be a 

mistake for this committee to know that there is an incredible boostering, 

scalding indictment of existing management of policies and then to give 

even further latitude to this agency. 

 And so that would be my point to you, sir. You didn’t create the 

problems, but we have to see how good a job you do in cleaning up the 

mess. 

 MR. SPROAT. I understand. 

 MR. MARKEY. And you can’t tell us right now that with 100 percent 

confidence you are going to be able to do that. So I think that we should 

wait to be honest with you. It would be the prudent way to go. And that 

we should deal with these issues in a way that reflects the seriousness of 

the problem that exists right now. The DOE corrective action program is 

akin to the Holy Roman Empire. It wasn’t holy, it wasn’t Roman, and it 

wasn’t an empire, and you can say the same thing about a DOE 

corrective action program. They just don’t exist as they have been 

examined by the Inspector General, and I think that we should take that 

into account before we move forward. And I thank you, Mr. Chairman, 

for your indulgence. 

 MR. HALL. The Chair recognizes Mr. Barton. 

 CHAIRMAN BARTON. I am certainly willing to yield to Mr. Otter, 

who has been here the entire time. 

 MR. OTTER. I just got back. 

 CHAIRMAN BARTON. Oh, you just got back too. I don’t mind going 

ahead of you then. 
39

 MR. OTTER. I just wanted to say that it wasn’t until the Government 

of Rome got so big that it was no longer an empire. I yield back. 

 CHAIRMAN BARTON. Mr. Hall, I just have one basic question. I 

have introduced at the Administration’s request the Yucca Mountain bill, 

and I would like to ask Mr. Sproat how the Senate Energy and Water 

appropriations line on interim storage would impact their proposal for 

Yucca Mountain. 

 MR. SPROAT. At this stage of the game, Congressman, I don’t see 

that proposal having a direct impact on this legislation. I was asked a 

question earlier as to whether or not if that legislation was passed as is, 

appropriations language was passed as is, do I have the resources 

available to me right now to execute that as well as Yucca Mountain. 

My answer is no. That is probably the best answer I can give you. 

 CHAIRMAN BARTON. Then it has to impact it. I don’t see the House, 

Mr. Hobson on the appropriations process or myself as the authorizing 

Chairman saying we will take the money for Yucca and spend it on 

interim storage. I don’t see that happening. We want to get Yucca done 

and then if we need to do some interim storage in the interim, fine. 

 MR. SPROAT. We are fully committed to making Yucca Mountain 

happen. I am fully committed to making it happen and the less 

distractions I have the better. 

 CHAIRMAN BARTON. And I assume you wouldn’t say it if it is not a 

true statement, then we need to convince our friends in the Senate to 

work with us on getting a Yucca bill done as soon as possible. 

 MR. SPROAT. Yes, sir. 

 CHAIRMAN BARTON. Because there is a limited amount of money, 

and the sooner we get the permanent repository the better off we all are 

with the legislation that funds it and operates it. 

 MR. SPROAT. We agree. 

 CHAIRMAN BARTON. Mr. Chairman, that is all I have. 

 MR. HALL. Thank you, sir. Mr. Otter. 

 MR. OTTER. Thank you, Mr. Chairman. I want to reiterate in my 

earlier statement I am fully in support of going forward with Yucca 

Mountain with all due haste. There were a couple of things you said in 

your opening statement though that I find concerning. You indicated 

several things that had to happen and amongst those were the 

superseding the State’s perhaps laws on environment and water and clean 

air, safety, and a few other things. Maybe my friend, Mr. Markey, threw 

in a few others that I haven’t heard. And you said you thought you had 

the authority for that. 

 MR. SPROAT. No. 

 MR. OTTER. I am just trying to clarify. 
40

 MR. SPROAT. Obviously, there are different issues with each of 

those aspects. For example, on water, the issue there is the State, the 

legislature, the State of Nevada has declared the Yucca Mountain project 

not in the public interest, and therefore the State water engineer by law in 

Nevada cannot give us, the Department of Energy, any water withdrawal 

permits that we need to construct or operate Yucca Mountain. 

 MR. OTTER. Yes, and I am glad you brought water up because that 

was the one that concerned me more than anything else, and I am fully 

aware that sometimes States will engage in law making to simply stop 

something that they don’t want to happen in their State. 

 MR. SPROAT. And that has happened in this case. 

 MR. OTTER. And I wish perhaps in Idaho’s case we had done that in 

a few cases like with wolves. But anyway that is another subject. What 

does concern me though is have you tried to buy existing water rights 

from other water users that would have prior rights? 

 MR. SPROAT. We have been forced to do some temporary water 

buying from California. We have trucked water in but, as of right now, 

we have not attempted and we don’t have access to other water rights in 

that area. 

 MR. OTTER. And you do know how much water you would need 

and for how long you would need it? 

 MR. SPROAT. Yes, we do. Yes, we do. The figures I have been told 

are that during the construction of Yucca Mountain we need the 

equivalent of 4 days of usage of water by Las Vegas. That is over the 8 

to 10 year construction period. Now that equates to a certain number of 

acre feet, and I don’t have that figure with me, but that just gives you 

some relative sense of the usage that we are anticipating needing during 

the construction period which is the peak period of water usage. After 

construction, water usage would drop way down. 

 MR. OTTER. Well, I am sure that you are familiar with that water in 

the west is extremely valuable. 

 MR. SPROAT. Yes, I am. 

 MR. OTTER. So then I go back when there are existing water rights 

and there would be existing water rights that either farmers or ranchers 

themselves would have that would seem to me to be fertile ground for 

establishing or at least buying temporarily a water right, and especially if 

it is only 4 days of usage during the construction period that Las Vegas 

would use, but Las Vegas uses a lot of water. I fully understand that. 

But on the total scheme of things holding up an entire project for that, 

especially one as important as this and one as needful as this, I just get a 

little concerned about giving any Federal agency the authority to take 

over water rights within a State. 
41

 MR. SPROAT. I totally agree. Just for clarification purposes, we are 

not asking to take over water rights. What we are asking is the Congress 

to say Yucca Mountain is in the public interest of the country, thereby 

overriding the State legislature’s adverse determination. The legislation 

will allow us to go to the State water engineer, present our permitting 

requirements, explain what we need, and allow the State water engineer 

to make a determination within the State regulatory framework to 

allocate water to us. Right now we can’t even get in the door because the 

State legislature said it is not in the public interest and the State water 

engineer can’t even review the application. 

 MR. OTTER. Okay. Well, that is much different than the impression 

that I got from your opening statement, and I am glad we got that 

clarification. I have no more questions, Mr. Chairman. 

 MR. HALL. I think that covers the questions, and we do thank you 

two gentlemen for your very valuable information and your time. Thank 

you for your preparation and for attending. 

 MR. SPROAT. Thank you. 

 MR. HALL. And we assure you that we will see you again. You are 

excuse. We will have the second panel. Our second panel this 

afternoon on the nuclear waste disposal question is the Honorable Sam 

Wise, Chairman of the Georgia Public Service Commission, from 

Georgia representing the National Association of Regulatory Utility 

Commissioners. Also, Ms. Michele Boyd, Legislative Director, Public 

Citizen, Washington, D.C., Mr. Anthony F. Earley, Jr., Chairman and 

Chief Executive Officer at the DTE Energy Company, on behalf of the 

Nuclear Energy Institute. The Honorable Stan Wise, begin. 

STATEMENTS OF HONORABLE STAN WISE, CHAIRMAN, 

GEORGIA PUBLIC SERVICE COMMISSION, ON BEHALF 

OF NATIONAL ASSOCIATION OF REGULATORY 

UTILITY COMMISSIONERS; ANTHONY F. EARLEY, JR., 

CHAIRMAN AND CHIEF EXECUTIVE OFFICER, DTE 

ENERGY COMPANY, ON BEHALF OF NUCLEAR ENERGY 

INSTITUTE; AND MICHELE BOYD, LEGISLATIVE 

DIRECTOR, PUBLIC CITIZEN 

MR. WISE. Thank you, Mr. Chairman, Ranking Member, and, Dr. 

Norwood, thank you for your very kind comments in your opening 

remarks. I am Stan Wise. I am Chairman of the Georgia Public Service 

Commission, and I am here today on behalf of the National Association 

of Regulatory Utility Commissioners, most often referred to as NARUC. 

In addition, my testimony reflects the views of the Georgia Public 
42

Service Commission. I very much appreciate the opportunity to appear 

with you this afternoon. 

 The issues that you are addressing in this oversight hearing are very 

important to NARUC’s membership and to my State, and I am grateful 

to have this opportunity to present our point of view concerning the 

disposition of spent nuclear fuel at nuclear power plan sites that is 

intended for ultimate disposal at the Yucca Mountain geologic 

repository. I would like to summarize my testimony, and have the full 

statement entered into the record. We continue to be concerned with 

delays in progress on the repository program. It has been 4 years since 

Congress approved developing the Yucca Mountain site and the next 

major milestone was for Department of Energy to submit a license 

application to NRC to authorize construction. 

 And while we had hoped that the license application might occur in 

2005 the latest schedule now shows that it will occur no later than June 

of 2008. That was not welcome news for the directors of the repository 

program and we must respect his assurance that additional time is needed 

to provide a defensible and dockable license application. NARUC’s 

primary concern is the need to reform the matter in which the Nuclear 

Waste Fund is managed. We believe that the repository schedule cannot 

be met without greater financial resources, and although the Nuclear 

Waste Fund was well designed and nuclear waste policy as the 

mechanism for the commercial share of repository disposal cost to be 

rate payer financed that is not the way that the Fund is currently being 

used. 

 In the present fiscal year, $750 million in fees were expected to be 

paid by utilities from ratepayers into the Fund and yet Congress has 

appropriated only $99 million for the same period. That means that 87 

percent of the fees that are collected are not being used for their intended 

purpose. We are told that the excess over appropriation is added to the 

balance on the Nuclear Waste Fund, and that it has grown to over $18 

billion. We are concerned that the money is either gone or at best 

represents a collection of IOUs that future Congresses may or may not 

appropriate when it is needed to later fund the repository. 

 Congress has considered various legislative remedies that might 

make a more direct connection between annual revenue and 

appropriations. If not, the assurance of the purported balance will be 

available in the future, but those efforts have fallen short. The 

Administration now proposes to reform the process with the proposed 

Nuclear Fuel Management and Disposal Act and whether by this 

proposal or by some other means it achieves the same objectives we urge 

the Congress to enact that bill this year and bring greater financial 

stability to the repository program. 
43

 We were disappointed to learn that last week the bill will not be 

taken up by the Senate this year. There are two other aspects of spent 

fuel management that are before Congress, and I would like to comment 

on them. Totally contrary to the intent of the Nuclear Waste Policy Act 

and existing contracts with utilities to remove spent fuel from reactor 

sites is Senate 2099. That bill would authorize DOE to take title of spent 

fuel and dry cask storage and maintain it at reactor sites for unspecified 

period at a cost that is likely to be in the billions of dollars per year. 

Keeping the waste on site is not what the utilities and/or the ratepayers 

have paid over $25 billion for. That bill should be rejected. 

 Finally, there is a consideration of having the Government provide 

some form of interim storage away from reactor sites. NARUC has 

urged Congress and the DOE to consider interim storage for as long ago 

as it was evident that DOE was not going to meet the 1998 mandate of 

the waste acceptance set in statute and in contracts. We believe that it 

would have made more sense to provide the added storage capacity at 

one or a small number of storage sites ideally designed and built for that 

purpose rather than to have each utility retrofit additional storage at 

reactor sites. Since such storage was only made necessary by the 

continued failure of the Government to meet the disposal schedule we 

never envisioned that the Nuclear Waste Fund would be used for such 

expenses. 

 And when the House proposed last year an interim storage plan for 

DOE installations on a short schedule, we thought it would be 

worthwhile although we were concerned that the Nuclear Waste Fund 

would be used for initial planning. This year the House appropriations 

bill would provide $30 million, not from the Nuclear Waste Fund, but 

sought to make storage a part of a broader, integrated spent fuel 

recycling initiative pursued by DOE. And when the Senate Energy and 

Water Appropriations bills included the proposal to have DOE search for 

a site in each State with a commercial nuclear reactor for possible 

development of an interim storage facility for 25 years for regional 

facilities it took many States by surprise. I know it did in Georgia. 

 And as indicated in a letter to Chairman Barton in July, NARUC 

continues to believe that it might be better to move some spent fuel from 

the present storage sites to a central location selected and built for safe 

and secure interim storage, and we question whether that is needed in all 

31 States that have reactors. As far as sites go, the Senate bill rules out 

the two locations that seem to make the most sense, Yucca Mountain and 

the already licensed private fuel storage facility in Utah. 

 We need to know more about the cost and benefits before we 

consider whether it is appropriate to use the Nuclear Waste Fund to pay 

for interim storage, and until H.R. 5360, or something like it reforms the 
44

Nuclear Waste Fund appropriations process, a dollar spent for interim 

storage is a dollar not available for developing the repository. There was 

also a decision in 2002 in the 11th Circuit of the United States Court of 

Appeals that indicates that the Fund may only be used for disposal of 

interim storage, and it is not an act of disposal. So let me summarize 

what we are in favor of in the Nuclear Waste Program. 

 We urge reform of the Fund so that collected fees are available for 

their intended purpose as proposed in 5360. DOE needs to press on with 

the licensing of Yucca Mountain. Central interim storage away from 

reactor sites that does not interfere with developing a repository and 

meets as cost benefit test. Research and further study of all aspects of 

advanced reprocessing as proposed in the GNEP initiative. Infusing a 

sense of urgency in spent fuel repository development as the other 

provisions of H.R. 5360 support. 

 And just so there is no mistake, let me summarize what we are 

opposed to. The continued diversion of the Nuclear Waste Fund fee 

payments. Having DOE take title of spent fuel to be retained at reactor 

storage sites. Use of the Nuclear Waste Fund for interim storage, and 

certainly not as long as appropriations for interim storage means fewer 

appropriations for the repository. Putting as many as 31 States through a 

concurrent site search for interim storage before the cost and benefits of 

the proposed consolidation and preparation facilities have been 

determined. Thank you for the opportunity to testify before you today, 

and I look forward to your questions. 

 [The prepared statement of Hon. Stan Wise follows:] 

PREPARED STATEMENT OF THE HON. STAN WISE, CHAIRMAN, GEORGIA PUBLIC SERVICE 

COMMISSION, ON BEHALF OF NATIONAL ASSOCIATION OF REGULATORY UTILITY 

COMMISSIONERS

NARUC supports: 

1. Reform of the Nuclear Waste Fund so that collected fees are available for 

their intended purpose, as proposed in H.R. 5360. 

2. DOE needs to press on with licensing the Yucca Mountain repository. 

3. Central interim storage away from reactor sites that does not interfere with 

developing the repository. 

4. Research of advanced reprocessing and further study of all aspects of the 

GNEP initiative. 

5. Infusing a sense of urgency in spent fuel repository development. 

NARUC strongly opposes: 

1. Continued diversion of the Nuclear Waste Fund fee payments. 

2. Having DOE take title of spent fuel at reactor storage sites and to retain it 

there. 

3. Use of the Nuclear Waste Fund for interim storage, certainly not so long 

as appropriations for interim storage would come at the expense of 

adequate appropriations for the repository 
45

4. Putting as many as 31 States through a concurrent site search for interim 

storage before the costs and benefits of the proposed “consolidation and 

preparation” facilities have been determined. 

Good Afternoon Mr. Chairman, Ranking Member Boucher, and Members of the 

Subcommittee. 

My name is Stan Wise. I am the Chairman of the Georgia Public Service 

Commission. I also am the immediate past president of the National Association of 

Regulatory Utility Commissioners (NARUC). I am testifying today on behalf of 

NARUC. I greatly appreciate the opportunity to appear before you this morning. The 

issues that you are addressing in this hearing are very important to NARUC’s 

membership and my State, and I am grateful to have this opportunity to present our point 

of view 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 would like to summarize my testimony and have my full statement entered into the 

record as if fully read. 

 NARUC is a quasi-governmental, non-profit organization founded in 1889. Its 

membership includes the State public utility commissions serving all States and 

territories. NARUC’s mission is to serve the public interest by improving the quality and 

effectiveness of public utility regulation. NARUC’s members regulate the retail rates and 

services of electric, gas, water, and telephone utilities. We are obligated under the laws 

of our respective States to ensure the establishment and maintenance of such utility 

services as may be required by the public convenience and necessity and to ensure that 

such services are provided under rates and subject to terms and conditions of service that 

are just, reasonable, and non-discriminatory. 

 NARUC’s goals in the nuclear waste area are well known and have been stated 

before this and other Congressional committees on a number of prior occasions. 

NARUC believes that the federal government needs to meet its obligation under the 

Nuclear Waste Policy Act of 1982, as amended, to accept spent nuclear fuel from utilities 

and other nuclear generators in a timely manner for safe disposal. NARUC further 

believes that the nation’s ratepayers have upheld their end of the bargain struck in the 

Nuclear Waste Policy Act by providing, either directly or through income generated on 

prior payments, over $25 billion for use in constructing a nuclear waste repository. 

Finally, NARUC believes that the Nuclear Waste Fund should only be employed for its 

intended purpose and that the monies in the Nuclear Waste Fund should be utilized, along 

with appropriations from the Department of Defense budget, for the sole purpose of 

supporting the opening of the Yucca Mountain facility in a timely fashion. The basic 

principles underlying NARUC’s approach to the nuclear waste issue provide a solid 

foundation for future policy decisions concerning the nuclear waste program. 

 Two years ago, the repository program seemed to be very close to having the 

repository license application completed for submittal to the Nuclear Regulatory 

Commission during 2004, but was further delayed due to the need for the Environmental 

Protection Agency to revise the radiation standard to be used in the license review. In 

addition, there were some difficulties between DOE and the NRC in meeting the 

documentation certification requirements of the Licensing Support Network (LSN) that 

many of us outside the government did not fully understand. And there was the revelation 

that there may have been some records falsification by some employees of the United 

States Geologic Survey who had worked on the project. Since then, EPA has issued their 

proposed revised radiation standard and has concluded the public comment period. We 

don’t know the status of the LSN documentation but the USGS and DOE records 

investigations seemed to be concluded, with the program scientific work reaffirmed. 
46

 NARUC’s primary concern with the civilian radioactive waste management 

program is for Congress to reform the way the Nuclear Waste Fund is managed and the 

way in which appropriations are made from the Fund. Reform of the Fund appropriations 

process is necessary to provide a stable financial footing so that the government can 

fulfill its statutory and contractual obligation to provide safe disposal of spent nuclear 

fuel and other high-level radioactive waste as was the intent of the Nuclear Waste Policy 

Act. Although the House Energy and Commerce Committee voted favorably on H.R. 

3981 in the previous Congress, the bill never made it to a floor vote and no action was 

taken in the Senate. We did not consider that a perfect bill (it was only for a five year 

period) but it would have helped ensure that more of the fee revenue collected by the 

Fund would actually be appropriated for its intended use. While the FY 2006 budget 

referred to the Administration’s remaining interested in pursuing a similar proposal for 

reclassification of NWF fees as offsetting collections and discussing it with Congress, no 

legislation was developed that year. 

 NARUC’s and State utility regulator’s prime concern for the repository program 

remains to reform the Nuclear Waste Fund appropriations process. It is difficult for us to 

see how the repository program can ever shift into an implementation phase when 

funding requirements would need to increase by orders of magnitude compared with the 

pre-licensing phase. Simply put, the repository cannot be built without a more stable 

financing arrangement. Without the repository, spent nuclear fuel continues to 

accumulate and be stored in places that were never designed or permitted for indefinite 

storage. Spent fuel would be stored at 72 locations along rivers and lakes in 34 States 

instead of in a more secure, well-designed repository. Although we see many favorable 

signs for investment in new nuclear power plants, including provisions of the Energy 

Policy Act of 2005, we also continue to hear that lack of a clear path towards disposal of 

spent nuclear fuel may hold back that investment. 

 We also need to reform the Nuclear Waste Fund because we owe it to the ratepayers 

who pay the fees in their electric bill. For the past five years, three quarters of the fees 

collected for nuclear waste disposal have gone to other unrelated federal purposes. In the 

current fiscal year, total fee payments into the Nuclear Waste Fund are expected to be 

$750 million. That compares with $99 million appropriated for the repository program. 

All that we as utility regulators can show ratepayers is a financial report from the 

Department of Energy that there is an account in the Treasury called the Nuclear Waste 

Fund that supposedly has $18 billion in it for the repository program. It is a cruel fact of 

life that for all practical purposes those funds are inaccessible or already spent. All the 

ratepayers want is for the government to remove the spent fuel for disposal as they were 

promised over 24 years ago would already have begun by now. 

 We are grateful for the leadership of the House Energy and Water Development 

Appropriations Subcommittee and its unwillingness to simply do nothing last year while 

the repository license application was delayed and no reform to the Nuclear Waste Fund 

was in the works. In the markup of the FY 2006 budget, Energy and Water 

Appropriations Subcommittee Chairman David Hobson sought to add $10 million to 

initiate an interim storage program using DOE sites that are presumed to already have the 

security and other support that could accommodate spent fuel from commercial reactors. 

DOE would take title to and ship utility waste to the unspecified locations that already 

store similar government radioactive waste. We had many questions about that approach, 

but it could have been a step in the right direction, especially for spent fuel now stored at 

14 shutdown reactor sites. We doubt that any significant quantity could have been moved 

in FY 2006, as the Subcommittee report indicated, or that much could be done for the $20 

million the bill would have appropriated. Of course, when the Senate did not include 

similar provisions or equal funding, the proposal did not survive in conference. 

For FY 2007, the House again took up an interim storage proposal in the 

appropriations bill, this time adding $30 million, not from the Nuclear Waste Fund, for 
47

development of some undetermined amount of interim storage of spent fuel at “integrated 

spent fuel recycling facilities” that could be serve as a vanguard for demonstration of 

spent fuel reprocessing under the Advanced Fuel Cycle Initiative being pursued within 

DOE as part of the broader Global Nuclear Energy Partnership (GNEP). There was a 

stipulation in the bill that authorization be obtained for interim storage, since DOE has 

maintained that it lacked authority to establish interim storage. 

 Then the Senate Appropriations Committee released its proposal, as Section 313 of 

the FY 2007 Energy and Water Appropriations Bill (Senate Report 109-274), calling for 

DOE to propose “consolidation and preparation facilities” for interim storage of spent 

fuel in each State with a commercial nuclear reactor or, alternatively, regional CAP 

facilities. We understood Chairman Domenici wanted to stimulate a dialogue on interim 

storage and to get States involved. A NARUC witness testified at a hearing of the Senate 

Energy and Natural Resources Committee on August 3rd. States are involved in nuclear 

waste storage at reactors. In my State, we have utilities expressing great interest in 

building new nuclear plants to provide emissions-free reliable baseload power for 

forecasted energy demand. Yet, the utilities indicate they may have difficulty raising 

capital without greater certainty on nuclear waste disposal. State utility commissioners 

are also involved in another way: those utilities making payments into the Nuclear Waste 

Fund pass those costs on to their ratepayers. Since 1983, close to $900 million has been 

paid into the Fund from Georgia. 

