U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

85–875 PDF 2013

S. HRG. 113–123 

NUCLEAR WASTE 

HEARING 

BEFORE THE

COMMITTEE ON 

ENERGY AND NATURAL RESOURCES 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

TO

RECEIVE TESTIMONY ON S. 1240, THE NUCLEAR WASTE 

ADMINISTRATION ACT OF 2013 

JULY 30, 2013 

( 

Printed for the use of the 

Committee on Energy and Natural Resources 
(II) 

COMMITTEE ON ENERGY AND NATURAL RESOURCES 

RON WYDEN, Oregon, Chairman 

TIM JOHNSON, South Dakota 

MARY L. LANDRIEU, Louisiana 

MARIA CANTWELL, Washington 

BERNARD SANDERS, Vermont 

DEBBIE STABENOW, Michigan 

MARK UDALL, Colorado 

AL FRANKEN, Minnesota 

JOE MANCHIN, III, West Virginia 

BRIAN SCHATZ, Hawaii 

MARTIN HEINRICH, New Mexico 

TAMMY BALDWIN, Wisconsin 

LISA MURKOWSKI, Alaska 

JOHN BARRASSO, Wyoming 

JAMES E. RISCH, Idaho 

MIKE LEE, Utah 

DEAN HELLER, Nevada 

JEFF FLAKE, Arizona 

TIM SCOTT, South Carolina 

LAMAR ALEXANDER, Tennessee 

ROB PORTMAN, Ohio 

JOHN HOEVEN, North Dakota 

JOSHUA SHEINKMAN, Staff Director 

SAM E. FOWLER, Chief Counsel 

KAREN K. BILLUPS, Republican Staff Director 

PATRICK J. MCCORMICK III, Republican Chief Counsel 
(III) 

C O N T E N T S 

STATEMENTS 

Page 

Boyd, David C., Chairman, National Association of Regulatory Utility Commissioners Committee on Electricity, Vice Chair, Minnesota Public Utilities 

Commission ........................................................................................................... 46 

Davis, Lynn E., The RAND Corporation ............................................................... 86 

Fertel, Marvin S., President and Chief Executive Officer, Nuclear Energy 

Institute ................................................................................................................ 56 

Fettus, Geoffrey H., Senior Attorney, Natural Resources Defense Council, 

Inc .......................................................................................................................... 64 

Garcia, Joe, Vice President, Southwest Area, National Congress of American 

Indians .................................................................................................................. 42 

Jameson, Sally, Delegate to the Maryland House of Delegates, Chair, Nuclear 

Legislative Working Group, National Conference of State Legislatures ......... 39 

Knopman, Debra, The RAND Corporation ............................................................ 86 

Lochbaum, David, Director, Nuclear Safety Project, Union of Concerned Scientists .................................................................................................................... 75 

Moniz, Hon. Ernest J., Secretary, Department of Energy ................................... 6 

Murkowski, Hon. Lisa, U.S. Senator From Alaska ............................................... 5 

Smith, Chuck, Jr., Council Member, Aiken County, SC, Vice Chair, Energy 

Communities Alliance .......................................................................................... 51 

Wyden, Hon. Ron, U.S. Senator From Oregon ...................................................... 1 

APPENDIX 

Responses to additional questions .......................................................................... 89 

(1) 

NUCLEAR WASTE 

TUESDAY, JULY 30, 2013 

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

The committee met, pursuant to notice, at 2:34 p.m. in room SD– 

366, Dirksen Senate Office Building, Hon. Ron Wyden, chairman, 

presiding. 

OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR 

FROM OREGON 

The CHAIRMAN. The Energy and Natural Resources Committee 

will come to order. 

Today the committee holds a legislative hearing on S. 1240, the 

Nuclear Waste Administration Act of 2013. I want to begin by expressing my appreciation to the bipartisan co-sponsors of the legislation, Senator Murkowski, Senator Alexander and Senator Feinstein for their exceptionally hard work and cooperation in bringing 

this bill forward for consideration. 

I also want to thank the members of the Blue Ribbon Commission, including Secretary Moniz. He consulted with us and helped 

us chart a path forward for national nuclear waste policy. 

Senator Feinstein has been a stalwart member of our team and 

provided invaluable input on the bill. She’s submitted a statement 

for the record and without objection her statement will be entered 

into the hearing record in its entirety. 

[The prepared statement of Senator Feinstein follows:] 

PREPARED STATEMENT OF HON. DIANNE FEINSTEIN, U.S. SENATOR FROM CALIFORNIA

INTRODUCTION

Chairman Wyden, Ranking Member Murkowski, and members of the Energy and 

Natural Resources Committee: thank you for providing me, a former member of this 

esteemed committee, with the opportunity to testify on this extremely important 

piece of legislation. 

The byproducts of nuclear energy represent some of the nation’s most hazardous 

materials, but for decades we have failed to find a solution for their safe storage 

and permanent disposal. 

Most experts agree that this failure is not a scientific problem or an engineering 

impossibility; it is a failure of government. 

The Nuclear Waste Administration Act would finally establish a comprehensive 

nuclear waste policy, addressing the ever-growing amounts of highly radioactive 

waste that are being stored in communities across the country, costing taxpayers 

billions of dollars. 

This issue is too important for politics as usual, which is why I’m proud to join 

Senators Wyden, Alexander and Murkowski in introducing the Nuclear Waste Administration Act. 
2 

This bipartisan legislation will establish a workable, long term nuclear waste policy for the United States—something our nation lacks today—by implementing the 

unanimous recommendations of the Blue Ribbon Commission on America’s Nuclear 

Future. 

THE BILL

First, the bill would create an independent entity—the Nuclear Waste Administration—with the sole purpose of managing nuclear waste. 

Second, the bill would authorize the siting and construction of three types of 

waste facilities: (1) a ‘‘pilot’’ waste storage facility for waste from shut down reactors, (2) additional storage facilities for waste from other facilities, and (3) permanent repositories to dispose of nuclear waste. 

Third, the bill creates a consent-based siting process for both storage facilities and 

repositories, based on the successful efforts to build waste facilities in other countries. 

Fourth, the bill would direct the fees currently collected from nuclear power ratepayers to fund nuclear waste management. 

Finally, the legislation ensures that the new Nuclear Waste Administration will 

be held accountable for meeting Federal responsibilities and stewarding Federal dollars. 

THE PROBLEM

The United States has 104 operating commercial nuclear power reactors that supply one-fifth of our electricity and nearly 75 percent of our emissions-free power. 

However, production of this nuclear power has a significant downside: it produces 

nuclear waste that will take hundreds of thousands of years to decay. And unlike 

most nuclear nations, the United States has no program to consolidate waste in centralized facilities. 

Instead, we leave the waste next to operating and shut down reactors sitting in 

pools of water or in cement and steel dry casks. Today, approximately 70,000 metric 

tons of nuclear waste is stored at commercial reactor sites. This total grows by 2,000 

metric tons each year. 

