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S. HRG. 112–598 

THE NUCLEAR WASTE ADMINISTRATION ACT 

HEARING 

BEFORE THE

COMMITTEE ON 

ENERGY AND NATURAL RESOURCES 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

TO

RECEIVE TESTIMONY ON S. 3469, THE NUCLEAR WASTE 

ADMINISTRATION ACT OF 2012 

SEPTEMBER 12, 2012 

( 

Printed for the use of the 

Committee on Energy and Natural Resources 
(II) 

COMMITTEE ON ENERGY AND NATURAL RESOURCES 

JEFF BINGAMAN, New Mexico, Chairman 

RON WYDEN, Oregon 

TIM JOHNSON, South Dakota 

MARY L. LANDRIEU, Louisiana 

MARIA CANTWELL, Washington 

BERNARD SANDERS, Vermont 

DEBBIE STABENOW, Michigan 

MARK UDALL, Colorado 

JEANNE SHAHEEN, New Hampshire 

AL FRANKEN, Minnesota 

JOE MANCHIN, III, West Virginia 

CHRISTOPHER A. COONS, Delaware 

LISA MURKOWSKI, Alaska 

JOHN BARRASSO, Wyoming 

JAMES E. RISCH, Idaho 

MIKE LEE, Utah 

RAND PAUL, Kentucky 

DANIEL COATS, Indiana 

ROB PORTMAN, Ohio 

JOHN HOEVEN, North Dakota 

DEAN HELLER, Nevada 

BOB CORKER, Tennessee 

ROBERT M. SIMON, Staff Director 

SAM E. FOWLER, Chief Counsel 

MCKIE CAMPBELL, Republican Staff Director 

KAREN K. BILLUPS, Republican Chief Counsel 
(III) 

C O N T E N T S 

STATEMENTS 

Page 

Barron, Henry B., President and Chief Executive Officer, Constellation Energy Nuclear Group, LLC, Baltimore, MD ......................................................... 27 

Bingaman, Hon. Jeff, U.S. Senator From New Mexico ........................................ 1 

Fettus, Geoffrey H., Senior Attorney, Nuclear Program, Natural Resources 

Defense Council .................................................................................................... 33 

Heller, Hon. Dean, U.S. Senator From Nevada .................................................... 2 

Lyons, Peter B., Assistant Secretary for Nuclear Energy, Department of Energy ........................................................................................................................ 10

Meserve, Richard A., President, Carnegie Institution for Science ...................... 7 

Murkowski, Hon. Lisa, U.S. Senator From Alaska ............................................... 2 

Scowcroft, General Brent, Co-Chairman, Blue Ribbon Commission on America’s Nuclear Future ............................................................................................. 4 

APPENDIXES 

APPENDIX I 

Responses to additional questions .......................................................................... 47 

APPENDIX II 

Additional material submitted for the record ........................................................ 63 

(1) 

THE NUCLEAR WASTE ADMINISTRATION ACT 

WEDNESDAY, SEPTEMBER 12, 2012 

U.S. SENATE, COMMITTEE ON ENERGY AND NATURAL RESOURCES, Washington, DC. 

The committee met, pursuant to notice, at 9:30 a.m. in room SD– 

366, Dirksen Senate Office Building, Hon. Jeff Bingaman, chairman, presiding. 

OPENING STATEMENT OF HON. JEFF BINGAMAN, U.S. 

SENATOR FROM NEW MEXICO 

The CHAIRMAN. OK. Why don’t we start the hearing? The committee meets this morning to consider S. 3469, the Nuclear Waste 

Administration Act of 2012. 

S. 3469 is intended to implement the recommendations of the 

Blue Ribbon Commission that Secretary Chu appointed to review 

the nuclear waste program. The Blue Ribbon Commission issued 

its final report in January. This committee heard from the 2 chairs 

of the Commission, General Brent Scowcroft and Representative 

Lee Hamilton on that report in February. 

The Blue Ribbon Commission was worthy of its name. It was 

made up of 15 highly distinguished individuals from academia, 

from industry, from public service. They approached their task conscientiously and diligently. They produced a very thorough and 

comprehensive report. 

The Commission presented us with 8 clear, concise and straight 

forward recommendations. I’ve tried to implement those recommendations in the bill that is now before us for this hearing. I 

worked closely with Senator Murkowski and the Chair and Ranking Member of the Energy and Water Appropriations Subcommittee, Senator Feinstein and Senator Alexander in the effort. 

Regrettably, we were not as successful as the Blue Ribbon Commission was in reaching a unanimous bipartisan consensus. Although we were able to agree on most issues, we could not agree 

on the siting process for storage facilities and how to ensure that 

temporary storage facilities do not become permanent substitutes 

for an underground repository. With time running out on this Congress, we agreed that I should go ahead and introduce the bill as 

it stands and hold this hearing on the bill. Leave it to the next 

Congress to continue working on the issue. 

We’re very fortunate to have General Scowcroft back with us this 

morning. We’re sorry that Congressman Hamilton could not be 

with us. We extend to him and his family our sincere condolences 

on the tragic death of his wife, Nancy, last month. 
2 

We appreciate Dr. Meserve stepping in for Congressman Hamilton today. 

We also welcome back Assistant Secretary Lyons to offer the Administration’s views on the bill. 

Following this panel we will hear from Mr. Henry Barron, the 

President and Chief Executive Officer of Constellation Energy Nuclear Group. 

Mr. Geoffrey Fettus, who is the Senior Attorney at the National 

or the Natural Resources Defense Council. 

Let me defer to Senator Murkowski for any comments she’d like 

to make. 

STATEMENT OF HON. DEAN HELLER, U.S. SENATOR 

FROM NEVADA 

Mr. Chairman and Ranking Member Murkowski, I want to start 

by thanking you for holding this hearing today. While S. 3469 does 

not totally take Yucca Mountain off the table, I am pleased that 

we are discussing legislation that recognizes the need for consentbased nuclear waste repository siting and provides a potential path 

forward beyond Yucca Mountain. 

My home state of Nevada is home to the proposed Yucca Mountain Nuclear Waste Repository. I have long had serious concerns 

about the safety of Yucca Mountain and the suitability of Southern 

Nevada as the final resting place of our spent nuclear material. 

With the amendment of the Nuclear Waste Policy Act in 1987, Nevada-a state without any nuclear power plants-was legally compelled to bear the sole burden of long-term storage of the nation’s 

nuclear waste. With the stroke of a pen, objective evaluation of 

Yucca Mountain as one option among many ceased and the study 

of alternative storage methods and sites was curtailed. Given the 

politicized history of Yucca Mountain, I don’t trust the federal government to appropriately manage a repository at the site. 

I recognize the need to address the problem of spent nuclear fuel, 

but it must be solved through careful consideration of all alternatives based on credible scientific information, and not by politicians in Washington. I appreciate the effort to create a sound solution to long-term nuclear waste storage that Chairman Bingaman 

and Ranking Member Murkowski are seeking through the Nuclear 

Waste Administration Act of 2012. It is my hope that the lessons 

learned from Yucca Mountain, such as the importance of consentbased siting and truly objective evaluation of any proposed site, 

will not be lost on our future efforts. I look forward to working with 

my colleagues to find safe and viable alternatives to Yucca Mountain for the long-term storage of nuclear waste. 

STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR 

FROM ALASKA 

Senator MURKOWSKI. Thank you, Mr. Chairman. I do thank you 

for holding this hearing on a topic that, I think we would all agree, 

needs to be resolved in order for nuclear energy to play the role 

that, I believe, that it’s clearly capable of in meeting our Nation’s 

energy needs. 

I have expressed some skepticism in the past about the need to 

delay progress on resolving these issues while the Blue Ribbon 
3 

Commission deliberated. But, as you have stated and I will absolutely concur, the Blue Ribbon Commission is an extremely credible 

group. It has produced a thoughtful product regarding how to move 

our Nation’s spent nuclear fuel program forward. I fully recognize 

and appreciate that. 

Now there may be little that is actually truly new in the proposals that came out of the Blue Ribbon Commission. But I am optimistic that the report has ignited a heightened sense of urgency 

and renewed focus on these issues. As the Commission’s report 

notes the government’s failure to address our nuclear waste issues 

is damaging to the development of future nuclear power and simultaneously worsening our Nation’s financial situation. 

I think that we need to act on this. I think we need to act soon. 

Mr. Chairman, the legislation that you introduced is indicative 

of months of good, productive discussions. As you’ve noted, that you 

led along with Senator Feinstein, Senator Alexander and myself 

discussing the ways to end the—to address the back end of the nuclear fuel cycle. I congratulate you on moving the discussion forward, putting the marker out there and allowing us to begin the 

very critical, the very important discussion that must advance. 

While we couldn’t ultimately bridge the issue of linking progress 

on interim storage and a permanent repository, I want to be clear 

to those following these discussions that while prospects for legislative enactment in this Congress are not favorable. We’re all very 

honest with that. We will continue the effort next year and build 

upon the progress that the Chairman has begun. 

Now I will also note that the Senate Energy and Water Appropriations bill contains language that seeks to move interim storage 

forward in a timely manner. I think we recognize that we’re going 

to be dealing with a shorter term CR, perhaps in the next couple 

days, perhaps next week. I’m hopeful that the interim storage language will be included when Congress acts on a full Fiscal Year 

2013 spending bill. 

In addition we would be remiss if we did not examine the impact 

of the Court of Appeals for the District of Columbia’s remand on 

the NRC’s waste confidence decision on new license applications 

and license renewals and how that legislation, along the lines of S. 

3469, could help address the court’s concerns. 

Again, Mr. Chairman, I thank you for holding the hearing, advancing the legislation and the discussion and look forward to the 

witnesses this morning. 

The CHAIRMAN. Thank you very much. 

Let me, once again, just introduce this first panel. 

General Brent Scowcroft, the Co-Chair of the Blue Ribbon Commission on America’s Nuclear Future. 

Dr. Richard Meserve, the President of the Carnegie Institution 

for Science. 

Dr. Peter Lyons, who is the Assistant Secretary for Nuclear Energy with the U.S. Department of Energy. 

So, General Scowcroft, why don’t you go ahead and begin, if you’d 

like. Each of you take what time you think you need to explain the 

main points you’d like to make about the proposed legislation. 
4 

STATEMENT OF GENERAL BRENT SCOWCROFT, CO-CHAIRMAN, BLUE RIBBON COMMISSION ON AMERICA’S NUCLEAR 

FUTURE 

General SCOWCROFT. Thank you very much, Chairman Bingaman. 

Mr. Chairman, Ranking Member Murkowski, it’s a great pleasure to appear before you today to discuss S. 3469, the Nuclear 

Waste Administration Act of 2012. 

I would like at the outset to pass along Co-Chairman Hamilton’s 

sincere regrets for not being here with us today. As you said, Mrs. 

Hamilton lost her life in a tragic accident last month. Co-Chairman 

Hamilton is home in Indiana attending to family matters. It was 

a great privilege for me to serve alongside him as Co-Chairman of 

the Blue Ribbon Commission. We join you in extending our deepest 

sympathies to him. 

I’m very pleased that Commission member, Dick Meserve is able 

to join with me this morning. 

We were also most pleased to receive the invitation to testify 

today because we believe our Nation simply must craft a sustainable solution to the nuclear waste management issue. The legislation that Senator Bingaman has introduced is an outstanding beginning to what we recognize could be an extended legislative process. 

We are also pleased to be here because it gives us a chance to 

publicly thank Chairman Bingaman for his service to the Nation 

as he prepares to retire at the end of this session. Thank you, Senator Bingaman for all you have done to help craft sensible energy 

policy for the United States. Your leadership on the nuclear waste 

issue and on energy issues in general will be sorely missed. Thank 

you for allowing us the opportunity to testify before you today. 

As you know the Blue Ribbon Commission on which we served 

was formed by the Secretary of Energy at the direction of the 

President. Our task was to conduct a comprehensive review of policies for managing the back end of the nuclear fuel cycle and to recommend a new strategy. We delivered our final report to the Secretary of Energy in January of this year and made 8 key recommendations. 

Your committee was fully briefed on these recommendations 

when Co-Chairman Hamilton and I testified in February. So I will 

not go into detail about the individual recommendations again. 

Rather let me just remind the committee that our Commission 

viewed these 8 recommendations as an integrated set and that they 

would be most effective if implemented as a complete package. 

Now I will turn the microphone over to Mr. Meserve. 

[The joint prepared statement of General Scowcroft and Mr. 

Meserve follows:] 

PREPARED STATEMENT OF GENERAL BRENT SCOWCROFT, CO-CHAIRMAN, AND RICHARD

A. MESERVE, COMMISSIONER, BLUE RIBBON COMMISSION ON AMERICA’S NUCLEAR

FUTURE

INTRODUCTION

Chairman Bingaman, Ranking Member Murkowski, distinguished members of the 

committee, it is a pleasure to appear before you today to discuss S. 3469, the Nuclear Waste Administration Act of 2012. 
5 

Before we begin, I would like to pass along Co-Chairman Hamilton’s sincerest regrets for not being here with us today. As you may know, Mrs. Hamilton died in 

a tragic accident last month and Congressman Hamilton is home in Indiana tending 

to family affairs. It was a great privilege to serve alongside him as co-chairman of 

the Blue Ribbon Commission and we extend him our deepest sympathies. I am 

pleased that Dick Meserve is available to join me this morning. 

We were also most pleased to receive the invitation to testify today because we 

believe our nation simply must craft a sustainable solution to the nuclear waste 

management issue. The legislation that Senator Bingaman has introduced is an outstanding beginning to what we recognize could be an extended legislative process. 

We are also pleased to be here because it gives us a chance to publicly thank Chairman Bingaman for his service to the nation as he prepares to retire at the end of 

this session. Thank you, Senator Bingaman, for all you’ve done to help craft sensible 

energy policy for the United States. Your leadership on the nuclear waste issue and 

on energy issues in general will be sorely missed. Thank you for allowing us the 

opportunity to testify before you today. 

BRC Report Overview 

As you know, the Blue Ribbon Commission on which we served was formed by 

the Secretary of Energy at the direction of the President. Our charge was to conduct 

a comprehensive review of policies for managing the back end of the nuclear fuel 

cycle and to recommend a new strategy. 

We delivered our final report to the Secretary in January of this year, and made 

eight key recommendations: 

1. A new, consent-based approach to siting future nuclear waste management 

facilities. 

2. A new organization dedicated solely to implementing the waste management program and empowered with the authority and resources to succeed. 

3. Access to the funds nuclear utility ratepayers are providing for the purpose 

of nuclear waste management. 

4. Prompt efforts to develop one or more geologic disposal facilities. 

5. Prompt efforts to develop one or more consolidated storage facilities. 

6. Prompt efforts to prepare for the eventual large-scale transport of spent nuclear fuel and high-level waste to consolidated storage and disposal facilities 

when such facilities become available. 

7. Support for advances in nuclear energy technology and for workforce development; and 

8. Active U.S. leadership in international efforts to address safety, non-proliferation, and security concerns. 

Your committee was fully briefed on the recommendations of our Commission 

when Co-Chairman Hamilton and I testified in February of this year, so I will not 

go into detail about the individual recommendations. Rather, let me just remind the 

committee that our Commission viewed these eight recommendations as an integrated set, and that they would be most effective if implemented as a complete 

package. 

Views on S. 3469 

We are pleased to see that Senator Bingaman’s draft legislation incorporates 

many of the changes to existing law that will be required to implement our Commission’s recommendations. In particular, S. 3469 would implement the Commission’s 

recommendations to authorize a consent-based process for nuclear waste facility 

siting, to be conducted by an entity removed from the Department of Energy, with 

access to Nuclear Waste Fee payments and the balance of the Nuclear Waste Fund. 

The bill’s provisions requiring development of generic radiation protection standards 

for repositories and a mission plan for the Nuclear Waste Administration are also 

consistent with the Commission’s recommendations. 

While S. 3469 generally mirrors the Commission’s recommendations, there are a 

few areas of difference that we believe are worth highlighting and exploring. In particular: 

1. The Commission recommended the establishment of a congressionally 

chartered corporation to carry out the waste program. The draft legislation 

proposes instead to create a Nuclear Waste Administration, an agency of 

the federal government, to carry out this role. While both approaches would 

assure appropriate focus, we recommended a federally chartered corporation in order to assure the necessary management stability for the longterm task of advancing the waste program and to provide a degree of isolation from short-term political pressures. In particular, a new waste man-
6 

agement organization will need the leadership of a strong chief executive 

with exceptional management, political, and technical skills and experience 

and tenure that extends longer than the political cycle—objectives that 

might be more easily achieved through a corporation than a federal agency. 

We urge the committee to reconsider this aspect of the legislation. 

2. The proposed legislation places limits on the amount of spent fuel that 

can be accepted for consolidated storage prior to congressional ratification 

of a consent agreement for a repository. We understand that this provision 

reflects a concern that any consolidated storage facility could become a de 

facto disposal facility, which is why existing law prohibits the construction 

of a storage facility before construction authorization has been issued for 

a first repository. The Blue Ribbon Commission concluded that ‘‘ the current rigid legislative restriction... should be eliminated,’’ but also emphasized that ‘‘the challenge of establishing positive linkages such that 

progress on storage does not undermine, but rather supports progress on 

repository development remains an important one.’’ Our review did not lead 

us to recommend any specific linkages because we concluded that the volume of fuel to be accepted in consolidated storage could be one of the many 

elements of the negotiation between the nuclear waste management organization and potential host governments. We appreciate that the bill allows 

consolidated storage to begin at a scale sufficient to provide for acceptance 

of all of the spent fuel from shutdown reactors, as we recommended, and 

that full scale storage could begin considerably earlier than is possible 

under current law. However, we encourage the committee to give careful 

consideration to alternative approaches for ensuring that a storage facility 

is a complement to a repository. We suggest that there may be benefits in 

allowing the linkage provisions to be the subject of negotiations between the 

waste management organization and potential storage facility hosts, subject 

to final approval by Congress. 

3. And finally, although the Nuclear Waste Oversight Board called for in 

Section 205 is generally consistent with our Commission’s recommendation 

for independent oversight of the waste management organization, we believe its membership should be expanded. The oversight board as set forth 

in Section 205 would only include members from the federal government, 

presumably subject to regular turnover on a political cycle. We believe that 

broader representation and further assurance of stability would be appropriate. To achieve this end, we encourage the committee to consider adding 

representatives from outside of government, as called for in our Commission’s recommendations. Non-governmental members could come from organizations contributing to the Nuclear Waste Fund, state public utility commissions, the environmental non-governmental organization community, 

representatives of workers involved in the construction or operation of radioactive waste management facilities, and others. This supplementation of 

the board’s membership would reinforce the federal commitment to a consent-based process. 

While we think these three differences between S. 3469 and our Commission’s recommendations are important and are worthy of further consideration, we do not in 

any way want to imply dissatisfaction with the efforts of the committee. Chairman 

Bingaman, Ranking Member Murkowski and other Senators, particularly Senators 

Feinstein and Alexander, have shown great leadership in their willingness to engage 

in serious bipartisan discussions about the future of nuclear waste management in 

the United States. In a year presenting many demands on the Congress, we commend your attention to the problem of charting a new course for addressing nuclear 

waste. 

Concerns about Lack of Administration Action 

I am unable to provide you with any insights as to the views of the Administration to our report because the Administration has not yet released an implementation plan in response to our recommendations. That plan was due at the end of July, 

so we cannot say for certain whether the Administration will demonstrate the same 

level of seriousness that is reflected in your draft legislation. Our Commission report was issued in January, and despite initial positive signals from the Administration, we have seen little in the way of concrete action. We are particularly disappointed to have received no formal reply to a December 2011 letter we sent the 

White House in which we urged action to provide assured access to utility waste 

disposal fees. 

In our letter and in our report we recommended several near-term actions that 

could be taken by the administration in cooperation with key committees in Con-
7 

gress and the Congressional Budget Office to give greater access to the nuclear 

waste fees going forward, while waiting for legislation—such as S. 3469—that would 

provide a comprehensive fix to the funding of the program. Failure to fix the funding problem could undermine key recommendations of the Commission. For example, the parallel storage and disposal programs we recommend could be in competition for limited funds instead of being mutually supportive, and a consent-based 

siting process that provides assurances to host communities that a storage facility 

or repository will be a positive asset could be undermined if access to a source of 

funding for promised benefits is not assured. 

Our Commission believed that fixing the funding problem is vital. We believe that 

steps towards implementation of near-term proposals that do not have to wait for 

comprehensive legislative action would be a clear and unmistakable signal that the 

Administration and Congress are willing to take the difficult yet necessary measures to put our nation’s nuclear waste management program back on track and enable its success. 

Conclusion 

In conclusion, and as we said to this committee in February, the national interest 

demands that our nuclear waste program be fixed. Complacency with a failed nuclear waste management system is not an option and the need for a new strategy 

is urgent. We believe the bill that Senator Bingaman has prepared represents a 

very useful starting point for an important discussion. 

Thank you for having us here today. We appreciate the opportunity to share our 

views on S. 3469 and we look forward to your questions. 

STATEMENT OF RICHARD A. MESERVE, PRESIDENT, 

CARNEGIE INSTITUTION FOR SCIENCE 

Mr. MESERVE. Thank you, General. 

We are pleased to see that Senator Bingaman’s draft legislation 

incorporates many of the changes to existing law that will be required to implement the Commission’s recommendations. In particular, Senate S. 3469 would implement the Commission’s recommendations to authorize a consent based process for nuclear facility siting being conducted by an entity removed from the Department of Energy with unfettered access to nuclear waste fee payments and the balance of the Nuclear Waste Fund. The bill’s provisions requiring development of generic radiation protection standards for repositories and a mission plan for the Nuclear Waste Administration are also consistent with our recommendations. 

While the bill generally mirrors the Commission’s recommendations, there are a few areas of difference that we believe are worth 

highlighting and exploring. 

First, the Commission recommended the establishment of a congressionally chartered corporation to carry out the waste program. 

The draft legislation proposes instead to create a Nuclear Waste 

Administration, an agency of the Federal Government, to carry out 

this role. 

While both approaches would assure appropriate focus, we recommended a federally chartered corporation in order to assure the 

necessary management stability for the long term task of advancing the waste program and to provide a degree of isolation from 

short term political pressures. In particular, a new waste management organization will need the leadership of a strong chief executive with exceptional management, political and technical skills 

and experience and tenure that extends longer than the political 

cycle, objectives that may be more easily achieved through a corporation than through a Federal agency. We urge that the committee reconsider this aspect of the legislation. 
8 

Second, the proposed legislation places limits on the amount of 

spent fuel that can be accepted for consolidated storage prior to 

congressional ratification of a consent agreement for a repository. 

We understand that this provision reflects a concern that any 

consolidated storage facility could become a de facto disposal facility which is why existing law prohibits construction of a storage facility before construction authorization has been issued for a first 

repository. 

The Blue Ribbon Commission concluded and I’m quoting, ‘‘that 

the current rigid legislative restrictions should be eliminated.’’ But 

we also emphasize and I’m quoting again, ‘‘the challenge of establishing positive linkages such that progress on storage does not undermine, but rather supports progress on repository development 

remains an important one.’’ 

Our review did not lead us to recommend any specific linkages 

because we concluded that the volume of fuel to be accepted in consolidated storage could be one of the many elements of negotiation 

between the Nuclear Waste Management Organization and potential host governments. We appreciate that the bill allows consolidated storage to begin at a scale sufficient to provide for acceptance 

of all the spent fuel from shut down reactors, as we recommended. 

That full scale storage could begin considerably earlier than is possible under current law. 

However, we encourage the committee to give careful consideration to alternative approaches for ensuring that a storage facility 

is a complement to a repository. We suggest that there may be benefits in allowing the linkage of provisions to be the subject of negotiations between the Waste Management Organization and potential storage facility hosts subject, of course, to final approval by 

Congress. 

Third, we note that although the Nuclear Waste Oversight 

Board, called for in section 205, is generally consistent with our 

Commission’s recommendation for independent oversight of the 

Waste Management Organizations. We believe its membership 

should be expanded. The Oversight Board, as set forth in Section 

205, would only include members from the Federal Government, 

presumably subject to regular turnover on a political cycle. We believe that broader representation and further assurance of stability 

would be appropriate. 

To achieve this end we encourage the committee to consider adding representatives from outside the government, as called for in 

our Commission’s recommendations. Non-governmental members 

could come from organizations contributing to the Nuclear Waste 

Fund, state public utility commissions, the environmental non-governmental organization community, representatives of workers involved in the construction or operation of waste management facilities and others. This supplementation of the board’s membership 

would reinforce the Federal commitment to a consent based process. 

While we think that these differences between S. 3469 and our 

Commission’s recommendations and are important and are worthy 

of further consideration, we do not in any way want to imply dissatisfaction with the efforts of the committee. 
9 

Chairman Bingaman, Ranking Member Murkowski and other 

Senators, particularly Senators Feinstein and Alexander, have 

shown great leadership in their willingness to engage in serious bipartisan discussions about the future of nuclear waste management in the United States. In a year presenting many demands on 

the Congress we commend you for your attention to the problem 

of chartering a new course for addressing this important problem. 

Now I’ll turn the microphone back over to General Scowcroft. 

General SCOWCROFT. We are unable to provide you with any insights as to the views of the Administration to our report because 

the Administration has not yet released an implementation plan in 

response to our recommendations. That plan was due at the end of 

July, so we cannot say for certain whether the Administration will 

demonstrate the same level of seriousness that is reflected in your 

draft legislation. 

Our Commission report was issued in January. Despite initial 

positive signals from the Administration, we have seen little in the 

way of concrete action. We are particularly disappointed to have received no formal reply to a December 2011 letter we sent to the 

White House, in which we urged action to provide assured access 

to utility waste disposal fees. 

In our letter and in our report we recommended several near 

term actions that could be taken by the Administration in cooperation with key committees in Congress and the Congressional Budget Office to give greater access to the Nuclear Waste Fees going forward while waiting for legislation, such as S. 3469, that would provide a comprehensive fix to the funding of the program. Failure to 

fix the funding program could undermine key recommendations of 

the Commission. 

For example, the parallel storage and disposal programs we recommend could be in competition for limited funds instead of being 

mutually supportive. A consent based siting process that provides 

assurance to host communities that a storage facility or repository 

will be a positive asset, could be undermined if access to a source 

of funding for promised benefits is not assured. 

Our Commission believed that fixing the funding problem is 

vital. We believe that steps toward implementation of near term 

proposals, that do not have to wait for comprehensive legislative 

action would be a clear and unmistakable signal that the Administration and Congress are willing to take the difficult, yet necessary 

measures, to put our Nation’s nuclear waste management program 

back on track and enable its success. 

In conclusion, and as we said to this committee in last February, 

the national interest demands that our nuclear waste program be 

fixed. Complacency with a failed nuclear waste management system is not an option. The need for a new strategy is urgent. 

We believe the bill that Senator Bingaman has prepared represents a very useful starting point for an important discussion. 

Thank you for having us here today. We appreciate the opportunity to share our views on S. 3469. We look forward to your questions. 

The CHAIRMAN. Thank you very much. 

Dr. Lyons, why don’t you go right ahead? 
10 

STATEMENT OF PETER B. LYONS, ASSISTANT SECRETARY FOR 

NUCLEAR ENERGY, DEPARTMENT OF ENERGY 

Mr. LYONS. Thank you. 

Chairman Bingaman, Ranking Member Murkowski and Senator 

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

you today to discuss nuclear waste management issues and S. 

3469. Thank you for your leadership on this important issue. 

Nuclear power is an integral part of the Administration’s all of 

the above clean energy strategy. But for nuclear energy to remain 

a viable component of the Nation’s energy portfolio, we must develop a sustainable fuel cycle with a well understood and well accepted fuel management strategy. While used fuel is safely stored 

today, the current storage certainly does not represent a permanent solution. Because acceptance of waste did not begin in 1998, 

a substantial cost has been presented to the taxpayers to reimburse 

utilities for the cost of ongoing storage that will continue to grow 

until the government fulfills its obligations. 

The Blue Ribbon Commission on America’s Nuclear Future or 

the BRC worked through a public, open and transparent process on 

recommendations to support a new strategy for the back end of the 

nuclear fuel cycle. Senator Bingaman’s bill addresses many of the 

BRC’s recommendations. While the Administration is still finalizing its framework for the management of nuclear waste, there are 

key elements that any strategy must address. 

No matter what organization, funding, storage and disposal decisions are made moving forward the consent based approach to 

siting endorsed by the BRC is critical to success. The Administration supports working with Congress to develop a process that is 

transparent, adaptive and technically sound. Experiences in other 

countries indicate that a consent based process, developed through 

engagement with key stakeholders and with significant public involvement offers the greatest probability for success. 

The BRC recommended the establishment of a new, single purpose organization for management and disposal. The Administration agrees that some organizational change is needed to provide 

the stability, focus and credibility needed to build public trust and 

confidence. 

The BRC highlighted issues associated with the Nuclear Waste 

Fund. A new approach to funding should assure that the fees paid 

by taxpayers using nuclear generated electricity support the Nation’s nuclear waste management strategy. In addition, the organization needs timely access to the funds necessary to execute its 

mission. 

Any new funding structure must balance increased funding flexibility with rigorous spending oversight while still providing accountability to the President and to Congress. Different models can 

achieve this goal. This will be an area of continued discussion between Congress and the Administration. 

The BRC recommended that the United States develop one or 

more consolidated storage facilities. Building such a storage capacity could enable the government to move more rapidly to fulfill its 

contractual responsibilities and thus reduce future liabilities. Storage can add security and flexibility to a system for permanent 

waste disposal. But as the BRC recommended some form of linkage 
11 

between opening a consolidated storage facility and progress toward a repository is necessary so that the storage facility does not 

become a de facto permanent facility. 

The Administration supports exploring this issue with Congress. 

In addition the Administration supports the broad scientific and 

international consensus that a geologic repository is the most effective, permanent solution to disposition of high level wastes. 

The Administration agrees with the BRC that the Department 

should continue R and D on possible future fuel cycle options. In 

the near term the Department will move forward with R and D activities within the constraints of existing legislation. 

The Administration would again like to thank the BRC for their 

dedicated work in developing a path forward. They highlighted a 

need for changes in current law and the Administration will work 

with Congress to define a responsible and achievable path forward. 

In closing, the Administration thanks Senator Bingaman for his 

important contribution toward new legislation. It provides a strong 

base for mature dialog to continue. 

On a very personal note, Mr. Chairman, this may be the last 

time that I testify before you. We’ve interacted for many years, especially when I served on the staff of this committee. I’ve been honored with the opportunity to work with you and your outstanding 

staff on many important issues. Your dedication to public service, 

your thoughtful consideration of complex issues provides a superb 

model for public service. 

Thank you for your service to the Nation, sir. 

Thank you. 

[The prepared statement of Mr. Lyons follows:] 

PREPARED STATEMENT OF PETER B. LYONS, ASSISTANT SECRETARY FOR NUCLEAR

ENERGY, DEPARTMENT OF ENERGY

Chairman Bingaman, Ranking Member Murkowski, and Members of the Committee, thank you for the opportunity to appear before you today to discuss nuclear 

waste management issues and S. 3469, The Nuclear Waste Administration Act of 

2012. Thank you for your leadership on this important issue. 

Nuclear power is an integral part of our ‘‘all-of-the-above’’ energy strategy. It provides twenty percent of our nation’s electricity supply, and the Administration is 

working to expand the safe use of nuclear power through support for new nuclear 

power plants incorporating state-of-the-art passive safety features as well as costshared technical support for licensing two designs for small modular reactors. Nuclear energy is an important contributor to our nation’s energy security, and promotes clean-energy jobs. Nuclear energy production also provides important environmental benefits by producing little carbon dioxide or conventional air pollutant 

emissions. 

The United States must develop a sustainable fuel cycle and used fuel management strategy to ensure that nuclear power continues to be a safe, reliable resource 

for our nation’s long-term energy supply and security. Because acceptance of waste 

did not begin in 1998, as mandated by the Nuclear Waste Policy Act, a substantial 

cost has been presented to the taxpayers to reimburse utilities for the cost of ongoing storage and will continue to grow until the government fulfills its obligations. 

The Blue Ribbon Commission on America’s Nuclear Future (BRC) released its 

final report on January 26, 2012. The Commissioners worked collaboratively and 

constructively—through a public, open and transparent process—on recommendations to support a new strategy for the back end of the nuclear fuel cycle. The Nuclear Waste Administration Act of 2012 addresses many of the BRC’s recommendations, and while the Administration is still finalizing its framework for the management of nuclear waste, there are key elements that any strategy must address. 
12 

Organization 

The BRC recommended the establishment of a new, single-purpose organization 

charged with the management and disposal of high level waste and the associated 

interface with the waste generators. The Administration agrees that a new waste 

management and disposal organization could have advantages in terms of stability, 

focus, and other characteristics that will be important to future success. At the same 

time, it is evident that the success of any future waste management organization 

will be driven by many factors and unforeseen circumstances. The organizational 

form is only one of these factors. Of equal or greater importance are decisions about 

other organizational characteristics to ensure that the organization has adequate 

authority and leadership to execute its mission, and balances the need for independence of the organization with appropriate oversight mechanisms. Whatever form the 

new organization takes, organizational stability, leadership continuity, oversight 

and accountability, and public credibility are critical attributes for future success. 