 We have many questions about the CAP proposal which were conveyed to 

Chairman Barton in a July 11th letter. Unless DOE is better staffed than I suspect they 

are, it would seem unlikely that DOE could undertake a delicate site search concurrently 

in 31 States within the 270 day timeline indicated in the bill. There are environmental 

impact considerations and the potential for litigation that could slow the process. Are we 

even sure that every State has a storage deficiency? It is my understanding that once it 

was apparent that DOE would not meet the 1998 waste acceptance mandate, many 

utilities resigned themselves to the necessity to develop dry cask storage on-site to 

supplement pool storage. There is litigation over recoupment of those expenses, but for 

the active reactors, there has been a steady increase (over 38 so far) of separately licensed 

dry cask facilities and more are planned. 

Governors will want to know how the site search process within their States will 

proceed. Some States have restrictions on developing new nuclear facilities within the 

State and, although the factual record on nuclear waste transportation safety is superb, 

there is nonetheless public concern over transportation and unease over siting that is not 

likely assuaged by assurances in the bill that the CAP storage would only be for 25 years. 

NARUC has supported interim storage away from reactor storage sites for some 

time, whether by the government or at private facilities provided by the utilities 

themselves such as proposed at Skull Valley, Utah. In our view, the Nuclear Waste 

Policy Act does not permit government interim storage to be financed by the Nuclear 

Waste Fund (Section 302.d.). Some of the expenses relating to waste shipping casks and 

transportation might be permitted since they could be interpreted as needed for the 

permanent repository. However, there is a broader question of equity: why should the 

Nuclear Waste Fund, which is supposed to be used to develop a permanent repository, be 

used for expenses that could have been avoided had DOE met its statutory and 

contractual obligations to begin spent fuel acceptance in 1998? This is at the heart of the 

ongoing litigation by numerous utilities against DOE and it is not anticipated that the 

Nuclear Waste Fund will be used to make damage payments that may be awarded in 

those cases. 

Also relevant to the use of the Nuclear Waste Fund is the 2002 decision by the 

Eleventh Circuit of the United States Court of Appeals (Alabama Power, Carolina Light 

and Power, et al. v. Department of Energy) ruling that the Nuclear Waste Fund may only 

be used for disposal and that interim storage is not an act of disposal. 
48

 Last year, the House Appropriations Report (109-086) called for DOE to initiate a 

plan to begin spent fuel reprocessing (or re-cycling) in FY 2007. Members of the 

Committee are familiar with the history of reprocessing in this country and the 

experiences in other countries. We know the 2001 National Energy Plan recommended 

that the subject be re-visited, and that DOE has an Advanced Fuel Cycle Initiative as part 

of a research effort to look at what to many is an intuitively appealing goal of “recycling” 

used fuel. Yet technology, economics, environmental and proliferation concerns remain. 

Testimony by industry and academic experts before the House Science Committee last 

July also suggested there are many economic and other questions to be addressed. We 

will leave that for others to sort through, but I want make a single point here: There is no 

known reprocessing method in use today or likely to be developed in the future that does 

not result in some quantity of high-level radioactive waste that will require disposal in a 

repository. Therefore, whether we reprocess in this country or not, we will still need a 

repository like Yucca Mountain. Put another way, reprocessing is not an alternative to 

building a repository, as much as some might wish it to be. There may be less waste if we 

reprocess and it may be of different toxicity, but it still must be isolated from the human 

environment. All of the countries that reprocess know this and are planning long-term 

disposal. 

Moreover, the repository design that is being proposed for Yucca Mountain does not 

preclude a future decision to retrieve any or all spent fuel emplaced in it for reprocessing 

(or other reasons) until the decision is made to seal the repository, which, according to 

DOE, could be anywhere from 50 to 300 years in the future. If spent nuclear fuel is 

indeed an energy asset, Yucca Mountain will be an ideal place to store it until needed. 

With the FY 2007 Department of Energy Budget, Secretary of Energy Samuel 

Bodman announced the initiative called the Global Nuclear Energy Partnership (GNEP.) 

It has many dimensions and purposes, but one that we are interested in is the suggestion 

that if advanced forms of reprocessing and recycling of spent nuclear fuel were to be 

developed under the GNEP vision, that the amount of nuclear waste requiring disposal 

might be greatly reduced and its radiation characteristics would be hazardous over a 

much shorter period of time. We are interested in learning more about the proposal and 

its feasibility in terms of achievable technology, economics, environment and nonproliferation considerations. It is too new for us to take a position on the matter until we 

learn more, but our existing policy remains current. In 2000, we revised our Nuclear 

Waste Guiding Principles to include: “Reprocessing of spent fuel may be worthy of 

research, but, even if feasible, does not eliminate the need for a permanent repository.” 

Accordingly, we support the research proposed for GNEP and the Advanced Fuel Cycle 

Initiative in the FY 2007 DOE budget request. It appears to be a worthwhile investment 

that could pay dividends down the road while investigating the feasibility of 

proliferation-resistant reprocessing. 

We have been troubled by the legislative proposal to have the Department of Energy 

take title to spent nuclear fuel at commercial reactor sites and manage it there for some 

unspecified time, as in S. 2099. We see press reports that the scheme would be financed 

by the Nuclear Waste Fund and we also interpret the real objective is to somehow—with 

no clear terminating point—keep the spent fuel where it is instead of building the 

repository. Obviously, to abandon the repository would require amendment or possibly 

repeal of the Nuclear Waste Policy Act. Proponents of this proposal seem to disregard the 

finding in the Nuclear Waste Policy Act that “Federal efforts during the past 30 years to 

devise a permanent solution to the problems of civilian radioactive waste disposal have 

not been adequate.” Instead, they would have us revert to that Square One posture. 

 We have been careful to avoid any suggestion that continued spent fuel storage at 

reactor sites is not as safe and secure as the Nuclear Regulatory Commission maintains 

that it is, but in our view, the proposal to have DOE take title and manage spent fuel at 

present reactor storage sites is not consistent with the “compelling national interests” that 
49

former Secretary of Energy Spencer Abraham referred to when he recommended Yucca 

Mountain as a suitable repository site to the President and Congress in 2002. He said, and 

we agree, that the repository is important to homeland security. 

 We strongly oppose the suggestion that the government take title to spent fuel which 

would remain at 72 reactor sites instead of going to a repository. That is not what was 

promised in the Nuclear Waste Policy Act and reaffirmed by Congress in a joint 

resolution in 2002, and it is most certainly not what ratepayers have paid $25 billion in 

fees and interest over the past 22 years to achieve. 

 Before I conclude, there is one other item to discuss. We urge strong leadership on 

the part of the Department of Energy and its support contractors to keep this muchdelayed repository program moving forward. We have expressed our frustrations in the 

past with the chronic underfunding and series of delays that have troubled the program. 

DOE needs to work its way through whatever else needs to be done to put the repository 

licensing back on course. We commend the positive spirit and determination of Mr. 

Edward Sproat, the new director of the Office of Civilian Radioactive Waste 

Management, when he announced the revised schedule in July and we wish him and the 

repository team well in meeting that schedule. We appreciate EPA for meeting the 

challenge of responding to the court remand with its proposed revised radiation standard. 

Although we disagreed with extending the regulatory period to one million years, EPA 

did meet the mandate of the court and it is time to issue the final rule. We have been 

aware that during the license application delay, DOE has been conducting a reexamination of repository plans. We saw some of the results of what is termed “program 

re-direction” in a press release last October. A change in approach was described as being 

“simpler, safer and more cost-effective,” mostly as a result of a shift to standardized spent 

fuel canisters that will allow significant changes in fuel handling at the receipt facilities at 

Yucca Mountain. We certainly applaud cost savings, improved safety and the prospect of 

reducing the licensing complexity, but we have two concerns that we want to pursue: 

1. Will these changes further delay the license application and how will that affect 

eventual repository operational dates? The revised schedule showing initial 

waste disposal in 2017 is predicated on a number of variables including 

adequate funding. 

2. How will DOE and the utilities be able to ensure that all spent fuel presently 

stored at reactor sites (up to the current planned amount of 63,000 metric tons) 

will be able to be transferred into the standardized canisters? Spent fuel is 

increasingly being stored in sealed canisters in dry casks that will either have to 

be accepted as is or have the contents transferred to the standard canisters. 

Finally, NARUC has not taken a position on the other elements of the proposed 

Nuclear Fuel Management and Disposal Act (H.R. 5360), aside from our support for the 

Nuclear Waste Fund reclassification proposal. In general, we find the other provisions to 

be helpful for the overall goal of licensing, building and operating the repository. We 

agree that the 70,000 metric ton statutory limit on the repository capacity is arbitrary and 

the proposal to have the capacity be among the elements of the license review by the 

Nuclear Regulatory Commission makes sense. We have always urged DOE to plan and 

eventually conduct the spent fuel transportation in cooperation with other federal, State, 

tribal and local governments and, to the best of our knowledge the Department is 

planning to do that as required by the NWPA and as has been done successfully in 

previous nuclear waste shipments. We were disappointed to hear that Senator Domenici 

indicated last week that the counterpart Yucca Mountain bill (S. 2589) will not be taken 

up in the Senate this year. 

Let me summarize what we support: 

1. Reform of the Nuclear Waste Fund so that collected fees are available for their 

intended purpose, as proposed in H.R. 5360. 
50

2. DOE needs to press on with licensing the Yucca Mountain repository. 

3. Central interim storage away from reactor sites that does not interfere with 

developing the repository. 

4. Research of advanced reprocessing and further study of all aspects of the GNEP 

initiative. 

5. Infusing a sense of urgency in spent fuel repository development. 

And, let me summarize what we strongly oppose: 

1. Continued diversion of the Nuclear Waste Fund fee payments. 

2. Having DOE take title of spent fuel at reactor storage sites and to retain it there. 

3. Use of the Nuclear Waste Fund for interim storage, certainly not so long as 

appropriations for interim storage would come at the expense of adequate 

appropriations for the repository 

4. Putting as many as 31 States through a concurrent site search for interim 

storage before the costs and benefits of the proposed “consolidation and 

preparation” facilities have been determined. 

Thank you for the opportunity to testify before you today. I look forward to your 

questions. 

 MR. HALL. The Chair recognizes Mr. Earley, Chairman and Chief 

Executive Officer of the DTE Energy Company for 5 minutes. Try to 

summarize and then we will question. Thank you. 

MR. EARLEY. Mr. Chairman and members of the committee, thank 

you. My name is Tony Earley, and I am Chairman and CEO of the DTE 

Energy Company headquartered in Detroit. I am here today not only in 

my capacity as the owner of a nuclear power plant, but also as Chairman 

of the Nuclear Energy Institute, the trade association for the U.S. nuclear 

industry. I want to thank you for the opportunity to express our strong 

support for H.R. 5360, and I want to say that I agree with the priorities 

identified by Mr. Sproat in his remarks. 

 This legislation would be another step forward in the country’s quest 

to manage and dispose of used nuclear fuel and high level waste. You all 

understand how vital nuclear power is to the energy policy of our 

country. You know that 20 percent of our electricity is produced from 

nuclear power plants. It is a safe, environmentally friendly, and 

economic source of power and it is critical that we expand the use of this 

technology. The United States has shown remarkable leadership in this 

field in the last half century since the passage of the Atomic Energy Act 

of 1954, but we are in danger of losing that leadership in nuclear 

technology. China, India, and other Pacific Rim countries race to build 

more nuclear plants. 

 As indicated earlier, it has been over a decade since the last U.S. 

nuclear plant came on line, but fortunately momentum is changing. 

Thanks to the visionary leaders in our industry and your work with the 

Energy Policy Act last year, NEI member companies have spent over 

$1.5 billion in planning the next generation of nuclear reactors over the 
51

last several years. But that momentum will be lost unless we make 

progress on the nuclear waste front at a faster pace than we have seen in 

the last two and a half decades since the passage of the Waste Policy Act. 

That is why passage of H.R. 5360 is so important. I can tell you from 

conversations with my fellow CEOs, unless progress is made on nuclear 

waste issues, spending on plants will slow and could eventually grind to 

a halt. 

 On the other hand, if the Department of Energy makes visible and 

measurable progress implementing a national used fuel management 

strategy companies will be willing to move ahead. I can’t emphasize 

enough that the nuclear industry believes that the Yucca Mountain 

repository is an essential component of any such strategy. Let me just 

mention three important provisions that we support. First, waste 

confidence. As responsible business leaders, CEOs of nuclear 

companies must have confidence that nuclear waste issues will be 

handled appropriately. It is not only socially responsible but it is legally 

required by the NRC. 

 Waste confidence, however, is a national policy determination, not 

an issue that ought to be litigated in each plant licensing proceeding. 

H.R. 5360 reiterates our country’s commitment to do the right thing with 

respect to nuclear waste. Second, we need to reclassify the Nuclear 

Waste Fund. H.R. 5360 deals with the chronic funding problem that has 

plagued Yucca Mountain for years. Ironically, it is not a lack of cash as 

has been mentioned earlier. Customers of the nuclear utilities have paid 

$27 billion into the waste fund, only 9 billion has been spent. 

 H.R. 5360 has provisions to insure that funding for nuclear waste 

solution will not be held hostage to budgetary maneuvering. Finally, we 

need to clarify the licensing process. The bill includes important 

provisions that will give more certainty to licensing process for a nuclear 

waste repository. I will tell you I have first-hand experience on how the 

NRC licensing process can be used to thwart national energy policy. As 

a participant in the decades long, multi-billion dollar struggle to license 

the Shoreham nuclear plant in New York, I know that streamlined 

licensing processes are absolutely crucial. 

 These and other provisions are welcomed by the industry, but we 

also urge the committee to consider several other steps that would add to 

the value of H.R. 5360. I have discussed these in my written testimony, 

and I ask that they be included in the record, but I will highlight just a 

few. As Chairman of NEI and member of its executive committee for 

over 5 years, I can tell you our top priority is getting Yucca licensed and 

built but from a symbolic, legal, and policy standpoint having DOE take 

title and start to move fuel from reactor sites would be a huge step 

forward. 
52

 It would reaffirm the Government’s commitment to meet the 

obligation of the Nuclear Waste Policy Act, halt the continued growth 

and monetary damages, and be consistent with both long-term storage 

plans at Yucca and potential developments in reprocessing. I have heard 

the committee’s well-founded concerns, and I want to make it clear as 

my testimony indicates we do not support the proposal in H.R. 4538 for 

multiple sites, but we do know that Americans love common sense 

solutions, and a carefully crafted, tightly focused interim storage plan 

could address the very real concerns expressed by the committee 

members and yet continue to make progress on the nuclear waste front. 

 We believe the program should have a very limited number of 

interim storage sites. We agree with Mr. Norwood’s comments. One of 

them ought to be at Yucca. We also want to look at other sites that 

would be consistent with future proposals for reprocessing technology, 

and if we included incentives for voluntary participation, we believe that 

there are a small number of sites that would be willing to participate. We 

need to recognize that while the Nuclear Waste Fund could be used to 

pay for the small number of interim storage sites it should not be used to 

finance the developing of reprocessing or other technologies. 

 And finally we do need to provide the NRC with the necessary 

resources and appropriate management focus to get the job done. But I 

want to emphasize that this should not be done without losing focus on 

the ultimate goal, and that is the functioning repository at Yucca 

Mountain. Another provision we ask you to consider is nuclear waste 

disposal contract issues. Utilities are required to enter into a contract. 

Those contracts that were signed in the 1980s are outdated and Congress 

should direct that those new contracts consistent with the current realities 

be used. 

 So I want to end by thanking the committee for the opportunity to 

testify. I know you are faced with important decisions that will influence 

the role of nuclear power in the United States in the future, and I urge 

you to continue to insure that nuclear energy is a viable option for our 

country. Thank you. 

 [The prepared statement of Anthony F. Earley, Jr. follows:] 

PREPARED STATEMENT OF ANTHONY F. EARLEY, JR., CHAIRMAN AND CHIEF EXECUTIVE 

OFFICER, DTE ENERGY COMPANY, ON BEHALF OF NUCLEAR ENERGY INSTITUTE

Mr. Chairman and members of the Committee, my name is Tony Earley. 

I am Chairman and Chief Executive Officer of DTE Energy headquartered in 

Detroit. DTE Energy is a diversified energy holding company that owns, among other 

companies, the Detroit Edison Company, which serves over 2 million customers in 

southeast Michigan. One of our most important electric generating assets is the 1130 

MW Fermi 2 nuclear power plant which has been a workhorse of our system since 1988. 
53

As we look to the future, there is a growing need for baseload generation across the 

United States. In Michigan, our Fermi plant was the last baseload plant to come on line. 

Our state has identified a need to make significant generating additions in the next 

decade. At Detroit Edison, we are actively engaged in planning studies analyzing the 

possibility of building a second nuclear plant at our Fermi site. While there are many 

issues to consider before proceeding with a new nuclear plant, plans for the management 

and disposal of nuclear waste are critical to the decision making process. 

I come here today not only in my capacity as the CEO of a company that owns a 

nuclear plant, but also as Chairman of the Nuclear Energy Institute (NEI). NEI is the 

trade association of the U.S. nuclear industry. Our membership includes the owners of 

all U.S. nuclear power plants, as well as a large majority of the firms that supply 

equipment and technical expertise to the industry. 

Thank you for this opportunity to express the nuclear energy industry’s strong 

support of H.R. 5360, the Nuclear Fuel Management and Disposal Act. I also will 

address additional provisions that we believe would strengthen the legislation’s goal to 

enhance the management and disposal of used nuclear fuel and high-level radioactive 

waste, to ensure protection of public health and safety, and to ensure the territorial 

integrity and security of the repository at Yucca Mountain. 

Summary 

In keeping with the scope of this hearing, I will focus my testimony on these key 

issues: 

 The Department of Energy (DOE) must make visible and measurable progress 

in implementing an integrated national used nuclear fuel management 

strategy. The Yucca Mountain, Nevada, repository is a critical component of 

any such integrated strategy. This progress will help ensure that the expanded 

use of nuclear energy will play a key role in our nation’s strategy for meeting 

growing electricity demand. 

 H.R. 5360 can play a key role in establishing a solid basis for making 

necessary progress toward addressing the challenges facing the Yucca 

Mountain project, as well as helping set the stage for new nuclear plants. 

 Congress should add additional legislative provisions to H.R. 5360 to support 

the removal of used fuel from commercial nuclear plant sites as soon as 

possible, together with steps to accelerate development of new technological 

approaches that would substantially benefit approaches toward the disposal of 

used fuel. 

Nuclear Energy Must Play a Key Role in Our Energy Future 

In his 2006 State of the Union address, President Bush affirmed the nation’s 

commitment to “safe, clean nuclear energy” as part of a diverse portfolio that will meet 

America’s future electricity needs. A long-term commitment to nuclear energy will make 

the United States more energy independent and ensure diversity of energy sources. The 

Administration and Congress demonstrated strong leadership by enacting the Energy 

Policy Act of 2005. This legislation encourages diversity of energy sources, including 

emission-free sources of electricity, such as nuclear energy. 

The United States has demonstrated remarkable leadership in advancing the 

commercial use of nuclear energy. Its 103 reactors have achieved record levels of safety, 

reliability and efficiency. I am convinced that nuclear energy offers a clean, reliable and 

cost-effective answer to many of our nation’s current and future energy needs. Nuclear 

energy offers several unique advantages. It is the only expandable baseload energy 

source that does not emit carbon or other greenhouse gases into the atmosphere during 

operation. Nuclear energy safely and reliably provides price stability for electricity 

customers as the prices for fossil fuels fluctuate. It also provides exciting new 
54

opportunities in areas such as hydrogen production. It is essential that nuclear energy 

maintain at least the current 20 percent contribution to U.S. electricity production. 

Maintaining that level of production will require construction of a significant number of 

new nuclear plants beginning in the next decade. 

There is strong, bipartisan support for a continuing significant role for nuclear 

power. More than two-thirds of the public supports keeping nuclear energy as a key 

component of our energy portfolio. Many in the environmental community recognize 

and endorse the role that nuclear energy can play in controlling greenhouse gas 

emissions. The industry appreciates the recognition of nuclear energy’s importance that 

Congress and the Administration demonstrated in last year’s comprehensive Energy 

Policy Act of 2005. 

Recently, a new coalition of diverse organizations and individuals has been formed 

to educate the public on nuclear energy and participate in policy discussions on U.S. 

energy issues. The Clean and Safe Energy Coalition, co-chaired by Greenpeace cofounder Patrick Moore and former Environmental Protection Agency Administrator and 

New Jersey Governor Christine Todd Whitman, includes business, environmental, labor, 

health and community leaders among its more than 430 members. 

The Need for Legislative Action

To realize fully the benefits that nuclear power offers, however, the country must 

resolve outstanding issues related to the ultimate disposal of used nuclear fuel. 

Ratepayers across America have paid more $27 billion into the Nuclear Waste Fund, and 

continue to pay an additional $750 million each year. However, DOE has yet to move 

used fuel from reactor sites as required by the Nuclear Waste Policy Act. It is, in fact, 

eight years behind schedule in meeting its statutory obligation. Moreover, electricity 

customers have had to finance costly on-site storage facilities. 

The causes for the failure of the federal used nuclear fuel program to date are welldocumented. The fundamental problem, however, lies not with the authorizing 

legislation that Congress enacted 25 years ago. It is, rather, a failure to implement that 

legislation, as evidenced by a failure to appropriate sufficient funds for the repository and 

by a failure to follow-through on a consistent commitment to develop the repository. 

Although new legislation to amend the Nuclear Waste Policy Act is paramount, it is even 

more critical that the federal government commit itself to the implementation of existing 

law.

The nuclear energy industry is encouraged by the ambitious schedule announced by 

DOE on July 19, 2006, for submission of the license application by June 30, 2008, and 

the “best-achievable” construction schedule that could have the repository begin 

receiving used fuel in March 2017. The industry encourages DOE to submit the 

application as soon as possible so the Nuclear Regulatory Commission (NRC) review can 

begin. 

Although DOE’s announcement of a schedule for licensing the repository is a 

significant development, experience suggests that the schedule will be difficult to achieve 

without congressional action in a number of areas: 

• Congress’ providing appropriations consistent with Administration requests 

• an NRC construction authorization decision consistent with the timelines 

contained in the Nuclear Waste Policy Act 

• any necessary Federal or state authorizations or permits for the repository and 

the transportation system 

• DOE’s achieving a nuclear culture consistent with that needed to be a 

successful NRC licensee. 
55

Enactment of the Nuclear Fuel Management Disposal Act, H.R. 5360, with the 

amendments we propose, as spelled out below, will help advance several of these 

important objectives. 

H.R. 5360 Supports the Future Role for 

Nuclear Power in Our National Energy Strategy 

Waste Confidence Is Affirmed 

The nation must be confident that policies are in place to ensure the safe and secure 

storage and disposal of used nuclear fuel. This waste confidence determination is 

reflected in NRC rules requiring an NRC finding of “waste confidence” to support 

various licensing decisions. However, such an approach creates uncertainty because 

NRC regulations and licensing decisions are subject to litigation, and the issue is one of 

public policy, not regulatory or technical determination. 

