COMMERCIAL

NUCLEAR WASTE

Resuming Licensing 

of the Yucca Mountain 

Repository Would 

Require Rebuilding 

Capacity at DOE and 

NRC, Among Other 

Key Steps

Accessible Version

Report to Congressional Requesters

April 2017

GAO-17-340

United States Government Accountability Office
United States Gov ernment Accountability Office

Highlights of GAO-17-340, a report to 

congressional requesters

April 2017

COMMERCIAL NUCLEAR WASTE

Resuming Licensing of the Yucca Mountain 

Repository Would Require Rebuilding Capacity at 

DOE and NRC, Among Other Key Steps

What GAO Found

After the Department of Energy (DOE) submitted its March 2010 motion to 

withdraw its license application to construct a geologic repository at Yucca 

Mountain, DOE and the Nuclear Regulatory Commission (NRC) largely 

dismantled their capabilities to carry out the rest of NRC’s licensing process. This 

process includes a technical review by NRC staff and adjudication. DOE’s and 

NRC’s dismantlement steps included, among other things, eliminating 

organizations and funding used to carry out the licensing process; canceling the 

NRC staff’s technical review; and vacating NRC’s customized hearing facility, 

which NRC had leased and equipped specifically for the Yucca Mountain 

adjudication. At the same time, DOE and NRC took steps to preserve relevant 

data, including millions of documents. DOE and NRC had mostly completed the 

dismantlement steps before NRC formally suspended the adjudication and the 

licensing process in September 2011. After an appeals court ruled in 2013 that 

NRC had acted against federal law by halting its review, from 2014 through 

2016, NRC resumed some aspects of the licensing process, such as completing 

its technical review and report on DOE’s Yucca Mountain application, but not the 

adjudication. As of late 2016 and early 2017, DOE and NRC said they have no 

formal plans to resume the adjudication, which, according to an NRC estimate 

from 2014, could take up to 5 years to resume and complete. More recently, the 

administration announced plans to request funding to resume the licensing.

Based on analysis of documents and interviews, GAO identified four key steps 

that would likely be needed to resume and complete the licensing process. The 

steps include actions by, among others, NRC’s five-member Commission and 

the adjudication’s parties: DOE, NRC staff, and 17 non-federal parties likely to be 

affected by the proceeding. The likely key steps GAO identified are: 

1. The Commission and parties receiving direction to resume the licensing 

process, and the Commission deciding on the timing and other details, 

so NRC and parties can identify their funding needs for the adjudication.

2. Rebuilding organizational capacity, including, as needed, recruiting 

personnel to recreate DOE’s, NRC’s, and nonfederal parties’ project 

offices; obtaining legal, scientific, or other experts for the adjudication; 

and rebuilding physical infrastructure. Also at this step, DOE and NRC 

may need to update key documents used for the licensing process.

3. Reconvening the parties and completing the remaining phases of the 

adjudication, including witness depositions and evidentiary hearings.

4. Carrying out the process’s remaining steps, including the Commission’s 

final decision on whether to authorize construction of the repository. 

A number of factors could affect the time needed to resume and complete the 

licensing process. For example, DOE’s ability to bring back its expert witnesses 

to defend its license application during the adjudication could affect this time 

frame. Because of the volume and complexity of information, former DOE 

witnesses contacted by GAO generally estimated that it could take a new expert 

at least a year to prepare to serve as a DOE witness—about twice as long as the 

former witnesses said they would need themselves.

View GAO-17-340. For more information, 

contact Frank Rusco at (202) 512-3841 or 

ruscof@gao.gov.

Why GAO Did This Study

Spent nuclear fuel from commercial 

power reactors can pose risks to 

humans and the environment, if not 

properly contained, and is a source of 

billions of dollars of liabilities. In 2008, 

DOE applied to NRC for approval to 

build a geologic repository at Yucca 

Mountain in Nevada for permanent 

disposal of spent nuclear fuel and highlevel waste. As part of NRC’s licensing 

process to review DOE’s application 

and potentially approve construction, 

NRC initiated a public hearing—or 

adjudication—with DOE, NRC staff, 

and nonfederal parties. However, in 

March 2010, after announcing plans to 

terminate its proposal for Yucca 

Mountain, DOE submitted a motion to 

NRC to withdraw its application. In 

September 2011, NRC formally 

suspended the adjudication.

GAO was asked to examine the likely 

steps needed to resume the Yucca 

Mountain licensing process. This report 

examines (1) the actions that took 

place after DOE submitted its motion to 

withdraw its application and any plans 

by DOE or NRC to resume the 

licensing process, and (2) the likely key 

steps needed to resume and complete 

the process and the factors that may 

influence these steps’ success.

GAO reviewed federal laws and 

documents; interviewed DOE and NRC 

officials and contractors; and 

interviewed or received written remarks 

from 15 of the 17 nonfederal parties.

What GAO Recommends

GAO is not making any 

recommendations. NRC generally 

agreed with GAO’s findings. DOE 

provided comments but did not indicate 

whether it agreed with the findings.
Page i GAO-17-340 Commercial Nuclear Waste

Contents

Letter 1

Background 7

DOE and NRC Largely Dismantled Capabilities for the Yucca 

Mountain Licensing Process and Report Having No Formal 

Plans to Resume the Adjudication 14

Resuming and Completing the Licensing Process Would Likely 

Require Four Key Steps, Which May Be Influenced by Several 

Factors 25

Agency Comments 43

Appendix I: Nuclear Regulatory Commission’s Primary Regulations for the Yucca Mountain Licensing Process

45

Appendix II: Comments from the Nuclear Regulatory Commission 46

Appendix III: Comments from the Department of Energy 47

Appendix IV: GAO Contact and Staff Acknowledgments 48

Appendix V: Accessible Data 49

Data Tables 49

Agency Comment Letters 53

Table

Table 1: Nuclear Regulatory Commission’s (NRC) Primary 

Regulations for the Yucca Mountain Licensing Process 45

Figures

Figure 1: Nuclear Regulatory Commission’s Licensing Review 

Process and Statutory Time Frame for Construction 

Authorization of the Yucca Mountain Repository 10

Figure 2: Timeline of Selected Actions and Decisions Related to 

the Department of Energy’s Motion to Withdraw Its 

License Application for the Yucca Mountain Repository 15
Figure 3: Likely Key Steps for Resuming and Completing the 

Yucca Mountain Licensing Process 26

Data for Figure 1: Nuclear Regulatory Commission’s Licensing 

Review Process and Statutory Time Frame for 

Construction Authorization of the Yucca Mountain 

Repository 49

Data for Figure 2: Timeline of Selected Actions and Decisions 

Related to the Department of Energy’s Motion to 

Withdraw Its License Application for the Yucca Mountain 

Repository 50

Data for Figure 3: Likely Key Steps for Resuming and Completing 

the Yucca Mountain Licensing Process 51

Abbreviations

Page ii GAO-17-340 Commercial Nuclear Waste

ASLBP Atomic Safety and Licensing Board Panel

DOE Department of Energy

EIS Environmental Impact Statement

EPA U.S. Environmental Protection Agency

LSN Licensing Support Network

NEPA National Environmental Policy Act

NRC Nuclear Regulatory Commission

NWPA Nuclear Waste Policy Act of 1982

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Page 1 GAO-17-340 Commercial Nuclear Waste

441 G St. N.W.

Washington, DC 20548

Letter

April 26, 2017

The Honorable Greg Walden

Chairman

Committee on Energy and Commerce

House of Representatives

The Honorable Fred Upton

Chairman

Subcommittee on Energy

Committee on Energy and Commerce

House of Representatives

The Honorable John Shimkus

Chairman

Subcommittee on Environment

Committee on Energy and Commerce

House of Representatives

Spent nuclear fuel—radioactive waste material from commercial nuclear 

power reactors—can pose serious risks to humans and the environment 

and is a source of billions of dollars of financial liabilities for the U.S. 

government. According to the National Research Council and others, if 

not handled and stored properly, this material can spread contamination 

and cause long-term health concerns in humans or even death.1 The 

nation’s inventory of spent nuclear fuel from commercial nuclear power 

reactors is generally stored where it was generated at operating reactor 

sites, immersed in pools of water designed to cool and isolate it from the 

environment and then encased in protective dry-cask storage systems. 

Nearly 80,000 metric tons of this waste is being stored at 75 reactor sites 

in 33 states. The Department of Energy (DOE) estimates the amount of 

commercial spent nuclear fuel will increase to about 140,000 metric tons 

over the next several decades.

The Nuclear Waste Policy Act of 1982 (NWPA) directed DOE to 

investigate sites for a federal deep geologic repository to dispose of spent 

 

1See, for example, National Research Council, Safety and Security of Commercial Spent 

Nuclear Fuel Storage (Washington, D.C.: 2006).
Letter

nuclear fuel and high-level nuclear waste.

Page 2 GAO-17-340 Commercial Nuclear Waste

2 The NWPA also established 

an Office of Civilian Radioactive Waste Management in DOE to 

investigate potential sites and oversee the licensing for the construction of 

a permanent geologic repository, long considered the safest and most 

secure option for disposing of spent nuclear fuel.3 A 1987 amendment to 

the NWPA directed DOE to focus its investigation of potential sites on a 

single location, the Yucca Mountain site, about 100 miles northwest of 

Las Vegas, Nevada, in a remote area of the Mojave Desert. DOE spent 

three decades and billions of dollars investigating the area in and around 

Yucca Mountain, making it, according to some experts, one of the most 

studied sites in the world. In 2002, DOE recommended the site to the 

President, and on the President’s recommendation, Congress approved 

Yucca Mountain as the location for the nation’s geologic repository.

In June 2008, DOE submitted a license application to the Nuclear 

Regulatory Commission (NRC) for authorization to construct a permanent 

geologic repository at Yucca Mountain, which DOE proposed to open by 

2020. DOE’s application included detailed information on the design and 

scientific and engineering analyses of the proposed repository’s safety 

and other attributes. NRC, an independent federal agency, is responsible 

for evaluating DOE’s application and determining whether to authorize 

construction of the proposed repository and—as separate and 

subsequent actions—license DOE to operate and eventually close the 

repository.

NRC’s licensing process to determine whether to authorize construction 

of the Yucca Mountain repository primarily consists of (1) a technical 

review by NRC staff of DOE’s license application and Environmental 

Impact Statement (EIS) for the proposed repository and (2) licensing 

adjudication before NRC Atomic Safety and Licensing Boards (licensing 

boards). Outside entities that would likely be affected by the proceeding, 

such as counties and Indian tribes near the Yucca Mountain site, may 

 

2

In addition to commercial spent nuclear fuel, DOE is responsible for disposing of highly 

radioactive w astes from the nation’s nuclear w eapons program and spent nuclear fuel 

from naval and other noncommercial origins.

3Reports by the National Academy of Sciences, including The Disposal of Radioactive 

Waste on Land (Washington, D.C.: September 1957), have identified disposal in a 

geologic formation as the safest and most secure method of isolating commercial spent 

nuclear fuel and other types of nuclear waste. Subsequent National Academy of Sciences 

reports have continued to endorse geologic isolation and have suggested that engineered 

barriers, such as corrosion-resistant w aste containers, can provide additional protection. 

International consensus also supports geologic disposal.
Letter

petition these boards for approval to participate in the adjudication and to 

file one or more “contentions” to formally challenge the safety, 

environmental, or other aspects of the proposed repository. After taking 

preliminary steps to evaluate whether the entities and contentions meet 

NRC’s acceptance criteria, among other preliminary steps, the licensing 

boards’ administrative judges may hold evidentiary hearings on the 

contentions. The boards are ultimately responsible for making NRC’s 

initial decision about whether safety and environmental laws and 

regulations have been satisfied, in light of the contentions admitted into

the adjudication, and whether to authorize construction of the proposed 

repository.

Page 3 GAO-17-340 Commercial Nuclear Waste

4

In October 2008, NRC issued a public hearing notice announcing the 

opportunity for outside entities to petition for approval to participate as a 

recognized party to the Yucca Mountain licensing adjudication and to file 

contentions for possible adjudication at evidentiary hearings.5In May 

2009, the three licensing boards that were convened to rule on outside 

entities’ petitions announced that they had accepted, for future 

consideration at hearings, about 300 contentions filed by 8 of the 10 

outside entities that the boards determined had legal standing to 

 

4

In addition to the NWPA, the National Environmental Policy Act (NEPA) and NRC’s 

regulations provide requirements and standards regarding the safety, environmental, and 

other aspects of the repository. In particular, under NEPA, federal agencies generally are 

to evaluate the likely environmental effects of projects they are proposing by preparing 

either an Environmental Assessment or a more detailed EIS. 42 U.S.C. § 4332(2)(c). Part 

51 provides that NRC is to determine w hether it is practicable for it to adopt the EIS 

prepared by DOE for the proposed Yucca Mountain repository, 51 C.F.R. § 51.26(c) and 

Part 63 provides requirements and standards specific to Yucca Mountain, see e.g., 10 

C.F.R. §§ 63.112, 63.113.

5NRC regulations require that entities seeking admission as a party to the Yucca Mountain 

licensing adjudication demonstrate that they have standing to participate in the 

proceedings. Entities seeking party status are also required to demonstrate their 

compliance w ith NRC’s requirements related to the Licensing Support Netw ork and to 

submit one or more admissible contentions. NRC regulations also provide that the 10 

Nevada and California counties considered “affected units of local government,” as 

defined by the NWPA, as w ell as affected Indian tribes, w ere not required to demonstrate 

standing. Also, a governmental entity can seek admission into the adjudication as an 

“interested governmental body,” rather than a party, allow ing the entity to participate on 

others’ contentions rather than submitting its ow n.
Letter

participate as parties to the adjudication.