The Administration looks forward to working with Congress to design a governance 

structure that meets these objectives. 

Funding 

Following the Nuclear Waste Policy Act of 1982 (NWPA), utilities entered into 

contracts with the federal government, which agreed to accept and permanently dispose of utilities’ used nuclear fuel in exchange for a fee that would be paid by ratepayers using nuclear generated electricity. All NWF spending is subject to annual 

appropriations and is required to compete with other priorities within the budget, 

even though the funds collected can only be used for purposes authorized under the 

NWPA. Since the enactment of the NWPA, $8 billion has been appropriated from 

the NWF to date. The current balance of the NWF is estimated at $27 billion. Fee 

collections of more than $750 million annually combined with accrued interest will 

continue to grow the Fund. 

For any organization to be effective in the performance of this complex mission, 

it needs timely access to funds in the amounts necessary to execute its mission. The 

BRC highlighted this need noting, ‘‘.the success of a revitalized nuclear waste management program will depend on making the revenues generated by the nuclear 

waste fee and the balance in the NWF available when needed and in the amounts 

needed to implement the program.’’ 

Any new funding structure for this program will need to balance increased funding flexibility and rigorous spending oversight to help assure that the program is 

implemented in the most cost-effective manner possible, while still holding the organization accountable to the President and Congress. The Administration looks forward to working with Congress to find a solution that meets these objectives. 

Disposal and Storage 

The Administration supports the broad scientific and international consensus that 

a geologic repository is the most effective permanent solution to dispose of high level 

waste. While this does not preclude any decision about future fuel cycle options, it 

is evident that a once-through cycle is appropriate for the foreseeable future. Cost, 

proliferation risks, environmental concerns, economics, and technology limitations 

are some of the issues associated with closing the fuel cycle in the U.S. through use 

of recycling. The Administration agrees with the BRC that any new organization 

should focus on the development and operation of storage and repository facilities 

while the Department continues R&D on possible future fuel cycle options. 

The BRC recommended that the U.S. develop one or more consolidated storage 

facilities. Building consolidated storage capacity could enable the government to 

move more rapidly to fulfill its contractual responsibilities and thus reduce future 

liability costs. While consolidated storage can add security and flexibility to a system for permanent waste disposal, some form of linkage between opening a consolidated storage facility and progress toward a permanent repository is necessary so 

that potential host states and communities for consolidated storage facilities are not 

saddled with a de facto permanent facility. The Administration supports exploring 

this issue with Congress. 

Consent-Based Siting 

No matter what organization, funding, and storage decisions are made moving forward, a consent-based approach to siting is critical to success. The Administration 

supports working with Congress to develop a consent- based process that is transparent, adaptive, and technically sound. The BRC emphasized that flexibility, patience, responsiveness and a heavy emphasis on consultation and cooperation will 

all be necessary in the siting process and in all aspects of implementation. Experiences in other countries indicate that a consent-based process—developed through 
13 

engagement with states, tribes, local governments, key stakeholders, and the public—offers a greater probability of success. DOE is currently evaluating critical success factors in the siting of nuclear facilities in the U.S. and abroad to facilitate the 

development of a siting process. 

Activities in FY 2012 and Proposed in FY 2013 

There are a number of key R&D areas that the Administration has recognized as 

foundational to the nation’s nuclear waste management program, and was pursuing 

even prior to the release of the Commission’s recommendations. Planned activities 

in the areas of transportation, storage, and disposal align with the BRC suggestions 

and in the near term, the Department will move forward with R&D in these areas, 

within the constraints of existing legislation. 

Transportation 

The Department is evaluating the inventory, transportation interface, and shipping status of used nuclear fuel at nuclear power sites. The Department is re-engaging the regional transportation groups to understand stakeholder issues as we work 

to finalize the policy and procedures for providing technical assistance and funds. 

The Administration will also draw from the successful transportation approaches 

used to support shipments to the Waste Isolation Pilot Plant (WIPP) in New Mexico. 

Storage 

The Department is evaluating the possibility of direct disposal of existing storage 

containers in various geologic media; understanding material degradation in storage 

and transportation systems over extended periods of time; and the development of 

standardized canister concepts for transportation, storage, and disposal. 

Disposal 

The Department is conducting R&D related to disposal in the following areas: 

evaluating back-filled engineered barriers systems and materials; evaluating geologic media for their impacts on waste isolation; evaluating thermal management 

options for various geologic media; and developing a R&D plan for deep borehole 

disposal. The role of retrievability in the geologic disposal of nuclear waste remains 

an important issue that may need further consideration. 

Closing 

The Administration would like to thank the BRC Commissioners for their dedicated work in developing a path forward in nuclear waste management. The BRC 

highlighted the need for changes in current law and the Administration thanks 

Chairman Bingaman for his important contribution to moving the discussion forward with this new legislation. The Nuclear Waste Administration Act of 2012 provides a base from which our dialogue can continue and the Administration remains 

committed to working with Congress to define a responsible and achievable path forward to manage our nation’s used nuclear fuel and nuclear waste. 

The CHAIRMAN. Thank you very much. Thank all 3 witnesses for 

excellent testimony. 

Let me start with a few questions. 

I think all of you have highlighted this issue of linkage which is 

a concern that, I think, all of us here in the Congress, in the Senate who worked on this issue, have tried to focus on as well. 

I think there’s an agreement that we need a permanent geologic 

repository. 

There’s an agreement that there’s a need to provide storage until 

the repository is available. 

Third, that there’s a need for a mechanism to ensure that the 

temporary storage facility does not take the place of a long term 

repository and end up becoming a de facto permanent solution to 

this problem. 

So what we seem to disagree on is what that mechanism ought 

to be. I think it’s important that Congress identify the mechanism 

and put it into the law whether the one that I propose in this legislation is the best one will be for a future Congress to decide. But 

at least this has the advantage, as I think some of you have ac-
14 

knowledged, of providing more than 3 times as much storage capacity as the shut down reactors need and also of allowing full scale 

storage to begin considerably earlier than is possible under current 

law. 

You recommend that we leave the linkage question to the state 

or community hosting the storage facility to negotiate, presumably 

in the form of deadlines or volume limitations. I guess one obvious 

question is what happens if a state is willing to host a storage facility without linkages? Should we then abandon a repository program if the state is willing to host a storage facility without requiring any linkage? 

Another question is what happens if a host state insists on linkages but the repository is not built? How would the state enforce 

its linkages? By sending the waste back to the utilities that generated the waste or by fines or by damages? Would that not just 

put us right back where we are today with the taxpayers liable for 

billions of dollars of damages because we do not have any repository? 

So those are concerns that I have. I’d just welcome comments 

from any of the witnesses about how we resolve these issues. If we 

don’t put something in the Federal law that establishes a linkage 

and we just say it’s up to each individual jurisdiction or state to 

negotiate to require that linkage, to me that’s a very thin read to 

hang our prospects of getting a future repository built on. 

Dr. Meserve, did you have a perspective on that? 

Mr. MESERVE. Let me say, I think that, as you’ve indicated, the 

linkage point is a crucial one. It is very important to evaluate it. 

It is completely true that a storage facility is not an alternative to 

a repository. 

We need a repository and storage may well be something that is 

safe for an extended period of time. But it is not the long term answer. So we do need to make sure that we have incentives and a 

process by which we achieve a repository. 

I think our concern about—with the draft legislation was in part 

on the severe constraint that the linkage would impose. As I understand the draft legislation, there are 2 constraints. 

One is that before the passage of the act any repository that, excuse me, any storage facility that was basically undertaken would 

be limited to a limited volume of material. But that after the act 

is passed there could not be a storage facility until a consent agreement is ratified by the Congress. 

So you have a situation in which we have something like the current law that storage just couldn’t happen once the statute passed 

absent a repository consent agreement actually subject to ratification. 

One of the things that we tried to emphasize in our report was 

the crucial importance of adaptability. So I think that I’m trying 

to express, although we recognize there were a need for linkages, 

I think somewhat more flexibility might be appropriate. I would be 

concerned after the statute is passed of an absolute rigid requirement that holds up a storage facility given the many benefits that 

we see of having in terms of storage. 

The CHAIRMAN. Let me just ask on that. My impression is that, 

what our proposed legislation calls for, is that if there is in fact a 
15 

storage facility established under the language passed in the Appropriations bill prior to the enactment of this bill, that storage facility could continue to be constructed. That storage facility could 

accept waste. But it could only accept waste up to the limit of the 

ten million, or the ten thousand ton number. 

Mr. MESERVE. That’s correct. 

The CHAIRMAN. So what we are doing is we’re saying that at 

some point you have to quit moving waste to a storage facility until 

you can go ahead and sign an agreement to pursue a repository. 

But is that your understanding so we don’t have a disagreement 

about what the bill calls for? 

Mr. MESERVE. That is my understanding. Although I think the 

legislation goes further than that. That if we do not establish, 

you’re quite correct, that if under existing law we build a storage 

facility the statute would limit the amount of material that could 

go to it. 

If we don’t establish such a storage facility or are unable to do 

so within—by the time this statute is passed, my understanding of 

the language is that there is an absolute prohibition on proceeding 

with the storage facility until there is a consent agreement that is 

ratified by the Congress. So that there is a limited window for a 

storage facility that the statute provides, but that window closes if 

you haven’t been able to exploit the opportunity to establish a storage facility before enactment. 

The CHAIRMAN. I think that’s wrong. But at any rate, I appreciate that clarification of the way you’re reading it. 

Mr. MESERVE. But to come back to your basic question. It seems 

implausible to me that any community that would enter into an 

agreement with a storage, for a storage facility without some understanding that it is for a limited term. So you’re first hypothetical that of a situation in which a community agreed for storage and didn’t establish any linkage would seem to me to be unlikely except in the circumstance where the community also wanted 

to be a disposal facility. 

In that circumstance you’d—and the bill encourages the new Administration to have a joint facility for both storage and disposal. 

In that circumstance I think that, you know, you may have a need 

for establishing rigid linkages, maybe less than otherwise would be 

the case because it would be in that community’s interest as part 

of the agreement to make sure that there is a disposal facility and 

that their aggressive means that are included in the consent agreement to assure that that proceeds. 

There also is a—you asked the question well what if there were 

linkages and we just didn’t have a disposal facility? I think that 

the answer for that is that is a situation, of course, we confront 

today with regard to government commitments that have not been 

fulfilled. The answer to that has been rather severe penalties that 

the government pays to proceed to put pressure to make sure that 

Federal commitments are fulfilled. 

The CHAIRMAN. Senator Murkowski. 

Senator MURKOWSKI. Let’s continue talking about the consent 

based approach because I think as we’ve discussed this that’s a logical, certainly more doable way to achieve the goal here when we’re 

talking about our nuclear waste repository. There’s been a lot of 
16 

focus on Sweden as an example where consent based approach was 

workable. But it’s my understanding that within Sweden the situation there was that the municipalities that agreed were already 

host to nuclear facilities. 

So it kind of begs the question whether or not we’re more likely 

to achieve a consent based approach or acceptance from a state or 

a government, local government, that has existing nuclear facilities. So the question to you, Mr.—General Scowcroft and Dr. 

Meserve, is when you were considering the recommendations within the BRC did you, were you, able to identify locations that currently host nuclear sites that also have the viable geologic potential 

to be a repository site? Was this part of the consideration when you 

advanced the concept of a consent based approach? 

Mr. MESERVE. We did not undertake an examination of any particular site or of the siting factors. So we did not do any kind of 

a study as to the regions which might have appropriate geology to 

be a disposal facility. We viewed that as being outside our charge 

and was not something that we did. 

I think it is, in fact, the case that communities that have experience with nuclear facilities and have had good experience with 

them may be more likely to be prepared to undertake becoming a 

storage or disposal facility. But I wouldn’t prejudge that matter. I 

think that there may well be some other communities, although 

perhaps it’s an easier task at a place that already has such experience because we have many such regions in the United States. 

We have, you know, 65 locations where we have nuclear power 

plants and many other DOE facilities where the people have experience. So and the—although there are geologic constraints on the 

siting, there are, I think, diverse, my personal view is that there 

are diverse geologies that could be appropriate for a disposal facility in that it’s not like there’s a unique region in the United States 

is the sole one we could consider for a disposal facility. I think 

there are many areas that may well be appropriate. 

Senator MURKOWSKI. Dr. Lyons, the comment has been made 

that the Administration has failed to meet the timeline for the implementation plan which I understand was due July 31. Also has 

failed to reply to this letter back in December of last year regarding a waste disposal fee. Can you give me some sense as to what 

actions the Administration has taken to date to follow up on the 

Blue Ribbon Commission recommendation? 

I think the words that you used were you’re developing a framework. What does that mean? When might we expect some kind of 

an implementation plan? Where are you? 

Mr. LYONS. There’s been very substantial work, Senator, within 

the Administration, within the Department toward developing a 

framework or a strategy for the Administration’s response to the 

BRC. That work does continue. I think it’s at least nearing the conclusion. 

It’s a complex issue, a very important issue. We’re working very 

diligently to make sure that it is done in a very responsible way. 

The effort is very much ongoing. 

As far as the letter that the General referred to, I’ll need to 

check on that. I’m not aware of the details of this letter to which 

a response was not received. I’ll certainly check on that and be 
17 

happy to either inform the committee and/or the General on the 

status of that. 

As far as actions that we are taking. There’s a wide range of R 

and D activities that we can undertake under existing legislation 

ranging from work on characterization on a generic basis for different repository media, working on some of the transportation 

issues, a variety of dry cask issues. But we are—our R and D now 

must be framed within the existing legislation. 

Senator MURKOWSKI. If the implementation due date or the implementation plan due date was July 31 and you have now missed 

that by 2 months. When do you expect that you might be able to 

produce that? 

Mr. LYONS. I can’t provide a specific date, Senator, other than it 

is under careful review within the Administration. I think it will 

be soon. But I am not in a position to provide a specific date. 

Senator MURKOWSKI. Do you know who in the Administration 

would be able to give us better guidance on that? 

Mr. LYONS. It’s a broad process within the Administration with 

many people involved. I’m giving you the best information I can, 

Senator. I don’t know how to provide any more specificity. 

Senator MURKOWSKI. If you can provide us a better estimate. Are 

we a month away? Are we 6 months away or a year away? I think 

that that would be helpful. 

Mr. LYONS. We’ll certainly work to provide that level of detail 

back to you. 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Wyden. 

Senator WYDEN. Thank you, Mr. Chairman. 

It’s been an excellent panel. I want to start with you, if I might, 

Dr. Meserve. I’m particularly struck. 

You have expertise obviously in safety issues as a result of being 

at the NRC. I’m also very interested in the work that you’ve done 

with spent fuel pools because this has great implications. The work 

you all did after 9/11. 

This has great implications for Fukushima. So I’m interested in 

following up with you on that as well. But I want to make my first 

question, the one that I think is central to this debate and that’s 

really striking the balance. 

You’ve got safety issues if you keep the waste onsite. You’ve got 

safety issues if you ship it somewhere. You have to be sympathetic 

to the fact that rate payers have paid tens of billions of dollars for 

a Federal high level waste repository. They haven’t gotten one. 

Tell me, in effect, you’re in our shoes. How do you strike that balance between these safety issues which have to be paramount. 

There are really 2 types of them as I suggested and the question 

of the rate payer issue? How would you strike that balance? 

Mr. MESERVE. I would say that I very much appreciate the question. 

It is something with which the Nuclear Regulatory Commission 

has to grapple all the time in that there’s certain requirements for 

assuring adequate protection of the public health and safety that 

are absolute minimum requirements regardless of cost that have to 

be fulfilled. If you—there are requirements you might impose that 

are above and beyond that level, you may well get to sort of looking 
18 

at the costs verses the benefit kind of analysis to make those decisions. 

With regard to the spent fuel issue, I should say that we did recommend a storage facility. There would be costs and risks associated with the transport of the material twice in the sense that if 

one sends it first to a storage facility and then has to transport it 

a second time. So that there are some additional risks associated 

with transporting it twice rather than just directly to a facility that 

could take it for disposal. 

The experience has been that after extensive work on transport 

that it is a remarkably record—it’s a remarkable record of safety 

for that transport. DOE has done a lot of it. There’s been some in 

the civilian sector as well. 

That there are—that the benefits of having a storage facility are 

sufficiently great. We see that the additional risk associated with 

transport, in the view of the Commission, was vastly outweighed 

by the benefits of having a storage facility in order to meet the 

commitment to those communities that have, all they have is spent 

fuel that’s sitting on them. 

There are sites that may not be the optimal place to actually 

store it for long term. There are cost advantages for centralizing. 

There’s research advantages. There’s greater capability that could 

be at a centralized storage facility for monitoring and for undertaking R and D on spent fuel. 

So there’s lots of things that we think that, in the tradeoffs, that 

make that safety balance something that’s worth doing with regard 

to a storage facility. 

Senator WYDEN. Let me ask you one other one. 

Senator Cantwell and I are particularly concerned in our part of 

the world because Hanford adjoins the Columbia River. The Columbia River is literally, our life blood in terms of economics and recreation and fish, a whole host of issues. Folks in our part of the world 

and also Idaho and South Carolina and other parts of the country 

were hoping that high level waste from the weapons programs, the 

nuclear weapons programs at Hanford and other locations, would 

go to a permanent repository. Obviously that has not happened. We 

have not seen it. 

In your view, how important is it to make a priority out of ensuring that these defense wastes, these dangerous defense wastes— 

and by the way, Mr. Chairman, I would ask unanimous consent at 

this point to put into the record an article from Monday’s Wall 

Street Journal which documents the continuing problems at Hanford. 

The CHAIRMAN. We will include that. 

Senator WYDEN. Thank you, Mr. Chairman. 

The question for you, Dr. Meserve, if I could, is how important 

is it in your view that you prioritize this question of cleaning up 

the defense waste? It’s important in our part of the world, Oregon 

and Washington. But I think it’s important for many other Americans as well and to ensure that you have that priority by putting 

in place a permanent repository for these dangerous defense 

wastes. 
19 

Mr. MESERVE. Let’s say that your question goes somewhat beyond what the Commission examined. I can give you a personal 

view, but I can’t speak for the Commission. 

I think it is very important for many of these DOE facilities to 

make sure that you have stabilized the waste in a fashion that 

they are not subject to escaping. Your concerns that you have at 

Hanford are ones that, of course, I and many others share that 

there’s a lot of waste that’s in single wall tanks with the tanks deteriorating. The danger that that material will escape. So it’s very 

important, I think, to be—to get those materials under control, stabilized, vitrified and put into a form where they are protected from 

the environment. 

I think the question that’s a separate question, in my view, as 

to whether one it’s essential that you then transport from someplace for ultimate disposal. If they, I think, that they could well be, 

once the material is stabilized could be stored at the Hanford site 

in a way that would be safe and secure. 

I realize that there are legal prohibitions on that as a result of 

the consent agreements. So there are little dimensions to this 

issue. But I don’t doubt that there is a way to be able to store those 

materials safely at the Hanford site awaiting their ultimate disposal. I completely agree that we do have to find a disposal facility. 

The important thing is to find a way to stabilize them first. 

Senator WYDEN. My time is up. I can assure you that storage on 

the banks of the Columbia River is not seen as a permanent solution in my part of the world. 

Thank you, Mr. Chairman. 

Mr. MESERVE. Nor should it be. 

The CHAIRMAN. Thank you. 

Senator Cantwell. 

Senator CANTWELL. Thank you. 

Dr. Meserve, I think you’re, maybe you’re, clarifying your last. 

You went from a possibility to not likely to no. 

I mean, here’s the issue. It’s unacceptable for this waste to be 

stored at Hanford. It’s unacceptable. 

So last hearing I think you were here, General Scowcroft with 

our former colleague, Senator Domenici and Lee Hamilton and others, where we started talking about separating the defense waste 

from—well we got into a format where we couldn’t get more feedback from the Blue Ribbon Commission. So I just want to highlight 

that we are talking about progress at Hanford in the context of 

they could have vitrification done by—starting the process by 2019. 

So here is this military waste that is different and is not made 

for reprocessing in the context of the witches brew of materials 

that’s there. So we’re not going to reprocess it. So talking about retrieval of that particular waste is not, in my mind, a priority. 

So why shouldn’t we be looking at a separate treatment process 

or something that could be disposed of much more rapidly? Obviously we’re, lot of people, are talking about salt formations is 

cheaper, readily available, something that could be done now. Why 

shouldn’t we be looking at that? 

General Scowcroft. 

Mr. MESERVE. In fact our Blue Ribbon Commission report did 

recommend that that very issue of whether the defense waste 
20 

should be co-mingled with the spent fuel and go to a single repository is an open question in our view. The current policy is that all 

that material should go to a single repository. 

We urged in our report that that issue be re-examined. That, as 

you indicate, the characteristics of the defense waste are different 

from the spent fuel. They would not be retrieved for possible reprocessing. They’re typically much cooler and therefore the challenge of disposal is much easier. So you can have options that 

might be available for that material that are not appropriate for 

spent fuel. 

We did suggest that this was something that ought to be the policy that was established in the Reagan era that all these materials 

should go to a single repository is something that should be re-examined because the circumstances are now different. 

Senator CANTWELL. General Scowcroft, did you want to add to 

that? 

General SCOWCROFT. No, that’s basically. We did not raise all 

that issue ourselves. We ran out of time, but did suggest that that 

be done. 

Senator CANTWELL. We look at it as we have had this burden for 

7 years in the Tri-Cities. 

General SCOWCROFT. Yes. 

Senator CANTWELL. Now we’d like to get to move on to the next 

chapter of economic development. So here we are about ready to 

get caught up in this large debate again when this could be separated out, dealt with and move forward. It is the largest cleanup 

site, probably in the entire world. 

So getting it done and getting it tackled in the most efficient 

way, in the most cost effective way means not getting it tangled up 

in this larger debate. So I hope that we move forward on this. 

I would just say, Mr. Chairman, I can’t move forward on any legislation that doesn’t have a path for separating the military waste 

and getting this done. This is what we need to do. We need to move 

forward on it. 

So I thank the Chairman. 

The CHAIRMAN. Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. Thank you, Gentlemen. 

The Columbia River is a very important river. I appreciate that 

both members to my left here are concerned about that. We have 

a river that starts in Minnesota called the Mississippi River and 

we kind of think that’s important too. I don’t know if you’ve heard 

of it. 

Yes, OK, good. 

Prairie Island has a nuclear reactor there. I do want to acknowledge that the Secretary Ron Johnson of Prairie Island Indian Community is here today. Their storage is becoming a very urgent problem. 

Dr. Lyons, you studied what was going on at Fukushima. There 

is real concern over spent fuel pools. There was a fear of the loss 

of the cooling water in those pools could result in some of the spent 

fuel catching fire and spreading radiation. Fortunately it didn’t 

happen in that case. 
21 

But it does highlight the need, I think, for better monitoring of 

the pools to track the status of cooling water. Without cooling 

water there is, of course, the risk of overheating and a potential 

catastrophic release. That’s why I think it’s important to transfer 

that spent fuel from pools into dry cask storage. 

My question is typically spent fuel sits in these pools for at least 

5 years, sometimes much longer. But I understand that some spent 

fuel has been transferred in less than, sooner than, the 5 year 

waiting period. Can the current waiting period be shortened? 

Mr. LYONS. Perhaps several responses, Senator Franken. 

You mentioned the concerns at Fukushima on the status of spent 

fuel pools. You mentioned that as it turned out the pools were 

probably OK, but they did not have instrumentation to identify 

that. As you’re probably well aware this is an NRC issue. But the 

NRC as they issued their first 3 orders post Fukushima one of 

those 3 orders demands improved instrumentation on spent fuel 

pools in the United States which I think is a very wise move by 

the NRC. 

I think your specific question is can you transfer sooner than 5 

years? 

Senator FRANKEN. Yes. 

Mr. LYONS. I might note that Sweden transports its fuel in dry 

casks 1 year after it’s been moved from the reactor. So can you do 

it? Certainly. 

Those are very specialized casks in order to maintain appropriate 

cooling during the transfer. So if your question is—to specifically 

answer your question, can you do it sooner than 5 years? Yes, but 

it takes specially developed casks to handle the cooling. 

Senator FRANKEN. But we have those casks? I mean, they exist. 

Mr. LYONS. I am not aware of the existence of those casks in the 

U.S. But the design exists. 

Senator FRANKEN. The technology exists and OK. 

Now I’ve seen at Monticello these above ground casks, but they 

can also be stored underground. Am I right? 

Mr. LYONS. I may not have followed that question, sir. 

The current—most of the casks in the country are the vertical, 

free standing. 

Senator FRANKEN. Right. 

Mr. LYONS. On a concrete pad. There are some exceptions to horizontal concrete emplacements as well that are also acceptable. But 

whatever they are they, of course, go through the NRC safety review. 

Senator FRANKEN. OK. 

Let me ask this. Can we—we’re looking for a way to transport 

the spent fuel, if it’s in casks, to a secondary location and then 

from the secondary location to a tertiary location eventually. Is 

that the basic? 

Any one of you. That’s a yes, right? I mean, that’s a possibility 

that we’re looking at. 

Mr. LYONS. Yes, except it would be quite possible to request proposals from locations and States, maybe tribes, that are interested 

in providing both storage and repository which would avoid that interim transportation step. But that would remain to be seen as we 

move through siting processes. 
22 

Senator FRANKEN. OK. 

Is there—I know my time is up. But can I just pursue this a little bit? 

The—and I’m sorry I wasn’t here for the other questions and testimony. Are we prioritizing now finding one enormous storage facility like Yucca or are we prioritizing a kind of interim plan to site 

some of this waste in regional areas and then ultimately going to 

one large site? 

Mr. LYONS. Senator, I think the way I’d respond is that remains 

to be determined through the legislative process. The different possibilities you outlined, any one of those, would require a change in 

the Nuclear Waste Policy Act. So Congress and certainly the Administration looks forward to working with Congress would define 

the process that you have questioned here. 

Senator FRANKEN. OK, because it seems to me that there’s becoming some—I mean, there’s a time question here. There’s a question of when this stuff is going to happen. We have to determine 

what order we do things. What is the most feasible in the not so 

long term. 

I mean, we have a short term problem. We’re beginning to have 

a short term problem, certainly Prairie Island and certainly at 

other reactors in this country. 

Mr. LYONS. Senator, can I respond to that? 

Senator FRANKEN. Yes, yes. 

Mr. LYONS. I think your comments highlight the importance of 

legislation. In order to move forward the Department has very limited options under the existing legislation. 

Senator FRANKEN. Thank you. 

The CHAIRMAN. Let me just ask a couple other questions either 

to this first one would either for General Scowcroft or Dr. Meserve, 

whoever would want to respond. I think it’s an obvious point. But 

I think it’s useful to put it on the record. 

This consent based process that the Commission is recommending has the consent of the local jurisdiction and the State as 

an addition to the determination of technical suitability, as I understand it. There is no effort or no suggestion by the Commission 

that there should be less of a requirement for technical suitability 

either for a storage, location of a storage facility or location of a repository. We would not be in any way substituting the consent of 

the local jurisdiction for the requirement that it meet all the technical requirements. 

Is that an accurate description? 

General SCOWCROFT. Yes, I think that is an accurate description. 

In other words the suitability of the site would come first and then 

the consent process. 

The CHAIRMAN. I appreciate that. 

Let me ask Dr. Lyons one other question. 

Current law and the Department’s contracts with utilities commit the Department of Energy to dispose of the spent fuel, not 

stopping—not storing it until it can be reprocessed, but rather disposing of it. The Blue Ribbon Commission’s report affirms that 

view. This legislation that I’ve introduced affirms that view. 

The Department is clear, as I understand it, that reprocessing is 

not a preferable alternative to deep geologic disposal of spent fuel 
23 

at this time or in the foreseeable future. Is that an accurate interpretation of the Administration’s position? 

Mr. LYONS. Yes, Senator, that is an accurate interpretation. We 

have strong research programs that are looking at different reprocessing approaches. If reprocessing were to become possible within 

the country, I think it would be based on many considerations certainly environmental, economic, would be at least some of those 

considerations. Non-proliferation would be another important consideration. 

With the technologies available today, yes, we see that for the 

foreseeable future the once through cycle moving directly toward 

disposal is the appropriate one. 

If I could add just one comment though, sir, on the question you 

just asked about consent basing. One thing I found fascinating yesterday was the announcement from Canada that as they went out 

on a consent based approach for a repository they had 19 communities volunteer to be evaluated. That’s at least—that’s just the 

start of the process. But I found it very interesting. 

The CHAIRMAN. I agree. But it was, as you point out, it’s one of 

the first steps in a very multi-step process that they intend to go 

through to decide where to establish a repository. 

Senator Murkowski, did you have additional questions? 

Senator MURKOWSKI. Mr. Chairman, thank you. 

I mentioned in my opening statement the District Court of Appeals remand on the Nuclear Regulatory Commission’s waste confidence decision. Can I ask each of you whether or not you believe 

that this decision will have any impact on either new builds or relicensing of existing reactors? Where do you think this puts us? 

Mr. MESERVE. Of course this action took place after the Blue Ribbon Commission completed its work. So I can give a personal view. 

I have read in the trade press that the NRC has indicated it will 

not proceed with issuing further licenses having to do with either 

renewals or for new plants until the waste confidence issue is resolved. But the expectation was that they are proceeding expeditiously to try to deal with the issues that have been raised by the 

Court of Appeals. The expectation is that it will not adversely impact the domestic industry, that they’ll be able to take action soon 

enough that this will not be an inhibition on the process with regard to renewals and new plants. 

Senator MURKOWSKI. Dr. Lyons. 

Mr. LYONS. Yes, Senator. It’s my understanding that the NRC 

has laid out a 2-year schedule by which, through which they will 

be addressing the waste confidence issue. There’s certainly been 

very strong statements in the trade press about the consensus 

within the NRC to move ahead on that schedule. 

If that schedule is maintained and I certainly agree with Dr. 

Meserve that I don’t think there would be a significant adverse impact on the types of decisions you questioned. 

Senator MURKOWSKI. Dr. Meserve, you mentioned the construct 

within Senator Bingaman’s legislation about the Administration’s 

set up. You spoke about a corporate approach verses Federal agency. As we were discussing both on the appropriators and the authorizers, the 4 of us discussing how such an entity might be 

formed. We kept coming back to how do we insure, to the greatest 
24 

extent possible that there is an insulation from politics, from political manipulation. 

Are you satisfied that as this is constructed in the legislation before us that we have found that, the right spot, in terms of political 

insulation or is this an issue that we never be able to separate ourselves from the politics? 

Mr. MESERVE. Let me say that the thrust of my comments was 

directed, in part, at I think that the proposal in the legislation 

would have the new waste organization be a Federal agency which 

presumably puts it under more direct influence by political process 

than otherwise would be the case. 

We had recommended a Federal corporation, in part, to provide 

greater insulation than would be—a Federal agency would have. 

But also there’s an element of the task of dealing with spent fuel 

is a process that’s going to take decades. Having stability in the 

policies and the management is important. 

As I indicated in my testimony it was a concern that if it’s a Federal agency then there will be a turnover or likely turnover of the 

people on a political cycle of, you know, every 4 years or sooner. 

That you may not have the kind of stability that you’d want to 

have in undertaking a long term task where you need a consistent 

strategy and knowledgeable people that have experience and sort 

of know where all the bodies are buried in terms of what problems 

that can arise. 

So we came down on the side of a Federal corporation but I recognize that there is a need for balancing this independence verses 

accountability and, you know, that these are hard questions. I don’t 

want to—this is an area where I think that further conversation 

and exploration would be appropriate. 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Cantwell, did you have additional questions? 

Senator CANTWELL. Just quickly, Mr. Chairman, if I could just 

to ask the panelists, Dr. Lyons or Dr. Meserve about whether you 

think cost effectiveness goes hand in hand with suitability of the 

site. I mean, I’m assuming that we should be looking at the cost 

effectiveness of different formations. I wanted to ask you specifically if you thought that salt formations could deliver a potential 

cost savings compared to other geological media types. 

Mr. MESERVE. I think the way the current statute works for 

something that I would encourage the continuation is that there’s 

some absolute minimum requirements that have to be satisfied regardless of cost. That then there may be some balancing around 

the edges of that. But that there are, I think the public would require assurance that you haven’t taken the cheapest option because 

it’s for reasons that it’s cheap. That, you know, there are minimum. 

Senator CANTWELL. We definitely know that well in the Northwest. 

[Laughter.] 

Senator CANTWELL. I think we have argued with every energy 

secretary that’s come up with an idea of doing something on the 

cheap. So anyway. 

Mr. MESERVE. But and we did not, as I mentioned earlier, look 

into the specifics of various types of formations. It is, in fact, the 
25 

only successful operating disposal facility for materials of a general 

nature, somewhat similar to spent fuel, is the waste isolation pilot 

project which is in salt, that’s in New Mexico. Very successful facility. 

That certainly might be a—well, one would certainly look at salt 

as among the options that would be appropriate for a disposal facility. 

Senator CANTWELL. Doctor. 

Mr. MESERVE. But we did not look into the details of the geologic 

materials. 

Senator CANTWELL. Dr. Lyons, did you have anything to add to 

that? 

Mr. LYONS. I appreciate your comment—your question, Senator. 