Section 9 of H.R. 5360 takes the very important step of codifying the waste 

confidence rule. This will help avoid potential contentions in individual plant licensing 

proceedings over the timing and certainty of DOE’s performance with respect to its 

obligations. We strongly support this important step in creating certainty for major new 

investments by the nuclear industry in response to Congress’ Energy Policy Act of 2005. 

Managing the nation’s used fuel is a firmly established federal obligation and, as 

such, is a matter of broad national policy under the purview of the elected representatives 

of our country’s people. There is solid scientific and technical justification to affirm 

waste confidence. In 2001, the National Academy of Sciences confirmed four decades of 

international scientific consensus that geologic disposal is the best method for managing 

used nuclear fuel. Congress approved a geologic disposal site at Yucca Mountain in 

2002. 

In the Energy Policy Act, Congress included provisions that encourage the 

construction of new nuclear power plants, demonstrating public confidence in the 

nation’s ability to manage used reactor fuel in the future. In addition, DOE has safely 

operated a geologic disposal site for transuranic radioactive waste near Carlsbad, New 

Mexico—the Waste Isolation Pilot Project. 

Issues regarding the timing and certainty of DOE’s performance toward meeting its 

statutory obligations should be resolved in repository proceedings, or in Congress. 

Litigation of such issues as part of individual plant licensing proceedings is neither 

efficient nor appropriate. The NRC has long recognized that individual plant licensing 

proceedings should not be burdened with debates over DOE’s development of the 

repository. Congress should codify “waste confidence” as called for in H.R. 5360, so that 

the NRC need not address this broad public policy matter in routine licensing 

proceedings. 

Artificial Constraints on Repository Operations Are Eliminated 

Currently, a statutory limit of 70,000 metric tons (MT) exists on the amount of 

nuclear waste material that can be accepted at Yucca Mountain. The environmental 

impact statement for the project analyzed emplacement of up to 105,000 MT of 

commercial used fuel in the repository. Additional scientific analyses suggest 

significantly higher capacity could easily be achieved with changes in the repository 

configuration that use only geology that has already been characterized and do not 

deviate from existing design parameters. Advanced nuclear fuel cycle technologies could 

provide significant additional capacity for disposing of waste products in Yucca 

Mountain. 

Decisions on licensing and operations of a deep geologic repository at Yucca 

Mountain should be based on scientific and engineering considerations through DOE 

technical analyses and the NRC licensing process, not on artificial constraints. Given the 
56

decades of study and the billions of dollars invested in Yucca Mountain, it makes sense 

that we fully and safely utilize its full potential capacity, rather than developing multiple 

repositories when there is no technical reason to do so. H.R. 5360 will allow the nation 

to do just that by lifting the artificial 70,000 MT capacity limit. 

H.R. 5360 Includes Key Provisions for Yucca Mountain Progress 

Offsetting Collections Reclassification Will Enhance Funding Predictability 

Congress established the Nuclear Waste Fund to cover costs associated with 

disposal of commercial used nuclear fuel. This fund is paid for by a one-tenth-of-a-centper-kilowatt-hour fee on electricity used by consumers of nuclear energy. Congress has 

routinely failed to appropriate to the repository program the total fees paid into the 

Nuclear Waste Fund in that year. Further, restrictions on the federal budget have 

prevented fees collected, but not appropriated, in one year from being appropriated in 

subsequent years. 

As a result, Yucca Mountain budget requests have been cut by more than $1 billion 

over the past decade. Program funding requirements are forecast to increase substantially 

over the next few years. If overall spending totals remain flat, even more significant 

delays could result, not because nuclear power consumers have not provided the funds 

necessary to support the program, but because of inappropriate federal budget 

accounting. 

To date, consumers of nuclear power have committed more than $27 billion in fees 

and accrued interest into the fund. They continue to pay at a rate of $750 million each 

year. However, only some $9 billion has been spent on the project, leaving a balance in 

excess of $18 billion. In recent years, fee income has significantly exceeded the annual 

spending from the fund. 

H.R. 5360 would reclassify prospective annual fees so that appropriations up to the 

full amount of fee revenues for any year would not be limited by discretionary spending 

caps. Although this approach would be a major step forward, we believe that Congress 

also should reaffirm the compact with ratepayers in the Nuclear Waste Policy Act and 

provide that any appropriation for the program could be offset by balances in the Nuclear 

Waste Fund, whether derived from prospective fees or past fees and interest. This 

approach has been advocated consistently by the leadership of this Committee from both 

sides of the aisle. 

In addition, we believe it is important for the Congress to act to maintain the 

integrity of the Nuclear Waste Fund. We support amending H.R. 5360 to define clearly 

that only activities directly contributing to meeting the federal government’s obligation 

under the Nuclear Waste Policy Act can be supported from the Nuclear Waste Fund. 

This includes expenditures related to transportation, storage and disposal of used fuel and 

high-level waste. 

Advanced research on energy technologies has consistently been funded through 

general revenues, and there is no reason research on advanced technologies in processing 

used nuclear fuel—such as those contemplated under the President’s Global Nuclear 

Energy Partnership (GNEP) program—should be financed any differently. The nuclear 

industry is deeply appreciative of the amendment successfully offered by Chairman 

Barton to the fiscal 2007 Energy and Water Development appropriations bill in the 

House. This amendment prohibits funding from the Nuclear Waste Fund to support 

GNEP. We believe this should be incorporated into permanent law. 

Additionally, Congress should reaffirm its authority over any changes in the Nuclear 

Waste Fund fee by requiring such changes be made by statutory amendment. 
57

H.R. 5360 Will Enhance Clarity and Stability in the Licensing Process 

The NRC repository licensing process should be restructured to ensure that the 

proceedings are prioritized properly. First, a reasonable, but finite, schedule for review 

of the authority to “receive and possess” fuel is needed following approval of the 

construction license. This would be consistent with an established schedule for the initial 

review of the construction license application and could avoid dilatory procedural 

challenges that would undermine the government’s ability to meet its contractual 

obligations and avoid the significant costs of delay. 

Second, clarification must be provided as to what activities are authorized to 

develop used fuel management infrastructure prior to the NRC granting a construction 

license, including the construction of a rail line to connect the Yucca Mountain site with 

the national rail network. Regulatory authority for the transportation system needs to be 

clarified as well. 

Third, the hearing process for the authorization to receive and possess fuel should be 

simplified to provide for clear and concise decision-making. 

Finally, several key areas need clarification. These include land management and 

regulations that apply to repository construction and operations. In addition, there is a 

need to clarify which agencies will administer those regulations. 

H.R. 5360 addresses each of these issues to increase the prospect that the “bestachievable” schedule announced by DOE can be met. 

Congress Should Consider Additional Steps to 

Promote Comprehensive Used Nuclear Fuel Management 

While industry fully supports H.R. 5360 and believes its enactment would be a 

major milestone in implementing our national strategy for managing used nuclear fuel, 

we believe Congress should include a number of additional provisions in comprehensive 

legislation. 

DOE Should Move Used Nuclear Fuel From Reactor Sites as Soon as Possible 

The industry’s top priority is for the federal government to meet its statutory and 

contractual obligation to move used fuel from operating and decommissioned reactor 

sites. The government already is eight years delayed in meeting this obligation, and it 

will be at least another decade before the repository is completed. That failure is the 

subject of more than 60 lawsuits. These lawsuits potentially expose the federal 

government to billions of dollars in judgments and settlements. 

Further delays in federal receipt and movement of used nuclear fuel and defense 

waste products will only add to utility damage claims. According to DOE, these delays 

will increase taxpayer liability for defense waste site life-cycle costs and Yucca Mountain 

fixed costs. 

While DOE moves forward to license, construct and operate the Yucca Mountain 

repository, the government must take title to used fuel and move it to secure federal 

facilities as soon as practicable. A number of proposals have been made to address the 

issue of “interim or temporary storage.” 

The best approach would be for the federal government to begin to move fuel in 

proximity to the planned repository at the Nevada Test Site. 

We urge the Congress to evaluate alternative interim storage proposals. We recommend 

the following principles: 

• Minimize the number of interim storage sites to reduce costs and maximize 

efficiencies of consolidation. 

• Provide host site benefits ideally linking interim storage to recycling and 

reprocessing technology development as an incentive for voluntary 

participation. 
58

• Recognize that, while the Nuclear Waste Fund could be used to pay for this 

interim storage, it should not be used to develop the complementary 

technology. 

• NRC must be provided with the necessary resources and appropriate 

management focus. 

It appears that one or two temporary storage sites that provide benefits desired by 

the host state and community are the appropriate approach. Industry experience 

demonstrates that such facilities can be sited, licensed and constructed on an expedited 

schedule. We are encouraged that DOE has advised Congress, in its solicitation for 

prospective sites for nuclear fuel recycling facilities, that there will be, of necessity, some 

temporary storage of used nuclear fuel involved. Several communities have expressed 

initial interest in participating in such a project. We believe Congress should work with 

DOE, industry and potential host sites to determine what steps will best facilitate the 

movement of used fuel from utility sites, including appropriation mitigation benefits, and 

incorporate appropriate provisions into H.R. 5360. 

Both House and Senate Energy and Water Development appropriations bills for 

fiscal 2007 have provided direction on this issue. Although clear interest exists in 

looking at options for early movement of fuel, no option has demonstrated that it is 

politically and technically workable and could be accomplished in a timely manner. We 

believe a cooperative and supportive host site is critical to meeting these criteria. 

The industry does not believe that the “take title” approach suggested in H.R. 4538 

by any measure either meets the government’s statutory obligation or provides any 

benefit. The requirement in that legislation that all used fuel at reactor sites be moved 

immediately into dry cask storage could add up to $800 million a year over five years to 

the costs of producing nuclear energy. Regardless of the temporary storage strategy 

chosen, it is critical that those activities not divert attention and resources from repository 

development. 

New Reactor Waste Disposal Contract Issues Need to Be Addressed 

As utilities prepare to license and construct new nuclear power plants, it is important 

that appropriate changes be made in the Standard Contract for Disposal of Spent Nuclear 

Fuel and/or High-Level Radioactive Waste originally established by rulemaking (10 

CFR, Part 961) to reflect developments since these contracts were originally drafted in 

the 1980s. While the language in both the Nuclear Waste Policy Act and disposal 

contracts allows an existing contract to be amended adding new plants, DOE’s failure to 

perform, and the subsequent litigation, has created a situation where this option may be 

difficult to execute. Instead, the preferred path forward would be to enact legislation 

directing DOE to enter into new disposal contracts for new nuclear plants that are 

consistent in form and substance with the existing disposal contracts, but which take into 

account the schedule for the operation of new plants. In particular, the 1998 deadline in 

the existing contracts should be revised in contracts executed for new plants. 

Congress also should consider steps that could facilitate early resolution of future 

claims by utilities against the federal government for its continuing failure to meet its 

obligations under the Nuclear Waste Policy Act. 

Yucca Mountain Licensing Process Should Provide Flexibility to Address Future 

Developments 

As provided by existing regulations, Congress should direct DOE to incorporate 

features into its repository development plans that maintain flexibility for future 

generations to make informed decisions based on operational experience, changing 

energy economics and technological developments. It should be made clear that it was 
59

always the intent that the repository design retains the ability to monitor and, if needed or 

desired, retrieve the used fuel. 

The nuclear energy industry supports enhancements to the Yucca Mountain 

repository that would provide greater long-term assurance of safety and permit DOE to 

apply innovative technology at the repository as it is developed. These enhancements 

include: 

• extensive monitoring of the used nuclear fuel placed in the repository and its 

effects on the surrounding geology for 300 or more years 

• the ability to retrieve the used nuclear fuel from the facility for an extended 

period 

• periodic review of updates to the repository license that take into account 

monitoring results and ensures that the facility is operating as designed. 

DOE already has committed to facilitate the use of these elements in its repository 

planning. According to DOE’s final environmental impact statement, for a period of 50 

to 300 years, the federal government will “collect, evaluate and report on data” to assess 

the performance of the repository and the ability to retrieve the used fuel within the 

facility, if desired. In addition to monitoring material within the facility, DOE will 

conduct tests and analyses to ensure that the repository is constructed and operated 

according to strict guidelines. Although DOE is pursuing these elements, Congressional 

direction on the proposed enhancements would provide greater certainty on the scientific 

and regulatory oversight of long-term repository operation and the condition of the 

material stored there. 

Doing so would require no modification to the existing federal statutory or 

regulatory framework. DOE could include these enhancements as part of its “receive and 

possess” application and the commitment to complete them should be incorporated as a 

condition of the NRC license. 

This direction will offer greater assurance to the public that long-term stewardship 

of used fuel at Yucca Mountain will be carefully monitored throughout repository 

operation. It also would allow DOE to take advantage of future technological 

innovations to improve the repository or provide for the potential reuse of the energy that 

remains in the fuel. 

Yucca Mountain’s Public Health, Safety Standard 

Should Be Consistent With Regulatory Precedents 

We believe that the revised 1 million-year radiation standard proposed by the 

Environmental Protection Agency would be fully protective of public health and the 

environment, and that the repository design could meet such a standard. Nonetheless, we 

are deeply concerned that the potential for an extended rulemaking review process and 

subsequent litigation could result in yet more costly, unnecessary delays in the Yucca 

Mountain project. In addition, given the significance of the issue, we believe it is 

important for Congress to address the matter directly. 

Congress should carefully consider the inherent uncertainties in establishing 

regulations extended over such an unprecedented period. This approach could have 

unintended effects on regulatory standards for other non-radioactive and radioactive 

hazardous materials. We advocate incorporating a 10,000-year regulatory standard in 

legislation. Such a compliance period is consistent with that prescribed for all radioactive 

waste requiring disposal in other geologic repositories. The million-year standard applies 

only to Yucca Mountain. 

The 10,000-year standard, for example, applies to long-lived waste, such as 

transuranic waste at the Waste Isolation Pilot Plant. The 10,000-year standard also 

applies to land disposal of non-radioactive hazardous waste by means of underground 

injection. In fact, the 10,000-year standard is considerably greater than other, analogous 
60

regulatory compliance periods. These include 500 years for the land disposal of lowradioactive waste; and 1,000 years for the decommissioning of NRC licensed nuclear 

facilities. 

Adaptive Staging 

The 2003 report of the National Research Council of the National Academy of 

Science, “One Step at a Time.” recommended the use of adaptive staging for repository 

development. While there are elements of this concept that appear attractive, we have 

significant concerns that the specific processes recommended in the report could unduly 

complicate and delay repository licensing and operations due to lack of certainty in 

decision making. 

Used Nuclear Fuel Recycling 

The nuclear energy industry has shown consistent and strong support for research 

and development of advanced fuel-cycle technologies incorporated in the Advanced Fuel 

Cycle Initiative (AFCI). In anticipation of a major expansion of nuclear power in the 

United States and globally, it is appropriate to accelerate activities in this program. The 

resurgence in development of nuclear energy is expected to require advanced fuel cycles. 

However, regardless of the success of AFCI technology, a repository will be necessary to 

handle defense waste, as well as commercial used nuclear fuel and its byproducts, 

regardless of any fuel cycle that is ultimately developed. 

President Bush has presented a compelling vision for a global nuclear renaissance 

through the GNEP. This initiative provides an important framework to satisfy U.S. and 

world needs for an abundant source of clean, safe nuclear energy while addressing 

challenges related to fuel supply, long-term radioactive waste management, and 

proliferation concerns. As recently introduced by DOE, it may be possible that currently 

available technologies could be used creatively to jump-start the development of the 

needed advanced nuclear fuel cycle technologies. 

We appreciate the steps that DOE has taken to solicit industry views on the timing, 

direction and defining roles of interested parties in the Global Nuclear Energy 

Partnership. The extensive response the Department received to its Expression of Interest 

last week, and additional input it will receive in the coming months, will help DOE and 

Congress make more-informed decisions on the best way to proceed with research and 

development of these technologies. 

We recognize that Congress has important questions regarding this program. DOE’s 

near-term focus for GNEP is to determine, by 2008, how to proceed with the 

demonstration of advanced recycling technologies and other technological challenges. 

We also recognize that special attention must be given to how facilities would be licensed 

and the potential impact this could have on NRC resources for major licensing actions on 

new plants and Yucca Mountain in parallel periods. Consequently, the industry fully 

supports increased funding for AFCI in fiscal 2007. However, neither AFCI nor GNEP 

reduces the near-term imperative to develop the Yucca Mountain repository. 

A Constructive Role for Nevadans 

The nuclear energy industry supports an active and constructive role for Nevada in 

the development of Yucca Mountain to help ensure the safety of its citizens. The 

industry also supports compensation for the State to account for the program’s 

socioeconomic impact, as called for in the Nuclear Waste Policy Act. This model is 

consistent with the siting and operation of the Waste Isolation Pilot Plant. 

The industry is encouraged by the steps DOE has taken to work with affected local 

governments in the State, and we further encourage DOE to expand its interactions with 

Nevadans interested in constructive engagement in the project. The industry urges the 

Congress to include provisions in H.R. 5360 to foster these developments. 
61

Conclusion 

We must never lose sight of the federal government’s statutory responsibility for 

civilian used nuclear fuel disposal, as stated by Congress in the Atomic Energy Act of 

1954 and the Nuclear Waste Policy Act of 1982. The industry fully supports the 

fundamental need for a repository so used nuclear fuel and the byproducts of the nation’s 

nuclear weapons program are managed safely and securely in a specially designed, 

underground facility. World-class science has demonstrated that Yucca Mountain is an 

eminently suitable site for such a facility. 

A viable used fuel management strategy is necessary to retain long-term public 

confidence in operating existing nuclear power plants and in building new nuclear power 

plants to meet our nation’s growing electricity needs, and to fuel our economic growth. 

The public confidence necessary to support construction of new nuclear plants is linked 

to successful implementation of an integrated national used fuel policy, which includes a 

continued commitment for the long-term disposition of used nuclear fuel. This requires a 

commitment from the Administration, Congress and other stakeholders to ensure that 

DOE makes an effective transition from a scientific program to a licensing and 

construction program, with the same commitment to safety. New waste management 

approaches, including temporary storage and nuclear fuel recycling, are consistent with 

timely development of Yucca Mountain. 

Enactment of H.R. 5360, with the amendments we have advocated, is the critical 

prerequisite to implementing our national policy for used fuel management. 

 MR. HALL. Thank you very much. The Chair recognizes Ms. Boyd, 

Legislative Director, Public Citizen, for 5 minutes, please. Thank you. 

MS. BOYD. I would like to thank the Chairman and the members of 

the subcommittee for the opportunity to testify on issues related to 

nuclear waste storage and disposal. My name is Michele Boyd, and I am 

the Legislative Director of Public Citizen’s Energy Program. Public 

Citizen is a 35-year-old public interest organization with over 100,000 

members nationwide. We represent consumer interests through research, 

public education, and grassroots organizing. 

 Five years after the September 11 attacks, Congress has yet to 

implement safeguards that address our must vulnerable and dangerous 

security threat, the storage of highly radioactive spent fuel from 

commercial nuclear reactors. If any of the many spent fuel pools in the 

United States were breached through a terrorist attack or any other 

action, the health, environmental, and economic consequences could be 

catastrophic. National focus should be on addressing the immediate 

threats from vulnerable spent fuel storage, not on wasting resources on a 

failed repository program, a dangerous reprocessing plan, or interim 

away from reactor storage of waste. The most sensible action in the 

near-term is to require hardened on-site storage. 

 Clearly, the United States does not have a near-term solution for the 

permanent storage of spent fuel. DOE’s flawed scientific and quality 

assurance practices have repeatedly cast serious doubt on the validity of 

the work performed at Yucca Mountain. The Administration’s proposed 

Nuclear Fuel Management and Disposal Act fails to address any of the 
62

project’s fundamental problems. Instead, this bill overrides public health 

and safety laws and eliminates the role of science in determining whether 

or not Yucca Mountain can safely isolate nuclear waste for hundreds of 

thousands of years, as is required under the law. 

 This bill should not be enacted as it would be another failed attempt 

to prop up this deeply flawed project. In February the U.S. Department 

of Energy announced the Global Nuclear Energy Partnership as a 

research and development program to develop advanced recycling 

technologies that would in theory postpone the need to license additional 

geological repositories until the next century. International and U.S. 

experience, however, clearly shows that reprocessing at fast reactors are 

not going to solve our Nation’s radioactive waste problem. Rather, 

reprocessing would dramatically increase the threat from and complexity 

of dealing with our nuclear waste. 

 Reprocessing would also undermine U.S. global nonproliferation 

efforts and cost U.S. taxpayers at least $100 billion. For the foreseeable 

future reprocessing and plutonium fuel use simply does not make sense 

economically, environmentally, or from a national security perspective. 

With no permanent repository for nuclear waste, attention has turned to 

dry cask interim storage. According to a 2006 study by the National 

Research Council, dry casks were designed to store waste, not to resist 

terrorist attacks. The NRC has granted interim storage licenses at 42 

sites but it has not considered the environmental impacts of an attack at 

any of those sites. 

 Significantly, a recent 9th Circuit Court decision rejected the NRC’s 

claim that the National Environmental Policy Act does not require 

terrorism considerations. The current interim fuel storage proposals in 

the Senate and House fiscal year 2007 Energy and Water Appropriations 

bills also fail to address the security threats posed by dry cask storage. 

Away from reactor interim storage would not meaningfully reduce the 

number of locations where spent fuel is located and it would increase the 

transportation risk to the public. Instead of interim away from reactor 

storage the focus should be on improving the security of spent fuel at the 

sites. 

 The Bush Administration and Congress have urged Americans to pay 

greater attention to and take more responsibility for our national security. 

It is with that in mind that citizens and public interest groups have 

developed what we are calling the principles for safeguarding nuclear 

waste at reactors, which are being release today for the first time. I 

would like to submit for the record the list of 94 national and grassroots 

groups from 37 States that have signed on to these principles thus far. 

 The key elements of the principles are to, first, require a low-density, 

open-frame layout for spent fuel pools, which could allow enough air 
63

circulation to keep the fuel from catching fire in the event of a water loss 

in the pools due to an attack or an accident. Establish hardened on-site 

storage or HOSS for the waste removed from the pools. The overall 

objective of HOSS should be that the amount of releases projected in 

even severe attacks should be low enough that the storage system would 

be unattractive as a terrorist target. 

 Protect fuel pools to withstand an attack by air, land, or water from a 

force at least equal in size and coordination to the 9/11 attacks. Require 

periodic review of HOSS facilities and fuel pools and dedicate funding to 

local and State governments to independently monitor the site. And, 

finally, prohibit reprocessing. The Spent Nuclear Fuel On-Site Storage 

Security Act of 2005, which was introduced in both the House and the 

Senate by the Nevada and Utah delegations would be a good basis for 

incorporating these principles into law. I thank you again for the 

opportunity to testify in front of this committee. 

