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IMPLEMENTING THE NUCLEAR WASTE POLICY 

ACT: NEXT STEPS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND THE 

ECONOMY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 10, 2013 

Serial No. 113–79 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

RALPH M. HALL, Texas 

JOE BARTON, Texas 

Chairman Emeritus 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

Vice Chairman 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

BRUCE L. BRALEY, Iowa 

PETER WELCH, Vermont 

BEN RAY LUJAN, New Mexico 

PAUL TONKO, New York 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

JOHN SHIMKUS, Illinois 

Chairman 

PHIL GINGREY, Georgia 

Vice Chairman 

RALPH M. HALL, Texas 

ED WHITFIELD, Kentucky 

JOSEPH R. PITTS, Pennsylvania 

TIM MURPHY, Pennsylvania 

ROBERT E. LATTA, Ohio 

GREGG HARPER, Mississippi 

BILL CASSIDY, Louisiana 

DAVID B. MCKINLEY, West Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

PAUL TONKO, New York 

Ranking Member 

FRANK PALLONE, JR., New Jersey 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

JERRY MCNERNEY, California 

JOHN D. DINGELL, Michigan 

JANICE D. SCHAKOWSKY, Illinois 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

HENRY A. WAXMAN, California (ex officio) 

(II) 

(III) 

C O N T E N T S 

Page 

Hon. John Shimkus, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 48 

Prepared statement .......................................................................................... 49 

Hon. Paul Tonko, a Representative in Congress from the State of New York, 

opening statement ................................................................................................ 50 

Hon. Gene Green, a Representative in Congress from the State of Texas, 

opening statement ................................................................................................ 51 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

opening statement ................................................................................................ 52 

Prepared statement .......................................................................................... 53 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 53 

WITNESSES

Allison M. Macfarlane, Chairman, Nuclear Regulatory Commission ................. 55 

Prepared statement .......................................................................................... 57 

Answers to submitted questions ...................................................................... 99 

Peter B. Lyons, Assistant Secretary for Nuclear Energy, Department of Energy ........................................................................................................................ 64

Prepared statement .......................................................................................... 66 

Answers to submitted questions ...................................................................... 116 

SUBMITTED MATERIAL

Opinion, dated August 13, 2013, In Re: Aiken County, et al., Petitioners, 

State of Nevada, Intervenor, On Petition for Writ of Mandamus, U.S. Court 

of Appeals for the District of Columbia Circuit, submitted by Mr. Shimkus .. 2 

Editorial, dated August 20, 2013, ‘‘Time to Stop Stalling on Nuclear Waste,’’ 

The New York Times, submitted by Mr. Shimkus ............................................ 32 

Letter of August 23, 2013, from Mr. Upton and Mr. Shimkus to Ms. 

Macfarlane, submitted by Mr. Shimkus ............................................................. 34 

Letter of September 6, 2013, from Ms. Macfarlane to Mr. Upton, submitted 

by Mr. Shimkus .................................................................................................... 37 

Letter of August 26, 2013, from Mr. Upton and Mr. Shimkus to Ernest 

Moniz, Secretary, Department of Energy, submitted by Mr. Shimkus ........... 40 

Letter of August 30, 2013, from Mr. Lyons to Mr. Shimkus, submitted by 

Mr. Shimkus ......................................................................................................... 42 

(1) 

IMPLEMENTING THE NUCLEAR WASTE 

POLICY ACT: NEXT STEPS 

TUESDAY, SEPTEMBER 10, 2013 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:03 a.m., in room 

2123 of the Rayburn House Office Building, Hon. John Shimkus 

(chairman of the subcommittee) presiding. 

Members present: Representatives Shimkus, Gingrey, Whitfield, 

Pitts, Murphy, Latta, Harper, McKinley, Bilirakis, Johnson, Upton 

(ex officio), Tonko, Green, Capps, McNerney, Dingell, Barrow, and 

Waxman (ex officio). 

Staff present: Nick Abraham, Legislative Clerk; Gary Andres, 

Staff Director; Charlotte Baker, Press Secretary; David Bell, Staff 

Assistant; Sean Bonyun, Communications Director; Andy Caputo, 

Professional Staff Member; Vincent Esposito, Fellow, Nuclear Programs; Brad Grantz, Policy Coordinator, Oversight and Investigations; David McCarthy, Chief Counsel, Environment and the Economy; Chris Sarley, Policy Coordinator, Environment and the Economy; Peter Spencer, Professional Staff Member, Oversight; Tom 

Wilbur, Digital Media Advisor; Jeff Baran, Democratic Senior 

Counsel; Alison Cassady, Democratic Senior Professional Staff 

Member; Greg Dotson, Democratic Staff Director, Energy and Environment; and Caitlin Haberman, Democratic Policy Analyst. 

Mr. SHIMKUS. The committee will come to order. And we would 

like to welcome our colleagues back from the break and also our 

folks on the first panel. 

Before we get down to my opening statement, I want to ask 

unanimous consent to submit for the record the August 13, 2013, 

decision of the U.S. Court of Appeals for the DC Circuit to issue 

a writ of mandamus. Without objection, so ordered. 

[The information follows:] 

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Mr. SHIMKUS. I also would ask unanimous consent to submit for 

the record an August 20 editorial by The New York Times entitled, 

‘‘Time to Stop Stalling on Nuclear Waste.’’ Without objection, so ordered. 

[The information follows:] 

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86804.030
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Mr. SHIMKUS. I also ask unanimous consent to submit for the 

record a letter that Chairman Upton and I sent to the NRC on August 23 discussing the recent decision of the U.S. Court of Appeals 

for the DC Circuit and the NRC’s response dated September 6, 

2013. Without objection, so ordered. 

[The information follows:] 

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Mr. SHIMKUS. Then, finally, Chairman Upton and I received a 

letter from Ranking Members Waxman and Tonko indicating their 

desire to examine the status of Fukushima Nuclear Plant in Japan. 

We look forward to discussing those issues with the full commission when they appear this fall. And so we want to thank you for 

that input. 

And I would like to recognize myself for 5 minutes for my opening statement. 

OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

On August 13, the U.S. Court of Appeals for the District of Columbia Circuit granted a writ of mandamus stating that ‘‘the Nuclear Regulatory Commission must promptly continue with the legally mandated licensing process.’’ The purpose of our hearing 

today is to examine the next steps for the NRC and the Department of Energy to implement the court’s decision. 

Thank you, Chairman Macfarlane and Assistant Secretary 

Lyons, for your testimony today. 

In its decision, the court rebuked the NRC for ‘‘simply flouting 

the law,’’ something this committee recognized long ago. How is it 

that an independent agency with a clear statutory responsibility is 

criticized by a Federal court for having ‘‘no current intention of 

complying with the law’’? 

Today’s hearing will be focused on looking forward, but we have 

to be cognizant of the agency actions that led to this situation and 

vigilant against resurgent efforts to undermine the statutory process. The Commission’s recent order to give the parties until September 30 to comment on how the NRC should proceed, however 

well-intentioned, is eerily reminiscent of past NRC efforts to slow 

the review process and to stall the release of its Safety Evaluation 

Report. 

On June 3, 2008, the DOE filed a license application for construction authorization to build a repository at Yucca Mountain. 

NRC accepted the application and docketed it on September 8, 

2008. By the end of 2009, it was becoming clear that the DOE 

would close down the Yucca Mountain program, abandoning the 30 

years of research and $15 billion invested. By March 3, 2010, the 

DOE filed a motion to withdraw the license application in a manner that would prevent any further consideration of the site. 

On June 29, 2010, the NRC’s Construction Authorization Board 

denied DOE’s motion. In spite of this, then-NRC Chairman Greg 

Jaczko was already laying the groundwork to unilaterally cease the 

NRC’s review of the license application, as we learned in our hearing to review the NRC Inspector General’s report on this subject. 

According to the IG’s report, in spring of 2010, NRC staff informed Chairman Jaczko that they were ahead of schedule and 

could issue SER Volumes 1 and 3 earlier than the previously projected dates of August and November 2010. This is very important 

information. In fact, the NRC executive director had the impression 

that Volume 3 would be ready for publication in the summer of 

2010. In June 2010, Chairman Jaczko directed the staff in a memo 

to maintain their public schedule and not issue Volumes 1 and 3 

early. 

49 

At that point, it was clear to the deputy executive director that 

the chairman planned to close down the license review on October 

1 and that ‘‘the practical effect of the Chairman’s June memorandum was that it prevented the staff from issuing Volume 3 

should it have been finalized prior to October 1.’’ 

Indeed, on October 4, Chairman Jaczko directed the staff to cease 

its review of the license citing the Continuing Resolution even 

though the CR would continue to provide funding for the review at 

the existing level of $29 million. He later told the IG that it was 

his responsibility to manage the agency’s workload and workflow 

with regard to scheduling. 

Here we are, nearly a month after the DC Circuit issued a writ 

of mandamus, and the NRC’s only action we have seen so far is to 

invite the parties to comment by September 30. Electricity consumers and taxpayers have waited 30 years and paid $15 billion 

to find out whether our independent nuclear safety regulator concluded that Yucca Mountain would be safe or not. Releasing the 

SER is the next step in the NRC process. The NRC has the money 

to do it. A Federal court has ruled that the NRC must proceed, and 

the NRC says hold on; let’s ask the parties what they think. This 

does not seem like the posture of an agency intent on complying 

with a writ of mandamus. Instead, the NRC appears again to be 

stalling. 

I won’t speak for other members on this committee but I want 

to be very clear: I strongly believe the NRC’s first order of business 

is to complete and release the Safety Evaluation Report. Transparency in this matter is essential to rebuilding the agency’s reputation as an independent and objective regulator. 

[The prepared statement of Mr. Shimkus follows:] 

PREPARED STATEMENT OF HON. JOHN SHIMKUS

On August 13, the U.S. Court of Appeals for the District of Columbia Circuit 

granted a writ of mandamus stating that ‘‘the Nuclear Regulatory Commission must 

promptly continue with the legally mandated licensing process.’’ The purpose of our 

hearing today is to examine the next steps for NRC and the Department of Energy 

to implement the court’s decision. Thank you, Chairman Macfarlane and Assistant 

Secretary Lyons for testifying today. 

In its decision, the court rebuked the NRC for ‘‘simply flouting the law,’’ something this committee recognized long ago. How is it that an independent agency 

with a clear statutory responsibility is criticized by a Federal court for having ‘‘no 

current intention of complying with the law’’? Today’s hearing will be focused on 

looking forward, but we have to be cognizant of the agency actions that led to this 

situation and vigilant against resurgent efforts to undermine the statutory process. 

The commission’s recent order to give the parties until September 30th to comment 

on how the NRC should proceed, however wellintentioned, is eerily reminiscent of 

past NRC efforts to slow the review process and to stall the release of its safety 

evaluation report. 

On June 3, 2008, the DOE filed a license application for construction authorization to build a repository at Yucca Mountain. NRC accepted the application and 

docketed it on Sept. 8, 2008. By the end of 2009, it was becoming clear that the 

DOE would close down the Yucca Mountain program, abandoning the 30 years of 

research and $15 billion invested. By March 3, 2010, the DOE filed a motion to 

withdraw the license application in a manner that would prevent any future consideration of the site. On June 29 of 2010, the NRC’s Construction Authorization Board 

denied DOE’s motion. In spite of this, then NRC Chairman Greg Jaczko was already 

laying the groundwork to unilaterally cease the NRC’s review of the license application as we learned in our hearing to review the NRC Inspector General’s report on 

this subject. 

50 

According to the IG’s report, in spring of 2010, NRC staff informed Chairman 

Jaczko that they were ahead of schedule and could issue SER Volumes 1 and 3 earlier than the previously projected dates of August and November of 2010. In fact, 

the NRC Executive Director had the impression that Volume 3 would be ready for 

publication in summer 2010. In June of 2010, Chairman Jaczko directed the staff 

in a memo to maintain their public schedule—and not to issue Volumes 1 and 3 

early. 

At that point, it was clear to the deputy executive director that the chairman 

planned to close down the license review on October 1st and that ‘‘the practical effect of the Chairman’s June memorandum was that it prevented the staff from 

issuing Volume 3 should it have been finalized prior to October 1.’’ Indeed on October 4th, Chairman Jaczko directed the staff to cease its review of the license citing 

the continuing resolution even though the CR would continue to provide funding for 

the review at the existing level of $29 million. He later told the IG that it was his 

responsibility to manage the agency’s workload and workflow with regard to scheduling. 

Here we are, nearly a month after the DC Circuit issued a writ of mandamus, 

and the NRC’s only action we’ve seen so far is to invite the parties to comment.by 

September 30. Electricity consumers and taxpayers have waited 30 years and paid 

$15 billion to find out whether our independent nuclear safety regulator concluded 

that Yucca Mountain would be safe or not, releasing the SER is the next step in 

the NRC’s process, the NRC has the money to do it, a Federal court has ruled that 

the NRC must proceed, and the NRC says ‘‘hold on, let’s ask the parties what they 

think.’’ This does not seem like the posture of an agency intent on complying with 

a writ of mandamus. Instead, the NRC appears to again be stalling. I won’t speak 

for other members on this committee, but I want to be very clear: I strongly believe 

the NRC’s first order of business is to complete and release the Safety Evaluation 

Report. Transparency in this matter is essential to rebuilding the agency’s reputation as an independent and objective regulator. 

Mr. SHIMKUS. And with that, I yield back the balance of my time 

and I yield to the ranking member, Mr. Tonko, for 5 minutes. 

OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK 

Mr. TONKO. Thank you, Chair Shimkus. Good morning, everyone. 

And the United States Court of Appeals has now issued a ruling 

ordering the Nuclear Regulatory Commission to resume review of 

the Yucca Mountain license application. I do not think this action 

alone has resolved much related to the ongoing questions about the 

fate of nuclear waste. The court decision does not reverse the opposition to the Yucca Mountain project in the State of Nevada. It does 

not require the NRC or DOE to move forward without additional 

appropriated funds. And at this time, there is still a possibility that 

one or more of the parties to this case will appeal the ruling. 