It seems to me that as we launch into any process along these 

lines, utilizing the consent base, is the first question will be which 

communities respond with which formations. Then subsequent to 

that will have to be the detailed evaluation of that geologic formation. I think the first criteria is certainly going to have to be the 

safety evaluations. But I do agree with you that yes, cost should 

be folded in. 

To me it’s not the first order. The first order is going to be safety. 

But subsequent considerations, tiebreakers, if you will, certainly 

could involve cost as another issue. So environmental attributes 

may well be another. There may be many attributes that come into 

the evaluation as your proceed down through any selection process. 

Cost has to be one of them. 

Senator CANTWELL. I was assuming suitability first and then 

looking at cost. 

To Dr. Meserve’s point, I mean the National Academy of Science 

is, I think, in the 50s recommended salt as one of the—because of 

its great attributes of disposal. Now we, as you said, have this one 

site that is focused on salt. Somehow we, because we were on to 

looking at retrieval as a different question for, you know, this other 

kind of waste, we got off of this track. So I hope that we will bring 

light to the fact that it really is a viable option. 

So, thank you, Mr. Chairman. 

The CHAIRMAN. Senator Franken, did you have additional questions? 

Senator FRANKEN. Yes. 

I, of course, favor a consent based approach. I just want to go on 

record as saying that. 

I’m just sort of wondering. There were alternatives to Yucca before Yucca was chosen. Am I right? 

Have those sites been considered again or we’re not that far 

along in this process or where are we in terms of looking at what 

were the alternative sites to Yucca? 

Mr. LYONS. There certainly were alternative sites that were evaluated under the original legislation in 1982. It was then the 

amendments in 1987 that basically said, thou shalt only study or 

consider Yucca Mountain. The geologies of the other sites would be 

part of the generic evaluation of geologies that we’re considering. 

But under a consent basis we’re certainly not evaluating now any 

specific site. All we would be doing now is looking at generic issues 

associated with different geologies. Hopefully, in the very near 
26 

term working with Congress on legislation that moves forward that 

allows us to get into the consent process. Then utilize the consent 

process to identify prospective sites and begin the detailed evaluation of the sites that come through that process, sir. 

Senator FRANKEN. OK. Assuming that we do the legislation that 

would allow that do we—there must have been very close scrutiny 

of these alternative sites. Are any of them particularly promising? 

You know, what I’m kind of wondering about here is timeline. 

Because there’s permanent and then there is permanent. You 

know, 200 years could be looked at as permanent but some of this 

stuff sticks around for a million years. That’s really permanent. 

OK. 

So and what I’m really thinking about is, and this is comes to 

cost effective. If you find someplace that’s cool that works for 200 

years and we’ve got reactors round the country that are—have too 

much waste, that they are storing too much waste and they are by 

the Mississippi River or by the Columbia River. We can say, OK, 

for the next—what is the process of thinking about this in terms 

of what we select. 

What do we need first? What do we need to proceed to either 

going to regional? What is going to effectively solve the problems 

of the reactors that have more waste than they can deal with? 

Mr. LYONS. As the BRC recommended, one can move much more 

expeditiously toward consolidated storage than a repository. The 

Administration is certainly interested in exploring consolidated 

storage options along with repository options. 

But on a consent basis I believe the appropriate sequence of 

events has to be first, the proposals from the local, State, tribal entities, followed by the evaluation of the geology. 

Now we have generic programs either within the Department, 

particularly on salt, where the U.S. is clearly the world leader on 

the suitability of salt formations. 

We have international agreements where we are trying to draw 

on the experience, for example, Sweden and Finland, on granite 

based repositories, France and Switzerland on shale based repositories. 

So there’s a substantial body of knowledge that already exists on 

the utilization of different geologies. We would bring that information to bear as we move through the evaluation of sites that are 

proposed initially through the consent based process. 

Senator FRANKEN. OK. 

Thank you. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you all very much. I think this has been 

very useful testimony. We appreciate you taking time to be here. 

We do have a second panel. Let me introduce them. Dismiss this 

panel. But thank you again for your great service to the country. 

Panel 2 is—consists of Mr. Henry Barron, who is President and 

CEO of Constellation Energy Nuclear Group in Baltimore. 

Mr. Geoffrey Fettus, who is the Senior Attorney with the Nuclear 

Program of the Natural Resources Defense Council. 

We appreciate both of you being here. Why don’t you go ahead 

and tell us the main points you think we need to understand about 

this issue. We’re anxious to hear your views, starting with you, Mr. 

Barron. Go right ahead. 
27 

STATEMENT OF HENRY B. BARRON, PRESIDENT AND CHIEF 

EXECUTIVE OFFICER, CONSTELLATION ENERGY NUCLEAR 

GROUP, LLC, BALTIMORE, MD 

Mr. BARRON. Thank you, Chairman Bingaman, Ranking Member 

Murkowski, Senators Franken and Cantwell. I appreciate this opportunity to speak today about the recently introduced Nuclear 

Waste Administration Act of 2012. 

I’m Brew Barron. I’m the President and CEO of Constellation 

Energy Nuclear Group and also a member of the Nuclear Energy 

Institute’s Executive Committee. We welcome the Senate’s leadership in addressing the Federal Government’s role in the safe and 

secure management and disposal of commercial used nuclear fuel 

through this legislation and this year’s Appropriations process. 

While the proposed legislation represents a positive start to restructuring the Federal program, it does not yet fully address the 

comprehensive changes we believe are needed. Under the law the 

DOE should have begun removing used fuel from commercial nuclear power plant sites 14 years ago. DOE continues to collect over 

$750 million per year from nuclear utilities and consumers and the 

fund accrues almost $1 billion in annual investment income on the 

remaining balance of over $26 billion. 

The collection of nuclear waste fees continues even though the 

DOE, without any technical basis, terminated the Yucca Mountain 

repository project in 2010. The industry has sued the DOE challenging the continued collection of the nuclear waste fees in the absence of a Federal program. The Blue Ribbon Commission on 

America’s Nuclear Future recognized the urgency of addressing the 

past failures of the Federal program and developed 8 key recommendations that the industry supports. 

It’s the industry’s view that consolidated storage is the quickest 

route to the Federal Government to begin moving used fuel from 

commercial and Federal sites around the country and to limit the 

increase in damage awards beyond the $20.8 billion estimated by 

the DOE through 2020. Consolidated storage would be an appropriate use of resources and a prudent financial investment while 

continuing to preserve geologic disposal. Industry is confident that 

if a consolidated storage program begins in 2013 a consolidated 

storage facility can be operational by 2020. 

We should not lose sight of the fact that consolidated storage is 

not a complete answer. A geologic repository will be required and 

should be pursued simultaneously and vigorously with the development of a consolidated storage facility. However, repository, regardless of whether it is a restarted Yucca Mountain project or a new 

site, will take much longer than a consolidated storage facility and 

is highly dependent on available funding. Once a consolidated storage facility is operational priorities should be given to removing 

used fuel from shut down commercial sites that no longer have an 

operating reactor. 

A new Federal management entity with the operating characteristics of a private corporation, with a clear vision and accountabilities and obligations to its investors should assume responsibility 

for this program. Congress and the Administration should retain 

oversight authority. But this role should be structured to avoid cre-
28 

ating an impediment to the efficient operation of a new management entity. 

The Board of Directors should be appointed by the President 

with the advice and consent of the Senate for terms that would 

span at least 2 Presidential Administrations and the Chairman of 

this Board should be elected by its members. 

The Chief Executive Officer should be appointed by the Board 

and not subject to the political uncertainties associated with Presidential appointments so that he or she can focus entirely on the 

task at hand with the requisite attention to nuclear safety and security that is expected from all employees of a nuclear industrial 

company. 

The proposed legislation should be altered in this regard. 

To avoid perpetuating the current funding limitations of the Federal used fuel management program, the new management entity 

should be given unrestricted access to the nuclear waste fees and 

fund with Congressional oversight of efficient use of these funds 

continuing. This will enable the new entity to manage and fund the 

development of storage and disposal facilities consistent with 

standard industry practices for other large scale nuclear safety related processes. 

A consent based siting process is essential to developing enduring local and State support for new used nuclear fuel management 

facilities. This process should not be prescriptively defined but permitted to develop organically among the interested parties. Willing 

communities and States should be allowed to reach their own conclusions regarding whether such a facility is a benefit or a burden 

and negotiate accordingly. 

Success will be measured with an agreement among the interested parties that is ultimately legally enforceable. 

The proposed Nuclear Waste Administration Act of 2012 is a significant step forward and would attract broad stakeholder support. 

Immediate action is necessary to establish a sustainable program 

and reduce the liabilities that the taxpayer—to the taxpayer as 

quickly as possible. Congress must act. 

Thank you for the opportunity to testify. I’ll be pleased to answer 

your questions. 

[The prepared statement of Mr. Barron follows:] 

PREPARED STATEMENT OF HENRY B. BARRON, PRESIDENT AND CHIEF EXECUTIVE

OFFICER, CONSTELLATION ENERGY NUCLEAR GROUP, LLC, BALTIMORE, MD 

Chairman Bingaman, Ranking Member Murkowski, members of the committee, 

thank you for the opportunity to speak today about the recently introduced Nuclear 

Waste Administration Act of 2012. We welcome the Senate’s leadership in addressing the federal government’s role in the safe and secure management and disposal 

of commercial used nuclear fuel through this legislation and this year’s appropriations process. While the proposed legislation represents a positive start to overhauling the federal program, it does not provide the comprehensive changes that are 

needed. 

Over the past 70 years, applications of nuclear fission—including research, medicine, naval propulsion and power production—have produced immeasurable benefits 

for our society. They have also resulted in a large and growing inventory of used 

nuclear fuel and high-level radioactive waste. The commercial nuclear industry and 

the federal government have demonstrated that they can safely and securely store 

used nuclear fuel and high-level radioactive material. About 68,000 metric tons of 

uranium (MTU) of commercial used fuel is safely managed at nuclear energy facilities, but storing the fuel on site was never meant to be a long-term solution. By 
29 

now, the Department of Energy (DOE) already should have moved more than 25,000 

MTU of reactor fuel from our sites and should be moving an additional 3,000 MTU 

per year. 

Consumers of electricity generated at nuclear energy facilities have committed 

more than $34 billion since 1982 to the Nuclear Waste Fund for the federal program 

that was supposed to have begun removing used fuel from commercial nuclear 

power plant sites 14 years ago. The Department of Energy continues to collect more 

than $750 million per year from consumers, and the fund accrues almost $1 billion 

in investment income on the remaining balance of over $26 billion. The collection 

of Nuclear Waste Fund fees is ongoing, despite the fact that the Department of Energy, without any technical basis, terminated the Yucca Mountain repository project 

in 2010. 

The industry and the DOE had been working for decades with considerable success on the development of a deep geologic repository in the United States for used 

nuclear fuel and high-level radioactive waste, until the program was terminated and 

the Office of Civilian Radioactive Waste Management (OCRWM) dissolved in 2010. 

These decisions were not supported by the industry and have resulted in court actions that would have otherwise been unnecessary. The industry continues to support the completion of the Yucca Mountain licensing process and as a result of the 

administration’s actions, the industry has filed suit against DOE challenging the 

continued collection of the Nuclear Waste Fee in the absence of a federal program. 

The Path to Success 

The Nation would be best served by adherence to the following principles that will 

ensure the establishment of a stable used nuclear fuel management policy and program: 

• America must have a durable policy supported by a dedicated and sustainable 

infrastructure to manage used nuclear fuel responsibly. 

• America must have a plan for the ultimate disposal of the byproducts from nuclear energy. 

• An ideal technical solution is not required to begin implementation of a new 

policy direction. Evolutionary, and perhaps revolutionary, advances in technology improvements can be incorporated over time without deferring decisions 

until decades of research are completed. 

• The successes and failures of the past must be understood to help guide future 

innovation, especially the need to build public trust in the systems and facilities 

ultimately developed. 

Legislative action is needed to put such an enduring policy and program in place. 

The Blue Ribbon Commission on America’s Nuclear Future (BRC) was chartered 

by the Department of Energy in 2010 and was tasked with developing a path forward for the nation’s used fuel and high-level radioactive waste management program. The Blue Ribbon Commission concluded that the United States needs a new, 

integrated strategy for managing the back end of the nuclear fuel cycle, including 

a new approach to siting nuclear waste storage and disposal facilities. The BRC outlined eight key recommendations, which are consistent with the aforementioned 

principles for a stable used fuel management policy and program, and have the potential to create a stable and enduring program that could be supported by all 

stakeholders: 

• Access to the funds nuclear utility ratepayers are providing for the purpose of 

nuclear waste management. 

• Prompt efforts to develop one or more consolidated storage facilities. 

• A new organization dedicated solely to implementing the waste management 

program and empowered with the authority and resources to succeed. 

• Prompt efforts to develop one or more geological disposal facilities. 

• A new, consent-based approach to siting future nuclear waste management facilities. 

• Prompt efforts to prepare for the eventual large-scale transport of used nuclear 

fuel and high-level waste to consolidated storage and disposal facilities when 

such facilities become available. 

• Support for continued U.S. innovation in nuclear energy technology and for 

workforce development. 

• Active U.S. leadership in international efforts to address safety, waste management, nonproliferation, and security concerns. 
30 

Growing Federal Liability 

Even before the Office of Civilian Radioactive Waste Management was closed, the 

urgency for DOE to fulfill its statutory and contractual responsibilities to manage 

used fuel and high-level radioactive waste was growing, as was the associated cost 

to the taxpayer. The DOE was required by statute and contract to begin moving 

used fuel from reactor sites in 1998. The BRC report describes how taxpayers, 

through payments from the taxpayer-funded Judgment Fund, are paying for courtawarded damages from DOE’s partial breach of its contracts with electric companies. DOE estimates that the damage awards from the Judgment Fund will total 

$20.8 billion if the federal government begins accepting used fuel in 2020. This expense, for which the taxpayer receives no benefit, is in addition to monies paid by 

consumers of electricity produced from nuclear energy into the Nuclear Waste Fund. 

The BRC estimates that the damage awards associated with the DOE’s breach may 

increase by as much as $500 million for each year after 2020 that DOE does not 

begin to accept used fuel. It has become virtually impossible for the DOE to begin 

to meet its obligation to move used fuel before 2020, given the absence of any federal program. 

The industry believes that a multi-pronged approach is necessary if the federal 

government’s used fuel and high-level radioactive waste program is to be rebuilt and 

stakeholder confidence restored. This multipronged approach should include the following elements: 

• Legislation instructing and funding DOE or the new management entity to establish one or more consolidated storage facilities for used nuclear fuel while 

simultaneously making substantial progress towards developing a repository for 

ultimate disposal • The establishment of new organization dedicated solely to implementing the 

waste management program and empowered with the authority and resources 

to succeed • Access to the funds that consumers have provided, and continue to provide, for 

the purpose of managing high-level radioactive material. 

The Need for Consolidated Storage 

Consolidated storage, as recommended by the BRC, is the quickest route for the 

federal government to begin moving used fuel from nuclear energy facilities and to 

stem the increase in damage awards beyond the estimated $20.8 billion through 

2020. In addition to storing used nuclear fuel from commercial facilities, a consolidated storage facility could also store DOE and U.S. naval reactor fuel. This could 

provide a pathway for the federal government to meet its obligations to remove this 

material from the various states where it is stored. 

Developing consolidated storage would be an appropriate use of resources and a 

prudent financial investment that would permit the federal government to begin 

meeting its obligations, limiting the damages paid by the taxpayers, and restoring 

faith in the federal program, paving the road for a repository to eventually be 

opened. By reducing liability, consolidated storage will free up resources and better 

enable the federal government to pursue and complete the ultimate goal of geologic 

disposal. 

In addition to the industry and the BRC, the National Conference of State Legislatures, the governors of Maine, Maryland, Pennsylvania, and Vermont and many 

other organizations and political leaders have all publicly called for action to implement the BRC recommendations and, specifically, development of a consolidated 

storage facility. 

A New Federal Used Fuel Management Corporation is Needed 

A key element to the long-term success of a federal program is establishing a new 

entity to assume program management responsibility from the DOE. Industry supports the concept of a federal corporation as outlined in the BRC final report. The 

operating characteristics of a new management entity must more closely resemble 

those of a corporation with a clear mission and obligations to its investors rather 

than a federal agency in order to succeed. Congress and the administration should 

retain an oversight authority, but this role should be structured to avoid creating 

an impediment to the efficient operation of a new management entity. 

Similar to commercial companies, the chief executive officer of the new management entity should be selected and appointed by a board of directors. As the BRC 

recommends, the board should be appointed by the President with the advice and 

consent of the Senate for terms that would span at least two presidential administrations and the chairman of the board should be elected by its members. It is imperative that the CEO not be subjected to the political uncertainties associated with 

presidential appointments so that he or she can focus entirely on performing the 
31 

task at hand with the requisite attention to nuclear safety and security that is expected from all employees of a nuclear industrial company. The instability that can 

be created as a result of the political appointment process is well-illustrated by the 

now-defunct Office of Civilian Radioactive Waste Management (OCRWM). This office, whose director was appointed by the President and confirmed by the Senate, 

never realized stable long-term leadership because of the turnover of directors associated with changes at the White House. From 1983 to 2010, OCWRM had six appointed and confirmed directors and nine acting directors. The incumbent director 

was replaced with every new administration. 

The Nuclear Waste Administration Act of 2012 would not sufficiently insulate the 

new Nuclear Waste Administration leadership from the political process since both 

the administrator and deputy administrator would be appointed by the President 

with the advice and consent of the Senate, as are the members of the proposed oversight committee. If implemented as proposed, both the Nuclear Waste Administration’s senior management and the members of the oversight board would likely be 

replaced with every new administration, and the history of the federal government’s 

failure to meet its statutory and contractual obligations would likely be repeated. 

Direct Access to Sufficient Funding 

Enduring leadership is essential, but not sufficient in its own right to create a 

successful and sustainable program. As the Nuclear Waste Administration Act of 

2012 recognizes and addresses, a new management entity must have direct access 

to and control over the funds necessary to implement the program. The industry 

and consumers have provided and continue to provide these funds. With a $26 billion balance in the Nuclear Waste Fund, almost $1 billion accruing in interest and 

approximately $750 million in Nuclear Waste Fees being deposited annually, funding for the government’s program should be secure and available to program managers. Unfortunately, this has not been the case. The congressional budgeting and 

appropriations processes have resulted in appropriations to OCRWM being considered in the context of the overall DOE and federal government budget and not simply in the context of the available funds in the Nuclear Waste Fund. The BRC report, which discusses the Nuclear Waste Fund in great detail, states that ‘‘a program that was intended to be fully self-financing now has to compete for limited 

discretionary funding in the annual appropriations process, while the contractual 

user fees intended to prevent this from happening are treated just like tax revenues 

and used to reduce the apparent deficit on the mandatory side of the federal budget 

(which deals with expenditures and receipts that are not subject to annual appropriations).’’ Recognizing that these funds were collected with the indisputable intention of supporting clear statutory and contractual obligations, there is not a rational 

basis for considering their use discretionary. 

To avoid perpetuating the current funding limitations, a new management entity 

must be given unrestricted access to the Nuclear Waste Fees and the Nuclear Waste 

Fund with Congressional oversight of the efficient use of these funds continuing. 

This will enable it to appropriately manage and fund the development of storage 

and disposal facilities consistent with standard industry practices for other 

largescale nuclear safety related projects. The current legislation achieves this goal 

for the Nuclear Waste Fee payments. However, it could be enhanced with respect 

to access to the Nuclear Waste Fund. 

Geologic Disposal is Critical 

The Nuclear Waste Administration Act of 2012 goes a long way towards achieving 

the multi-pronged approach outlined above. Ideally the elements of that approach 

(new management entity, surety of funding, consolidated storage while vigorously 

pursuing disposal) would be implemented simultaneously to create a solid foundation for a sustainable used nuclear fuel management program. 

The eventual completion of the Yucca Mountain repository (an endeavor that will 

cost more than $13 billion, according to a 2007 DOE report) or the siting and construction of a new repository will most likely take more than two decades depending 

on Congressional funding. By 2040, the damages paid by the taxpayer could be as 

much as $30 billion. A consolidated storage facility could be built at a fraction of 

the cost of a repository. The Electric Power Research Institute (EPRI) estimates a 

40,000 MTU storage facility could be built for approximately $500 million and industry estimates that such a facility could be opened by 2020 if work begins in 2013. 

If instructed by Congress to pursue consolidated storage, DOE or a new management entity could use this facility to meet DOE’s statutory and contractual obligations by removing used fuel from commercial nuclear power sites, taking title to the 

used fuel, and shipping it to the storage facility where it would be stored until a 

final disposal or alternate disposition pathway is available. 
32 

* Attachment 1 has been retained in committee files. 

We should not lose sight of the fact that consolidated storage is not a complete 

answer. A geologic repository will be required and should be pursued simultaneously 

with the development of a consolidated storage facility. Attachment 1* provides a 

comparison of hypothetical timelines for the development of a consolidated storage 

facility and the Yucca Mountain project assuming that both programs are underway 

in 2013. As the attachment illustrates, the completion date for Yucca Mountain 

would be highly dependent on the rate at which funds are expended. Despite the 

fact that the Nuclear Waste Fund has more than sufficient funding to complete the 

Yucca Mountain project, it is highly unlikely that the program could efficiently deploy the funding necessary (approaching $2 billion annually) to complete licensing 

and construction in the near term. 

Priority to Shutdown Sites 

Once a consolidated storage facility has been authorized, the industry and the federal management entity should collaborate to ensure that transportation issues, including efficient ordering of used fuel acceptance from commercial sites, are appropriately addressed. Prior to removing used fuel from operating plant sites, the industry agrees that priority should be given to the shutdown commercial sites that 

no longer have an operating reactor. This approach, supported by the BRC and the 

Nuclear Waste Administration Act of 2012, has numerous advantages. It would permit the 10 shutdown sites, which in many cases have only used fuel storage remaining at the site, to be fully decommissioned and the land to be used for more beneficial purposes. In addition, the taxpayer, through the taxpayer-funded Judgment 

Fund, would no longer be liable for the continued cost of storing used fuel at these 

shutdown sites at a cost of approximately $8 million per year per site. 

Consent-Based Facility Siting 

Strength of leadership and financial resources alone will not guarantee success in 

siting new facilities. As the BRC recommends and the Nuclear Waste Administration Act of 2012 implements, a consent-based siting process is essential to developing enduring local and state support for new facilities. Since the release of the 

BRC report, the consent-based siting recommendation has received significant support as well as questions about how it would be implemented. 

A consent-based siting process should not be prescriptively defined, but permitted 

to develop organically among the interested parties. Regardless of the specific process for developing consent, success will be measured by an agreement among the 

interested parties that is legally enforceable. During the process, the parties involved must negotiate in good faith and be open to creative solutions to address 

issues that arise, including oversight, incentives and compensation. The management entity and the federal government should not attempt to predetermine the 

‘‘burden’’ that a community or state should accept or impose restrictions on the development of a consolidated storage facility that are linked to milestones related to 

a disposal program. To do so would be contrary to the nature of a consent-based 

process. Congress and the new management entity or DOE must be willing to let 

communities and states reach their own conclusions about whether or not it is a 

burden to host a new facility and to let them identify the framework and restrictions 

under which they wish to operate. There are communities that would see hosting 

such facilities as a benefit. The siting and operation of the Waste Isolation Pilot 

Plant in New Mexico is proof that such a process can be successful. 

Closing 

The Nuclear Waste Administration Act of 2012 is a significant step forward and, 

with the enhancements as discussed, it could create a sustainable program that 

would garner wide stakeholder support. The most important point, however, is that 

immediate action is necessary to establish a sustainable program and reduce the liabilities for the taxpayer as quickly as possible. Congress must act. Energy companies, their local communities and states, and American taxpayers deserve to have 

confidence in a federal program that will meet its statutory and contractual obligations to safely and securely accept, transport, store, and ultimately dispose of used 

nuclear fuel and high-level radioactive waste. 

The CHAIRMAN. Thank you very much. 

Mr. Fettus, why don’t you go ahead? 
33 

STATEMENT OF GEOFFREY H. FETTUS, SENIOR ATTORNEY, 

NUCLEAR PROGRAM, NATURAL RESOURCES DEFENSE 

COUNCIL 

Mr. FETTUS. Good morning. 

I’m Geoffrey Fettus, an attorney with the Natural Resources Defense Council. I want to thank the Chairman and the Ranking 

Member for inviting us to share our views on S. 3469. I’ve submitted written testimony to be included in the record and I’ll focus 

briefly today on 4 points. 

Point 1. 

Chairman Bingaman wisely focused the bill on creating a new 

pathway to develop repositories. Repositories are the only technically, economically and morally viable solution. NRDC strongly 

supports that effort for the development of a new and improved legislative pathway. 

Turning to point 2. 

We fully support Chairman Bingaman’s caution that any temporary storage facility must not become a permanent one. In significant measure S. 3469 is well constructed as it bars any future 

nuclear waste administration from taking title to and storing spent 

fuel before ratification of the consent agreements described in section 304. A provision that bars moving forward with interim consolidated storage facilities before a repository program is under full 

development wisely puts the horse before the cart. It ensures precisely the linkage the Chairman describes as necessary. 

But this sensible linkage, we think, is undone by the current 

form of section 306(b) which provides an exception for 10,000 metric tons of spent nuclear fuel. Indeed the only situation where we 

see merit in a pilot project for storage and we do see that there 

could be merit, is to address stranded spent fuel at the 9 closed reactor sites or for spent fuel that fails to meet certain safety thresholds. Such a site would have to be in a hardened building like the 

outhouse facility in Germany. 

Potential volunteer sites that have already demonstrated consent 

are operating commercial reactors. Far less in the way of new infrastructure would be required and capacity for fuel management 

and transportation is already in place. Along with the consent necessary for hosting nuclear facilities in the first instance, nothing 

like this has been suggested. We urge the committee that simply 

providing an expedient storage option for industry that solves no 

problem like the stranded fuel or addresses no serious safety concerns fails to heed the careful caution expressed by Chairman 

Bingaman. 

Turning to point 3. 

The understanding that the polluter pays the bill for the contamination it creates is properly embedded in S. 3469. This bipartisan concept has a long history in American law. We support its 

inclusion here. Perpetuating this requirement that the industry 

must invest in solutions to the problems it creates is appropriate 

and any relaxation of any such requirement would result in immediate objection from NRDC and I would imagine many others including the taxpayer. 

Finally, point 4. 
34 

Section 304 is the heart of S. 3469 and is most attentive to the 

BRC’s strong recommendation of a consent based approach that 

we’ve talked about today. Indeed we applaud the general thrust. 

But any consent based approach will enjoy a higher probability of 

success if Congress removes the Atomic Energy Act’s exemptions 

for radio nuclides from our Nation’s water and hazardous waste 

laws. 

These anachronistic exemptions from environmental law are at 

the heart of state and public distrust of both government and commercial nuclear facilities. If EPA and the states had full legal authority and could treat radio nuclides, as they do other pollutants, 

clear cleanup standards could be promulgated. We could be farther 

along in remediating the toxic legacy of the cold war, mentioned by 

both Senators Cantwell and Wyden today. 

Further, we could avoid some ongoing disputes over operations at 

commercial nuclear facilities even the BRC recognized this as it 

noted that New Mexico’s hazardous waste regulation of the WIPP 

facility is a critical element of public acceptance. 

Any regulatory change of this magnitude would have to be harmonized with NRC licensing jurisdiction over nuclear facilities and 

EPA’s existing jurisdiction over radiation protection standards. But 

such a process is certainly within the capacity of those Federal 

agencies. Some states would assume environmental jurisdiction 

over radioactive material, others might not. But in either event improved clarity in regulatory structure and a meaningful state oversight role would allow, for the first time, consent based and transparent decisions to take place in the matter of developing repositories. 

We address closed fuel cycles and other matters in our written 

statement. I’m happy to take questions on those as well. 

But I’ll close with one over arching premise that we hope guides 

congressional work on this matter. Years or decades from now others will face the precise predicament we face today unless Congress 

creates a transparent, equitable process with strong environmental 

standards that can’t be manipulated in order to license a site that 

may not be suitable. Chairman Bingaman has made a really, in our 

estimation, a superb and meaningful start with S. 3469. With the 

addition of our recommendations, we are optimistic that meaningful solutions lie ahead. 

As I stated to the BRC almost 1 year ago in Denver, I can’t guarantee that NRDC’s recommendations will result in a solution. But 

I can point to strong evidence that following a course similar to the 

last 2 decades results in failure. 

I’d like to close with one personal note. As a former New Mexican, thank you Senator Bingaman for representing me brilliantly 

in Congress for all these years and also for my time in DC, for your 

just extraordinary staff. 

So, thank you again for this opportunity to testify. I’m happy to 

answer your questions. 

[The prepared statement of Mr. Fettus follows:] 
35 

1President Obama’s ‘‘Blue Ribbon Commission on America’s Nuclear Future—Report to the 

Secretary of Energy, January 31, 2012’’ (hereafter ‘‘BRC Report’’ or ‘‘Final Report’’). 

PREPARED STATEMENT OF GEOFFREY H. FETTUS, SENIOR ATTORNEY, NUCLEAR

PROGRAM, NATURAL RESOURCES DEFENSE COUNCIL

Introduction 

Mr. Chairman and members of the Committee, thank you for providing the Natural Resources Defense Council, Inc. (NRDC) this opportunity to present our views 

on S. 3469, A Bill to establish a new organization to manage nuclear waste, provide 

a consensual process for siting nuclear waste facilities, ensure adequate funding for 

managing nuclear waste, and for other purposes. 

NRDC is a national, non-profit organization of scientists, lawyers, and environmental specialists, dedicated to protecting public health and the environment. 

Founded in 1970, NRDC serves more than one million members, supporters and environmental activists with offices in New York, Washington, Los Angeles, San Francisco, Chicago and Beijing. We have worked on nuclear waste issues since our founding, and we will continue to do so. 

NRDC commends the Chairman’s focus on three fundamental principles that 

must be adhered to if America is ever to develop an adequate, safe solution for nuclear waste. First, Chairman Bingaman’s S. 3469 incorporates the principle that the 

waste from the nation’s nuclear weapons program and its commercial nuclear power 

plants must be buried in technically sound deep geologic repositories, permanently 

isolated from the human and natural environments. That principle for disposal is 

consistent with more than 50 years of scientific consensus and, most recently, the 

views of President Obama’s bipartisan Blue Ribbon Commission (BRC)./1/ No other 

solutions are technically, economically or morally viable over the long term and 

NRDC strongly supports the development of a science-based repository program that 

acknowledges the significant institutional challenges facing spent fuel storage and 

disposal. 

Second, we support Chairman Bingaman’s careful analysis that any ‘‘temporary’’ 

storage facility must not become a permanent one. This is a powerful principle that 

should guide the legislative process. NRDC concurs with the Chairman’s caution 

that whatever case can be made for interim storage can be done ‘‘only as an integral 

part of the repository program and not as an alternative to, or de facto substitute 

for, permanent disposal.’’ Consistent with thirty years of national policy and the 

purpose of the Nuclear Waste Policy Act (NWPA), 42 U.S.C. § 10131(b)(1), Senator 

Bingaman has provided a crucial linkage between developing storage facilities and 

final repositories. We are, however, concerned that the pilot program offered in S. 

3469 upsets this precisely-defined architecture. The evidence of the past 30 years 

shows that legislative efforts that sever such linkages between development of storage and final repository sites inevitably doom the process and virtually guarantee 

a repeat of the mistakes made in the failed Yucca Mountain effort. 

Third, properly embedded in S. 3469 is the fundamental concept that the polluter 

pays the bill for the contamination that it creates. This bipartisan concept has a 

long history in American law and it should remain in full force in any new nuclear 

waste legislation. Federal assumption of the waste burden is an extraordinary boon 

to the nuclear industry, a benefit enjoyed by no other electricity-producing industry. 

At minimum, perpetuating the requirement that the industry must invest in the solution is appropriate and any relaxation of such requirements would result in immediate objection from NRDC and a host of others. 

Chairman Bingaman has made a laudable effort and turned some of the stronger 

ideas in the recent BRC report into legislative language. We support fundamental 

components in the proposed bill, dispute other parts, and have several key suggestions for expansion and refinement of S.3469. But the Chairman’s emphasis on the 

necessity of repositories and the need to link any potential storage site with the development of a disposal site is of lasting value. Any legislation that fails to adhere 

to these concepts will prolong the failures of the past 30 years in developing solutions for nuclear waste. 

Five Recommendations 

Today, in commenting on specific sections of S. 3469, I offer five recommendations 

for ensuring the success of any legislative outcomes-(1) recognize that repositories 

must remain the focus of any legislative effort; (2) create a coherent legal framework 

before commencing any geologic repository or interim storage site development process; (3) arrive at a consent-based approach for nuclear waste storage and disposal 

via a fundamental change in law; (4) address storage in a phased approach consistent with the careful architecture of S. 3469; and (5) exclude polarizing closed fuel 
36 

cycle and reprocessing options from this effort to implement the interim storage and 

ultimate disposal missions. 

Importantly, our view on each area is premised on a single overarching caution: 

in order to avoid repeating the mistakes of the last three decades, Congress must 

create a transparent, equitable process incorporating strong public health and environmental standards insulated from gerrymandering or other distortions in order to 

ensure, at the conclusion of the process, the licensing of a suitable site (or sites). 