In addition to commercial nuclear waste, we must also address waste generated 

from creating our nuclear weapons stockpile and powering our Navy. 

Although the Federal government signed contracts committing to pick up commercial waste beginning in 1998, the Federal government’s waste program has failed 

to take possession of a single fuel assembly. 

Our government has not honored its contractual obligations. We have been sued, 

and we have lost. So today, the Federal taxpayer is paying power plant owners to 

store the waste at reactor sites all over the nation. The cost of this liability is forecast to reach $20 billion by 2020. 

As we try to manage our growing national debt, we simply cannot tolerate continued inaction. 

THE SOLUTION

In January 2012, the Blue Ribbon Commission on America’s Nuclear Future completed a two-year comprehensive study and published unanimous recommendations 

for fixing our nation’s broken nuclear waste management program. 

The Commission found that the only long-term, technically feasible solution for 

this waste is to dispose of it in a permanent underground repository. Until such a 

facility is opened—which will take many decades—spent nuclear fuel will continue 

to be an expensive, dangerous burden. 

That is why the Commission also recommended that we establish an interim storage facility program to begin consolidating this dangerous waste, in addition to 

working on a permanent repository. 

Finally, after studying the experience of all nuclear nations, the Commission 

found that siting these facilities is most likely to succeed if the host states and communities are welcome and willing partners, not adversaries. The Commission recommended that we adopt a consent based nuclear facility siting process. 

The Nuclear Waste Administration Act would implement those recommendations, 

putting us on a dual track toward interim and permanent storage facilities. The bill 

also reflects much work by former Senator Bingaman, who put forward a similar 

proposal as one of the last bills he wrote. 

In my view, one of the most important provisions in this legislation is the pilot 

program to begin consolidating nuclear waste at safer, more cost-efficient centralized facilities on an interim basis. The legislation will facilitate interim storage of 

nuclear waste in above-ground canisters called dry casks. These facilities would be 
3 

located in willing communities, away from population centers, and on thoroughly assessed sites. 

Some members of Congress argue that we should ignore the need to interim storage sites and instead push forward with a plan to open Yucca Mountain as a permanent storage site. Others argue that we should push forward only with repository 

plans in new locations. 

But the debate over Yucca Mountain—a controversial waste repository proposed 

in the Nevada desert, which lacks state approval—is unlikely to be settled any time 

soon. 

I believe the debate over a permanent repository does not need to be settled in 

order to recognize the need for interim storage. Even if Congress and a future president reverse course and move forward with Yucca Mountain, interim storage facilities would still be an essential component of a badly needed national nuclear waste 

strategy. 

By creating interim storage sites—a top recommendation of the Blue Ribbon Commission—we would begin reducing federal liability while our nation sites and builds 

a permanent repository. 

Interim storage facilities could also provide alternative storage locations in emergency situations requiring spent nuclear fuel to be moved quickly from a reactor 

site. 

Both short-and long-term storage programs are vital. 

Permanently disposing of our current inventory of nuclear waste will take several 

decades. 

Because of that long timeline, interim storage facilities allow us to achieve significant cost savings for taxpayers and utility ratepayers by shuttering a number of nuclear plants. 

CONCLUSION

One thing is certain: inaction is the most costly and least safe option. 

Our longstanding stalemate is costly to taxpayers, utility ratepayers and communities that are involuntarily saddled with waste after local nuclear power plants 

have shut down. 

And it leaves nuclear waste all over the country, stored in all different ways. 

It’s long overdue for the government to honor its obligation to safely dispose of 

the nation’s nuclear waste. 

This will be a long journey, but we must take the first step. 

Thank you, Chairman Wyden and the committee. 

The CHAIRMAN. Before we hear from Secretary Moniz and our 

other witnesses, I’m going to make just a few points. 

First, it’s my strong belief that the country needs a way to permanently dispose of nuclear waste from commercial nuclear power 

plants and from Defense programs. Simply continuing to pass the 

burden of safely disposing of nuclear waste to future generations 

is not an option. That’s true whether the waste is at shuttered nuclear power plants or if it’s in tanks alongside the Columbia River 

in the Pacific Northwest. 

The Federal Government is contractually obligated to take spent 

fuel for disposal and this liability, already in the billions of dollars, 

continues to grow with each passing day. the Federal Government 

is morally obligated to make sure that wastes from the Nation’s 

nuclear weapons programs are safely disposed of in a permanent 

repository. 

Second, whether you happen to be for or against opening Yucca 

Mountain, Yucca Mountain was not designed to be big enough to 

handle all of the spent fuel in nuclear waste that will need disposal. Today there are roughly 70,000 metric tons of spent fuel already sitting at nuclear plants around our country. The GAO, the 

Government Accountability Office, estimates that that amount is 

going to double just from the current generation of nuclear power 

plants, to over 140,000 metric tons. 
4 

Seventy thousand metric tons is the statutory capacity limit for 

Yucca Mountain until there is a second repository. That leaves no 

room for the commercial spent fuel that will be generated this year 

or next year or the year after that. 

It also leaves no room for the spent fuel from the Navy or for the 

tens of thousands of canisters of high level waste expected from 

Hanford and the other Department of Energy nuclear weapons 

sites. 

Third, continuing to keep spent fuel and high level waste where 

they are today—in reactor pools that were not originally designed 

to store large quantities of spent fuel for long periods of time at 

DOE nuclear sites and at decommissioned nuclear power plants— 

is an exercise in institutional inertia. I was reminded of a harsh 

truth when I visited Fukushima. Accidents don’t always follow 

safety precautions. If plant safety can be improved by reducing the 

amount of spent fuel stored in existing pools, then there’s an option 

that ought to be on the table. 

It also is time to come to terms with the fact that having permanent disposal capacity for all of the waste that the country is going 

to have is not going to be up and running any time soon. 

Fourth, no one who has commented on the subject believes that 

the U.S. Department of Energy should continue to be in charge of 

this program. S. 1240 would create a new agency with a 5 member 

independent oversight board to site and manage the government’s 

nuclear waste, storage and disposal facilities. There is also a general consensus that the Federal Government needs to work with 

State and tribal governments in siting these facilities, not in conflict with them. 

Finally the bill would also authorize the Secretary of Energy to 

revisit the decision made after the 1982 act was passed to commingle commercial spent fuel and high level waste in the same disposal system. S. 1240 would require the new agency to begin right 

away to site new facilities for storage of priority waste. Priority 

waste includes spent fuel at decommissioned nuclear plants and 

emergency shipments of spent fuel that present a hazard where 

they’re stored. 

However, storage is not permanent. It’s temporary. The new 

agency is required to also site a permanent repository. Financial 

commitment to move ahead with the repository and selection of potential sites for that repository are prerequisites for any additional 

spent fuel storage facilities to come online. 