It seems we all still have a great deal of work to do if we are 

to move nuclear waste policy forward. Yucca Mountain may or may 

not be part of this policy. Even if it is, we are still many years, perhaps decades, from placing the first waste into this repository. If 

nuclear power is to play a role in our future energy supply, we 

need to explore other options for dealing with this waste that could 

be implemented more quickly. 

I do not expect we will resolve anything today. I hope we will be 

able to move forward and work together to provide a constructive 

solution to this very critical, very important problem. 

I want to thank Chair Macfarlane and Dr. Lyons for appearing 

before the subcommittee today and would yield my remaining time 

to the gentleman from Texas, Mr. Green. 

51 

OPENING STATEMENT OF HON. GENE GREEN, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. GREEN. I thank my colleague and our ranking member for 

yielding. 

Mr. Chairman, thank you for holding this timely hearing on nuclear waste at Yucca Mountain. I also want to thank Chair 

Macfarlane and Assistant Secretary Lyons for joining us this morning. 

Earlier this year, Chair Macfarlane and her fellow commissioners 

before this very subcommittee committed to honoring the court’s 

decision concerning the review of Yucca Mountain license application. Since that time, the DC court ruled that the NRC must resume its review in accordance with the Nuclear Waste Policy Act. 

I hope to hear in today’s hearing that the NRC and DOE will be 

following through with earlier statements and will use the available resources to move the review process as far along as possible. 

This should include plan to complete the Safety Evaluation Reports 

which this subcommittee is told would take an estimated 6 to 8 

months to complete at a cost of 6.5 million. This should be all the 

more the case in light of the fact that the NRC currently has over 

11 million and DOE has 16 million in unobligated funds appropriated specifically for Yucca licensing activities. 

I also look forward to hearing how the NRC will be putting together the best staff possible to complete the SERs, hopefully with 

assigning many of the same people who worked on the review process before it was halted prematurely. 

Finally, I believe the court’s ruling gives this committee, the Energy Department, and the NRC an opportunity to redouble our collective efforts in finding a final solution on this matter that can be 

based on consensus science in honor of the $15 billion investment 

the American people have already made towards a permanent SNF 

storage. 

Our country has a real serious and pending issue at hand with 

regard to the storage and the disposal of nuclear waste and must 

be dealt with sooner rather than later. Currently spent fuel and reprocessed waste is stored at nuclear plants and 77 sites scattered 

across the U.S. mounting to over 70,000 metric tons of spent nuclear fuel. Local communities are spending millions of dollars annually to ensure the safety and protection of our nuclear waste. Even 

with these current sites, we are still producing nuclear waste, and 

that waste will need to be stored for at least 1,000 years. 

If we do not take action by following the circuit court’s decision 

or Congress finding a different path forward on this important 

issue, all of us—DOE, NRC, and Congress—will be letting down 

the very people we were sent here for and endanger the health and 

safety of our communities. 

Again, I thank Chair Macfarlane and Assistant Secretary Lyons 

for appearing today and I look forward to your testimony. And I 

again thank my colleague for my time. 

Mr. SHIMKUS. The gentleman yields back his time. The chair now 

recognizes the chairman of the full committee, Mr. Upton, for 5 

minutes. 

52 

OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Mr. UPTON. Thank you, Mr. Chairman. And I appreciate Chair 

Macfarlane and Dr. Lyons here today this morning as well. 

As we know, the court recently ordered the NRC to proceed with 

the Yucca Mountain license review. And the first task in complying 

with the court’s mandate and with the Nuclear Waste Policy Act 

is in fact to release the Safety Evaluation Report. Fortunately, you 

do indeed have the resources to proceed with that release. 

Congress needs the opportunity to examine the NRC’s long-overdue unredacted technical analysis, and the public who paid for it 

deserve to know the report’s conclusions. During the last 3 years 

the administration has been suppressing this document, Congress 

has been denied an informed discussion about next steps. 

For quite some time, Members on both sides of the aisle have 

been saying—with our words and with our votes—Yucca Mountain 

is in fact the law of the land. And a month ago, in August, the DC 

Circuit Court did agree and ordered that NRC must proceed with 

the license review. The path forward is unmistakable. Compliance 

with the law is not optional. 

The framework of the Nuclear Waste Policy Act is simple: electricity consumers pay for the cost of used fuel disposal as part of 

the cost of that electricity, and taxpayers pay for the disposal costs 

of the high-level waste legacy of the Cold War. But the reality of 

our current situation is in fact a lot different. With no progress on 

a permanent repository, both ratepayers and taxpayers continue to 

be charged, yet they aren’t getting what they are paying for. 

DOE is spending the Nuclear Waste Fund money to shut down 

a licensing process which the court has said must proceed. NRC is 

spending resources to revise a Waste Confidence Rule as a result 

of the repository program being shut down. And DOE is spending 

taxpayer money on a sidetrack effort to supplant Yucca Mountain. 

Unfortunately, the disjointed policies have resulted in higher 

costs. Moreover, electricity consumers are investing about $750 

million each year for fuel disposal, but none of the money is currently being spent for that purpose and used fuel sits at reactor 

sites, piling up even more costs to consumers. 

Resumption of the Yucca Mountain program remains the clearest, fastest, and most fiscally responsible way for the government 

to meet its obligation to provide disposal, to mitigate liability costs, 

and to reestablish a solid basis for the Waste Confidence Rule. Not 

to mention, it is the law. 

Politics needs to be removed once and for all from this process. 

We have got to remember that while the administrations come and 

go, used fuel is here to stay, and after three decades it is time that 

we finally achieve a permanent storage site. The NRC’s completion 

of the SER is the necessary and long-overdue next step. 

The issue has enjoyed a long history of bipartisanship and we 

will work very hard to continue that tradition until the job gets 

done. 

And I yield back my time. 

[The prepared statement of Mr. Upton follows:] 

53 

PREPARED STATEMENT OF HON. FRED UPTON

The court recently ordered NRC to proceed with the Yucca Mountain license review. And the first task in complying with the court’s mandate, and with the Nuclear Waste Policy Act, is releasing the Safety Evaluation Report. Fortunately, you 

already have the resources to proceed with its release. 

Congress needs the opportunity to examine the NRC’s long-overdue unredacted 

technical analysis, and the public who paid for it deserve to know the report’s conclusions. During the three years the administration has been suppressing this document, Congress has been denied an informed discussion about next steps. 

For quite some time, members on both sides of the aisle have been saying—with 

our words and our votes—‘‘Yucca Mountain is the law of the land.’’ A month ago, 

the DC Circuit court agreed and ordered that NRC must proceed with the license 

review. The path forward is unmistakable. Compliance with the law is not optional. 

The framework of the Nuclear Waste Policy Act is simple: electricity consumers 

pay for the cost of used fuel disposal as part of the cost of that electricity, and taxpayers pay for the disposal costs of the highlevel waste legacy of the Cold War. But 

the reality of our current situation is much different. With no progress on a permanent repository, both ratepayers and taxpayers continue to be charged, yet they 

aren’t getting what they paid for. 

DOE is spending Nuclear Waste Fund money to shut down a licensing process 

which the court has said must proceed. NRC is spending resources to revise a waste 

confidence rule as a result of the repository program being shut down. And DOE 

is spending taxpayer money on a sidetrack effort to supplant Yucca Mountain. 

Unfortunately, the disjointed policies have resulted in higher costs. Moreover, 

electricity consumers are investing about $750 million per year for fuel disposal, but 

none of the money is currently being spent for that purpose and used fuel sits at 

reactor sites, piling up even more costs to consumers. 

Resumption of the Yucca Mountain program remains the clearest, fastest, and 

most fiscally responsible way for the government to meet its obligation to provide 

disposal, to mitigate liability costs, and to reestablish a solid basis for the waste confidence rule. Not to mention, it is the law. 

Politics needs to be removed once and for all from this process. We must remember, whileadministrations come and go, used fuel is here to stay, and after three 

decades it is time we finally achieve a permanent storage site. The NRC’s completion of the SER is the necessary and long-overdue next step. 

This issue has enjoyed a long history of bipartisanship and we will work to continue that tradition until the job gets done. 

Mr. SHIMKUS. The gentleman yields back his time. The chair now 

recognizes the ranking member of the full committee, Mr. Waxman, 

for 5 minutes. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. WAXMAN. Thank you, Mr. Chairman. 

Our nuclear waste laws are not working. Instead of holding yet 

another hearing on Yucca Mountain, this committee should be 

working to reform them. In 1987, Congress designated Yucca 

Mountain in Nevada as the sole site to be considered for a permanent geologic repository for spent nuclear fuel and high-level radioactive waste. There was no plan B. This decision to short-circuit 

the site selection process was widely viewed as political and provoked strong opposition in Nevada. 

Twenty-five years later, it is clear that this top-down approach 

has broken down. President Obama wisely sought a new approach. 

He chartered a Blue Ribbon Commission to develop a new strategy 

for managing the country’s nuclear waste. Last year, we heard testimony from the co-chairs of this Blue Ribbon Commission on the 

recommendations that resulted from their 2-year effort. 

54 

In July, Secretary Moniz testified about DOE’s strategy for implementing many of those recommendations. He argued that a consent-based approach to siting was essential and his testimony 

raised a number of important policy questions, such as whether to 

create a new organization to manage the nuclear waste problem, 

how to use nuclear waste fees, and whether to construct one or 

more consolidated interim storage facilities in addition to one or 

more permanent geologic repositories. 

These are policy questions that require Congress to respond. Answering these questions requires an open mind and willingness to 

move past a narrow obsession with Yucca Mountain. But this committee seems fixated on Yucca Mountain. 

In August, the Court of Appeals issued a decision on the legality 

of the Nuclear Regulatory Commission’s decision to suspend its review of DOE’s application for a permanent repository at Yucca 

Mountain. The court ordered NRC to continue its review of the 

Yucca Mountain license application as long as it has any appropriated funds to do so. The problem with this decision is that NRC 

has just spent money so that 11 million in leftover funds is available for this purpose. This amount is not nearly enough to complete 

the review. In fact, the dissenting judge argued that the court was 

ordering NRC to ‘‘do a useless thing’’ because most of the $11 million would be spent restarting the process and the rest spent putting the materials back into storage. 

The reality is that the court decision has not really changed anything. The decision does nothing to reduce the long-standing public 

opposition to Yucca Mountain. It does not establish a consent-based 

siting process or a new organization to focus on the waste problem, 

and it does not solve the tricky funding and appropriations issues 

to make sure that the funds put aside for constructing a repository 

or storage facility can actually be used for that purpose. A court decision was never going to resolve any of these issues. 

Today, the majority has summoned NRC and DOE for another 

meeting of the Yucca Mountain fan club, but the Commission 

hasn’t had a chance to evaluate its options, develop its response to 

the court decisions, or even decide whether to appeal the decision. 

We should spend our witnesses’ valuable time discussing other 

pressing nuclear safety issues. 

Yesterday, I sent a letter requesting a hearing on the troubling 

developments at the Fukushima plant in Japan. Radioactive water 

is leaking into the ground and the Pacific Ocean. Some hotspots 

have radiation levels high enough to deliver a lethal dose in 4 

hours. The events in Japan deserve the subcommittee’s attention, 

as do NRC’s ongoing implementation of lessons learned from the 

Fukushima disaster and the closure of the San Onofre plant in 

California. 

Yucca Mountain has become a hopelessly divisive issue. The 

sooner we recognize this and start considering a truer reform, the 

sooner we will be able to fulfill our responsibility to craft a sustainable nuclear waste policy for the Nation. Thank you, Mr. Chairman. I yield back my time. 

Mr. SHIMKUS. The gentleman yields back his time. I would now 

like to recognize myself for 5 minutes. Oh, I am sorry. I am so excited about going to questions. So let me now recognize Madam 

55 

Chairman from the Nuclear Regulatory Commission, Ms. 

Macfarlane, for 5 minutes for an opening statement. 

STATEMENTS OF ALLISON M. MACFARLANE, CHAIRMAN, NUCLEAR REGULATORY COMMISSION, AND PETER B. LYONS, 

ASSISTANT SECRETARY FOR NUCLEAR ENERGY, DEPARTMENT OF ENERGY 

STATEMENT OF ALLISON M. MACFARLANE 

Ms. MACFARLANE. Thank you, Chairman Shimkus. 

Good morning, Chairman Shimkus, Ranking Member Tonko, and 

distinguished members of the subcommittee. On behalf of the U.S. 

Nuclear Regulatory Commission, I appreciate the opportunity to 

appear before you to discuss the actions the NRC is taking to comply with the court’s decision on Yucca Mountain licensing activities. 

I am also pleased to appear with Assistant Secretary Lyons. 

The written testimony I have submitted for the record contains 

information about the NRC’s response to the recent court decision 

on Yucca Mountain and the status of the NRC’s technical and adjudicatory activities at the time they were suspended in 2011. 

As you are aware, on August 13, a panel of the U.S. Court of Appeals for the DC Circuit directed the NRC to resume its review of 

the Department of Energy’s application to construct a geologic repository for high-level nuclear waste at Yucca Mountain. On August 30, the Commission issued an order requesting that all parties 

to the suspended adjudication provide their views within 30 days 

on how the NRC should continue with the licensing process. The 

Commission has also directed the NRC offices to gather pertinent 

budgeting information during this comment period. 

The Commission will make an objective, transparent, and collegial determination about the path forward based on the internal 

and external input we receive. Because the Commission has not yet 

reached its decision, it would be inappropriate for me to speculate 

about what the final direction would be. 

In March 2010, the DOE filed a motion to withdraw its license 

application, and at the end of fiscal year 2011, the NRC formally 

suspended its review. Between the time that the DOE submitted 

its application in 2008 and the suspension in 2011, the NRC staff 

conducted its regulatory review. Among other things, the staff’s 

technical actions included work on the Safety Evaluation Report, 

otherwise known as the SER, the 5 volumes of which were left in 

various stages of completion. 

Separately, on the adjudicatory side, multiple parties filed petitions seeking a hearing in this licensing proceeding and the Atomic 

Safety Licensing Board, or ASLB, granted most of the hearing requests. The focus of adjudicatory hearings is on whether the license 

applicant has demonstrated that the regulations have been met 

and the license should be issued. As the license applicant in this 

case, the DOE bears the burden of making this demonstration. 