What follows are NRDC’s detailed comments on S. 3469 and recommended prerequisites for establishing a protective and robust nuclear waste storage and disposal process. 

RECOMMENDATION 1—THE NECESSITY OF REPOSITORIES

Titles I and II—Comments on Sections 101-206 

Title I of S. 3469, in significant measure, recognizes our generation’s ethical obligation to future generations regarding nuclear waste disposal. But we suggest an 

explicit adoption of the first purpose of the Nuclear Waste Policy Act (NWPA), 42 

U.S.C. § 10131(b)(1), as the decision to isolate nuclear waste from the biosphere implicates critical issues of security, including: financial security, environmental protection, and public health. After more than 55 years of failure, policy makers must 

look with clear eyes at the history of U.S. nuclear waste policy, an exercise that 

President Obama’s Blue Ribbon Commission failed to do. The BRC recommended 

geologic repositories and S. 3469 suggests a new path to arrive at them, and we concur with and support efforts to develop geologic repositories. But we emphasize 

today that the record created by this hearing should fully reflect the story of how 

the Environmental Protection Agency (EPA), the Department of Energy (DOE), the 

Nuclear Regulatory Commission (NRC), the Justice Department, and the U.S. 

House and Senate together corrupted the process for developing and implementing 

licensing criteria for the Yucca Mountain repository. Failure to understand that history will doom any new effort. 

While the BRC recognized that the 1987 amendments to the NWPA were ‘‘highly 

prescriptive’’ and ‘‘widely viewed as being driven too heavily by political considerations,’’ those observations are insufficiently critical assessments of what actually 

occurred. We recommend that Congress be clear about what happened to avoid repeating the mistakes of the past. Put bluntly, first DOE and then Congress corrupted the site selection process leading to Yucca Mountain as the only option. The 

original NWPA strategy contemplated DOE first choosing the best out of four or five 

geologic media, then selecting a best candidate site in each media alternative. Next, 

DOE was to narrow the choices to the best three alternatives, finally picking a preferred site for the first of two repositories. A similar process was to be used for a 

second repository. Such a process, if it had been allowed to fairly play out, would 

have been consistent with elements of the adaptive, phased, and science-based process to which the BRC referred. 

But instead, what happened was that DOE first selected sites that it had pre-determined. Then in May of 1986 DOE announced that it was abandoning a search 

for a second repository, and narrowed the candidate sites from nine to three, leaving 

in the mix the Hanford Reservation in Washington (in basalt medium), Deaf Smith 

County, Texas (in bedded salt medium) and Yucca Mountain in Nevada (in unsaturated volcanic tuff medium). Next, all equity in the site selection process was abandoned in 1987, when Congress, confronted with cost of characterizing three sites and 

strong opposition to the DOE program, amended the NWPA of 1982 to direct DOE 

to abandon the two-repository strategy and to develop only the Yucca Mountain site. 

Not by coincidence, at the time, Yucca Mountain was DOE’s preferred site, as well 

as being the politically expedient choice for Congress. The abandonment of the 

NWPA site selection process jettisoned any pretense of a science-based approach, led 

directly to the loss of support from the State of Nevada, diminished Congressional 

support (except to ensure that the proposed Yucca site remained the sole site), and 

eviscerated public support for the Yucca Mountain project. 

Briefly, with respect to Title II and the creation of a Nuclear Waste Administration, as NRDC has expressed numerous times over past years, the failures of the 

Atomic Energy Commission and its successor agencies (Energy Research Development Agency, DOE and the NRC) make the case that an alternative institutional 

vehicle for nuclear waste disposal is necessary. However, we note that any such new 

federal entity must be subject to all of the nation’s environmental laws, including 

the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq. We presume such is the case for this proposed agency. Alternative language may be necessary to clarify specific application of NEPA at certain junctures of the siting proc-
37 

2 EPA repeatedly issued standards concerned more with licensing the site than establishing 

protective standards. EPA’s original 1985 standards were vacated in part because EPA had 

failed to fulfill its separate duty under the Safe Drinking Water Act, 42 U.S.C. §300h, to assure 

that underground sources of water will not be ‘‘endangered’’ by any underground injection. 

NRDC v. EPA, 824 F.2d 1258 (1st Cir. 1987). EPA’s second attempt to at setting standards that 

allow for a projected failure of geological isolation was again vacated, this time by the United 

States Court of Appeals for the D.C. Circuit. The D.C. Circuit found EPA’s Yucca Mountain rule 

(and the corresponding NRC standard), which ended its period required compliance with the 

terms of those rules at 10,000 years was not ‘‘based upon or consistent with’’ the recommendations of the National Academy of Sciences as required by the 1992 Energy Policy Act and therefore must be vacated. Nuclear Energy Institute, Inc. v. EPA, 373 F.3d 1251 (2004). 

ess (for example, in support of the initial guidelines), but it is clear to us that NEPA 

has full application to the newly proposed Nuclear Waste Administration. 

Additionally, it has long been NRDC’s view that independent oversight is critical 

to safe and environmentally sound operation of DOE nuclear weapons production facilities and commercial nuclear facilities regulated by the NRC. Indeed, the full 

suite of environmental laws should have full application. We will address this issue 

in more detail when discussing Section 304. As a last note to this Title, the meaning 

of Section 102(4) should be expanded and clarified to remove the word ‘‘centralized’’ 

and the words ‘‘safe, environmentally sound and publicly acceptable’’ storage should 

be inserted to address several of the concepts we will detail in the testimony that 

follows. 

RECOMMENDATION 2—CREATE A COHERENT FRAMEWORK BEFORE COMMENCING THE

NUCLEAR WASTE SITING PROCESS

Title III—Functions, Sections 301-308 

A. Comments on Section 305—To avoid repeating the failure of the proposed 

Yucca Mountain process, we urged the BRC and we urge this Committee now to 

be explicit and state clearly in legislation that both the standards for site screening 

and development criteria be in final form before any sites are considered. We also 

urge that generic radiation and environmental protection standards be established 

prior to consideration of any sites. S. 3469 has gone much of the way toward structuring such a result, but we have some specific concerns. 

Section 305 directs EPA to adopt, by rule, broadly- applicable standards for protection of the general environment from offsite releases from radioactive material 

in geologic repositories. Further, Section 305(b) directs NRC to then amend its regulations governing the licensing of geological repositories to be consistent with any 

comparable standard adopted by EPA. These requirements and the phasing of the 

agency actions are appropriate (first EPA sets the standards and then NRC ensures 

its licensing process meets those standards). However, the timeline required in S. 

3469—not later than one year after the enactment of this Act and not later than 

1 year after the adoption of generally applicable standards by EPA—provides inadequate time for the agencies to properly do their work. After repeated and flawed 

attempts to establish Yucca Mountain standards, we are optimistic that EPA will 

not need two decades and can get the job done in a reasonable amount of time, if 

given adequate resources./2/ 

As this Committee is aware, at this time EPA has few staffing resources, consultants, or budget for standards preparation. It would take at least a year after enactment and subsequent Congressionally-appropriated funds to properly staff the task. 

EPA would then have to do a rulemaking notice, preferably including hearings/ 

meetings, develop a proposed rule for public comment, and then go about the task 

of issuing a publicly informed final rule. A constraint of one year (for both EPA and 

NRC) invites a rushed, inadequate job that hamstrings both agencies and likely denies the states, tribes, and public a meaningful opportunity to fully inform the process. 

Additionally, while the requirement to promulgate generic standards is welcome, 

care must be taken to insulate any site standard, development or regulatory framework from adverse pressures applied by the Office of Management and Budget, the 

Department of Justice, DOE and the NRC. Indeed, it is our assessment that past 

administrations’ failures to protect EPA from just such pressures is why the development of the EPA standard setting process was so problematic. The one-year time 

frames invite just such pressure and we urge, in the alternative, Congressional attention to ensure EPA has adequate resources and time for the task. 
38 

RECOMMENDATION 3—A FUNDAMENTAL CHANGE IN LAW IS NECESSARY

A. Comments on Section 304—Siting Nuclear Waste Facilities and Amending the 

Atomic Energy Act 

1. The Necessary Change—Section 304 is the heart of S. 3469 and there is much 

to applaud here. The Section is attentive to BRC’s recommendation in its Final Report of a ‘‘consent-based, adaptive, and phased approach’’ for developing geologic disposal options. We agree with the general thrust of such a conceptual framework for 

developing repositories, but any such ‘‘consent-based’’ process will enjoy a far higher 

probability of success in concert with a simple, but profound, change in the law. As 

the BRC’s Final Report acknowledges but fails to meaningfully discuss, current federal law, including aspects of the Atomic Energy Act (AEA), has the effect of preempting almost all forms of state regulation over a high level radioactive waste facility and, indeed, over regulation of radionuclides in general. 

Congress should, via S. 3469 and after appropriate hearings on the proper scope, 

remove once and for all the AEA’s exemptions for radionuclides from our nation’s 

water and hazardous waste laws. These anachronistic exemptions from environmental law are at the heart of state and public distrust of both government and 

commercial nuclear facilities. A great deal of the structure of S. 3469 can help build 

a better nuclear waste management system, but we submit that decades from now 

the Nation will return to the same predicament (no matter how improved the architecture of said system) unless States are provided with meaningful regulatory authority under existing environmental laws. 

2. Section 304(a)—Section 304(a) sets out the general terms of a process that reflects the transparent, adaptive, consent based qualities called for by the BRC. Allowing affected communities to decide, and on what terms, they will host a nuclear 

waste facility is an important step forward that has not heretofore existed in nuclear legislation. 

3. Section 304(b)—Section 304(b) wisely provides for consistency with Section 

112(a) of the NWPA but requires the issuance of guidelines not later than one year 

after the date of enactment of this Act. As with Section 305, we think one year an 

inadequate time frame. We support such consistency with the enumerated provisions in Section 112(a) and agree that additional attention is important to detailed 

considerations such as minimizing impacts of transportation and handling and to 

not unduly burden states storing significant volumes of defense wastes is important. 

But it is our strong recommendation that more time should be provided for the 

agency to get up and running before final guidelines become statutory time restrictions. Indeed, such guidelines must comply with NEPA, and ensuring those guidelines are in place prior to consideration of any storage or disposal site could go a 

long way in avoiding the mistakes of the past. 

4. Section 304(c)—Section 304(c) sets up a process for determining candidate sites 

that, in general terms, could chart a process arriving at protective disposal solution, 

if it is: (1) undertaken subsequent to imposition of sound final site screening and 

development criteria and sound final generic radiation and environmental protection 

standards; and (2) not hamstrung or corrupted by Congress, other federal agencies 

or the Executive Branch. However, the Environmental Assessment required in Section 304(c)(4) should explicitly be termed an Environmental Impact Statement to ensure there is no confusion regarding NEPA obligations. 6 

5. Section 304(d)—Section 304(d) sets forth requirements for characterizing sites 

and for consulting agreements with potential nuclear waste recipient states. If performed in a careful, phased fashion prior to embarking on the final site suitability 

determination delineated in Section 304(e), such a characterization process could 

allow for the phased and adaptive approach recommended by the BRC. Key decisions could be revisited and modified as necessary along the way rather than being 

pre-determined, and the process itself could be flexible and produce decisions that 

are responsive to new information and new technical, social, or political developments. 

6. Section 304(f)—Section 304(f) seeks to provide legislative text responsive to the 

BRC’s recommendation that any successful approach must be consent based—in the 

sense that affected communities will have an opportunity to decide whether to accept facility siting decisions and will retain significant local control. Several components in the proposed text merit attention. If such a provision were enacted into 

law, allowances for any recipient state to have regulatory oversight authority, and 

authority over operational limitations, are crucial recognitions of the need for meaningful state oversight that have been missing from previous efforts at nuclear waste 

disposal. Equally important is the statutory requirement that Congress must ratify 

(and, assuredly, the President must therefore sign) any consent agreement. And finally, the statutory direction that neither party (the federal or state government) 
39 

3The BRC Report omits discussion of the fierce effort New Mexico waged to obtain RCRA authority over the site. 

may unilaterally amend or revoke the contract is a concept that NRDC fully supports. 

But for all those laudable qualities, we believe the suggested consent agreements 

will not solve the fundamental problem facing nuclear waste disposal. We suggest 

Congress, with its firm understanding of federalism, legislate a role for states in nuclear waste disposal by amending the Atomic Energy Act (AEA) to remove its express exemptions of radioactive material from environmental laws. 

State, local and tribal governments must be central in any prescription for a successful repository and waste storage program. The BRC recognized as much and 

noted federal and state tensions are often central in nuclear waste disputes. The 

BRC’s Final Report states in pertinent part: 

We recognize that defining a meaningful and appropriate role for states, 

tribes, and local governments under current law is far from straightforward, given that the Atomic Energy Act of 1954 provides for exclusive 

federal jurisdiction over many radioactive waste management issues. Nevertheless, we believe it will be essential to affirm a role for states, tribes, 

and local governments that is at once positive, proactive, and substantively 

meaningful and thereby reduces rather than increases the potential for conflict, confusion, and delay. 

Final Report at 56 (citation omitted). 

Without fundamental changes in the law to address such federal, state and tribal 

tensions, we will never approach closure and consent on transparent, phased, and 

adaptive decisions for nuclear waste siting. Indeed, even if such a provision as Section 304(f) is enacted into law, we think it likely disputes will continue unchecked 

unless Congress avails itself of the opportunity to finally suggest a decades-overdue 

change in the law which we will now explore in more detail. 

A meaningful and appropriate role for states in nuclear waste siting can be accomplished in a straightforward manner by amending the Atomic Energy Act (AEA) 

to remove its express exemptions of radioactive material from environmental laws. 

The exemptions of radioactivity make it, in effect, a privileged pollutant. Exemptions from the Clean Water Act and the Resource Conservation and Recovery Act 

(RCRA) are at the foundation of state and, we submit, even fellow federal agency 

distrust of both commercial and government-run nuclear complexes. 

As this Committee is aware, most federal environmental laws expressly exclude 

‘‘source, special nuclear and byproduct material’’ from the scope of health, safety and 

environmental regulation by EPA or the states, leaving the field to DOE and NRC. 

In the absence of clear language in those statutes authorizing EPA (or states where 

appropriate) to regulate the environmental and public health impacts of radioactive 

waste, DOE thereby retains broad authority over its vast amounts of radioactive 

waste, with EPA and state regulators then only able to push for stringent cleanups 

on the margins of the process. Indeed, the BRC Report discusses the State of New 

Mexico’s efforts to regulate aspects of the Waste Isolation Pilot Plant RCRA as critical positive element in the development of the currently active site. Final Report 

at 21./3/ The NRC also retains far reaching safety and environmental regulatory authority over commercial nuclear facilities, with agreement states able to assume 

NRC authority, but only on the federal agency’s terms. 

States are welcome to consult with the NRC and the DOE, but the agencies can, 

and will, assert preemptive authority where they see fit. This has happened time 

and again at both commercial and DOE nuclear facilities. This outdated regulatory 

scheme is the focal point of the distrust that has poisoned federal and state relationships involved in managing and disposing of high-level radioactive waste (HLW) and 

spent nuclear fuel, with resulting significant impacts on public health and the environment. 

If EPA and the states had full legal authority and could treat radionuclides as 

they do other pollutants under environmental law, clear cleanup standards could be 

promulgated, and we could be much farther along in remediating the toxic legacy 

of the Cold War. Further, we could likely avoid some of the ongoing legal and regulatory disputes over operations at commercial nuclear facilities. Any regulatory 

change of this magnitude would have to be harmonized with appropriate NRC licensing jurisdiction over facilities and waste and harmonized with EPA’s existing 

jurisdiction with respect to radiation standards: but such a process is certainly within the capacity of the current federal agencies and engaged stakeholders. Some 

states would assume regulatory jurisdiction over radioactive material, others might 

not. But in any event, substantially improved clarity in the regulatory structure and 
40 

a meaningful state oversight role would allow, for the first time in this country, consent-based and transparent decisions to take place on the matter of developing storage sites and geologic repositories. 

In short, Section 304(f) is a detailed attempt to remedy regulatory deficiencies 

that could be more simply and effectively handled by ending exemptions under the 

AEA. Removing the ability of the United States to unilaterally break the terms of 

the contract could potentially give a state some measure of comfort that the agreement it had painstakingly negotiated will hold fast. But there would be nothing 

stopping Congress from revisiting this law, ratifying the consent agreements with 

conditions, and thereby removing whatever meaningful restraint a state might assert. Thus, ultimately what is offered as a thoughtful contract provision could be 

rendered inoperable, and could eviscerate a state’s protection against altered, less 

favorable terms. 

By contrast, ending the anachronistic AEA exemptions solves the matter of meaningful state oversight and does not carry with it substantial likelihood of congressional terms and modifications exacted from states years into a good faith negotiation on a site. Indeed, while it would be possible for a future Congress to revisit 

the AEA and re-insert exemptions from environmental law, it would have to do so 

in a manner that would remove overdue jurisdictional authority from all states (or 

Congress would have to single out one state for special treatment). The difficulty 

of prevailing over the interest of all 50 states rather than simply amending legislation that affects the interests of just one state should be apparent. 

RECOMMENDATION 4—ADDRESS STORAGE IN A PHASED APPROACH CONSISTENT WITH

THE ARCHITECTURE OF THE BILL

Comments on Section 306 

Chairman Bingaman introduced S. 3469 by echoing the BRC and cautioning that 

unless there is direct, clear linkage between progress on a storage facility and 

progress on a repository, providing temporary storage could thwart progress toward 

developing repositories and reduce incentives to find a long-term solution.’’ The 

Chairman stated: 

The Commission makes a strong case for interim storage, but ‘‘only in the 

context of a parallel disposal program.’’ I agree with that conclusion. Interim storage can play an important role in a comprehensive waste management program, but only as an integral part of the repository program 

and not as an alternative to, or de facto substitute for, permanent disposal. 

We agree. A link between storage and disposal is essential. We support the precise language in the text that ‘‘[t]he Administrator may not possess, take title to, 

or store spent nuclear fuel at a storage facility licensed under this Act before ratification of a consent agreement for a repository under Section 304(f)(4).’’ Such a provision wisely puts the horse before the cart and ensures just the linkage the Chairman understands and the BRC acknowledges is necessary. But this sensible process 

is undone by Section 306(b), which provides an exception for 10,000 metric tons of 

spent nuclear fuel. 

The exception opens the door to a storage facility that fails to follow the phased 

process so carefully constructed in the earlier sections. Rather than prematurely bypassing a careful process that can arrive at protective, environmentally sensible and 

scientifically defensible solutions, NRDC urges spent fuel storage efforts to focus on 

vigorous efforts by industry and by appropriate regulatory authorities to ensure that 

all near-term forms of storage meet high standards of safety and security for the 

decades-long time periods that interim storage sites will be in use. While NRDC can 

agree with the overall concept of consolidated interim storage for a measured 

amount of spent fuel that meets strong safety criteria (moving fuel from seismically 

active areas, for example) and removing the stranded fuel from decommissioned 

plants, we can only do so after the introduction of a phased approach, as the general 

architecture of S. 3469 suggests. 

Indeed, the only situation where NRDC sees merit in a pilot project(s) is to address the current total stranded spent fuel at the nine closed reactor sites, accommodated in a hardened building at one or more sites that follows the example of the 

Ahaus facility in Germany. Potential volunteer sites that have already demonstrated ‘‘consent’’ are operating commercial reactors. Far less in the way of new 

infrastructure would be required and the capacity for fuel management and transportation is already in place, along with consent necessary for hosting nuclear facilities in the first instance. 

Indeed, the BRC cited no evidence for why continued reliance on densely-packed 

wet storage should be accepted as adequate in light of the health, safety and secu-
41 

rity risks that interim wet storage poses. Instead, the BRC was negligent in not recommending that Congress statutorily direct movement of spent fuel from wet pools 

to dry casks as soon as practical, i.e., as soon as spent fuel has cooled sufficiently 

to permit safe dry cask storage, generally about five years. Such a legislative direction would go far in addressing a number of public safety and environmental harms 

and do less damage to the careful architecture of this bill. With less fuel in the pool, 

an accident scenario in which cooling is lost would be less problematic through the 

extended time allotted by the slower boiling rate in the less crowded pools and the 

radiation source term would be reduced. The now standardized practice of onsite, 

hardened dry-cask storage poses clear benefits in terms of the mitigation of an accident or act of terrorism, either of which could lead to the release of quantities of 

radiation exceeding a reactor core melt. 

Moreover, as we and many others in the environmental and public health community noted to the BRC, current practice at U.S. reactor sites allows the spent fuel 

pools to be filled to near capacity, with most pools containing five times as much 

fuel as the reactor itself. We disagree with the Commission’s unfounded conclusion 

that it sees ‘‘no unmanageable safety or security issue associated with current methods of storage (dry or wet) at existing sites in the United States.’’ Final Report at 

32. This counter-factual conclusion is not borne out by the post-9/11 National Academy study of spent fuel storage, or by the recent post-Fukushima nuclear safety reviews at U.S. reactors that reveal significant deficiencies in back-up spent fuel cooling and instrumentation capability under the conditions of a station black-out. Particularly with respect to the 23 boiling water reactors (BWRs) in the United States, 

supplying emergency make-up water to a boiling pool inside the secondary containment can itself threaten, via excess heat and condensation, the performance of other 

critical reactor safety systems. Further, the elevated pools themselves are vulnerable to structural damage and debris from hydrogen explosions in a severe accident 

scenario, as occurred during the Fukushima accident. 

In short, unprotected or lightly sheltered spent fuel pools outside containment are 

vulnerable to disabling of their cooling systems in a severe natural event—such as 

a tornado, earthquake, fire, or flood—and to direct destruction via a terrorist attack. 

On September 11, 2001, Flight 11 passed directly over the Indian Point nuclear reactors and spent fuel pools, containing tons of discharged fuel in wet storage. None 

of the above-enumerated threats could be considered ‘‘well-managed’’ under current 

NRC regulations or current independent licensee efforts. Congress should confront 

this matter directly and require unpacking of excess fuel from the pools and into 

hardened onsite storage. A pilot storage project that addresses none of these issues 

merely serves to undercut the meritorious sections of S. 3469. 

Title IV—Funding and Legal Proceedings 

Sections 401 and 402 set forth terms of ensuring the ‘‘polluter pays principle’’ is 

appropriately enshrined in the law. Section 404 appropriately provides for judicial 

review of final actions under S.3469. Section 406(b)(1)—which requires settlement 

of all nuclear waste breach of contract claims as a condition precedent before the 

Nuclear Waste Administration takes title to and stores any nuclear waste for the 

contract holder-merits particular positive notice as a thoughtful method that will ensure settlements and allow the program to proceed in an effective fashion. Section 

406(d) bars new contracts before the Commission has licensed the Administrator to 

operate a repository or storage facility. This provision wisely sidesteps the liability 

issues of the past two decades and creates an incentive for all parties to work for 

a strong, protective nuclear waste storage and disposal program. 

RECOMMENDATION 5—REJECT CLOSED FUEL CYCLES AND REPROCESSING

As a final matter, we applaud the focus in S. 3469 on storage and disposal rather 

than dragging into this proposed legislation the red herring that is reprocessing. 

Chairman Bingaman noted: 

The Commission wisely resisted the allure of reprocessing, concluding 

that there is ‘‘no currently available or reasonably foreseeable’’ alternative 

to deep geologic disposal. In short, we need a deep geologic repository. Even 

if we were to reprocess spent fuel, with all of the costs and environmental 

issues it involves, we would still need to dispose of the radioactive waste 

streams that reprocessing itself produces and we would need to do so in a 

deep geologic repository. 

We concur. We also note that the analysis of advanced fuel cycle technologies contained in the BRC Final Report was inadequate, and its broad sweeping conclusions 

are not supported by a more rigorous comparison of current once-through versus advanced closed fuel cycles. As we demonstrated time and again to the BRC in our 
42 

comments (see NRDC November 1, 2011 comments at 7-14), one can determine the 

relative attractiveness and economic outlook of various reactor and fuel cycle concepts and the likelihood that various options will be implemented in the United 

States. 

Consequently, rather than promoting a large research and development (R&D) 

program covering a wide range of alternative fuel cycles, Congress should look at 

the reality of the federal budget over the next decade and narrow the options and 

focus on those that are most promising. Given that there is no current or prospective closed fuel cycle that can economically compete with the current open cycle, 

Congress should prioritize R&D funding to support technologies that can mitigate 

climate change in the near-term at the least cost. This excludes government funded 

R&D on closed plutonium fuel cycles. 

Additionally, we are opposed to using (or attempts to use) the Nuclear Waste 

Fund to support development or deployment of reprocessing and fast-reactor technologies. Separating responsibility for waste management/disposal from other fuel 

cycle functions is key to garnering support and public trust from NRDC and many 

others, and we support S. 3469’s careful attention to this matter. 

Conclusion 

S. 3469 has several important provisions that can help build a better nuclear 

waste management system, but decades from now others will face our current predicament unless Congress fundamentally revamps how nuclear waste is regulated 

and allows for meaningful State oversight by amending the AEA to remove its express exemptions of radioactive material from environmental laws. 

Thank you again for this opportunity and I am happy to answer any questions. 

The CHAIRMAN. Thank you both for your excellent testimony. Let 

me start with a couple of questions. 

Mr. Barron, many utilities have filed breach of contract claims 

against the Federal Government for failing to take nuclear waste 

as they committed to. In your view, are utilities, nuclear utilities, 

going to be willing to settle those breach of contract claims if Congress enacts something like we’re talking about here with a Nuclear Waste Administration that is able to provide storage for the 

utility’s spent fuel before a repository is available? 

Mr. BARRON. What the utilities would like or what they expect 

is that the performance of removal and taking title to fuel in exchange for the fees that pay be accomplished. If that is being accomplished through transportation to a consolidated interim storage facility then the utility is no longer incurring damage. There 

is no longer an obligation. 

It is simply a question of a performance standard that wasn’t 

met. Damages being incurred by the utility. The rate payer having 

to pay those damages. 

Once there is performance under the contract such that there are 

no longer any damages, there are no more damage claims to be 

paid. 

The CHAIRMAN. I guess you made reference to the importance of 

going ahead and insuring that the waste at shut down reactors be 

disposed or stored first or disposed of first. Are utilities willing to 

renegotiate the fuel acceptance schedule to achieve that result? Because I understand there’s a fuel acceptance schedule that has already been established that does not contemplate that order. 

Mr. BARRON. No, actually to the contrary. Within the standard 

contract it provides for the Secretary to give priority to fuel which 

is located at reactors that—at sites that do not have an operating— 

The CHAIRMAN. So that’s already in the—— 

Mr. BARRON. The contract today would permit that to occur and 

as utilities, as an industry, we have concurred that we would not 

argue with such a determination. 
43 

The CHAIRMAN. OK. 

Mr. Fettus, thank you for your comments. I know you were instrumental in this litigation that Senator Murkowski has referred 

to a few times here about in before the U.S. Court of Appeals for 

the District of Columbia with regard to the whole issue of confidence. 

I guess I would ask you to elaborate a little bit on this whole 

issue of linkage. One of the disputes that we’ve had or not disputes 

but disagreements, I would say, is whether or not we need to make 

provision in the law, some type of legal linkage in the law, that ensures that progress is made toward establishment of a permanent 

repository. As work goes forward with, or even storage of waste 

goes forward, at a storage facility or whether that can be left to a 

negotiation between the Federal Government and the individual jurisdictions involved. 

Do you have a strong view on that? 

Mr. FETTUS. I do, Senator. 

I think you asked the question to the previous panel in a precise 

and correct fashion which is what would the position of a state be? 

What would their ability be to enforce if, for example, they made 

the deal to be a storage facility through a consent process and 

asked for some sort of meaningful oversight authority. Then the repository process for a whole host of reasons, that are maybe for example, not dissimilar to the last 2 decades, blows up. 

That state, unless they want to take advantage of throwing fuel 

over the borders which I don’t think is a likely option, really is in 

a dreadful position. Why I think your caution about the linkage 

must be in the law and not left to negotiation is absolutely correct 

because for that precise reason. States will have no, in our Federal 

system, states will have no significant or serious option to protect 

themselves if they make such deals without 1, meaningful regulatory authority and 2, a linkage that you’ve created in your very 

sequenced and adaptive legislation that allows for the process to go 

forward. 

Meaning, you cannot store more than—let’s say there’s a deal 

made on moving some safety, you know, spent fuel near seismic 

areas or near the Mississippi River or and if you—and also the 

stranded fuel, that’s done. But at a certain point it stops unless 

there’s a repository program ongoing. That has to be in the law or 

states will be essentially out of luck. 

So I think you’ve done it precisely right with the inclusion of 

what we suggested in our testimony. 

The CHAIRMAN. Senator Murkowski. 

Senator MURKOWSKI. Mr. Barron, let me ask you the same question that I asked of the previous panel. That again relates to the 

D.C. Court of Appeals remand. What we heard from Dr. Lyons and 

General Scowcroft was that they didn’t feel that this decision was 

going to impact negatively or delay any new builds or relicensing 

of existing reactors. 

Would you agree with them or do you have a different opinion? 

Mr. BARRON. My opinion would be that I would agree with them. 

It’s not clear. I mean, legally the NRC cannot issue those licenses 

that would depend on that waste, the confidence determination. I 

think there’s still some work going on within the legal part of the 
44 

NRC to determine exactly which types of licenses those are. That’s 

not completely clear yet. 

The NRC does recognize that a lot of work has been done that 

supports a waste determination process. They think they can draw 

on that work. Within the 24-month period that Dr. Lyons spoke to, 

the NRC believes that they can produce a new rule. 

That would not surprise me. However if from there, there were 

further appeals on that just as the process moves along but it does 

not appear at this time that that particular action will have a detrimental effect. It’s conceivable. But at this time does not appear 

to be probable. 

Senator MURKOWSKI. Senator Cantwell focused on defense waste. 

In her opinion the need to address that specifically can—will either 

of you comment on her proposal that that be clearly defined, that 

the defense waste is addressed in a manner specific or certain to 

any legislation that might move forward. 

Mr. BARRON. As an industry we have no opposition to the co-mingling of the waste nor would we necessarily be opposed to a separation of those. I think at the root of the problem whether it’s defense 

waste or commercial waste, is the necessary actions that will take 

to get a repository open in either case. Energy is focused on that, 

on removing whatever impediments there might be either to implementing the repository program as is defined under current law or 

creating a new law that would create an alternative to repository 

and have within it those provisions that would enable it to be successful. That is the underpinning of the problem that has to be addressed whether you’re talking commercial nuclear waste or defense wastes. 

Senator MURKOWSKI. Mr. Fettus. 

Mr. FETTUS. Thank you, Senator Murkowski. 

There was an interesting day during one of the hearings of the 

Blue Ribbon Commission where 2 very estimable people from very 

disparate sides of the chess board on these issues, Beatrice 

Braillsford of the Snake River Alliance in Idaho and Steve Kraft 

of the Nuclear Energy Institute. Two very fine people, both completely agreed that the waste should be co-mingled, that there’s— 

that while there could be reasons in the structure of the fuel and 

the heat loading that there could be different repositories. What we 

need to have going is a repository program. 

So we have great faith that the kind of process that Senator 

Bingaman has set up here to move forward on the BRC’s recommendations is—meets the needs of both the environmental community as well as the nuclear industry. That that’s where the focus 

needs to be. Both high level waste from defense processes, from 

spent nuclear fuel reprocessing and spent fuel, need to go in a repository. 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Portman. 

Senator PORTMAN. Thank you, Mr. Chairman. 

I apologize I was not here earlier. I was hoping to come to here 

Brent Scowcroft as well as you gentlemen. If I could just on the 

record congratulate General Scowcroft and also Congressman Hamilton for their good work. Thank them for their service. Say that 
45 

I hope that we’ll listen to some of the recommendations which seem 

so sensible. 

One of the ones that they recommended was that Congress get 

its act together with regard to the Appropriations process. I was 

frankly surprised to learn that the Nuclear Waste Fund which collects about $750 million bucks a year has a balance of $26 billion. 

Really because of the fight over disposal and specifically over Yucca 

Mountain, those funds have not been dispensed. 

I assume, Mr. Barron, as you look at the industry and its future 

that that’s a concern of yours as well. Could you comment on that? 

Mr. BARRON. Yes. 

The funds have been appropriated for a particular purpose. They 

are obligated both by statute and by contract for that particular 

purpose. The treatment of those funds as otherwise discretionary 

in terms of how they are made available just doesn’t seem to have 

a rationale to it. 

The revolving or the capital waste fund that is suggested in this 

legislation, we believe, is the right way to go. But there shouldn’t 

be the restrictions that subjected to the annual appropriations and 

authorizations process that are proposed in this legislation. 

We think it’s a good step forward. But it has not quite arrived 

in terms of making the funds available that would enable any entity to meet any obligations that it enters into. 

Senator PORTMAN. For you is this a matter of providing more certainty as to the liabilities and the costs? 

Mr. BARRON. I think all the pieces have to go together. I don’t 

think we can separate the waste fund from an effective management entity that has the wherewithal and continuity of leadership 

to be able to deliver it from the need for a consent based siting. 

The package of items that were put together and were put together 

by the BRC very well, really all fit together. We can’t really isolate 

one as being key, more key than the other ones. 