Page 4 GAO-17-340 Commercial Nuclear Waste

6 These parties included the 

State of Nevada; counties designated in the NWPA as “affected units of 

local government” near the Yucca Mountain site; and other nonfederal 

entities. Additional nonfederal entities were admitted as parties later in the 

adjudication, eventually bringing the number of nonfederal parties to 17.7

In addition, the parties to the Yucca Mountain licensing adjudication 

included two federal entities—the NRC staff, as a key technical reviewer 

of DOE’s license application, and DOE, which, as the applicant, was 

responsible for defending its license application or altering aspects of its 

application and underlying proposal for the repository.8

With NRC’s October 2008 public hearing notice, the licensing adjudication 

was underway. However, on March 3, 2010, during the adjudication’s 

initial discovery phase, DOE submitted, to a fourth licensing board 

convened to manage discovery, a motion to withdraw its license 

application “with prejudice” and to exclude Yucca Mountain from further 

 

6The 10 entities admitted in May 2009 included 8 that w ere admitted as parties to the 

licensing adjudication: (1) Clark County, Nevada; (2) the 4 Nevada counties of Churchill, 

Esmeralda, Lander, and Mineral (jointly); (3) Inyo County, California; (4) Nuclear Energy 

Institute; (5) Nye County, Nevada; (6) the state of California; (7) the state of Nevada; and 

(8) White Pine County, Nevada. Also in May 2009, 2 other Nevada counties—(9) Eureka 

and (10) Lincoln—w ere admitted as interested governmental bodies. For the purposes of 

this report, w e are referring to parties and interested governmental bodies as “parties” to 

the adjudication.

7

In addition to the 10 nonfederal parties admitted in May 2009, 2 other nonfederal 

entities—(11) the Joint Timbisha Shoshone Tribal Group and (12) the Native Community 

Action Counsel—w ere admitted as parties in August 2009, after demonstrating their 

compliance w ith Licensing Support Netw ork requirements. Later in the adjudication, 5 

additional nonfederal entities w ere admitted as parties—(13) Aiken County, South 

Carolina; (14) Prairie Island Indian Community; (15) National Association of Regulatory 

Utility Commissioners; (16) the state of South Carolina; and (17) the state of 

Washington—for a total of 17 nonfederal parties. With the admission of these parties, 

additional contentions w ere accepted into the adjudication. How ever, the total number of 

admitted contentions fluctuated throughout the adjudication, as licensing boards accepted 

new contentions or dismissed existing ones in response to parties’ filings.

8According to DOE and NRC officials, alterations to the license application could come 

about in different w ays. For example, DOE could agree to make changes voluntarily to 

settle w ith parties on their contentions. According to NRC, DOE could also elect to make 

changes to its application based on its interactions w ith a licensing board, the five-member 

NRC Commission, or the NRC staff.
Letter

consideration as a repository site.

Page 5 GAO-17-340 Commercial Nuclear Waste

9 DOE’s motion to withdraw its license 

application followed announcements by DOE in the previous year that it 

planned to terminate its proposal for Yucca Mountain and study other 

disposal options. In the March 2010 withdrawal motion, DOE announced 

that it no longer considered Yucca Mountain a workable option for 

disposal of spent nuclear fuel and high-level defense waste. DOE also 

noted in its withdrawal motion that the President had directed, and 

Congress had appropriated funding for DOE to establish a Blue Ribbon 

Commission to evaluate and recommend alternative disposal options for 

these wastes. Subsequently, the licensing board denied DOE’s 

withdrawal motion but, in September 2011, formally suspended the 

licensing adjudication.10

You asked us to examine the Yucca Mountain licensing process and the 

steps likely needed to resume the process. This report (1) examines the 

actions that took place after DOE submitted its motion to withdraw its 

license application in March 2010, and DOE and NRC’s plans, if any, to 

resume the licensing process, and (2) identifies the key steps that would 

likely be needed for DOE, NRC, and the nonfederal parties involved in the 

licensing process to resume and complete the process, and the factors 

that may influence the success of these steps.

To examine the actions that took place after DOE submitted its 

withdrawal motion in March 2010, we reviewed the NWPA and other 

federal laws and NRC regulations governing its licensing process for 

Yucca Mountain. We reviewed NRC’s hearing record for the Yucca 

Mountain licensing adjudication, including directives and decisions by 

NRC’s licensing boards and motions and other filings by the parties. We 

also reviewed other documents, including reports from the DOE and NRC 

Inspectors General; agencies’ budgets or spending reports for fiscal years 

2009 through 2016; and correspondence between DOE and NRC or with 

 

9Motion to Withdraw , U.S. Department of Energy’s. In the Matter of U.S. Department of 

Energy (High-Level Waste Repository), Docket No. 63-001, ASLBP No. 09-892-HLWCAB04, Mar. 3, 2010. In an earlier motion from February 1, 2010, DOE requested that the 

licensing board stay the licensing proceeding, noting that, in the administration’s fiscal 

year 2011 budget released that day, the President had directed DOE to discontinue its 

license application and had proposed to eliminate all funding for the development of

Yucca Mountain. Subsequently, the licensing board temporarily stayed the adjudication, 

w hich remained suspended until late June 2010.

10Memorandum and Order (suspending Adjudicatory Proceeding), Atomic Safety and 

Licensing Board, Docket No. 63-001-HLW, ASLBP No. 09-892-HLW-CAB04, Sept. 30, 

2011.
Letter

others. To identify plans to resume the licensing process, we interviewed 

former officials from DOE’s Office of Civilian Radioactive Waste 

Management and current officials from DOE’s offices of Nuclear Energy, 

General Counsel, and Legacy Management. At NRC, we interviewed 

officials from the Atomic Safety and Licensing Board Panel (ASLBP) and 

from the offices of the Secretary of the Commission, Commission 

Appellate Adjudication, General Counsel, and Nuclear Material Safety 

and Safeguards. Furthermore, we interviewed contractors at two federally 

funded research and development centers involved with Yucca Mountain 

activities—Sandia National Laboratories in New Mexico and California 

and the Center for Nuclear Waste Regulatory Analyses in Texas.

Page 6 GAO-17-340 Commercial Nuclear Waste

11

To identify the key steps that would likely be needed for DOE, NRC, and 

the nonfederal parties involved in the licensing process to resume and 

complete the process, as well as the factors that may influence their 

success in carrying out the key steps, we reviewed the NWPA, NRC 

regulations, and other documents, and we interviewed current and former 

DOE and NRC officials and contractors. Furthermore, we interviewed 

representatives of 14 of the 17 nonfederal parties to the Yucca Mountain 

licensing adjudication about the likely key steps, if the licensing process 

resumes, and received written remarks from 1 additional nonfederal party, 

for a total of 15 nonfederal parties responding out of the 17.12 In reporting 

on these nonfederal parties’ responses, we refer to like statements made 

by representatives of 2 or 3 of the parties as comprising “a few” of the 15 

nonfederal parties we interviewed or that provided us written remarks. 

Like statements by 4 to 6 of these parties comprise “some,” 7 to 11 

comprise “several,” and 12 or more comprise “most” or “all.” In addition, 

we contacted a non-generalizable sample of 12 of the 48 former 

witnesses previously selected by DOE to testify during the adjudication 

and help defend DOE’s license application. We received responses from 

10 of these former witnesses, who were responsible for helping defend 

DOE against 133 of the 187 contentions (or about 71 percent) that a 

 

11Both are federally funded research and development centers—contractor-operated 

centers intended to meet long-term federal research and development needs and support 

their sponsoring agencies’ missions. Sandia National Laboratories supports DOE’s 

nuclear w eapons-related missions but also conducted research into Yucca Mountain and 

played a lead role in coordinating Sandia’s and other DOE laboratories’ efforts to prepare 

the license application for Yucca Mountain. The Center for Nuclear Waste Regulatory 

Analyses has been the NRC staff’s main technical contractor for Yucca Mountain-related 

activities since the 1990s. 

12The tw o remaining nonfederal parties did not reply to our request for an interview or did 

not agree to an interview or provide us w ritten remarks.
Letter

licensing board determined would be addressed during an initial 

discovery phase of the adjudication. The witnesses provided us written 

answers to e-mailed questions about the likely steps for resuming their 

role in the adjudication if given the opportunity, among other topics. The 

views of the former DOE witnesses and the nonfederal party 

representatives cannot be generalized to those who were not part of our 

review.

We conducted this performance audit from March 2016 to April 2017 in 

accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives.

Background

Page 7 GAO-17-340 Commercial Nuclear Waste

Between 1983, when the NWPA became law, and 2008, when DOE 

submitted its license application for Yucca Mountain, DOE spent nearly 

$15 billion to investigate developing a repository.13 Most of DOE’s and 

NRC’s expenditures related to Yucca Mountain have come from 

appropriations to DOE and NRC from the Nuclear Waste Fund. This fund 

was established under the NWPA as a mechanism for commercial 

generators of spent nuclear fuel—and, ultimately, ratepayers—to pay 

their share of the cost for the permanent geologic repository. Between 

1983 and 2014, the mechanism was funded by a fee of one-tenth of a 

cent per kilowatt-hour of nuclear-generated electricity, collected by the 

federal government from electric power companies. However, these 

 

13See GAO, Commercial Nuclear Waste: Effects of a Termination of the Yucca Mountain 

Repository Program and Lessons Learned, GAO-11-229 (Washington, D.C.: Apr. 8, 

2011). This figure is in constant fiscal year 2010 dollars. From fiscal year 2009 to fiscal 

year 2016, DOE reported receiving an additional $1.4 billion in appropriations for nuclear 

w aste management.
Letter

collections were halted in May 2014.

Page 8 GAO-17-340 Commercial Nuclear Waste

14 As of the end of fiscal year 2016, 

the Nuclear Waste Fund’s balance was about $36 billion.15 According to 

an NRC document, the agency has received about $580 million in 

appropriations from the Nuclear Waste Fund since 1990 for its activities 

to prepare for and carry out the Yucca Mountain licensing process. This 

includes activities by the NRC staff’s main technical contractor, the 

Center for Nuclear Waste Regulatory Analyses, as well as other 

contractors that supported NRC’s Yucca Mountain activities.

Since 1998, spent nuclear fuel has been a source of costly liabilities for 

the government. Under NWPA authority, in the 1980s, DOE entered into 

contracts with utilities, reactor operators, and other owners and 

generators of commercial spent nuclear fuel. As part of these contracts, 

DOE agreed to take title to and begin disposing of this spent nuclear fuel 

beginning no later than January 31, 1998, when DOE expected to begin 

receiving waste at Yucca Mountain.16 Because DOE has not yet begun 

taking possession of this waste, since 1998 owners and generators of 

spent nuclear fuel have won judgements against the United States in the 

Court of Federal Claims or settled with the government. As of the end of 

fiscal year 2016, the federal government had reimbursed owners and 

generators about $6.1 billion in connection with such lawsuits, and DOE 

 

14Under the NWPA, DOE is to determine how much industry should contribute to the 

Nuclear Waste Fund, annually review the established amount, and evaluate w hether the 

collection of the fee w ill provide sufficient revenue. In 2013, a federal appeals court found 

that DOE w as unable to conduct a legally adequate assessment of the ongoing spent 

nuclear fuel fee assessed on electricity generated and sold by civilian nuclear pow er 

reactors. The court directed DOE to propose to Congress a reduction in this fee to $0 from 

1 mil (0.1 cents) per kilow att-hour of electricity generated and sold. Such a proposal 

became effective on May 16, 2014. In August 2014, DOE collected the remaining ongoing 

fees. In fiscal years 2015 and 2016, no ongoing fees w ere assessed, according to a 

November 2016 Nuclear Waste Fund audit by KPMG.

15According to KPMG’s November 2016 audit, investments and related interest accounted 

for nearly all of the approximately $36 billion. Not included in this figure is about $2.8 

billion in fees for spent nuclear fuel and associated interest receivable from ow ners and 

generators of commercial spent nuclear fuel.

16The act, in effect, prohibits NRC from issuing a commercial license to a nuclear facility 

that lacks such a contract.
Letter

estimates that future federal liability for litigation related to storing spent 

nuclear fuel could amount to $24.7 billion.

Page 9 GAO-17-340 Commercial Nuclear Waste

17

Established by Congress in 1974, NRC regulates commercial nuclear 

power plants and other uses of nuclear materials through licensing, 

inspection, and enforcement of its requirements. NRC is headed by a 

five-member commission, including a chairman, appointed by the 

President and confirmed by the Senate for 5-year terms. The chairman is 

NRC’s principal executive officer and is responsible for its administrative, 

organizational, budgetary, and other functions. As NRC’s highest 

decision-making body, the Commission sets NRC’s policies, approves 

NRC’s allocations of its budget and staffing resources, and maintains 

supervisory authority over NRC proceedings, including licensing 

adjudications. NRC is responsible for regulating the design, construction, 

operation, and eventual closure of a geologic repository at Yucca 

Mountain. NRC’s regulations, among other things, specify safety 

requirements and incorporate the U.S. Environmental Protection 

Agency’s (EPA) environmental protection standards for a proposed 

repository at Yucca Mountain and outline the process for the Yucca 

Mountain repository licensing (see app. 1).

The NWPA and NRC regulations require NRC to review DOE’s license 

application and issue a final decision approving or disapproving 

construction authorization for Yucca Mountain within 3 years, unless the 

Commission notifies Congress that it intends to extend this time frame by 

up to 12 months. After an initial screening by NRC staff to determine 

whether to accept DOE’s application for technical review, the 3-year 

statutory time frame begins with the public notice announcing the 

opportunity to petition NRC for approval to participate in the licensing 

adjudication and ends with NRC’s final agency decision on whether to 

authorize construction of the repository. The NRC staff’s technical review 

and the licensing adjudication comprise the bulk of the activities that are 

to be carried out during the statutory time frame. In particular, the 

adjudication includes various phases to admit parties and contentions; 

carry out discovery, including depositions of parties’ scientific experts or 

 

17In its Fiscal Year 2016 Agency Financial Report, DOE estimated that the total liability, 

including amounts paid to ow ners and generators of spent nuclear fuel, as of the end of 

fiscal year 2016, to be about $30.8 billion. After deducting the approximately $6.1 billion 

paid to these ow ners and generators, DOE estimated the remaining liability to be about 

$24.7 billion.
Letter

other witnesses; and conduct evidentiary hearings on the admitted 

contentions, including attorney-led examinations of witnesses (see fig. 1).

Figure 1: Nuclear Regulatory Commission’s Licensing Review Process and Statutory Time Frame for Construction 

Page 10 GAO-17-340 Commercial Nuclear Waste

Authorization of the Yucca Mountain Repository

Shortly after DOE submitted its license application for Yucca Mountain on 

June 3, 2008, the NRC staff conducted an initial screening of DOE’s 

application, as required in NRC regulations, and reviewed DOE’s EIS for 

the repository. In September 2008, the staff found that the application 

was sufficient for NRC to carry out its review and, therefore, should be 

“docketed.”18 Subsequently, as part of its technical review, the staff began 

a detailed safety review of the license application. This review followed 

more than two decades of interactions between DOE and NRC staff while 

DOE studied the Yucca Mountain site and prepared its license 

application. The NRC staff and NRC’s contractors at the Center for 

Nuclear Waste Regulatory Analyses also carried out other scientific and 

technical investigations, for example, to assess DOE’s studies of the site.