It has now been 3 decades since Congress passed the Nuclear 

Waste Policy Act of 1982. In many ways the country is no closer 

to having a permanent solution to these problems than it was then. 

If anything, there is even less confidence in the government’s ability to solve these problems and meet its commitments to utilities 

and their ratepayers. 

Our goal with this legislation is to get the permanent repository 

program back on track and to make sure spent fuel and nuclear 

waste are handled safely until it is. 

I want to recognize Senator Murkowski. 

I just want to note that I think I misstated my judgment with 

respect to Fukushima because really the harsh truth with respect 

to Fukushima is accidents don’t always follow safety predictions. I 
5 

believe I said, precautions. So in the broad sweep of Western Civilization, perhaps not everyone noticed. But I did. I appreciate the recorder correcting that. 

[Laughter.] 

The CHAIRMAN. So I thank my colleagues for their patience. Let 

me recognize Senator Murkowski. 

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

FROM ALASKA 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

I want to thank you for your leadership on this issue, working 

with you, Senator Alexander, Senator Feinstein, in trying to come 

together over the course of many months to really find this path 

forward. I think it is because of your leadership and the commitment of these others that we were able to reach consensus on the 

language and have this hearing relatively quickly after introduction. So again, thank you. 

We know that there are provisions within this bill, there are certain segments that are not universally supported, some areas that 

were perhaps not addressed to everyone’s satisfaction. But I think 

that what we have tried to do is to put forward legislation that can 

get us from where we are today on the back side of the nuclear fuel 

cycle, namely a process that has effectively mastered the art of 

going nowhere slowly, to a place where actually progress has been 

made. 

Where spent nuclear fuel is deposited into permanent repositories. 

Where the American taxpayer is no longer liable for the govern- ment’s breach of contract. A breach that has cost nearly $3 billion 

so far and of course, is likely to grow upwards of $20 billion if the 

government fails to accept used fuel by 2020. By some estimates 

may increase by as much as $500 million each year thereafter if 

no action is taken. 

So we’re talking real dollars here. 

One of the areas of significant discussions centered on the structure of this new entity whether it should be led by a single administrator, a person who essentially calls the shots and is the person 

to go to if things are working or perhaps aren’t working or a board 

of directors as recommended by the Blue Ribbon Commission. Either approach can work. Either approach could fail. 

We chose the single administrator structure with an enhanced 

oversight board as a way to streamline the process and get the 

casks moving. 

We have essentially written in a 10-year window for this new entity to show real results. I think we recognize that it is an aggressive timeline. But hopefully it’s doable. I believe it sends an important message to the American people, to industry, and to all those 

who follow nuclear issues that we are not willing to wait another 

30 plus years to resolve the back end of the nuclear fuel cycle. 

Now as the committee considers the approach that we have offered. I’d like to mention an area that I think we’re going to need 

to address more comprehensibly during this committee process and 

that’s the transportation of waste in dry cask storage to a storage 

facility or repository. 
6 

According to the NEI, more than 3,000 shipments of used nuclear 

fuel have been made over the past 40 years by rail, by truck and 

sometimes barge. While there are a handful of transport containers 

that are certified by the NRC, there are nearly 1700 dry cask units 

at operating reactors and stranded and shut down sites representing over 19,000 metric tons of used nuclear fuel. However, no 

transport containers have been procured for those units in large 

part because they just don’t have any place to go. 

But even if we were to pass this legislation tomorrow significant 

work needs to be done at the stranded sites. The priority sites that 

are identified in the bill just to get the storage casks to a rail head. 

DOE’s Office of Fuel Cycle Technology estimates that it will likely 

take 12 to 15 years to remove the waste from the stranded sites 

with the first 5 to 6 years needed to acquire the resources and to 

prepare the infrastructure. So I do hope it is something that we’ll 

have an opportunity to discuss more within this committee. 

I, too, Mr. Chairman, would like to recognize the work of Secretary Moniz, his leadership on the Blue Ribbon Commission and 

also the face that he was willing to consult with the 4 of us as we 

attempted to address some of these difficult issues. 

I’ll be interested in hearing the comments from our second panel 

here today on how we can better address the issues of our nuclear 

waste within this country. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Murkowski. 

First of all my thanks to you for your continued cooperation as 

we’ve done a whole host of issues. I think your point with respect 

to transportation is very well taken. I’m anxious to work with you 

on it. 

Several colleagues said that they were on a time crunch with respect to this afternoon. I think Senator Heinrich said that he may 

want to make a comment early on? Are there other colleagues that 

would like to make a comment before we go to Secretary Moniz? 

Senator HEINRICH. Actually, Chairman, I’ll hold my opening comments until we get to the questions. 

The CHAIRMAN. Very good. 

Senator HEINRICH. First panel. 

The CHAIRMAN. Any other colleagues? 

OK, Secretary Moniz, welcome and again, our thanks for your cooperation in a number of those meetings. I had real questions 

about whether or not we were going to be able to get a bipartisan 

agreement here. The fact that we did, to a great extent, was 

sparked by your assistance and cooperation. 

So we thank you. 

We’ll put your prepared remarks into the record in their entirety. 

Just please proceed to outline your views. 

STATEMENT OF HON. ERNEST MONIZ, SECRETARY, 

DEPARTMENT OF ENERGY 

Secretary MONIZ. Thank you, Mr. Chairman and Ranking Member Murkowski. 

First of all let me say I want to thank you for, and your colleagues, Senators Alexander and Feinstein for the chance to discuss these issues some weeks ago. I think it was pretty important 
7 

for us to be able to exchange those views. I appreciate that opportunity to work together. 

So to both of you and members of the committee, thank you for 

inviting me here to discuss the Nuclear Waste Administration Act 

of 2013 and the activities this Administration has ongoing to meet 

the challenge of managing and disposing of used nuclear fuel and 

high level radioactive waste. 

I wish to commend, again, the 4 sponsoring Senators on their 

leadership in crafting what I believe is a very thoughtful approach 

to nuclear waste management in S. 1240. While the Administration 

has not taken a formal position on the legislation, I certainly believe it is very promising framework for addressing the key issues. 

It’s based on the recommendations, as you have said, of the Blue 

Ribbon Commission on which I had the pleasure of serving under 

the leadership of Lee Hamilton and Brent Scowcroft. 

The Administration embraces the principles of the Commission’s 

core recommendations and like, S. 1240, the Administration supports the goals of establishing a new, workable, long-term solution 

for nuclear waste management. I appear before the committee 

today to reinforce that the Administration is ready and willing to 

engage with both chambers of Congress to move forward. I believe 

that S. 1240 provides a workable framework for that engagement. 

Any workable solution for the final disposition of used fuel and 

nuclear waste must be based not only on sound science, but also 

on achieving public acceptance at the local, State and tribal levels. 