Senator PORTMAN. One of the things that they also talked about 

was in their report and I assume it’s been part of your testimony 

today. I apologize I didn’t hear it all. But that there needs to be 

an implementation plan, the Administration was supposed to have 

released its plan in July. 

I assume you’ve talked about this already and again, I apologize 

if I didn’t hear your testimony earlier and either of you can respond. 

But one, why do you believe that the Administration has not responded including to the inquiries from the BRC? 

Second, what impact does this have on the industry in particular? Are you looking for more leadership from the Administration to, again, provide a way forward? 

Mr. BARRON. I think it’s important that we get leadership, seriousness about this problem from the Administration, the establishment of the BRC which as was previously stated, clearly was a 

Blue Ribbon panel. I think they made a very good effort in putting 

that together and charging them to come up with these recommendations. 

My hope that that attention and that priority that they put on 

when they established that panel can continue and that we can get 
46 

actions and support from this Administration or the next Administration on those actions. 

Senator PORTMAN. Mr. Fettus, are you eager to see the implementation plan or do you think that’s not an important part of 

moving forward? 

Mr. FETTUS. I think it’s going to be very important when the Administration comes forward with it they answered a substantial 

number of questions from Senator Murkowski earlier in the hearing. We’d like to see it too. 

Senator PORTMAN. Thank you, gentlemen. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Murkowski, did you have additional 

questions? 

Senator MURKOWSKI. I did not, thank you. 

The CHAIRMAN. Let me thank these 2 witnesses. I think it’s been 

excellent testimony. 

Let me indicate we have 3 statements for the record. 

One from the National Association of Regulatory Utility Commissioners. 

One from Energy Communities Alliance. 

One from the Eddie Lee Energy Alliance. 

We will include those in the record. 

The CHAIRMAN. Again, we appreciate the good testimony. I think 

it’s been a useful hearing. 

That will conclude our hearing. 

[Whereupon, at 11:15 a.m. the hearing was adjourned.] 
(47) 

APPENDIXES 

APPENDIX I 

Responses to Additional Questions 

RESPONSES OF HENRY B. BARRON TO QUESTIONS FROM SENATOR CANTWELL

I believe a key part of solving our nation’s nuclear waste challenges is to recognize 

that we need to prioritize addressing certain types of waste first—such as waste 

stranded at shutdown reactor sites and defense waste that has built up for decades. 

Not all nuclear waste is the same, and I do not plan to support any legislation that 

does not remedy the mistakes of the past that has precluded more feasible solutions 

for our nation’s defense waste. 

As I’m sure you know, Hanford is the largest nuclear cleanup site in North America. We have been diligently trying to clean up this site, an incredible complex and 

costly endeavor. While it is a constant struggle to keep this monumental effort on 

track, I proud of incredible efforts of Hanford workers and we are making real 

progress. But we need an end point. Once we clean up and isolate this toxic legacy, 

we need a place for it to go. 

It is unacceptable to me, and to the constituents I represent, for Hanford to be 

the de facto repository for 90 percent of the nation’s high-level radioactive defense 

waste. 

While proud of the service to help secure our nation during World War II and the 

Cold War, the Tri-Cities region has contributed and sacrificed enough during the 70 

years in which a large portion of my state has been put off limits to economic development or other uses. 

The problem as I see it is that our nation’s nuclear waste policy treats civilian 

nuclear waste and defense waste the same, with defense waste almost as an afterthought. That’s a problem for two important reasons: First, our defense waste is not 

suitable for on-site storage and Hanford’s Waste Treatment Plant is scheduled to 

produce vitrified high level waste in 2019. And second, defense waste is a witch’s 

brew of nuclear byproducts that can never be reprocessed for electricity generation. 

Therefore, it can be disposed of permanently, possibly in ways that are faster and 

cheaper than civilian waste. 

Question 1a. Do you agree that nuclear waste that we would never want to retrieve but can be permanently disposed of should be treated differently? 

Answer. Nuclear waste, both commercial used fuel and defense related materials, 

must be disposed of and can be disposed of in the same geologic repository as was 

the plan with the Yucca Mountain repository. 

There are two issues to consider in the context of retrievability: nuclear fuel recycle (only applicable to commercial used nuclear fuel) and safety. 

I agree that the geologic disposal facility for defense wastes should not have a 

retrievability requirement associated with it other than for safety considerations. In 

regards to safety, the very successful Waste Isolation Pilot Plant addresses this 

issue in the governing regulations, 40 CFR 194.4(b)(1), by requiring the DOE to retrieve as soon as practicable and to the extent practicable any waste placed in the 

Waste Isolation Pilot Plant (WIPP) if the EPA Administrator revokes WIPP’s certification. A similar approach for the disposal of the remaining defense related wastes 

would be acceptable. 

Imposing a retrievability requirement on commercial used fuel for the purpose of 

recycling is also not necessary for near term disposal efforts. If the search for a second repository, other than Yucca Mountain, is conducted it would be unfortunate 

to reject out-of-hand an otherwise acceptable site because it would be impossible to 

retrieve a waste package from that site for the purpose of recycling. 
48 

Lack of retrievability does not eliminate the potential for recycle of commercial 

used nuclear fuel. Even if the United States decides to begin recycling commercial 

used nuclear fuel after placing it in a repository, there will still be more than 

enough used fuel available for recycling without having to retrieve it from the repository. Given the time frames involved in restarting and completing the Yucca Mountain repository, or developing, planning, licensing, and constructing a new repository, it is doubtful that significant amounts of used fuel will have been placed in 

a repository by the time recycling technologies could be deployed at commercial 

scale. 

Question 1b. Have you studied whether permanent disposal in salt formations 

could be a cheaper and more readily available alternative to other geological storage 

options? 

Answer. Geologic disposal in salt formations is technically feasible for both defense wastes and commercial used nuclear fuel. However, I am unable to offer an 

opinion about whether disposal in salt could be less expensive in the long term relative to other geologic formations. At this point, the quickest path to a deep geologic 

repository would be the continuation of the Yucca Mountain project. Extensive studies and testing have already been performed at the site and the NRC review of the 

license application should be completed. If the search for a second repository begins, 

the total cost to dispose of both commercial and defense related materials should 

be one of the factors used to choose a site in a willing host community and state. 

Question 1c. How do we make sure that defense waste does not get lost in the 

nuclear waste debate this time around? 

Answer. Increased focus on this issue by both the Administration and Congress 

is needed to ensure that both defense waste and commercial used nuclear fuel are 

properly disposed. The industry believes that consolidated storage, as recommended 

by the Blue Ribbon Commission, is the quickest route for the federal government 

to begin moving used fuel from nuclear energy facilities and to stem the increase 

in damage. In addition to storing used nuclear fuel from commercial facilities, a consolidated storage facility could also store DOE and U.S. naval reactor fuel. This 

could provide a pathway for the federal government to meet its obligations to remove this material from the various states where it is stored. 

Question 2. Unfortunately, the requirement that nuclear waste be retrievable for 

up to a century blocks many potential sites. There are communities that would welcome our nation’s nuclear waste; but while they are located near technically-sound, 

cost-effective geologic formations, high level waste placed there cannot be retrieved. 

So maybe it’s time to reconsider this retrievability requirement. The mere possibility of future uses for the nuclear waste should not block progress on siting a nuclear repository and geologically disposing of our nation’s nuclear waste. This is especially true for defense waste, which has even lower prospects for reuse than commercial waste. 

Question 2a. Given the bleak prospects for recycling or otherwise using nuclear 

waste, should this retrievability requirement block siting a repository in a technically-sound, cost-effective place that is willing to accept waste? 

Answer. As discussed above in the answer to question 1a, retrievability should be 

a consideration in repository design. However, retrievability should not be the sole 

consideration and should not necessarily block the siting of a repository in a willing 

host community and state. 

Question 2b. If the insistence on this retrievability requirement for commercial 

waste continues, do you think we ought to consider a separate repository for defense 

waste without such a restriction—a potential dual-path forward envisioned by the 

original Nuclear Waste Policy Act of 1982? 

Answer. The issue of retrievability should not stand in the way of the disposal 

of either commercial used fuel or defense wastes and retrievability should only be 

one of many considerations in repository design and should not necessarily block the 

siting of a repository in a willing host community and state. 

Question 3. After 25 years of getting nowhere with political wrangling, I believe 

we need to correct our course and get back to the basics of science, economics, and 

consensus-building. We need to find places with technically-sound cost-effective geologies that want to host a repository. And we need to ensure that these new places 

have the capacity to take all of our nation’s nuclear waste, both commercial and defense. 

The Yucca saga illustrates the problem of allowing politics to overwhelm science 

and economics. And why we need to get back to the basics envisioned in the original 

Nuclear Waste Policy Act of 1982. We know that the geologic formations at Yucca 

do not necessarily offer the most cost effective solution, and there are still questions 

about whether they even offer a safe, technically-sound environment for long-term 

geologic storage. Yucca is tectonically active, with both seismic and volcanic activity. 
49 

Faulting, or shifting of tectonic plates, could allow water to corrode the waste packages and transport nuclear material well beyond the repository. Volcanic activity 

could potentially disperse radionuclides into the atmosphere and ground water. 

While the risk of volcanic activity at Yucca is highly uncertain, the Yucca site is 

bounded by numerous known faults: among others, the Solitario Canyon and 

Sundance faults to the west and the Ghost Dance fault to the east. 

In 1992, a 5.6-magnitude earthquake originated just 13 miles south of Yucca. And 

in June 2002, a 4.4-magnitude earthquake struck slightly further to the east of 

Yucca. These events are not exactly reassuring to the millions of Americans downstream or downwind of Yucca. 

Question 3a. Do you see the Blue Ribbon Commission recommendations and 

Chairman Bingaman’s legislation as a renewed call to correct our course? Choosing 

science, economics, and consensus over the failed political wrangling of the past 25 

years, going back to many of the principles of the original Nuclear Waste Policy Act 

of 1982? 

Answer. The industry applauded the efforts of the Blue Ribbon Commission and 

believes it successfully outlined a path forward that Congress and the Administration should follow. The industry also compliments Chairman Bingaman for proposing legislation that would implement a portion of the Commission’s recommendations and for continuing the dialogue concerning used nuclear fuel management. 

The nuclear industry is committed to participating in this dialogue and to creating 

a sustainable federal used fuel and defense waste management program. The most 

appropriate path to a science based determination of the acceptability of the Yucca 

Mountain repository is to enable the nation’s nuclear safety regulatory body, the 

Nuclear Regulatory Commission, to complete the review of the Yucca Mountain license application. 

Completing the licensing process, regardless of the outcome, would offer valuable 

scientific and regulatory insights and data for future disposal efforts in addition to 

the vast amounts of scientific data already accumulated for the Yucca Mountain repository. 

Question 3b. For such a complex challenge as disposing of nuclear waste for millions of years, do you believe technical considerations should trump political ones 

to the maximum extent possible? 

Answer. As stated in this question, the challenge of used nuclear fuel disposal is 

a complex one and isolating the federal program from undue political influence will 

be essential to the long term success of the program. To this end, the industry fully 

supports the Blue Ribbon Commission’s recommendation for the formation of a new 

management entity to assume responsibility for this program. The new management 

entity must have guaranteed access to the nuclear waste fund and the nuclear 

waste fees, and the authority to pursue options within the bounds of US laws and 

regulations. 

If additional repositories are sited, technical considerations will bear heavily on 

the feasibility of a site. However, political considerations will also have to be addressed through an open and collaborative process where the willing host community and state have the right to shape the program in a consent-based process. 

Question 4. I would like to discuss the economics of different geologic formations. 

While there are multiple ways and places to secure nuclear waste safely, the costs 

of doing so are different. I believe that these costs should be considered when selecting among technically-sound sites. 

A recent study compared the costs of repositories capable of holding 83,000 metric 

tons of heavy metals in different geologic media. It found that siting a repository 

in volcanic tuff or crystalline rock costs two to three times that of a repository in 

massive salt formations. 

These extra costs came primarily from the development and characterization of 

the site, more expensive and complex surface and subsurface facilities, and extensive packaging, barriers and shields necessary to keep the waste intact. Because of 

the potential cost savings, I think we need to take a hard look at salt formations 

throughout the country as potential sites for a repository. 

Question 4a. Do you believe that cost should be an important factor when selecting among sites that can safely dispose of waste and have support within the community? 

Answer. If a second repository siting process is begun, cost should be considered 

when looking at various sites, but it is only one of many considerations. For example, the cost to the taxpayer for the disposal of defense wastes may be reduced if 

the cost of developing a single repository for both commercial and defense wastes 

is partially offset with funds from the nuclear waste fund. For this reason, consideration of a single geologic repository should remain an option. 
50 

Question 4b. Do you agree that salt formations could deliver potential cost savings 

compared to other geologic media types and deserve consideration? 

Answer. I am unable to offer an opinion on the potential cost savings of a particular geology compared to another. As previously discussed, cost should be only 

one factor in the site determination process for additional repositories. 

Question 5. It is simply unacceptable for Hanford to become the de facto repository for 90 percent of the nation’s high-level radioactive defense waste. Back in the 

1980’s when a number of repository sites were analyzed, Hanford placed last in 

terms of cost-effectiveness. 

These high costs were in part due to the extraordinary technical challenges. According to a National Research Council report, the high internal stresses within the 

basalt formation at Hanford poses a risk of ‘‘rock bursts’’ when opened up to atmospheric pressure. And the U.S. Geological Survey found that the high water pressure 

in the deep aquifer poses the danger of catastrophic flooding. 

Question 5a. Do the cost-effectiveness of meeting technical requirements and inherent suitability of a site go hand-in-hand? 

Answer. As previously discussed, cost will only be one factor in the site determination process if a search for additional repositories is initiated. 

Question 5b. Do you agree that cost-effectiveness is an important consideration 

that partially takes the suitability of a repository site into account? 

Answer. I agree that cost effectiveness will be an important consideration. However, it must be viewed holistically with other considerations. 

Question 6. I am pleased to see that this legislation repeals the limit on the 

amount of waste able to be disposed at a repository. This was a well-kept secret 

about Yucca. Even if Yucca were licensed under current law, it would not be able 

to accommodate all of our nuclear waste, neither civilian nor defense. I believe a 

litmus test for any new federal nuclear waste policy is whether it can dispose of our 

nation’s nuclear waste—all of it. 

This has been one of my biggest concerns with the Yucca proposal. Of the 70,000 

ton limit for waste at Yucca, only 7,000 tons were set aside for defense waste. Of 

that 7,000 tons for defense waste, only 4,667 tons would be allocated for high level 

waste. 

Although the total number of tons of high level defense waste is somewhat uncertain, just three percent of DOE’s inventory of vitrified High Level Waste would be 

accounted for under the planning basis of 4,667 tons of heavy metal for DOE High 

Level Waste when compared to over 170,000 tons of heavy metal DOE reprocessed 

fuel. 

In practice, a higher percentage could probably be accommodated because a portion of the radioactivity has already been lost. According to an historical estimation 

method, the limit of high level defense waste at Yucca would still not have been 

able to accommodate the high level waste at Hanford because this limit accounts 

for less than half of all defense high level waste. 

An even smaller percentage of Hanford waste would have been able to go to Yucca 

under current law. Any way you cut it, there simply is not enough capacity without 

a repeal of this limit. 

Question 6a. Are there any technical or safety reasons for the current limit of 

70,000 tons? If so, does this mean that we need multiple repositories to accommodate all of our nation’s waste? 

Answer. There are no technical or safety reasons for the current legal limit of 

70,000 MTU for the Yucca Mountain repository. Both the Department of Energy and 

the Electric Power Research Institute have estimated that the Yucca Mountain repository could hold more than 125,000 MTU. Therefore, if the Yucca Mountain repository is opened and the legal limit of 70,000 MTU is lifted, it would be decades 

before a second repository would be needed, if at all. 

Question 6b. Why do you think over half of our nation’s high level defense waste 

was left out of the plan at Yucca? 

Answer. I am not in a position to offer an opinion as to the legal capacity of defense related waste in the Yucca Mountain repository. However, if the Yucca Mountain repository is opened and the legal limit of 70,000 MTU is lifted, there would 

be ample space available for both commercial and defense related wastes. 

RESPONSES OF HENRY B. BARRON TO QUESTIONS FROM SENATOR BARRASSO

Question 1. In your testimony, you state that a new Federal used-fuel-management corporation is needed. Specifically, you say that: ‘‘A key element to the longterm success of a federal program is establishing a new entity to assume program 

management responsibility from the DOE.’’ A. Why do you believe a new Federal 

corporation is needed to manage the nation’s nuclear waste? B. Is there any reason 
51 

why DOE couldn’t manage the nation’s nuclear waste if given sufficient authorization by Congress? If we pursue a consent-based process, won’t we significantly reduce the likelihood that political pressure will interfere with siting decisions? 

Answer. A. There are two reasons why a federal corporation solely dedicated to 

implementing the used fuel management program is needed: sustainable access to 

its dedicated funding and sustainability of dedicated program leadership essential 

to accomplishing the mission. 

The Nuclear Waste Fund, as originally conceived, was intended to be dedicated 

to the federal used fuel program. However, since 1982 there have been changes to 

the federal budget process that now make the used fuel management program compete with the rest of the federal appropriations process for receiving its own funds. 

Properly written, new legislation should dedicate the Nuclear Waste Fund, Fees and 

earned interest to a new federal corporation for the purpose for which it was paid. 

A dedicated federal corporation where the CEO answers to the Board of Directors 

and is not subject to the political appointment process would be able to create an 

organization that has a single focus on its mission, safety culture, management systems and processes. Regardless of its mission as established under the law, the current administration has demonstrated that an administrative department is not sufficiently insulated from the political cycles to support a program of this importance 

and duration. 

Answer. B. As the history of the federal used fuel management program demonstrates, further insulation from political uncertainties is needed. While the consent-based siting approach might help with reducing political pressures on siting a 

second repository, it is not sufficient. For example, the consent-based approach does 

not address access to dedicated funding-a key issue for the sustainability of the program. 

Question 2. In your testimony, you state that: ‘‘Industry supports the concept of 

a federal corporation as outlined in the [Blue Ribbon Commission’s] report.’’ How 

widespread is industry’s support for the creation of a new organization to manage 

our nation’s nuclear waste? 

Answer. Industry support for a federal corporation as outlined by the BRC is 

widespread as evidenced by industry testimony to the BRC and the diverse support 

from NEI members companies and NEI’s board of directors, as well as the National 

Association of Regulatory Utility Commissioners. 

Question 3. In your testimony, you state that the Federal government: ‘‘should not 

attempt to... impose restrictions on the development of a consolidated storage facility that are linked to milestones related to a disposal program.’’ If the Federal 

government does not set any conditions on temporary storage facilities, how do we 

prevent temporary storage facilities from effectively becoming a long-term solution? 

Answer. Included in my testimony was a comparative evaluation of the schedules 

for a consolidated storage facility and a restarted Yucca Mountain project. This 

timeline demonstrates that even with the most ambitious plans for both projects, 

a consolidated storage facility is the fastest way to begin to move used fuel and 

lessens the liabilities for the federal government. But these two processes need to 

move ahead in parallel, as consolidated storage is not the final solution. As constructed above, a federal corporation dedicated to the achievement of both these objectives provides the greatest potential for success. 

One of the tenets of the consent-based approach is flexibility to work with interested communities to form an agreement that considers local concerns, including the 

fear of becoming a de facto long-term storage facility. Certain negotiated timelines 

or incentives could be included to allay those fears. But any direct linkage between 

the siting of repository and the siting of a consolidated storage facility risks further 

delays in an already stymied program. 

Question 4. In your testimony, you explain that taxpayer liability for DOE’s failure to remove nuclear waste from nuclear energy facilities will reach $20.8 billion 

in 2020. You also say that: ‘‘By 2040, the damages paid by the taxpayer could be 

as much as $30 billion,’’ and that: ‘‘Consolidated storage . . . is the quickest route 

for the federal government to... stem the increase in damage awards.’’ Are there 

other reasons for the Federal government to develop consolidated storage facilities? 

If so, what are they? 

Answer. The primary motivation for a consolidated storage facility is to have a 

facility where the federal government can move used fuel to and begin to meet its 

statutory and contractual obligations until a repository is available. Once the facility 

is constructed and operational for this purpose, I can envision the facility having 

additional benefits. For example, there is currently a research effort underway to 

study the long term effects on used fuel of extended storage in dry casks beyond 

the time periods originally contemplated. Additional research facilities may be nec-
52 

essary for this effort and a logical location for such facilities could be the consolidated storage facility. 

RESPONSES OF LIEUTENANT GENERAL SCOWCROFT AND RICHARD A. MESERVE TO

QUESTIONS FROM SENATOR CANTWELL

Question 1. I believe a key part of solving our nation’s nuclear waste challenges 

is to recognize that we need to prioritize addressing certain types of waste first— 

such as waste stranded at shutdown reactor sites and defense waste that has built 

up for decades. Not all nuclear waste is the same, and I do not plan to support any 

legislation that does not remedy the mistakes of the past that has precluded more 

feasible solutions for our nation’s defense waste. 

As I’m sure you know, Hanford is the largest nuclear cleanup site in North America. We have been diligently trying to clean up this site, an incredible complex and 

costly endeavor. While it is a constant struggle to keep this monumental effort on 

track, I proud of incredible efforts of Hanford workers and we are making real 

progress. But we need an end point. Once we clean up and isolate this toxic legacy, 

we need a place for it to go. 

It is unacceptable to me, and to the constituents I represent, for Hanford to be 

the de facto repository for 90 percent of the nation’s high-level radioactive defense 

waste. 

While proud of the service to help secure our nation during World War II and the 

Cold War, the Tri-Cities region has contributed and sacrificed enough during the 70 

years in which a large portion of my state has been put off limits to economic development or other uses. 

The problem as I see it is that our nation’s nuclear waste policy treats civilian 

nuclear waste and defense waste the same, with defense waste almost as an afterthought. 

That’s a problem for two important reasons: First, our defense waste is not suitable for on-site storage and Hanford’s Waste Treatment Plant is scheduled to 

produce vitrified high level waste in 2019. And second, defense waste is a witch’s 

brew of nuclear byproducts that can never be reprocessed for electricity generation. 

Therefore, it can be disposed of permanently, possibly in ways that are faster and 

cheaper than civilian waste. 

Question 1a. Do you agree that nuclear waste that we would never want to retrieve but can be permanently disposed of should be treated differently? 

Answer. The Reagan Administration decided that defense and civilian waste 

should be disposed of together with commercial waste (‘‘commingled’’) in ‘‘one or 

more of the repositories to be developed under [the Nuclear Waste Policy Act]’’ (the 

default option in the Act) rather than using a separate defense-only repository developed outside of the context of the Act. The properties of defense waste and civilian waste are different from each other, which could open up different disposal options that would still meet generally applicable regulatory standards, and, as you 

note, it is highly unlikely that defense waste will ever be considered for reprocessing. Moreover, the circumstances are now different from those at the time of the 

Reagan Administration decision, including the facts that the development of a repository under the Nuclear Waste Policy Act has been delayed and that the Department of Energy has entered into various agreements requiring the removal of defense waste by dates certain. These considerations argue for a reconsideration of the 

decision to commingle the waste. However, the difficulty to date of establishing even 

a single repository and the cost of licensing two repositories are considerations that 

point to maintenance of a commingled repository. The BRC did not make a recommendation to resolve the issue, but urged the Administration ‘‘to launch an immediate review of the implications of leaving responsibility for disposal of defense 

waste and other DOE-owned waste with DOE versus moving it to a new waste management organization.’’ 

Question 1b. Have you studied whether permanent disposal in salt formations 

could be a cheaper and more readily available alternative to other geological storage 

options? 

Answer. Geology is a very important factor in disposal and will affect costs. However, the BRC discussed the various geologic options in only a general way, without 

evaluating their relative merits: 

The rock types that have been considered for a deep geologic repository 

have included bedded and domed rock salts, crystalline rocks (i.e., granite 

or gneiss), clay, shale, volcanic tuffs, basalt, and various other types of sedimentary rocks. Each of these rock types and their particular geologic environments have advantages and disadvantages from a strictly technical per-
53 

spective, and different geologic settings and emplacement methods may be 

better for particular types of waste. However, many or all of them may ultimately be found to demonstrate acceptable performance for a wide range 

of wastes.’’ 

We note, however, the Waste Isolation Pilot Plant for defense transuranic waste 

is in salt and has been very successful to date. 

Question 1c. How do we make sure that defense waste does not get lost in the 

nuclear waste debate this time around? 

Answer. The Nuclear Waste Policy Act of 1982, as amended, does address defense 

wastes. Any future legislation should do so as well. Moreover, as noted above, the 

BRC recommended reexamination of the commingling decision. 

Question 1d. By not addressing defense waste specifically, does that imply that 

you and the Blue Ribbon Commission believe defense waste should be treated separately from civilian waste? 

Answer. As discussed above, the BRC recognized the potential to treat defense 

and civilian wastes separately and urged the Administration to launch an immediate review of the matter. 

Question 2. Unfortunately, the requirement that nuclear waste be retrievable for 

up to a century blocks many potential sites. There are communities that would welcome our nation’s nuclear waste; but while they are located near technically-sound, 

cost-effective geologic formations, high level waste placed there cannot be retrieved. 

So maybe it’s time to reconsider this retrievability requirement. The mere possibility of future uses for the nuclear waste should not block progress on siting a nuclear repository and geologically disposing of our nation’s nuclear waste. This is especially true for defense waste, which has even lower prospects for reuse than commercial waste. 

Question 2a. Given the bleak prospects for recycling or otherwise using nuclear 

waste, should this retrievability requirement block siting a repository in a technically-sound, cost-effective place that is willing to accept waste? 

Answer. The BRC concluded that any decision to pursue recycling should be deferred, but that the option to recover the energy value of at least some spent fuel 

should be preserved for future generations. We recommended the pursuit of R&D 

related to recycling so that such an option could be available in the future. As you 

note, it is highly unlikely that defense waste will be recycled and thus the preservation of the opportunity to recycle is not important for that waste. 

Your question points to the challenge of retrievability for up to a century. 

Retrievability for some period has generally been viewed as desirable not only to 

provide the opportunity for recycling as to enable the monitoring of the repository 

in its early years and to reverse course if necessary if that monitoring reveals unexpected problems. BRC concluded that retrievability requirements for this purpose 

are reasonable, and that the current requirements can be met in a wide range of 

media including salt: 

Our view is that existing requirements concerning retrievability at mined 

repository sites (at 40 Code of Federal Regulations [CFR] 191 and 10 CFR 

60.111 (b)) are appropriate and should be retained. These requirements are 

intended to ensure that emplaced waste can be removed if the repository 

is not behaving as anticipated or if its performance is called into question 

for any reason prior to permanent closure—they are not intended for the 

purpose of retaining easy access to emplaced materials for possible later recovery and reuse. Past evaluations have indicated that a wide range of candidate mined repository sites in different geologic media (including granite, 

salt and volcanic tuff) could meet these existing retrievability requirements. 

On the other hand, we recognize that the same level of retrievability may 

not be practical or necessary in the context of other disposal approaches, 

such as deep boreholes. In that case, related regulatory requirements and 

time periods can and should be reassessed as part of a larger evaluation 

of disposal system performance objectives.’’ 

Question 2b. If the insistence on this retrievability requirement for commercial 

waste continues, do you think we ought to consider a separate repository for defense 

waste without such a restriction—a potential dual-path forward envisioned by the 

original Nuclear Waste Policy Act of 1982? 

Answer. As noted in response to your previous question, the BRC recommended 

the reexamination of the decision to commingle defense with civilian waste. However, while allowed by the Nuclear Waste Policy Act, a defense-only repository 

would still be subject to the same NRC regulations that apply to a repository containing commercial waste. It thus would have to meet the same retrievability re-
54 

quirements. As noted above, past evaluations indicate that a wide range of geologic 

media, including salt, can meet these requirements. 

Question 3. After 25 years of getting nowhere with political wrangling, I believe 

we need to correct our course and get back to the basics of science, economics, and 

consensus-building. We need to find places with technically-sound, cost-effective geologies that want to host a repository. And we need to ensure that these new places 

have the capacity to take all of our nation’s nuclear waste, both commercial and defense. 

The Yucca saga illustrates the problem of allowing politics to overwhelm science 

and economics. And why we need to get back to the basics envisioned in the original 

Nuclear Waste Policy Act of 1982. We know that the geologic formations at Yucca 

do not necessarily offer the most cost effective solution, and there are still questions 

about whether they even offer a safe, technically-sound environment for long-term 

geologic storage. 

Yucca is tectonically active, with both seismic and volcanic activity. Faulting, or 

shifting of tectonic plates, could allow water to corrode the waste packages and 

transport nuclear material well beyond the repository. Volcanic activity could potentially disperse radionuclides into the atmosphere and ground water. 

While the risk of volcanic activity at Yucca is highly uncertain, the Yucca site is 

bounded by numerous known faults: among others, the Solitario Canyon and 

Sundance faults to the west and the Ghost Dance fault to the east. 

In 1992, a 5.6-magnitude earthquake originated just 13 miles south of Yucca. And 

in June 2002, a 4.4-magnitude earthquake struck slightly further to the east of 

Yucca. These events are not exactly reassuring to the millions of Americans downstream or downwind of Yucca. 

Question 3a. Do you see the Blue Ribbon Commission recommendations and 

Chairman Bingaman’s legislation as a renewed call to correct our course? Choosing 

science, economics, and consensus over the failed political wrangling of the past 25 

years, going back to many of the principles of the original Nuclear Waste Policy Act 

of 1982? 

Answer. The BRC did not render an opinion on the suitability of the Yucca Mountain site, but instead focused on developing a sound strategy for future storage and 

disposal facilities and operations that we believe can and should be implemented regardless of what happens with Yucca Mountain. Chairman Bingaman’s legislation, 

which incorporates many of the changes to existing law that will be required to implement the Commission’s recommendations, is a very helpful step in the process 

of revisiting our national policy with regard to the disposition of high level nuclear 

waste. 

Question 3b. For such a complex challenge as disposing of nuclear waste for millions of years, do you believe technical considerations should trump political ones 

to the maximum extent possible? 

Answer. The highest priority should be to ensure that any repository isolates high 

level nuclear waste from the human environment for the necessary long periods of 

time. 

Question 4. I would like to discuss the economics of different geologic formations. 

While there are multiple ways and places to secure nuclear waste safely, the costs 

of doing so are different. I believe that these costs should be considered when selecting among technically-sound sites. 

Answer. A recent study compared the costs of repositories capable of holding 

83,000 metric tons of heavy metals in different geologic media. It found that siting 

a repository in volcanic tuff or crystalline rock costs two to three times that of a 

repository in massive salt formations. 

These extra costs came primarily from the development and characterization of 

the site, more expensive and complex surface and subsurface facilities, and extensive packaging, barriers and shields necessary to keep the waste intact. Because of 

the potential cost savings, I think we need to take a hard look at salt formations 

throughout the country as potential sites for a repository. 

Question 4a. Do you believe that cost should be an important factor when selecting among sites that can safely dispose of waste and have support within the community? 

Answer. As noted above, cost should not be the most important factor in determining an appropriate location for a disposal facility. It might be one of the factors 

that serves as a ‘‘tie-breaker’’ for sites that are otherwise acceptable. 

Question 4b. Do you agree that salt formations could deliver potential cost savings 

compared to other geologic media types and deserve consideration? 

Answer. The BRC did not consider the advantages and disadvantages of various 

types of geology for a disposal facility. 
55 

Question 5. It is simply unacceptable for Hanford to become the de facto repository for 90 percent of the nation’s high-level radioactive defense waste. Back in the 

1980’s when a number of repository sites were analyzed, Hanford placed last in 

terms of cost-effectiveness. 

These high costs were in part due to the extraordinary technical challenges. According to a National Research Council report, the high internal stresses within the 

basalt formation at Hanford poses a risk of ‘‘rock bursts’’ when opened up to atmospheric pressure. And the U.S. Geological Survey found that the high water pressure 

in the deep aquifer poses the danger of catastrophic flooding. 

Question 5a. Do the cost-effectiveness of meeting technical requirements and inherent suitability of a site go hand-in-hand? 

Answer. The suitability of a site is an essential ingredient is establishing the effectiveness of a site. 

Question 5b. Do you agree that cost-effectiveness is an important consideration 

that partially takes the suitability of a repository site into account? 

Answer. Yes. 

Question 6. I am pleased to see that this legislation repeals the limit on the 

amount of waste able to be disposed at a repository. This was a well-kept secret 

about Yucca. Even if Yucca were licensed under current law, it would not be able 

to accommodate all of our nuclear waste, neither civilian nor defense. I believe a 

litmus test for any new federal nuclear waste policy is whether it can dispose of our 

nation’s nuclear waste—all of it. 

This has been one of my biggest concerns with the Yucca proposal. Of the 70,000 

ton limit for waste at Yucca, only 7,000 tons were set aside for defense waste. Of 

that 7,000 tons for defense waste, only 4,667 tons would be allocated for high level 

waste. 

Although the total number of tons of high level defense waste is somewhat uncertain, just three percent of DOE’s inventory of vitrified High Level Waste would be 

accounted for under the planning basis of 4,667 tons of heavy metal for DOE High 

Level Waste when compared to over 170,000 tons of heavy metal DOE reprocessed 

fuel. 