 [The prepared statement of Michele Boyd follows:] 

PREPARED STATEMENT OF MICHELE BOYD, LEGISLATIVE DIRECTOR, PUBLIC CITIZEN

I would like to thank the Chairman and members of the Subcommittee on Energy 

and Air Quality for the opportunity to testify on issues related to nuclear waste storage 

and disposal. My name is Michele Boyd and I am the Legislative Director of Public 

Citizen’s Energy Program. Public Citizen is a 35-year old public interest organization 

with over 150,000 members nationwide. We represent consumer interests through 

research, public education and grassroots organizing. 

Five years after the September 11 attacks, Congress has yet to implement safeguards 

that address our most vulnerable and dangerous security threat – the storage of highly 

radioactive spent fuel from commercial nuclear reactors in fuel pools. If any of the many 

spent fuel pools in the United States were breached through terrorist attack or any other 

action, the health, environmental, and economic consequences could be catastrophic. 

National focus should be on addressing the threats from this waste, not on wasting 

resources on a failed repository program, a dangerous reprocessing program, or interim 

away-from-reactor storage. The most sensible action in the near-term is to require 

hardened on-site storage. 

I am going to start with a discussion of the proposed geologic repository at Yucca 

Mountain in Nevada, followed by the Global Nuclear Energy Partnership (GNEP) and 

the proposal for interim storage. I will conclude with a plan developed by national and 

grassroots public interest groups to address the urgent need to protect the public from the 

threats posed by the current vulnerable storage of commercial spent fuel. Unlike the other 

proposed “solutions,” this proposal could be implemented in the near-term and would 

dramatically increase the safety of spent fuel for decades to come. 

Yucca Mountain 

Clearly, the United States does not have a near-term solution for the permanent 

storage of high-level nuclear waste. The U.S. Department of Energy’s (DOE) recent 

estimate of when Yucca Mountain will begin accepting waste is overly optimistic, 

because it does not factor in delays due to funding limitations or litigation and ignores the 

scientific problems with the site. Nor does DOE have a current estimate of how much the 
64

Project will cost. Energy Secretary Bodman stated in February that DOE “may never 

have an accurate prediction of the cost.”1

 

Even under DOE’s optimistic scenario, the proposed geologic repository at Yucca 

Mountain is not predicted to begin receiving waste until at least 2017. Transporting all of 

the waste to the site then would take more than 30 years. Meanwhile, spent fuel at 

reactor sites remains vulnerable to accidents and attacks for decades. 

DOE’s flawed scientific and quality assurance practices have cast serious doubt on 

the validity of the work performed at Yucca Mountain. Quality assurance (QA) is crucial 

to sound science and engineering, especially for a project employing thousands and 

spanning several decades. QA is used to verify methods and results, and is the very 

backbone of scientific research and engineering design. Since 1988, the Government 

Accountability Office has issued eight reports repeatedly criticizing DOE’s quality 

assurance and model validation programs. An August 2006 report by the DOE’s Office of 

Inspector General concluded that DOE’s Corrective Action Program to identify and 

resolve the ongoing QA problems “was not effectively managing and resolving 

conditions adverse to quality at the Yucca Mountain Project,” including omitting 

problems from the Corrective Action Program, failing to implement the corrective actions 

in a timely manner, and failing to solve the underlying problem even when implemented.2

 

New cases of scientific misconduct continue to surface. Some of the more recent 

revelations include: 

• In January 2006, the NRC staff released a critical report of a Bechtel SAIC 

LLC (BSC) audit made last fall at Lawrence Livermore National Laboratory. 

The Bechtel audit was on research related to corrosion rates of the metals to be 

used to construct the waste packages and drip shields. The NRC found that 

researchers incorrectly measured the amount of corrosion on the metals, and 

overestimated the ability of the metals to isolate nuclear waste in engineered 

packages. The NRC also found that researchers failed to calibrate equipment, 

used equipment beyond its verifiable accuracy range, and referenced cancelled 

documents. According to the NRC’s audit report, “the NRC observers 

questioned whether the corrosion data could be considered technically sound 

and defensible.”3

 Because of the problems NRC discovered, DOE issued a stop 

work order on all cask research. 

• In December 2005, DOE instructed BSC, its main contractor, to cease 

engineering work and safety assessment on key areas of design, including the 

redesign of the surface facility. This order was the result of QA and design 

control deficiencies, which were revealed by a whistleblower.4

 Despite 

Bechtel’s failings, DOE nevertheless extended its contract for another year, 

with an option for a second year. 

• In March 2005, it was revealed that U.S. Geologic Survey (USGS) scientists 

studying water infiltration and climate at Yucca Mountain in Nevada altered 

and omitted various data related to QA of the modeling of water flow through 

the ground at Yucca Mountain. Faster water movement will cause increased 

amounts of radioactive waste to migrate more rapidly through the ground to the 

 

1

 Matthew L. Wald, “Big Question Marks on Nuclear Waste Facility,” New York Times, February 

14, 2006. 

2

 U.S. Department of Energy, Office of Inspector General, “Audit Report: Office of Civilian 

Radioactive Waste Management’s Corrective Action Program,” August 2006, DOE/IG-0736, 

http://www.ig.doe.gov/pdf/IG-0736.pdf. 3

 U.S. Nuclear Regulatory Commission, “U.S. Nuclear Regulatory Commission Observation Audit 

Report No. OAR-05-05, Observation Audit Of Bechtel SAIC Company, LLC Internal Audit BQAPBSC-05-07,” January 9, 2006. 

4

 Jeff Beattie, “Quality Control Issues: DOE Stops Work On Key Parts of Yucca Mountain,” The 

Energy Daily, Volume 34, Number 6, January 10, 2006. 
65

aquifer. DOE hired Sandia National Laboratory to create new infiltration 

models redo all of the infiltration analyses that were a primary basis for its 2002 

Yucca Mountain Site Recommendation. 

The Administration’s proposed “Nuclear Fuel Management and Disposal Act” (H.R. 

5360 and S. 2589) has the goal to “facilitate the licensing, construction and operation” of 

Yucca Mountain, but in fact it fails to address any of the project’s fundamental problems. 

Rather, this bill is about overriding public health and safety laws and eliminating the role 

of science in determining whether Yucca Mountain can safely isolate nuclear waste for 

hundreds of thousands of years, as is required under the law. This bill is fundamentally 

contrary to the findings and purposes of the Nuclear Waste Policy Act (section 111), 

including a finding “to ensure that such waste and spent fuel do not adversely affect 

public health and safety and the environment for this or future generations.” Specifically, 

the bill: 

• Weakens Public Health and Environmental Laws: If enacted, the bill would 

waive state and local air quality laws at the site, and preempt states’ traditional 

authority to manage its waters, setting an alarming precedent for other DOE 

projects and sites. The bill would undermine the National Environmental Policy 

Act (NEPA) by exempting DOE from having to consider the need for the 

action, alternative actions, or a no-action alternative—the key analyses of an 

environmental impact statement—and legislating that any action related to the 

site is “beneficial” before an analysis of the action has been done under NEPA. 

• Preempts State and Tribal Rights: All authority over the transportation of 

radioactive waste would be given to DOE, contrary to the National Academy of 

Sciences’ recommendation that state, local, and tribal governments must play a 

central role in waste transportation.5

 The bill would pre-empt all states’ 

authority over the management of hazardous, mixed, low-level, and transuranic 

wastes under the Resource Control and Recovery Act (RCRA) if that waste is 

stored or transported in NRC-certified containers, as is the waste transported to 

and stored at the Waste Isolation Pilot Plant (WIPP) in New Mexico. 

• Politicizes Scientific and Technical Decisions: The bill would codify NRC’s 

Waste Confidence Rule that there will be permanent disposal available for 

spent fuel “in a timely manner,” thereby bypassing what should be a scientific 

and technical determination. This sets up the federal government for additional 

lawsuits by the nuclear industry for failing to meet its commitments. It also 

rewards DOE’s mismanagement of the Yucca Mountain project with direct 

access to future revenue into the Nuclear Waste Fund, and allows an unlimited 

amount of waste to be dumped at the site, despite the lack of scientific site 

characterization information necessary to support such a decision. 

This bill should not be enacted, as it would be another failed attempt to prop up this 

failed project. 

Reprocessing 

When the Global Nuclear Energy Partnership (GNEP) was first announced in 

February of this year, the U.S. Department of Energy presented it as “a comprehensive 

strategy to increase U.S. and global security, encourage clean development around the 

world, reduce the risk of nuclear proliferation, and improve the environment.”6

 The 

 

5

 National Research Council of the National Academies, Going the Distance? The Safe Transport of 

Spent Nuclear Fuel and High-Level Radioactive Waste in the United States, 2006. 6

 U.S. Department of Energy, The Global Nuclear Energy Partnership: Greater Energy Security in a 

Cleaner, Safer World, http://www.gnep.energy.gov/pdfs/06-GA50035b.pdf. 
66

program was presented to Congress largely as a research and development program to 

develop “advanced recycling technologies” that would postpone the need to license 

additional geologic repositories for the nation’s high-level waste until the next century. 

The key components of a reprocessing and reuse program include reprocessing plants, 

fuel fabrication facilities, and fast reactors, none of which have proven to be 

commercially successful technologies in the United States or abroad. 

Since then, the program has morphed several times. In the most recent reincarnation 

announced in August, DOE is now proposing to two tracks: 

1. Building a commercial-scale reprocessing plant and a fast neutron reactor that 

uses plutonium fuel with existing or soon-to-be-developed technologies. 

2. Researching and developing transmutation fuel and its use in fast reactors. 

In other words, DOE is proposing to jettison most of its research on “advanced 

recycling technologies” and to skip demonstration facilities using what DOE claimed 

would be cleaner and “proliferation-resistant” technologies. 

U.S. and international experience clearly shows that reprocessing is not going to 

solve our nation’s radioactive waste problem. Rather, reprocessing would dramatically 

increase the threat from, and complexity of dealing with, nuclear waste from power 

plants; undermine U.S. global nonproliferation efforts; and cost U.S. taxpayers at least 

$100 billion. 

Reprocessing was first used in the United States in the 1940s, as part of the 

government’s program to separate plutonium for nuclear weapons. The U.S. Department 

of Energy estimates that it will cost over $100 billion to clean up the reprocessing waste 

at three nuclear weapons sites in the states of Washington, Idaho, and South Carolina.7

 

This waste threatens to contaminate the Columbia River and the Savannah River, two of 

the most important water resources in the country. The only U.S. commercial 

reprocessing facility was located in West Valley, N.Y. It was an economic and 

environmental failure, closing in 1972 after taking six years to reprocess spent fuel that 

was initially expected to take one year. It left behind a $5.2 billion cleanup project that is 

still on-going more than 30 years later.8

 

International experience is no better. France, England, Russia, India, and soon 

Japan are the only countries in the world that have commercial reprocessing 

facilities. China is in the design phase of a pilot facility. All of these programs are 

heavily subsidized by their governments. A July 2000 report commissioned by the French 

government concluded that reprocessing and plutonium fuel are uneconomical, costing 

nearly $1 billion more each year for plutonium fuel use (in 20 of its 58 reactors) 

compared to a “once-through” fuel cycle.9

 Last year, 20 tons of uranium and plutonium 

leaked from a pipe at the U.K. government-owned THORP reprocessing plant. The plant, 

which was losing money even when operational, remains closed and its future is 

uncertain. Meanwhile, the Japanese company, Japan Nuclear Fuel Ltd., recently started 

up its Rokkasho reprocessing plant, which took 15 years to build and cost US $20 billion, 

three times more than initially estimated. 

 

7

 United States General Accounting Office, Report to the Chairman, Subcommittee on Oversight and 

Investigations, Committee on Energy and Commerce, House of Representatives, Nuclear Waste: 

Challenges to Achieving Potential Savings in DOE's High-Level Waste Cleanup Program, GAO-03-

593, June 2003. 

8

 U.S. Department of Energy, West Valley Demonstration Project Draft Waste Management 

Environmental Impact Statement, May 2003. 

9

 Annie Makhijani, “French Report Doubts Merits of Reprocessing and MOX,” Science for 

Democratic Action Vol.9 No.2, February 2001, http://www.ieer.org/sdafiles/vol_9/9-2/charpin.html. 
67

Commercial reprocessing worldwide has resulted in about 250 metric tons of 

separated plutonium, which is vulnerable to theft.10 This is equivalent to more than 

30,000 nuclear bombs. When GNEP was first proposed in February 2006, DOE stated 

that it did not want to use reprocessing technology that results in separated plutonium. 

According to Clay Sell, Deputy Secretary of Energy, on February 16, 2006: 

It is our goal to develop a technology that allows us to recycle in a way that is 

proliferation resistant. And when I say proliferation resistant, what I mean is pure 

plutonium is not separated as part of the recycling process; it is bound together with the 

other long-life actinides which makes the material of a sufficient quantity and of a 

sufficient heat load that concerns about diversion as a proliferation matter are greatly 

reduced, so that is a key technology that we seek to develop in partnership with our 

international partners -- advanced recycling.11 [Emphasis added] 

The two reprocessing technologies (UREX+ and pyroprocessing) that DOE is 

researching are not “proliferation-resistant,” because the resulting plutonium mixes from 

these technologies are not sufficient to prevent theft. Moreover, both technologies can 

easily be undone to obtain pure plutonium using the old, 1940s technology (PUREX). 

Now, however, DOE is proposing to use a technology that results in a mix of plutonium 

with uranium, which is even less proliferation-resistant than UREX+. According to the 

International Atomic Energy Agency, plutonium-uranium mixtures are “direct use 

materials” and must be secured like separated plutonium.12

According to a 1996 report by the National Research Council, costs of reprocessing 

and transmutation of spent fuel that has already been discharged by existing U.S. reactors 

“easily could be more than $100 billion” (1996 dollars).13 The French reprocessing firm 

Areva hired The Boston Consulting Group to issue a report on the cost of reprocessing 

and plutonium fuel use in light-water reactors. The report concludes that reprocessing is 

economically comparable to the once-through cycle, but it relies on unrealistic 

assumptions that do not reflect real-world experience, such as assuming that the facility 

will continuously operate at full capacity with no technical problems or other delays and 

that its capacity can be increased significantly without a large increase in capital or 

operating costs.14 Notably, the Boston report contains the following disclaimer: 

This report was prepared by The Boston Consulting Group at the request of 

AREVA. BCG reviewed publicly available information and proprietary data provided by 

AREVA, but did not undertake any independent verification of the facts contained in 

those source materials. Changes in these facts or underlying assumptions could change 

the results reported in this study. Any other party using this report for any purpose, or 

relying on this report in any way, does so at their own risk. No representation or 

warranty, express or implied, is made in relation to the accuracy or completeness of the 

 

10 Steve Fetter and Frank N. von Hippel, “Is U.S. Reprocessing Worth the Risk?”, Arms Control 

Today, September 2005, p. 6-12. Irradiated fuel is extremely radioactive, which acts as a protective 

barrier to theft of plutonium. Separated commercial plutonium can be used to make nuclear weapons 

and so-called “dirty bombs.” 

11 Clay Sell and Robert Joseph, Presentation on the Global Nuclear Energy Partnership (GNEP) at 

the Foreign Press Center Briefing, Washington, DC, February 16, 2006, 

http://fpc.state.gov/fpc/61808.htm. 

12 IAEA Safeguards Glossary 2001 Edition, http://www-pub.iaea.org/MTCD/publications/PDF/nvs3-cd/PDF/NVS3_prn.pdf. 

13 U.S. National Research Council, Committee on Separations Technology and Transmutation 

Systems, Nuclear Wastes: Technologies for Separations and Transmutation, National Academy 

Press, Washington DC (1996), http://newton.nap.edu/catalog/4912.html 14 Economic Assessment Of Used Nuclear Fuel Management In The United States, Prepared by the 

Boston Consulting Group for AREVA, July 2006, 

http://www.bcg.com/publications/files/2116202EconomicAssessmentReport24Jul0SR.pdf 
68

information presented herein or its suitability for any particular purpose. [Emphasis 

added.] 

DOE is proposing to use fast reactors to convert long-lived waste into shorter-lived 

waste in order to reduce the amount of time that the radioactive waste is dangerous and 

must be stored in a geologic repository. But this process, called transmutation, is plagued 

by serious technical problems, such as low rates of conversion from long- to short-lived 

waste, unproven fuel fabrication systems, and dangers to workers making the fuel.

Countries, including the US, have been trying to develop fast reactors for 50 years 

and the results have all been technical and economic failures. Over twenty fast reactors 

have been built since 1951 in seven countries, all of which have been funded through 

government programs. Eleven of the reactors were large-scale designs (over 100 

megawatt-thermal), eight of which have been shut down as of 2006. Only three reactors 

still operate: the French Phènix reactor, the Russian BN-600 reactor, and the small 

experimental Joyo reactor in Japan. 

Fast reactors are more prone to accidents than light water reactors because they

operate with faster-moving neutrons than light water reactors, making them more difficult 

to control. In the United States, the Fermi 1 fast reactor near Detroit had a partial nuclear 

meltdown in October 1966 and a sodium explosion in 1970. The reactor was closed in 

1972. The French and Russian reactors also have had safety problems, such as leaking 

highly flammable sodium. A serious accident at the fuel fabrication facility for the 

Japanese plant resulted in the death of two workers in 1999. Except for the Russian 

reactor, fast reactors have operated less than 50 percent of the time as a result of the 

ongoing safety problems. 

More than $100 billion has been spent globally in the past 50 years on fast reactor 

construction, reprocessing and other efforts to make plutonium a viable reactor fuel.15

More than $25 billion of that has been spent in building fast reactors.16 Due to the 

materials and the complexity of the design, the cost of building fast reactors is 

significantly higher than the cost of light water reactors. The Superphénix reactor in 

France cost $9.1 billion to construct; the smaller Monju reactor in Japan cost $5.9 billion. 

To achieve GNEP’s goal to reduce the volume of waste that must be stored in a 

geologic repository, the U.S. would need approximately one fast reactor to every three 

light water reactors. This would cost an additional $80 to $100 billion for 20 to 25 fast 

reactors to transmute the waste from the current 103 operating reactors.17 Given the $12 

billion in subsidies and tax breaks, along with other incentives, that it has taken to 

convince U.S. utilities to build new reactors (and not a single utility has fully committed 

at this point), these fast reactors would require massive taxpayer subsidies. 

I would like to thank the House of Representatives for cutting $130 million for 

GNEP in the FY2007 Energy and Water Development Appropriations Act (H.R. 5427). 

Existing technology and our current level of knowledge do not provide direct paths to 

nuclear recycling. For the foreseeable future, GNEP is not a program that will reduce 

amounts of high-level nuclear waste. Rather than being a part of the nuclear waste 

disposal solution, GNEP will be a costly new problem for the future. 

 

15 Arjun Makhijani, Plutonium End GameManaging Global Stocks of Separated Weapons-Usable 

Commercial and Surplus Nuclear Weapons Plutonium, Institute for Energy and Environmental 

Research, January 2001, p.27, http://www.ieer.org/reports/pu/index.html. 16 Ibid., p.21. 

17 Thomas Cochran and Christopher Paine, Peddling Plutonium: Nuclear Energy Plan Would Make 

the World More Dangerous, Natural Resources Defense Council, March 2006. 
69

Private Fuel Storage 

Without a permanent repository available in the near-term, there has been interest in 

away-from-reactor dry cask interim storage of spent fuel. The only site to be licensed by 

the Nuclear Regulatory Commission for away-from-reactor interim storage is Private 

Fuel Storage (PFS) located on the Reservation land of the Skull Valley Band of Goshutes 

in Utah, which now appears unlikely to open. On September 7, 2006, the Bureau of Land 

Management denied a right-of-way for a rail line to the site and a proposal to transport 

the waste with heavy-haul trucks. More than 4,500 letters, primarily from people from 

Utah opposed to the facility, were sent to the BLM. 

The Bureau of Indian Affairs also denied approval of the PFS lease of the tribal 

land, listing among other concerns: 

• inadequate law enforcement support for the site, 

• the lack of a transportation alternative, 

• uncertainty about the availability of a permanent repository, and 

• the lack of an analysis on the environmental impacts of a terrorist attack. 

In a recent federal court decision, San Luis Obispo Mothers for Peace, et al. v. 

United States, the Ninth Circuit Court rejected the NRC’s claim that the National 

Environmental Policy Act (NEPA) does not require consideration of the environmental 

effects of potential terrorist attacks. The four grounds that the NRC used to justify its 

claim were based on factors it used in rejecting the State of Utah’s contention that the 

environmental impacts of terrorism should be analysed in the PFS EIS. The NRC had 

ruled that (1) the possibility of a terrorist attack is far too removed from the natural or 

expected consequences of agency action; (2) because the risk of a terrorist attack cannot 

be determined, the analysis is likely to be meaningless; (3) NEPA does not require a 

“worst-case” analysis; and (4) NEPA’s public process is not an appropriate forum for 

sensitive security issues. The Ninth Circuit Court concluded: 

In sum, none of the four factors upon which the NRC relies to eschew consideration 

of the environmental effects of a terrorist attack satisfies the standard of reasonableness. 

In its decision on the PFS lease, the BIA reviewed the Ninth Circuit Court decision 

and concluded that “the court’s sweeping rejection of the same factors NRC relied on in 

rejecting the State of Utah’s contention in the PFS licensing proceedings leaves us 

distinctly unsatisfied at best that the effects of a terrorist-initiated event have been given 

adequate consideration.”18 

Interim storage proposals in the FY2007 Energy and Water Appropriations Bills 

According to a 2006 study on spent nuclear fuel storage by the National Research 

Council, “dry casks were designed to ensure safe storage of spent fuel, not to resist 

terrorist attacks.”19 The NRC has not analyzed the environmental impacts of a terrorist 

attack for any of the 42 sites for which it has granted dry cask storage licenses. The 

current proposals in the Senate and House FY2007 Energy and Water Appropriations 

bills also fail to address the security threats posed by dry cask storage. 

The Senate version of the FY2007 Energy and Water Appropriations bill (H.R. 

5427) contains an authorizing provision that requires states with nuclear reactors to 

designate at least one site in that state for 25-year interim waste storage, called a 

Consolidation and Preparation (CAP) facility. The House FY2007 Energy and Water 

Appropriations bill (H.R. 5427) requires DOE to “conduct a voluntary, competitive 

 

18 Bureau of Indian Affairs, Record of Decision for the Construction and Operation of an 

Independent Spent Fuel Storage Installation (ISFSI) on the Reservation of the Skull Valley Band of 

Goshute Indians (Band) in Tooele County, Utah, September 7, 2006, page 22. 19 National Research Council of the National Academies, Safety and Security of Commercial Spent 

Nuclear Fuel Storage: Public Report, 2006, page 64. 
70

process to select one or more interim storage sites” by either re-issuing Request for 

Expressions of Interest for GNEP (interim storage at the “integrated recycling facilities”) 

or issuing a new Request for Proposals for interim storage alone. 

There are numerous reasons why away-from-reactor storage is not even a temporary 

waste solution. First, creating away-from-reactor surface storage sites would not 

meaningfully reduce the number of locations where high-level radioactive waste is 

stored, as long as most commercial nuclear power plants remain in operation for decades 

to come. Nuclear waste generated at nuclear power plants must be stored on site for at 

least five years to thermally cool and radioactively decay before it can be transported off 

site. Thus, any operating reactor will inevitably have at least five years’ worth of 

irradiated nuclear fuel – approximately 100 tons – stored on site. 