When this Administration took office, the timeline for opening 

Yucca Mountain had already been pushed back by two decades, 

stalled by public protest and legal opposition and with no end in 

sight. It was clear the stalemate could continue indefinitely. 

Rather than continuing to spend billions of dollars more on a 

project that faces such strong opposition, the Administration believes a pathway similar to that the Blue Ribbon Commission laid 

out, a consent based solution for the long term management of our 

used fuel and nuclear waste, is one that meets the country’s national and energy security needs, has the potential to gain the necessary public acceptance and can scale to accommodate the increased needs of the future that includes expanded nuclear power 

deployment. 

In January 2013 the Administration released its strategy for the 

management and disposal of used nuclear fuel and high level radioactive waste which, again, endorses the key principles of the Commission’s report. The strategy lays out plans to implement, with 

the appropriate authorizations from Congress, a long term program 

that begins operations of a pilot interim storage facility, advances 

toward the siting and licensing of a larger interim storage facility, 

and makes demonstrable progress in the siting and characterization of repository sites to facilitate the availability of one or more 

geological repositories. 

Consolidated interim storage is a critical component of an overall 

used fuel, waste management system and offers a number of benefits such as offering the opportunity to remove fuel from shut down 

reactors, meeting the government’s waste acceptance obligations 

sooner and reducing the government’s liabilities caused by delayed 

waste acceptance. No matter how many facilities or what specific 
8 

form they take, 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 Commission 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. The strategy also highlights the need for new waste 

management and disposal organization to provide the stability, 

focus and credibility to build public trust and confidence. Again, 

there are multiple models that exist along a continuum from government program to Federal corporations. But as we’ve discussed, 

whatever form the new entity takes, keys are organizational stability, an appropriate level of autonomy, leadership continuity, 

oversight and accountability and public credibility, all critical attributes for future success. 

So we feel we are facing a unique opportunity to address the 

needs of the back end of the nuclear fuel cycle by setting it on a 

sustainable path and providing the flexibility needed to engage potential host communities and anticipated advancements in technology. We need to move forward with tangible progress toward 

used fuel acceptance, initially from closed reactor sites, providing 

more certainty to the nuclear industry. This progress is critical to 

assure that the benefits of nuclear power are available to current 

and future generations. 

I’ll be happy to answer any questions you may have. 

Thank you. 

[The prepared statement of Secretary Moniz follows:] 

PREPARED STATEMENT OF HON. ERNEST J. MONIZ, SECRETARY, DEPARTMENT OF

ENERGY

Chairman Wyden, Ranking Member Murkowski, and members of the committee, 

thank you for inviting me to discuss the Nuclear Waste Administration Act of 2013 

and the activities this Administration has ongoing to meet the challenge of managing and disposing of used nuclear fuel and high-level radioactive waste. 

The United States, like all countries, faces challenges associated with ensuring its 

people have access to affordable, abundant, and environmentally friendly sources of 

energy. President Obama has made climate change mitigation a priority and set a 

goal of reducing emissions in the range of 17 percent below 2005 levels by 2020. 

The promise of nuclear power is clear. Electricity generation emits more carbon dioxide in the United States than transportation or industry, and nuclear power is 

already the largest source of carbon-free electricity in this country. Nuclear power 

has an important role in President Obama’s all-of-the-above approach to energy, and 

will play a significant part in reducing carbon pollution under the President’s Climate Action Plan. As the President noted in Korea last spring, ‘‘in the United 

States, we’ve restarted our nuclear industry as part of a comprehensive strategy to 

develop every energy source.’’ This includes providing conditional commitments to 

loan guarantees to support the first commercial reactors licensed and built in the 

U.S. in three decades. Currently, we have five new commercial nuclear reactors 

under construction, including four AP1000 reactors, with passively safe features. 

The Department of Energy (DOE) is also helping accelerate the commercialization 

of first generation of Small Modular Reactors (SMR) through a cost shared program 

with industry. We believe SMRs will be part of the future model of nuclear energy 

worldwide, where both SMRs and gigawatt-class reactors are deployed depending on 

the requirements. 

Nuclear power has reliably and economically contributed almost 20 percent of 

electrical generation in the U.S. over the past two decades. It remains the United 

States’ single largest contributor (more than 60 percent) of non-greenhouse-gasemitting electric power generation. We believe that nuclear energy will continue to 

be an important part of the Nation’s low carbon future. 
9 

I wish to commend Senators Wyden, Murkowski, Alexander, and Feinstein on 

their leadership in crafting a thoughtful approach to nuclear waste management in 

the Nuclear Waste Administration Act of 2013, S. 1240. While the Administration 

has not taken a position on the legislation, I believe it is a promising framework 

for addressing key issues. It is based on the recommendations of the Blue Ribbon 

Commission on America’s Nuclear Future, on which I had the pleasure of serving 

under the leadership of Lee Hamilton and Brent Scowcroft. The Administration embraces the principles of the Commission’s core recommendations and, like this legislation, supports the goals of the establishing a new, workable, long-term solution for 

nuclear waste management. I look forward to continuing to work with you and your 

colleagues on the continued development of the new program. 

Any workable solution for the final disposition of used fuel and nuclear waste 

must be based not only on sound science but also on achieving public acceptance 

at the local and state/tribal levels. When this Administration took office, the 

timeline for opening Yucca Mountain had already been pushed back by two decades, 

stalled by public protest and legal opposition, with no end in sight. It was clear that 

the stalemate could continue indefinitely. Rather than continuing to spend billions 

of dollars more on a project that faces such strong opposition, the Administration 

believes a pathway similar to that the Blue Ribbon Commission laid out—a consentbased solution for the long term management of our used fuel and nuclear waste— 

is one that meets the country’s national and energy security needs, has the potential 

to gain the necessary public acceptance, and can scale to accommodate the increased 

needs of a future that includes expanded nuclear power deployment. 

The Administration’s Strategy for the Management and Disposal of Used Nuclear 

Fuel and High-Level Radioactive Waste provides a basis for discussions between the 

Administration and Congress on a path forward for disposal of nuclear waste and 

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

enactment of new legislation. We are facing a unique opportunity to address the 

needs of the back-end of the nuclear fuel cycle by setting it on a sustainable path 

and providing the flexibility needed to engage potential host communities and anticipate advancements in technology development. I appear before this committee 

today to reinforce that the Administration is ready and willing to engage with both 

chambers of Congress to move forward. 

STRATEGY FOR THE MANAGEMENT AND DISPOSAL OF USED NUCLEAR FUEL AND HIGHLEVEL RADIOACTIVE WASTE

Finding a solution to managing and disposing the nation’s high-level radioactive 

waste and used nuclear fuel is a long-standing challenge. Such a solution, however, 

is necessary to assure the future viability of an important carbon-free energy supply 

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

safety and nonproliferation. 