 

1873 Fed. Reg. 53,284 (Sept. 15, 2008). 
Letter

After DOE submitted its application, the NRC staff determined that it 

would be “practicable” for NRC to adopt DOE’s EIS for the repository; 

however, supplemental information related to the repository’s possible 

impacts on groundwater was required.

Page 11 GAO-17-340 Commercial Nuclear Waste

19 Subsequently, DOE agreed to 

prepare an EIS supplement by fall 2009. For the detailed safety review, 

the staff evaluated the scientific and engineering bases presented in 

DOE’s license application and supporting analyses to determine whether 

DOE’s proposal for the repository’s design, performance, and operation 

complied with NRC’s regulations for the issuance of a construction 

authorization. Under NRC’s plan for reviewing the license application, the 

staff would issue its views on DOE’s regulatory compliance in a fivevolume Safety Evaluation Report. Under NRC regulations, this report was 

required to be available during the licensing adjudication.

Under the Commission’s rules, the Secretary of the Commission—the 

NRC official who provides executive management services to support the 

Commission and to implement Commission decisions—is to issue notice 

of a public hearing when the Commission finds that a hearing is required 

in the public interest before the Commission decides whether to authorize 

construction. In September 2008, the Secretary published notice in the 

Federal Register; subsequently, NRC’s ASLBP appointed the three 

licensing boards in January 2009 to admit the parties and contentions. 

The ASLBP, under the direction of the Commission, conducts all licensing 

and other hearings, primarily through appointed individual Atomic Safety 

and Licensing Boards or single presiding officers, and provides 

administrative and technological support to these boards. The licensing 

boards, each with three administrative judges, reviewed the petitions and 

contentions, considered various motions from the parties, and issued 

decisions and case management directives for the adjudication. The 

 

19Pursuant to Section 114(f) of the NWPA and NEPA requirements, DOE prepared a final 

EIS in February 2002 to evaluate the potential environmental impacts of construction, 

operation, and permanent closure of a high-level radioactive w aste geologic repository at 

Yucca Mountain. In April 2004, DOE announced its intent to develop a separate EIS for 

the Nevada rail alignment and supplement the rail corridor analyses in the 2002 repository 

EIS. On June 3, 2008, DOE submitted the original 2002 EIS w ith its license application 

follow ed by a supplemental EIS on June 16, 2008. In accordance w ith the NWPA and 

NRC regulations at 10 C.F.R. § 51.109, NRC staff determined it w as practicable to adopt 

the 2002 and 2008 EISs, but further supplementation w as needed for the EISs to 

adequately characterize the potential for contamination of groundw ater and contamination 

through surface discharges of groundw ater. See, Nuclear Regulatory Commission, U.S.

Nuclear Regulatory Commission Staff’s Adoption Determination Report for the U.S. 

Department of Energy’s Environmental Impact Statements for the Proposed Geologic 

Repository at Yucca Mountain (Sept. 5, 2008).
Letter

ASLBP appointed the fourth licensing board in June 2009 to consider 

discovery and other preliminary matters.

Page 12 GAO-17-340 Commercial Nuclear Waste

20

In general, except for affected units of local government and affected 

Indian tribes, entities admitted into the Yucca Mountain licensing 

adjudication were required to show that they had legal standing to 

participate; these entities could do so by showing, among other things, 

that they would likely suffer a “distinct and palpable” harm from the 

proposed repository. The entities also were required to submit one or 

more admissible contentions that presented a genuine factual or legal 

dispute related to the proposed repository or that identified a deficiency in 

DOE’s license application or EIS for the repository, among other 

requirements.

Of the approximately 300 contentions admitted into the Yucca Mountain 

licensing adjudication in May 2009, about 220 were from a single party—

the state of Nevada—and primarily challenged DOE’s license application 

and EIS as failing to demonstrate that the proposed repository’s safety

protections would, over the long term, prevent radioactive material from 

contaminating the environment in and around Yucca Mountain. Other 

parties’ admitted contentions also challenged the proposed repository’s 

safety, as well as other aspects. For example, some of the contentions 

from parties representing Indian tribes identified the potential for the 

repository and its operations to damage culturally significant areas. In 

other cases, contentions from parties representing county governments 

near the Yucca Mountain site identified possible negative effects on local 

tourism or potential budgetary costs—such as for highway improvements 

or first-responder services—if spent nuclear fuel is transported through 

their counties to the site.

In anticipation of the large number of technical documents related to the 

license application that would be produced by DOE and the other parties, 

according to an NRC document, NRC created a Web-based Licensing 

Support Network (LSN). The LSN was one of NRC’s principal tools to 

help it meet the 3-year statutory time frame by replacing the classic 

discovery exchanges among parties with electronic access to discovery 

materials in advance of, as well as during, the adjudication. At the time 

 

20Before DOE submitted its license application and NRC commenced the adjudication, the 

ASLBP appointed tw o other preliminary licensing boards to (1) rule on disputes over 

electronic availability of documents and (2) advise the Commission and issue case 

management orders on procedural matters expected to arise during the adjudication.
Letter

DOE submitted its license application, the LSN provided access to more 

than 3.6 million documents that the parties had designated as relevant to 

the proceeding and that might be entered into evidence during evidentiary 

hearings. The parties were to maintain and update their own document 

collections, according to NRC regulations and guidance; these party 

collections were made available and searchable for the other parties 

through an NRC website for the LSN that utilized hardware and software 

to facilitate search and retrieval of the parties’ LSN documents. An LSN 

Administrator was responsible for helping to maintain the system and 

provide technical assistance to the parties.

When DOE submitted its motion to withdraw its license application, the 

parties were beginning to schedule depositions as part of an initial 

discovery phase of the adjudication. The licensing board responsible for 

discovery and other preliminary matters had determined it would divide 

discovery and subsequent hearings into multiple phases to coincide with 

NRC staff’s preparation of the five-volume Safety Evaluation Report, 

which the staff planned to release serially, starting with Volumes 1 and 3. 

To help NRC maintain the 3-year statutory time frame, this licensing 

board ordered that the first phase of discovery would begin in October

2009, ahead of the staff’s anticipated release of Volume 1 of the Safety 

Evaluation Report, and would end in November 2010, after the 

anticipated release of Volume 3. During this phase, the parties were 

permitted to carry out discovery activities on the 187 contentions that 

related to these two volumes, particularly Volume 3, which would provide 

the NRC staff’s views on whether the proposed repository’s design, 

performance, and operation complied with NRC’s requirements for the 

repository’s safety after permanent closure. Discovery activities for the 

remaining contentions would be scheduled around the expected release 

of additional volumes of the Safety Evaluation Report.

Page 13 GAO-17-340 Commercial Nuclear Waste

21

 

21CAB Case Management Order #2, ASLB, In the Matter of U.S. Department of Energy 

(High-Level Waste Repository), Docket No. 63-001-HLW, ASLBP No. 09-892-HLWCAB04, Sept. 30, 2009.
Letter

DOE and NRC Largely Dismantled  Capabilities 

Page 14 GAO-17-340 Commercial Nuclear Waste

for the Yucca Mountain Licensing Process and 

Report Having No Formal Plans to Resume the 

Adjudication

After DOE submitted its motion on March 3, 2010, to withdraw its license 

application for Yucca Mountain, DOE and NRC largely dismantled their 

capabilities to carry out the Yucca Mountain licensing process, and, as of 

late 2016 and early 2017, DOE and NRC told us they have no formal 

plans for resuming the licensing adjudication.22 DOE’s and NRC’s actions 

after the motion to withdraw the license application included eliminating 

organizations and funding, canceling the NRC staff’s ongoing technical 

review of the application in October 2010, and taking other dismantlement 

steps, while also taking numerous steps to preserve associated 

documents and data, as directed by NRC. DOE and NRC carried out 

these steps while the licensing adjudication was still technically ongoing 

and even after an Atomic Safety and Licensing Board convened at the 

time had denied DOE’s withdrawal motion in June 2010. By the time NRC 

formally suspended the adjudication in September 2011, DOE and NRC 

had mostly completed their dismantlement and data preservation steps, 

and the overall licensing process had already been effectively suspended. 

Although NRC later resumed some aspects of the licensing process from 

2014 through 2016, after an appeals court ruled that NRC had violated 

the NWPA by suspending its licensing review,23 NRC did not resume the 

licensing adjudication.24 Figure 2 shows a timeline of selected actions and 

decisions related to the Yucca Mountain licensing proceedings from

February 2010, slightly before DOE submitted its motion to withdraw its 

application, through 2016.

 

22In March 2017, the President announced that the fiscal year 2018 budget request will 

include $120 million to restart licensing activities for the Yucca Mountain repository and 

initiate an interim storage program. See Office of Management and Budget, America First: 

A Budget Blueprint to Make America Great Again (Washington, D.C.: March 2017).

23In re Aiken County, 725 F.3d 255 (D.C. Cir. 2013).

24Memorandum and Order, NRC, In the Matter of U.S. Department of Energy (High-Level 

Waste Repository), Docket No. 63-001-HLW, 78 NRC 219, Nov. 18, 2013.
Letter

Figure 2: Timeline of Selected Actions and Decisions Related to the Department of Energy’s Motion to Withdraw Its License 

Page 15 GAO-17-340 Commercial Nuclear Waste

Application for the Yucca Mountain Repository

As we found in April 2011, DOE took steps to quickly dismantle its 

capabilities to carry out its Yucca Mountain repository program, including 

the licensing process.25 These dismantlement steps began around the 

time DOE submitted its March 2010 motion to withdraw its license 

application and followed DOE’s announcements in the previous year that 

it planned to terminate its proposal for Yucca Mountain and study other 

 

25GAO-11-229.
Letter

disposal options. The steps were substantially completed by the end of 

fiscal year 2010. As we found in our April 2011 report, these steps 

generally included:

· Dissolving DOE’s Office of Civilian Radioactive Waste Management—

the office established by the NWPA to manage DOE’s repository 

program—and transferring tasks to other DOE programs, such as the 

Office of Legacy Management, which assumed responsibility for 

archiving documents and data from the Yucca Mountain program, and 

the Office of Nuclear Energy, which is now responsible for DOE’s 

efforts to investigate the disposal, storage, and transportation of spent 

nuclear fuel and high-level waste.

· Eliminating positions of all federal employees working on the Yucca 

Mountain program in the Office of Civilian Radioactive Waste 

Management, including about 180 federal staff working, in part, on

defending DOE’s license application. As we found in our April 2011 

report, DOE’s efforts to retain Yucca Mountain project staff were 

minimal. In that report, we found that the about 180 federal staff were 

told in March 2010 that their positions would be eliminated by 

September 30, and they began leaving as soon as they found 

alternate employment, placing increased stress on the remaining staff 

to complete an orderly shutdown.

· Terminating project activities being carried out by contractors, 

including DOE’s national laboratories, whose scientists and engineers 

were preparing to defend DOE’s license application during the 

licensing adjudication. As we found in our April 2011 report, it took 

DOE years to recruit and train the proper mix of scientists and 

engineers—from diverse disciplines, such as hydrology, geology, and 

mathematics—to work on the license application.

· Closing hundreds of DOE’s other contracts and subcontracts, 

terminating leases for office space, and transferring dozens of 

truckloads of office equipment and computers to other DOE facilities 

and local schools.

Also, as we found in our April 2011 report, DOE undertook extensive 

efforts to preserve its documents, data, and software used for its licensing 

efforts and the Yucca Mountain program.

Page 16 GAO-17-340 Commercial Nuclear Waste

26 Similarly, in 2013, the U.S. 

Nuclear Waste Technical Review Board—an independent agency of the 

federal government created by Congress—reported finding that the 

 

26GAO-11-229.
Letter

Yucca Mountain documents had been preserved and could be accessed 

and retrieved.

Page 17 GAO-17-340 Commercial Nuclear Waste

27 This included documents from a primary database, which 

was one of 17 high-priority Yucca Mountain-related databases and 

systems containing millions of electronic records, technical models, and 

data, and according to DOE Office of Legacy Management officials, about 

60 million e-mails and attachments. According to the Office of Legacy 

Management officials, the 17 systems are being maintained on servers in 

the office’s West Virginia data facility, and backup copies have been 

made. Also at this facility, the officials said they are maintaining the 

servers that contain DOE’s LSN document collection and were previously 

used to make DOE’s collection available to the other parties through the 

LSN; as noted earlier, the parties could access the LSN through an NRC 

website enabling them to search for and retrieve each other’s LSN 

documents. In addition, the Legacy Management officials said they have 

archived approximately 14,000 cubic feet of paper documents from the 

Yucca Mountain program.

NRC’s steps to dismantle its capabilities to carry out the licensing process 

and to preserve associated documents and other data mainly occurred in 

fiscal year 2011, according to NRC documents and officials. The steps 

were largely in response to NRC’s budget justification for fiscal years 

2011 and 2012,

28 which called for substantially reducing and then 

eliminating NRC’s resources for carrying out the licensing process. 

Specifically, the fiscal year 2011 budget justification proposed reductions 

in NRC’s funding and staffing allocations for its Yucca Mountain licensing 

activities by more than half from fiscal year 2010 levels. The reductions 

were to carry out an “orderly closure” of those activities, which consisted 

of the NRC staff’s technical review and the licensing adjudication.29

According to NRC’s 2011 budget justification, which NRC issued in 

 

27U.S. Nuclear Waste Technical Review Board, Review of U.S. Department of Energy 

Activities to Preserve Records Created by the Yucca Mountain Repository Project, 

(Arlington, Va.: August 2013). 

28See Nuclear Regulatory Commission, Congressional Budget Justification for FY 2011, 

NUREG-1100, Vol. 26 (February 2010) and FY 2012 Congressional Budget Justification, 

NUREG-1100, Vol. 27 (February 2011).