Second, rather than reduce risks, centralized interim storage would increase 

transport risks to public health, safety, and security. Centralized interim storage would 

double the number of waste shipments required, and greatly increase the number of 

shipment miles to be driven, because the waste would eventually need to be transported 

from the interim site to a permanent site. According to a February 2006 National 

Academy of Sciences study on the transport of nuclear waste, “an independent 

examination of the security of spent fuel and high-level waste” needs to be performed 

“prior to the commencement of large-quantity shipments.”20 [Emphasis added] The NAS 

report also concluded that “extreme accident conditions involving very-long-duration 

fires could compromise” waste shipping containers and advised that the U.S. Nuclear 

Regulatory Commission (NRC) do additional analyses of such accident scenarios. 

Third, interim storage at DOE sites would be contrary to legal agreements made 

with States and tribes. DOE has committed to cleaning up these sites, not adding more 

pollution to them. In addition, DOE sites are not licensed by the NRC for commercial 

nuclear waste storage. The only exception is at the Idaho National Engineering 

Laboratory, which has a storage license limited to nuclear fuel debris from the Three 

Mile Island nuclear reactor accident. 

Fourth, given the extreme difficulty faced in opening this country’s first permanent 

repository, it is unlikely that additional or alternative repository space will be available 

soon. Thus, “interim” storage sites would become long-term “overflow parking” for highlevel radioactive wastes with nowhere else to go. In its decision to reject the lease for 

PFS, the Bureau of Indian Affairs concluded that the “uncertainty concerning when the 

SNF [Spent Nuclear Fuel] might leave trust land, combined with the [Interior] 

Secretary’s practical inability to remove or compel its removal once deposited on the 

reservation, counsel disapproval of the proposed lease.”21

Tucked into a large appropriations bill, the Senate’s CAP provision would result in a 

sweeping change to the country’s nuclear waste policy without hearings or public debate. 

It also provides an unreasonably short timeline: only 9 months to choose sites, potentially 

in all 31 states with nuclear power reactors, and a total of only 31⁄2 years for siting and 

licensing of those sites. The bill also limits the scope of NEPA review to the 25-year 

license period, which is contrary to 35 years of NEPA practice and does not represent the 

actual long-term effects that could occur. 

The bill also codifies the NRC’s Waste Confidence Rule by concluding that a 

permanent disposal for the waste would be available “in a timely manner.” As described 

in the section on the Administration’s proposed Yucca legislation, codifying Waste 

Confidence would not change the reality that we do not have a viable, permanent solution 

 

20 National Research Council of the National Academies, Going the Distance? The Safe Transport of 

Spent Nuclear Fuel and High-Level Radioactive Waste in the United States, 2006. 21 Bureau of Indian Affairs, Record of Decision for the Construction and Operation of an 

Independent Spent Fuel Storage Installation (ISFSI) on the Reservation of the Skull Valley Band of 

Goshute Indians (Band) in Tooele County, Utah, September 7, 2006, page 29. 
71

for nuclear waste. In its decision on PFS, the BIA found that “The Commission’s 1999 

Waste Confidence Decision restated the 1990 prediction that a permanent facility might 

be available sometime within the first quarter of the 21st Century, but cited no compelling 

additional support for that contention.”22

Thus far, at least four Governors, the Coalition of Northeastern Governors, and 10 

Attorneys General have sent letters in opposition to the Senate provision. The National 

Conference of State Legislators, the National Association of Counties, the National 

League of Cities, and the U.S. Conference of Mayors have also urged that the Senate 

CAP provision be removed from the final bill. 

Moving commercial irradiated nuclear fuel to indefinite “interim” surface storage at 

DOE or other sites would simply create the illusion of a waste solution. Instead, the 

safety and security of waste storage at reactor sites across the U.S. should be improved. 

Away-from-reactor storage of spent fuel, as proposed in both the House and Senate 

versions of the FY2007 Energy and Water Appropriations bill, should be rejected. 

So what should be done to protect the public from the threats posed by the current 

vulnerable storage of commercial spent fuel? Public interest groups from around the 

country have developed Principles for Safeguarding Nuclear Waste at Reactors, which 

are being released for the first time today. The Spent Nuclear Fuel On-Site Storage 

Security Act of 2005, introduced in both the House (H.R. 4538) and Senate (S. 2099) by 

the Nevada and Utah delegations, is a good basis for incorporating these principles into 

law. 

Principles for Safeguarding Nuclear Waste at Reactors 

The following principles are based on the urgent need to protect the public from the 

threats posed by the current vulnerable storage of commercial irradiated fuel. The United 

States does not have a near-term solution for the permanent storage of high-level nuclear 

waste. The proposed Yucca Mountain site is unsafe for geologic storage of nuclear waste 

and the program remains mired in bad science, mismanagement, and yet another design 

overhaul. Even if licensed, Yucca Mountain could not legally contain all of the waste 

produced by existing reactors. Under the U.S. Department of Energy’s unrealistically 

optimistic scenario, Yucca Mountain is not predicted to begin receiving waste until at 

least 2017 and transporting waste to the site would take more than 30 years. Meanwhile, 

irradiated fuel at reactor sites remains vulnerable to accidents and attacks. 

The undersigned organizations’ support for improving the protection of radioactive 

waste stored at reactor sites is a matter of security and is in no way an indication that we 

support nuclear power and the generation of more nuclear waste. 

♦ Require a low-density, open-frame layout for fuel pools: Fuel pools were 

originally designed for temporary storage of a limited number of irradiated fuel 

assemblies in a low density, open frame configuration. As the amount of waste 

generated has increased beyond the designed capacity, the pools have been 

reorganized so that the concentration of fuel in the pools is nearly the same as 

that in operating reactor cores. If water is lost from a densely packed pool as the 

result of an attack or an accident, cooling by ambient air would likely be 

insufficient to prevent a fire, resulting in the release of large quantities of 

radioactivity to the environment. A low-density, open-frame arrangement 

within fuel pools could allow enough air circulation to keep the fuel from 

catching fire. In order to achieve and maintain this arrangement within the 

pools, irradiated fuel must be transferred from the pools to dry storage within 

five years of being discharged from the reactor. 

 

22 Bureau of Indian Affairs, Record of Decision for the Construction and Operation of an 

Independent Spent Fuel Storage Installation (ISFSI) on the Reservation of the Skull Valley Band of 

Goshute Indians (Band) in Tooele County, Utah, September 7, 2006, page 28.
72

♦ Establish hardened on-site storage (HOSS): Irradiated fuel must be stored as 

safely as possible as close to the site of generation as possible. Waste moved

from fuel pools must be safeguarded in hardened, on-site storage (HOSS) 

facilities. Transporting waste to 

interim away-from-reactor storage should not be done unless the reactor site is 

unsuitable for a HOSS facility and the move increases the safety and security of 

the waste. HOSS facilities must not be regarded as a permanent waste solution, 

and thus should not be constructed deep underground. The waste must be 

retrievable, and real-time radiation and heat monitoring at the HOSS facility 

must be implemented for early detection of radiation releases and overheating. 

The overall objective of HOSS should be that the amount of releases projected 

in even severe attacks should be low enough that the storage system would be 

unattractive as a terrorist target. Design criteria that would correspond to the 

overall objective must include: 

• Resistance to severe attacks, such as a direct hit by high-explosive or 

deeply penetrating weapons and munitions or a direct hit by a large 

aircraft loaded with fuel or a small aircraft loaded with fuel and/or 

explosives, without major releases. 

• Placement of individual canisters that makes detection difficult from 

outside the site boundary. 

♦ Protect fuel pools: Irradiated fuel must be kept in pools for several years 

before it can be stored in a dry facility. The pools must be protected to 

withstand an attack by air, land, or water from a force at least equal in size and 

coordination to the 9/11 attacks. The security improvements must be approved 

by a panel of experts independent of the nuclear industry and the Nuclear 

Regulatory Commission. 

♦ Require periodic review of HOSS facilities and fuel pools: An annual report 

consisting of the review of each HOSS facility and fuel pool should be prepared 

with meaningful participation from public stakeholders, regulators, and utility 

managers at each site. The report must be made publicly available and may 

include recommendations for actions to be taken. 

♦ Dedicate funding to local and state governments to independently monitor 

the sites: Funding for monitoring the HOSS facilities at each site must be 

provided to affected local and state governments. The affected public must 

have the right to fully participate. 

♦ Prohibit reprocessing: The reprocessing of irradiated fuel has not solved the 

nuclear waste problem in any country, and actually exacerbates it by creating 

numerous additional waste streams that must be managed. In addition to being 

expensive and polluting, reprocessing also increases nuclear weapons 

proliferation threats.

 MR. HALL. All right. We thank you for that. 

 We will start, Mr. Wise, to ask you a question. I understand that the 

Southern Company has indicated their interest in building new nuclear 

plants in Georgia, and as Chairman of the Georgia Public Service 

Commission, what do you think needs to happen with regard to the spent 

fuel issue in order for the commission to support any new nuclear 

construction? 
73

 MR. WISE. Well, there are two things, Mr. Chairman. I thank you 

for the question. And we have been supportive of the early plans for the 

company to start the process. In fact, we have authorized some 

accounting order where the company can input their expenses, and if in 

fact prudently incurred will be able to recover them from the rate payer. 

But then to the issue of storage, we think it is vital and Georgians have 

paid close to $1 billion with paying into the Fund and the value of the 

Fund and the life of with the expectation that we would have a national 

fuel repository with the idea in mind that it was Yucca Mountain. And 

so we think it is vital that Yucca Mountain is opened and that Georgians 

get what they paid for. 

 MR. HALL. I thank you. Mr. Earley, among the additional actions 

that you urged Congress to take is incorporation of features in the 

repository development plan to maintain flexibility for the future 

generations. Why don’t you just expound on that a little why you think 

that is important. 

 MR. EARLEY. Certainly, Mr. Chairman. We believe that technology 

will change substantially over time. If we look at the time frame 

between the passage of the Atomic Energy Act in 1954 and today, 

technology has changed tremendously, and we expect to see tremendous 

changes in the future. And we should have a repository that has the 

flexibility to take advantage of those technology changes to either 

improve the technology for storage or when we wake up at some point 

and say there is huge value in this fuel to pull it out and reprocess it, we 

need to have the flexibility to do that. 

 MR. HALL. I thank you. I recognize Mr. Boucher. 

 MR. BOUCHER. Thank you, Mr. Chairman. And let me thank the 

witnesses also for their testimony here. Mr. Wise, let me just confirm 

your view that if we are to have interim storage at one or more facilities 

across the United States that the funding for that should not derive from 

the Nuclear Waste Fund, but should derive from other appropriations 

particularly devoted toward that purpose. Is that your view? 

 MR. WISE. Yes, sir, that is exactly correct. 

 MR. BOUCHER. If we are to have interim storage, what role do you 

see the governors of the various States playing in helping to select sites 

or to comment on proposals that are made with regard to where the sites 

should be? 

 MR. WISE. Well, one of the things that we would expect was that the 

governors would play an active role in it. I am not sure that they would 

be looking to help you select a site, but might in fact be opposed to 

additional interim sites. Some would say that because of the failure to 

open the national repository that we paid for is that we have a form of 

interim storage in our State today at our nuclear sites. 
74

 MR. BOUCHER. We do indeed. Let me get you to react to Mr. 

Earley’s recommendation that if we are to have interim storage the 

number of sites be few, that Yucca Mountain be one, and that perhaps 

the sites be chosen through an incentive-based process with the idea 

being that interim storage would occur at the same places where 

reprocessing might occur under the global reprocessing initiative. That 

is not the exact term. But that there be incentives put forward based 

upon the location of these reprocessing sites in conjunction with interim 

storage. Do you think that recommendation has value, and what would 

NARUC’s view of that be? 

 MR. WISE. Yes, sir. And, in fact, NARUC does take the position 

that it should be--if there are interim sites Yucca should be one of them, 

that there should be very few, and I don’t believe that we have spoken as 

a group to the incentive based concept that you talked about on 

reprocessing. 

 MR. BOUCHER. What is your personal opinion? 

 MR. WISE. Personally, I am a big believer in incentive-based 

regulation and compensation to encourage the right thing to happen. 

 MR. BOUCHER. Mr. Earley, let me ask a couple of questions to you. 

You have stated in your testimony that you would favor offsetting 

collections legislation. This would be a means to assure the integrity for 

the Nuclear Waste Fund, future contributions into the Fund to assure that 

those monies are dedicated to the purpose for which they are intended. 

That is the waste storage program. What is your view with respect, and 

what is NEI’s view, with respect to the $19 billion that is the corpus of 

the Fund today based upon rate payer contributions that have been made 

since the Fund’s inception? Should we take steps to protect that also? 

 MR. EARLEY. Absolutely, and that has been our position that we 

should take steps to protect that and make sure that it goes for its 

intended purpose, which was for the development of a waste storage 

facility. My comments reflected the current bill that has been proposed. 

We certainly support that as a first step, but we also would support 

initiatives to make sure that we protect that corpus. 

 MR. BOUCHER. Should we while we are considering the 

Administration’s bill amend it to have the protection for the $19 billion 

to make sure that that money goes to its intended purpose? 

 MR. EARLEY. We certainly would support that if we thought that 

that was something that was feasible to be able to do. 

 MR. BOUCHER. Would you like to recommend some language to us 

that might help achieve that? 

 MR. EARLEY. We certainly will be prepared to do that. 

 MR. BOUCHER. Thank you, Mr. Earley. Let me ask you also the 

question about interim storage. I noted your support for the idea of 
75

interim storage, and with respect to funding for interim storage, do you 

believe that the funding should derive from the Nuclear Waste Fund or 

should we require special appropriations in order to finance that 

program? 

 MR. EARLEY. We would support using the Nuclear Waste Fund for 

interim storage on this very narrowly focused, and we think incremental 

approach that supports a move towards Yucca Mountain. As I said, we 

support a repository at or certainly near Yucca Mountain which would be 

an obvious first step to take fuel there on an interim basis until the 

facility is ready to take the fuel. And then the other piece, it would be no 

more than two or three sites that would be obvious candidates for 

reprocessing technologies where you are going to have to have interim 

storage anyway before you reprocess that they would be candidates. So 

if we are talking about two or three sites, and I agree with Ms. Sproat’s 

estimates that the cost of a facility, particularly at a facility that already 

will have security and other infrastructure is not large. You could pay 

for it with a couple days accrued interest on the corpus of the Nuclear 

Waste Fund. But we don’t support the broad proposals that would have 

30 or more facilities that really would have a potential for depleting the 

waste fund. 

 MR. BOUCHER. So I gather from those comments, you are not 

particularly concerned about funding interim storage from the Nuclear 

Waste Fund detracting from the larger Yucca Mountain program for 

permanence. 

 MR. EARLEY. With the narrowly focused program that we would 

suggest, no, we wouldn’t be concerned. 

 MR. BOUCHER. Thank you, Mr. Earley. Thank you, Mr. Chairman. 

 MR. HALL. The Chair recognizes Mr. Otter for 5 minutes. 

 MR. OTTER. Thank you, Mr. Chairman. Mr. Earley, I noticed in 

your testimony that the industry urges Congress to consider this interim 

storage. Would the State of Michigan be willing to entertain a site for 

one of these interim storages? 

 MR. EARLEY. Well, as Mr. Wise said, Michigan already has interim 

storage. We have four locations, three operating reactor sites, and one 

decommissioned reactor site that has interim storage. I can’t speak for 

the State of Michigan but I certainly would be supportive, but I don’t 

think it fits in with our proposal. There are no facilities in Michigan that 

are obvious candidates for reprocessing. We don’t have a national lab. 

We don’t have a DOE facility. So consistent with our proposal, 

Michigan would not be an obvious candidate but if we had a national lab, 

if we had an existing DOE nuclear fuel facility then I would say, yes, we 

ought to be considering that. 
76

 MR. OTTER. So then your group would be in favor of reprocessing 

enrichment? 

 MR. EARLEY. Yes, and we have gone on record as favoring 

reprocessing as a long-term option, but again I want to make it clear not 

as a replacement for Yucca Mountain but as a smart long-term policy in 

addition to Yucca Mountain. 

 MR. OTTER. In your response to me you just indicated that you 

already have several interim storages. How long are those good for? 

 MR. EARLEY. Well, I am not sure of the exact dates. My own firm 

nuclear plant, we run out of spent fuel pool storage capacity in the 2009-

2010 time frame. We are currently in the design phase for a dry cask 

storage facility. There are dry cask storage facilities at other nuclear 

plants including the decommissioned Big Rock Point plant. Those 

facilities can be easily expanded at the existing facilities. 

 MR. OTTER. And have you requested a license then from-- 

 MR. EARLEY. Not for our facility yet, but we will be doing that 

fairly shortly. Given the history about two-thirds of existing nuclear 

plants have dry cask storage. The NRC has gotten the licensing process 

down so that they move that process along fairly expeditiously. 

 MR. OTTER. Mr. Wise, the same question about Georgia. 

 MR. WISE. That is outside my jurisdiction on whether they apply for 

licenses or the extent that they will reach capacity. I am aware of the fact 

and the jurisdiction falls back to the NRC and others, and so I am not 

aware of how much capacity they have left. 

 MR. OTTER. I see. Ms. Boyd, I noticed in your testimony that your 

group did not represent at least any ideas for solving the problem, 

providing a solution. What is the Public Citizen’s recommendation for a 

permanent solution? 

 MS. BOYD. What we are recommending is a solution for the security 

concerns that we have right today. All of the proposals that are on the 

table right now, Yucca Mountain reprocessing, interim storage, are all 

10, 20 years away. In terms of actually filling Yucca Mountain would be 

41 years away. So what we are talking about today is the security 

concerns we have about the waste sitting at the sites today. To answer 

your question specifically, there is no good solution at this point for 

long-term permanent storage of nuclear waste. We very well may need a 

geological repository, and, in fact, personally I do think we need a 

geological repository, but Yucca Mountain is not the site. 

 The Department of Energy has had to change the parameters so 

many times to try to make the square peg fit into the round hole. And it 

is very clear that we will be here in another 10 or 20 years arguing about 

Yucca Mountain if we do not stop and pull out and stop funding Yucca 
77

Mountain and look and do a real legitimate scientific research project 

whereby we will look for another solution. 

 MR. OTTER. But as long as we continue to produce power with 

nuclear plants, we are going to continue to create the waste. 

 MS. BOYD. That is very true. 

 MR. OTTER. So what is the solution? We know what you don’t like. 

Can you give us an idea of what you would like? 

 MS. BOYD. I came with a positive proactive proposal for dealing 

with the waste that we are creating today. 

 MR. OTTER. Look for another site. 

 MS. BOYD. Well, no, the positive proactive solution I came with 

today is to deal with the security concerns of the waste sitting at the sites 

that is going to remain at the sites for at least another couple of decades 

if not much longer. 

 MR. OTTER. And is your analysis then of Yucca Mountain already 

seen some security breaches or potential breaches? 

 MS. BOYD. Yucca Mountain is not licensed yet so we haven’t-- 

 MR. OTTER. If it were to be licensed under that which we now 

know, have you analyzed it well enough to know that there are going to 

be some security breaches? 

 MS. BOYD. That is immaterial to the question about whether or not 

the waste stays-- 

 MR. OTTER. Well, it is still my question. It may be immaterial to 

the question but if you are going to suggest Yucca Mountain isn’t the 

answer and that we really should be focusing on security then what 

security problems do you see with Yucca Mountain? 

 MS. BOYD. The question isn’t the security question. The question is 

that Yucca Mountain is an environmentally unsound site so the question 

is not about the security concerns about a geological repository. The 

concerns are about dealing with the waste, the problem that we actually 

have on our hands today, which is waste sitting at all 103 and more sites. 

We have to deal with that problem today, and so that is what the proposal 

I am coming with to talk to you about is. 

 MR. OTTER. Well, I guess I still don’t quite understand because it is 

not unusual for us as technology advances for us to employ that 

technology in ongoing construction no matter what the project is. And 

Yucca Mountain has been a long time coming and a long time in process, 

and as our technology advances for the storage of waste, for the handling 

of waste, it doesn’t seem to me to be inconsistent with our desire to be as 

environmentally safe as possible, and as safe as possible from a national 

security standpoint, to make those changes. And so I don’t see that 

necessarily as a suggestion that Yucca Mountain is unsafe simply 
78

because we have been able to accommodate and update our plans as the 

technology advances. 

 MS. BOYD. The reason that Yucca Mountain is unsafe is because it 

is scientifically shown that it cannot hold the waste for as long as it needs 

to hold. That is a separate question, and the question of the waste that is 

at the very best case scenario as Mr. Sproat said today is going to be 

sitting in vulnerable spent fuel pools and in dry casks open to the air for 

at least, at least 11 years from now. 

 MR. OTTER. Well, as we know--I guess my time is up. Thank you, 

Mr. Chairman. 

 MR. HALL. The Chair recognizes Dr. Burgess. 

 MR. BURGESS. I will be happy to yield to the gentleman from Idaho. 

 MR. OTTER. Well, I guess the last question that I would have of the 

Public Citizen’s representative here is how does the Public Citizens feel 

then about reprocessing? 

 MS. BOYD. As I said in my statement, we oppose reprocessing. We 

should learn from past experience. International and U.S. experience has 

shown us that reprocessing is polluting, expensive, and a proliferation 

risk. 

 MR. OTTER. We do know, if I may, if the gentleman will yield 

further, yet we do know that about 97 percent of those fuel rods that 

come out of the reactors is still good fuel and with reprocessing we 

would be able to reduce the amount of actually good fuel that we are 

burying. And if we could reprocess down to where we use maybe say 50 

or 60 percent of the available fuel in a fuel rod, we would never have to 

worry about finding another Yucca Mountain because we wouldn’t be 

burying all that good fuel. 

 MS. BOYD. Actually about 3 percent of the spent fuel rod is 

plutonium so that is what you would be taking out and reusing. The fact 

is that we do not have the technology or the economics right at this point 

that reprocessing makes sense, and we have seen that in other countries 

and the examples that they have. Japan just completed a reprocessing 

plant. It took them $20 billion and 15 years to build a plant that is about 

half the size of what we would need in the United States to deal with just 

our annual output of waste. 

 MR. OTTER. Thank you, Mr. Chairman. Thank you, Mr. Burgess. 

 MR. HALL. The Chair now recognizes Dr. Burgess. 

 MR. BURGESS. I thank the Chairman. Mr. Earley, if we could, we 

were talking about reprocessing. Does it make any sense to stall the 

development of Yucca Mountain in order to allow time for reprocessing? 

 MR. EARLEY. Absolutely not. We should move ahead with the 

Yucca Mountain as fast as we can, but as a country we ought to continue 

to develop reprocessing technologies because the spent fuel has 
79

significant value as fuel in the future. And as fossil and other resources 

become less and less available to us, we can’t afford to waste that kind of 

fuel value. 