In FY 2010, Secretary Chu, at the direction of President Obama, established the 

Blue Ribbon Commission on America’s Nuclear Future (BRC, or the Commission) 

composed of representatives from government, labor, academia and industry. The 

charter charged the Commission with conducting a ‘‘comprehensive review of policies for managing the back end of the nuclear fuel cycle, including all alternatives 

for the storage, processing, and disposal of civilian and defense used nuclear fuel, 

high-level waste, and materials derived from nuclear activities. . . [and to] provide 

advice, evaluate alternatives, and make recommendations for a new plan to address 

these issues.’’ The Commission issued its final report on January 26, 2012. 

The report included eight key recommendations: 

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

responsibilities. 

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 continued U.S. innovation in nuclear energy technology and for 

workforce development. 

8. Active U.S. leadership in international efforts to address safety, waste 

management, non-proliferation, and security concerns. 
10 

In January 2013, the Administration released its Strategy for the Management 

and Disposal of Used Nuclear Fuel and High-Level Radioactive Waste, which endorses key principles of the Commission’s report. The Strategy lays out plans to implement, with the appropriate authorizations from Congress, a long-term program 

that begins operations of a pilot interim storage facility, advances toward the siting 

and licensing of a larger interim storage facility, and makes demonstrable progress 

on the siting and characterization of repository sites to facilitate the availability of 

a geologic repository. It is important to stress that neither the BRC recommendations, nor the Administration’s Strategy, make recommendations on siting of such 

storage facilities or repositories. 

As noted, the Administration’s Strategy endorsed the concept of the development 

of three different, but intimately related, facilities. While the Strategy indicates one 

of each of three separate facilities, it is conceivable, as the result of a consent-based 

siting process, that some or all of these facilities could be co-located and/or more 

than one of each type could be constructed. 

Consolidated interim storage is a critical component of an overall used fuel and 

waste management system and offers a number of benefits. As outlined in the Strategy, it offers an opportunity to remove fuel from shutdown reactors—places where 

in many cases removal of used fuel is one of the last steps to releasing the site for 

other uses. There are now twelve such sites. In addition, a consolidated interim storage facility could enable the Federal government to begin meeting its waste acceptance obligations sooner and ultimately reduce the government’s liabilities caused by 

its delay in meeting its obligations. These liabilities are currently projected to be 

as much as $23 billion over the next 50 years, assuming waste pick-up begins in 

2020. Also, a consolidated interim storage facility or facilities would provide additional capability to receive spent fuel in emergency situations. It would allow for repository designs for waste emplacement after a sustained cooling period. Finally, an 

interim storage facility would also support the repository by providing a buffer for 

disposal operations and flexiblity for the system as a whole, even potentially providing the capability to package waste for disposal prior to shipment to the repository. The BRC recommended that the interim storage facility include facilities to 

monitor and characterize waste packages over time and to have or develop the capability for making sure that the waste meets transportation criteria over time. In 

short, the BRC viewed a storage strategy as important, independent of the siting 

and timing of geologic repositories. 

The Administration supports the development of a pilot interim storage facility 

with an initial focus on accepting used nuclear fuel from shut-down reactor sites. 

Acceptance of used nuclear fuel from shut-down reactors provides a unique opportunity to build and demonstrate the capability to safely transport and store used 

nuclear fuel, and therefore to make progress on demonstrating the federal commitment to addressing the used nuclear fuel issue. A pilot would also build trust among 

stakeholders with regard to the consent-based siting process and commitments 

made with a host community for the facility itself, with jurisdictions along transportation routes, and with communities currently hosting at-reactor storage facilities. 

There are reports that a number of communities are exploring the possibility of 

hosting a consolidated storage facility. 

Beyond a pilot-scale facility, the Administration supports the development of a 

larger consolidated interim storage facility with greater capacity and capabilities 

that will provide flexibility in operation of the transportation system and disposal 

facilities. A larger-scale facility could take possession of sufficient quantities of used 

nuclear fuel to make progress on the reduction of long-term contractual liabilities, 

and could also accept defense wastes. In parallel, as supported in the Administration’s Strategy and recommended by the BRC, DOE has initiated an analysis of the 

pros and cons of commingling civilian and defense waste. 

The rationale for deploying interim storage in no way minimizes the need for a 

permanent disposal capability, and the Administration is committed to advancing 

development of both interim storage and geologic disposal facilities in parallel, even 

though they may become operational at different times. The development of geologic 

disposal capacity is currently the most cost-effective way of permanently disposing 

of used nuclear fuel and high-level radioactive waste while minimizing the burden 

on future generations. The Administration agrees with the BRC that linkage between storage and disposal is critical to maintaining confidence in the overall system. Therefore, efforts to implement storage capabilities within the next 10 years 

will be accompanied by actions to engage in a consent-based siting process and initiate preliminary site investigations for a geologic repository. 

No matter how many facilities or what specific form they take, 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 tech-
11 

nically 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—if developed through engagement with states, tribes, 

local governments, key stakeholders, and the public—can be successful. For example, Sweden and Finland have successfully executed programs to select a site among 

multiple volunteer communities. Others such as France, Switzerland, and Canada, 

have programs underway that appear to be demonstrating some 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. 

The Strategy highlights the need for a new waste management and disposal organization to provide the stability, focus, and credibility to build public trust and confidence. Again, there are multiple models that exist along a continuum from a government program to federal corporations—entities that report to a cabinet secretary 

and those that have their own board of directors that report independently to the 

President. Whatever form the new entity takes, organizational stability, an appropriate level of autonomy, leadership continuity, oversight and accountability, and 

public credibility are critical attributes for future success. Further, the authorities 

and responsibilities of the new organization are more important than the specific 

form. The Administration will work with Congress to ensure that the authorization 

of any new body established for this purpose provides adequate authority and leadership as well as appropriate oversight and controls. 

The Administration also recognizes that providing predictable funding is critical 

to the success of the nuclear waste mission. The Strategy and the FY 2014 President’s Budget propose a funding approach that contains three critical elements: discretionary appropriations within existing spending caps to pay for program management and administrative support costs; legislative reclassification of annual fee income from mandatory to discretionary or a direct mandatory appropriation to make 

dedicated funds available in sufficient amounts for multi-year projects and program 

activities without competing with other government priorities; and eventual access 

to the existing balance of the Nuclear Waste Fund in the Treasury. 

Full implementation of this program will require legislation to enable the timely 

deployment of the system elements noted above, independent of the process to site 

storage and disposal facilities using a consent-based approach. The Administration 

supports the goal of the Nuclear Waste Administration Act of 2013 recently introduced in the Senate to establish a new, workable, long-term solution for nuclear 

waste management and looks forward to working with Congress to move forward 

on this important national issue. The constructive efforts and dedication of Senators 

Wyden, Murkowski, Feinstein and Alexander are deeply appreciated. In the meantime, the Administration, through the Energy Department’s Office of Nuclear Energy, is undertaking activities consistent with existing Congressional authorizations 

and appropriations to plan for the eventual transportation, storage, and disposal of 

used nuclear fuel. 