When the adjudicatory proceeding was suspended, the ASLB 

closed out all activities associated with the hearing process on the 

DOE application. At that time, a total of 288 contentions had been 

pending resolution on the merits. To date, no evidentiary hearings 

have been held. 

56 

In addition, the NRC had created a web-based Licensing Support 

Network, otherwise known as the LSN. This is required by our regulations as a means for making all documents related to the adjudicatory proceedings available electronically to all participants. The 

NRC has preserved these records but the LSN is no longer active. 

I recognize that the completion of the 5-volume SER is of particular interest. The NRC is confronted with challenges associated 

with reconstituting a multidisciplinary team to resume the licensing process. In addition, this milestone represents one, albeit important, element in the overall required licensing process. All of the 

issues raised before the ASLB must also be resolved. 

Finally, a completed adjudicated Environmental Impact Statement and supplement is also necessary for a licensed decision. 

As this committee is aware, the NRC does not have sufficient resources to complete all the remaining steps. As part of the normal 

license review process, the NRC would also need the DOE’s participation as the applicant to address any issues the NRC identifies. 

I defer to DOE officials to address the Department’s ability to do 

so. 

Chairman Shimkus, Ranking Member Tonko, and members of 

the subcommittee, the Commission will act expeditiously to direct 

the staff on how to expend the agency’s remaining resources under 

the Nuclear Waste Fund. The Commission’s recent order will help 

ensure that our decision has the full benefit of views submitted by 

various parties to the adjudicatory proceedings. We will provide additional information to the subcommittee through monthly reports 

as our decision process continues. 

I would be pleased now to respond to your questions. 

[The prepared statement of Ms. Macfarlane follows:] 

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Mr. SHIMKUS. Thank you, Madam Chair. 

I now would like to recognize Mr. Peter Lyons, Assistant Secretary for Nuclear Energy. 

Sir, you are recognized for 5 minutes. 

STATEMENT OF PETER B. LYONS 

Mr. LYONS. Thank you, Mr. Chairman Shimkus, Ranking Member Tonko, and members of the subcommittee. I appreciate your invitation to testify at the subcommittee’s hearing today. 

The administration takes seriously its obligations to manage and 

dispose of used nuclear fuel and high-level radioactive waste, as 

emphasized in the testimony of Secretary Moniz to this subcommittee just a few weeks ago. 

President Obama has made climate change mitigation a priority 

and set a goal of reducing emissions in the range of 17 percent 

below 2005 levels by 2020. He has emphasized the important role 

of nuclear power in his all-of-the-above clean energy strategy. 

Nuclear power remains the United States single largest contributor with more than 60 percent of non-greenhouse gas emitting 

electric power generation while it has reliably and economically 

contributed almost 20 percent of electrical generation in the United 

States over the past two decades. We believe that nuclear energy 

will continue to be an important part of the Nation’s low carbon future. Finding a solution to managing and disposing of the Nation’s 

high-level radioactive waste and used nuclear fuel is a long-standing challenge. Such a solution, however, is necessary to assure the 

future viability of this important carbon-free energy supply and 

further strengthen America’s standing as a global leader on issues 

of nuclear safety and nonproliferation. 

The administration’s strategy for the management and disposal 

of used nuclear fuel and high-level radioactive waste provides a 

framework for the administration and Congress to continue to develop the path forward for disposal of nuclear waste and provides 

near-term actions to be implemented by the Department of Energy 

pending enactment of new legislation. We are facing a unique opportunity to address the needs of the back end of the nuclear fuel 

cycle by setting it on a sustainable path providing the flexibility 

needed to engage potential host communities and anticipate advancements in technology development. The administration is 

ready and willing to engage with both chambers of Congress to 

move forward. 

Since Secretary Moniz testified before this subcommittee, the 

U.S. Court of Appeals for the DC Circuit has issued a writ of mandamus ordering the NRC to resume its review of the Yucca Mountain license application. On August 30, the NRC issued an order 

inviting all participants in the license proceeding to provide by September 30 their views as to how the agency should proceed. The 

Department is carefully considering how to respond to this order. 

As we have long made clear, however, the Department will comply with NRC or judicial orders that are directed to DOE subject 

of course to the availability of appropriated funds. And as recently 

reported to the subcommittee, the Department currently has approximately 16 million in unobligated funds originally appropriated 

for Yucca Mountain licensing activities, and in addition, the DeVerDate Aug 31 2005 10:50 Jun 13, 2014 Jkt 037690 PO 00000 Frm 00068 Fmt 6633 Sfmt 6633 F:\113-79~1\113-79~1 WAYNE
65 

partment has approximately 30 million in obligated on cost of balances already committed on existing contracts. 

As we have said consistently, any workable solution for the final 

disposition of used fuel and nuclear waste must be based not only 

on sound science but also on achieving public acceptance at the 

local, State, and tribal levels. When this administration took office, 

the timeline for opening Yucca Mountain had already been pushed 

back by two decades with no end in sight. It was clear that stalemate could continue indefinitely. Rather than continuing to spend 

billions of dollars more on a project that faces such strong opposition, the administration believes a pathway similar to that that the 

Blue Ribbon Commission laid out, a consent-based solution, is one 

that meets the country’s national and energy security needs and 

has the potential to gain the necessary public acceptance. 

The administration looks forward to working with this committee 

and other Members of Congress on crafting a path forward for used 

nuclear fuel and high-level waste management and disposal. This 

progress is critical to assure that the benefits of nuclear power are 

available to current and future generations. 

And I will be pleased to answer questions that you folks may 

have. 

[The prepared statement of Mr. Lyons follows:] 

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Mr. SHIMKUS. I thank you. 

Now, before I start my questions, Madam Chairman, I am going 

to hand you four documents that I will be referring to in my questions. And I would like to recognize myself for 5 minutes. 

Madam Chairman, have you read the June 6, 2011, NRC Inspector General’s report that I referred to in my opening statement? 

Ms. MACFARLANE. Sorry. Can you repeat the question? 

Mr. SHIMKUS. It is right in front of you. Have you ever read that 

June 6, 2011, NRC Inspector General’s report that I referred to in 

my opening statement? And if you would, could you please 

read—— 

Ms. MACFARLANE. I—— 

Mr. SHIMKUS [continuing]. The highlighted excerpt from the IG’s 

report on page 28 regarding comments by the NRC’s assistant general counsel? 

Ms. MACFARLANE. Sure. You want me to read this? 

Mr. SHIMKUS. Please. 

Ms. MACFARLANE. Sure. And for the record I have not read this 

before. 

Mr. SHIMKUS. OK. Then it is instructional to do so. 

Ms. MACFARLANE. Good. She said that as of—she, I assume, is 

the assistant—— 

Mr. SHIMKUS. Assistant general counsel. 

Ms. MACFARLANE [continuing]. General counsel. She said that ‘‘as 

of July 15, 2010, Volume 3 had been provided to the NMSS director 

and was reported to be substantially complete. However, the document was undergoing additional editing and formatting, including 

a final quality control check to assure appropriate nomenclature, 

proper numbering and sequencing, and other minor administrative 

changes that may be necessary to ensure completeness and accuracy.’’ 

Mr. SHIMKUS. Thank you. So Volume 3 was substantially complete except for editing and formatting. In fact, when Chairman 

Jaczko directed the staff to stop their work on October 4, 2010, the 

NRC was within about 3 months of issuing Volume 4, within 5 

months of issuing Volume 2, and just 6 months from releasing Volume 5. And you kind of mentioned in your opening statement at 

various stages. According to the NRC’s internal schedule, which 

this committee examined in our June 2011 hearing with the IG. 

Now, I want to turn your attention to a commission memorandum and order labeled CLI–09–14, which you also have with 

you, which states, ‘‘today, we respond to appeals of the Construction Authorization Board’s first prehearing conference order.’’ 

Ms. MACFARLANE. I don’t have it I am afraid. 

Mr. SHIMKUS. Oh. OK. I am sorry you don’t have that. We can 

get it to you. 

But now, according to Federal regulations Part 2, Appendix D, 

which is the schedule for NRC to conduct the construction authorization proceeding, 150 days after the application was docketed, the 

Commission was supposed to rule on appeals for the first prehearing conference order, which we know the Commission did 

based upon CLI–09–14. Chairman Macfarlane, would you please 

read the next item, which is highlighted on the schedule, which is 

the next step to take. 

70 

Ms. MACFARLANE. Certainly, yes. So this is Appendix D to Part 

2 of the 10 CFR. And this is the schedule for proceeding with—this 

is the process laid out—— 

Mr. SHIMKUS. Right. 

Ms. MACFARLANE [continuing]. In the regulations. 

Mr. SHIMKUS. Transparent. 

Ms. MACFARLANE. Right. 

Mr. SHIMKUS. On your Web site— 

Ms. MACFARLANE. Exactly. 

Mr. SHIMKUS [continuing]. For everyone to see. 

Ms. MACFARLANE. So on day 548 the action is that the Nuclear 

Regulatory Commission staff issues the Safety Evaluation Report. 

Mr. SHIMKUS. Great. Thank you. This committee has previously 

established that NRC has enough funding to complete and release 

the SER in our February 28, 2013, so we are not going to allow you 

to commingle this financial debate based upon other activities. Our 

point is confirmed in testimony that you have the funds available 

to finish the SER. 

In our February 28, 2013, hearing you agreed that if the Court 

required NRC to move forward, you would do so. As you have just 

read, releasing the SER is the very next action for the NRC to 

take. Given that the NRC was required to begin complying with 

the writ of mandamus last week on September 3, is the NRC currently taking any action to complete the remaining SER volumes? 

Ms. MACFARLANE. We have taken action already. The Commission is operating expeditiously on this matter. We issued an order 

that requested—— 

Mr. SHIMKUS. But what have you done other than asking for 

other people to weigh in? What have you done in this month to 

start moving the SER forward? 

Ms. MACFARLANE. Thank you for the question. We have asked 

our staff to provide us with budget information. We have to understand the lay of the land in terms of the—— 

Mr. SHIMKUS. And you will be providing us monthly updates—— 

Ms. MACFARLANE. And we will provide you monthly—— 

Mr. SHIMKUS. And we will ask you to provide monthly updates 

on exactly what we are doing to move the SER forward? 

Ms. MACFARLANE. We will provide you monthly updates on 

where we are going and what we are doing. And I believe the first 

monthly update will begin in the middle of October. 

Mr. SHIMKUS. And my last question, the ‘‘transparency page’’ of 

the NRC Web site states, ‘‘the U.S. Nuclear Regulatory Commission has a long-standing practice of conducting its regulatory responsibilities in an open and transparent manner.’’ 

Ms. MACFARLANE. Um-hum. 

Mr. SHIMKUS. In that way, the NRC keeps the public informed 

of the agency’s regulatory licensing and oversight activities, which 

you stated earlier. Dr. Macfarlane, especially in light of the NRC’s 

commitment to transparency, you don’t really see a scenario where 

the NRC will decide not to release a Safety Evaluation Report, do 

you? 

Ms. MACFARLANE. You know, we are still deliberating on that so 

I can’t say—— 

71 

Mr. SHIMKUS. So you might find a way in which you might 

not—— 

Ms. MACFARLANE. I can’t say one way or the other but I—— 

Mr. SHIMKUS. But the court has said you must and we know you 

have the money. 

Ms. MACFARLANE. The court has said we must proceed with the 

licensing. 

Mr. SHIMKUS. And you have already testified that you have the 

money—— 

Ms. MACFARLANE. We—— 

Mr. SHIMKUS [continuing]. For the Safety Evaluation Report. 

Ms. MACFARLANE. We testified, I believe it was last spring— 

Mr. SHIMKUS. You testified—— 

Ms. MACFARLANE. Yes, that there—— 

Mr. SHIMKUS [continuing]. That you would comply with the law. 

Ms. MACFARLANE. I certainly did. 

Mr. SHIMKUS. And you would submit the Safety Evaluation Report, and you also testified that we have the money to do so. So 

the question is you don’t see any scenario that you would not do 

this? 

Ms. MACFARLANE. We are still taking views from the parties—— 

Mr. SHIMKUS. So you do see a scenario where you may not do 

this? 

Ms. MACFARLANE. We are still taking views from the parties and 

we will—— 

Mr. SHIMKUS. Madam Macfarlane, are you going to comply with 

the law based upon your previous statements and the fact that you 

have money available to do so? 

Ms. MACFARLANE. Of course we will comply with the law. 

Mr. SHIMKUS. Thank you very much. 

I would like to now recognize Mr. Tonko for 5 minutes. 

Mr. TONKO. Thank you, Chair Shimkus. 

I would like to thank Chair Macfarlane and Dr. Lyons for appearing before the subcommittee today, but I regret that we didn’t 

wait a few weeks to let NRC and DOE take some time to figure 

out a path forward in light of the Court of Appeals decision. I 

therefore ask about the status of the proceedings so that Members 

will have a better sense of what questions you are able to answer 

at this time. 

On August 30, NRC issued an order inviting all participants to 

the Yucca Mountain proceeding to provide their views as to how 

the Commission should continue with the licensing process. This is 

an opportunity for both the opponents and supporters of Yucca 

Mountain to make suggestions to the Commission about how they 

should proceed. The deadline for providing their views, I believe, is 

September 30. 

So, Chair Macfarlane, are you able to testify today about the 

likely outcome of that stakeholder process? 

Ms. MACFARLANE. No. 

Mr. TONKO. And, Dr. Lyons, has DOE responded to this order 

yet? 

Mr. LYONS. No, Mr. Tonko. 

Mr. SHIMKUS. Is your mike on or is it pulled close enough to you? 

Mr. LYONS. I am sorry. Is this better? 

72 

Mr. SHIMKUS. Yes, sir. 

Mr. LYONS. OK. Mr. Tonko, we are awaiting action by the NRC 

with regard to their decision before we decide how to proceed with 

the licensing effort. 

Mr. TONKO. OK. Thank you. The Commission also directed the 

NRC staff to gather pertinent information, budget information, 

during this 30-day comment period. There is only $11 million available so you will need to know what the price tag would be for the 

range of possible activities. Chair Macfarlane, are you able to give 

definitive estimates today about the cost of various options without 

the budget information that is currently being developed? 