In practice, a higher percentage could probably be accommodated because a portion of the radioactivity has already been lost. According to an historical estimation 

method, the limit of high level defense waste at Yucca would still not have been 

able to accommodate the high level waste at Hanford because this limit accounts 

for less than half of all defense high level waste. 

An even smaller percentage of Hanford waste would have been able to go to Yucca 

under current law. Any way you cut it, there simply is not enough capacity without 

a repeal of this limit. 

Question 6a. Are there any technical or safety reasons for the current limit of 

70,000 tons? If so, does this mean that we need multiple repositories to accommodate all of our nation’s waste? 

Answer. The BRC did not examine the limitations of the Yucca Mountain site. 

However, we did point out that the mass limitation for Yucca Mountain in the Nuclear Waste Policy Act was not based on technical constraints:. 

Recognizing the need for a Congressional mandate to overcome opposition 

to the selection of any given site, Congress sought through the NWPA to 

establish a fair and technically sound process for selecting repository locations. In fact, to avoid the perception that any one state or locale would be 

asked to bear the entire burden of the nation’s nuclear waste management 

obligations, the Act provided for the selection of two repository sites (though 

not stipulated in the legislation itself, it was widely assumed that one of 

these sites would be located in the West, the other in the East). And to further ensure that the end result would not be a single, national repository, 

Congress included provisions explicitly limiting the capacity of the first repository to 70,000 metric tons until a second repository was opened.’’ 

Question 6b. Why do you think over half of our nation’s high level defense waste 

was left out of the plan at Yucca? 

Answer. The BRC did not examine this aspect of the Yucca Mountain project. 

RESPONSES OF LIEUTENANT GENERAL SCOWCROFT AND RICHARD A. MESERVE TO

QUESTIONS FROM SENATOR BARRASSO

Question 1. The Blue Ribbon Commission’s report advocates a consent-based approach to siting storage facilities and a permanent repository for our nation’s nuclear waste. You repeat your support for a consent-based approach in your testimony. However, you go on to advocate for the creation of a new nuclear waste man-
56 

agement organization—a Federally chartered corporation—that would be less politically accountable than a new Federal agency as envisioned in S. 3469. If we pursue 

a consent-based approach, why is there a need to reduce political accountability? 

Answer. The BRC stated that the federally charted corporation should be politically accountable. Its board should be nominated by the President and confirmed by 

the Senate. It should be required to provide periodic reports to Congress on its activities, expenditures, and progress, and should be subject to periodic oversight 

hearings. Its financial affairs should be subject to examination by the Government 

Accountability Office. 

The fulfillment of the obligations of the new waste organization requires the consistent and aggressive pursuit of a long-term strategy. We did not recommend the 

establishment of a new federal agency because that approach would not provide the 

necessary long-term management stability that the task requires. We note that 

there may be opportunities for more effective consensus building as well by including representatives of the various stakeholders on the corporation’s board—an opportunity that would not be provided by a federal agency. 

Question 2. In your testimony, you explain that S. 3469: ‘‘places limits on the 

amount of spent fuel that can be accepted for consolidated storage prior to congressional ratification of a consent agreement for a repository.’’ However, you say that 

the Commission concluded that: ‘‘the volume of fuel to be accepted in consolidated 

storage could be one of the many elements of the negotiations between the nuclear 

waste management organization and potential host governments.’’ Are you recommending that Congress place no limits on the amount of fuel that can be accepted 

into consolidated storage? If so, how does Congress ensure that consolidated storage 

does not effectively become a long-term solution? 

Answer. Storage does not offer a long-term solution to the waste problem and it 

should be clear in the legislation establishing the waste organization that its obligations include the expeditious pursuit of disposal. Spent fuel is now being stored at 

reactor sites around the country in a safe and secure manner. The existence of a 

consolidated storage site does not appreciably change the pressures to establish a 

clear disposal path for commercial spent fuel from the status quo. 

Given the many benefits of consolidated storage, the legislation should not establish barriers to the establishment and operation of a consolidated storage site or 

sites. We anticipate that the negotiation of the terms with the stakeholders proposing a storage location will no doubt include terms requiring that the stored waste 

be sent for disposal by certain deadlines. We concluded that many states and communities will be far less willing to be considered for a consolidated storage facility 

if they fear they will become the de facto hosts of a disposal site. This means that 

a program to establish consolidated storage will succeed only in the context of a parallel disposal program that is effective, focused, and making discernible progress in 

the eyes of key stakeholders and the public. A robust repository program, in other 

words, will be as important to the success of a consolidated storage program as the 

consolidated storage program will be to the success of a disposal program. Progress 

on both fronts is needed and should be sought without further delay. 

Question 3. The Yucca Mountain project goes back three decades and it seems we 

are nowhere near a long-term solution. Do you believe S. 3469 will bring us closer 

to siting and constructing a permanent repository? 

Answer. We hope that the S.3469 will be an important first-step in the establishment of an effective long-term strategy for dealing with high-level waste. Because 

the 1987 amendments of the Nuclear Waste Policy Act restrict all repository site 

investigations to the single site at Yucca Mountain, new legislation is needed to authorize siting and development of a repository at any other site. 

RESPONSES OF GEOFFREY H. FETTUS TO QUESTIONS FROM SENATOR CANTWELL

INTRODUCTION

As in initial matter, we share your concerns regarding the state of cleanup for 

the nation’s high-level radioactive waste (HLW). Indeed, NRDC has been a leading 

force for the cleanup of the HLW waste tanks at the Hanford Nuclear Reservation 

in Washington and the similar HLW tanks in Idaho, South Carolina, and New York. 

We were at the center of the litigation and legislative battles approximately eight 

years ago over the Department of Energy’s (DOE) efforts to obtain the authority to 

reclassify HLW as ‘‘waste incidental to reprocessing.’’ DOE succeeded in obtaining 

this reclassification authority via Section 3116 of the 2005 Defense Authorization 

Act, but only in South Carolina and Idaho and not in Washington and New York. 

Despite this partial victory, cleanup at the Hanford site remains mired in pressure 
57 

to cut costs and rely on expedient shortcuts rather than long term solutions that 

address the waste in the tanks. We remain engaged with Washington allies in working to ensure that the HLW at Hanford site is effectively cleaned up. 

But despite our shared concern over HLW, we are more apprehensive that shortcuts favoring addressing particular subsets of the national problem of spent nuclear 

fuel (SNF) and HLW will only add delay and hamper the development of a sound, 

protective and publicly acceptable geologic repository program. In our view the Blue 

Ribbon Commission on America’s Nuclear Future—Report to the Secretary of Energy (BRC) included several recommendations that could help build a better nuclear 

waste management system, but decades from now others will face our current predicament unless Congress creates a transparent, equitable process with strong public health and environmental standards that cannot be manipulated in order to license a site (or sites) that may not be suitable. To do that, as it writes our path 

forward, Congress must ensure we not repeat the mistakes of the past. 

Key to avoiding those mistakes and creating a transparent process with strong 

standards is providing states with meaningful regulatory authority at the outset. I 

will expand on these thoughts in response to your specific questions, but as an introductory matter, Chairman Bingaman has made a laudable effort and turned some 

of the stronger ideas in the BRC report into legislative language. As evidenced in 

our testimony before the Committee, we support fundamental components in the 

proposed bill, dispute other parts, and have several suggestions for expansion and 

refinement of S. 3469. But the Chairman’s emphasis on the necessity of repositories 

and the need to link any potential storage site with the development of a disposal 

site is of lasting value. Any legislation that fails to adhere to these concepts will 

prolong the failures of the past thirty years in developing solutions for nuclear 

waste. 

Question 1. I believe a key part of solving our nation’s nuclear waste challenges 

is to recognize that we need to prioritize addressing certain types of waste first— 

such as waste stranded at shutdown reactor sites and defense waste that has built 

up for decades. Not all nuclear waste is the same, and I do not plan to support any 

legislation that does not remedy the mistakes of the past that has precluded more 

feasible solutions for our nation’s defense waste. 

As I’m sure you know, Hanford is the largest nuclear cleanup site in North America. We have been diligently trying to clean up this site, an incredible complex and 

costly endeavor. While it is a constant struggle to keep this monumental effort on 

track, I proud of incredible efforts of Hanford workers and we are making real 

progress. But we need an end point. Once we clean up and isolate this toxic legacy, 

we need a place for it to go. 

It is unacceptable to me, and to the constituents I represent, for Hanford to be 

the de facto repository for 90 percent of the nation’s high-level radioactive defense 

waste. 

While proud of the service to help secure our nation during World War II and the 

Cold War, the Tri-Cities region has contributed and sacrificed enough during the 70 

years in which a large portion of my state has been put off limits to economic development or other uses. 

The problem as I see it is that our nation’s nuclear waste policy treats civilian 

nuclear waste and defense waste the same, with defense waste almost as an afterthought. 

That’s a problem for two important reasons: First, our defense waste is not suitable for on-site storage and Hanford’s Waste Treatment Plant is scheduled to 

produce vitrified high level waste in 2019. And second, defense waste is a witch’s 

brew of nuclear byproducts that can never be reprocessed for electricity generation. 

Therefore, it can be disposed of permanently, possibly in ways that are faster and 

cheaper than civilian waste. 

Question 1a. Do you agree that nuclear waste that we would never want to retrieve but can be permanently disposed of should be treated differently? 

Answer. As a general matter, NRDC sees no need to dispose of SNF or HLW in 

a retrievable manner. If there are concerns about the integrity of a repository site, 

an ability to retrieve waste during some interim period of time before closure might 

be a useful feature, but we would hope that concerns over the geologic integrity of 

a site is a problem that would be addressed via the technical siting process rather 

than a back-end solution like the ability to retrieve waste. 

Additionally, while we understand your point that vitrified HLW is not as easily 

subject to reprocessing as SNF, we do not think that should affect the disposal path 

for either. In the case of both SNF and HLW, repositories will be necessary. As we 

noted a number of times before the BRC, there is no current or prospective closed 

fuel cycle (i.e., reprocessing and fast reactors) that can economically compete with 

the current open cycle and we see no likelihood of things changing. Spent-fuel re-
58 

processing and plutonium-fueled fast reactors are well-proven commercial disasters. 

The United States, Europe, and Japan spent tens of billions of dollars in the 1970s 

and 1980s trying to develop plutonium fast-breeder reactors (like the Bush Administration’s proposed Global Nuclear Energy Partnership ‘‘advanced burner reactors,’’ 

but with uranium ‘‘blankets’’ added to ‘‘breed’’ more plutonium than is consumed in 

the reactor). These fast reactors proved to be uneconomical, highly unreliable, and 

prone to fires due to leaking liquid sodium coolant, which burns spontaneously when 

it comes in contact with air or water. For a full discussion, see http://www.nrdc.org/ 

nuclear/gnep/agnep.asp. 

Question 1b. Have you studied whether permanent disposal in salt formations 

could be a cheaper and more readily available alternative to other geological storage 

options? 

Answer. No. We have neither ruled out nor ruled in disposal in salt and we think 

favoring any particular geologic medium invites precisely the same problems that 

derailed the efforts to establish a meaningful repository program over the last three 

decades. 

First, for decades NRC considered bedded salt as suitable for disposal either of 

reprocessed HLW or un-reprocessed spent fuel. Now, however, NRC has stated that 

salt formations are not being considered for spent fuel disposal for technical reasons. 

73 Fed. Reg. 59,551, 59555 (Oct. 9, 2008). Indeed, disposal in salt, which was the 

original basis for the NRC’s analysis for estimating the environmental impact of 

high-level waste or spent fuel disposal, could only be considered suitable for HLW 

from reprocessing, but as noted, reprocessing is not current policy. Nor should it be. 

Rather, direct and commingled disposal of HLW and SNF, for which the NRC would 

not consider salt formations, is now the current policy. 

Second, as noted, favoring salt or any other specific geologic media at the outset 

of this new phase in the repository program effort would likely derail the process. 

To be specific, the BRC recognized that the 1987 amendments to the NWPA were 

‘‘highly prescriptive’’ and ‘‘widely viewed as being driven too heavily by political considerations.’’ Those observations are insufficiently critical assessments of what happened. We have recommended that Congress be clear about what happened to avoid 

repeating the mistakes of the past. Put bluntly, first DOE and then Congress corrupted the site selection process leading to Yucca Mountain as the only option by 

selecting politically expedient sites long before the science or the standards were 

complete. 

I refer you to my testimony for the longer explanation of what went wrong with 

the development of sites and the applicable standards (see Fettus Testimony at 2- 

4), and I reiterate here that Congress must be explicit and state clearly in legislation that not only the standards for site screening and development criteria be in 

final form before any sites are considered, but generic radiation and environmental 

protection standards for any such site be established as well. See BRC Disposal Subcommittee Report, at 74. The Subcommittee was right to state that the standard 

and supporting regulatory requirements to license a geologic repository should be 

generic—i.e., applicable to all sites. 

Indeed, not requiring the siting criteria or generic environmental standards to be 

in final form prior to developing potential storage and disposal sites ensures that 

the same gaming of the system will recur as played out over the last two decades. 

Pressing forward with any distinct 5 solution at this early stage would unravel the 

carefully constructed framework achieved by the BRC and Chairman Bingaman’s S. 

3469. 

Question 1c. How do we make sure that defense waste does not get lost in the 

nuclear waste debate this time around? 

Answer. We do not necessarily agree that it has been ‘‘lost,’’ but we agree that 

more intensive Congressional oversight is necessary to ensure a protective cleanup 

results from the billions of dollars invested in addressing the toxic contamination 

left by the Cold War. As we noted at the outset, we share your concerns with the 

fact that the reprocessing of SNF produced approximately 100 million gallons of 

HLW, stored at DOE sites in more than 200 steel tanks buried just below the surface of the earth. These tanks range in size from a few hundred thousand gallons 

to more than 1 million gallons. This waste is primarily divided among three main 

production sites: Hanford, which has 177 tanks storing more than 50 million gallons 

of HLW; Savannah River Site, which has 51 tanks (a few have been closed via the 

incidental waste exemption discussed above) storing more than 35 million gallons 

of HLW; and the Idaho National Laboratory, which had 11 tanks (7 have been 

closed via the incidental waste exemption) storing about 900,000 gallons of HLW. 

The DOE EM budget includes more than $2 billion a year to address those HLW 

wastes. 
59 

As you are all too aware as one of Washington’s Senators, dozens of these storage 

tanks at Hanford have leaked HLW. Radioactive elements that have leaked out include cesium, strontium, tritium, technetium, iodine, plutonium and uranium. Some 

of these materials remain radioactive for hundreds of thousands of years. Non-radioactive but hazardous materials that have leaked include nitrates and metals such 

as chromium. If the reclassification authority that DOE has under its incidental 

waste exemption of Order 435.1 in South Carolina and Idaho is extended to Washington, DOE could abandon thousands (or potentially millions) of gallons of HLW 

near the Columbia River. If that were to occur, the concentration of radioactivity 

in abandoned sludges and sediments in the tanks could be as high, or even higher, 

than the concentration of radioactivity in the materials removed. 

So we agree with you. The current situation is not tenable and we support your 

efforts to ensure the toxic legacy of the Cold War is addressed at Hanford and at 

other nuclear weapons production sites. But to do that properly and not repeat the 

mistakes of the past, we encourage you to adhere to several of the principles embodied in Chairman Bingaman’s S. 3469—foremost that waste from the nation’s nuclear weapons program and its commercial nuclear power plants must be buried in 

technically sound deep geologic repositories, permanently isolated from the human 

and natural environments. 

But to ensure once and for all that the cleanup of the nuclear weapons complex 

receives the attention it deserves, we urge you to support our recommendation to 

amend the Atomic Energy Act (AEA) to remove its express exemptions of radioactive 

material from environmental laws. As we explained at length in our testimony, exemptions for radioactivity make it, in effect, a privileged pollutant. Exemptions from 

the Clean Water Act and the Resource Conservation and Recovery Act (RCRA) are 

at the foundation of state and, we submit, even fellow federal agency distrust of 

both commercial and government-run nuclear complexes. If EPA and the states had 

full legal authority and could treat radionuclides as they do other pollutants under 

environmental law, clear cleanup standards for DOE sites could be promulgated and 

we could be much farther along in remediating the toxic legacy of the Cold War. 

Further, we could likely avoid some of the ongoing legal and regulatory disputes 

over operations at commercial nuclear facilities. Any regulatory change of this magnitude would have to be harmonized with appropriate NRC licensing jurisdiction 

over facilities and waste and harmonized with EPA’s existing jurisdiction with respect to radiation standards, but such a process is certainly within the capacity of 

the current federal agencies and engaged stakeholders. Some states would assume 

regulatory jurisdiction over radioactive material, others might not. Washington and 

Oregon, for example, might choose to work in concert to address the cleanup at 

Hanford. But in any event, substantially improved clarity in the regulatory structure and a meaningful state oversight role would allow, for the first time in this 

country, consent-based and transparent decisions to take place on cleanup of the nuclear weapons complex and developing storage sites and geologic repositories. 

Question 2. Unfortunately, the requirement that nuclear waste be retrievable for 

up to a century blocks many potential sites. There are communities that would welcome our nation’s nuclear waste; but while they are located near technically-sound, 

cost-effective geologic formations, high level waste placed there cannot be retrieved. 

So maybe it’s time to reconsider this retrievability requirement. The mere possibility of future uses for the nuclear waste should not block progress on siting a nuclear repository and geologically disposing of our nation’s nuclear waste. This is especially true for defense waste, which has even lower prospects for reuse than commercial waste. 

Question 2a. Given the bleak prospects for recycling or otherwise using nuclear 

waste, should this retrievability requirement block siting a repository in a technically-sound, cost-effective place that is willing to accept waste? 

Answer. We concur with your assessment for reprocessing and fast reactors (see 

above at 3-4). 

A retrievability requirement should not block any single repository site, but any 

and all sites should go through the process we outlined above and that Senator 

Bingaman suggests in S. 3469. As we noted above, Congress should require the 

standards for site screening and development criteria be in final form before any 

sites are considered. Congress should also require generic radiation and environmental protection standards for any such site be established as well. See BRC Disposal Subcommittee Report, at 74. The BRC correctly stated that the standard and 

supporting regulatory requirements to license a geologic repository should be generic—i.e., applicable to all sites. Failing to impose such requirements invites the 

same gaming of the system we have seen play out over the last two decades. We 

encourage you to follow the carefully constructed framework set out by the BRC and 

Chairman Bingaman’s S. 3469 with our suggested modifications. 
60 

Question 2b. If the insistence on this retrievability requirement for commercial 

waste continues, do you think we ought to consider a separate repository for defense 

waste without such a restriction—a potential dual-path forward envisioned by the 

original Nuclear Waste Policy Act of 1982? 

Answer. We do not insist on an ability to retrieve the waste, but as noted above, 

we urge following the framework for a transparent, consent-based process set forth 

by the BRC, Chairman Bingaman, and with the modifications we suggest (such as 

amendments to the AEA). Whether there will be a need to revisit the commingling 

decision for SNF and HLW is a matter far down the road. At this stage, ensuring 

strong, protective legislation is passed will do the most to ensure the problems of 

the past are not revisited. 

Question 3a. Do you see the Blue Ribbon Commission recommendations and 

Chairman Bingaman’s legislation as a renewed call to correct our course? Choosing 

science, economics, and consensus over the failed political wrangling of the past 25 

years, going back to many of the principles of the original Nuclear Waste Policy Act 

of 1982? 

Answer. Yes. As we stated to the Senate Committee on Environment & Public 

Works in June of this year, we think the BRC delivered a useful, although limited, 

report that identified several components of what could become a successful strategy 

for the ultimate safe disposal of commercial and defense spent nuclear fuel and 

high-level radioactive waste. NRDC submitted both oral and written comments to 

the BRC and its subcommittees during the months the BRC conducted its work. 

Turning to the effort by Chairman Bingaman, we think S. 3469 sets a strong template with several important provisions that can help build a better nuclear waste 

management system, but decades from now others will face our current predicament 

unless Congress fundamentally revamps how nuclear waste is regulated and allows 

for meaningful State oversight by amending the AEA to remove its express exemptions of radioactive material from environmental laws. 

Question 3b. For such a complex challenge as disposing of nuclear waste for millions of years, do you believe technical considerations should trump political ones 

to the maximum extent possible? 

Answer. No. As we outlined in our testimony, NRDC strongly supports the development of a science-based repository program that acknowledges the significant institutional challenges facing SNF and HLW storage and disposal. We have outlined 

in our testimony how we might achieve progress on both technical and political/institutional fronts. 

Question 4. I would like to discuss the economics of different geologic formations. 

While there are multiple ways and places to secure nuclear waste safely, the costs 

of doing so are different. I believe that these costs should be considered when selecting among technically-sound sites. 

A recent study compared the costs of repositories capable of holding 83,000 metric 

tons of heavy metals in different geologic media. It found that siting a repository 

in volcanic tuff or crystalline rock costs two to three times that of a repository in 

massive salt formations. 

These extra costs came primarily from the development and characterization of 

the site, more expensive and complex surface and subsurface facilities, and extensive packaging, barriers and shields necessary to keep the waste intact. Because of 

the potential cost savings, I think we need to take a hard look at salt formations 

throughout the country as potential sites for a repository. 

Question 4a. Do you believe that cost should be an important factor when selecting among sites that can safely dispose of waste and have support within the community? 

Answer. Cost is an important, but ultimately a secondary issue. The BRC Final 

Report puts an emphasis on the concept of ‘‘intergenerational justice’’ as an ethical 

framework for a nuclear waste disposal program. NRDC agrees and views this concept as the principal basis for seeking geologic disposal of the nuclear waste. This 

generation’s ethical obligation to future generations regarding nuclear waste disposal involves critical issues of security, including financial security, environmental 

protection, and public health. 

Rather than focusing on cost, which is in significant measure the reason the siteselection process was corrupted, the aim of the program should be on a transparent, 

publicly acceptable process of selecting and arriving at technically suitable sites. 

Question 4b. Do you agree that salt formations could deliver potential cost savings 

compared to other geologic media types and deserve consideration? 

Answer. Salt, like any other geologic medium, deserves consideration that is part 

of a transparent, public process. See our response above at 4. 

Question 5. It is simply unacceptable for Hanford to become the de facto repository for 90 percent of the nation’s high-level radioactive defense waste. Back in the 
61 

1980’s when a number of repository sites were analyzed, Hanford placed last in 

terms of cost-effectiveness. 

These high costs were in part due to the extraordinary technical challenges. According to a National Research Council report, the high internal stresses within the 

basalt formation at Hanford poses a risk of ‘‘rock bursts’’ when opened up to atmospheric pressure. And the U.S. Geological Survey found that the high water pressure 

in the deep aquifer poses the danger of catastrophic flooding. 

Question 5a. Do the cost-effectiveness of meeting technical requirements and inherent suitability of a site go hand-in-hand? 

Answer. We agree that the state of Hanford’s tanks is unacceptable as outlined 

above, but we disagree with your characterization that Hanford has 90 percent of 

the nation’s HLW. We think that burden is shared as we described on page 5. 

Turning to your direct question, we think there could be a relationship between 

the geologic suitability of the site and the costs necessary to assess the geology’s 

ability to isolate the waste, but that’s a question that presupposes too many factual 

matters that would have to be developed in a transparent, public manner. We think 

if the focus stays on legislation that develops a science-based repository program 

that takes into account the significant institutional challenges facing SNF and HLW 

storage and disposal, all will be better served. 

Question 5b. Do you agree that cost-effectiveness is an important consideration 

that partially takes the suitability of a repository site into account? 

Answer. As we stated above, we think cost is a secondary issue. 

Question 6. I am pleased to see that this legislation repeals the limit on the 

amount of waste able to be disposed at a repository. This was a well-kept secret 

about Yucca. Even if Yucca were licensed under current law, it would not be able 

to accommodate all of our nuclear waste, neither civilian nor defense. I believe a 

litmus test for any new federal nuclear waste policy is whether it can dispose of our 

nation’s nuclear waste—all of it. 

Answer. This has been one of my biggest concerns with the Yucca proposal. Of 

the 70,000 ton limit for waste at Yucca, only 7,000 tons were set aside for defense 

waste. Of that 7,000 tons for defense waste, only 4,667 tons would be allocated for 

high level waste. 

Although the total number of tons of high level defense waste is somewhat uncertain, just three percent of DOE’s inventory of vitrified High Level Waste would be 

accounted for under the planning basis of 4,667 tons of heavy metal for DOE High 

Level Waste when compared to over 170,000 tons of heavy metal DOE reprocessed 

fuel. 

In practice, a higher percentage could probably be accommodated because a portion of the radioactivity has already been lost. According to an historical estimation 

method, the limit of high level defense waste at Yucca would still not have been 

able to accommodate the high level waste at Hanford because this limit accounts 

for less than half of all defense high level waste. 

An even smaller percentage of Hanford waste would have been able to go to Yucca 

under current law. Any way you cut it, there simply is not enough capacity without 

a repeal of this limit. 

Question 6a. Are there any technical or safety reasons for the current limit of 

70,000 tons? If so, does this mean that we need multiple repositories to accommodate all of our nation’s waste? 

Answer. Technical or safety limitations on the amount of SNF and HLW that can 

be disposed of at any site will be dependent on site specific limitations. Whether or 

not we even get to raise these matters for particular sites will depend on whether 

any new legislation avoids the mistakes of the past. 

Question 6b. Why do you think over half of our nation’s high level defense waste 

was left out of the plan at Yucca? 

Answer. Under the Nuclear Waste Policy Act of 1982, there were supposed to be 

two repositories and a balancing of the national burden for the disposal of SNF and 

HLW. 

[Responses to the following questions were not received at the 

time the hearing went to press:] 

QUESTIONS FOR PETER B. LYONS FROM SENATOR BARRASSO

S. 3469 would establish a new waste management agency. It would transfer to 

the agency the functions of the Secretary of Energy, relating to the siting, licensing, 

construction, and operation of nuclear management facilities. The Blue Ribbon Com-
62 

mission has called for the establishment of a new Federally chartered corporation 

to handle these responsibilities. 

Question 1a. Does the Administration support the creation of a new Federal agency to handle nuclear waste management? 

Question 1b. Does the Administration support the creation of a new Federally 

chartered corporation to handle nuclear waste management? 

Question 2. In your testimony, you explain that nuclear waste fee collections exceed $750 million each year. What benefits are ratepayers currently receiving in return for these fees? 

The Blue Ribbon Commission issued its report in January of this year. I understand the Administration was supposed to submit a plan to implement the recommendations by the end of July, but has yet to do so. 

Question 3a. What is the reason for the delay? 

Question 3b. When can Congress expect the Administration’s implementation 

plan? 

Question 4. Does the Administration support S. 3469 as currently written? If not, 

do you recommend specific changes to the bill? If so, what are those changes? 

The Consolidated Appropriations Act for FY 2012 requires the Department of Energy (DOE) to submit to the House and Senate Appropriations Committees a revised 

excess uranium inventory management plan for FY 2013 through FY 2018 ‘‘[n]o 

later than June 30, 2012.’’ DOE has yet to submit such a plan. 

Question 5a. When will DOE submit the plan? 

Question 5b. Do you expect the management plan to be consistent with the May 

15, 2012 Secretarial Determination? 

Question 6. Section 312(a) of the Consolidated Appropriations Act for FY 2012 

reads as follows: 

Any determination (including a determination made prior to the date of 

enactment of this Act) by the Secretary pursuant to section 3112(d)(2)(B) 

of the USEC Privatization Act (110 Stat. 1321-335), as amended, that the 

sale or transfer of uranium will not have an adverse material impact on the 

domestic uranium mining, conversion, or enrichment industry shall be valid 

for not more than 2 calendar years subsequent to such determination. (emphasis added) 

Pursuant to the May 15, 2012 Secretarial Determination, DOE plans to transfer 

up to: (a) 2,400 metric tons of natural uranium per year between 2012 and 2021 

to DOE contractors for cleanup services at the Paducah or Portsmouth gaseous diffusion plants; and (b) 400 metric tons of natural uranium equivalent per year contained in low-enriched uranium (LEU) to National Nuclear Security Administration 

contractors for down-blending highly enriched uranium to LEU from 2012 through 

2020. Are provisions 2) and 3) of the May 15, 2012 Secretarial Determination permissible under the two year limitation set forth in section 312(a)? If so, how? 

Question 7. On February 16, 2012, Secretary Chu testified before this Committee 

that: 

We have to be very careful about whether... bartering [uranium] will 

affect the markets . . . If we introduce into the market . . . 10 percent 

[of domestic fuel requirements] or below . . . , we feel safe that it won’t 

have a material impact on the markets. 

If fully implemented, the May 15, 2012 Secretarial Determination would result in 

uranium transfers that exceed the 10 percent cap set forth in the DOE’s 2008 Excess Uranium Management Plan. 

Question 7a. Does DOE believe that the market for uranium changed from February to May to justify exceeding the 10 percent cap? 

Question 7b. If so, what changed in the market for uranium between the February 

hearing and the May 15, 2012 Secretarial Determination? Please be specific. 

Question 8. How would DOE respond to changes in the global market for uranium 

to ensure that the sales and transfers envisioned under the May 15, 2012 Secretarial Determination do not have an adverse material impact on the America’s uranium mining, conversion, or enrichment industry? 
(63) 

APPENDIX II 

Additional Material Submitted for the Record 

NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, 

September 10, 2012. 

Hon. JEFF BINGAMAN, 

Chair, Committee on Energy and Natural Resources, U.S. Senate, Washington, DC. 

Hon. LISA MURKOWSKI, 

Ranking Member, Committee on Energy and Natural Resources, U.S. Senate, Washington, DC. 

DEAR CHAIRMAN BINGAMAN AND RANKING MEMBER MURKOWSKI: The National Association of Regulatory Utility Commissioners (NARUC) would 

like to submit the following comments regarding the proposed Nuclear Waste Administration Act of 2012, S. 3469. 

NARUC and our member State public utility commissioners have been actively 

engaged in the issue of nuclear waste disposal since the Nuclear Waste Policy Act 

was enacted in 1983. We followed closely and participated in the work of the Blue 

Ribbon Commission on America’s Nuclear Future and we want to contribute to implementing its recommendations so that the troubled program can get on track. 

Our interest in this issue centers around the consumers of nuclear utilities who 

have been bearing the ultimate cost of fees paid by their utilities for the electricity 

that is produced from the Nation’s 104 nuclear reactors. Those fee payments represent the ‘‘grand bargain’’ set in the Nuclear Waste Policy Act. Under the Act, the 

federal government is responsible for the safe disposal of both government and commercial nuclear waste, and those who have benefit (i.e. consumers of nuclear power) 

shall pay for the cost of disposal of waste products. Unfortunately, history has proven that the collection of fees has been the only aspect of the nuclear waste program 

that began on time and has functioned as designed. 

We should note for the record that NARUC is a party to litigation before the 

Court of Appeals District of Columbia Circuit seeking to require that the Nuclear 

Regulatory Commission resume the Yucca Mountain license application review and 

come to a final determination of whether a repository at Yucca Mountain meets regulatory requirements or not. 

The Blue Ribbon Commission on America’s Nuclear Future in its January Report 

to the Secretary of Energy said all of its recommendations ‘‘can and should be implemented regardless of what happens to Yucca Mountain.’’ We had expected that the 

Administration would have provided some indication of whether and how it will implement those recommendations or how it intends to ‘‘fulfill the Federal Government’s obligations for managing and ultimately disposing of spent nuclear fuel and 

high-level radioactive waste’’ as it pledged in 2009. 

We commend the leadership of this Committee for your collaborative efforts with 

members of the Energy and Water Appropriations Subcommittee to produce the proposed ‘‘Nuclear Waste Administration Act of 2012,’’ S. 3469, as a legislative vehicle 

to incorporate key provisions of the BRC Report into a modified Nuclear Waste Policy Act. We have some comments from the standpoint of ratepayers and in some instances in comparison with the BRC recommendations. 

You will not be surprised that our primary interest is on fixing the Nuclear Waste 

Fund. The BRC said it believed that ‘‘the success of a revitalized waste management 

program will depend on making the revenues by the nuclear waste fee and the balance in the NWF available when needed and in the amounts needed to implement 

the program.’’ The Commission called for reform in two stages: 

• Near Term, within existing administrative authority: Modifying existing contracts with utilities such that total fees paid to the Treasury would match the 

amount appropriated from the NWF in the same year. The balance would be 

placed in irrevocable trust accounts (escrow) for future payments. The fee rev-
64 

enue would be reclassified as offsetting receipts, subject to concurrence by the 

Congressional Budget Office and the Budget Committees. 

• Congressional action required: The BRC recommended budget autonomy for the 

new nuclear waste management organization that would require legislation 

(such as S. 3469) to establish. Specifically, the BRC recommended the legislation include a ‘‘defined schedule of payments to transfer the balance of the Fund 

(the corpus) to the new organization over a reasonable future time period starting 10 years after the organization is established.’’ 

We are deeply disappointed that the Administration chose not to move ahead on 

the near-term action which was so carefully researched by the Blue Ribbon Commission and placed in their hands. We are not experts in federal fiscal rules, but given 

the importance of resolving this issue, we expected a better effort. This lack of action reminds us of a baseball saying—‘‘You will never get a hit if you don’t take 

a swing.’’ 