29NRC’s congressional budget justification for fiscal year 2011 called for a 65 percent 

reduction in High-Level Waste Repository program funding—from $29 million in fiscal year 

2010 to $10 million in fiscal year 2011—and an approximately 68 percent reduction in 

staffing allocations—from 99 to 32 full-time equivalent staff—primarily for NRC’s licensing 

activities for Yucca Mountain. NRC proposed eliminating these funding and staffing 

allocations in its budget justification for fiscal year 2012. 
Letter

February 2010 before DOE’s withdrawal motion, the substantially reduced 

funding and staffing reflected the possibility that DOE might submit such a 

motion to NRC in fiscal year 2010 and that, upon the withdrawal or 

suspension of the licensing review, NRC would begin closing down its 

licensing activities. NRC’s fiscal year 2012 budget justification, issued in 

February 2011, requested no funding or staffing resources for these 

activities, which, according to the 2012 budget justification, would 

terminate in fiscal year 2011.

Page 18 GAO-17-340 Commercial Nuclear Waste

30

NRC staff, the ASLBP, and others carried out the following dismantlement 

and data preservation steps, which were focused on the staff’s technical 

review of DOE’s license application, the ASLBP’s Las Vegas Hearing 

Facility, and the LSN:

· NRC staff’s technical review. Shortly after releasing Volume 1 of its 

five-volume Safety Evaluation Report in August 2010, the NRC staff 

began shutting down its activities related to the Yucca Mountain 

licensing, while preserving knowledge from the effort. In October 

2010, NRC’s Chief Financial Officer and the Executive Director of 

Operations instructed the staff to implement the Commission’s 

direction in NRC’s fiscal year 2011 budget justification, which, as 

noted earlier, called for orderly closure of NRC’s Yucca Mountain 

licensing activities.31 Also in October 2010, the Chairman of the 

Commission directed the NRC staff to stop its work on the four 

unreleased volumes of the Safety Evaluation Report, including 

Volume 3, which the staff was preparing to release the following 

month, according to NRC staff and a June 2011 report from NRC’s 

Office of the Inspector General.32 In response to this direction in 

 

30According to a June 2011 report from the NRC Office of the Inspector General, the 

Commission intended to make $4 million available in fiscal year 2012 for NRC’s Yucca 

Mountain closure activities. How ever, the Office of Management and Budget allocated no 

money for this purpose, w hich is reflected in NRC’s FY 2012 Congressional Budget 

Justification.

31This direction came from an October 4, 2010, guidance memorandum signed by the 

Chief Financial Officer and the Executive Director for Operations. The memorandum 

provided guidance to NRC office directors and regional administrators for executing 

NRC’s budget under the continuing resolution in effect at the time. According to the 

memorandum, NRC’s fiscal year 2011 budget justification sustained the agency’s 

programs at approximately their fiscal year 2010 levels, with the exception of the orderly 

closure of NRC’s Yucca Mountain licensing activities.

32Nuclear Regulatory Commission, Office of the Inspector General, “NRC Chairman’s 

Unilateral Decision to Terminate NRC’s Review of DOE Yucca Mountain Repository 

License Application (OIG Case No. 11-05)” (Washington, D.C.: June 6, 2011).
Letter

October 2010, the NRC staff and contractors working on the Safety 

Evaluation Report halted this work and, instead, prepared a series of 

technical reports to preserve the staff’s and contractors’ knowledge. 

However, unlike the Safety Evaluation Report, the technical reports 

were not a required step in the Yucca Mountain licensing process 

and, according to NRC staff, did not contain the staff’s regulatory 

conclusions about DOE’s license application. Furthermore, as noted 

earlier, the schedule for the initial discovery phase of the adjudication 

was timed to coincide with the serial release of Volumes 1 and 3 of 

the Safety Evaluation Report. With work halted on Volume 3 and the 

other unreleased volumes, among other reasons identified by the 

licensing board and the parties, meaningful progress to complete the 

discovery phase of the adjudication was effectively stopped, and no 

discovery depositions were conducted.

Page 19 GAO-17-340 Commercial Nuclear Waste

33

· Las Vegas Hearing Facility. In March 2011, the ASLBP began 

dismantling its customized hearing facility in Las Vegas in response to 

the fiscal year 2012 budget justification. According to an ASLBP 

official, NRC began leasing the facility in 2005 at an annual cost of 

about $440,000, and it spent approximately $2.4 million to build out, 

equip, and provide facility security specifically for the Yucca Mountain 

adjudication. However, because NRC’s budget justification for 2012 

did not allocate any funding or staffing resources to the Yucca 

Mountain licensing effort, the ASLBP’s Chief Administrative Judge 

advised the Commission in a February 17, 2011, memorandum that 

the ASLBP would begin shutting down the Las Vegas Hearing Facility 

in March 2011, unless directed otherwise by the Commission. 

Receiving no such direction, the ASLBP carried out dismantlement 

activities from March 2011 through September 2011, according to an 

ASLBP official. These activities mainly consisted of removing furniture 

and dismantling information technology equipment, such as video, 

 

33According to NRC documents issued during the licensing adjudication, the licensing 

board appointed at the time w as, at various points, also aw aiting guidance from a federal 

appeals court and the Commission about w hether DOE could legally w ithdraw its license 

application for Yucca Mountain. While the licensing board w as aw aiting this guidance, 

DOE requested in a January 21, 2011, motion that the board temporarily suspend the 

adjudication, citing, among other things, budgetary uncertainties and inaction by the 

parties to depose w itnesses during the initial discovery phase. The board denied DOE’s 

request but in a May 20, 2011, memorandum and order granted DOE relief from the state 

of Nevada’s notices to depose multiple DOE w itnesses, citing the need to avoid 

unnecessary expenses w hile the future course of the proceeding remained uncertain. 

Although no depositions w ere conducted, adjudicatory activities continued. For example, 

according to NRC documents, the licensing board ruled on various motions from the 

parties and issued a decision resolving a few of the approximately 300 contentions.
Letter

audio, and teleconferencing equipment and computer terminals. 

According to the ASLBP official, most of the surplus furniture and 

equipment was donated to governmental or non-profit organizations in 

the Las Vegas area, although a small amount was used to replace 

aging furniture at NRC’s hearing facility in Rockville, Maryland, or to 

provide back-up equipment.

· Licensing Support Network. In the February 17, 2011, 

memorandum, the Chief Administrative Judge advised the 

Commission of the ASLBP’s plans to begin shutting down the LSN in 

May 2011, unless directed otherwise. As with its dismantlement of the 

Las Vegas Hearing Facility, ASLBP officials told us they received no 

direction from the Commission to keep the LSN intact; therefore, they 

carried out LSN shutdown activities from May through September 

2011. According to these officials, the activities included taking the 

LSN offline in August 2011 and then canceling contracts for system 

software and hardware and relocating NRC servers used to operate 

the LSN from an offsite contractor-hosted facility. At the same time, 

the licensing board appointed to manage discovery during the 

adjudication, as well as DOE and the other parties, had been taking 

measures throughout fiscal years 2010 and 2011 to preserve the LSN 

documents and data. These measures were generally in response to 

the licensing board’s December 2009 directive instructing the parties 

not to take any actions that would prevent or hinder their ability to 

archive their LSN documents in a readily accessible format, such as 

PDF.

Page 20 GAO-17-340 Commercial Nuclear Waste

34 Facing the likelihood that no funding or staffing resources 

would be available in fiscal year 2012 for the LSN or its administrator, 

in April 2011, the licensing board further instructed the parties to 

submit optical media, such as CD-ROM disks, containing PDF copies 

of their LSN documents to NRC’s Office of the Secretary for 

safekeeping and later inclusion in NRC’s agencywide document 

management system.35 The licensing board also instructed the parties 

to maintain backup copies of their LSN documents. In July and August 

2011, DOE and other parties submitted their LSN documents to the 

Office of the Secretary and, according to representatives we 

 

34Order (Concerning LSNA Memorandum), NRC, In the Matter of U.S. Department of 

Energy (High Level Waste Repository), Docket No. 63-001-HLW, ASLBP No. 09-892-

HLW-CAB04, Dec. 22, 2009. 

35Order (Concerning LSNA Memorandum and Parties’ LSN Document Collections), ASLB, 

In the Matter of U.S. Department of Energy (High-Level Waste Repository), Docket No. 

63-001, ASLBP No. 09-892-HLW-CAB04, Apr. 11, 2011.
Letter

interviewed for several of the nonfederal parties, also maintained their 

own backup copies.

Moreover, DOE and NRC carried out these dismantlement steps while 

the licensing adjudication was still ongoing and even after a licensing 

board formally ruled against DOE’s motion to withdraw its license 

application in June 2010—a ruling that, because of an evenly divided 

vote, the Commission did not overturn. In its June 2010 ruling, the 

licensing board determined that DOE’s attempt to withdraw from the 

licensing proceedings violated Congress’s intent in the NWPA, which 

required that DOE file a license application for Yucca Mountain for NRC 

to consider and issue a final merits-based decision approving or 

disapproving construction authorization.

Page 21 GAO-17-340 Commercial Nuclear Waste

36 The day after this board issued 

its ruling rejecting DOE’s withdrawal motion, the Commission initiated its 

own review of the ruling. The Commission took over a year to complete 

and announce the result of its review. During this time, the licensing 

adjudication was ongoing but, as noted earlier, meaningful progress to 

complete the discovery phase was effectively stopped, and no 

depositions were conducted. In September 2011, the Commission 

announced that it was evenly divided on whether it should take action to 

reverse or uphold the licensing board’s decision to reject DOE’s 

withdrawal motion—which meant that the board’s ruling stood.37 At the 

same time, the Commission directed the board to conclude all pending 

matters related to the Yucca Mountain licensing adjudication by the end 

of fiscal year 2011, stating in its direction that this decision was consistent 

with budgetary limitations. In response, the licensing board announced on 

September 30, 2011, that it was suspending the licensing adjudication, 

 

36Memorandum and Order (Granting Intervention to Petitioners and Denying Withdraw al 

Motion), ASLB, In the Matter of U.S. Department of Energy (High-Level Waste 

Repository), Docket No. 63-001, ASLBP No. 09-892-HLW-CAB04, June 29, 2010. Also in 

this decision, the licensing board admitted 5 nonfederal entities as parties to the licensing 

adjudication for Yucca Mountain—in addition to the 12 nonfederal parties admitted up to 

this point—and accepted these parties’ contentions into the proceeding. As noted earlier, 

these 5 parties included Aiken County, South Carolina; Prairie Island Indian Community; 

the National Association of Regulatory Utility Commissioners; the state of South Carolina; 

and the state of Washington—for a total of 17 nonfederal parties. According to 

representatives for some of these 5 parties, the parties wanted to participate in the 

licensing adjudication in order to ensure the Yucca Mountain licensing process w ould 

continue and to oppose DOE’s efforts to w ithdraw its license application.

37Memorandum and Order, NRC, In the Matter of U.S. Department of Energy (High-Level 

Waste Repository), Docket No. 63-001, Sept. 9, 2011.
Letter

consistent with the Commission’s direction and in light of the fact that no 

funding or staffing resources had been requested for fiscal year 2012.

Page 22 GAO-17-340 Commercial Nuclear Waste

38

Although the adjudication was formally suspended in September 2011, a 

federal appeals court later required NRC to continue with the licensing 

process. In August 2013, the U.S. Court of Appeals for the District of 

Columbia Circuit ordered NRC to resume the Yucca Mountain licensing 

process.39 The ruling arose from multiple lawsuits challenging DOE’s 

withdrawal from the licensing process and, later, NRC’s attempts to halt 

the process. A few of the nonfederal parties that joined later in the 

licensing adjudication were among the entities that filed these lawsuits. 

Although the court did not rule on whether DOE could legally withdraw 

from the licensing proceedings, in its August 2013 ruling, the court found 

that NRC violated the NWPA by halting its review and that it was required 

to continue with the proceedings. Furthermore, the court rejected NRC’s 

arguments that it did not have sufficient funding to carry out the 

proceedings, noting that NRC had millions of dollars in appropriations that 

could be used for this purpose.

In response to this ruling and after receiving views from parties to the 

adjudication, the Commission instructed the agency staff and others in a 

November 2013 directive, to use the agency’s $13.5 million in unobligated 

and obligated, unexpended appropriations from the Nuclear Waste Fund 

to continue with certain aspects of the licensing.40 From January 2014 

through August 2016, NRC carried out the following additional actions to 

help further the Yucca Mountain licensing process:

· Completion of the Safety Evaluation Report. In its November 2013 

directive, the Commission instructed the NRC staff to complete its 

Safety Evaluation Report, which the Commission noted in its directive 

was a logical next step for carrying out the licensing process and 

would be needed to complete the discovery phase of the licensing 

adjudication. In response, in January 2014, NRC staff and contractors 

resumed drafting the four remaining volumes of the five-volume 

 

38Memorandum and Order (Suspending Adjudicatory Proceeding), ASLB, In the Matter of 

U.S. Department of Energy (High-Level Waste Repository), Docket No. 63-001-HLW, 

ASLBP No. 09-892-HLW-CAB04, Sept. 30, 2011. 

39In re Aiken County, 725 F.3d 255 (D.C. Cir. 2013).

40Memorandum and Order, NRC, In the Matter of U.S. Department of Energy (High-Level 

Waste Repository), Docket No. 63-001-HLW, 78 NRC 219, Nov. 18, 2013.
Letter

report. These volumes were completed and issued in late 2014 and 

early 2015.

Page 23 GAO-17-340 Commercial Nuclear Waste

41

· EIS supplement on groundwater impacts. Also in its November 

2013 directive, the Commission requested that DOE prepare an EIS 

supplement on the repository’s groundwater impacts, essentially 

renewing the NRC staff’s earlier request to DOE to prepare this 

supplement. After initially agreeing to the earlier request, DOE 

informed NRC in a July 2009 letter that it had decided not to prepare 

the supplement. While DOE’s letter did not include a reason, DOE 

provided analyses and supporting documentation that it said would 

supply the needed information on groundwater impacts. Later, in a 

February 2014 letter responding to NRC’s renewed request, DOE 

once again stated that it would not prepare the supplement but would 

provide the aforementioned analyses, which DOE officials told us they 

then updated and provided to NRC. As a result, in February 2015, the 

Commission approved a plan by the NRC staff to complete the 

groundwater supplement and thereby complete the EIS for the 

repository; the Commission had noted in its November 2013 directive 

that a complete EIS would be needed for the adjudication’s discovery 

phase and for evidentiary hearings. After starting work on the 

supplement in March 2015, the NRC staff issued the draft supplement

in August 2015 for public comment and issued the final supplement in 

May 2016.42

· Preservation of the Licensing Support Network documents. As a 

final action to continue the licensing process in response to the court 

decision, in its November 2013 directive, the Commission instructed 

that the LSN documents be transferred from the CD-ROM disks and 

other optical media to NRC’s agencywide document management 

system, in accordance with NRC’s records requirements and to 

preserve the LSN documents and make them available for NRC staff 

working on the Safety Evaluation Report.43 Later, the Commission 

 

41Volume 3 w as released on Oct. 16, 2014; Volume 4, on Dec. 18, 2014; and Volumes 2 

and 5, on Jan. 29, 2015.