 MR. BURGESS. I am from Texas, and we got a lot of people moving 

to Texas. Whether we like it or not, they are going to come and they are 

going to need roads and they are going to need hospitals, and they are 

going to need electricity to run their air conditioners in the summer time 

in a big way. So we have had proposals from well-thinking people who 

say they are going to build 16 new coal plants, and that has got people 

upset because what about the carbon dioxide, what about the global 

warming. We have had lots of hearings on that here. And not to belabor 

that point, we are going to have increasing resistance to producing 

electricity that results in increased carbon in the environment. 

 Texas has a lot of wind and indeed we are working to capture that 

but still under the best projections it is still single digit percentages that 

we are going to be able to develop as far as wind energy to provide air 

conditioning for all of those Yankees that are moving to Texas over the 

next 50 years. So to what extent has the development of new nuclear 

plants--does it depend upon solving the spent fuel issue? It is really a 

critical issue where I live. We got three companies now that are asking 

for licensing for new plants. Are they going to be able to get those 

licenses while we develop the or deal with the spent fuel issue? 

 MR. EARLEY. Progress on spent fuel is absolutely vital for continued 

progress towards new nuclear plants. As I said before, as I speak with 

my colleagues and from my own experience that we have been willing to 

move forward and invest because we through progress was being made. 

The work that this committee did last year on the Energy Policy Act was 

a tremendous step forward removing some of the barriers to new nuclear 

plants, but nuclear waste continues to be that one barrier that we need to 

deal with. And it doesn’t have to be dealt with tomorrow, but it has to be 

confidence that as a policy this country is going to move forward and 

deal with this waste problem. 

 That is why passage of this bill in either this form or the expanded 

form that we have recommended would continue to give leaders in the 

utility industry confidence that the Government is working through these 

issues and therefore we ought to be investing our customers’ money in 

more nuclear plants. But you are absolutely right. As a company, 70 

percent of our generation is coal, about 10 percent of our generation is 

nuclear, and then we have hydro and natural gas generation. But we 

have a team working on looking at new nuclear technology because we 

can’t put all our eggs in the coal basket. This country needs a diversified 

mix of energy sources and coal is going to be a part of it, but nuclear 

ought to be a big part of it going forward. 
80

 MR. BURGESS. Mr. Wise, if I could just ask you under what 

circumstances would it be appropriate for the Nuclear Waste Fund to be 

used to fund interim storage activities? 

 MR. WISE. Okay. We firmly disagree with using the Fund for 

interim storage. 

 MR. BURGESS. What is happening in other countries as far as 

interim storage? 

 MR. WISE. Again, you are out of my league. I am sorry. 

 MR. BURGESS. Mr. Earley, do you have any thoughts on that? 

 MR. EARLEY. It is a mix, but of course there is reprocessing in 

Europe and Japan. Of course, you have to have interim storage before 

you put it through the reprocessing so it doesn’t seem to be the issue that 

it is here. People have recognized that nuclear waste has to be dealt with. 

 MR. BURGESS. I was with the Chairman on a trip to Sweden not too 

long ago and their interim storage is measured in centuries so they have 

apparently dealt with it in a different manner. They kicked the can down 

the field significantly. Thank you, Mr. Chairman. I will yield back. 

 MR. HALL. Thank you, Doctor. I think that takes care of this very 

capable panel. We will ask you to accept our thanks for your preparation 

and for your participation here, and appreciate your answers and your 

input. You are doing a lot of service to your country on a very, very 

important issue. I might ask you if they have Public Citizen over in 

Europe. Maybe that is the reason they are getting along so easy. 

 [Recess] 

 MR. BURGESS. [Presiding] With a change in panel and change in 

chair, we will call the hearing back to order and recognize the Honorable 

Butch Otter. 

STATEMENTS OF HONORABLE C.L. “BUTCH” OTTER, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

IDAHO; AND HONORABLE ALAN B. MOLLOHAN, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

WEST VIRGINIA 

MR. OTTER. Thank you very much, Mr. Chairman, and thank you 

for holding this important hearing today, and thank you also, Mr. 

Chairman, for allowing me to testify. The committee is considering H.R. 

4377, legislation to extend the time required for construction of the 

Arrowrock Hydroelectric Project in Idaho. You are going to hear 

opposition to this legislation when the Federal Energy Regulatory 

Commission testified on my bill because of the length of time since the 

original license was issued. I am going to take the time of this 
81

committee to help them understand the need for this legislation and why 

this project should receive an extension. 

 Let me start with a little background on the project. It originally was 

licensed in 1989. The licensees are small, not for-profit, Idaho and 

Oregon irrigation districts. Revenues from the project were to be used to 

offset operational costs for thousands of water users. For a variety of 

reasons construction did not begin on the project within the original 6-

year deadline period, so the irrigation districts received a legislative 

extension. After that extension, bull trout were then listed as a 

threatened species under the Endangered Species Act. The project was 

unable to meet the March 20, 2005, deadline for the start of construction 

because the Fish and Wildlife Service would not begin the consultation 

on the project until after it completed consultation on all the Bureau of 

Reclamation projects in the Upper Snake River Basin. That Upper Snake 

consultation was a direct outgrowth of the requirements of the Snake 

River Water Rights Act of 2004. 

 The Fish and Wildlife Service advised FERC in 2005 and 2006 that 

informal consultation with the licensees was complete, and that the 

Service had received the necessary information from the districts to 

complete consultation in a short period of time. The Fish and Game and 

Wildlife Service then requested that FERC initiate formal consultation. 

However, FERC did not approve or respond. The irrigation districts 

finally had everything in place and were on schedule to start construction 

last December, but the license once again had expired. All they needed 

was a little more time from FERC. 

 The Arrowrock Hydroelectric Project will be built at the existing 

dam and will use existing flows from the dam. The project has received 

certification of compliance with State water quality standards and an 

Idaho water rights permit. The project has been modified to reduce the 

impacts. Rather than tunneling through the Arrowrock Dam, it will use 

the Bureau of Reclamation’s new valves, there will be a smaller 

powerhouse footprint, and 10 miles of transmission lines have since been 

eliminated. The irrigation districts have finalized a power sales 

agreement with public utilities district to take all the power from the 

plant. They have engaged an engineer of national reputation to design 

and build the project. Lastly, they have financing lined up and they are 

ready to go. 

 The Energy Policy Act of 2005 contains several provisions that 

encourage development of projects which meet both the requirements of 

being a hydropower project built at an existing dam and a hydropower 

project that is a conduit. In Idaho, this is exactly what we are trying to 

do with the Arrowrock Hydroelectric Project. This project has been 

given an extension in the past and another is needed because of the 
82

circumstances out of the licensees’ control. Without this amendment, the 

irrigation districts would have to completely start the FERC licensing 

process over again. That would be a waste of resources by the agencies 

involved as well as the irrigation districts because all of the required 

collaboration and consultation is complete and the project is now ready 

to move forward. 

 Mr. Chairman, I have supporting documentation that I have made 

available to the committee and the committee staff to make part of this 

permanent record. Thank you very much, Mr. Chairman. 

 [The prepared statement of Hon. C.L. “Butch” Otter follows:] 

PREPARED STATEMENT OF THE HON. C. L. “BUTCH” OTTER, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF IDAHO

Thank you for holding this important hearing today Mr. Chairman, and allowing me 

to testify. 

The Committee is considering H.R. 4377, legislation to extend the time required for 

construction of the Arrowrock Hydroelectric Project in Idaho. You are going to hear 

opposition to this legislation when the Federal Energy Regulatory Commission testifies 

on my bill because of the length of time since the original license was issued. I am going 

to take this time to help the committee understand the need for this legislation and why 

this project should receive an extension. 

Let me start with a little background on the project. It originally was licensed in 

1989. The licensees are small, not for-profit, Idaho and Oregon irrigation districts. 

Revenues from the project were to be used to offset operational costs for thousands of 

water users. For a variety of reasons construction did not begin on the project within the 

original six-year deadline, so the irrigation districts received a legislative extension. 

After that extension, bull trout were listed as a threatened species under the 

Endangered Species Act. The project was unable to meet the new March 20, 2005, 

deadline for the start of construction because the Fish and Wildlife Service would not 

begin consultation on the project until after it completed consultation on all the Bureau of 

Reclamation projects in the Upper Snake River Basin. That Upper Snake consultation 

was a direct outgrowth of the requirements of the Snake River Water Rights Act of 2004. 

The Fish and Wildlife Service advised FERC in 2005 and 2006 that informal 

consultation with the licensees was complete, and that the Service had received the 

necessary information from the districts to complete consultation in a short time period. 

The Fish and Wildlife Service then requested that FERC initiate formal consultation. 

However, FERC did not respond. 

The irrigation districts finally had everything in place and were on schedule to start 

construction last December, but the license once again expired. All they needed was a 

little more time from FERC. 

The Arrowrock Hydroelectric Project will be built at the existing dam and will use 

existing flows from the dam. The project has received certification of compliance with 

state water quality standards and an Idaho water rights permit. 

The project has been modified to reduce the impacts. Rather than tunneling through 

Arrowrock Dam, it will use the Bureau of Reclamation’s new valves; there will be a 

smaller powerhouse footprint; and 10 miles of transmission lines have been eliminated. 

The irrigation districts have finalized a power sales agreement with the Clatskanie 

PUD to take all the power from the plant. They have engaged an engineer of national 

reputation to design and build the project. Lastly, they have financing lined up and ready 

to go. 
83

The Energy Policy Act of 2005 contains several provisions that encourage 

development of projects which meet both the requirements of being a hydropower project 

built at an existing dam and a hydropower project that is a conduit. In Idaho, this is 

exactly what we are trying to do with the Arrowrock Hydroelectric Project. 

This project has been given an extension in the past and another is needed because 

of circumstances out of the licensees’ control. Without this amendment, the irrigation 

districts would have to completely start the FERC licensing process over. That would be 

a waste of resources by the agencies involved as well as the irrigation districts because all 

of the required collaboration and consultation is complete and the project is ready to 

move forward. 

Mr. Chairman, I have supporting documentation that I would like to ask unanimous 

consent to have entered into the record to better detail the facts I have outlined. 

Thank you again Mr. Chairman and I hope that the committee will look favorably on 

this small but important piece of legislation. 

 MR. BURGESS. Without objection, so ordered. It will be made part 

of the record. 

 [The information follows:] 
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MR. MOLLOHAN. Mr. Chairman, thank you, Mr. Ranking Member, 

Mr. Boucher. Mr. Chairman, as you aware, I am seeking to extend the 

time required for the commencement of construction of a 100 percent 

privately financed hydroelectric project, an extension to December 31, 

2007. Mr. Chairman, this project is located in Grafton, West Virginia. 

The Tygart Dam, which was constructed in the 1930s for flood control 

on the Monongahela Basin, would incorporate this project. The dam was 

built with future hydroelectric capabilities in mind, requiring no major 
213

infrastructure changes to open the water flow tunnel for hydroelectric 

power. 

 During the time in which the City of Grafton’s Federal Energy 

Regulatory Commission’s license was valid, the contractor’s project 

economies were very tight and the contractor was unable to secure utility 

cooperation to make the project viable. Those dynamics have now 

changed and the contractor, National Renewable Resources, is confident 

that more favorable market conditions combined with acceptable interest 

rates makes the project’s economics work. The contractor is already 

negotiating buyers for the electricity that would be produced at the 

proposed facility. 

 This year, the contractor will have repaid the senior debt on another 

very successful hydroelectric project in Pennsylvania, thus freeing up 

additional capital to finance the Tygart Dam project. The contractor’s 

plan is to finance the Tygart project with approximately 50 percent of its 

own capital and 50 percent with long term financing. Design 

engineering for the project is advanced stages, and the contractor has 

already bid out the equipment package and construction of the project 

would begin within 10 to 20 months of reinstatement of the FERC 

license. The contractor believes the facility could be fully operational as 

early as 2008. 

 A hydroelectric facility in Grafton would provide very real near and 

long term economic boosts to the city. Local materials, suppliers, and 

services would be utilized during the $20 million construction phase. 

Approximately 200 construction workers would be employed, totaling 

more than $1 million in monthly payroll outlays during the construction 

period. Once completed, the new hydroelectric plant would generate 

about $300,000 in annual royalty revenues for the City of Grafton, or 

roughly $13.5 million over the 45-year anticipated project life. The City 

of Grafton could expect to see royalty revenues in late 2008 or early 

2009, and could be used at the discretion of city leaders. 

 The Congressional Budget Office scored S. 2028, the Senate 

companion to H.R. 4417, and found that implementing it would have a 

zero negative net effect on the Federal budget. Mr. Chairman, the 

environmental standards have not changed since the initial FERC 

approval was granted to the City of Grafton in the 1980s, and any reapproval by FERC will take vast amounts of time and money at no 

benefit or little benefit. Generating electricity by the force of falling 

water is obviously a proven method, and one that holds as much validity 

now as it did centuries ago. This project would be efficient to build, to 

operate, harms neither the water itself nor the quality of the environment, 

and it contributes to reducing the reliance on foreign energy, and adds to 
214

another grand gesture for the public good. Thank you, Mr. Chairman. 

Thank you, Mr. Boucher, for allowing me to appear here today. 

 [The prepared statement of Hon. Alan B. Mollohan follows:] 

PREPARED STATEMENT OF ALAN B. MOLLOHAN, A REPRESENTATIVE IN CONGRESS FROM 

THE STATE OF WEST VIRGINIA

As you are aware, I am seeking to extent the time required for the commencement of 

construction for a 100% privately financed hydroelectric project until December 31, 2007 

in Grafton, West Virginia. The Tygart Dam was constructed in the 1930’s for flood 

control on the Monongahela River Basin. The Dam was built with future hydroelectric 

capabilities, requiring no major infrastructure changes to open the water flow tunnel for 

hydroelectric power, and simplifying its adaptive use. 

During the time period in which the City of Grafton’s Federal Energy Regulatory 

Commission’s (FERC) license was valid, the Contractor’s project economics were very 

tight and the Contractor was unable to secure utility cooperation to make the project 

viable . 

Those dynamics have now changed and the Contractor, National Renewable 

Resources (NRR), is confident that the more robust energy market that exists today, 

combined with acceptable interest rates, makes the project economics work. The 

Contractor is already negotiating buyers for the electricity that would be produced at the 

proposed facility. This year, the Contractor will have repaid the senior debt on another 

very successful hydroelectric project in Pennsylvania, thus freeing up additional capital to 

finance the Tygart Dam project. The Contractor’s plan is to finance the Tygart project 

with approximately 50 percent of its own capital and 50 percent with long tem financing. 

Design engineering for the project is already in advanced stages, and the Contractor 

has already bid out the equipment package and completed a number of civil drawings. 

Construction of the project would begin within 10-20 months of reinstatement of the 

FERC license and, the Contractor believes the facility could fully operational as early as 

2008. 

A hydroelectric facility in Grafton would provide very real near and long term 

economic boosts to the city. Local materials, suppliers and services would be utilized 

during the $20 million construction phase. Approximately 200 construction workers will 

be employed, totaling more than $1 million in monthly payroll outlays during the 

construction period. 

Once completed, the new hydroelectric plant would generate about $300,000 in 

annual royalty revenues for the City of Grafton, or roughly $13.5 million over the 45-year 

anticipated project life. The City of Grafton could expect to see royalty revenues in late 

2008 or early 2009, and could be used at the discretion of the City leaders. 

The Congressional Budget Office scored S. 2028, the Senate companion to HR 

4417, and found that implementing it will have ZERO NEGATIVE NET EFFECT on 

the federal budget. 

The environmental standards have not changed since the initial FERC approval was 

granted to the City of Grafton in the 1980’s, and any re-approval by FERC will take vast 

amounts of time and money at little or no benefit. 

Generating electricity by the force of falling water is a proven method, and one that 

holds as much validity now as it did centuries ago. This project would be efficient to 

build and operate; harms neither the water itself nor the quality of the environment; 

contributes to reducing the reliance on foreign energy; and adds another grand gesture for 

the public good. 
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 MR. BURGESS. Thank you both. The third panel then is excused and 

we will-- 

 MR. BOUCHER. Mr. Chairman, let me just briefly ask one question. 

First, let me thank our colleagues for being here today. Alan, all you are 

asking for is an extension to the end of next year on the license, is that 

right? 

 MR. MOLLOHAN. That is correct. 

 MR. BOUCHER. And, Mr. Otter, the same? 
236

 MR. OTTER. Mine is very much similar, Mr. Boucher. For the 

construction period is what we are asking for, and I think as I have pretty 

well outlined in giving you the background it was circumstances far 

beyond our control when the bull trout was licensed--or was designated 

an endangered species, then that stopped everything. And it stopped it 

during our permit period during the period in which we were allowed to 

begin the construction, the design and the construction of the 

hydroelectric project. 

 MR. BOUCHER. Okay. All right. Thank you. 

 MR. MOLLOHAN. If I might add, this is a project that has not been 

viable because of market conditions and obviously the market conditions 

have changed, and with the price of fossil energy now this project does 

become viable, and what they are doing is lining up customers which are 

not finding a problem in lining up. It is just an unfortunate situation that-

-well, in some ways for this project it is an unfortunate situation in that 

the market wasn’t more favorable earlier, but it is now, and they are 

ready to go. 

 MR. BOUCHER. Both of you make your case very well. Thank you. 

Thank you, Mr. Chairman. 

 MR. BURGESS. I think with that we will see our fourth panel. Do we 

have Mr. Robinson? Mr. Robinson, we welcome you to the committee 

and look forward to your testimony. You are recognized for 5 minutes. 

STATEMENT OF J. MARK ROBINSON, DIRECTOR, OFFICE 

OF ENERGY PROJECTS, FEDERAL ENERGY 

REGULATORY COMMISSION 

 MR. ROBINSON. Thank you, Mr. Chairman, and Congressman 

Boucher. My name is Mark Robinson. I am the Director of Office of 

Energy Projects. We are responsible for the authorization, development 

of the record for the authorization of LNG terminals, natural gas 

pipelines, natural gas storage, and more significantly here today for the 

licensing, administration, and dam safety of about 1,600 hydroelectric 

projects across the country. I am here to make comments on five bills 

that generally would extend the time frame for the start of construction 

relative to Section 13 of the Federal Power Act. 

 Section 13 requires that projects start construction within 2 years of 

the license issuance date or if granted by the Commission not to exceed 

one 2-year extension so there is a 4-year period under law that the 

Commission can act to allow the start of construction. The Congress, 

however, through the years on different projects has extended that time 

period and the Commission has not objected when that time frame does 

not extend beyond 10 years from the time the project was licensed until 
237

the start of construction actually commences. There are generally two 

policy reasons for that. The first is that when the Commission does take 

an action to license a project, it has concluded that it is in the public 

interest to generate power from that site. Ten years has generally been 

recognized as a reasonable period to allow an applicant or at this point a 

licensee for that project to take the actions necessary to get the financing, 

to get the final designs, to start construction of that project that the 

Commission has found to be in the public interest. Where that has not 

occurred, the general policy consideration is that if they cannot do it in 

10 years, let us give someone else the opportunity to do so, since it has 

been found to be in the public interest. 

 The second policy consideration is the record that is used for the 

Commission to take those actions. After 10 years there is a growing 

probability that the record that was developed to authorize that project in 

fact may not still stand for determinations on the size of the project, the 

economics of the project, the environmental consequences associated 

with the project. And for those two reasons the Commission historically, 

our chairmen, have opposed extensions of time that go beyond 10 years. 

Having said that, I would like to very quickly run through the five bills 

and give you my opinion on those five bills, which is fairly predictable at 

this point. 

 H.R. 4417 for the Tygart Dam project would extend the start of the 

construction period to 12/31/2007 for a project that was licensed in 1989. 

That would be a total of 18 years post licensing and therefore I would 

oppose that bill. H.R. 4377 for the Arrowrock Project in Idaho would 

extend the start of construction for a 3-year period post the 

implementation of that bill, which date we cannot determine, but to date 

there has been 16 years past since the licensing of that project, and 

therefore I would oppose that bill. 

 H.R. 971 would extend the start of the construction period for three 

projects, the Hale Project in Connecticut, where it would authorize the 

start of construction in 2007 plus two additional 2-year periods. That 

project was licensed in 1997. If you take that provision and extend it out 

that would be a 14-year period post licensing and therefore I would 

oppose that part of that bill. H.R. 971 also goes to the upper and lower 

Collinsville Projects also in Connecticut. It similarly would extend the 

start of construction to 2007 plus two 2-year periods. Both of those 

would be approximately 10 years out and therefore I do not oppose those 

provisions of that bill. 

 S.176, Reynolds Creek in Alaska, would extend the start of 

construction for three 2-year periods. That would start from the 4-year 

term of the original license for a grand total of 10 years and therefore I 

would not oppose that bill. And S. 244 for the Swift Creek Project in 
238

Wyoming would similarly extend the start of construction for three 2-

year periods post the 4-year Federal Power Act provision for a total of 10 

years. Therefore, I would not oppose, but I would mention here this 

particular bill goes to the re-licensing of the project. The Commission 

has found in the past that Section 13 does not apply to the re-licensing 

and therefore there is no statutory limitation as far as the Commission is 

concerned on granting authorizations for the start of construction for a 

refurbishing of a re-licensed project, but we would not oppose that bill. 

With that, after having run through those, I will be more than happy to 

answer any questions. 

 [The prepared statement of J. Mark Robinson follows:] 

PREPARED STATEMENT OF J. MARK ROBINSON, DIRECTOR, OFFICE OF ENERGY PROJECTS,

FEDERAL ENERGY REGULATORY COMMISSION

The Office of Energy Projects (OEP) at the Federal Energy Regulatory Commission 

is responsible for non-federal hydroelectric licensing, administration, and safety; 

certification of interstate natural gas pipelines; and, authorization and oversight over the 

construction, operation, and safety of Liquefied Natural Gas (LNG) terminals. 

 This testimony concerns H.R.4417, H.R.4377, H.R. 971, S. 176, and S. 244, five 

bills, which would extend the deadlines for the commencement of construction for seven 

hydroelectric projects. H.R. 4417 would extend until December 31, 2007, the deadline 

for the commencement of construction of the proposed Tygart Dam Project No. 7307 in 

West Virginia. H.R. 4377 would extend the deadline for commencing construction of the 

proposed Arrowrock Hydroelectric Project No. 4656 in Idaho. H.R. 971 would extend 

the deadlines for commencing construction of the Hale Hydroelectric Project No. 11547, 

the Upper Collinsville Project No. 10822, and the Lower Collinsville Project No. 10823 

in Connecticut. S. 176 would extend the commencement of construction deadline for the 

Reynolds Creek Hydroelectric Project No. 11480 in Alaska. S. 244 would extend the 

commencement of construction deadline for the Swift Creek Hydroelectric Project No. 

1651 in Wyoming. 

Section 13 of the FPA requires that construction be commenced within two years of 

license issuance and authorizes the Commission to extend this deadline once, for a 

maximum of two additional years. If construction has not commenced by the deadline, 

the Commission is required to terminate the license. 