Ms. MACFARLANE. No, I am not. That is why we asked the staff 

to collect the information for us. 

Mr. TONKO. Thank you. And how long after that September 30 

deadline will it take for NRC to compile all of the views and 

produce a plan for responding to that court decision? 

Ms. MACFARLANE. I am not certain at this point in time but we 

will endeavor to work as expeditiously as possible. 

Mr. TONKO. I thank you for that. It makes sense for NRC to 

await the outcome of this public comment process before reaching 

conclusions about the very best way to spend the agency’s limited 

resources. You should get the facts and do the stakeholder outreach 

before making decisions. 

So the story of the Yucca Mountain repository is a story of one 

group of stakeholders believing that they could ignore the concerns 

of another group of stakeholders. That is a mistake we do not want 

to repeat. 

There is the separate question of whether the Court of Appeals 

decision will be appealed. Chairman Macfarlane, has a window for 

NRC to appeal the court’s decision closed? 

Ms. MACFARLANE. I am sorry. Can you repeat the question? 

Mr. TONKO. Sure. Has the window for NRC to appeal the court’s 

decision closed? 

Ms. MACFARLANE. No, it has not. 

Mr. TONKO. OK. And will you be able to share NRC’s plans to 

appeal or to not appeal the decision with us today? 

Ms. MACFARLANE. No, I cannot. 

Mr. TONKO. Other parties may choose to appeal. Is that correct? 

Ms. MACFARLANE. That is correct. Other parties may choose to 

appeal. 

Mr. TONKO. So we don’t even know whether the Court of Appeals 

decision will be the final answer in this case? 

Ms. MACFARLANE. That is correct. 

Mr. TONKO. In many ways, the Department of Energy’s planning 

is contingent upon NRC determining its next step. Dr. Lyons, what 

actions can DOE take with regard to the license application before 

NRC determines how to proceed? 

Mr. LYONS. I am sorry. Could you repeat that question? I am 

not— 

Mr. TONKO. Sure. What actions can DOE take with regard to the 

license application before NRC determines how to proceed? 

Mr. LYONS. We really are in a position where we must await the 

actions by the NRC, understand their path forward, and what we 

73 

may be required from the Department of Energy, and only then can 

I answer that question. It would be premature now. 

Mr. TONKO. Thank you. And, Chair Macfarlane, would you have 

been in a better position to answer the subcommittee’s questions 

about implementation of the court’s order in a few weeks? 

Ms. MACFARLANE. In a few weeks, yes. 

Mr. TONKO. And, Dr. Lyons, what about you? 

Mr. LYONS. Yes. Once we understand the path forward identified 

by the NRC, we can then evaluate how we will respond. 

Mr. TONKO. Thank you. Well, I hope that members of the subcommittee will be mindful of the position have placed witnesses in 

by insisting that they testify today rather than in a few weeks. 

Members want to know what the plan is for responding to the 

court’s order but the plan hasn’t been developed yet. The court 

issued its order less than 2 weeks ago and the agencies need to examine the options and the cost of those options to see what can be 

done with the limited funds available. 

These are questions that will be answered in due time I am convinced. Unfortunately, it seems obvious that we won’t get those answers today. 

And with that, I will yield back, Mr. Chair. 

Mr. SHIMKUS. The gentleman yields back his time. I would just 

remind my colleague that they have had 30 days since the court 

order, and we can always have them come back, which I am sure 

they would be happy to do so. 

Mr. TONKO. I am talking about valuable use of their time in a 

way that brings into working order all of the requirements that 

have been asked. 

Mr. SHIMKUS. And I am talking about oversight by the legislative 

branch over the executive branch and independent agencies. 

I yield now 5 minutes to Mr. Gingrey for his statement. 

Mr. GINGREY. I thank the chairman for yielding and I agree with 

him completely the importance of the oversight of the legislative 

branch over the executive branch, and as he just pointed out, you 

have had 30 days. And why should we waste additional time, 

therefore the timeliness of this hearing. And I do appreciate both 

of you being here. 

I strongly agree that the NRC should immediately work to issue 

the Safety Evaluation Report. The cost of completing and publicly 

releasing the SER has been estimated to be $6.5 million. Now, that 

seems a little high to me, but as I understand it, the Safety Evaluation Report is comprised of 5 volumes. Volume 1 was completed 

and released so that means there are 4 volumes left, as pointed out 

by Chairman Shimkus. Volume 3 was reportedly substantially complete. On page 27, the Inspector General’s June 6 report, the IG report that the NMSS director believed that minimal resources were 

needed to complete the review process and issue Volume 3. She 

also commented that by September 30, 2010, NRC had all the information it needed from DOE to complete the SER. 

To Chairman Macfarlane, please answer yes or no, Chairman 

Macfarlane. So Volume 3 is substantially complete and requires 

minimal resources, correct? Yes or no? 

Ms. MACFARLANE. I have not seen Volume 3 and I understand it 

is in some stage of completion but I do not know the entire stage 

74 

of completion. I do not know how much, how many resources it will 

take to complete. That is why we have asked the staff to go and 

make some estimates— 

Mr. GINGREY. Yes, but therefore, it shouldn’t take long to issue 

that one. Is that also correct? 

Ms. MACFARLANE. It depends largely on what the staff says it 

needs. I think we need to understand something to begin with here 

that the staff that we had originally assigned to work on the Safety 

Evaluation Report have since been reassigned; a number of them 

have retired. And so it will take some time to reassemble this 

group. Being mindful that there are a number of staff who are 

working now on mission-critical issues and we need to be careful 

that we don’t— 

Mr. GINGREY. Well, it seems—— 

Ms. MACFARLANE [continuing]. Lose that safety— 

Mr. GINGREY. Madam Chairman, it sounds like what you are 

saying is it depends heavily on whether they are go-getters or footdraggers, this replacement team that you are talking about. 

Dr. Lyons, yes or no, is it your understanding that completing 

the SER doesn’t require any additional information by the Department of Energy, thereby not costing the Department of Energy, 

DOE, any additional resources? Yes or no? 

Mr. LYONS. I can’t respond to that, sir, because it would depend 

on whether the NRC asks us additional questions if they were to 

choose to move in that direction. I haven’t seen the SER either and 

I have no idea what NRC may request of us. 

Mr. GINGREY. Well, during the June 14, 2011, hearing, this committee examined the NRC internal schedule for releasing the SER 

volumes. When former Chairman Jaczko shutdown the staff’s review October the 4th, 2010, Volume 2 was about 5 months for 

being published. Now, this was 2010. Volume 4 was a little over 

3 months from being published, and Volume 5 was less than 6 

months from being published. That is a fact. 

Chairman Macfarlane, given these volumes were nearly ready 

and do not require any input from DOE, why should it cost $6.5 

million to complete and publish them? 

Ms. MACFARLANE. I don’t know how much it will cost to complete 

and publish these. That is why we have asked the staff to give us 

estimates of what they need in terms of resources and— 

Mr. GINGREY. Well, do you know this, Dr. Macfarlane? How 

much money will be spent seeking comments from the parties? 

Ms. MACFARLANE. A de minimis amount. 

Mr. GINGREY. Does that money come from the Nuclear Waste 

Fund? 

Ms. MACFARLANE. I am going to take that one for the record just 

to be sure. 

Mr. GINGREY. If you will get back to me on that—— 

Ms. MACFARLANE. Sure. 

Mr. GINGREY [continuing]. I would greatly appreciate it. 

And lastly, Dr. Macfarlane, will you commit to having the Commission approve all NWF expenditures, Nuclear Waste Fund expenditures? 

Ms. MACFARLANE. Have the Commission— 

75 

Mr. GINGREY. Will you commit to having the Commission approve all Nuclear Waste Fund expenditures? 

Ms. MACFARLANE. I am going to have to take that one for the 

record, too. I need to find out what the required process is in regulations and in the law. 

Mr. GINGREY. Well, I know you can’t get that to me in 2 seconds, 

but I would very much appreciate that information. 

Ms. MACFARLANE. Absolutely. 

Mr. GINGREY. I yield back. 

Mr. SHIMKUS. The gentleman yields back the time. 

The chair now recognizes the chairman emeritus, Mr. Dingell, for 

5 minutes. 

Mr. DINGELL. Chairman, I commend you for the hearing. I thank 

you for the recognition. My questions will require mostly yes-or-no 

answers. 

And I want to begin by saying we have a fine mess on our hands. 

The taxpayers are paying, ratepayers are paying, money is being 

dissipated, work that should be done is not being done. 

Madam Chairman, I don’t blame you for this. This antedates 

your work and a lot of it originates in a place in the United States 

Senate. 

In any event, according to a recent ruling by the DC Circuit 

Court in testimony you have given to this subcommittee, NRC has 

approximately $11 million in funding for the licensing review process. Since you last testified before this subcommittee in February, 

has the NRC spent any of these funds? Yes or no? 

Ms. MACFARLANE. Since the court decision, the NRC spent a de 

minimis amount. We are now focused on going forward in determining how to spend that remaining amount. 

Mr. DINGELL. Would you submit to us a statement of how much 

has been spent and how much remains in that fund? 

Now, Madam Chairman, I understand NRC has an open comment period soliciting feedback on how the Commission should 

move forward in light of the DC court’s recent decision. One major 

step in the process is completion of the Safety Evaluation Report. 

One of the 5 volumes has already been completed and it is my understanding that the technological evaluation reports were completed on 3 of the 4 remaining volumes. Does NRC have staff in 

place to that is qualified to take these technical evaluations and 

complete the safety evaluations with the appropriate recommendations? Yes or no? 

Ms. MACFARLANE. We don’t have them all in place now. We are 

asking the staff to get back to us about staffing and resource needs. 

Mr. DINGELL. Would you submit to us, please, a statement of the 

status of those matters for the record? 

If NRC were only to focus on completion of the Safety Evaluation 

Reports, do you believe you have enough funds to complete the 

work on the reports? Would you please answer yes or no? 

Ms. MACFARLANE. As referenced earlier in previous testimony, 

we said that it would cost to 6.5 million to complete the SER— 

Mr. DINGELL. So the answer is—— 

Ms. MACFARLANE [continuing]. But we have asked our staff to 

update that number. 

76 

Mr. DINGELL. Would you submit us a statement of the status of 

those funds, please? 

Now, Mr. Lyons, is DOE collecting fees into the Nuclear Waste 

Fund? Yes or no? 

Mr. LYONS. Yes, the funds continue to be— 

Mr. DINGELL. Thank you. The DC Circuit Court decision in 2012 

ordered DOE to reevaluate the fee assessment. Since Yucca Mountain facility has not moved forward in recent years and there is 

still no statutorily alternative site for a permanent high-level waste 

repository, has DOE considered whether it should continue to assess the fee? Please answer yes or no. 

Mr. LYONS. Mr. Dingell, as Secretary Moniz discussed when he 

was with this subcommittee, the fees continue to be collected because they— 

Mr. DINGELL. So—— 

Mr. LYONS [continuing]. Reference a service of disposal of the 

used fuel. 

Mr. DINGELL. Is that a yes or no, sir? My time is very limited. 

Please, yes or no? To the question, yes or no? 

Mr. LYONS. Again, these— 

Mr. DINGELL. OK. Would you please submit additional information on that matter for purposes of the record? 

Now, because the Federal Government has not upheld its responsibility to provide a permanent high-level nuclear waste repository, 

it is my understanding that orders of nuclear facilities are suing 

the Federal Government for compensation to store waste on sites 

and locations across the country. According to the February 2012 

report by CRS, there has been over $2 billion in awards and settlements as a result of these claims. These payments come from the 

judgment funded by taxpayers’ dollars. The Department of Justice 

has spent approximately 200 million defending the government 

against these claims. 

Now, Madam Chairman, I urge NRC to focus on the completion 

of the Safety Evaluation Reports. Should the reports determine 

that the Yucca Mountain facility is appropriate, hopefully opponents will allow the process to move forward. Should the reports 

deem the Yucca Mountain unsafe, I think this committee and I are 

prepared to work with all of our colleagues to amend the Nuclear 

Waste Policy Act and to find a viable path forward in order to deal 

with the safe disposition of nuclear waste. We have to find a way 

forward and I believe that the completion of the Safety Evaluation 

Report will significantly help us follow the path forward. Will you 

please comment on that with a yes or no? Do you agree or not? 

Ms. MACFARLANE. Completion of— 

Mr. DINGELL. Just yes or no. 

Ms. MACFARLANE. Completion of the Safety Evaluation Report is 

one step in the overall process and we are already receiving other— 

Mr. DINGELL. Madam Chairman, I am going to ask you just yes 

or no and then I am going to ask you to submit a further statement 

for the record on the matter. 

Ms. MACFARLANE. It is a complex situation. I can’t answer yes 

or no. 

77 

Mr. DINGELL. All right. Well, this demonstrates what a magnificent mess we have here, and I don’t blame you, Madam Chairman, 

but you sure have got to get busy to get it fixed. 

Thank you, Mr. Chairman. 

Mr. SHIMKUS. And I thank my colleagues. 

The chair now recognizes the gentleman from Kentucky, Mr. 

Whitfield, for 5 minutes. 

Mr. WHITFIELD. Chairman Shimkus, I want to thank you very 

much for having this important hearing. 

You know, my humble opinion, the Obama administration has 

really established a pattern of disregarding laws that they do not 

agree with. 

Now, in 1987 Congress passed the Act identifying Yucca Mountain as a primary national repository site. Prior to that, DOE 

looked at nine sites, but in ’87 Congress acted. And in this decision 

I would like to just read some excerpts from this decision that was 

just issued. ‘‘The Nuclear Regulatory Commission has continued to 

violate the law governing the Yucca Mountain licensing process. 

The statutory deadline for the Commission to complete the licensing process and approve or disapprove the Department of Energy’s 

application has long since passed. Yet the Commission still has not 

issued the decision required by statute. Indeed by its own admission the Commission has no current intention of complying with 

the law. Rather, the Commission has simply shut down the review 

and consideration of the process.’’ 

Now, from a taxpayer standpoint, $15 billion has been spent on 

Yucca Mountain, and in 1983, the government entered into contracts with the 104 nuclear power plants roughly that the government would take possession of that material, that waste material 

in 1998. That time has come and gone and the Federal Government 

was sued because they did not take possession because Yucca 

Mountain was not completed. And so in addition to the $15 billion 

spent on Yucca Mountain, we now have judgments that, by 2020, 

is supposed equal $19 billion because the government cannot meet 

its contractual obligation. 