42Geologic Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive 

Waste; Department of Energy; Yucca Mountain, Nye County, Nevada, Supplement to 

Environmental Impact Statement; Issuance, 81 Fed. Reg. 29,923 (May 13, 2016). 

Department of Energy; Yucca Mountain, Nye County, Nevada, Draft Supplement to 

Environmental Impact Statement; Availability, 80 Fed. Reg. 50,875 (Aug. 21, 2015).

43The Commission also instructed that LSN documents referenced in the staff’s Safety 

Evaluation Report be made publicly available in NRC’s agencyw ide document 

management system.
Letter

instructed that the entire LSN document collection could be made 

publicly available and searchable in that system if substantial 

progress was made on NRC’s other efforts to further the licensing and 

if sufficient funding was available. In response, from December 2013 

through April 2014, agency information technology staff transferred 

the LSN documents into a nonpublic portion of NRC’s agencywide 

document management system, according to NRC monthly status 

reports on its activities related to Yucca Mountain licensing. In 

December 2015, with Commission approval, efforts to make the LSN 

documents publicly available and searchable began. In August 2016, 

the LSN collection was made public in NRC’s agencywide system.

Page 24 GAO-17-340 Commercial Nuclear Waste

44

Although NRC continued with some aspects of the Yucca Mountain 

licensing process in response to the 2013 court order, as of late 2016 and 

early 2017, DOE and NRC told us they have no formal plans to resume 

the licensing adjudication. In the Commission’s November 2013 directive, 

it announced that the adjudication would remain suspended, even as 

NRC continued with other aspects of the licensing process. According to 

this directive, the Commission had requested and received input from 

DOE, NRC staff, and the other parties about how best to continue with 

the process; this input included some parties’ requests that the 

Commission take action to resume the adjudication’s discovery phase. 

The Commission concluded in its November 2013 directive that available 

funding was insufficient to complete the licensing adjudication and that 

any attempt to resume the discovery phase would likely result in 

resuspension of the adjudication without meaningful progress. 

Subsequently, in July 2016, NRC officials in the Office of Commission 

Appellate Adjudication, Office of the General Counsel, and other offices 

told us that NRC has no formalized plans for resuming the licensing 

adjudication, which NRC reaffirmed in December 2016.

Officials from DOE’s Offices of Nuclear Energy and General Counsel told 

us in July 2016 and November 2016 that they have no plans to resume 

the adjudication portion of the Yucca Mountain licensing process while 

 

44In November 2016, officials from the ASLBP and NRC’s Office of the Secretary told us 

that most of the LSN documents had been successfully transferred to this system, and 

they w ere w orking to resolve issues encountered w ith around 160 out of the millions of 

LSN documents and expected to finish resolving the issues around March 2017, 

according to the agency. According to the officials, issues included such things as overly 

large files, document corruption, and missing or invalid document numbers. To resolve 

these issues, the officials said that NRC requested replacement copies for some of the 

documents or incorporated unnumbered documents into the agencyw ide document 

management system.
Letter

the adjudication remains suspended, and that they could not begin taking 

any such steps until the process was reinitiated by NRC. This is 

consistent with what DOE officials have told us in the past. For example, 

DOE disagreed with a recommendation in our April 2011 report that it 

develop a preliminary plan to restart the Yucca Mountain project, in case 

DOE is required to do so. In August 2015, DOE reiterated its 

disagreement and told us it would not be implementing this 

recommendation and, as of February 2017, had not done so. However as 

noted earlier, the President announced in a March 2017 budget blueprint

that the fiscal year 2018 budget request will include $120 million to restart 

licensing activities for the Yucca Mountain repository and initiate an 

interim storage program but did not provide further detail about the

request.

Page 25 GAO-17-340 Commercial Nuclear Waste

45

Resuming  and Completing  the Licensing 

Process Would Likely Require Four Key Steps, 

Which May Be Influenced  by Several Factors

From our review of the NWPA; NRC’s regulations; other documents; and 

from our interviews with NRC and DOE officials, contractors, nonfederal 

party representatives, and others, we identified four key steps that would 

likely be required for resuming and completing the licensing process for 

Yucca Mountain: (1) receiving direction and obtaining funding, (2) 

rebuilding organizational capabilities and updating key documents used 

for the licensing, (3) reconvening the parties and completing the 

remaining phases of the licensing adjudication, and (4) completing the 

remaining steps of the licensing process, including NRC’s decision on 

construction authorization. Also, a number of factors could influence the 

steps’ success, including the time and resources needed to carry out the 

steps.

DOE, NRC Staff, Nonfederal Parties, and Others Would 

Need to Receive Direction and Obtain Funding to 

Resume and Complete the Licensing Process

We identified receiving direction and obtaining funding as the first key 

step for resuming and completing the Yucca Mountain licensing process 

 

45Office of Management and Budget, America First: A Budget Blueprint.
Letter

(see fig. 3); this step includes three major actions: (1) The Commission 

directing the parties to resume the licensing process, likely in response to 

direction from Congress or the administration to resume the process, (2) 

the Commission making decisions on several aspects of the adjudication

and providing direction, and (3) NRC, DOE, and nonfederal parties to the 

adjudication estimating their costs to resume and complete the licensing 

process and obtaining funding.

Page 26 GAO-17-340 Commercial Nuclear Waste

46

Figure 3: Likely Key Steps for Resuming and Completing the Yucca Mountain Licensing Process

 

46The NWPA directs DOE to provide grants to the state of Nevada, affected units of local 

government, and affected Indian tribes to, among other things, set up oversight programs 

for studying the potential impacts of the repository.
Letter

As a first major action in resuming and completing the Yucca Mountain 

licensing process, the parties would need to receive direction from the 

Commission to resume the process. NRC could decide to resume the 

licensing process of its own accord and request funding to resume the 

licensing adjudication. However, according to a senior NRC official, the 

Commission is likely to wait for direction from an external authority—

either Congress or the administration—before resuming the licensing 

process. According to the Commission, NRC has not requested additional 

funding to resume the process after fiscal year 2011 because the 

Commission did not vote to do so.

Page 27 GAO-17-340 Commercial Nuclear Waste

47 Other NRC officials told us the 

Commission may be waiting for an external trigger to resume the 

licensing adjudication, in part because its members may not see the value 

in resuming a lengthy, complicated process that cannot be completed 

without a commitment to sustained funding. Additionally, according to 

these officials, the Commission may want to be sure that DOE would 

defend its license application if the licensing process resumes. DOE 

officials told us they would defend the license application if instructed to 

do so by the administration or Congress.

As a second major action, the Commission—and the ASLBP based on 

Commission directions—would need to make decisions about the 

adjudicatory process and provide guidance to all of the parties involved. 

These decisions and guidance would set the parameters for resuming 

and completing the licensing process. Key areas that parties said they 

need guidance about include:

· A timeline for resuming and completing the process. Of the 15 

nonfederal parties we interviewed or that gave us written remarks, 

representatives of some of the nonfederal parties said that it would be 

important to re-establish a timeline or schedule for resuming the 

process, including time for parties to rebuild organizational capacity 

and review material, before the adjudication resumes. Nonfederal 

party representatives also said it is important to have information on 

how quickly the process is expected to proceed once it is resumed. 

 

47As noted earlier, the Commission intended to make $4 million available in fiscal year 

2012 for NRC’s Yucca Mountain closure activities. How ever, according to a June 2011 

report from the NRC Office of the Inspector General, the Office of Management and 

Budget allocated no money for this purpose, which w as reflected in NRC’s FY 2012 

Congressional Budget Justification. Also, as noted earlier, in March 2017, the President 

announced that the fiscal year 2018 budget request w ill include $120 million to restart 

licensing activities for the Yucca Mountain repository and initiate an interim storage 

program.
Letter

The 3-year time frame required by the NWPA has passed, but in the 

absence of a change to the NWPA, the Commission could decide to 

try to meet the intent of that provision by planning to complete the 

licensing process within 3 years, according to ASLBP officials. 

However, one official raised concerns that 3 years may be an 

unrealistic goal for completing the licensing process because of the 

time needed for parties to be ready to resume and for one or more 

licensing boards to hear and rule on all of the admitted contentions

during the adjudication, as discussed below.

· The number of licensing boards that would hear contentions. The 

number of licensing boards that would hear contentions is one of the 

decisions that could determine how quickly the process can be 

completed. Before the adjudication was suspended in September 

2011, the ASLBP had not decided on the number of boards that would 

hear contentions. ASLBP officials told us that they estimate needing 

approximately 1.5 hearing days per contention, as well as time to draft 

decisions for each contention. With some 300 contentions already 

admitted, this could require an estimated 450 hearing days in total, 

potentially spread across more than one licensing board. ASLBP 

officials said that as many as four boards could be needed to get 

through that many contentions in the officials’ anticipated time frame, 

but they said the decision on the number of boards ASLBP authorizes 

would need to reflect any Commission direction and possibly input 

from the parties. Two parties involved with a large number of the 

admitted contentions noted that the use of multiple licensing boards 

could require them to hire more legal and technical help to prepare for 

simultaneous hearings before multiple boards.

· Updating the status of the nonfederal parties and whether new 

parties would be admitted. NRC officials said that an important early 

decision in the adjudication would be to determine which of the 

involved parties intend to continue their participation. Some parties 

may not wish to continue, especially those who gained admission later 

in adjudication in order to contest DOE’s efforts to withdraw from the 

proceeding. Additionally, if DOE amends its license application, the 

Commission may wish to allow time for new parties to file petitions to 

participate in the adjudication, and for existing parties to file new or 

amended contentions, according to ASLBP officials. The Commission 

may decide to restrict new contentions to only those parts of the 

application that have been updated, or it may allow any new 

contentions to be filed.

· Location of hearings. As mentioned previously, before the Yucca 

Mountain licensing process and adjudication were suspended, the 

Page 28 GAO-17-340 Commercial Nuclear Waste
Letter

ASLBP dismantled its dedicated hearing facility in Las Vegas. NRC 

officials noted that the Commission’s facilities in Rockville, Maryland, 

might be available for some of the Yucca Mountain proceedings, in 

conjunction with Web-based meeting and video conferencing 

capabilities. Alternatively, the Commission could decide to obtain a 

hearing space in or near Las Vegas. According to some of the 

nonfederal parties we interviewed, having a hearing site located close 

to Yucca Mountain would help increase their ability to participate in 

the adjudication and decrease their costs.

· Format of the Licensing Support Network. Previously, decisions 

about the LSN were made based on recommendations from the LSN 

Administrator and the LSN Advisory Review Panel, according to NRC 

documents.

Page 29 GAO-17-340 Commercial Nuclear Waste

48 Since document management and search technology 

have changed substantially after NRC updated its regulations in 1998 

to adopt the LSN, the Commission would need to decide whether to 

request updated guidelines and options for restarting the LSN from 

the Advisory Review Panel, according to NRC officials. Then the 

Commission would need to decide whether to re-start the LSN as it 

was before the suspension or, based on changes to the relevant NRC 

regulations or Commission directives, direct that the LSN 

Administrator and the ASLBP, which oversaw the LSN before the 

suspension, design and implement a different type of system.

· Updates or revisions to regulations. The Commission may need to 

update regulations that are out of date and may no longer be valid, 

according to NRC officials. For example, NRC’s 3-year time frame in 

its regulations for completing the licensing process may no longer be 

valid and may need to be revised or superseded by a Commission 

directive.

The Commission has previously sought input on decisions related to the 

Yucca Mountain licensing process. For example, as mentioned above, 

the Commission chartered the LSN Advisory Review Panel to provide 

recommendations about how best to implement the original LSN. 

Additionally, after the 2013 ruling by a federal appeals court that ordered 

 

48Convened in 1989, the currently named LSN Advisory Review Panel is made up of 

representatives of the state of Nevada, DOE, NRC, the affected units of local government, 

affected Indian tribes, and industry groups. Selected federal agencies w ith substantial 

experience in electronic information management systems may also be included on the 

panel. The panel advises the Commission and the LSN Administrator on procedures and 

standards for managing the document collections necessary for the Yucca Mountain 

licensing adjudication. According to its charter, the panel is to remain active until the 

Yucca Mountain proceeding terminates. 
Letter

NRC to continue work on the licensing process, the Commission sought 

the views of the parties to the adjudication about how to proceed with 

licensing activities, as noted earlier. According to a senior NRC official, 

based on the Commission’s past actions, it is likely that the Commission 

would seek input from the ASLBP, NRC staff, DOE, and the nonfederal 

parties to obtain their views on how to proceed with the licensing process. 

The amount of time the Commission takes to solicit opinions, consider 

them, and issue direction about the above-discussed areas would affect 

how long it takes to resume the process. Representatives of a few of the 

nonfederal parties told us they wanted to provide input before resuming 

the process.

As a third major action of the first key step we identified for resuming and 

completing the Yucca Mountain licensing process, NRC, DOE, and the 

nonfederal parties that previously received federal funding to participate 

in Yucca Mountain oversight and the adjudication would need to estimate 

the funding they need to resume and complete the licensing process. 

Representatives from DOE and NRC, as well as the nonfederal parties 

that previously received funding, told us that they would need funding to 

resume and complete the licensing process. Representatives for two of 

the parties also said that they would need direction from the Commission 

and ASLBP on issues discussed above in order to prepare meaningful 

estimates of their costs to complete the licensing process.

In 2014, NRC prepared an estimate on how much funding and time it 

would need to resume and complete the proceeding, in response to a 

request from the House Appropriations Committee.

Page 30 GAO-17-340 Commercial Nuclear Waste

49 The estimate—$330 

million in NRC’s costs and up to 5 years to resume and complete the 

Yucca Mountain licensing adjudication—was based on several 

assumptions about what resuming the adjudication might entail, including 

reconstituting a hearing facility, reconstituting the LSN, admitting as many 

as 100 new contentions, and running multiple licensing boards, among 

other assumptions. NRC’s estimate of $330 million, as discussed by NRC 

officials we interviewed, also included an estimated $60 million to $70 

million for certain ASLBP costs to resume and complete the adjudication. 