Thankfully, as it relates to the actions requiring congressional action, , S. 3469 

steps up to the plate. The legislation creates an independent agency called the Nuclear Waste Administration that would be given most of the duties and authorities 

under the NWPA that are presently assigned to the Secretary of Energy. Still, we 

are concerned about how the program will be managed before legislation is enacted 

and how transition to the NWA is implemented. For the past two years, about $770 

million in fees have been paid into the Nuclear Waste Fund annually and no money 

was appropriated for waste disposal. It appears, however, that the money was spent 

for other purposes and more ‘‘IOU’s’’ were added to the Fund. We are anxious to 

see if FY 2014 is any different. 

Regarding the organizational form and function, we thought the federal corporation proposed by the BRC was well considered. We found the various oversight 

mechanisms ample, including a role for State utility commissioners to serve in the 

review of fee adequacy determination. 

Having seen extended vacancies in the senior DOE waste program manager’s position caused by lengthy confirmation delays in the Senate during the Yucca period, 

we find the BRC federal corporation a well suited approach. This is because having 

presidentially appointed directors select the CEO better protects the position and 

provides greater program stability than the politically-appointed Administrator/Deputy Administrator positions the NWA legislation would. 

Moreover, the bill does not heed the clear call for financial reform made by the 

BRC and it may impede the startup of the new organization. The Administration 

(so far) chooses to avoid a rejection of the near-term fee reclassification, so let us 

express some apprehension over how a Nuclear Waste Administration might be difficult to form if it cannot attract top-tier talent because of concerns over its financial 

stability. Potential applicants for the NWA Administrator position do want to see 

a secure financial foundation underlying the NWA or other organization. 

Additionally, we are puzzled by the appearance of different degrees of financial 

autonomy for the new Administration: 

• In Sec. 301 the NWA is given authority for the ‘‘collection, adjustment, deposition and use of fees’’ to accomplish waste functions, yet 

• Sec. 401 (c) says funds deposited in the Working Capital Account ‘‘shall be immediately be available. to carry out the functions of the Administrator, except 

to the extent limited in annual authorization or appropriation Acts.’’ 

The Working Capital Fund seems to offer improved access to the fee revenue, 

which should be an improvement over the present arrangement. An even better 

strengthening of the NWA financial support, though, would have the interest earned 

on the balance in the Nuclear Waste Fund deposited in the Working Capital Fund. 

In recent years, that interest has been over $1 billion a year. 

The bill gives no indication on any disposition schedule like the BRC suggested; 

leaving some doubt about when and under what conditions the ‘‘corpus,’’ reportedly 

over $26 billion now, will be made available for the purpose it was collected. No one 

is saying there is a need to use that money now, but every calculation of the sufficiency of the fees rests on the assumption that 100 percent of past fees paid is available to the waste activities program, including interest. It seems ironic, then, that 

Section 403 provides direction that the NWA is to assume that sufficient funds will 

be appropriated to the NWA to cover the cost of defense waste disposal, yet there 

is no counterpart assurance that past fee revenue collected and supposedly held in 

the Nuclear Waste Fund will also be appropriated. 

We agree with the shift to a more co-equal ‘‘consent-based’’ approach to siting nuclear waste facilities. We hope that the implementing organization is given latitude 

to be adaptive to the circumstances of the States and localities involved. There are 
65 

opportunities to employ the principles recommended by the BRC in pursuit of a consolidated interim storage facility for spent nuclear fuel from the decommissioned reactor storage sites. Successful development of such a facility—whether by DOE or 

a new organization—would demonstrate that the government can safely transport 

and store spent nuclear fuel while pursuing a geologic repository. There are a number of cost estimates for building such a facility. One done by DOE in 2007 indicated 

a facility for the decommissioned sites could be built and operated for 15 years for 

the same amount of fees paid by all reactors in a single year. 

The bill includes many other important elements that we are not addressing here. 

Importantly, we want to continue to work with DOE until a new organization is 

formed and functional. We must be realistic about just how quickly we can move 

forward, even if Congress passes a bill. Issues such as the radiation standards, 

siting guidelines and development of a mission plan within a year, will take time. 

Indeed, just building a nucleus staff and creating a new organization will take time. 

As we stand at the threshold of dramatic sequestration reductions in federal agency budgets, there may be resistance to creating a new federal agency for any purpose. We considered it unfortunate that the Administration took credit in the FY 

2010 Budget for termination of the Yucca Mountain program, rather than recognizing that the Administration—we believe—meant to cancel the Yucca Mountain 

project and to reset the development of the program at a different site or sites. We 

regret the disbanding of a residual staff within the Department of Energy that could 

tend to disposal affairs during the BRC deliberation and to aid in the establishment 

of a new waste management organization. 

In conclusion, NARUC appreciates the leadership in creating this bill-a positive 

step—although we remain apprehensive about ‘‘limits’’ on annual fees and worried 

over the corpus. 

The best media summation comes from July 4 New York Times: ‘‘If nuclear power 

is to have a future in this country, politicians, scientists, and industry leaders need 

to commit to finding a solution instead of just hoping everything will somehow work 

out.’’The BRC expressed much the same appeal in its Report, as its members ‘‘believe it is long past time for the government to make good on its commitments to 

the American people to provide for the safe disposal of nuclear waste.’’ 

Sincerely, 

DAVID A. WRIGHT, 

NARUC President, Vice Chairman, South Carolina Public Service Commission. 

STATEMENT OF THE ENERGY COMMUNITIES ALLIANCE

Chairman Bingaman, Ranking Member Murkowski and Members of the Committee, we thank you for accepting our written testimony on S.3469, a bill to establish a new organization to manage nuclear waste, provide a consensual process for 

siting nuclear waste facilities, ensure adequate funding for managing nuclear waste, 

and for other purposes. We would also like to thank the sponsor of this bill: Senator 

Jeff Bingaman (D-NM). The Energy Communities Alliance (ECA) is the association 

of local governments that are adjacent to or impacted by Department of Energy 

(DOE) nuclear activities. Our members are either neighbors or hosts of DOE and 

National Nuclear Security Administration (NNSA) sites that currently produce or 

formerly produced defense nuclear waste, sites that store and process defense nuclear waste, and the sites that may potentially host a future interim storage facility, 

reprocessing facility or geologic repository. 

Founded in 1992, ECA is the only association to bring together and provide a central voice for local elected and appointed officials on DOE issues. Our sites are the 

sender and receiver sites for nuclear waste, and potential hosts for nuclear waste 

interim storage, recycling and disposal facilities. We believe that local governments 

have a critical role to play in any waste discussion, and we have stated this position 

many times in our testimony before the Blue Ribbon Commission on America’s Nuclear Future (BRC). We applaud the efforts of this legislation to ensure that local 

governments are involved in waste decisions from the beginning. 

Our communities are most interested in the disposal of defense waste currently 

stored at many of our sites. As you consider this legislation, we ask you to take into 

account the impact these decisions will have on our communities. We would like to 

offer the following recommendations and comments on S.3469: 

• Congress and the Administration Need to Re-Engage Communities on HLW 

Issues 

• ECA Supports the Inclusion of Local Governments in the Decision-Making Process 
66 

* The appendixes have been retained in committee file. 

• The Siting Process Must Allow Affected Communities to Decide Whether, and 

on What Terms, the Affected Communities Will Host a Nuclear Waste Facility 

• Use a Phased, Adaptive Approach to the Sequence of Waste Disposition—Move 

Defense Waste First. 

• The Impacts of Transportation on Local Governments and Communities Need 

to Be Addressed 

• ECA Can Support a New Organization to Manage Nuclear Waste 

Many of our members currently call for Yucca Mountain licensing to be restarted. 

However, our organization also supports the Chairman’s initiative to develop legislation to continue to move forward to create a High-Level Waste (HLW) Policy that 

can be implemented in the current political environment. 

Our members have jointly prepared the testimony we submit to you today. 

Congress and the Administration Need to Re-Engage Communities on HLW Issues 

ECA communities have been home to federally-owned and operated nuclear facilities for over half a century. ECA believes that any legislation must require that 

DOE, or any new entity responsible for nuclear waste management, engage these 

communities in a meaningful dialogue and take into account the impact on the 

states, tribes and local governments. 

Many of the local communities ECA represents currently store high-level nuclear 

waste were, but were never intended to become permanent waste storage sites. 

These same communities have operated in good faith based on federal law, as codified in the NWPA, that the defense waste would ultimately be disposed of in a geologic repository. As hosts of DOE sites where this defense high-level waste has been 

produced and stored, our communities have unique health and safety concerns as 

well as resource needs. 

Several local governments have identified that, if certain conditions are met, the 

local community may be willing to accept a HLW disposal mission. Congress and 

the Administration should begin to re-engage with these communities, and begin the 

process of assisting these communities and states to study the scientific data to determine if their communities are suitable for such a mission. 

ECA’s high-level waste policy is attached as Appendix A.* In addition, we have 

attached ‘‘Recommendations for The Blue Ribbon Commission On America’s Nuclear 

Future To Involve Local Communities’’ as Appendix B.* Further, additional ECA positions and meeting summaries can be found at www.energyca.org. 

ECA Supports the Inclusion of Local Governments in the Decision-Making Process 

ECA supports the inclusion of local governments in the decision-making process 

outlined in S.3469. We appreciate that the legislation takes into account the impact 

that storing, transporting and disposing of nuclear waste has and will have for communities at the local level. 

We agree with the language included in the Sec. 304. Siting Nuclear Waste Facilities: 

In siting nuclear waste facilities under this Act, the Administration shall 

employ a process that (1) allows affected communities to decide whether, 

and on what terms, the affected communities will host a nuclear waste facility; (2) is open to the public and allows interested persons to be heard 

in a meaningful way; (3) is flexible and allows decisions to be reviewed and 

modified in response to new information or new technical, social, or political 

developments; and (4) is based on sound science and meets public health, 

safety, and environmental standards.’’ 

ECA, local elected officials, and many other impacted parties often highlight how 

important these four provisions are in successfully siting nuclear waste facilities. 

Most significantly to ECA, this legislation demonstrates an understanding that local 

communities face unique health and safety decisions as hosts of storage and disposal sites—and that they should be allowed to determine what is necessary to address their unique needs and concerns—an issue of paramount importance to ensure 

long-lasting support and concurrence. 

ECA also recognizes that states and local governments must work together meaningfully as early as possible in the process in order to avoid the pitfalls of the past, 

maximize positive outcomes and successfully site nuclear waste facilities. 

We also support the language included in the legislation requiring public hearings 

in the vicinity of the site and at least one other location within the state where the 

site is located. Local governments want the public to be informed of any proposed 
67 

site characterization and have the opportunity to provide comments and recommendations to the federal government. 

Finally, in regards to a consent agreement for making a final determination of 

site suitability, ECA agrees with the terms and conditions outlined in S.3469: 

The terms and conditions of the consent agreement ‘‘shall promote the economic 

and social well-being of the people living in the vicinity of the repository or storage 

facility; and (B) may include—— 

(i) financial compensation and incentives; 

(ii) economic development assistance; 

(iii) operational limitations or requirements; 

(iv) regulatory oversight authority; and 

(v) in the case of a storage facility, an enforceable deadline for removing nuclear waste from the storage facility. 

ECA believes local governments are uniquely positioned to negotiate these benefits on behalf of the impacted community. A community volunteering to host a nuclear waste facility should be prepared to identify what it needs and wants as a potential host. 

The Siting Process Must Allow Affected Communities to Decide Whether, and on 

What Terms, the Affected Communities Will Host a Nuclear Waste Facility 

ECA supports the process described in S.3469 for siting nuclear waste facilities. 

Local governments of affected communities must be engaged early and actively in 

any siting process for any new nuclear facility. Meaningful involvement is critical 

at all steps in the process—developing the vision, refining the goals and priorities, 

and providing input when conflicts arise. Increased coordination and cooperation 

with the federal government will ensure that local governments and potential host 

communities better understand the federal government’s approach, and it will keep 

local communities informed so they can understand priorities, concerns and goals. 

S.3469 states that preference will be given to sites determined to be suitable for 

co-location of a storage facility and repository. ECA would also note that special consideration should be given to sites that are determined to be suitable for co-location 

of a storage facility and a facility for recycling (or reprocessing) used fuel. We understand that recycling will not eliminate the need for a geologic repository, but it may 

allow what we currently consider ‘‘waste’’ to be a new energy resource. Further, several communities have already identified that they would be unlikely to accept the 

mission without a recycling or other similar mission. 

Use a Phased, Adaptive Approach to the Sequence of Waste Disposition—Move Defense Waste First. 

As the local government hosts of the vast majority of defense-related high-level 

waste and spent nuclear fuel in the country, we recommend that this Nation’s defense-related high-level waste—especially material that is never intended to be retrieved—be given priority over, and ‘‘fast-tracked’’ ahead of, commercial waste and 

moved out of our states and into a repository as soon as possible. 

Our Nation has approximately 2,460 metric tons of heavy metal (MTHM) highlevel waste (approximately 2,150 MTHM defense and 310 MTHM non-defense) consolidated and stored mainly at the Hanford site in Washington, the Idaho National 

Laboratory in Idaho, and at the Savannah River Site in South Carolina—the latter 

alone has about 4,000 canisters of vitrified high-level waste glass logs ready for disposal. This legacy defense waste differs from commercial spent nuclear fuel in a 

number of ways: 

1. It is older and has been awaiting permanent disposal longer. 

2. It has different radioactive properties. 

3. Much of the defense high-level waste is being vitrified and cannot be retrieved for recycling or reprocessing. It is currently being ‘‘packaged’’ to Yucca 

Mountain standards and stored in ‘‘temporary’’ buildings. 

4. It has only one disposition path: a geologic repository. 

5. Maintaining the status quo pending a decision regarding commercial waste 

increases the risk to human health and the environment. At Hanford, one million gallons of high-level waste have already leaked from storage tanks. 

6. Maintaining the status quo is compromising other DOE missions at the affected sites. For example, further delays will violate legal commitments DOE 

has with states. Missing milestones, failing to meet deadlines or failing to honor 

agreements will adversely affect DOE’s Office of Environmental Management’s 

cleanup program. 

7. There is a smaller volume of defense legacy high-level waste than of spent 

nuclear fuel. 
68 

8. Funding for management of legacy waste comes from a different source 

than funding for management of commercial waste. 

In addition, unlike spent nuclear fuel, defense high-level waste and storage of defense high-level waste is not regulated by a third party (the Nuclear Regulatory 

Commission regulates private spent nuclear fuel). Defense high-level radioactive 

waste is self-regulated by DOE. Defense high-level waste was created primarily to 

support the defense of our country and not for private energy production and in 

some cases has been shipped from one defense site to another for ‘‘temporary’’ storage pursuant to agreements with states. Finally, defense high-level waste is being 

treated to address United States international treaty obligations in some cases. 

In the future the defense waste and commercial waste can be comingled in a repository once the commercial waste can move forward. 

ECA recommends that the Committee consider establishing a pilot program first 

(consistent with National Academy of Sciences’ recommendations for adaptive staging) and the defense waste transitioned as part of the program. Doing so has several 

clear advantages. First, there is a smaller, more manageable scope of work where 

disposition may be achieved in a more timely manner. Second, demonstrating that 

the legacy waste can be successfully dispositioned can provide valuable lessons as 

the shift to commercial waste disposition occurs. Finally, and perhaps most importantly, public trust and confidence in the federal government will increase as the 

federal government demonstrates an ability to safely manage and dispose of nuclear 

waste and to keep its commitment to American taxpayers. 

The Impacts of Transportation on Local Governments and Communities Need to Be 

Addressed 

S.3469 outlines how States and Indian tribes will be provided with financial and 

technical assistance if plans are made to transport nuclear waste through their jurisdictions. Local governments in affected communities along transportation routes 

should be included among these groups as they, too, are responsible for public education and ensuring the safety of their citizens. Local governments provide services 

such as police and fire protection, water and waste water treatment and public 

health services. Training, equipment, and transportation safety programs for public 

safety officials and other emergency responders at the local level is extremely important and will help ensure consistency among all affected parties as waste moves 

across the country. 

Energy Communities Alliance Can Support a New Organization to Manage Nuclear 

Waste 

As elected officials at the local level, ECA members have the responsibility to protect the health, safety, quality of life and economic future of their citizens and the 

communities adjacent to DOE and NNSA sites where nuclear waste waits for final 

disposition in a repository. 

As ECA previously testified before the BRC, our members could support the creation of a new organization dedicated solely to implementing the nuclear waste 

management program, provided it has clear legislative authority, appropriate autonomy, appropriate oversight mechanisms, and access to required funding. Our members are still evaluating options for the structure of a new nuclear waste organization. ECA is encouraged that a primary purpose of the Nuclear Waste Administration will be ‘‘to protect the public health and safety and the environment’’ as it assumes the responsibility of the federal government to manage and dispose of nuclear 

waste. 

There is concern, however, about the timeline for creating this new entity given 

that in 1982, it took four years to begin substantive implementation of the NWPA. 

It will also take time to create a new regulatory structure. Increased delay means 

continued or even increased risks to our communities currently hosting ‘‘de facto’’ 

HLW storage sites with nuclear waste remaining beyond the timeframe originally 

committed to by the federal government. ECA recommends that the Committee consider empowering the Nuclear Waste Administration to allocate funds from a defense appropriations account to help ensure that local communities hosting sites 

with stranded defense-related HLW can address their unique health and safety concerns until a final disposition plan is implemented. 

ECA agrees that the Nuclear Waste Administration and the Nuclear Waste Oversight Board should have access to funds in the NWPA independent of the annual 

appropriations process. ECA believes the funds should be used as originally intended and outlined in Section 302 of the NWPA in 1982. 
69 

Conclusion 

ECA appreciates the opportunity to provide testimony to you on S.3469, and we 

appreciated this Committee’s work to address nuclear waste management now and 

begin to implement the recommendations made by the BRC. ECA supports the 

Chairman’s efforts to make nuclear waste management a priority. ECA looks forward to providing any assistance we can as your work continues. 

ECA also thanks the Chairman for his long-term leadership in the Nuclear Energy and Nuclear Waste Cleanup and Disposition Area. His actions have made each 

of our communities and our country a better and safer place to live. 

More information about Energy Communities Alliance can be found at 

www.energyca.org. 

STATEMENT OF EDDY-LEA ENERGY ALLIANCE LLC, CARLSBAD, NM 

Dear Senators Bingaman, Murkowski, Feinstein and Alexander: 

We’re writing to you on behalf of the Eddy-Lea Energy Alliance (ELEA), a limited 

liability company owned by the New Mexico public entities of the Cities of Hobbs 

and Carlsbad, and Lea County and Eddy County. ELEA is currently pursuing an 

interim storage facility for spent fuel on 1,000 acres of land about halfway between 

Carlsbad and Hobbs. 

We understand legislation is in development that will establish a new executive 

branch agency to take responsibility for siting storage and disposal facilities for the 

nation’s spent fuel and high-level nuclear waste. We applaud your efforts in attempting to pursue the spirit of the recommendations made by the Blue Ribbon 

Commission on America’s Nuclear Future and support many of them; however, we 

would like to address some items in the draft legislation that cause us concern. Our 

concerns are as follows: 

• The draft legislation would require significant repository progress prior to licensure of an interim storage facility. 

We believe this wording could put our nation’s interim storage plans (including 

Sen. Feinstein’s existing bill) at risk. If there is one lesson that has hopefully been 

learned over the past 30 years, it is that linking multiple processes that do not have 

to be connected runs the risk of causing nothing to ever move forward. 

It is our understanding that the impetus for interim storage is the fact that a repository for high level nuclear waste is 20 to 30 years away. We need to move nuclear material away from coastal areas, fault lines and population centers now—not 

wait for the repository stars to align themselves. In fact, if a repository is ready, 

why would interim storage even be needed? 

We realize that there is some concern that interim storage will become a permanent solution, but there are many more viable ways to address this concern, such 

as fines and timetables. Our nation’s primary concerns are that our fuel pools are 

being over packed and that there is an incredible surging expense to taxpayers due 

to a lack of an immediate solution. Interim storage is meant to be a fast solution, 

but linking it to repository development will prevent that from being the case. 

The heart and soul of the BRC’s recommendation is that a consent-based process 

be put in place. A forced linking between interim storage and repository development feels like a paternalistic decision that interferes with a local region’s and 

state’s right to make decisions about the pros and cons of a facility. 

• The bill does not provide for defense high level waste to go to an interim storage 

facility. We strongly believe that the DOE should retain the option of temporarily using interim storage for defense high level waste, if needed. Consolidated interim storage could save the DOE from spending hundreds of millions 

of dollars by preventing the building of additional facilities at its present locations. The DOE could also use interim storage to reduce oversight costs while 

waiting for a repository to be ready. On the other side of the issue, defense high 

level waste could be a major, rapid contributor to the viability of an interim 

storage facility. Keeping the DOE’s backing is important, and we recommend 

a revision that includes provisions for the possibility of defense high level waste 

interim storage. 

• Guidelines that require the administrator to take into account the extent storage would ‘‘unduly burden a state’’ that already has defense waste or transuranic waste. 

Our concern is that the ‘‘unduly burden’’ language will be subject to significant 

misinterpretation in discussions that follow the creation of this bill. Our interpretation is that this language simply requests that these states deserve careful consider-
70 

ation. Many states may opt not to view storage as any sort of burden due to incentives, road payments and job creation opportunities. If the determination of burden 

vs. benefit is strictly left up to the individual state, such language could be productive. 

However, opponents of a specific storage site may interpret such language to 

mean that states that currently have nuclear waste facilities would not be eligible 

for storage because ‘‘they have already done their share’’ when it comes to the nation’s nuclear waste needs. This is again a determination that should be made by 

each individual state rather than having the federal government decide. An incentive-based interim storage plan could be quite lucrative for an interested state—the 

federal government should avoid any language that might be somehow used, 

through misinterpretation, to punish states already involved in the nuclear waste 

process by making them less eligible for a desired facility. 

Furthermore, many of the states with existing nuclear waste facilities (including 

transuranic) are likely to be some of the nation’s best locations for future storage 

due to geographic and geologic considerations, existing trained workforce availability, and regional socio-political understanding of nuclear waste issues. A misinterpretation of the ‘‘unduly burden’’ line could be used to eliminate many of the 

nation’s best possible locations for interim storage. 

Senators, we ask that you look to our nation’s recent past at some of the mistakes 

made during the formation of the Nuclear Waste Policy Act (and amendments). 

There were unique provisions, for example, placed in the NWPA forbidding certain 

types of future study of specific types of geology. Those type of misplaced, self-serving laws are still causing our nation legal difficulties today. When in doubt, we believe the best path forward in any legislation aiming to capture the spirit of the 

BRC’s recommendations is to leave interpretations up to individual states and to 

avoid any federal language that might obstruct this process. 

In summary, our recommendations to the proposed bill, as it currently stands, are 

as follows: 

1. Delink interim storage from repository development. 

2. Establish language allowing for defense high level waste to be stored in an 

interim storage facility. 

3. Remove the bill’s ‘‘unduly burden’’ language as it applies to states with 

TRU waste or defense waste to avoid probable misinterpretation. 

We remain inspired by the bi-partisan, sincere efforts the four of you have displayed in putting together our nation’s nuclear plan. We believe this bill, once complete, may well create a responsible national stewardship plan that will withstand 

the test of time. Our organization thanks you all again for your contributions to 

solving our nation’s nuclear waste crisis and your decades of service to this great 

nation. 

STATEMENT OF DAVID A. WRIGHT, CHAIRMAN, SOUTH CAROLINA PUBLIC SERVICE

COMMISSION, NUCLEAR WASTE STRATEGY COALITION

Dear Chairman Bingaman & Ranking Member Murkowski: 

The Nuclear Waste Strategy Coalition (NWSC) thanks the Senate Energy & Natural Resources Committee for convening a hearing on important issues pertaining 

to nuclear waste disposal and submits the following comments regarding S. 3469, 

the Nuclear Waste Administration Act of 2012. Described by its sponsor as a bill 

to implement the recommendations of the Blue Ribbon Commission on America’s 

Nuclear Future (BRC), S. 3469 and the related September 12th hearing provide an 

opportunity to begin building a record for future Congressional action on the BRC 

and other approaches to best meet the needs of our country with respect to nuclear 

waste policy reform. 

The BRC report contained many recommendations that our members have long 

supported, including funding reform to protect consumers’ continuing fee payments 

and the Nuclear Waste Fund (NWF) balance; prompt development of consolidated 

interim storage and geologic disposal; and an independent waste management organization with the authority and resources to succeed. 

Although not addressed by the BRC, the proposed Yucca Mountain repository remains the nation’s best hope for ‘‘promptly’’ developing geologic disposal. The Department of Energy (DOE) and the Nuclear Regulatory Commission (NRC) should 

resume the Yucca Mountain licensing process both as a requirement of law and as 

a matter of respect to taxpayers and electricity customers who have invested billions 

of dollars in the license application. The NWSC supports Yucca Mountain and the 

BRC recommendations, and we emphasize these are not mutually exclusive posi-
71 

tions. Nothing in the BRC report precludes resumption of work on Yucca Mountain. 

In fact, the BRC recommendations may be viewed as complementary steps to address needs in the interim and over the longer-term. Specifically, consolidated interim storage is needed until a repository is opened, and an additional repository— 

perhaps sited using a consent-based process—will be needed under existing law. 

With that context, the NWSC provides feedback regarding certain provisions of 

S. 3469: 

Independent Waste Management Organization 

Following years of budget cuts, management turnover, and missed deadlines, our 

members wholeheartedly support the BRC recommendation for a new, single-purpose organization to develop and implement a focused, integrated program for the 

transportation, storage, and disposal of nuclear waste. Such an organization could 

be structured numerous ways. We prefer models that ensure accountability but reasonably insulate the organization from political interference and excessive turnover 

in key positions. Additionally, stakeholders should serve in some type of oversight 

or advisory capacity. The proposed Nuclear Waste Administration in S. 3469 is lacking with respect to some of the key elements noted here. While not endorsing any 

one model at this point, we prefer the government-owned corporation model as recommended by the BRC over models that set up government agencies with both politically-appointed leadership and oversight boards that tend to change with every 

administration. Finally, regardless of the model chosen for transferring nuclear 

waste management functions out of DOE, guidance to facilitate a smooth transition 

would be helpful. 

Funding Reform 

Consistent with the BRC recommendations, the Administration, with Congressional support, needs to fix the funding for the nuclear waste program. The BRC 

eloquently stated the importance of reforming the existing funding mechanism as 

follows: 

The success of a revitalized nuclear waste management program will depend on making the revenues generated by the nuclear waste fee and the 

balance in the NWF available when needed and in the amounts needed to 

implement the program. 

In a letter to the President over a month before their report was issued, the BRC 

Co-Chairs delineated near-term steps for timely actions that the current 

unsustainable situation warrants. Unfortunately, those recommendations have not 

been followed. As for S. 3469’s creation of a new Working Capital Fund, we commend the effort to stop future raiding of consumer payments intended for the program. However, access to the Working Capital Fund would be subject to appropriations, potentially limiting the Administrator’s ability to carry out necessary program 

activities. Also, we support NARUC’s suggestion to strengthen financial support of 

the new organization by transferring the interest earned on the NWF balance to the 

new Working Capital Fund. Finally, we would like assurance that the balance in 

the NWF will be made available when program needs dictate. 

Consolidated Interim Storage 

Consolidated interim storage (CIS) should be authorized and funded as a safe, 

cost-effective option for managing spent nuclear fuel and high-level radioactive 

waste from decommissioned and operating plants. While a permanent facility is 

being licensed and constructed, one or more CIS facilities would permit the federal 

government to begin meeting its obligations and reduce taxpayer liabilities associated with the government’s delay. As such, we support the BRC call for prompt efforts to develop CIS with used nuclear fuel from the decommissioned reactor sites 

‘‘first in line’’ for transfer. We were delighted to see that approach in the Senate 

appropriations language introduced earlier this year, and we suggest that comprehensive reform proposals such as S. 3469 expressly include language to ensure 

that CIS is authorized. 

Although well-intentioned, the linkage between CIS and progress on a permanent 

disposal facility in S. 3469 prevents site-specific flexibility and does not need to be 

legislatively mandated. Recognizing a need for disposal under any scenario, the 

country must promptly site and construct a permanent disposal facility, and we urge 

Congressional efforts to properly fund the repository program accordingly. That 

would best ensure that current dry cask storage and future CIS facilities do not become de facto permanent disposal facilities. At the same time, we need authorization and appropriations for CIS that affords as much flexibility as possible. In a consent-based siting scenario, potential CIS facility host communities would be empow-
72 

ered to assess and manage the risks of becoming de facto permanent facilities, and 

they will undoubtedly do so. 

Additionally, the bill’s requirement that utilities settle their lawsuits against the 

federal government in order to be permitted to use a CIS facility would seem to perpetuate the untenable situation of prolonged on-site dry cask storage and mounting 

federal government liability. We need not remind Congress about which entity has 

not met its obligations under the law and per its contracts with utilities. The federal 

government still has a roadmap for avoiding future liability via performance. 

Consent-Based Siting 

With respect to consent-based siting processes, the NWSC emphasizes the need 

for flexibility so as not to limit creative and effective solutions that may be proposed 

by potential host communities. With that in mind, we agree that is important to 

have an enforceable agreement at some point. 

While many of the BRC recommendations require legislative solutions, DOE 

should take action immediately to advance BRC near-term recommendations under 

existing authority. Until that happens, DOE should be held accountable to deliver 

a plan that reflects a sense of urgency, outlines specific actions, and takes ownership for the country’s high level radioactive waste. Therefore, we urge you to remind 

DOE of the Senate’s interest in receiving the implementation plan. 

In addition, it appears likely that the court will soon order the NRC and DOE 

to resume the Yucca Mountain licensing process. DOE and NRC should have executable plans in place to do so. We urge you to request a specific plan, including the 

resources required for completing the licensing process, from DOE and NRC. 

Thank you for your leadership in initiating the dialogue pertaining to certain BRC 

recommendations. The NWSC stands ready to work with you and your Congressional colleagues, the Administration, and DOE to advance meaningful nuclear 

waste policy reform. Please let us know if you would like to discuss further. 

NATIONAL CONFERENCE OF STATE LEGISLATURES, 

Washington, DC, September 14, 2012. 

Hon. JEFF BINGAMAN, 

Chairman, Committee on Energy and Natural Resources, U.S. Senate, 304 Dirksen 

Senate Building, Washington, DC. 

Hon. LISA MURKOWSKI, 

Ranking Member, Committee on Energy and Natural Resources, U.S. Senate, 304 

Dirksen Senate Building, Washington, DC. 

Re: Nuclear Waste Administration Act of 2012 (S. 3469) 

DEAR CHAIRMAN BINGAMAN AND RANKING MEMBER MURKOWSKI, 

On behalf of the National Conference of State Legislatures (NCSL), I applaud this 

committee for moving the debate concerning America’s nuclear energy issues forward by building on the recommendations for a new national radioactive waste 

management strategy made by the Blue Ribbon Commission on America’s Nuclear 

Future (BRC) in its final report issued on January 26, 2012. 

NCSL is the bi-partisan national organization representing the 50 state legislatures and the legislatures of our nation’s commonwealths, territories and the District of Columbia. NCSL has a long history of working on nuclear energy issues. 

Specifically, NCSL’s Nuclear Legislative Working Group, of which I am the chair, 

is comprised of state legislators from across the country who discuss issues surrounding nuclear energy including the safe handling, storage and transportation of 

waste. This long-standing group meets twice a year and also helps to form NCSL 

policy directives on this and other topics. I am also a member of NCSL’s Executive 

Committee and serve on NCSL’s Energy Supply Task Force. The task force explores 

current energy policies in the United States and makes recommendations for 

changes to current NCSL policy related to energy issues. 

NCSL has adopted two applicable policies on these topics, Radioactive Waste 

Management Policy Directive and National Energy Policy Directive, which have 

been submitted as attachments to these written remarks. These two policies serve 

as the foundation for these remarks and our support of congressional efforts to find 

a solution to nuclear waste management in the U.S. including: 

• development and licensing of a high-level waste/used nuclear fuel permanent 

disposal facility; 

• establishment of consolidated interim storage facilities at technically and scientifically suitable sites; 
73 

• creation of a public-private partnership to manage the back end of the nuclear 

cycle; and • efforts to ensure the Nuclear Waste Fund is used for its intended purpose of 

managing radioactive wastes. 

NCSL commends the inclusion of state consultation in the consent based approach 

to siting radioactive waste facilities, within the Nuclear Waste Administration Act 

of 2012. However, it is vital that state legislators, and not just a state’s governor, 

be consulted regularly to ensure that such a decision is made with the appropriate 

levels of support. Under the Nuclear Waste Policy Act, it is clearly stated that the 

Department of Energy will work with states, including state legislators. NCSL 

strongly urges this committee, as it moves forward to develop a program for the 

long-term treatment and disposal of high-level radioactive waste, to ensure adherence to this requirement. 

While Congress and the federal government work to develop long-term disposal 

solutions, NCSL supports federal action to develop consolidated interim storage facilities to temporarily house high level radioactive waste inventories until a permanent repository is operational. NCSL also supports use of the Nuclear Waste Fund 

to provide interim storage financing mechanisms and incentives to voluntary host 

communities. Addressing the need for interim storage facilities will help advance 

national efforts to address spent fuel storage and high level radioactive waste management as long term storage plans are developed. 