And so here the taxpayers are with a $17 trillion Federal debt, 

34 billion spent on Yucca Mountain, and the court is saying that 

the Nuclear Regulatory Commission, which you are now responsible for, Chairman Macfarlane—you have been there for a year 

and a half—and I don’t blame you for this because you did not take 

the action that precipitated these lawsuits, but with all of this 

money spent and with a clear violation of the Federal law, I would 

hope that you and Mr. Lyons—Mr. Lyons has been at the Department of Energy since the beginning of the Obama administration, 

I believe. I hope that you will do everything possible to expedite 

this, not try to rewrite the law, not try to change other people’s 

opinion, but make a decision based on the safety issues. And even 

the court says there is $11 million available right now to start this 

process. 

And so can you commit to the committee that you intend to move 

forward to try to obey the law? 

Ms. MACFARLANE. Certainly. We commit to moving as expeditiously as possible. 

78 

Mr. WHITFIELD. And I hope that you will direct your staff to do 

the same. 

Ms. MACFARLANE. We have already done so. 

Mr. WHITFIELD. Do you have any comments, Mr. Lyons? 

Mr. LYONS. I would only comment that the dollar values that you 

cite are precisely the reason why the administration feels strongly 

that it is important that we move forward on a workable solution 

as opposed to spending still more money on an unworkable solution. 

Mr. WHITFIELD. Well, I mean it is a Federal law right now that 

Yucca Mountain is the designated site. So I don’t think that you 

all have a right to go around and—I mean, I know what the Blue 

Ribbon Commission said. They want to just start all over again, 

but we have a Federal law on the books. The courts have said that 

it needs to be enforced and the court has said that the Nuclear 

Regulatory Commission is violating the law. So with all due respect 

to the great work that you all do, the great responsibility that you 

have, I do think you also have a responsibility to be leaders and 

enforce the law and try to protect the taxpayers’ money. 

And the President frequently talks about an all-of-the-above policy. I support an all-of-the-above energy policy. And yet what he is 

doing in the area of nuclear would indicate that he is not really 

committed to that and we know that you cannot build a new coalpowered plant in America, the only country in the world where you 

cannot do so. So how can he say that he is for an all-of-the-above 

energy policy? 

And my time is expired. 

Mr. SHIMKUS. The gentleman’s time is expired. 

The chair now recognizes the ranking member of the full committee, Mr. Waxman, for 5 minutes. 

Mr. WAXMAN. Thank you very much, Mr. Chairman. 

I would like to ask Chairwoman, Chair Macfarlane? 

Ms. MACFARLANE. Chairman. 

Mr. WAXMAN. Chairman Macfarlane, you have testified today 

that the NRC is still formulating its response to the recent court 

ruling and that it is hard to discuss a plan that isn’t yet created. 

Therefore, before turning to Yucca Mountain, I want to ask you 

and take this opportunity to inquire about some issues that are important to the people of California about recent events at the damaged Fukushima nuclear power plant in Japan. 

Over the last several months, news reports have painted a troubling picture of the situation at Fukushima. The Tokyo Electric 

Power Company, TEPCO, announced that pits and tanks holding 

vast amounts of radioactive wastewater had begun leaking. Contaminated water is flowing into the Pacific Ocean at the rate of 

about 300 tons per day. At the same time, Japanese officials have 

said that TEPCO may need to release contaminated water from the 

storage tanks into the ocean. Some news reports have raised concerns about whether radiation entering the Pacific Ocean from 

Fukushima could eventually reach the shoreline of the United 

States and its territories. 

Chairman Macfarlane, what impact if any will the contaminated 

water from Fukushima have on America’s West Coast? What assurances can I give my constituents at this time? 

79 

Ms. MACFARLANE. Thanks for the question. This is an important 

issue and I know it has been in the news a lot lately so I know 

it is of concern to many people. 

Contaminated water has essentially, my understanding, been 

leaking from the Fukushima site since the beginning of the accident. One thing people should keep in mind is that the largest releases of contamination of radioactive materials were 2 1⁄2 years 

ago, and they were significantly larger than anything that is being 

released on a daily basis now. But the good news is the Pacific 

Ocean is very large and any radionuclides that get into the Pacific 

Ocean near Fukushima will be diluted by many thousands of times 

by the time they get anywhere near the West Coast of the United 

States. And so in the end there will be very little harm or negligible harm to the West Coast of the United States. So people in 

the U.S.— 

Mr. WAXMAN. Well, that is comforting. 

Ms. MACFARLANE. —can remain assured that they will be OK. 

Mr. WAXMAN. It appears that TEPCO did not adequately anticipate the challenges of managing vast amounts of radioactive wastewater over a long period of time. This raises questions about additional lessons that we can learn from the Japanese experience. 

What is NRC’s Fukushima task force doing to review the wastewater challenges at the Fukushima plant and apply any lessons 

learned to U.S. facilities? 

Ms. MACFARLANE. Well, we are certainly and we have been taking lessons through the entire accident and now as well, and my 

understanding is that some of our research folks are looking into 

the situation of dealing with large volumes of contaminated water 

after an accident now. 

Mr. WAXMAN. So you are continuing to prioritize preventing an 

accident at U.S. facilities but NRC has tasked some researchers 

with a question of how better to handle large primes of radioactive 

wastewater? 

Ms. MACFARLANE. Yes. 

Mr. WAXMAN. Is that your position? 

Ms. MACFARLANE. Yes. We are—— 

Mr. WAXMAN. OK. Thank you. 

Yesterday, Ranking Member Tonko and I sent a letter to Chairman Upton asking that the committee schedule a hearing to review 

the recent events at Fukushima and the lessons we can learn from 

them, and I am hopeful we can agree that this is a topic worthy 

of bipartisan examination. 

Turning back to Yucca Mountain, the majority called this hearing to examine the recent court decisions requiring NRC to restart 

the license review process but the court didn’t resolve the most fundamental outstanding question about the future of this possible 

waste repository. 

Dr. Lyons, did the court decision alter the State of Nevada’s longstanding opposition to the project? 

Mr. LYONS. Well, I am not sure I am the best equipped to answer 

that question, sir, but not to my knowledge. 

Mr. WAXMAN. OK. The President’s Blue Ribbon Commission recommended that Congress create a new organization devoted enVerDate Aug 31 2005 10:50 Jun 13, 2014 Jkt 037690 PO 00000 Frm 00083 Fmt 6633 Sfmt 6633 F:\113-79~1\113-79~1 WAYNE
80 

tirely to managing the nuclear waste problem. Did the court decision determine what that organization should look like? 

Mr. LYONS. The court decision did not address that, sir. 

Mr. WAXMAN. We also need to fix several funding and appropriations problems to make sure that the funds put aside for constructing a repository or storage facility can actually be used for 

that purpose. Did the court resolve those issues? 

Mr. LYONS. No, sir. 

Mr. WAXMAN. The court decision doesn’t resolve any of the major 

policy questions facing this committee. We need to heed the advice 

of the Blue Ribbon Commission: adopt a new consent-based approach to tackling the Nation’s nuclear waste problem. Nothing in 

the court decision changes the fact that Congress needs to act in 

a bipartisan manner to accomplish this. 

Thank you, Mr. Chairman. 

Mr. SHIMKUS. The gentleman’s time is expired. 

The chair now recognizes the gentleman from Ohio, Mr. Latta, 

for 5 minutes. 

Mr. LATTA. Thank you, Mr. Chairman. 

And thank you very much to our witnesses for being with us 

today. I greatly appreciate hearing your testimony today. 

Chairman Macfarlane, if I could pose my first question to you, 

and if I may, I am going to have to read through a little bit here. 

But on April 11, 2011, from an order from the Nuclear Regulatory 

Commission’s Atomic Safety and Licensing Board, it stated that in 

order to fulfill the responsibility to preserve the document discovery materials residing on the LSN, a system mandated by 10 

CFR Part 2, Subpart J, et cetera, it said the board directs pursuant 

to its authority under the 10 CFR that each party shall take the 

following actions: preserve all LSN documents in PDF format, submit its LSN document collection together with the associated biographic files to the NRC Office Of Secretary on optical storage 

media specified in guidance for electronic submissions to the Commission for the inclusion in the docket, and then also for large collections taking more than a month to complete the PDF to submit 

those documents converted a little bit later. But it says that once 

received, the Secretary shall install the documents and associated 

biographic information into a separate LSN docket library on 

ADAMS for public access via www.NRC.gov. 

Then a little later at another date it states that on May 12, 2012, 

an oral argument from the Aiken County case, one of the attorneys 

for the Commission stated, ‘‘in other words, we would, presuming 

that we would order us to take back up we may not activate the 

LSN; we may simply treat the case as a larger paper case.’’ 

I guess, Chairman Macfarlane, my question then is if I understand this correctly, the LSN documents are available to all parties 

and the public at this time, and hence, the LSN would not need 

to be immediately reconstituted prior to the resumption of the proceeding. Is that correct? 

Ms. MACFARLANE. The LSN documents are not available at this 

point in time. They are in a safe from my understanding. And so 

the LSN network would have to be reconstituted as part of moving 

forward. That is required in our regulations. 

81 

Mr. LATTA. OK. But could you explain that different then from 

this order from April 11, 2011? If these—— 

Ms. MACFARLANE. I am going to have to take that for the record 

so I can see that order and give you a proper—— 

Mr. LATTA. OK. I tell you what, we will get this to you because 

we need to get that answered because it is saying here that once 

received, and then when they are talking about the NRC Office of 

the Secretary shall install the documents and associated biographic 

information into a separate LSN docket library of ADAMS for public access via www.NRC.gov. 

Ms. MACFARLANE. Yes. 

Mr. LATTA. So we will get this to you, but if we will get an answer to that, please. 

Ms. MACFARLANE. Absolutely. 

Mr. LATTA. And right now with the DOE’s NRC action shutdown, 

the Yucca Mountain program and the license review triggered the 

2 mandamus cases and the waste case before the DC Circuit Court, 

Dr. Lyons, if I could ask, since DOE has really caused, you know, 

the mess that is on out there by attempting to withdraw the license 

and the court has now corrected it, will you commit to this committee that DOE will not attempt to slow or obstruct the resumption or pace of the licensing review? 

Mr. LYONS. At this point I can commit that we will continue to 

evaluate the NRC’s decision and formulate a path forward. And I 

am not sure I heard all of your question. 

Mr. LATTA. OK. But the question is when you say that you are 

going to commit to go forward, but you are not going to be slowing 

the process down to get to this decision, are you, where we are supposed to be? 

Mr. LYONS. We have committed to respond to NRC requests 

within available appropriations. 

Mr. LATTA. Well, we really want to make sure because there is 

a lot of money being spent out there and it is taxpayers’ dollars, 

and we want to make sure that this is not slowed or obstructed and 

we want to make sure that the pace is going on in the licensing 

review. So that is one of the things we would like to see that is 

committed from DOE. 

And, Mr. Chairman, I see my time is expired and I yield back 

the balance of my time. 

Mr. SHIMKUS. The gentleman yields back his time. 

The chair now recognizes the gentleman from Texas, Mr. Green, 

for 5 minutes. 

Mr. GREEN. Chairman Macfarlane, in the record of the hearing 

before this subcommittee on February the 28th, you and your fellow commissioners committed to honor the decision of the Court of 

Appeals for the DC Circuit Court concerning resumption of Yucca 

Mountain licensing process. Recognizing that commitment, the 

court statement regarding the need to comply with Congress direction on the Nuclear Waste Policy Act, do you believe the agency 

should appeal the decision? 

Ms. MACFARLANE. I can’t say at this time. The period for seeking 

review hasn’t expired so it wouldn’t be appropriate for me to comment. 

82 

Mr. GREEN. Besides the August 30 commission order, what actions have been taken so far by the agency to respond to the court’s 

decision? 

Ms. MACFARLANE. We have issued an order asking the parties 

and participants to comment on how to proceed, and we have also 

requested from the staff budget information on how much it would 

cost to move forward to expend the 11 million. 

Mr. GREEN. The Safety Evaluation Reports will inform the public 

and Congress of the results of NRC’s extensive review of the license 

application. A number of entities have recommended that completion and publication of the SER should be the NRC’s first priority. 

What is your view? 

Ms. MACFARLANE. It is a significant part of the process that we 

talked about earlier that is set out in Appendix D, but it certainly 

doesn’t constitute the entire licensing decision. The SER will not in 

and of itself provide a licensing decision. We have to also complete 

the adjudicatory hearing and the Commission has to hear contested 

and uncontested issues. 

Mr. GREEN. OK. In my opening statement I was concerned about 

the funding. Parties in the Yucca Mountain licensing procedures 

have suggested the NRC reconstitute the hearing boards and restore the licensing network as a first priority. In light of the fact 

that their only remains 11.1 million available to NRC’s review of 

the Yucca Mountain application, do you believe that implementing 

these suggestions would deplete those available funds without appreciably advancing the agency’s review and adjudication of the application? 

Ms. MACFARLANE. It would be inappropriate for me to comment 

now because we are still collecting information on this. 

Mr. GREEN. OK. Could you, when the time comes—I know if we 

could get our committee—— 

Ms. MACFARLANE. Certainly. The Commission will make all its 

decisions public. 

Mr. GREEN. Previously, NRC estimated 6 to 8 months was needed to complete all the volumes of the SER at the cost of 6.5 million. 

The budget is within the appropriated unobligated funds now available at the Commission. What steps have you taken to evaluate the 

basis for the 6.5 million estimate? Do you believe that 6.5 million 

is accurate? 

Ms. MACFARLANE. We have asked the staff to go back and give 

us an updated estimate of that, and so we are waiting to see what 

the staff says. 

Mr. GREEN. Are there any other efficiencies that the agency can 

adopt to it reduce the cost of completing the SERs without sacrificing their quality? 

Ms. MACFARLANE. Well, we are in the process of collecting all 

that information now, so we will have a better answer for you in 

some time. 

Mr. GREEN. What schedule do you believe is reasonable for the 

NRC to complete and publish the SERs? 