This ASLBP estimate included, for 600 hearing days, the costs for current 

and potential future full-time employees to support the adjudication, travel 

and lodging, transcription services, web streaming and video 

 

49Letter from NRC Chairman Alison McFarlane to Chairman of the House Committee on 

Appropriations, Harold Rogers, August 29, 2014. 
Letter

conferencing, and security, but did not include costs to acquire a hearing 

facility. An NRC official told us that the $330 million estimate from 2014 

has not been updated and costs could be higher today. Based on our 

review, the NRC and ASLBP estimates include costs for activities that 

would be needed if the licensing process resumes and take into account 

how the Commission has acted in the past; however, it is difficult to 

determine whether the assumptions or estimates are accurate because, 

as NRC officials told us, the Yucca Mountain licensing adjudication is the 

largest in NRC’s history. The total NRC estimate, at $330 million in NRC’s 

costs and up to 5 years to complete the adjudication, is generally within 

the bounds of previous appropriations for NRC’s Yucca Mountain work in 

fiscal years 2005 through 2010, when it received between about $29 

million and $70 million annually, although this previous funding fluctuated 

and may not be reflective of future needs.

DOE has not estimated how much resuming the Yucca Mountain 

licensing process might cost. DOE officials said that they need more 

information from NRC or Congress about the scope and timeline for 

resuming the adjudication process to make a credible estimate of the total 

cost of their efforts. From fiscal years 2006 through 2009, DOE requested 

between about $500 million and about $650 million annually to carry out 

work on developing the license application and other Yucca Mountain 

program activities.

Page 31 GAO-17-340 Commercial Nuclear Waste

50 In fiscal years 2009 and 2010, Congress 

appropriated $288 million and $197 million, respectively, according to an

Office of Civilian Radioactive Waste Management analysis from 2010, 

and DOE officials said that by 2009, the bulk of their work was focused on 

obtaining construction authorization, and funding for other aspects of the 

Yucca Mountain project, such as for transporting waste to the site, had 

been reduced. In October 2016, DOE reported having about $31 million in 

obligated and unobligated appropriations from the Nuclear Waste Fund 

and the Defense Nuclear Waste Disposal account.

Additionally, under the NWPA, DOE has been responsible for issuing the 

funds to designated state, local, and tribal governments located near the 

Yucca Mountain site, including the state of Nevada, 10 county 

 

50Other program activities included research and development into areas such as 

transportation security and developing a safety culture that are not a direct part of the 

license application but are necessary for operating the repository. According to DOE, a 

number of activities w ould be necessary prior to constructing a repository at Yucca 

Mountain and prior to submitting an application to receive and possess spent nuclear fuel 

and high-level radioactive w aste at the repository.
Letter

governments, and the Timbisha Shoshone Tribe.

Page 32 GAO-17-340 Commercial Nuclear Waste

51 Under the NWPA, 

DOE provided funding to these 12 governments to, among other things, 

set up “oversight” programs for studying the potential impacts of the 

repository and, more recently, to participate in the adjudicatory process. 

These 12 governments were among the 17 nonfederal parties admitted 

into the Yucca Mountain licensing adjudication. Representatives of nearly 

all of the 12 state, county, and tribal governments we interviewed stated 

that they would be dependent on federal funding to continue participating 

in the licensing process. In fiscal year 2010, these 12 governments 

received a total of approximately $12 million dollars.52 Representatives for 

one of the 12 governments that was also among nonfederal parties we 

interviewed told us they had developed an estimate for the amount they 

would need to resume the adjudication.

The decisions that the Commission and the ASLBP make for resuming 

the adjudication process would influence how much funding the parties 

need. For example, a shorter schedule for resuming and completing the 

adjudication could require more funding for parties to hire additional legal 

and technical staff within prescribed time frames. Similarly, more licensing 

boards dealing with contentions likely would require parties to have 

additional technical and legal staff and witnesses ready simultaneously, 

which could cost more. Conversely, a longer timeline or fewer licensing 

boards could cost parties less but could also take more time to complete 

the process.

Parties Would Need to Rebuild Organizational 

Capabilities and Update Previous Work

Our analysis of documents and interviews indicated that the second key 

step in resuming and completing the Yucca Mountain licensing process 

 

51The 10 county governments that received annual funding under the NWPA are know n 

as “affected units of local government.” They include the host county for the Yucca 

Mountain repository, Nye County, Nevada; 8 other Nevada counties, w hich are Churchill, 

Clark, Esmerelda, Eureka, Lander, Lincoln, Mineral, and White Pine Counties; and Inyo 

County, California. In addition, the state of Nevada received federal funding under the 

NWPA, as did the Timbisha Shoshone Tribe, w hich achieved a separate status as an 

affected Indian tribe.

52From funds appropriated to DOE during the fiscal year 2010 annual appropriations 

process, the state of Nevada received approximately $2.5 million; Nye County, Nevada, 

w here Yucca Mountain is located, received approximately $5 million; and the remaining 

approximately $4.5 million w as divided amongst the other parties, about $250,000 of 

w hich w as designated for the Timbisha Shoshone Tribe.
Letter

would be to rebuild organizational capabilities that either were dismantled 

or have atrophied since the suspension of the licensing process, and to 

update any parts of the license application and other documentation that 

may require it. This would involve three major actions: (1) NRC, DOE, 

and nonfederal parties recruiting personnel to recreate project offices; (2) 

as necessary, NRC, DOE, and nonfederal parties updating previously 

completed documentation, including the license application; and (3) NRC 

and DOE rebuilding physical infrastructure.

As a first major action in rebuilding organizational capabilities, DOE and 

NRC officials and nonfederal party representatives from several of the 12 

governments and tribes that received federal funding said that they would 

need to recruit personnel to recreate their project offices. This could 

include bringing back staff that are available and willing to return to Yucca 

Mountain work or hiring new staff. The extent to which personnel would 

need to be rehired or replaced varies by organization and depends, in 

part, on the scope and schedule of activities.

· NRC Staff. According to NRC staff, NRC’s Division of High Level 

Waste Repository Safety—later called the Yucca Mountain 

Directorate—had about 60 people working on the application review 

at its peak in 2009; another 74 people worked at the Center for 

Nuclear Waste Regulatory Analyses, which supported NRC’s Yucca 

Mountain work. According to NRC staff, as work was completed, the 

NRC staff numbers declined until the final few people at NRC 

headquarters were reassigned, and NRC disbanded the Yucca 

Mountain Directorate in 2016. Similarly, the Center for Nuclear Waste 

Regulatory Analyses’ 33 remaining staff began working on other 

projects after the Safety Evaluation Report was completed in 2015 

and the EIS supplement on groundwater impacts was completed in 

2016, according to that center’s director and NRC staff. Since NRC 

has now issued these documents, it may not need as many people in 

the project office if the process resumes, though according to NRC 

officials, NRC would likely need a significant number of personnel to 

support the adjudicatory process, including technical staff and 

attorneys. NRC would also need to revise any documents, such as 

the Safety Evaluation Report, that may require updating.

· ASLBP. When the ASLBP staff were about to proceed with the 

discovery phase of the adjudication in 2010, the ASLBP had 19 fulltime judges as well as a roster of part-time judges, 7 law clerks, and 

about 15 information technology and administrative personnel, ASLBP 

officials told us. Presently, the ASLBP has 11 full-time judges, 5 law 

clerks, and 11 information technology and administrative personnel. 

Page 33 GAO-17-340 Commercial Nuclear Waste
Letter

According to ASLBP officials, ASLBP may need to recruit additional 

judges, clerks, and support staff—especially information technology 

personnel—if it decides to use multiple licensing boards. One ASLBP 

official told us that recruiting new judges is a lengthy process and that 

it can take a year or longer to find people with the appropriate legal or 

technical expertise, who must then be interviewed and approved by 

the Commission. Furthermore, according to ASLBP officials, they 

would need to retain an LSN Administrator and a manager of the Las 

Vegas hearing facility, if these capabilities were reestablished.

· DOE. As we noted earlier, DOE’s Office of Civilian Radioactive Waste 

Management employed about 180 federal staff working, in part, to

defend DOE’s application at the time it was shut down and, according 

to former Office of Civilian Radioactive Waste Management officials 

we interviewed, also utilized thousands of contractor personnel. The 

former officials said that to resume the licensing, a new office could 

probably be smaller—anywhere from 15 to 60 federal employees and 

drawing on about 150 contractor staff—since so much work has 

already been completed. Contractors from DOE’s former “lead 

laboratory” for its Yucca Mountain research, Sandia National 

Laboratories, said that of the few hundred people who originally 

worked on Yucca Mountain, roughly a third had retired and the other 

two-thirds had moved to other work at the lab. In order for the 

remaining two-thirds to be re-tasked to support Yucca Mountain, 

however, these officials told us that laboratory management would

need to approve moving people off of their current work and back to 

supporting Yucca Mountain.

Furthermore, current and former DOE officials and contractors we 

interviewed generally agreed that DOE would need to reestablish the 

Office of Civilian Radioactive Waste Management in some form, but 

they had differing views on what the organization might look like. A 

few of the officials said that the organization could initially be fairly 

lean if it focused mainly on completing the licensing process. 

However, some of the officials and contractors said that if additional 

scientific or technical work is needed for the licensing—or if DOE also 

resumes its earlier work on other aspects of the Yucca Mountain 

project, such as development of transportation corridors for waste

going to Yucca Mountain or development of appropriate waste 

containers—a larger organization could be needed to reestablish a 

Page 34 GAO-17-340 Commercial Nuclear Waste
Letter

quality assurance program for helping ensure the quality of scientific 

and technical work, among other aspects.

Page 35 GAO-17-340 Commercial Nuclear Waste

53

DOE officials told us they did not estimate how many people they 

might need to bring back or recruit to complete the licensing process 

because personnel needs would vary depending on whether DOE is 

directed to focus solely on the license application or given broader

scope to continue work on other areas of the Yucca Mountain 

program. DOE officials told us that DOE would have its external legal 

teams under contract until mid-2017 but could not extend DOE’s 

contract beyond that date and would need to acquire specialized legal 

services under a new contract. Previously, in an April 2007 letter, the 

Secretary of Energy informed congressional leadership that although 

DOE had retained one outside law firm for the Yucca Mountain work, 

given the scope and magnitude of the licensing, DOE needed 

specialized legal services, which it planned to acquire through an 

“informal” rather than fully competitive process.54 According to DOE’s 

Office of General Counsel, in selecting the law firm currently under 

contract, DOE considered the firm’s recent experience before NRC in 

contested licensing proceedings and its workload capabilities, among 

other factors.

· Nonfederal parties. Representatives for most of the nonfederal 

parties told us they would also need to reacquire at least some of their 

legal and technical staff in order to resume the adjudication. Many of 

the 12 nonfederal parties that previously received federal funding 

under the NWPA had project offices of varying sizes that were shut 

down or reduced in size after their federal funding stopped in 2010. 

Similarly, representatives of several nonfederal parties said their 

parties had to eliminate their contracts for legal, scientific, or technical 

 

53As an applicant, DOE is required by NRC regulations to establish and implement a 

quality assurance program. DOE’s quality assurance program for Yucca Mountain 

establishes requirements that scientific, design, engineering, and other w ork, such as 

procurement and record keeping, is to be performed under controlled conditions that 

ensure quality and enable the w ork to be verified by others. Other programs DOE is 

required to implement include a performance confirmation program, a research and 

development program to resolve safety questions, and a personnel training program. All of 

these programs w ere run through the Office of Civilian Radioactive Waste Management 

before 2010. When the Office of Civilian Radioactive Waste Management w as dismantled, 

all of the quality assurance and related programs w ere shut dow n. These w ould need to 

be resumed, and personnel w ho oversee them w ould need to be hired.

54Apr. 3, 2007, letter from Secretary of Energy, Samuel Bodman, to the Honorable Nancy 

Pelosi, Speaker of the U.S. House of Representatives, and the Honorable Richard B. 

Cheney, President of the U.S. Senate.
Letter

expertise. In order to participate in the remainder of the process, 

these parties would need to rehire or replace staff and experts, 

according to representatives for the nonfederal parties.

The extent to which the organizations would need to rehire or replace 

personnel would depend on the scope and schedule of the adjudication 

as well as each organization’s role in the proceeding. As noted above, 

DOE, for example, may need more legal and technical personnel in place 

to serve as witnesses and to help prepare for and appear at hearings, 

because they would be involved in defending DOE’s application against 

all of the approximately 300 contentions that have been admitted. Other 

parties may only be involved in a few contentions and would likely need 

fewer personnel to take part in the adjudication. Similarly, if multiple 

licensing boards are hearing contentions, DOE officials and 

representatives for one of the nonfederal parties told us they would need 

multiple legal teams and technical experts for those panels.

Furthermore, according to NRC officials, contractors, and representatives 

of a few of the nonfederal parties we interviewed or that provided us 

written responses, bringing on new staff or outside experts could lengthen 

the time needed to prepare for resuming the adjudication. For example, 

NRC’s contractors at the Center for Nuclear Waste Regulatory Analyses 

said they have reduced their budget and staffing levels in recent years as 

Yucca Mountain-related work has waned. While these contractors said 

they have maintained a core staff in this center’s areas of expertise, if the 

licensing were to resume, they would likely want to bring back 

experienced staff to fulfill any additional staffing needs. Over time, 

however, this may become more difficult, in part because the center’s 

staff must maintain independence (i.e., from DOE) in supporting NRC’s 

regulatory role, according to the contractors.

Similarly, before NRC suspended the adjudication in 2011, DOE had 

identified 48 scientific or other experts to serve as DOE’s witnesses 

during the adjudication’s initial discovery phase. Of the 10 former DOE 

witnesses we contacted and from whom we received responses, 8 

provided estimates of the time they would need to prepare to resume their 

previous role as a DOE witness (if they were offered, and accepted, the 

opportunity). The former witnesses’ estimates ranged from a few weeks 

to 8 months to prepare to resume their previous role, with half of the 8 

former witnesses estimating it would take them longer than 4 months to 

Page 36 GAO-17-340 Commercial Nuclear Waste
Letter

prepare.