Finally, NCSL urges enactment of legislative language that would ensure that the 

Nuclear Waste Fund is used for its intended purpose to support the establishment 

and implementation of a nuclear waste management program. Additionally, such 

language should establish a firewall so that fees deposited in the Nuclear Waste 

Fund are used for nuclear waste management purposes and are not subject to nonrelated federal discretionary spending. 

Thank you for the opportunity to weigh in on this important issue. NCSL has a 

long history of working on issues related to nuclear waste management and welcome 

the opportunity to continue to work with Congress to advance this conversation and 

build on the recommendations of the Blue Ribbon Commission and the proposals 

discussed in today’s hearing. Please feel free to contact NCSL staff Ben Husch 

(ben.husch@ncsl.org) or Tamra Spielvogel (tamra.spielvogel@ncsl.org) for more information. 

Sincerely, 

SALLY YOUNG JAMESON, 

Maryland House of Delegates, Chair, NCSL Nuclear Legislative Workgroup. 

ATTACHMENT.—RADIOACTIVE WASTE MANAGEMENT

The federal government should work with NCSL and similar organizations in an 

effort to ensure that state legislators are included in all aspects of nuclear waste 

management strategies. 

Low-Level Waste—NCSL maintains that states are best prepared to license and 

regulate lowlevel waste disposal facilities that operate within their borders in order 

to protect the health, safety and welfare of their citizens. NCSL urges the federal 

government to continue to provide states both with support and flexibility in their 

efforts to dispose of low-level radioactive waste. States and state compacts should 

have authority to limit/allow the import and export of waste to and from their state 

or region. The federal government should adopt policies that clarify the responsibility of the federal government for federal waste, identify any federal waste that 

might be disposed at compact facilities, and ensure that any federal waste disposed 

of at compact or unaffiliated state facilities is subject to negotiation and the same 

laws, regulations, fees and requirements as nonfederal waste. The federal government should adopt clear policies with regard to naturally occurring and accelerator 

produced radioactive material waste and mixed wastes that respect states’ authority 

to protect the health, safety and welfare of their citizens. NCSL encourages the federal government to work with NCSL toward these ends. 

High-Level Waste and Used Fuel Management 

NCSL urges the federal government to expeditiously research, develop and license 

a high level waste/used nuclear fuel disposal and consolidated interim storage facilities at technically and scientifically suitable sites. NCSL favors the creation of a 

public-private partnership to manage the back end of the nuclear cycle. The federal 

government should consult with states at each step of the process to ensure they 

play an integral role in the development of high-level waste/used nuclear fuel storage and disposal policies and obtain state, local and tribal government informed consent before locating permanent disposal or consolidated interim storage facilities. 
74 

The federal government should provide fair and equitable compensation to state and 

local governments of host states. This should include funding of independent oversight activities by state executive and legislative branches so that the host state 

may participate in and conduct its own assessments of a proposed waste repository 

site and disposal technology. The federal government should comply with state laws 

and regulations during the process of site selection and characterization, and the 

construction, operation and decommissioning of permanent disposal or consolidated 

interim storage facilities. 

Consolidated interim storage facilities should be licensed for a specific, limited period of time not to exceed 25 years. High-level waste/used nuclear fuel recycling 

should be a priority waste management strategy. 

Annual funding from the Nuclear Waste Fund should be used for nuclear waste 

management and not subject to non-related federal discretionary spending. These 

funds should be isolated for developing permanent disposal and consolidated interim 

storage facilities. 

Transportation of Radioactive Waste and Used Nuclear Fuel 

NCSL urges the federal government to ensure safe and reliable modes of transportation of radioactive wastes. DOE should seek to enter into a memorandum of 

understanding with each corridor state to spell out responsibilities, liability, compensation, response time, cleanup, shipping, planning and other duties connected 

with emergency situations. State, local and tribal governments should be given 

funding and technical assistance for ongoing emergency preparedness, independent 

safety inspections of drivers, vehicles and shipping containers, training of state and 

local public safety officials along radioactive waste transportation routes, and state 

emergency management communications centers. State, local and tribal governments should be involved in a meaningful manner with regard to radiation emissions standards, cask designs, support facilities, transportation equipment and other 

elements of the transportation system. The federal government should respect state 

and tribal authority to assess reasonable fees which fund activities connected to the 

safe routine transportation of high-level waste/used nuclear fuel shipments. The federal government should assure transportation accident prevention through the use 

of superior drivers; carrier compliance with shipping contracts and all applicable 

federal, state and local regulations; independent safety inspections of drivers, vehicles and shipping containers; designation of safe parking areas during abnormal 

conditions; advance notice to the appropriate state and local agencies regarding 

shipments; and state access to information on shipments’ status (i.e. real-time shipment tracking information where appropriate). Special criteria should be applied to 

the shipment of high-level waste/used nuclear fuel, including the development of 

guidelines for routing when shipping by rail, the use of dedicated trains moving at 

safe speeds for rail shipments, safety inspections at origin and enroute, and fullscale 

testing of casks used for used fuel transport. 

Defense-Generated Transuranic (TRU) Waste 

NCSL urges the federal government to appropriate adequate funds and expedite 

its responsibilities with regard to disposal of defense-generated transuranic (TRU) 

waste. The federal government should implement a compensation program that recognizes equity considerations for state and local governments hosting a TRU waste 

repository and the federal government’s obligation to provide such compensation. 

Host communities should be given assistance to subsidize and maintain an independent environmental monitoring and analytical laboratory to assure the character 

of the waste and ensure public confidence and safety. 

Federal Facilities Cleanup 

The states insist that the cleanup and disposal programs at the federal government’s network of nuclear weapons production facilities and national research labs 

advance in a safe, costeffective and expeditious manner. The U.S. Department of 

Energy, the Department of Defense and any future owners should be subject to all 

state laws governing the cleanup of hazardous and radioactive waste materials. 

States are also committed to the cleanup and conversion of closed military and other 

federal facilities containing hazardous and radioactive waste materials to other beneficial uses as soon as possible. NCSL encourages the Department of Defense to 

lessen the impacts of closing these facilities by entering into partnerships with business and other private interests in order to turn them into sites of commerce and 

development. 

All federal cleanup efforts must be conducted in full consultation with the affected 

state, tribal and local governments. An ongoing dialogue with the states should be 

maintained to ensure effective state involvement in critical cleanup related decisions. Cleanup work must be accomplished in strict compliance with federal facility 
75 

agreements and federal and state laws governing the cleanup of hazardous and radioactive waste materials. The federal government should give state and federal regulators complete enforcement authority necessary to ensure such compliance. 

The federal government should continue to use the contract review process to provide effective oversight and to evaluate integrated contracts for cost accountability. 

Cost-effective solutions must be developed and implemented by federal agencies to 

meet cleanup standards that protect human health and the environment. State, 

tribal and local governments must have a continuing, substantive role in the planning and oversight activities of the waste-management effort. The Department of 

Energy must recognize that cultural resources and artifacts may be present on DOE 

sites, and must partner with affected Indian tribes to identify and mitigate impacts 

to those resources. 

Pollution prevention practices should be followed and whenever possible recovered 

materials should be recycled or reused. Action should be taken to manage federal 

radioactive, hazardous, and mixed waste sites as soon as possible, but safety and 

quality cleanup must remain the priority. Federal cleanup efforts should enforce priorities and meet milestones set forth in federal-state consent orders regarding the 

cleanup of specific sites. A fully funded and comprehensive long-term stewardship 

program for all of the federal facilities must be developed to ensure that communities are protected in perpetuity. 

ATTACHMENT.—NATIONAL ENERGY POLICY DIRECTIVE

National Energy Policy Directive NCSL Energy, Transportation and Agriculture 

Standing Committee The National Conference of State Legislatures urges the federal government to continue working cooperatively with state, local, and tribal governments to develop, implement and maintain an expansive, integrated, environmentally-sensitive and cost-effective national energy policy. Principles NCSL believes the following principles should guide the development and implementation of 

a national energy policy: 

• Promotion of the most efficient and economical use of all energy resources. • Promotion of energy conservation and efficiency and the development and use 

of alternative and renewable energy supplies. • Promotion and provision of incentives for the development and optimal use of 

all energy resources and new facility infrastructure. • Assurance that various domestic energy sources are continually developed, 

maintained and stored to prevent supply emergencies and promote energy independence. • Consideration and assessment of environmental costs and benefits for all energy 

resources, fuels and technologies in rendering legislative, regulatory and market 

decisions regarding energy production and use. • Provision of an affordable and reliable energy supply for all citizens. • Examine the feasibility of, and where feasible, promote state-wide or regional 

minimum storage level requirements for heating oil for states dependent on this 

fuel. • Specification and balancing of clear lines of local, state and federal regulatory 

authority. • Development of both short and long-term strategies to provide adequate energy 

supplies, efficient utilization of those supplies and optimum cost effectiveness. • Promotion of the education of school-age children regarding energy resources, 

consumption, conservation, and production and regarding environmental protection, safety and risks in energy production. • Assurance of expanded energy research and development and broadening of the 

citizenry’s access to energy-related information. 

• Assurance of participation of state and local officials in the development and 

implementation of a national energy plan and strategy. 

• Avoidance of mandates, particularly unfunded mandates, upon state and local 

governments as well as avoidance of pre-emptive federal laws in developing a 

national energy policy. 

Implementation 

NCSL believes development of a national energy strategy should contain at a minimum these components: 

• An assessment and forecast of our nation’s energy future and its impacts; 

• An evaluation and ranking of short and long-term energy options available to 

the nation; 

• An evaluation of possible energy futures which provide greater benefits to our 

citizens; 
76 

• The development of recommendations for energy options and energy futures 

that the nation should pursue, with the establishment of national targets or 

goals; 

• An evaluation and recommendation of implementation mechanisms including, 

but not limited to, incentives, technical assistance, educational programs, regulatory standards or guidelines to achieve the targets or goals; 

• Considers energy sources based on the lowest cost, cost benefit analysis, revenue loss, cost to consumers, reliability, and environmental or other impacts. 

Additionally, energy policy alternatives that would improve our energy security 

without imposing significant new costs, while balancing the need for environmental protection, should be implemented. 

• A coordinated effort between state and federal government in the development 

of producing a national energy policy where the federal government consults 

closely with state legislatures, devising mechanisms to bring state legislatures 

into the energy decision-making process as full participants on a continuing 

basis and ensuring the inclusion of representatives of the legislative branch of 

state government in all statefederal working groups dealing with energy policy. 

Conservation and Energy Efficiency 

NCSL supports a national energy policy that promotes energy efficiency in a variety of ways including both setting and strengthening policies as technologies improve while recognizing the significance of economic costs on various segments of 

the population including rural areas. NCSL supports the use of: 

• Corporate Average Fuel Economy Standards for automobiles and light duty 

trucks, including sport utility vehicles and minivans; 

• Energy efficiency provisions in model building codes (including lighting efficiency standards and weatherization); 

• ‘‘Whole-building’’ and life cycle costing approaches to construction and retrofitting that integrate energy efficiency technologies and practices; 

• home appliance and heating and cooling unit efficiency standards; 

• Waste recycling and reduction standards for industrial manufacturing; 

• Standards for conservation in electrical production and supply including cogeneration; 

• Use of alternative energy; and 

• A national transportation policy that emphasizes various modes of transportation, including passenger rail and transit, as well as promoting energy efficiency. 

New Source Review Program (NSR) 

NCSL urges the Environmental Protection Agency (EPA) to reform the NSR program to achieve improvements that enhance the environment and increase production capacity, while encouraging efficiency, fuel diversity and the use of resources 

without weakening the requirements intended to reduce emissions from new or 

modified sources of air pollution. Routine maintenance, repair or replacement activities which are not major modifications should not trigger NSR requirements. 

Government Support for Renewable Energy and Energy Efficient Products and Industries 

NCSL believes that federal and state governments’ leadership role in the purchase and use of new energy efficient and renewable energy technologies and products should be expanded and supports incentives for consumers to purchase energy 

efficient products. The federal government should continue to establish incentives 

for energy efficient fleet procurement industries and manufacturers of energy efficient products as well as continue to encourage the use of innovative financing technologies to increase energy efficiency in buildings such as performance contracting 

and long-term leasing and purchase agreements for energy efficient products. All 

government-owned buildings should make use of economical energy conservation 

programs, demonstrating state of the art efficiencies whenever possible. 

Renewable Energy 

NCSL believes that in recognizing a spectrum of renewable energy resources including, but not limited to geothermal, hydropower, biomass, wind, photovoltaics 

and solar, the federal government should institute a long-range, stable Renewable 

Energy Development Program which identifies and supports development of renewable energy sources from research and development through demonstration projects 

and commercialization in a cooperative effort among industry, higher education, and 

national laboratories. 

NCSL recommends that: 
77 

• Federal action should be flexible, allowing for a range of complementary strategies at the state and federal level maintaining a strong role for state government in any federal action. • Federal legislation should provide states the authority and flexibility to work 

within a overall framework that affords states the ability to chose from a range 

of options & apply the law effectively in the most cost effective, timely and efficient manner for each state. • Federal legislation should not preempt state governments from enacting stricter 

or stronger measures within their jurisdiction. • Congress must authorize and appropriate sufficient funds for state and federal 

governments to implement any federal legislation. These funds should be newly 

authorized appropriations, not reprogrammed resources. 

Energy Emergency Preparedness 

NCSL believes that the federal government should support and enhance energy 

emergency preparedness in order to reduce the potential impact of petroleum supply 

disruptions. 

A national energy emergency preparedness program should include the following 

principles: 

• Initial efforts should focus on strategies to reduce the nation’s dependence on 

foreign oil to avoid future emergencies. • Voluntary conservation, is preference to mandatory measures, wherever possible; 

• When any mandatory responses are required, they should be phased in, beginning with the least stringent measures, with gasoline rationing reserved for 

only the most severe shortage; 

• Minimize undue hardships on states and regions heavily dependent on motor 

vehicle transportation with rationing allotments and allocation plans being 

based on state and regional needs and strategies rather than on national averages. 

• Priority shall be given to home heating needs including home heating oil and 

propane, provided homes are adequately insulated. 

NCSL believes changes need to be made at the national level to ensure that the 

country has sufficient, affordable supplies of energy, by encouraging more efficient 

use of energy to reduce U.S. reliance on foreign oil. As such, federal investments 

in both energy efficiency and research in developing new and alternative energy 

technologies should figure significantly in a national energy policy. 

Coal 

NCSL believes the federal government should support the efficient, responsible 

production and utilization of the United States vast resources of coal, largest reserves of any nation in the world, and the strategic global economic advantage it 

provides. 

• Provide continued support for Clean Coal Technology research, in partnership 

with the private sector. Such support, through additional research and technology development in clean coal usage, should include work in pre-combustion, 

combustion, postcombustion, and coal conversion areas with desulfurization efforts a top priority. 

• Jointly address transboundary environmental issues with Canada and Mexico. 

• Continue to support the acid rain program of the Clean Air Act of 1990 that 

phases—in reductions in emissions from coal burning power plants. 

• Seriously consider coal gasification as an alternative to the use of coal in a conventional manner. 

• Concurrently reclaim and restore mined lands to an environmentally appropriate condition. 

• Consider the effects on local infrastructure needs and the costs of prime farmland protection and land reclamation in the development of a national coal program. 

• Accelerate the financing of activities under the abandoned mine reclamation 

fund and a federal commitment to reclamation should be strengthened. 

• Avoid adopting federal policy that has implications for land development or 

management without accommodating the laws and policies of affected states. 

Crude Oil 

NCSL believes the federal government should promote and encourage domestic 

production of crude oil in an efficient and environmentally sound manner in order 

to both supply United States consumers with a secure source of petroleum as well 
78 

as provide a stabilizing influence to the world price of crude oil. As such, the extraction and transportation of crude oil must be done only with safeguards for the protection of the environment. The federal government should consider incentives for 

domestic exploration, maintenance of stripper wells, but excluding other extractions, 

and technological research for methods of enhanced oil and gas recovery that are 

environmentally safe and in accordance with state policy as well as an increase in 

research and development in the area of new energy generating technologies including but not limited to biofuels, electric cars, fuel cells, hybrid engines, and alternative fuels particularly for transportation. 

The federal government should manage United States imports by diversifying import suppliers, pursuing a Pan American Energy Alliance with Western Hemisphere 

producing nations, and expanding a dialogue with suppliers worldwide. 

Oil Overcharge Settlement Funds 

NCSL is appreciative of Administrative and congressional action to disburse authorized unclaimed overcharge monies to the states, via the oil overcharge settlement funds. 

NCSL believes that the refunded oil overcharge money disbursed to states should 

be used for energy-related purposes. As emerging federal and state emphasis on conservation and energy efficiency programs has created a state need for additional 

funds to develop and implement new programs, some states are unable to meet the 

growing demands of their energy programs with state money alone. Therefore, 

NCSL strongly supports expeditious pass-through of oil overcharge settlement funds 

by the Department of Energy to states only to supplement, and not supplant, energy 

related programs. NCSL opposes efforts to reduce or eliminate or take credit for federal funding of existing energy related programs such as the Weatherization Assistance Program, the Institutional Conservation Program, the State Energy Conservation Program, and programs authorized to be funded by the Energy Policy Act of 

1992, based on the receipt of oil overcharge settlement monies. NCSL also opposes 

the diversion of oil overcharge monies from their intended energy uses. 

Additionally, as oil overcharge and settlement funds are depleted, Congress is encouraged to appropriate replacement or supplemental funds to facilitate continued 

state involvement in worthwhile energy programs. 

Natural Gas 

NCSL believes the United States should encourage domestic production of natural 

gas in an environmentally sound manner. The federal government should adopt legislation that funds and authorizes states to assume a more prominent role in the 

regulation of pipeline safety. A partnership with the federal government will enhance the safety of pipelines and the protection of residents by decreasing the risk 

of pipeline accidents. 

State Primacy in Regulation of Oil and Gas and Production Wastes 

Since oil and gas exploration and production occur in several different states in 

distinct regions, NCSL believes that primary responsibility for the regulation of 

used oil and of oil and gas exploration and production wastes is best handled by 

the affected state to accommodate site-specific conditions and environmental considerations should not be preempted by federal legislation or regulation. As such, 

NCSL supports the continuation of exempting used oil and waste generated in oil 

and gas exploration and production from classification as hazardous waste under 

the Resource Conservation and Recovery Act (RCRA). 

Revenues from On-Shore and Outer Continental Shelf Drilling 

The Federal Oil and Gas Royalty Management Act of 1982 (30 U.S.C. 1701 et. 

seq.), requires 50 percent of the revenues from federal on-shore drilling is paid to 

the state in which the lease is located and ensures that state legislatures shall direct the use of these funds. 

• NCSL supports the state legislatures’ role in the appropriation of these funds. 

• NCSL opposes any effort by Congress or the Administration to reduce the revenue share paid to states in an effort to off-set federal expenditures on a temporary or permanent basis. 

NCSL does not support or oppose additional exploration or production on the 

Outer Continental Shelf (OCS). However, to the extent that mineral extraction occurs, Congress is urged to: 

• Authorize and appropriate 50 percent of the Outer Continental Shelf (OCS) revenues to the states; 
79 

• Ensure the state legislatures’ participation in the appropriation of these funds; 

and 

• Provide state lawmakers the flexibility to target these funds to their respective 

state’s natural resource priorities. 

• OCS revenue sharing with the states should be in addition to and not replace 

other Federal funding programs. 

• Preserve state authority to impose moratoriums on or allow for mineral exploration, development and production activities on the OCS. 

• Lift federal fees charged to states for use of sand, gravel and shell resources 

taken from the OCS for use in beach nourishment and other coastal erosion 

mitigation activities. 

• Give states full review of development and production of mineral resources on 

the OCS. 

Nuclear 

NCSL believes that, 

• Nuclear Energy generates an essential share of the nation’s clean, non-emitting, 

zero carbon baseload electricity. 

• The Nuclear Regulatory Commission (NRC) should provide strong, independent 

oversight of all commercial nuclear plant operations, including plant licensing 

(both license extensions, where appropriate, and over the ongoing construction 

of new reactors) and used fuel and radioactive waste management, transportation and disposal, to ensure public health and safety. The rigorous NRC safety 

review process already employed in certifying new reactor designs should be 

maintained as additional designs are considered. 

• The federally-supported public-private partnership that is pursuing the design, 

development and licensing of Small Modular Reactors should focus on maximizing the economic development and positive trade balance potential of this 

emerging technology. The federal government should assist the ongoing efforts 

of various states to establish U.S. leadership in this promising market. 

• A federal government program for the long-term treatment and disposal of used 

nuclear fuel and high-level radioactive waste, already funded by nuclear utility 

ratepayers, should be pursued with the highest priority given to the safe reprocessing or transportation of waste and to the safety and technical suitability of 

storage or disposal sites. Such a program should be developed in full consultation with all of the affected states. 

• Meaningful and effective state participation is necessary in public safety planning and transportation of commercial used nuclear fuel and high-level waste. 

• The recommendations of the Blue Ribbon Commission on America’s Nuclear Future appropriately comport with the longstanding position of NCSL in favor of 

a path forward for used fuel. In particular, NCSL favors: creation of a publicprivate partnership to manage the back end of the nuclear fuel cycle; assurance 

that ratepayer contributions to the Nuclear Waste Fund be available solely for 

their intended purpose; establishment of one or more NRC-licensed centralized 

interim used fuel storage facilities in willing host communities and states (with 

consultation of all state, local and tribal officials and other interested parties). 

• States must continue to have the right to monitor operating conditions at nuclear power plants, waste storage and disposal facilities, and to exercise regulatory authority where consistent with federal law. 

• Federal funding should complement private sector investments in the areas of 

waste management technologies, nuclear fusion, and plant retrofit and life extension. 

• The tax treatment of decommissioning funds should be updated to ensure that 

existing funds are treated in the manner intended by the tax laws and to reflect 

new business conditions. 

Electricity 

NCSL believes that the federal government should promote 

• Energy efficiency and conservation to lower the demand for electricity. 

• The development of sources of electric energy that are sufficient to meet national needs, secure from external threat, reliable in availability and delivery, 

safe relative to people and the environment, and efficient for use in homes, businesses, industries, and as an alternative vehicular fuel. 

• The implementation of aggressive efficiency and conservation programs are implemented. 

• Legislation that recognizes the tremendous regional diversity, especially with 

regard to capacity of the electricity sector 
80 

Public Benefits/Environment 

NCSL believes that: 

• States should maintain the authority to require public benefits programs on a 

nondiscriminatory basis, including those that support reliable and universal 

service, energy efficiency, renewable technologies, research and development, 

and lowincome assistance. Additionally, existing federally sponsored public benefits programs should be maintained in a restructured market and electric industry restructuring should be consistent with any federal environmental laws, 

including the Clean Air Act. 

• Implementation of Federal legislation that fails to recognize market mechanisms inevitably penalizes one region or state or another and that mandate programs are counter to the concept of restructuring, which encourages the efficiencies of market competition. 

• As states are in the best position to evaluate market force considerations, Congressional legislation should not limit, through the use of mandates or otherwise, state flexibility in addressing market mechanisms in electric restructuring 

plans. 

• Non-traditional energy production should be encouraged and that the federal 

government must maintain and increase its commitment to cost effective energy 

conservation and efficiency while maintaining adequate and reliable energy. As 

such, power providers, equipment and appliance manufacturers, and consumers 

should be given legislative and regulatory incentives to promote these goals. 

Consumer Protection and Education 

NCSL believes that: 

• The safety, reliability, quality, and sustainability of services should be maintained or improved and that all consumers should have access to adequate, safe, 

reliable, and efficient energy services at fair and reasonable prices, as a result 

of competition. 

• States should retain the authority, with the assistance of the federal government as needed, to protect consumers from anticompetitive behavior, undue discrimination, poor service, market power abuses, and unfair service practices. 

• States should maintain the authority to establish or require comprehensive consumer education and outreach programs to minimize public confusion and provide information so consumers are able to make informed choices and participate effectively in a restructured market. 

Regulatory Authority 

State regulatory bodies are close to consumers, utilities, industries, and concerned 

for state environmental and economic well being. State regulatory bodies are in the 

best position to evaluate consumer needs, and address questions relative to fuel 

choice, economic development implications, and system reliability. 

NCSL strongly supports and urges the continuation of the state legislative oversight for the approval and siting of all major energy conversion facilities, subject to 

minimum federal standards established only after the fullest consultation with state 

governments, both executive and legislative branch. State authority over the siting 

of energy facilities should not be preempted by federal law. 

NCSL acknowledges the need for a robust national transmission system that can 

support new technology and allow for additional power production to be brought 

onto the grid. NCSL urges Congress to allow provisions included in the 2005 Energy 

Policy Act relating to state authority of liquefied natural gas terminal siting to be 

implemented and studied before any attempt is made to expand the preemption to 

further limit the state role in siting of these energy infrastructure components. 

NCSL opposes any such expansion of these provision but urges Congress at a minimum to allow for the complete implementation of the new standards before reopening the issue. 

Research and Development 

NCSL believes that the cornerstone of a national energy policy should include a 

broad research and development component. Specifically, federal government research and development funds for clean coal, nuclear research, basic science and related efforts ought to be continued. However, these efforts should be supplemented 

with increased long-term incentives and federal funding for research and development projects emphasizing emerging technologies, including, but not limited to, renewable resources, energy conservation, efficient use of energy, alternative fuels, oil 

and gas recovery, superconductivity, and fuel cell technology and should be designed 

to encourage private sector participation with federal and state representatives. 
81 

NCSL urges Congress to provide explicit recognition in the Internal Revenue Code 

that sustainable energy (conservation, efficiency and customer sited renewable) is 

a private activity serving a public good. 

Renewable Energy R&D Market Support 

NCSL encourages federal development of alternative technologies that improve renewable energy efficiencies, cut costs, and assist in integrating renewable energy 

into existing energy systems. The implementation of federal standards for the deployment of these new technologies should not undermine established programs at 

the state level to integrate these resources into existing energy systems. NCSL also 

believes in the need for a translation and distribution system for international technical and marketing papers on renewable energy and that the U.S. should strive 

for excellence in the use, manufacturing and marketing of renewable energy resources and technologies. 

Wave Energy and Tidal Energy 

NCSL strongly believes that the United States should increasingly encourage all 

forms of renewable energy, including avenues of renewable energy that are not currently in the forefront; specifically wave energy, wave farms, and tidal energy. 

NCSL requests that the federal government demonstrate global leadership and: 

• Recognize the importance of wave energy and tidal energy to the future of the 

United States; • Support the research and development of advances in wave energy and tidal energy technology, including the ability to tow and set up the equipment in the 

oceans through loan guarantees, grants and tax incentives; • Research and create a ‘‘Wave Hub,’’ or similar infrastructure necessary for integrating wave- and tidal-energy production facilities into the national grid; and • Encourage the demonstration and deployment of wave energy and tidal energy 

beyond the limited scope of R&D to ensure competitive and equitable access for 

wave- and tidal-energy projects and provide a fair opportunity to supply the nation with a reliable and renewable energy. 

Education and Information 

NCSL believes that it is essential that the nation, including its elementary and 

secondary school-age children, be made fully aware of energy use and costs, production processes, alternative energy resources, the importance of energy efficiency and 

conservation and the impact energy usage has on our environment. NCSL recommends that public and private sector education efforts be initiated, expanded and 

appropriately funded. 

The federal government should promote both energy conservation education and 

fund research into conservation technologies while federal funding of energy conservation programs, including grants to states, should be enhanced. Such efforts 

should emphasize that significant economic and environmental benefits can be 

achieved through increased efficiency and conservation. 

NCSL also believes that an essential step in formulating a balanced energy policy 

is to develop the necessary data and employ analytical methods and models to assess the efficiency, productivity costs and risks of the various energy choices available to the nation. As such, NCSL recommends the development of this analytic 

base by the Department of Energy, with assistance from the Departments of Defense, Treasury and State, and the Office of Management and Budget, in conjunction with the states. 

Transportation 

NCSL believes that national transportation strategies must include public policy 

initiatives directed at broadening the efficient use of our energy resources. As such, 

policy initiatives should include, but not necessarily be limited to: 

• Incentives and adequate funding for mass transit, high speed rail, magnetic 

levitation and other emerging transportation technologies; 

• Fuel economy standards; and other market incentives for improving the energy 

efficiency of automobiles and light trucks; 

• Federal, state, and local procurement policies favoring efficient vehicles; 

• The encouragement of public-private partnerships. 

WALL STREET JOURNAL ARTICLE SUBMITTED BY HON. RON WYDEN, 

U.S. SENATOR FROM OREGON

• U.S. NEWS 
82 

• September 9, 2012, 7:36 p.m. ET 

WASTE-PLANT DISPUTE BUILDS

SAFETY AND DESIGN CONCERNS SLOW CONSTRUCTION OF

NUCLEAR-PROCESSING FACILITY

By ANDREW MORSE 

The U.S. Department of Energy is slowing construction of a facility to process the 

country’s largest accumulation of radioactive waste, amid an increasingly acrimonious dispute about the design and safety of the $12.2 billion project. 

Energy Secretary Steven Chu visited the Hanford site in southeast Washington 

state last week, which department officials said was part of efforts to assess the 

safety of the nuclear-waste complex. Mr. Chu was accompanied by an expert panel 

he assembled following a trip in June to the plant after concerns were raised about 

the safety culture at the facility. 

Department of Energy 

An aerial view of the Hanford treatment plant in July. 

Mr. Chu and the experts are reviewing the safety of rooms that will hold radioactive waste as it is processed at the vast complex, which will cover 65 acres and 

house four nuclear facilities, in addition to other components. 

For decades, the government used the 586-square-mile Hanford site to produce 

plutonium for atomic weapons, including the Fat Man bomb dropped on Nagasaki 

during World War II. The work turned the land into one of the most toxic areas 

in the U.S., so after the Cold War, the DOE, the Environmental Protection Agency 

and the state set out to clean it. 

Hanford’s problems were highlighted last month when a DOE official who oversees engineering at the plant faulted the primary contractor, Bechtel National Inc., 

for problems, concluding that the company was ‘‘not competent’’ to serve as the facility’s chief designer. 

Frank Russo, who manages the project for Bechtel National, a unit of Bechtel 

Corp., said many of the issues raised by the DOE official, Gary Brunson, are old 

and that the company had worked to fix problems. ‘‘All of them had been addressed 

at one time or another,’’ Mr. Russo said. 

Separately, the DOE last month discovered radioactive material between the 

walls of one of the site’s newer double-shelled waste-storage tanks, which are designed to be superior to older single-shell tanks. The threat of leaks has been a concern for decades: In the past, according to a project website, one-third of the 177 

underground tanks have experienced leakage of toxic material. 

The DOE has enhanced monitoring of the double-shelled tank and has declared 

that it is stable. 

Associated Press 

Energy Secretary Steven Chu spoke to Hanford workers during a June visit. 

Concerns over key parts of the facility are slowing construction, because the facility is being designed as it is built; as design issues crop up, building has to slow 

until those issues are addressed. 

The issues are raising concerns of a delay in the opening of a project that has 

attracted the ire of environmentalists, federal lawmakers and even its own workers. 

The range of concerns include the safety and cost of the plant, as well as risks that 

radioactive sludge could seep into the nearby Columbia River. 

On Aug. 29, Washington Gov. Christine Gregoire, a Democrat, wrote to Mr. Chu 

asking that he explain why the plant’s schedule was at risk. Ms. Gregoire sought 

a meeting with Mr. Chu while he was at the site, but the two weren’t able to coordinate their schedules, her spokeswoman said. 

Expected to start full operations in 2022, the plant would separate and process 

56 million gallons of radioactive and chemical waste. The waste would then be 

turned into glass logs-a form that makes it less likely to spread through the environment-that would be stored at the site. The plant is expected to operate for roughly 40 years. 

The facility, called the Waste Treatment and Immobilization Plant has been the 

subject of controversy for years. Managers on the project have raised concerns about 

the design, as well as the safety culture at the project. Employees have brought lawsuits against Bechtel National. 

One issue highlighted by Mr. Chu involves the design of a set of 18 rooms that 

will hold waste as it is treated for processing. The rooms, called ‘‘black cells’’ because workers won’t be able to enter them when the plant is running, were to be 

built with limited monitoring equipment. The DOE now is considering whether more 
83 

instruments should be incorporated to monitor how the waste is settling, and 

whether openings should be larger so machinery, such as robots, could be sent in. 

As a result, the government has slowed work on pretreatment and high-level radioactive waste facilities, said David Huizenga, a senior DOE adviser. Construction 

of two other buildings, a lab and a low-activity waste facility, are continuing on 

schedule, he said. The agency isn’t fundamentally ‘‘changing or questioning the design’’ of the plant, Mr. Huizenga said. 

Tom Carpenter, the executive director of Hanford Challenge, a group that has expressed concerns about the plant’s design and that has been skeptical about the 

progress of construction, says resolving design issues takes on a new urgency following the discovery of the radioactive material last month. ‘‘I want this plant to 

work,’’ Mr. Carpenter said. ‘‘We have no Plan B.’’ 

Æ