Generally, enactment of bills authorizing commencement of construction extensions 

for individual projects leaves the development of an energy resource in the hands of an 

entity that has shown an inability to develop a project, and therefore has not been 

recommended. The current Commission Chairman and past chairmen have opposed 

legislation extending commencement of construction deadlines that would give an entity 

more than 10 years to develop a project, based on the notion that allowing one entity that 

is not progressing in developing a project to control a hydropower site for a longer time is 

not consistent with the public interest in developing hydroelectric energy. In addition, 

the record on which projects were originally licensed, including the examination of 

environmental and developmental issues, may be out of date. To ensure that the public 

interest is served would require not simply reinstating the license and/or extending the 

deadlines for commencement of construction, but reexamining and updating the record. 

Therefore, I oppose extensions for H.R. 4417 and H.R. 4377, and do not oppose 

extensions for H.R. 971, S. 176, and S. 244. 
239

Mr. Chairman and Members of the Subcommittee: 

 My name is J. Mark Robinson, and I am the Director of the Office of Energy 

Projects at the Federal Energy Regulatory Commission. Our Office is responsible for 

non-federal hydroelectric licensing, administration, and safety; certification of interstate 

natural gas pipelines and storage facilities; and, authorization and oversight over the 

construction, operation, and safety of Liquefied Natural Gas (LNG) terminals. 

 I appear today as a Commission staff witness speaking with the approval of the 

Chairman of the Commission. The views I express at this hearing are my own and not 

necessarily those of the Commission or of any individual Commissioner. 

 Under Part 1 of the Federal Power Act (FPA), the Commission issues licenses to 

non-Federal interests authorizing the construction, operation and maintenance of water 

power projects on federal lands, on navigable waters of the United States, which utilize 

the surplus water or water power from a federal dam, and on streams over which the 

Congress has jurisdiction. Licenses may be issued under the FPA only if, in the 

judgment of the Commission, the proposed project is best adapted to a comprehensive 

plan for the development and utilization of the water resources of the river basin involved 

for all public purposes. The licenses are issued for terms of up to 50 years and contain 

terms and conditions that are designed to ensure that the comprehensive development 

standard is met. 

The FPA requires that the licensee will proceed expeditiously with the development 

and construction of the proposed project once a license has been issued. Section 13 of 

the FPA requires that construction of a licensed project be commenced within two years 

of issuance of the license and authorizes the Commission to extend this deadline once, for 

a maximum of two additional years. If project construction has not commenced by the 

deadline, the Commission is required to terminate the license. 

 I appreciate the opportunity to comment on H.R. 4417, H.R. 4377, H.R. 971, S. 176, 

and S. 244. 

H.R. 4417 would (upon the licensee’s request and subject to the good faith, due 

diligence, and public interest requirements of section 13, and the Commission’s 

procedures) require the Commission to extend until December 31, 2007, the deadline for 

the commencement of construction of the proposed Tygart Dam Hydroelectric Project 

No. 7307 and, if necessary, to reinstate the project license. 

H.R. 4377 would require the Commission to extend for a three-year period 

beginning on the date of enactment of the bill, the deadline for commencing construction 

of the proposed Arrowrock Hydroelectric Project No. 4656, and, if necessary, to reinstate 

the project license. 

H.R. 971 concerns three hydroelectric projects. First, H.R. 971 would require the 

Commission to extend until May 30, 2007, the deadline for commencing construction of 

the proposed Hale Hydroelectric Project No. 11547 and (upon the licensee’s request and 

subject to the good faith, due diligence, and public interest requirements of section 13, 

and the Commission’s procedures thereunder) to issue two additional two-year extensions 

of the construction deadline. The bill would also require the Commission to reinstate the 

project license. H.R. 971 would also require the Commission to extend until May 30, 

2007, and (upon the licensee’s request and subject to the good faith, due diligence, and 

public interest requirements of section 13, and the Commission’s procedures thereunder) 

to issue two additional two-year extensions for the commencement of construction 

deadlines for the Collinsville Upper Hydroelectric Project No. 10822 and the Collinsville 

Lower Hydroelectric Project No. 10823 on the Farmington River, in Hartford County, 

Connecticut. 

S. 176 would authorize the Commission to extend the commencement of 

construction deadline for the Reynolds Creek Hydroelectric Project No. 11480 for three 
240

two-year periods beyond the date that is four years after the date of issuance of the 

project license. 

S. 244 would authorize the Commission to extend the commencement of 

construction deadline for the Swift Creek Hydroelectric Project No. 1651 for three twoyear periods beyond the date that is four years after the date of issuance of the project 

license. 

 As a general matter, enactment of bills authorizing or requiring commencement of 

construction extensions for individual projects leaves the development of an important 

energy resource in the hands of an entity that has shown an inability to develop a project, 

and therefore has not been recommended. The last several Chairmen of the Commission 

have had a policy of opposing legislation extending commencement of construction 

deadlines that would allow an entity more than 10 years to develop a project, based on 

the notion that allowing one entity that is not showing progress in developing a project to 

control a hydropower site for a greater length of time is not consistent with the public 

interest in developing clean, renewable hydroelectric energy. 

 In addition, the record on which projects were originally licensed, including the 

examination of environmental and developmental issues, may be out of date in various 

respects. To ensure that the public interest is served would require not simply reinstating 

the license and/or extending the license timeframes for commencement of construction, 

but reexamining and, as necessary, updating the record. 

In view of these considerations, I will comment on each of the bills in more detail 

below. 

H.R.4417

 H.R. 4417 would authorize the Commission to reinstate the license and extend the 

deadline for the commencement of project construction for the Tygart Dam Project No. 

7307, located in West Virginia, until December 31, 2007. 

 The Tygart Dam Project was licensed on September 27, 1989, to the City of 

Grafton, West Virginia (Grafton). The license gave Grafton two years from the issuance 

date, as permitted by Section 13, to start construction – that is, until September 27, 1991. 

On December 17, 1990, the Commission issued partial stays of the licenses for the Tygart 

Project and 11 other projects in the Ohio River Basin, pending resolution of judicial 

appeals of the Commission’s licensing orders. On April 16, 1992, after the orders were 

affirmed, the Commission issued an order lifting the stays. 

 On November 4, 1992, pursuant to a request by Grafton, the Commission extended 

the deadline for commencement of construction to April 15, 1995. This represented the 

maximum period for the commencement of construction (two years plus one two-year 

extension) that the Commission could grant under FPA section 13. 

Subsequent legislation enacted as Public Law No. 104-246 directed the Commission 

to issue up to three additional two-year orders granting further extensions of time to 

commence and complete construction. After the Commission did so, September 26, 1999 

became the final deadline to commence project construction. On June 23, 1999, Grafton 

again requested a stay of those license conditions that require pre-construction filings 

because it was seeking another legislative extension of the commencement of 

construction deadline. The Commission dismissed this request on February 9, 2000. 

 Because the licensee did not commence project construction by September 26, 1999, 

the Commission on November 19, 1999 issued a notice of probable termination of the 

license for failure to meet the commencement of construction deadline. Grafton did not 

respond to the notice. The Commission subsequently terminated the license by order 

issued on March 27, 2000. 

 On July 24, 2000, Grafton subsequently filed an application for a preliminary permit 

for the project, as a predicate for filing a new license application. The Commission 

issued the requested preliminary permit on March 16, 2001, for the Tygart Dam Project 
241

No. 11851 (because the previous license had been terminated, the preliminary permit 

received a new project number). Grafton made very little progress toward developing the 

project, and the three-year preliminary permit expired, by its terms, on February 28, 

2004. The Commission denied a request for an extension of the preliminary permit term 

on March 28, 2003. 

 On March 1, 2004, Grafton filed another application for a preliminary permit for the 

Tygart Dam Project No. 12490. This application was dismissed on March 28, 2005, for 

failure to provide additional information related to Grafton’s progress toward developing 

the project. Currently, Grafton has pending before the Commission a third application 

for a subsequent preliminary permit for the Tygart Dam Project No. 12640. The 

Commission also has before it a competing application for preliminary permit filed on 

September 23, 2005, by Tygart LLC for the Tygart Dam Project No. 12613. 

 The Tygart Project was licensed in 1989, and construction did not commence in the 

11 years before the Commission terminated the license. Under these circumstances, I do 

not support reinstatement of the license or further extension of the commencement of 

construction deadline. 

H.R. 4377

 H.R. 4377 would provide for license reinstatement, if necessary, and extend the 

deadline for the commencement of project construction for the Arrowrock Project No. 

4656, located in Idaho, for a three-year period from the date of enactment of the 

legislation. The Arrowrock Project was licensed on March 27, 1989, to the Boise-Kuna 

Irrigation District, the Nampa & Meridian Irrigation District, the New York Irrigation 

District, the Wilder Irrigation District, and the Big Bend Irrigation District (Districts). 

 The license gave the Districts the maximum two-year time permitted by Section 13 

to start construction -- that is, until March 26, 1991. On January 9, 1991, pursuant to 

Section 13, the Commission granted the Districts’ request for the one additional two-year 

extension to commence construction permitted by the statute, thereby extending the 

deadline for commencement of construction to March 26, 1993. 

 Section 1701(c) of the Energy Policy Act of 1992 subsequently authorized the 

Commission to extend the deadline for commencement of construction of the project for 

an additional six years, until March 26, 1999. The Commission granted this extension. 

 On March 23, 1999, three days prior to the expiration of the extended deadline, the 

Districts requested a stay of the commencement of construction and compliance 

deadlines, while they sought Congressional legislation permitting further extensions of 

the construction deadline. The Commission denied that request, and on May 19, 1999, 

issued an order noticing probable termination of the license for failure to meet the 

commencement of construction deadline. 

 In June, 1999 legislation was introduced in the Senate (S. 1236) authorizing a 

further extension of the Section 13 deadline for the project until March 26, 2005. Former 

Commission Chairman James Hoecker submitted written testimony to the Senate Energy 

and Natural Resources Committee on July 28, 1999 stating that because this bill would 

extend the construction commencement date beyond 10 years from the issuance date of 

the project license, he did not support its enactment. 

 This legislation, which was subsequently enacted and signed into law in October, 

2000 as Public Law No. 106-343, authorized the Commission, upon the Districts’ 

request, to reinstate the license, if necessary and, to further extend the deadline for 

commencement of construction for three consecutive two-year periods, to take effect on 

the date of the expiration of the last extension issued by the Commission (i.e., as of 

March 26, 1999). 

 As requested by the Districts, the Commission thereafter granted three extensions, 

making the new final deadline for starting construction March 26, 2005. 
242

 On March 25, 2005, the Districts filed a request for a stay of the license, and to 

backdate the stay for 120 days to allow them time to comply with license articles 

containing requirements that must be completed before start of construction. 

 On May 27, 2005, the Commission denied the request for stay of license and, in the 

same order, issued notice of the probable termination of the project license. The 

Commission denied rehearing by order issued September 1, 2005. 

 The Arrowrock Project was licensed in 1989, and construction did not commence in 

the 16 years before the Commission gave notice of probable license termination. Under 

these circumstances, I do not support further extension of the commencement of 

construction deadline. 

H.R. 971 

 H.R. 971 concerns Projects Nos. 10822, 10823, and 11547. First, H.R. 971 would 

require the Commission to extend until May 30, 2007, the deadline for commencing 

construction of the proposed Hale Project No. 11547, and to issue two additional twoyear extensions of the construction deadline. 

 In 1997, the Commission issued Summit Hydropower, Inc., a license for the Hale 

Project, to be located on the Quinebaug River, in Windham County, Connecticut. The 

City did not commence construction within the two-year period specified in the license, 

or within the additional two-year period which it requested and the Commission granted. 

Consequentially, by letter dated May 2, 2002, the Commission notified Summit of the 

probable termination of the license. By letter dated August 9, 2002, Commission staff 

notified the licensee that it would not take further action to terminate the license pending 

action on legislation to extend the construction deadline. 

 The license for the Hale Project was issued nine years ago. The required extensions 

of the commencement of construction deadline could move that deadline to May 30, 

2011, almost 14 years after the project license was issued. I therefore do not support the 

bill in this respect. 

 H.R. 971 would also require the Commission to extend until May 30, 2007, and to 

issue two additional two-year extensions for the commencement of construction 

deadlines for the Collinsville Upper Hydroelectric Project No. 10822 and the Collinsville 

Lower Hydroelectric Project No. 10823 on the Farmington River, in Hartford County, 

Connecticut. 

 The Commission issued licenses to Summit Hydropower for the Collinsville Upper 

and Lower Projects on February 23, 2001. Summit did not commence construction of 

the projects during the two-period provided in the license, or during the two-year 

extension, which expired February 23, 2005, granted by the Commission. 

 The extensions required by H.R. 971 would extend the commencement of 

construction deadline for the two projects to May 30, 2011, only a few months more than 

10 years after the project licenses were issued. Because the extensions would be so close 

to 10 years from the date of license issuance, I do not oppose H.R. 971 with respect to the 

Collinsville Projects. 

S. 176

 S. 176 would authorize the Commission to extend the commencement of 

construction deadline for the Reynolds Creek Hydroelectric Project No. 11480 for three 

two-year periods beyond the date that is four years after the date of issuance of the 

project license. 

 On October 24, 2000, the Commission issued Haida Corporation a license for the 

proposed Reynolds Creek Project, to be located on Prince of Wales Island, Alaska. 

Haida did not commence construction during the two-year period provided in the license, 

or during the two-year extension, which expired October 24, 2004, granted by the 

Commission. 
243

 The extensions authorized by S. 176 could extend the commencement of 

construction deadline until precisely 10 years after the project licenses were issued. 

Moreover, the bill would authorize, but not require, the Commission to grant the 

extensions. Therefore, I do not oppose S. 176. 

S. 244

 S. 244 would authorize the Commission to extend the commencement of 

construction deadline for the Swift Creek Hydroelectric Project No. 1651 for three twoyear periods beyond the date that is four years after the date of issuance of the project 

license. 

 On December 19, 1997, the Commission issued Swift Creek Power Company a new 

license for the existing, non-operating 1.5- megawatt Swift Creek Project, located on 

Swift Creek, in Lincoln County, Wyoming. Rehabilitation of the upper development 

consists of adding one-foot stop logs to the upper dam, replacing the penstock, and 

refurbishing the powerhouse and adding two generators. Rehabilitation of the lower 

development consists of dredging the lower dam, installing a 2,000-foot-long penstock, 

building a powerhouse with 2 generators, and a new transmission line. The project 

occupies 20 acres of federal lands within the Bridger-Teton National Forest. 

 The original deadline in the license for commencement of construction, December 

18, 1999, was, at the licensee’s request, extended to December 18, 2001. Swift Creek did 

not commence construction during the two-year period provided in the license, or during 

the two-year extension, which expired December 18, 2001, granted by the Commission. 

The licensee did not request any further extensions of the deadline. 

 On November 29, 2002, Swift Creek and the Town of Afton, Wyoming, filed a joint 

application to transfer the license from Swift Creek to Afton. In response to the notice of 

the application, the U.S. Forest Service filed on February 28, 2003, a motion to intervene 

in the transfer proceeding, and commented that it supported the transfer if it facilitated 

either placing the project back into operation or removing the project works from 

National Forest lands and restoring the lands. Action on the transfer remains pending. 

 The Commission interprets the deadlines in section 13 as applying only to an 

original license, authorizing initial construction of a project. Project No. 1651 was in 

existence when the project was issued a new (or relicense) license in 1997 so, -- although 

refurbishment of damaged project works would entail substantial new construction -- by 

the Commission’s interpretation, the licensee has not failed to meet a statutory 

commencement of construction deadline. As a policy, the Commission has included 

construction deadlines when it authorizes licensees to perform major project renovations 

or to install additional new capacity because it is in the public interest to have 

construction proceed expeditiously. 

 I note that while the Project No. 1651 licensee is not subject to Section 13 of the 

FPA, the Commission has rarely given a licensee more than 10 years to commence new 

construction at an existing project. 

 The extensions authorized by S. 244 could extend the commencement of 

construction deadline until precisely 10 years after the project license was issued. 

Moreover, the bill would authorize, but not require, the Commission to grant the 

extensions. Therefore, I do not oppose S. 244. 

Summary 

 As I have indicated, I oppose extensions for H.R. 4417 and H.R. 4377, and do not 

oppose extensions for H.R. 971, S. 176, and S. 244. 

I appreciate the opportunity to present my views to the Subcommittee. Thank you, 

and I will be happy to answer any questions you may have. 
244

 MR. OTTER. [Presiding] As a chairman, I think I will begin the 

questioning. Mr. Robinson, you said under your two conditions for 

extending licenses one was a 10-year period and the other one was 

obviously the economic conditions. Yet I think you heard the testimony 

from my colleague from West Virginia that under the Tygart Project, it 

was indeed their economic analysis that said it was now a viable 

economic project and so that is why because of the increased cost in 

energy that now they wanted to go forward with that project. The 10-

year period, obviously they have updated their considerations. They 

have updated the fact that they are going to tunnel through that dam and 

to put in the penstock, and also to make it a viable project. So my 

question would come back is if we are so rigid on that 10-year period or 

that economic consideration has not FERC ever extended beyond 10 

years a project for either one of those reasons? 

 MR. ROBINSON. We actually are not by law permitted to extend 

beyond one 2-year extension on the Federal requirement to start 

construction within 2 years. We have, however, where Congress has 

specially authorized us to grant extensions beyond that, we in fact have. 

I can’t remember the project now but we had two sets of extensions by 

Congress, one for 6 years that added to the 10, and then a second one 

which I believe was for another 5 years, so we certainly have extended 

projects beyond the 10-year period where Congress was giving us that 

authority. 

 MR. OTTER. And both of those have been successful? 

 MR. ROBINSON. No. There was only one that I remember, and it 

was on the same project and that project is still not constructed. 

 MR. OTTER. The other one that went forward then was successful? 

 MR. ROBINSON. There was only one that actually went beyond the 

10-year period where Congress designated a period beyond that time 

frame. 

 MR. OTTER. Now of course on the Arrowrock Project it seems pretty 

obvious to me that it was circumstances beyond the licensee’s control. It 

wasn’t some environmental consideration that they hadn’t completed an 

EIS or an endangered--it was because of the bull trout and the 

Endangered Species Act that delayed that entire process, and then when 

FERC at a later time was asked to go forward there was no response 

from FERC themselves. So circumstances beyond the licensee’s control 

that allowed both of those permits to exhaust their time period would 

seem to me that FERC would be able to give the consideration, number 

one, because of its own inaction, and, number two, because of the action 

of another Federal agency beyond the licensee’s control, I want to repeat, 

that should give it additional consideration. 
245

 MR. ROBINSON. During the course of the 16 years that we have been 

interacting with the licensees for this project and the agencies, there have 

been numerous explanations for why the project was not going forward, 

bull trout certainly being one of them and being prominent here more 

recently. There are differing views on where the ball laid on the bull 

trout issue. Was it with the Fish and Wildlife Service, was it with the 

licensee, was it with FERC, and it all goes to what information was 

available about the project and what information the different agencies 

required. 

 The Commission has reviewed this twice. They reviewed that issue 

very specifically on how the bull trout issue was handled by the 

Commission staff and under the laws that we have to operate under, and 

at this point has not accepted a request to stay that license, which is one 

of the things that the Commission has done where there are conditions 

beyond the control of the licensee and the time period is running out. 

They have stayed the license and effectively stopped the clock on even 

the 2 plus 2 years but certainly within the 10 years. And I believe on 

Arrowrock they actually did stay that project for a period of time as well. 

 MR. OTTER. Well, part of that project, the stay on that project came 

about because of the old antiquated valves that were in there. In order to 

complete the hydro project the Army Corps or the BOR-- 

 MR. ROBINSON. It is the Bureau of Reclamation. 

 MR. OTTER. Yeah, the BOR had to install the new valves which 

then gave it the capacity for the hydro capability, and that was started in 

2002 and completed in 2004 so why wouldn’t they be granted credit for 

those 2 years plus the 2 years under the bull trout consideration? 

 MR. ROBINSON. Well, again, given that there has been 16 years on 

this project, a number of different issues have held it up over those 16 

years. And there is another aspect to this project, should this go forward 

and the bill be passed and the Commission does grant the extension to 

start construction, the project that is now being contemplated, which has 

been under discussion with the Fish and Wildlife Service, is not a project 

that the Commission has authorized. So there would be a review of this 

new project which on its surface clearly has advantages associated with it 

in terms of its footprint and how it would go through the same and all 

those things, but there are issues associated with the project. 

 The record that we have currently doesn’t match the project that is 

being pursued, so we would go back and look at it whether it would be 

an amendment to the license or however we would handle it. The 

Commission would have to spend some time looking at it, and we would 

work out the bull trout issue as well during that period. 

 MR. OTTER. Okay. Thank you very much, Mr. Chairman. I 

recognize the Ranking Member. 
246

 MR. BOUCHER. Mr. Chairman, I really don’t have any questions of 

Mr. Robinson. I want to thank him for stating very clearly the position 

of the FERC on this matter, and I think you have propounded to him all 

of the relevant questions. Thank you, Mr. Chairman. 

 MR. OTTER. Okay. Thank you. Then you are excused, sir. Thank 

you very much for your time. I appreciate it. Without any further 

business, the committee is now retired. 

 [Whereupon, at 4:52 p.m., the subcommittee was adjourned.] 
247

RESPONSE FOR THE RECORD OF THE HON. EDWARD F. SPROAT, III, DIRECTOR, OFFICE OF 

CIVILIAN RADIOACTIVE WASTE MANAGEMENT, U.S. DEPARTMENT OF ENERGY

QUESTIONS FROM CHAIRMAN BARTON 

Q1. Are you familiar with the interim storage provision in the Senate’s Energy & Water 

Appropriations bill? If that were to become law, what resources would you need to 

meet those requirements without detracting from progress on the repository? How 

would that compare to the resources needed to meet the requirements of H.R. 5360, 

the Administration’s legislative proposal? 

A1. The Department has not estimated what resources would be necessary to implement 

the interim storage provisions in the Senate’s Energy and Water Appropriations bill, 

but believes additional resources would be required to license, manage, operate and 

construct the interim storage facilities even if the Department primarily utilized 

existing facilities at reactor sites. Implementation of the provisions in the Senate’s 

bill would not reduce the resources needed to license, construct, and operate the 

Yucca Mountain site. To the extent resources are limited, work on interim storage 

could delay completion of the repository. 

Q2. The Nuclear Waste Policy Act limits the size of the Yucca Mountain repository to 

70,000 metric tons, but what is the physical capacity? What are the scientific and 

technical factors that would determine the maximum capacity? 

A2. The Department has not determined a maximum physical capacity for the site but 

believes that, at a minimum, the estimated amounts of spent nuclear fuel expected 

to be generated by the current fleet of commercial reactors throughout their life time 

and all existing Defense spent nuclear fuel and high-level waste could be disposed 

of at Yucca Mountain. The maximum technical capacity of the Yucca Mountain 

repository is dependent on the physical characteristics of the areas of the site that 

have not yet been thoroughly evaluated, as well as the radionuclide content, 

volume, and form of materials to be disposed. 

Q3. The Electric Power Research Institute conducted a preliminary analysis of the 

maximum disposal capacity in a Yucca Mountain repository this spring. This 

analysis suggested that the repository could hold between 4-9 times the current 

legislated limit if expanded and redesigned. Has DOE reviewed this analysis and 

are you aware of any other studies regarding the potential capacity for the 

repository? 