Page 37 GAO-17-340 Commercial Nuclear Waste

55 Similarly, 8 of the 10 former witnesses provided us estimates 

for the amount of time it might take another expert with similar credentials 

but without Yucca Mountain-specific knowledge to assume the role of 

DOE witness. The estimates from these 8 former witnesses ranged from 

a few weeks to 3 years to prepare, with 6 of the 8 former witnesses 

estimating it would take another expert at least a year to prepare for this 

role. Five of the former witnesses commented that their estimates for their 

own or others’ preparation time assumed that the necessary data and 

documents would be available. Two of the former witnesses said their 

estimates assumed that a quality assurance program for conducting and 

documenting scientific and technical work, among other organizational 

support, would be in place. Witnesses also said they assumed that the 

same or equally experienced legal experts would be involved. Four of the 

former witnesses commented that, to prepare for adjudication, a new 

expert would need to acquire extensive knowledge of the program and 

documentation, likely with some assistance from those who originally 

conducted the work. However, DOE officials said that it seemed unlikely a 

new expert would need multiple years to prepare, as the Yucca Mountain 

license application and underlying documentation were designed to be 

transparent and traceable for new experts and, if the licensing process 

resumed, DOE would likely provide support staff to help witnesses 

prepare.

As a second major action in this step, NRC, DOE, and the nonfederal 

parties would need to determine if previous work in connection with the 

licensing process—including the license application and EIS; NRC staff 

review documents, such as the Safety Evaluation Report; and party 

contentions—needs to be updated and to make the needed changes. For 

example, NRC may require DOE to show it has taken into account any 

new information that may affect its application or show that the new 

information does not affect the application in any significant way. DOE 

may also choose to update parts of its application to reflect any scientific, 

technological or other changes that may have occurred since the 

application was submitted in 2008. These changes might include, for 

example, the type or quantity of waste going into the repository. Although 

the Yucca Mountain license application specified that both spent nuclear

fuel from commercial reactors and high-level defense nuclear waste 

 

55The experts w ere responsible for various contentions that w ere to be addressed during 

the initial discovery phase. Before being identified as DOE expert w itnesses in late 2009, 

each of the 8 experts had w orked on the Yucca Mountain program, helped prepare DOE’s 

license application, or both.
Letter

would be permanently disposed of in Yucca Mountain, the NWPA allows 

for the possibility of separate repositories for these wastes, if the 

President finds that separate repositories were required. In 2015, the 

President released a memorandum for the Secretary of Energy 

communicating the President’s finding that a separate repository for 

defense waste was required,

Page 38 GAO-17-340 Commercial Nuclear Waste

56 and in 2016, DOE issued a draft proposal 

for such a repository.57 Changes in the type or quantity of waste to be 

disposed of at Yucca Mountain could make it necessary to change the 

license application or other documents. In such cases, DOE officials said 

that they would review the application and could potentially rerun some of 

their models and calculations with current data to either identify needed 

updates or to confirm that no updates are needed. According to DOE, 

another approach would be to adjudicate the license application 

submitted in 2008 and, if NRC approves construction authorization, seek 

to amend the license to include any new or changed information.

Additionally, a further supplement of the repository EIS may be needed, 

according to DOE, because the EIS—except for the groundwater 

supplement that NRC issued in 2016—is now more than 8 years old. In 

December 2016, DOE officials told us that, if the licensing process 

resumes, they would likely need to conduct an analysis to determine 

whether a supplement would be required to account for new or changed 

information. If DOE were to make any changes to its license application, 

according to DOE and NRC officials, the NRC staff would need to 

formally review these changes and might need to issue updates to its own 

assessments of the application. According to ASLBP officials and NRC’s

2014 estimate for the House Appropriations Committee, such changes 

could lead to new or significantly amended contentions. Representatives 

of 2 of the nonfederal parties told us that when first filing contentions, they 

did not know what issues other parties were raising and may have missed 

opportunities to collaborate with other parties early on and possibly 

reduce the number of contentions. Now that all the parties know what 

contentions have been filed, the parties may be able to better identify 

areas for collaboration.

 

56White House, Office of the Press Secretary, “Presidential Memorandum—Disposal of 

Defense High-Level Radioactive Waste in a Separate Repository” (March 24, 2015).

57Department of Energy, “Draft Plan for a Defense Waste Repository” (Washington, D.C.: 

December 2016). For more information on DOE’s efforts to develop a separate repository 

for defense w aste, see GAO, Nuclear Waste: Benefits and Costs Should Be Better 

Understood Before DOE Commits to a Separate Repository for Defense Waste, GAO-17-

174 (Washington, D.C.: Jan. 31, 2017).
Letter

As a third major action in rebuilding organizational capabilities, the 

ASLBP and DOE would need to rebuild some physical infrastructure.

· Hearing facility. As previously mentioned, the ASLBP may need to 

reestablish a hearing facility in Las Vegas, which took approximately 

24 months and $2.4 million to locate and prepare for initial use. NRC 

and ASLBP officials told us they would have to wait for Commission 

decisions about where hearings would be held and under what 

schedule they would be conducted, but the ASLBP would potentially 

need time and money to rent and equip another hearing facility in or 

near Las Vegas. Officials said that, depending on the willingness of 

local lessors to rent them a building, among other factors, the timeline 

to rent and equip a facility may not take as long as it did previously, 

particularly if the previous facility is available. Any facility that is rented 

would need to be outfitted for hearings with audio-video equipment to 

enable live streaming and recording of conferences and hearings, 

along with computers and display technology for activities such as 

witness examination and document display, according to NRC 

officials.

· Licensing Support Network. Depending on the format selected for 

the LSN, the ASLBP and others in NRC would need to reconstitute 

the LSN, provide a similar capability, or continue using NRC’s 

agencywide document management system. NRC and ASLBP 

officials view the time and budget for this as largely dependent on 

Commission decisions. The LSN is a required part of the process 

under current NRC regulations, which call for a system that allows 

documents to be searched, uploaded and downloaded, and indexed. 

In memoranda from May 2010 and February 2011 to the licensing 

board appointed to manage discovery during the Yucca Mountain 

adjudication, the former LSN Administrator advised that, after 5 years, 

reviving the LSN in its previous form would become very difficult and 

after 10 years was unlikely to be successful, in part because of 

software and hardware changes and loss of LSN staff.

Page 39 GAO-17-340 Commercial Nuclear Waste

58 The LSN 

Administrator suggested, for the board’s consideration, four potential 

alternatives to the original LSN, which the administrator had not 

analyzed for compliance with laws or NRC’s regulations: (1) revert to 

the classic document discovery process wherein each party provides 

 

58See May 19, 2010, memorandum from Daniel Graser, LSN Administrator, to 

Construction Authorization Board 4 regarding “Licensing Support Netw ork Administrator’s 

Response to the Board’s Questions Regarding the LSN” and Feb. 18, 2011, memorandum 

from Daniel Graser to this board regarding “Budgetary Support for Licensing Support 

Netw ork.”
Letter

a copy of its documentary material to other parties; (2) call on each 

party to establish an internet search and retrieval capability of its own 

choosing; (3) upload the LSN into NRC’s agencywide document 

management system; or (4) direct parties to submit their LSN 

materials, including bibliographic headers, to NRC in searchable PDF 

format for the NRC to upload into its official agency docket. Some 

NRC officials told us the NRC’s agencywide system could be difficult 

to use as a stand-in for an LSN, while representatives for some of the 

nonfederal parties said that the agencywide system may be easier to 

use than the LSN or would likely suffice as a stand-in, given the time it 

could take to acquire a new system.

· Site monitoring and DOE offices in Nevada. DOE would need to rebuild some of its physical infrastructure and site monitoring in Nevada. 

When the Office of Civilian Radioactive Waste Management was shut 

down in 2010, leases for office space were terminated and office 

equipment transferred, as we discussed earlier. Resuming the 

process could require DOE to acquire additional office space in 

Nevada, according to DOE officials. DOE might also need to resume 

its performance confirmation program, according to NRC regulations 

and DOE officials. The performance confirmation program was, as of 

2010, made up of three types of measurements taken on the site: 

seismic monitoring, precipitation monitoring, and construction effects 

monitoring, according to a DOE official. Equipment may need to be 

replaced and measurements started again.

ASLBP Would Need to Reconvene the Parties, and the 

Page 40 GAO-17-340 Commercial Nuclear Waste

Parties Would Need To Complete the Remaining Phases 

of the Licensing Adjudication

The third step we identified is resuming the adjudication. Previously, 

licensing boards held conferences with the parties to gather input on 

details of the adjudication, including issues such as structuring the 

hearing schedule, and then issued orders governing the adjudication. 

While some of the decisions and directives previously issued in the 

adjudication may still be valid, the licensing board may need to consult 

with parties on other areas, such as the schedule for depositions.

According to NRC, to resume the adjudication, an initial order lifting the 

suspension would likely come from the Commission; individual licensing 

boards may issue further orders, for example, to govern case 

management during the adjudication.
Letter

Once the adjudication resumes, parties would need to carry out 

depositions of party witnesses and complete discovery, and the ASLBP 

and the parties would need to conduct other aspects of the adjudication, 

such as submission and disposition of motions, evidentiary hearings, 

submission of proposed findings of fact and conclusions of law from 

parties, and licensing boards’ decisions on the admitted contentions and 

initial decision on construction authorization.

The timeline for completion of the adjudication would be affected by the 

number of licensing boards that the ASLBP decides to use, as we noted 

above. Additionally, the number of new parties and contentions that are 

admitted, if any, as well as the scope of the contentions, could affect the 

timeline for completing the adjudication. In addition, more parties could 

take more time because of the need to integrate the added parties into 

the schedule for depositions and hearings, and more contentions could 

require more hearing days. Furthermore, additional contentions can lead 

to more opportunities for appeals to the Commission and appeals of 

Commission decisions to the U.S. Courts of Appeals.

The Remaining Steps of the Licensing Process Would 

Page 41 GAO-17-340 Commercial Nuclear Waste

Need to Be Completed

The fourth and final step we identified occurs when the adjudication of all 

the contentions is complete and the NRC Commission reviews the totality 

of information and notifies the Director of the Office of Nuclear Material 

Safety and Safeguards that its review is compete. If NRC authorizes 

construction of Yucca Mountain, according to NRC’s regulations, the 

Nuclear Material Safety and Safeguards director would issue a 

construction authorization.

At present, there are at least two unresolved legal issues that would need 

to be addressed and that could affect the timeline for completing the 

licensing process. First, DOE may need to acquire the land and water 

rights it needs for construction authorization, according to NRC 

regulations and DOE and NRC officials. The NRC staff noted in its Safety 

Evaluation Report that NRC’s regulations require that DOE control the 

land and water rights within the repository operations area before NRC 

can grant construction authorization, although officials told us that NRC 

could choose to include a condition that DOE obtain these rights in the 

construction authorization. The issue of land and water rights has been 

raised in an admitted contention and, as a result, may be addressed 

during the adjudication. The Department of the Interior and the 
Letter

Department of Defense currently control land for some portions of the 

Yucca Mountain site that DOE does not control. DOE officials told us that 

DOE previously obtained temporary land rights from the Department of 

the Interior’s Bureau of Land Management and may need to go through a 

similar process again, if the Yucca Mountain licensing process resumes. 

However, to obtain the ownership required by NRC regulations and 

referred to in the Safety Evaluation Report, federal legislation would be 

needed to permanently withdraw the land for Yucca Mountain, according 

to DOE officials. Such a bill was introduced in the Senate in 2007 to 

request permanent land withdrawal for Yucca Mountain but was not 

enacted. Furthermore, water rights would need to be obtained from the 

state of Nevada. In the past, DOE has applied with the state of Nevada

for permanent water rights to implement its responsibilities under the 

NWPA. Although the state previously granted temporary permits for DOE 

to study the Yucca Mountain site, the Department of Justice has gone to 

federal court to obtain permanent rights; the court stayed that litigation in 

2003. To construct and eventually operate a repository at Yucca 

Mountain, DOE acknowledges that it would need to obtain permanent

water rights, and in the Safety Evaluation Report, the NRC staff 

concluded that DOE would need to obtain these rights in order to meet 

NRC regulatory requirements for construction authorization.

Second, a legal challenge questioning NRC’s changes to its safety 

regulations for the repository’s expected period of performance could also 

prolong the timeline for completing the licensing process. The Energy 

Policy Act of 1992 required EPA to issue public health and safety 

standards for radioactive material potentially stored or disposed of at 

Yucca Mountain, and the act required NRC to modify its technical 

requirements and criteria for Yucca Mountain to be consistent with EPA’s 

standards. In 2008, EPA reissued the public health and safety standards 

for Yucca Mountain, using radiation dose standards applicable for a 

period up to 1 million years after disposal; in 2009, NRC reissued its 

regulations to make them consistent with EPA’s standards. The state of 

Nevada brought two lawsuits in the D.C. Circuit Court challenging both 

the EPA and NRC regulations claiming, among other things, they fail to 

protect public health and safety. However, the licensing process was 

suspended shortly after the State of Nevada brought its lawsuits, so the 

circuit court held the lawsuits in abeyance pending further developments.

In its Safety Evaluation Report, the NRC staff assumed the legal validity 

of the EPA and NRC standards for Yucca Mountain. If any aspect of the 

standards were to be struck down by a court in the future, then the 

conclusions of the Safety Evaluation Report—which, as noted above, 

found DOE’s license application to meet the NRC standards—could be 

Page 42 GAO-17-340 Commercial Nuclear Waste
Letter

thrown into jeopardy. If so, NRC would likely have to change its 

regulations and require DOE to meet a more stringent standard for 

radiation exposure. This in turn could potentially result in DOE needing to 

revise its license application and NRC its Safety Evaluation Report, 

among other possible effects of such a ruling.

Agency Comments

Page 43 GAO-17-340 Commercial Nuclear Waste

We provided NRC and DOE a draft of this report for agency comment. 

The agencies provided us written comments, which are reproduced in 

appendixes II and III. In its written comments, NRC generally agreed with 

our findings. DOE did not indicate whether it generally agreed or 

disagreed. The agencies also provided technical comments and 

clarifications, which we incorporated as appropriate.
Letter

As agreed with your offices, unless you publicly announce the contents of 

this report earlier, we plan no further distribution until 30 days from the 

report date. At that time, we will send copies to the appropriate 

congressional committees, the Chairman of the NRC, the Secretary of 

Energy, and other interested parties. In addition, the report will be 

available at no charge on the GAO website at http://www.gao.gov.

If you or your staff members have any questions about this report, please 

contact me on (202) 512-3841 or ruscof@gao.gov. Contact points for our 

Offices of Congressional Relations and Public Affairs may be found on 

the last page of this report. GAO staff who made key contributions to this 

report are listed in appendix IV.