Ms. MACFARLANE. Again, that is information that we are collecting right now. I can’t comment. 

Mr. GREEN. Given the import of the SERs as a part of the record, 

the NRC’s adjudicatory proceedings, would you agree that the reVerDate Aug 31 2005 10:50 Jun 13, 2014 Jkt 037690 PO 00000 Frm 00086 Fmt 6633 Sfmt 6633 F:\113-79~1\113-79~1 WAYNE
83 

sumption of the hearings should occur only after the completion of 

the SERs? 

Ms. MACFARLANE. Again, we have to hear from all of the parties 

and participants to the proceeding and we have to get information 

from the staff on resources required. 

Mr. GREEN. The Yucca Mountain license application utilized the 

total system performance assessment as a methodology to assess 

the long-term performance of the repository’s acceptability. Chairman Macfarlane, before you became a member of the Commission, 

you were critical of that methodology. Can you assure the public 

that you can objectively evaluate the license application and include its reliance on the TPSA? 

Ms. MACFARLANE. Absolutely. I have an open mind on this matter—on the Yucca Mountain licensing matter and I will maintain 

an open mind on it. 

Mr. GREEN. When do you expect to be able to issue an order or 

a staff requirements memorandum announcing the Commission’s 

response to the court’s decision? 

Ms. MACFARLANE. Well, we already did issue one order—— 

Mr. GREEN. OK. 

Ms. MACFARLANE [continuing]. Asking the parties to comment 

and requesting the staff to collect budget information, and then the 

next steps I can’t tell you exactly when we will—— 

Mr. GREEN. So—— 

Ms. MACFARLANE [continuing]. But we are working as expeditiously as possible. 

Mr. GREEN. So there is no time frame on the staff reporting 

back? 

Ms. MACFARLANE. The staff will report back and the parties will 

comment by the end of September. September 30 I believe is the 

close date for that information. 

Mr. GREEN. OK. Mr. Chairman, thank you. Obviously, we need 

some more hearings. 

Mr. SHIMKUS. Thank you. 

And now the chair now recognizes the gentleman from West Virginia, Mr. McKinley, for 5 minutes. 

Mr. MCKINLEY. Thank you, Mr. Chairman. 

Several questions. One is I just was verifying the quote that was 

given on August 21. It was kind of a revealing quote from Senator 

Reid when the question was raised to him with a news broadcast 

in Nevada about the thoughts of the court decision. His response 

was ‘‘as a result of political compromise, we put some really bad 

judges on the circuit court and they produced a 2 to 1 decision requiring the Nuclear Regulatory Commission to license Yucca Mountain. Their opinion means nothing. Yucca Mountain is dead. It is 

padlocked. Nothing is going to happen there.’’ 

Now, we have had 3 votes in Congress over the last year on a 

vote of 4 to 1 ratio saying we want something to happen. Well, was 

Harry Reid correct that nothing is going to happen? It means nothing for the vote of the court and the vote of Congress to take this 

action? Either one of you. 

Ms. MACFARLANE. I can’t comment on the Senator’s statement. 

Mr. MCKINLEY. You can comment your opinion. Was he correct? 

I am just asking, was he correct? 

84 

Ms. MACFARLANE. I can’t comment on the Senator’s statement. 

Mr. MCKINLEY. You don’t know whether he was correct? 

Ms. MACFARLANE. I can’t comment on the Senator’s statement. 

Mr. MCKINLEY. OK. I hear you. Mr. Lyons? 

Mr. LYONS. Well—— 

Mr. MCKINLEY. Was he correct? Yes or no? 

Mr. LYONS. I certainly can’t comment on what the Senator said. 

That is simply not appropriate. However, the court decision stands 

and we are awaiting—— 

Mr. MCKINLEY. Well, if you can’t—— 

Mr. LYONS [continuing]. The NRC’s review of the court decision. 

Mr. MCKINLEY. I know your answer is on the thing but I was 

just curious to see if you would say it aloud. 

But let’s go back to this. Under the regulations, there was apparently an ability that the other States could override Nevada or that 

Congress could override Nevada, so I am just curious when they 

listen to the State of Nevada and this was a decision made and has 

been endorsed now by congressional votes that there is support, did 

you go back to the other 34 States and ask them their opinion before, Mr. Lyons? 

Mr. LYONS. I have to confess that I am not sure I am following 

the line of your questioning, sir. 

Mr. MCKINLEY. Well, the issue comes down to whether or not the 

definition of public support. If the public support of Nevada overrides the—I believe there are 34 other States that have spent nuclear fuel rods. Did you go back and ask them whether or not they 

concurred with this decision to stop the movement in Yucca Mountain? I think the answer is yes or no. Did you go to the other 34 

States and ask for their input? 

Mr. LYONS. The administration has stated on many occasions—— 

Mr. MCKINLEY. Yes—— 

Mr. LYONS [continuing]. A workable solution is a path forward. 

Mr. MCKINLEY. So I am going to assume unless you say otherwise the answer is no. You only went to Nevada with that. 

Can you tell me, if the Congress has acted this way, what authority do you have just to deem away an act of Congress that we 

are not going to do this, that we are not going to proceed? The 

court has had to step in and make you do it. 

Mr. SHIMKUS. If the gentleman would yield. And to the members 

of the panel, you better take the questions seriously because he is 

asking a question why didn’t you comply with the law? That is the 

basic question. If you are confused about what Mr. McKinley is 

asking, he is asking why the NRC walked away without a public 

hearing and not complied with the law and he is asking you for the 

DOE perspective why did the administration not comply with the 

law? And I think that is a very serious charge. 

Ms. MACFARLANE. Let me say from the NRC’s perspective that 

we of course intend to follow the law. We are now following the 

law. We are moving forward. We are forward-focused on this. 

And in terms of your question of did you ask other States, we 

have asked all parties to the legal proceeding and participants to 

comment now moving forward. 

Mr. MCKINLEY. So the other States, they have agreed? 

Ms. MACFARLANE. It is up to them whether they comment. 

85 

Mr. MCKINLEY. OK. Just one in closing in a few seconds I have 

left on it, there was testimony earlier about in Michigan and elsewhere but at least in Michigan there was some $600 million has 

been spent in the Yucca Mountain project out there. If we don’t advance this, are they going to be reimbursed? Or what did the State 

of Michigan get for the $600 million that the taxpayers spent at 

Yucca Mountain? What did they get for that? 

Ms. MACFARLANE. You know, we as the NRC, our job is to ensure 

that a repository application and the repository itself would be safe 

and operate safely. That is our job. So in terms of policy questions 

associated with the Nuclear Waste Fund, that is something that I 

defer to the Department, to the administration and the Congress. 

Mr. MCKINLEY. OK. I am sorry. 

Mr. SHIMKUS. OK. The gentleman’s time is expired. 

The chair now recognizes the gentleman from California, Mr. 

McNerney, for 5 minutes. 

Mr. MCNERNEY. Well, thank you, Mr. Chairman. 

Chairman Macfarlane, it seems to me that the hearing we are 

holding here this morning is premature. We should be holding this 

hearing in 2 weeks or a month later, that you would be able to answer a lot of questions that have been asked this morning more 

satisfactorily. Would you agree with that? 

Ms. MACFARLANE. I think in a number of weeks or a month or 

two, we will certainly be able to have more satisfying answers for 

you. 

Mr. MCNERNEY. Would you be able to produce a more concrete 

answer in terms of when you would be ready to answer the questions that have been asked this morning? 

Ms. MACFARLANE. In a number of weeks or a month, certainly 

after the time has expired for parties to comment and the staff to 

get back to us after the end of September and after we have a little 

bit of time to sift through those, we will have a much better idea 

of what the plan is to move forward. 

Mr. SHIMKUS. Would the gentleman yield? Not to take away from 

your time, but the full commission will be coming back this fall and 

that will give us an opportunity also to fully vet this. 

Ms. MACFARLANE. End of October we will be back. 

Mr. MCNERNEY. Thank you. 

Well, focusing funds on the Safety Evaluation Report is presumably one of the options that the Commission will be looking at but 

the safety report is just one of many steps needed. You have mentioned a couple of these. There will need to be an Environmental 

Impact Statement would need to be supplemented, more than 300 

claims would have to be conducted, adjudicated, more than 100 

depositions taken, and then there would need to be evidentiary 

hearings, and then the final decision will be made by the Commission. Is that about right? 

Ms. MACFARLANE. There are some other steps in there, too. The 

Licensing Support Network that has gotten some discussion this 

morning would have to be put back and there are some other 

issues as well that the Environmental Impact Statement would 

have to be completed and the supplement would have to be completed as well. 

86 

Mr. MCNERNEY. Dr. Lyons, even if the license were issued sometime in the future, there would need to be more steps that would 

have to happen before the repository would be operational. For example, the State of Nevada is strongly opposed to the project and 

they would need to issue a number of permits. The Congress and 

the President would have to sign a land withdrawal bill and the 

Department of Energy would need to actually build the repository 

with tens of billions of dollars in appropriations over the next few 

years. Is that about right? 

Mr. LYONS. That is all correct, sir. 

Mr. MCNERNEY. So, Mr. Chairman, it is clear to me that the 

NRC and the DOE do not have sufficient funds to complete the 

Yucca Mountain licensing, and there is still a lot of public opposition in the State of Nevada. The Court of Appeals decision doesn’t 

change either one of those facts. It is time for us in the subcommittee to start grappling with the tough policy questions we 

need to answer in order to establish a new consensus-based siting 

process that has a real chance of getting a repository built. 

With that, I will yield back. 

Mr. SHIMKUS. The gentleman yields back his time. 

The chair now recognizes the gentleman from Pennsylvania, Mr. 

Pitts, for 5 minutes. 

Mr. PITTS. I thank the gentleman. I apologize for coming in and 

out. We have a couple of hearings going on at the same time. 

Chairman Macfarlane, in your written testimony you state ‘‘in 

September 2008 the NRC staff adopted the EIS subject to additional supplementation on groundwater analysis. In October 2008 

the DOE had notified the NRC of its intent to supplement the EIS. 

Subsequently, in July of 2009, the DOE notified the NRC that it 

had decided not to prepare a supplement. To satisfy National Environmental Policy Act, NEPA, obligations, the EIS would need to be 

supplemented.’’ 

Now, I have here a report dated July of 2009 from DOE’s Office 

of Civilian Radioactive Waste Management entitled ‘‘Analysis Of 

Post-Closure Groundwater Impacts.’’ And this document notes the 

NRC staff’s September 8, 2008, adoption report regarding the 

DOE’s Environmental Impact Statements, EIS, and indicates ‘‘in 

response to NRC’s staff adoption report, DOE has prepared this 

analysis of post-closure groundwater impacts. This analysis of postclosure groundwater impacts addresses the information identified 

by the NRC staff as needed to supplement DOE’s Environmental 

Impact Statements.’’ 

I have another document here from the NRC’s Web site indicating that the supporting documentation for this report was provided to the NRC’s public document room and the NRC’s file center. Dr. Lyons, do you know whether DOE provided NRC the 

groundwater analysis Chairman Macfarlane mentions in her testimony? 

Mr. LYONS. The report that you reference, sir, was provided by 

the Department of Energy and it was—at least the understanding 

of our staff at the time that the supplemental details would be 

added by the NRC to the EIS. That could be revisited if the NRC 

wishes, but yes, we have provided that documentation as you cited. 

87 

Mr. PITTS. Chairman Macfarlane, is it possible that your staff 

made a mistake and the DOE did actually send the supplement 

that you need for the EIS? 

Ms. MACFARLANE. My understanding is that we still need the 

supplement to the EIS, but I can get back to you with the longer 

answer for the record. 

Mr. PITTS. Did you want to respond, Dr. Lyons? 

Mr. LYONS. I think we are both saying the same thing. The EIS 

needs to be supplemented. The question is we think we have provided the information to the NRC to do the supplement, but if they 

wish us to do it, we would use the information that we provided 

to them. There may be a misunderstanding simply on who is going 

to write the supplement, but we provided the information. 

Mr. PITTS. Well, is there an open action item here or can we 

cross this off the list of things that you folks need to do to comply 

with the court? 

Ms. MACFARLANE. Clearly, the supplement needs to be completed, and this is one of the other steps that would have to be 

done to complete the licensing process, and it is a step that we 

would have to try to understand the resource allocation for and 

whether it would be the Department of Energy who would take this 

on or the NRC. 

Mr. PITTS. OK. 

Ms. MACFARLANE. But this is something that needs to be completed and needs to be decided how to move forward. 

Mr. PITTS. Now, this administration shut down the Yucca Mountain program, and the issue that brings us here today, contrary to 

the Nuclear Waste Policy Act and stranding spent nuclear fuel indefinitely at plants across the country, Dr. Lyons, was there a scientific reason for shutting it down? 

Mr. LYONS. As we have testified in other hearings, our concern 

has been whether this is a workable solution to move forward, and 

I believe that without a consent-based process, it is not a workable 

solution. 

Mr. SHIMKUS. Will the gentleman yield? 

So that is a no, Mr. Lyons? That is a no that it wasn’t a sciencebased decision to shut it down? That is what you just said. You are 

saying it was a political—— 

Mr. LYONS. The Department of Energy submitted the license application based on the technical requirements. 

Mr. SHIMKUS. Your answer to his question was no, that it was 

not science-based, it was a politically based decision. That is fine. 

Mr. LYONS. Mr. Shimkus—— 

Mr. SHIMKUS. I will yield back to the gentleman from Pennsylvania. 

Mr. LYONS. We can debate what you mean by a politically based 

decision. I am simply—— 

Mr. SHIMKUS. I am using your words, not mine. You are the one 

who just meandered on that it wasn’t science-based. The question 

was was it science-based? And you said no. 

Mr. LYONS. Based on a—— 

Mr. SHIMKUS. It is a consensus-based analysis, and we have always heard this story before. So your answer to my colleague from 

Pennsylvania was no. 

88 

Mr. LYONS. I have attempted to indicate the range of issues that 

were considered, sir. 

Mr. SHIMKUS. We got you on record as no. 

The gentleman from Pennsylvania has expired. 

Mr. PITTS. Thank you, Mr. Chairman. 