A3. The Department is aware of but has not reviewed the Electric Power Research 

Institute estimates. The Department is not aware of any other studies regarding the 

potential capacity of the repository at this time. 

Q4. If interim storage was authorized by Congress, would it make operational sense to 

move used fuel in proximity to the planned repository? Why? 

A4. Yes, if authorized by Congress, it would make operational sense for interim storage 

facilities to be near the planned repository to avoid additional transportation of 

waste to the repository. The advantages of consolidating spent nuclear fuel at the 
248

repository site prior to permanent emplacement would be the avoidance of multiple 

transportation campaigns and the security of a single Federal site in a remote desert 

environment. 

Q5. Why are the provisions of Resource Conservation and Recovery Act (RCRA) 

unnecessary for the Yucca Mountain project? 

A5. The requirements for containment of spent nuclear fuel imposed by the Nuclear 

Regulatory Commission (NRC) are considerably more stringent than any standards 

that might be imposed under the Resource Conservation and Recovery Act 

(RCRA). Specifically, NRC requires the use of NRC certified containers to 

transport, store and dispose of spent nuclear fuel and the permanent isolation in a 

deep geological repository in a manner that limits potential radiological exposures 

to no more than 15 mrems annually over a 10,000 year period. Passage of the 

Administration’s proposal would avoid a duplicative regulatory structure, by 

making the NRC the only regulatory authority for the repository facility. 

Q6. Why would it be appropriate to require DOE to submit details on only the surface 

facilities needed for initial operations in the license application? 

A6. NRC regulations require DOE to submit details on both surface and sub-surface 

facilities with its initial license application which DOE intends to do. During the 

life of the repository operations, the Program plans on additional surface facilities to 

handle additional amounts of spent nuclear fuel and high-level waste. The 

Administration’s legislative proposal clarifies that DOE need not include these 

additional surface facilities in its initial license application. The proposal does not 

eliminate the need for NRC to approve the construction and operation of these 

additional facilities at the appropriate time. 

Q7. What are the advantages to developing site infrastructure prior to receiving a 

construction authorization from NRC? What are the drawbacks? 

A7. Site infrastructure improvements are necessary to maintain safety and the protection 

of workers, regulators, and visitors. Infrastructure upgrades will enhance safety and 

enable DOE to safely continue ongoing operations, scientific testing, and routine 

maintenance. Moving forward with the necessary safety upgrades and 

infrastructure would significantly facilitate the timely opening of the repository. 

QUESTION FROM REPRESENTATIVE ALLEN 

Q1. Mr. Sproat, an important issue to me that you did not discuss is the so-called “clean 

canistered” program developed under the watch of your predecessor Acting 

Director Golan. As I understand it, this program envisions the development of new 

transportation, aging and disposal, or TAD, canister systems that DOE would utilize 

in meeting its spent fuel acceptance obligations. 

I have concerns with DOE’s TAD concept in light of the impact that it could have 

on your ability to meet your spent fuel acceptance obligations for contract holders, 
249

such as Maine Yankee, who have undergone decommissioning and are utilizing 

existing, NRC licensed dual purpose storage and transportation systems. Further, so 

called “dead plants” are decommissioned and therefore do not have any remaining 

infrastructure within which to make transfers of waste from existing licensed dual 

purpose canisters to new canisters. 

Q1(a). What role do you envision for the TAD system in the new program plan and 

schedule you have laid out for the Committee? 

A1(a). The transport, aging, and disposal (TAD) system is a vital component of the 

new Program plan and schedule. The license application will reflect the use of 

the TAD system and the repository is being designed to reflect the use of the 

TAD system as the primary mechanism for accepting commercial spent nuclear 

fuel. The TAD concept will significantly simplify spent nuclear fuel handling 

operations at the repository. Under this approach, most spent nuclear fuel will 

be packaged for disposal by the utilities. This approach offers the advantage of 

having those who know most about the fuel, the generators, responsible for 

canisterization and packaging. This approach will take advantage of 

commercial reactor sites with existing capability and spent nuclear fuel 

handling expertise. Thus, it will limit the need to build new equipment and 

train operators for a capability that already exists in the private sector. The 

Department has been working with industry to develop the performance 

specifications for canisters that can be transported, aged, and disposed of 

successfully within the waste management system. Also, the facilities needed 

to support the handling of TAD canisters at Yucca Mountain will be fewer, less 

complex, and more efficient. 

Q1(b). Are you planning to develop surface facilities at the Yucca Mountain site that 

are capable of receiving material transported to the site in existing dual purpose 

technologies as well as TAD systems? Will these facilities be the same for both 

existing and future TAD technologies? If these facilities are not the same and 

one is to be phased in after the other, which gets built first under your current 

thinking and what are the relative time frames you are looking at for their 

construction? 

A1(b). The repository surface facilities are being designed to include the capability of 

receiving material transported to the site in existing dual purpose technologies, 

including those currently in use at shutdown reactors sites, as well as TAD 

systems. Different facilities will be needed for the existing dual purpose 

technologies and the TAD systems. The dual purpose canisters will require 

opening and repackaging in waste packages licensed for disposal in a 

repository. The benefit of the TAD system is its ability to be disposed of 

directly in the repository with minimal packaging steps. The opening and repackaging of spent nuclear fuel contained in dual purpose technologies will 

require a wet handling capability that the TAD system does not require, and as 

a result, a separate building will be utilized that includes a spent nuclear fuel 

handling pool. The Department is planning on the construction of the facilities 

to receive TAD canisters early in the repository construction schedule, and the 

facilities to open dual purpose canisters later. 
250

Q1(c). Why do we need a new canister system? Is there any reason that existing NRC 

licensed dual use canisters are not acceptable for transportation and storage at 

Yucca Mountain? 

A1(c). The Department has elected to proceed with a primarily TAD based system for 

the reasons set forth in A1(b) above. 

Q2. I am very concerned that the DOE might be headed down a path that would 

penalize, rather than reward, those facilities, especially single unit decommissioned 

sites, that have invested in technologies to safely and responsibly store and manage 

their spent fuel inventory. The Nuclear Waste Technical Review Board has raised 

“an overarching concern” that the existing litigation between the DOE and utilities 

“is a significant impediment to the technical resolution of key issues” relating to 

spent fuel acceptance and management leading to disposal. What assurances can 

you give us that you will make it a high priority to actively seek a realistic 

resolution of these issues? Will you commit to working with me and other 

interested Members of this Committee to seek resolution of these issues? 

A2. The Department believes that, notwithstanding the ongoing litigation, meaningful 

technical discussions can and do take place. This was demonstrated by recent 

technical interactions with the industry on the development of the TAD system 

performance requirements. The Government has also been actively negotiating 

settlements and has reached a settlement agreement with companies representing 

over 20% of the nuclear industry. It is to the advantage of both parties to seek a 

settlement agreement and we fully expect additional settlements to be negotiated. I 

would welcome the opportunity to work with you and other interested Committee 

Members to resolve these issues. 
251

RESPONSE FOR THE RECORD OF LUIS A. REYES, EXECUTIVE DIRECTOR FOR OPERATIONS,

U.S. NUCLEAR REGULATORY COMMISSION

October 17, 2006 

The Honorable Ralph M. Hall 

Chairman, Subcommittee on Energy and 

 Air Quality 

Committee on Energy and Commerce 

Washington, D.C. 20515 

Dear Mr. Chairman: 

The Nuclear Regulatory Commission appeared before the Subcommittee on Energy and 

Air Quality on September 13, 2006. From that hearing, you forwarded questions that 

were submitted for the hearing record. The responses to your questions are enclosed. If I 

can be of further assistance, please do not hesitate to contact me. 

Sincerely, 

/RA/

Rebecca L. Schmidt, Director 

Office of Congressional Affairs 

Enclosure: 

As stated 

cc: Representative Rick Boucher 

 
252

RESPONSE TO THE HONORABLE JOE BARTON

QUESTION 1. 

 

You state that the Commission has certified a number of package designs for the 

transport of nuclear fuel. Does the Commission have concerns about the 

Department’s proposal for new transport, aging and disposal canisters (TADs) for 

fuel already in NRC approved transportation packages? Are there safety concerns 

and does it make sense to repackage the fuel into TADs, especially at 

decommissioned sites that no longer have spent fuel pools available in which to 

facilitate the transfer? 

ANSWER. 

The Department of Energy (DOE) has informed us that it plans to develop the 

performance specifications for the transport, aging and disposal canisters (TADs) design 

by late calendar year 2006. To date, neither DOE nor any NRC power plant licensee has 

proposed packaging or repackaging fuel into TADs. Therefore, NRC has not taken a 

position on the logistical approach regarding use of the specific TADs contemplated by 

DOE. DOE has advised the NRC staff that it is considering, in their design of the 

repository, the capability to receive spent fuel in non-TAD packagings and to repackage 

spent fuel into TAD canisters at Yucca Mountain. If DOE’s license application has such 

a proposal, the NRC staff will review it. We would note, however, that in a letter to Dr. 

Margaret Chu, Director, Office of Civilian Radioactive Waste Management dated 

February 20, 2004, the NRC stated, “The NRC believes that NRC-approved dual-purpose

casks can be used to transport spent fuel to the potential Yucca Mountain repository. In 

addition, NRC is currently permitting decommissioning power reactor facilities to 

demolish their spent fuel pools after all spent fuel is loaded in NRC-certified dualpurpose storage casks. Obviously, it would be preferred, for safety as well as economic 

reasons, not to re-pack the fuel loaded in these casks. Thus, early resolution of cask 

selection and cask certification is important to the NRC’s regulatory activities.” 

[Emphasis added] This continues to be NRC’s position on this matter. As noted above, 

DOE has advised the NRC staff that it is considering, in their design of the repository, the 

capability to receive spent fuel in non-TAD packages and to repackage spent fuel into 

TAD canisters at Yucca Mountain. This would clearly be the preferred solution for 

loaded dual-purpose casks at NRC-licensed sites, particularly decommissioned sites. 

QUESTION 2. 

With respect to preparations for a repository license application, how many people 

has the NRC hired in the last two years for this project and how many does it expect 

to hire in the next two? How much of the NRC’s annual appropriation for High 

Level waste management has it spent over this and last year and how much has it 

and will it carry over to next year? 

ANSWER. 

From 102 positions in FY 2004, the number of NRC HLW staff decreased by 11 

positions in FY 2005. With the delay in the receipt of a license application, the number 

of NRC HLW staff positions remained level throughout FY 2005 and FY 2006. The 

number of positions is projected to remain nearly the same in FY 2007 (FY 2008 
253

projections are not included in our response, since the FY 2008 budget is currently with 

the Office of Management and Budget). 

In FY 2005, the NRC was appropriated $68.5 million from the Nuclear Waste Fund 

(NWF). The agency obligated $46 million and had an unobligated carryover of $23.7 

million, of which $1.2 million was from prior year appropriations. In FY 2006, the NRC 

was appropriated $45.7 million from the NWF, of which $43.7 million was obligated. At 

the end of FY 2006, the agency had $25.7 million in prior year NWF appropriations that 

remained unobligated. It should be noted that the unobligated carryover amount is a 

cumulative total of all prior-year NWF appropriations. 
254

RESPONSE FOR THE RECORD OF THE HON. STAN WISE, CHAIRMAN, GEORGIA PUBLIC 

SERVICE COMMISSION, ON BEHALF OF NATIONAL ASSOCIATION OF REGULATORY UTILITY 

COMMISSIONERS

The Honorable Joe Barton

1. Does it make sense to stall the development of Yucca Mountain in order to 

allow time for reprocessing to be developed and implemented? 

Mr. Chairman, I see the development of a repository as largely independent of 

a future decision to shift to a reprocessing scheme for spent fuel management. 

First, whether spent nuclear fuel is reprocessed or not, there will remain some 

highly radioactive waste products of reprocessing—as I understand it from the 

experts and DOE—that will require disposal in an underground repository. 

Plus, there is some defense high-level radioactive waste for which disposal is 

required and, to my knowledge, which is not suitable for reprocessing. 

Additionally, earlier this year when the GNEP initiative was first introduced, I 

understood Deputy Energy Secretary Clay Sell to say that spent fuel that had 

been out of the reactor for more than 15 years may not be a candidate for 

reprocessing. If this is the case, by the time the government has reprocessing 

fully operational, it would appear that there will be a large amount, of spent 

fuel that will have been out of a reactor for more than 15 years that is still in 

need of disposal and not suitable for the reprocessing program. 

There is another consequence for the continued delay in moving the spent fuel 

to a repository—or until some away-from-reactor interim storage is available. 

The lawsuits by the utilities for waste acceptance delay damages have yet to be 

decided, but for those that have, they provide for continuing government 

liability until the government eventually performs to its contractual obligation 

to accept the spent fuel. 

There is no reason that I can see why the repository development has to be 

delayed because of the consideration to reprocess spent fuel in the future. 

Certainly the annual fee payments are not being delayed. Ratepayers are paying 

for waste disposal; the government needs to provide the disposal that was 

promised. 

2. Under what conditions would it make sense to send defense waste to the 

repository first, ahead of commercial spent fuel? 

Mr. Chairman, actually I believe there are more reasons for commercial spent 

fuel to be moved ahead of defense waste. Defense waste is already presumably 

safely and securely stored. In contrast, in 36 locations the spent fuel 

accumulating at commercial reactors exceeds the storage capacity of the 

cooling pools and the utilities have had to build dry cask storage (for which the 

lawsuits seek damages, as mentioned before.) With the recent announcement 

that the earliest that Yucca Mountain will be ready to begin to accept spent fuel 

is 2017, I would imagine that more and more utilities will be seeking more and 

more dry cask storage. That has certainly been our experience in Georgia, as I 

discuss in more detail in my response to your Question 4. 
255

There are 3,800 tons of spent fuel now stored at shutdown reactor storage sites. 

I am sure that the owners of those shutdown reactor sites have to meet all the 

terms of their storage licenses under NRC requirements, including security. 

You don’t have to be an expert in homeland security to conclude that shipping 

this spent fuel to the repository, whether for disposal or interim storage, is 

preferable to keeping it at these otherwise shutdown facilities. I know of no 

comparable perceived risk for current defense waste storage. 

There seems to be no economic or security advantage to sending defense waste 

to the repository ahead of commercial spent fuel. The only advantage I can 

see—if, for some reason the commercial spent fuel were not ready for 

shipment—would be to have DOE demonstrate (what we already know, but 

much of the public may not) that nuclear waste transportation can be planned 

and implemented safely. This would help build public confidence (as would 

shipping commercial spent fuel; of course.) 

3. Under what circumstances, if any, would it be appropriate for the Nuclear 

Waste Fund to be used to fund interim storage activities? 

Mr. Chairman, first, the appropriations stranglehold on the Nuclear Waste 

Fund—in which $750 million is collected in fees, yet only a small fraction is 

appropriated for its intended purpose—would have to be fixed. Otherwise, 

dollars for interim storage are provided at the expense of the repository. 

There are some expenses associated with interim storage that are likely to be 

appropriate for the Nuclear Waste Fund. Procurement of transportation casks 

and expenses of transferring spent fuel into them are expenses that would 

eventually be required for shipment to the permanent repository. The closer the 

interim storage site is to Yucca Mountain, the more the transportation costs 

would also seem fundable from the NWF. 

In terms of “cost to the government,” it seems likely that development of a 

sizable central interim storage facility to be built and operated by DOE would 

be more economic than for the utilities to continue to build and manage more 

dry cask storage at individual reactor sites. It was that “economies of scale” 

premise that led some of the utilities to form the consortium Private Fuel 

Storage LLC, which seeks to build and operate a private temporary spent fuel 

storage facility in Utah. To the extent that a DOE central interim storage could 

achieve similar economies and DOE will have accepted title (and financial 

responsibility) for the spent fuel stored there, that would bring a halt to the 

federal liability for that fuel for the former owners’ storage expenses. However, 

since the liability for those expenses is not against the Nuclear Waste Fund, 

should not the same source of funding be used to pay for interim storage that 

would experience a cost reduction? As you know, the Eleventh Circuit of the 

Federal Court of Appeals ruled in 2002 that the Department of Energy could 

not use future NWF fee reductions to pay damages in the waste acceptance 

delay storage cost lawsuits (because the Secretary lacks the authority to make 

fee adjustments for individual utilities and because the NWPA makes clear the 

utilities are responsible for reactor-site fuel storage costs.) It is my 

understanding that the damages awarded to date and the settlement agreement 

with Exelon are being paid from the Judgment Fund and not the Nuclear Waste 
256

Fund. It follows that the Department of Energy should use other appropriations 

than the NWF for interim storage. 

4. I understand that the Southern Company has indicated their interest in 

building new nuclear plants in Georgia. As Chairman of the Georgia Public 

Service Commission, what do you think needs to happen with regard to the 

spent fuel issue in order for the Commission to support new nuclear 

construction? 

Mr. Chairman, first and foremost, let me say that pursuant to the Official Code 

of Georgia Annotated §46-3A, all new supply-side capacity is identified in the 

utility’s Integrated Resource Plan and subsequently must be certified by the 

Commission. Although this certification process is not driven solely by the 

spent fuel disposal issue, this issue does figure into the overall certification 

process since the certification process includes decisions on type of generation, 

construction, operation and maintenance costs of the resource, number of 

megawatts needed, and when the capacity is needed. 

Nuclear expansion has great appeal for meeting forecasted demand for baseload 

generation due to improved reactor technology. New nuclear units will have 

advantages over coal such as protection from fuel price instability and no 

carbon emissions. However, I can foresee the lack of certainty surrounding the 

spent fuel disposal problem being factored in to the overall certification 

decision. 

Resolution of the spent fuel issue will figure prominently into the overall cost 

of the new unit. It is my understanding that during the planning stage, it is 

easier to design greater spent fuel pool storage capacity than it is to retrofit the 

pool at the existing reactor site. The Georgia Public Service Commission is 

especially concerned about this issue since as of December 2004, the costs 

incurred at Georgia Power Company’s Plant Vogtle attributable to spent 

nuclear fuel storage are $8.7 million for additional racks within the spent fuel 

pool. Given the existing capacity for spent nuclear fuel storage at Plant Vogtle, 

Vogtle’s storage pool will begin to lose its reserve capacity in the year 2015 - at 

which time Vogtle will begin to transfer assemblies to dry cask storage on site. 

As you indicated in your question, Southern Company is considering the Plant 

Vogtle site for a new nuclear generating unit, so spent fuel storage and disposal 

will likely figure notably into the Commission’s decision to certify a new 

nuclear unit. 

 

This concern applies to siting future dry cask storage as well to perhaps store 

the entire inventory of spent fuel for the life of the reactor. As of December 

2004, the costs incurred at Georgia Power’s Plant Hatch attributable to spent 

nuclear fuel storage are $77 million. Given the present capacity for spent fuel 

storage, Hatch will reach its capacity of 48 dry casks in the year 2011. 

Southern Nuclear intends to begin the expansion of the pads in 2009. Here in 

Georgia, this is a real issue that deserves serious consideration. 

It is also my understanding that a revised waste acceptance “standard contract” 

will need to be presented as part of the Construction and Operation License 

application that meets the requirements of the Nuclear Waste Policy Act more 

realistically than the existing contracts. 
257

Finally, it goes without saying that development of a permanent repository and 

providing secure, complementary interim storage would certainly make it easier 

to support new nuclear plants. 
258

RESPONSE FOR THE RECORD OF ANTHONY F. EARLEY, JR., CHAIRMAN AND CHIEF 

EXECUTIVE OFFICER, DTE ENERGY COMPANY, ON BEHALF OF NUCLEAR ENERGY INSTITUTE

Anthony F. Earley, Jr. 

Chairman and Chief Executive Officer 

 DTE Energy Company 

 2000 2nd Ave., Detroit, MI 48226-1279 

 Tel: 313.235.8600 

 

October 13, 2006 

The Honorable Joe Barton 

Chairman, Energy & Commerce Committee 

U.S. House of Representatives 

2125 Rayburn House Office Building 

Washington, DC 20515 

Dear Chairman Barton: 

Thank you for allowing me to testify before the Subcommittee on Energy and Air Quality 

on Wednesday, September 13, 2006, regarding the storage and disposal policy for nuclear 

waste. It is my pleasure to respond to additional written questions for inclusion in the 

hearing record. 

The attached sheet provides my responses to your questions. If I can be of further 

assistance, please do not hesitate to call me. I appreciate the opportunity to present our 

comments. 

 Sincerely, 

 

 Anthony F. Earley, Jr. 

Attachment 

cc: The Honorable Ralph Hall 

 Chairman, Subcommittee on Energy and Air Quality 

 House Energy and Commerce Committee 
259

The Honorable Joe Barton

Q1. To what extent is the development of new nuclear plants dependent on 

solving the spent fuel issue? 

A: As I stated in my testimony, unless progress is made on nuclear waste issues, 

spending on new plants could slow and eventually grind to a halt. To date, executives in 

the industry have been willing to make investments to plan for nuclear plants. But as the 

time approaches for commitment of larger sums, more certainty is needed on the spent 

fuel issue. If the Department of Energy makes visible and measurable progress on 

implementing a national used fuel management strategy, with Yucca Mountain as a 

critical component, companies will continue to move ahead, and the financial markets 

will have the necessary confidence to support these investments. 

Q2. Under what conditions would it make sense to send defense waste to the 

repository first, ahead of commercial spent fuel? 

A: It is important for the government to expeditiously meet its already overdue 

contractual obligations to take title to and move used nuclear fuel from existing plant 

sites. The federal government could meet this obligation by consolidating storage of used 

fuel at a very few surface facilities, perhaps including one in Nevada. This might be done 

in order to better address potential changes in the fuel cycle such as recycling. Under 

such a scenario, it might make sense to consider emplacing defense waste in the 

repository first. 

Q3. Does it make sense to stall the development of Yucca Mountain in order to 

allow time for reprocessing to be developed and implemented? 

A: No. Yucca Mountain will be needed in any fuel cycle we may ultimately adopt and 

we must work to meet the recent schedule set forth by the Department of Energy. In 

addition, there is a need for timely disposal of both defense waste and older “legacy fuel” 

that will not lend itself to cost-effective recycling. We should structure repository 

operations that maintain flexibility to respond to potential fuel-cycle developments, but 

we should not delay the program based on expectations of future developments. 

Q4. Among the additional actions you urge Congress to take is incorporation 

of features into repository development plans that maintain flexibility for 

future generations. Why do you believe this is important? 

A: It is very important for this nation’s energy security that we maintain a significant 

role for nuclear power through the 21st century and beyond. There are two reasons that 

flexibility in repository development can support this goal. First, technological 

developments may allow us to better utilize the potential energy that remains in used 

nuclear fuel, and to enhance the capacity of Yucca Mountain to handle waste products. 

Second, while there is a high degree of confidence that the repository will meet or exceed 

regulatory requirements, it is prudent to monitor the facility’s performance for an 

extended period to further verify that performance and take advantage of potential 

improvements in waste disposal techniques. 
260

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