ONGOING ACTIVITIES

Since the closure of the Yucca Mountain Project in 2010, the Department of Energy has continued activities related to the management and disposal of used nuclear fuel and high-level radioactive waste as part of its Fuel Cycle Research and 

Development program. Initial activities were outlined in DOE’s Nuclear Energy Research and Development Roadmap, sent to the Congress in 2010, and included research into the performance of high burn-up used fuel in storage, among other activities. The roadmap noted the establishment of the Blue Ribbon Commission on 

America’s Nuclear Future and acknowledged that all research and development activities and plans outlined would be revisited and revised as needed to reflect the 

Commission’s findings and associated Administration decisions while, at the same 

time, remaining consistent with existing statutes. 

In December 2011, the President signed the Consolidated Appropriations Act of 

2012, which provided $60 million in funding for used fuel management and disposal 

activities. Specifically, the Joint Explanatory Statement accompanying the bill provided that DOE should build upon its current knowledge base to fully understand 

all repository media and storage options and their comparative advantages and expand its capabilities for assessing issues related to storage of spent fuel. 

In its final report in January 2012, the Blue Ribbon Commission noted the need 

for near-term actions that can lay the groundwork for the next generation of nuclear 

waste policies and programs. For the most part, these near-term activities identified 

by the BRC were encompassed in activities already being undertaken by the Department. It included in its recommendations: 
12 

• Continuation of a research effort in used fuel and storage system degradation 

phenomena, vulnerability to sabotage and terrorism, and others. 

• Moving forward with geologic disposal through valuable, non-site specific activities, including R&D on geological media, work to design improved engineered 

barriers, and work on the disposal requirements for advanced fuel cycles. 

• Development of a research, development, and demonstration plan and roadmap 

for taking the borehole disposal concept to the point of a licensed demonstration. 

• Performance of system analyses and design studies needed to better integrate 

storage into the waste management system, including standardization of dry 

cask storage systems and development of a conceptual design for a flexible federal spent fuel storage facility. 

• Development of a database to capture the experience and knowledge gained 

from previous efforts to site nuclear waste facilities in the United States and 

abroad. 

• Completion of policies and procedures for providing technical assistance funds 

to states, tribes, and local jurisdictions which are likely to be traversed by 

transportation shipments. 

The Administration’s Strategy for the Management and Disposal of Used Nuclear 

Fuel and High-Level Radioactive Waste recognized the ongoing research and development, analytical and planning activities already underway and endorsed them as 

laying the groundwork for implementation of the Strategy. DOE is currently undertaking activities to address these recommendations. For example, DOE is working 

with industry to conduct R&D (lab, field, and modeling) to further develop the technical basis for continued safe storage. Specifically, a key element of the storage R&D 

is to implement, on a cost-sharing basis with industry, a full scale storage demonstration project focused on getting field information on the long term storage of 

high burn-up fuel. This demonstration project was awarded in April. 

DOE is also working to analyze the characteristics of various geologic media that 

are potentially appropriate for disposal of radioactive waste. This research will help 

provide a sound technical basis for a repository in various geologic media, and will 

help provide confidence in whatever future decisions are made. To leverage expertise and minimize costs, DOE is taking advantage of existing analyses conducted by 

other countries that have studied similar issues. 

With regard to borehole disposal, DOE is developing a draft plan and roadmap 

for a deep borehole project. The project would evaluate the safety, capacity, and feasibility of the deep borehole disposal concept for the long-term isolation of nuclear 

waste. It would serve as a proof of principle, but would not involve the disposal of 

actual waste. The project would evaluate the feasibility of characterizing and engineering deep boreholes, evaluate processes and operations for safe waste emplacement and evaluate geologic controls over waste stability. 

In FY 2012, DOE initiated system-level analyses for the overall interface between 

at-reactor consolidated storage and geologic disposal and the opportunities for use 

of standardized canisters, including the development of supporting logistic simulation tools to better understand aging of fuel and loading requirements. In addition, 

DOE acquired services of the industry to develop design concepts for a generic interim storage facility and in FY 2013 is evaluating their submissions. 

A database on experiences with siting radioactive materials facilities both in the 

U.S. and abroad has been developed that will be a public resource and will inform 

the planning process. A report on the findings of the initial studies and an examination of case studies in the database of siting experience is being prepared and will 

be available this summer. 

For transportation planning and engagement with stakeholders, DOE has convened a Working Group comprised of Federal, State, and Tribal governmental representatives to address training-related issues and develop a revised policy for preparing public safety officials along proposed transportation routes, as required by 

Section 180(c) of the Nuclear Waste Policy Act. The Working Group will analyze 

and, when possible, make recommendations on specific issues related to Section 

180(c) policy and implementation. 

The Department has also initiated studies to evaluate whether defense and commercial wastes should be ‘‘commingled’’ in a single repository. While it has been the 

U.S. policy since 1985 to commingle these wastes, the Strategy stated that the commingling of these waste would be the subject of analysis going forward, consistent 

with the urging of the BRC. 
13 

THE PRESIDENT’S FISCAL YEAR 2014 BUDGET REQUEST

The President’s FY 2014 budget request includes a multi-part proposal to move 

ahead with developing the nation’s used nuclear fuel and high-level waste management system outlined in the Administration’s Strategy. First, it lays out a comprehensive funding reform proposal that includes three elements. Ongoing discretionary appropriations within existing funding caps are included to pay for planning, management, and regulatory activities. . In addition, the proposal includes reclassification of existing annual fees from mandatory to discretionary or a direct 

mandatory appropriation, and eventual access to the balance of the nuclear waste 

fund. Included in the amounts that would be made available under this proposal 

are defense funds to pay for the management and disposal of government-owned 

wastes within the overall system. These elements, in combination with anticipated 

offsets result in relatively modest pay-as-you-go cost of about $1.3 billion. Significantly, the Administration proposes $5.6 billion in spending to implement the Strategy over the next 10 years within the framework of this funding proposal. 

Second, for the first time, the budget baseline reflects a more complete estimate 

of potential future costs of the liability associated with continuing to pay utilities 

based on the Government’s liability for partially breaching its contract to dispose 

of used nuclear fuel. The cost of the Government’s growing liability for partial 

breach of contracts with nuclear utilities is paid from the Judgment Fund of the 

U.S. Government. While payments are extensively reviewed by Department of Energy, and must be authorized by the Attorney General prior to disbursement by the 

Department of the Treasury, as mandatory spending they are not subject to Office 

of Management and Budget or Congressional approval. Previously, judgments were 

recorded in the budget largely after the fact, but until now the budget has included 

only a partial estimate of the potential future cost of continued insufficient action. 