Mr. SHIMKUS. The chair now recognizes the gentleman from 

Georgia, Mr. Barrow, for 5 minutes. 

Mr. BARROW. Thank you, Mr. Chairman. 

And, Chair Macfarlane, I want to begin by thanking you for your 

personal interest in the expansion of nuclear generating capacity in 

this country. It has gone on in my backyard in Georgia and next 

door in South Carolina and you have taken a personal interest in 

this and I want to commend you for that and thank you and encourage you to help us through this renewal of nuclear energy generation in this country. 

I gather that you all want input from the interested parties as 

to how best to proceed. I want to offer some input as to how best 

to proceed. Assuming that the Court of Appeals decision becomes 

final in the law of the case, I take it that the usual practice in 

cases of this sort is that the SER is formally adopted before you 

enter into any adjudicatory proceedings to rule on any contentions 

that raise objections to the SER. Is that correct? 

Ms. MACFARLANE. That is correct. 

Mr. BARROW. There is no reason to depart from that in this instance, is there? 

Ms. MACFARLANE. Well, it depends on the parties and the participants and their views. We do have to weigh them all moving forward—— 

Mr. BARROW. I understand you have to weigh their views but you 

all get to decide how you proceed, how you go forward. 

Ms. MACFARLANE. Right. I mean we are trying to understand 

what we can do with the limited resources that exist at the moment. 

Mr. BARROW. Of course. And I guess the input I want to offer is 

that it seems to me it would make very little sense to enter into 

any formal adjudicatory proceedings to rule on any contentions 

that raise objections to the SER before the SER is even adopted. 

Ms. MACFARLANE. Yes. 

Mr. BARROW. The input that I would offer is it would make no 

sense whatsoever to be having hearings on objections to the SER 

before it is adopted and then at some distant time in the future 

have it adopted, and then have post-adoption contentions raising 

further objections ruled on later on. Let’s just keep it one step at 

a time, shall we, one war at a time as Lincoln said. 

Ms. MACFARLANE. I do very much so appreciate your input and 

we will take that into consideration as we deliberate and move forward. 

Mr. BARROW. Thank you very much. No further questions. 

Mr. SHIMKUS. The gentleman yields back his time. 

The chair now recognizes the other gentleman from Pennsylvania, Mr. Murphy, for 5 minutes. 

Mr. MURPHY. Thank you, Mr. Chairman. 

89 

To both of you, the fiscal year 2011 Continuing Resolution was 

the last time NRC and DOE received funding for the license review. Am I correct on that, Ms. Macfarlane? 

Ms. MACFARLANE. I am sorry, the fiscal year— 

Mr. MURPHY. The fiscal year 2011 Continuing Resolution was the 

last time NRC and DOE received funding for license review— 

Ms. MACFARLANE. Yes. 

Mr. MURPHY [continuing]. Am I correct, Mr. Lyons, is that true 

as well? 

Ms. MACFARLANE. I do believe that is correct. 

Mr. MURPHY. And the purpose of that funding was to carry out 

the purposes of the Nuclear Waste Policy Act, am I correct? 

Ms. MACFARLANE. Sorry? 

Mr. MURPHY. The purpose of that funding was to carry out the 

purposes of the Nuclear Waste Policy Act? 

Ms. MACFARLANE. Yes. 

Mr. MURPHY. Am I correct? 

Ms. MACFARLANE. Certainly. 

Mr. MURPHY. And, Dr. Lyons, but DOE used that money for the 

opposite purpose, to shut down the Yucca Mountain program in an 

attempt to withdraw the license application, am I correct? 

Mr. LYONS. The fiscal year 2010 funding was used for shutdown 

of the program, yes. 

Mr. MURPHY. All right. And, Dr. Macfarlane, the NRC also used 

that money to suspend the license review, correct? 

Ms. MACFARLANE. Correct. 

Mr. MURPHY. And, Dr. Lyons, how much money from the Nuclear 

Waste Fund did DOE spend to shut down the program? 

Mr. LYONS. I would prefer to give you a precise number. It was 

around 130 million but we can give it to you precisely in writing. 

Mr. MURPHY. I have 138 million. I just wanted to be sure but let 

me know the precise number. 

Chairman Macfarlane, how much money from the Nuclear Waste 

Fund did NRC spend to suspend the license review? 

Ms. MACFARLANE. I believe it was 7.4 million. 

Mr. MURPHY. OK. I thought it was a little bit more. Could you 

double-check the number, please? 

Ms. MACFARLANE. I can certainly double-check the number. 

Mr. MURPHY. So, to both of you, together your two agencies have 

spent, by my calculations, a little bit under $150 million of electricity consumers’ money shutting down a license review that the 

court has now said you have to complete. So electricity consumers 

throughout this country paid for you to conduct the license review, 

not to scuttle it. So how will your agencies restore that money to 

its lawful purpose? 

Ms. MACFARLANE. In terms of the Nuclear Regulatory Commission, this is actually an issue that is under adjudication right now 

and so it is not appropriate for me to comment. 

Mr. MURPHY. Are you going to have the money to do that? 

Ms. MACFARLANE. Sorry? 

Mr. MURPHY. Are you going to have the money to restore that? 

Ms. MACFARLANE. Again, this is an issue that we have asked the 

staff to collect information on all budgeting—— 

90 

Mr. MURPHY. And, Dr. Lyons, do you have a different answer on 

that? Do you have any idea where the money is going to come 

from? 

Mr. LYONS. In my written testimony I gave the numbers for the 

currently available funds that we have, either unobligated or 

costed and obligated. 

Mr. MURPHY. I appreciate that but I am trying to get to the point 

that isn’t it fair that you have to restore that money to back to 

what its legal purpose was for? Am I correct? 

Mr. LYONS. The position of the administration continues to be 

that if we want to stop wasting money, we should be moving in a 

direction to have a workable— 

Mr. MURPHY. Well, no, no, no—— 

Mr. SHIMKUS. Will the gentleman yield for one second? 

Mr. MURPHY. Yes. 

Mr. SHIMKUS. Aren’t you saying that the NRC and the DOE 

spent $150 million to break the law? 

Mr. MURPHY. That is what I am hearing and now you are talking 

about something else. 

Look, we need a straightforward answer on this. You know, the 

fairness to the American people who have been paying these rates 

is that money was misused by DOE and by NRC. And so now what 

I am asking you is are you going to work on a plan to restore that, 

you are talking about finding other ways to not waste money. This 

is a colossal waste of money. So now I don’t understand. So just 

give me a straightforward answer. Isn’t it fair that you find a way 

to restore that money to its lawful legal purpose? 

Mr. LYONS. I am not aware, sir, what that mechanism would be. 

Perhaps someone on your side is. I am not aware of what that 

mechanism would be. 

Mr. MURPHY. Oh, no, it is not my responsibility to fix your problem. Your breaking the law is not my responsibility to fix it. The 

misuse of money from your agencies is not the responsibility of the 

American people to come up with another answer. It is your responsibility. We are going to hold you to that. 

Chairman McFarlane, in your testimony you mentioned the NRC 

currently has 13.6 million available to fund resumption of license 

review. Is that enough to fully comply with the court’s decision? 

Ms. MACFARLANE. Let me clarify. We have 11.1 million available 

and 2.6 million in obligated—— 

Mr. MURPHY. Will that be enough to complete the application review and issue a decision? 

Ms. MACFARLANE. And issue the license? 

Mr. MURPHY. Yes. 

Ms. MACFARLANE. Absolutely not. 

Mr. MURPHY. But you are both legally responsible now for complying with the law. 

Ms. MACFARLANE. We will comply with the law, sir. 

Mr. SHIMKUS. Would the gentleman yield? Ask that question on 

the Safety Evaluation Report. That is the question that we still 

need to get a firm answer from the chairman. 

Mr. MURPHY. So let me ask that. On the Safety Evaluation Report, will you be able to comply? 

91 

Ms. MACFARLANE. We have asked the staff to update the information, update the resources needed to complete the Safety Evaluation Report and to do a number of other entities, and as soon as 

we get that information, the Commission will be able to provide a 

written response. 

Mr. MURPHY. So just to cut to the chase, it sounds like neither 

of your agencies has enough resources to complete the licensing review mandated by the court and by law. So when was the last time 

either of your agencies asked for funding in your budget proposal 

to do any of this? 

Mr. LYONS. The last funding we received was fiscal year 2010 to 

the best of my memory. 

Mr. MURPHY. You haven’t asked for any since then to comply? 

You have not asked for any since then? 

Mr. LYONS. That is correct. 

Mr. MURPHY. Will you be forwarding a supplemental budget request to fund these? 

Mr. LYONS. Until we know the requirements from the NRC, until 

we have evaluated a path forward, it would simply be premature 

for me to speculate on whether that would be the course of action, 

sir. 

Mr. MURPHY. Mr. Chairman, there is still follow-up here. The 

law says you have got to comply, the court said you have to comply, 

you said you don’t have the money to comply, and now you are saying it is speculation to find out if you are going to—this is a simple 

thing that if your desire is to comply with the courts and you are 

legally bound to do so by law and you don’t have the money to do 

it, I would hope that that is already in the works to say we are 

going to need more money to move forward on this and comply 

with the law. Do you have to hesitate on that? 

Mr. LYONS. I would give you essentially the same response, sir. 

It is just simply premature at this stage of the process to speculate 

what will be required of the Department or to commit to any course 

of action. 

Mr. MURPHY. I appreciate the note you have been handed but I 

am asking you this is—— 

Mr. SHIMKUS. The gentleman’s time is expired. 

The chair now recognizes the gentlelady from California for 5 

minutes. 

Ms. CAPPS. I thank you, Mr. Chairman. 

And thank you to our witnesses today for your testimony and for 

being here. 

Nuclear fuel storage obviously is an important issue, and for 

communities with nuclear power plants, it is a very local issue. 

That is the case with my district. I represent San Luis Obispo, 

California, which is home to Diablo Canyon nuclear power plant. 

Before I get to fuel storage, I wanted to follow up on an issue 

I raised with you, Chairwoman Macfarlane, last time you testified 

and that is the topic of seismic safety. We are seeing fresh reminders from Fukushima of just how devastating an earthquake can be 

if we are not fully prepared. And as you know, Diablo Canyon sits 

on both the Hosgri and the recently discovered shoreline faults. 

Last February, I asked you about a peer-reviewed study by Dr. 

Jeanne Harderbeck that concludes an earthquake much larger 

92 

than current NRC estimates is possible along these very fault lines. 

I asked whether or not NRC is incorporating Dr. Harderbeck’s findings into its safety standards for Diablo Canyon. Your written response states ‘‘the NRC staff believes that the views expressed by 

Dr. Harderbeck’s paper will be fully considered by the experts involved in the seismic hazard reevaluation process.’’ 

So my question is, to give you an opportunity right now to update us on whether the NRC is taking any additional actions to address the concerns raised in this report. 

Ms. MACFARLANE. So I believe that Dr. Harderbeck presented at 

the second Seismic Hazard Workshop that happened this past year, 

and her theories on the shoreline fault activity rate, the geometry, 

the fault geometry will be included in the overall seismic hazard 

characterization model. 

Mrs. CAPPS. Does it involve any changes or concrete actions? 

Ms. MACFARLANE. Well, we will see the results of the model at 

the next workshop, which I believe is coming up in the spring. 

Mrs. CAPPS. OK. So we can expect a follow-up—— 

Ms. MACFARLANE. Yes. 

Mrs. CAPPS [continuing]. Report after that time? 

Ms. MACFARLANE. Yes. 

Mrs. CAPPS. We will stay in touch with you on that and I appreciate that answer very much. 

And now to the topic at hand today, fuel storage, given our inability to implement a permanent solution, my constituents are 

very concerned about Diablo Canyon becoming a de facto permanent storage site. I am sure other facilities around the country may 

have the same concerns. I have been pleased to see more spent fuel 

being moved into dry cask storage at Diablo Canyon and also 

across the country, but these casks are really not permanent solutions. 

A few weeks ago I asked Secretary Moniz about this and he said 

the casks are safe for about 100 years. Chairwoman Macfarlane, do 

you agree with this estimate? 

Ms. MACFARLANE. Well, we are actively trying to understand 

aging issues that are associated with casks. This is an important 

area of research for us at the Nuclear Regulatory Commission. 

Mrs. CAPPS. So you don’t want to comment on his estimate of 100 

years? 

Ms. MACFARLANE. We license the casks for 20 years and we have 

given a 20-year extension. We will continue to see if further extensions are warranted. 

Mrs. CAPPS. Obviously, spent fuel has got to be safely stored for 

much longer than 20 years, even if it is reauthorized, and longer 

than 100 years. My follow-up question then to you is has the NRC 

evaluated onsite storage solutions that can safely store fuel for 

longer than 100 years? Because this to me is such a pressing issue 

for my constituents but it certainly isn’t limited to my constituents. 

Ms. MACFARLANE. We are certainly looking at the issues of 

longer-term storage both in the casks and in the spent fuel pools, 

so this is an area that we are actively considering. 

Mrs. CAPPS. I appreciate that. Well, I firmly support finding a 

permanent solution, but I really think it is critical that we have a 

93 

backup plan. And can you tell me if there is one of those in the 

works? 

Ms. MACFARLANE. A backup plan for—that is a policy issue and 

I defer to Congress to develop that policy issue. 

Mrs. CAPPS. Well, then I defer to the chairman of this committee 

that that is something that we want to consider in the nature of 

our—and to our ranking member as well to the nature of our task 

that permanent storage is a huge issue with nuclear energy. 

Mr. SHIMKUS. Yes, and if the gentlelady would yield, we currently have a law to deal with that and we are just trying to enforce the administration to comply with the law. 

Mrs. CAPPS. All right. I yield back. 

Mr. SHIMKUS. The gentlelady yields back. 

The chair now recognizes the gentleman from Mississippi, Mr. 

Harper, for 5 minutes. 

Mr. HARPER. Thank you, Mr. Chairman. 

And I thank each of you for being here today. 

And, Chairman Macfarlane, you just said regarding a backup 

plan you said I defer to Congress for that issue, but didn’t Congress 

set the law that has been ignored that is the source of the opinion 

that was just handed down in August? And so we have that, yes, 

you say that but we have dealt with another experience through 

this. 