Frank Rusco

Director, Natural Resources and Environment

Page 44 GAO-17-340 Commercial Nuclear Waste
Appendix I: Nuclear Regulatory Commission’s 

Primary Regulations for the Yucca Mountain 

Licensing Process

Page 45 GAO-17-340 Commercial Nuclear Waste

Appendix I: Nuclear 

Regulatory Commission’s 

Primary Regulations for the 

Yucca Mountain Licensing 

Process

The Nuclear Regulatory Commission (NRC) is the independent regulator 

for the design, construction, operation, and eventual closure of a geologic 

repository at Yucca Mountain. NRC’s regulations define the safety or 

other standards for a proposed repository and outline the requirements 

for the Yucca Mountain licensing process (see table 1).

Table 1: Nuclear Regulatory Commission’s (NRC) Primary Regulations for the Yucca Mountain Licensing Process

Regulation Description

10 CFR Part 2 – Agency Rules of 

Practice and Procedure

Subparts C, G, and J provide general procedures for licensing adjudications and specific 

procedures for adjudication concerning construction authorization of a geologic repository. 

Subpart J includes rules pertaining to the Licensing Support Netw ork.

Appendix D, in accordance w ith the Nuclear Waste Policy Act outlines the required 1,125-day 

(3 years) time frame for NRC to review a license application from DOE and make a final 

decision to approve or disapprove construction authorization.

10 CFR Part 51 – Environmental 

protection regulations for domestic 

licensing and related regulatory 

functions

Section 51.67 requires DOE to submit to NRC for review any final Environmental Impact 

Statement (EIS) for a geologic repository. Under applicable provisions of law , DOE may be 

required to supplement its EIS, if DOE made substantial changes to its license application or 

determined significant new information has become available.

In a licensing proceeding for construction authorization for a geologic repository, section 

51.109 requires that the NRC staff provides its view about w hether it w ould be “practicable” to 

adopt the EIS w ithout supplementation. In the context of adjudication, an NRC licensing 

board w ould determine w hether such adoption is practicable.

10 CFR Part 63 – Disposal of highlevel radioactive w astes in a geologic 

repository at Yucca Mountain, Nevada

Provides environmental, public health, and safety requirements for the Yucca Mountain 

repository. Includes the required content of the license application; conditions for approving 

construction authorization; and technical, environmental, safety, and other requirements for

the repository’s construction, operation, closure, and post-closure periods. Incorporates 

environmental and health standards developed by the U.S. Environmental Protection Agency. 

Source: GAO analysis of NRC regulations. | GAO-17-340
Appendix II: Comments from the Nuclear 

Regulatory Commission

Page 46 GAO-17-340 Commercial Nuclear Waste

Appendix II: Comments from the 

Nuclear Regulatory Commission
Appendix III: Comments from the Department 

of Energy

Page 47 GAO-17-340 Commercial Nuclear Waste

Appendix III: Comments from the 

Department of Energy
Appendix IV: GAO Contact and Staff 

Acknowledgments

Page 48 GAO-17-340 Commercial Nuclear Waste

Appendix IV: GAO Contact 

and Staff Acknowledgments

GAO Contact

Frank Rusco, (202) 512-3841 or ruscof@gao.gov.

Staff Acknowledgments

In addition to the contact named above, Hilary Benedict (Assistant 

Director), Kevin Bray, Greg Campbell, Alisa Carrigan, Cindy Gilbert, 

Katrina Pekar-Carpenter, and Jeff Rueckhaus made key contributions to 

this report.

(100728)
Appendix V: Accessible Data

Page 49 GAO-17-340 Commercial Nuclear Waste

Appendix V: Accessible Data

Data Tables

Data for Figure 1: Nuclear Regulatory Commission’s Licensing Review Process and 

Statutory Time Frame for Construction Authorization of the Yucca Mountain 

Repository

Approximately 3-year (1,125-day) statutory time frame to complete these 

steps

1 Submission of license application

The Department of Energy (DOE) submits a license application to the 

Nuclear Regulatory Commission (NRC) for authorization to construct the 

Yucca Mountain repository.

2 NRC staff screening and technical review

The NRC’s staff screens DOE’s license application. If the application is 

accepted for docketing and review, the staff begins its technical review of 

the application and DOE’s Environmental Impact Statement for the 

proposed repository.

3 Admission of parties and contentions

Day 0: Adjudication begins with a public Notice of Hearing and 

opportunity for outside nonfederal entities, such as counties or tribes 

near Yucca Mountain, to seek admission into the adjudication as parties.

Day 100: One or more Atomic Safety and Licensing Boards (licensing 

boards) admit parties and their contentions—e.g., challenging the 

repository’s long-term safety.

4 Discovery phase

Admitted parties, including DOE and NRC staff, carry out depositions of 

parties’ scientific experts and other witnesses.

Day 548: The NRC staff issues its five-volume Safety Evaluation 

Report—part of its technical review.
Appendix V: Accessible Data

Day 608: Parties complete the discovery phase.

5 Evidentiary hearings and initial decision

Day 720: Parties and one or more boards begin hearings on the 

contentions, including examination of witnesses and introduction of 

exhibits into evidence.

Day 955: Licensing board(s) considers parties’ proposed findings and 

issues initial decision on whether to authorize construction of Yucca 

Mountain.

6 Supervisory review and final decision on construction authorization

Day 1,055: NRC’s five-member Commission reviews contested issues—

those raised during, or as a result of the adjudication—and any 

uncontested issues raised by NRC staff.

Day 1,125: Unless the Commission decides otherwise, the initial decision 

becomes final.

Data for Figure 2: Timeline of Selected Actions and Decisions Related to the 

Page 50 GAO-17-340 Commercial Nuclear Waste

Department of Energy’s Motion to Withdraw Its License Application for the Yucca 

Mountain Repository

CAPTION

1. February 2010: NRC’s budget justification calls for “orderly 

closure” of NRC’s Yucca Mountain licensing activities in fiscal year 

2011 if DOE moves to withdraw its license application.

2. March 2010 - September 2010: DOE submits a motion to NRC on 

March 3 to withdraw its Yucca Mountain license application and 

shuts down and largely dismantles its own Yucca Mountain 

program, while also taking steps to preserve program data.

3. April 2010 - June 2010: An NRC Atomic Safety and Licensing 

Board (licensing board) reviews and, on June 29, rules against 

DOE’s withdrawal motion.

4. June 2010 - September 2011: The five-member NRC Commission 

reviews the licensing board’s rejection of DOE’s withdrawal 

motion.
Appendix V: Accessible Data

5. October 2010 - September 2011: In line with direction to 

implement “orderly closure” of Yucca Mountain activities the NRC 

staff shuts down work on its Safety Evaluation Report, preserving 

the work in a technical report.

6. March 2011 - September. 2011: NRC shuts down and dismantles 

its Las Vegas, Nevada, hearing facility and the Licensing Support 

Network (LSN), while taking steps to ensure that the LSN 

documents are preserved.

7. September 2011: After affirming the licensing board’s ruling on an 

equally divided vote, the Commission directs the board to 

conclude all matters related to the Yucca Mountain licensing 

adjudication. In line with this direction, the board suspends the 

adjudication on September 30.

8. November 18, 2013: The Commission orders resumption of some 

aspects of the Yucca Mountain licensing but not the adjudication. 

9. December 2013 - April 2014: NRC transfers the LSN documents 

to its agencywide document management system for NRC staff 

use.

10. January 2014 - January 2015: After issuing Volume 1 of its fivevolume Safety Evaluation Report in August 2010, the NRC staff 

completes and issues the four remaining volumes.

11. March 2015 - May 2016: The NRC staff prepares and, on May 13, 

2016, issues an Environmental Impact Statement supplement 

about the Yucca Mountain repository’s groundwater effects.

12. December 2015 - August 2016: NRC makes the LSN documents 

publicly available in NRC’s agencywide document management 

system.

Data for Figure 3: Likely Key Steps for Resuming and Completing the Yucca Mountain Licensing Process

Page 51 GAO-17-340 Commercial Nuclear Waste

Key steps

1

Receive direction and obtain 

funding 

2

Rebuild organizational 

capabilities and update key 

documents 

3

Reconvene all parties and 

complete remaining phases 

of adjudication

4

Complete the remaining 

steps of the licensing 

process
Appendix V: Accessible Data

Page 52 GAO-17-340 Commercial Nuclear Waste

Key steps

1

Receive direction and obtain 

funding 

2

Rebuild organizational 

capabilities and update key 

documents 

3

Reconvene all parties and 

complete remaining phases 

of adjudication

4

Complete the remaining 

steps of the licensing 

process

The Nuclear Regulatory 

Commission (NRC) receives 

direction to restart the 

adjudication

The five-member NRC 

Commission decides on 

several aspects of the 

adjudication, such as:

Timeline for resuming and 

completing the process

Location of hearings

Whether to update relevant

regulations

NRC, Department of Energy 

(DOE), and nonfederal 

parties involved in the 

licensing process estimate 

the cost of resuming and 

completing the process and 

obtain funding

NRC, DOE, and nonfederal 

parties rehire or recruit 

personnel to recreate project 

offices and provide legal, 

scientific, or other expertise

As necessary, DOE and 

NRC update previously 

completed documents used 

for the licensing process, 

including the license 

application and the 

Environmental Impact 

Statement

NRC and DOE rebuild 

physical infrastructure

NRC’s Atomic Safety and 

Licensing Board Panel 

issues orders for resuming 

the adjudication 

Parties to the adjudication 

carry out discovery,

depositions, and evidentiary 

hearings on parties’ 

contentions challenging the 

safety or other aspects of the

proposed repository

After adjudication is 

complete, the Commission 

examines the totality of 

information and decides 

whether to issue a 

construction authorization 

Factors that could influence steps

Length of time the

Commission needs to gather 

information and issue orders 

about resuming the process 

Length of time for funding to 

be requested and obtained

Ratio of experienced 

personnel to new hires

Whether DOE’s license 

application requires 

updating, and whether other 

documents (Safety 

Evaluation Report,

contentions, etc.) require 

updating as a result 

Format of the Licensing 

Support Network

Number of hearing boards 

the Atomic Safety and 

Licensing Board Panel forms 

for the adjudication, and final 

number of admitted 

contentions

Resolution of outstanding 

legal issues, including 

determination of land and 

water rights.
Appendix V: Accessible Data

Agency Comment  Letters

Page 53 GAO-17-340 Commercial Nuclear Waste

Text of Appendix II: Comments from the Nuclear 

Regulatory Commission

Page 1

UNITED STATES

NUCLEAR REGULATORY COMMISSION

WASHINGTON, D.C. 20555-0001

April 5, 2017

Mr. Frank Rusco, Director

Natural Resources and Environment

U.S. Government Accountability Office

441 G Street, NW

Washington, DC 20226

Dear Mr. Rusco:

On behalf of the U.S. Nuclear Regulatory Commission (NRC), I am 

responding to your e-mail dated March 2, 2017, which provided the NRC 

an opportunity to review and comment on the

U.S. Government Accountability Office (GAO) draft report GA0-17-340, 

"Commercial Nuclear Waste: Resuming Licensing of the Yucca Mountain 

Repository Would Require Rebuilding Capacity at DOE and NRC, Among 

Other Key Steps."

The NRC staff appreciates the opportunity to review the draft report as 

well as the GAO staff's professionalism and constructive interactions 

during this GAO engagement. Overall, the NRC agrees with the draft 

report and its findings. In the enclosure to this letter, we have provided 

some minor comments and clarifications for your consideration, which 
Appendix V: Accessible Data

may help to provide an accurate historical perspective of Yucca Mountain 

repository development and to clarify key steps that would be necessary 

should the licensing process resume.

Thank you again for the opportunity to provide comments on the draft 

GAO report. Please feel free to contact Mr. John Jolicoeur at (301) 415-

1642 or John.Jo licoeur@nrc.gov if you have questions or need additional 

information.

Sincerely,

Victor M. Mccree

Executive Director for Operations

Enclosure:

NRC Comments on Draft Report GA0-17-340

Text of Appendix III:  Comments from the Department of 

Page 54 GAO-17-340 Commercial Nuclear Waste

Energy

Page 1

April 5, 2017

Mr. Frank Rusco

Director, Natural Resources and Environment

U.S. Government Accountability Office 441 G Street, NW

Washington, D.C. 20548

Dear Mr. Rusco:

Thank you for providing a draft copy of the Government Accountability 

Office (GAO) report, Commercial Nuclear Waste: Resuming Licensing of 

the Yucca Mountain Repository Would Require Rebuilding Capacity at 

DOE and NRC, Among Other Key Steps (GAO-17-340). We appreciate 

the effort GAO put into this review.
Appendix V: Accessible Data

The draft report outlines four key steps needed to resume and complete 

the Nuclear Regulatory Commission licensing proceeding for a 

construction authorization for a repository at Yucca Mountain. Attached 

are several suggestions for clarification. If you have any questions, 

please contact Ms. Kelly Glanz at kelly.glanz@Nuclear.Energy.gov or 

(202) 586-4288.

Sincerely,

Raymond Furstenau Acting Assistant Secretary, for Nuclear Energy

Attachment

Page 2

Page 55 GAO-17-340 Commercial Nuclear Waste

Clarification of Facts

1. On page 14, in the second bullet, GAO states that there were 

about 180 OCRWM staff, whereas on page 30, in the bullet related to 

DOE, GAO states that there were about 150 federal staff employed by 

OCRWM. The 180 and 150 appear inconsistent.

2. On page 9, paragraph 2, the Department recommends replacing 

"These reviews followed decades of interactions between DOE and NRC 

staff" with "These reviews followed more than two decades of interactions 

between DOE and NRC staff."

3. On page 12, GAO states that “as of late 2016 and early 2017, 

DOE and NRC told us they have no formal plans for resuming the 

licensing adjudication.” In mid-March 2017, the President announced that 

the FY 2018 Budget Request will include $120 million to restart licensing 

activities for the Yucca Mountain repository and initiate a robust interim 

storage program. The Department suggests GAO update the report to 

reflect the budget request.

4. Although footnote 47 of the GAO report alludes to additional 

activities that would be required prior to operation of a repository, the 

Department recommends that the footnote also acknowledge that a 

number of activities would be necessary prior to construction and 

submitting an application to receive and possess spent nuclear fuel and 

high-level radioactive waste at the repository.
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