To improve budget projections, the baseline for the Judgment Fund in the FY 2014 

budget request reflects a more complete estimate of potential future cost of these 

liabilities. By reflecting a more complete estimate of the liability payments in the 

baseline, costs over the life of the nuclear waste management and disposal program 

would eventually be offset (for the purposes of scoring against the baseline) by reductions in liabilities as the Government begins to pick up sufficient waste from 

commercial sites. 

Third, the President’s budget includes funding for the Environmental Protection 

Agency (EPA) to begin the review and update of generic (non-site specific) disposal 

standards to help guide the siting of used fuel and high-level waste facilities. Current EPA standards for all sites other than Yucca Mountain are defined in 40 CFR 

Part 191, ‘‘Environmental Radiation Standards for Management and Disposal of 

Spent Nuclear Fuel, High-Level and Transuranic Radioactive Wastes,’’ and were 

last updated in 1993. The Administration agrees with the BRC that generally applicable regulations are more likely to earn public confidence than site-specific standards. In addition, having an updated generic standard will support the efficient consideration and examination of multiple sites. 

Finally, in FY 2014, DOE’s Office of Nuclear Energy will support the Strategy for 

the Management and Disposal of Used Nuclear Fuel and High-Level Waste by funding activities to lay the ground work for the design of an integrated waste management system as well as related research and development work. Specifically, in the 

used nuclear fuel research and development area, the Department will work with 

industry on conducting investigations into the extended storage of used nuclear fuel 

and the transport of such fuel under a range of cask loadings. In addition, ongoing 

research into alternative disposal environments, including modeling, experiments, 

and field tests will be continued. Finally, the Used Fuel Disposition program will 

undertake R&D activities to further the understanding of hydro-geochemical, physical geology, structural geology, geophysical state and engineering properties of deep 

crystalline rocks for deep borehole disposal. 

In the management and disposal system design area, DOE will conduct system 

architecture and operating evaluations of various used fuel management systems, 

including consolidated and/or regional storage facilities, various repackaging scenarios and acceptance rates. DOE will also update transportation and storage system models, and develop cost databases. Further, DOE will conduct analyses for initial used fuel shipments from shutdown reactor sites including staffing, routing, procurement, operations, security, quality assurance, emergency response, training, logistics, site servicing, mobilization, operational readiness, and site servicing schedules. Work will also continue on an evaluation of standardized containers for storage, transportation, and potentially disposal. Outreach activities to stakeholders on 

transportation planning will also continue. When the new management organization 

is established in legislation, it will be able take over many of these activities. 
14 

CLOSING

The Administration looks forward to working with this Committee and other 

Members of Congress on crafting a path forward for used nuclear fuel and high-level 

waste management and disposal. This progress is critical to assure that the benefits 

of nuclear power are available to current and future generations. I will be happy 

to answer any questions you may have. 

The CHAIRMAN. Dr. Moniz, thank you very much. 

I think you know that the sponsors of the legislation made the 

judgment right at the outset that we have to have a permanent disposal process for nuclear waste. At the same time, and this was reaffirmed both at Hanford and at Fukushima, our sense was that 

there’s going to be a lot of spent fuel and nuclear waste that is 

going to continue to sit in temporary storage for decades to come 

before it goes to a permanent repository and that is the case wherever the repository is located. The current storage pools and the 

tanks simply weren’t designed for long-term storage. 

So what we thought to do in the bill is to create a new program 

for the Federal Government to build new storage facilities that are 

linked to continued progress on siting a repository. 

Do you agree with the judgment that our country needs a Federal policy that includes both storage and disposal in a way that 

makes sure that storage doesn’t become the de facto permanent solution? 

Secretary MONIZ. Thank you, Mr. Chairman, for the question. 

I certainly agree that, as did the Commission and does the Administration strategy, that the parallel tracks of storage and disposal facilities are both essential and frankly, are both needed in 

a comprehensive system. I think the S. 1240 has presented a specific and I think, again, workable approach to this question of linkage of the two pathways. 

The CHAIRMAN. Now, the Senators involved and Senator 

Heinrich and others have made very constructive contributions 

with respect to the debate about how tightly linked the two programs, storage and disposal, ought to be. Now the bill, as you 

know, calls for proceeding right away with storage for what the 

sponsors have deemed to be priority waste. That means for example, the spent fuel of decommissioned reactors would get priority 

access for Federal storage. But under our bill not every reactor gets 

priority access. Additional storage for non priority waste is tied to 

progress on the permanent repository. 

In your judgment and again, we appreciate we’re just talking 

about the concepts. Is this the right distinction to draw? Any 

thoughts you have about the linkage that’s been proposed in the 

bill being sufficiently strong to assure progress on the repository 

will proceed in parallel with storage? 

I think those two questions together. 

Secretary MONIZ. Yes. 

So first of all, I personally agree. This was again, clear on the 

Commission, that starting out with moving fuel from our shut 

down reactors is something that, hopefully, we can accomplish expeditiously. These sites really could be returned to other uses if we 

could move this fuel. I think, again, S. 1240, lays out a fast track 

to get that pilot facility going. 
15 

I think this will also create, if done again in our consent based 

approach, a lot of confidence. Again, it’s moving down the track. 

Then I think the bill, as you’ve described, then moves into this, the 

linkage situation for future facilities. Again, I think the Administration strategy is completely consistent with that approach. 

The CHAIRMAN. Your thoughts, Mr. Secretary, about the idea of 

a new agency. I think it’s fair to say that a fair number of us were 

ambivalent about the whole proposition. Here we are in a time of 

sequester. The Blue Ribbon Commission made that recommendation. There’s a little bit of an irony here. 

I don’t want to make you uncomfortable because you’re arriving 

in an agency and I don’t want you to say anything bad about your 

agency. But there was concern that keeping DOE in charge of the 

Federal nuclear waste program was not the way to go. 

So what are your thoughts with respect to transferring the program to a new agency and whether that kind of approach with the 

independent oversight board is the right way to go? 

Secretary MONIZ. Again, the Administration strategy is pretty 

clear in stating that we do need a new organization. There are 

many organizational approaches. The S. 1240 has certainly laid out 

a potentially workable solution. 

But we feel, again, the keys really are the authorities that go to 

this agency. 

Second, something that was pointed out in the Commission’s report, but also in another report that I was part of some years ago 

and this goes to Senator Murkowski’s comment on transportation, 

the National Academy Report on Transportation of spent fuel and 

high level waste some years ago. The point was made that this is 

a multi-decadal activity. It draws upon, ultimately the waste fund, 

for example. We feel that a dedicated organization that manages 

all aspects of the back end is the right way to go. 

The CHAIRMAN. Let me ask another question real quickly just because of its importance to the Pacific Northwest. 