But I wanted to ask you some questions if I could. And I understand, Chairman Macfarlane, that several parties have signed a 

motion questioning your impartiality and requesting your recusal 

and that you decided I believe last night not to recuse yourself. 

Considering the motion for your recusal was pending at the time, 

I want to know did you participate in the Commission’s order for 

the parties to submit comments by September the 30th? 

Ms. MACFARLANE. I did take part in that and that was a ministerial issue. 

Mr. HARPER. Do you know Angela Coggins, the former chairman’s policy director and chief of staff? 

Ms. MACFARLANE. No, I do not. I have never met her. 

Mr. HARPER. Are you familiar with her role in the closure of the 

license review as described in the NRC Inspector General’s report 

dated June 6, 2011? 

Ms. MACFARLANE. No, I am not. 

Mr. HARPER. But you do know now that she is working in the 

high-level waste section of the general counsel’s office? 

Ms. MACFARLANE. No, I did not know that. 

Mr. HARPER. Well, those are things you might want to take a 

look at and I would encourage you to do that. 

And I would ask, too, that you review her past actions and review that IG report, look at her current role, and then answer back 

to us if you could let us know, given her past actions on this issue 

and her ability to influence future actions given her position, don’t 

you think this contributes to the appearance that you are unable 

to be impartial? And I would like for you to answer that question 

and submit that in writing back to the committee after you have 

had a chance to review that and determine the position and history 

of Angela Coggins. 

94 

Chairwoman Macfarlane, as the IG indicated in his report, the 

former chairman believed that stalling the public release of the 

SER volumes was within his responsibility to manage the staff. Do 

you believe that conforms to your responsibility as chairman to uphold the President’s commitments for transparency and open government? 

Ms. MACFARLANE. I am sorry. Could you repeat the question? 

Mr. HARPER. Certainly. As the IG indicated in his report, your 

former chairman believed that stalling the public release of the 

SER volumes was within his responsibility to manage the staff. Do 

you believe that conforms to your responsibility as chairman to uphold the President’s commitments for transparency and open government? 

Ms. MACFARLANE. I can’t comment on the actions of my predecessor. 

Mr. HARPER. You are not aware of the history and the actions 

and the history of your agency? 

Ms. MACFARLANE. I am not aware of the details of what occurred 

to do with Yucca Mountain before I— 

Mr. HARPER. Are you not aware of the IG report? 

Ms. MACFARLANE. I am aware that it exists but I have not read 

it. 

Mr. HARPER. OK. And you have been in your role for how long? 

Ms. MACFARLANE. For a year and 2 months. 

Mr. HARPER. Wouldn’t you think that during the course of the 

year and 2 months and hopefully by the time you have been there 

a year and 3 months that reading your IG report would be something that would be very important? 

Ms. MACFARLANE. It is certainly an important issue. We have a 

large mission at the Nuclear Regulatory Commission to oversee the 

safety and security of over 100 reactors and over 20,000 materials 

licensees. We have quite a bit on our plate. And until August 13, 

Yucca Mountain was not an active issue. 

Mr. HARPER. Well, it was an active issue under the laws of this 

country, but your agency chose to ignore Congress even though you 

have said here today that you defer to Congress for a policy issue. 

There was a set law and you ignored that, did you not? Not you 

personally but your agency, and certainly now you have had it for 

a year and 2 months. But wouldn’t an IG report be something that 

would be very important to be aware of in your role to make sure 

that you don’t fall into any of those problems in the future? 

Ms. MACFARLANE. Let me assure you this, that all decisions on 

the matter of Yucca Mountain will be full commission decisions and 

we will act collegially. I think my record shows we have acted over 

the last year and 2 months very collegially on all issues, and that 

is how we will work moving forward. 

Mr. HARPER. But your agency unilaterally decided to ignore the 

law in this country, and now because the court has finally recognized that the executive authority has overstepped their bounds 

that we are now back trying to take care of something that should 

have long been done before. And I hope you understand our frustration. We want your agency to succeed. We want this to work for 

our country. And we urge you to continue to look at this and this 

concern that we have. 

95 

And I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. 

The chair now recognizes the gentleman from Florida, Mr. Bilirakis, for 5 minutes. 

Mr. BILIRAKIS. Thank you very much, Mr. Chairman. I appreciate it. Thanks for calling this hearing. 

The administration’s shutdown of the Yucca Mountain program 

in 2010—again, they shut it down—the ramifications of that shutdown are still reverberating. In a decision last year remanding the 

NRC’s Waste Confidence Rule, the DC court observed ‘‘at this time 

there is not even a prospective site for repository, let alone progress 

toward the actual construction of one. The lack of progress on a 

permanent repository has caused considerable uncertainty regarding the environmental effects of temporary spent nuclear fuel storage and the reasonableness of continuing to license and relicense 

nuclear reactors.’’ So the administration’s actions to shut down the 

Yucca Mountain program have caused a Federal court order to 

question the reasonableness of licensing nuclear plants. 

Dr. Lyons, if the administration really supported nuclear energy, 

wouldn’t it want to reconstitute the Yucca Mountain program? 

Shouldn’t they reconstitute the Yucca Mountain program, Dr. 

Lyons? Isn’t it a demonstration that the Federal Government’s will 

to follow the law the surest way to restore the waste confidence 

and provide a solid basis for the NRC to license? If you can answer 

that question. 

Mr. LYONS. Thank you for your question. I noted in my testimony 

that we are already as a Nation 20 years past the anticipated opening of Yucca Mountain. We are at an impasse. The administration’s 

approach is to try to work towards a workable solution that can 

move us past the impasse, and yes, support nuclear power by providing a consent-based approach to move ahead on this vital issue 

of the back end of the fuel cycle. 

Mr. BILIRAKIS. Would you like to comment as well? 

Ms. MACFARLANE. Would I like—— 

Mr. BILIRAKIS. Yes, please. 

Ms. MACFARLANE. I didn’t hear you. Not at this time. 

Mr. SHIMKUS. Would the gentleman yield? 

Mr. BILIRAKIS. Yes. 

Mr. SHIMKUS. The real question is because of the delay and the 

stopping of Yucca Mountain, the Waste Confidence Rule for interim 

storage has been attacked and is causing problems in local storage 

areas because we don’t have a location. So now the Waste Confidence Rule is up for litigation or review, which continues to cause 

additional problems. Isn’t that correct? 

Ms. MACFARLANE. No, they have nothing to do with each other 

right now. 

Mr. SHIMKUS. They do have by the ruling and the statements Mr. 

Bilirakis just stated. The Waste Confidence Rule was predicated on 

a long-term geological storage. 

Ms. MACFARLANE. Um-hum. 

Mr. SHIMKUS. When you walk away from a long-term geological 

storage, you upset the whole Waste Confidence Rule. So I find it 

incredulous that you would say they have nothing to do with each 

other. 

96 

Ms. MACFARLANE. Well, I say that simply because the court that 

ruled on the waste confidence decision required us to consider the 

case where there is no repository. And—— 

Mr. SHIMKUS. And there is no repository because the administration has broken the law to not proceed. 

Ms. MACFARLANE. I can’t comment on that. 

Mr. SHIMKUS. But I can and Mr. Lyons can. Is that why? 

Mr. LYONS. As we have testified repeatedly, sir, our general 

counsel supported, endorsed our ability to withdraw the license 

back in that—— 

Mr. SHIMKUS. So you are blaming your general counsel for making a ruling that you could break the law that upset the court on 

the Waste Confidence Rule? 

Mr. LYONS. And our focus is on finding a workable solution that 

can move this country forward. 

Mr. SHIMKUS. And I apologize if I take my colleague’s time. 

Where is the only vote from a legislative body on the floor of either 

chamber that talks about a bipartisan movement, Mr. Lyons? 

Mr. LYONS. Again, sir, we are trying to find a workable—— 

Mr. SHIMKUS. You talk bipartisanship, 4 to 1 by this chamber in 

the House 3 consecutive years in a row in supporting Yucca Mountain. So that is where the bipartisan agreement is and it is about 

time that the administration started following it. 

I yield back to Mr. Bilirakis. 

Mr. BILIRAKIS. One last question for Dr. Lyons. Do you believe 

that the science done by our national labs in support of Yucca 

Mountain license application was sound? 

Mr. LYONS. Yes. 

Mr. BILIRAKIS. Thank you. 

I yield back, Mr. Chairman. 

Mr. SHIMKUS. The gentleman yields back time. 

The chair now recognizes the gentleman from Ohio, Mr. Johnson, 

for 5 minutes. 

Mr. JOHNSON. I thank you, Mr. Chairman. You know, I want to 

make a couple of comments before I start. 

Dr. Macfarlane, you made the statement in your testimony several times this morning—you qualified your answers with ‘‘you 

must understand something.’’ I hope that you understand something and that you have seen the resolve of this committee to hold 

your agency accountable to the American people and to the laws 

that have been duly passed by this Congress. We have multiple 

ways of doing that. It doesn’t just involve hearings. So I hope you 

understand the seriousness with which we are approaching these 

issues. 

Dr. Lyons, in your testimony you said maybe someone on our 

side has a mechanism for restoring those lost funds. You used the 

phrase ‘‘on your side.’’ We are supposed to be on the same side. It 

is the side of the American people. And the way this system works 

is that Congress passes laws and the administration implements 

the law, not sidestep the law, not avoid the law, not remake the 

law, but comply with the law. 

So I hope both of you understand that it doesn’t stop here today. 

We are going to hold you accountable. I hope that is clear. 

97 

Dr. Lyons, the NRC is committed to provide this committee with 

a monthly report detailing their actions and expenditures to comply 

with the court’s decision. Will you make that same commitment to 

provide us with a monthly report on DOE’s actions and expenditures as the applicant in support of the license review? 

Mr. LYONS. We will be happy to commit to provide you with regular reports as there are events that lead to—— 

Mr. JOHNSON. A monthly report. I asked about a monthly report 

detailing the actions. Are you willing to provide us with a monthly 

report on the Department of Energy’s actions and expenditures? 

Mr. LYONS. If you wish it monthly—— 

Mr. JOHNSON. A monthly report—— 

Mr. LYONS. Yes, sir. We will do it monthly—— 

Mr. JOHNSON. OK. 

Mr. LYONS. Our suggestion is doing it when there are 

changes—— 

Mr. JOHNSON. Well, no, I want a monthly report. This committee 

wants a monthly report just like we are going to get from the NRC. 

Can you commit to that? 

Mr. LYONS. Yes, sir. 

Mr. JOHNSON. OK. Thank you. 

Initially, as the applicant, DOE advocated in favor of NRC granting construction authorization for a repository at Yucca Mountain. 

Later, DOE attempted to withdraw the application in such a way 

as to prevent the NRC from ever considering the Yucca Mountain 

in the future. In July when testifying before this committee, Secretary Moniz was asked if DOE would honor the court decision, 

and he indicated that DOE would follow the law. 

So, Dr. Lyons, now that the court has decided and the law is 

clear, will DOE as the applicant in this proceeding once again advocate in favor of NRC granting construction authorization? 

Mr. LYONS. Our path forward remains under evaluation. It depends on—— 

Mr. JOHNSON. No, no, that wasn’t the question. I am not asking 

you about the evaluation. I am asking you about what Dr. Moniz, 

what he said, was Secretary Moniz said, that DOE would follow the 

law. And so now I am asking you a very simple question. Now that 

the court has decided and the law is clear, will DOE as the applicant in the proceeding once again advocate in favor of NRC granting construction authorization? Will you follow the law? 

Mr. LYONS. We will certainly commit to following the law but—— 

Mr. JOHNSON. Great. That is what I needed to know. 

Mr. LYONS [continuing]. It is premature to say what the exact 

path will be. 

Mr. JOHNSON. Next question. I would like to follow up on some 

questions that I posed to Secretary Moniz in July. In your July 22 

response to Chairman Shimkus, you noted that DOE’s 2014 budget 

request money from the Nuclear Waste Fund to support storage 

and transportation activities for locations other than Yucca Mountain. Dr. Lyons, given the court’s order, do you still believe that 

DOE is authorized to spend Nuclear Waste Fund money for purposes other than Yucca Mountain? 

98 

Mr. LYONS. My response in that letter very carefully distinguished between generic R&D which continues to be our focus 

which is nonstop—— 

Mr. JOHNSON. I am talking transportation activities. Let me repeat the question because it must not have been clear. You requested budget request from the Nuclear Waste Fund to support 

storage and transportation activities for locations other than Yucca 

Mountain. Given the court’s order, do you still believe that DOE is 

authorized to spend Nuclear Waste Fund money for purposes other 

than Yucca Mountain, transportation activities, et cetera? 

Mr. LYONS. Since this is a—— 

Mr. JOHNSON. Take your note because I think your guy back 

there in the back has got the answer for you. I think the answer 

is you should comply with the law, right? 

Mr. LYONS. Anything that we are doing on transportation at this 

point is location-neutral. On the specifics of exactly which—— 

Mr. JOHNSON. If it is providing locations for any place other than 

Yucca Mountain, it is not location-neutral. And that is not the purpose of the Nuclear Waste Fund, Dr. Lyons. So given the court 

order, is it still your belief that DOE is authorized to spend Nuclear Waste Fund money for purposes other than Yucca Mountain? 

Because you and I both know what the law says. 

Mr. LYONS. Nuclear Waste Fund money will be spent on Titles 

I and II of the Nuclear Waste Policy Act. I will rely on general 

counsel as to exactly what falls within that category. 

Mr. JOHNSON. Clearly, I am not going to get a straight answer, 

Mr. Chairman. I yield back. 

Mr. SHIMKUS. The gentleman’s time is expired. 

And we can pause and we are done. So we want to thank the 

panel for being here. I have to thank you. This is a tough issue. 

There are emotions rampant on both sides. We do appreciate you 

putting up with us, but you will see us again, I am sure. 

In conclusion, I would like to thank again you all for being here 

and the Members who participated and remind my colleagues that 

they have 10 business days to submit questions for the record. And 

I ask the witnesses all to agree to respond as promptly as possible 

to all questions. 

And with that, the hearing is adjourned. 

[Whereupon, at 12:00 p.m., the subcommittee was adjourned.] 

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