As you know, Mr. Secretary, today Defense and civilian highlevel waste are stored separately. But the plan is to dispose of 

them in the same repository. The proposed repository, Yucca, was 

not designed to be big enough to dispose of all the civilian spent 

fuel, much less the tens of thousands of canisters of high-level 

waste expected to be produced at Hanford and other Department 

of Energy sites. 

On the other hand in his testimony today, Mr. Fertel, from the 

Nuclear Energy Institute, suggests that spent fuel from the Navy 

and the Department of Energy could be stored in the same consolidated storage facilities as commercial spent fuel. 

The bill would allow you, as Energy Secretary, to revisit the way 

in which Defense and civilian wastes are stored and disposed. 

Would you agree that it is time to take another look at this issue, 

Mr. Secretary? 

Secretary MONIZ. I certainly do, Mr. Chairman. 

Again, the outcome of a study is different from doing the study. 

I agree with Mr. Fertel that technically these wastes could be combined. 

However, there may be advantages to not having them combined 

certainly since the decision was made to comingle there have been 
16 

quite a few changes such as agreements. I note with Idaho, for example, in terms of moving spent fuel and waste with somewhat different conditions, Defense waste with different conditions. 

Second, I would note that it is true that there are differences in 

how spent fuel and waste are packaged. There are differences in 

that the much of the Defense waste came from so called low burn 

up activity versus the higher burn ups in commercial fuel. 

So I think the issue is to study this. I will say that we have 

launched that study. Hopefully sometime this fall we’ll be able to 

come back with how we balance the various factors. 

The CHAIRMAN. That would be very helpful to be able to get that 

this fall. We do intend to consult with Mr. Fertel and the Institute 

and others and that would be part of the debate. 

Senator Murkowski. 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

Mr. Secretary, you’ve answered so many of these questions that 

are, kind of, key to the construct of this legislation. 

One of the things that we were wrestling with for quite some 

time was this issue of the linkage. You’ve addressed that with the 

Chairman here. But as we have built this bill, we have a 10-year 

window effectively to get a storage facility up and running. There’s 

some discussion, I use the word aggressive in my opening statement. 

Do you believe that given the priority given to the stranded fuel 

that 10 years is enough time, sufficient time, to get a storage facility up and operating given the infrastructure needs that we have? 

Secretary MONIZ. I do believe it is quite feasible. It’s aggressive, 

but quite feasible. 

But of course, this will depend upon having the statutory authorities available soon, hopefully this year or next year at the outside. 

That would allow us then to be very active. We, I should say, we, 

DOE, or of course, in all cases potentially the new nuclear waste 

agency, if those responsibilities novate. But to really go out there 

and help support communities, who may want to come forward in 

this consent based process and provide them the technical assistance that they will need to go to the next step. 

Then, as you quoted earlier, our program estimates that to actually then establish the first pilot interim storage facility could be 

a 6-year project. 

So I think if we all take our steps smartly, I think we could do 

it in 10 years. 

Senator MURKOWSKI. As you point out our legislation is neutral 

as to the site location for the facilities or for the repositories. Is it 

your belief that given what we currently have with our used nuclear fuel and what we will anticipate in the future, that we will 

need more than one repository? 

Secretary MONIZ. Clearly if we look at the Nuclear Waste Policy 

Act guidance of 70,000 metric tons. We will definitely need the capacity for more than that. 

Now clearly a lot of this will depend upon the trajectory of nuclear power. But our view is that we should certainly be enabling, 

at least, a future in which nuclear power may grow substantially. 
17 

If that happens I would guess we will almost certainly need more 

than one repository. 

As I said, it will depend upon the arrangements worked out with 

the communities who come forward in terms of how many there 

will be. 

But if nuclear power grows to a level, even if maintaining market 

share of 20 percent would almost certainly, I think, drive us to 

more than one repository. 

Senator MURKOWSKI. Now when I made comment about the 

transportation aspect of how we’re dealing with our nuclear waste, 

you were, kind of, nodding your head in agreement. 

Secretary MONIZ. Mm-hmm. 

Senator MURKOWSKI. So you would not disagree with the numbers that I have outlined in terms of the numbers of years, a 

multiyear process, to really get us to the place where we can even 

move these casks to storage. 

Secretary MONIZ. Yes, it will take a quite a while to get going 

certainly for a full bore program. 

I believe you quoted the NEI number for the number of movements that we’ve had so far in this country, several thousand. I 

might also add and this goes back, I’m relying on my memory from 

the National Academy report on transportation a few years ago. 

But if one looks at Europe there have been, roughly speaking, as 

many movements of spent fuel as there will be in the entire campaign of moving all the spent fuel we currently have. That’s had 

a very good safety record. 

So I think there’s a lot of evidence for being able to manage this 

transportation program. Clearly, it’s got to be timed very, very 

carefully. There are issues of truck versus rail there. But it’s a big 

logistical enterprise. It will take some time. It will take a dedicated 

organization, I think, to manage that. 

Senator MURKOWSKI. Let me ask you one more then. This speaks 

really to, I think, the future development and growth of the nuclear 

industry within this country resolving the back end of the nuclear 

fuel cycle and other nuclear related endeavors. If we can get this 

resolved how do you see new development of new nuclear plants 

moving forward? 

Most particularly, the small modular reactors which many of us 

are very interested in trying to advance. 

Secretary MONIZ. I think quite clearly, we need to solve the back 

end to have any form of nuclear power going forward. Small modular reactors will need storage and geologic repository just as our 

current reactors do. They may have different fuel forms depending 

upon their design. But we will certainly need this back end resolved, for sure. 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Murkowski. 

Senator Heinrich. 

Senator HEINRICH. Thank you, Chairman and Ranking Member 

Murkowski for holding this hearing today. 

First let me say I agree, we need to move forward on nuclear 

waste in this country. At the same time I think we also need to 

make sure that this legislation doesn’t just lead to short term 

progress but will get us all the way through to a geologic, operating 
18 

geologic repository for permanent disposal. I hope we can work together to make sure that this legislation will get us there. 

I have a few concerns. I want to outline those. 

One is that we’re setting up a process potentially where the interim storage facility could end up being permanent because we 

don’t have a clear link between creating temporary storage and 

eventually siting a repository for spent fuel and high level waste. 

The other concern I have is that instead of focusing on interim 

solutions, the legislation should assure that future Congresses and 

future Administrations sustain the political will and the financial 

will for the next 30 or 40 years that is going to be required to open 

a geologic repository. 

The BRC was clear. Communities must have confidence that this 

time the government will actually meet its commitments to dispose 

of waste in a geologic repository. I agree with that conclusion. Certainly look forward to working with members of the committee to 

achieve that goal. 

So that leads me to my first question, Secretary Moniz. 

Your written testimony says that you agree that linkage between 

storage and disposal is critical to maintaining confidence in the 

system. The Commission’s final report actually said quote, ‘‘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.’’ 

What in practical and specific terms did you and the Commission 

mean by establishing positive linkages between building storage facilities and opening the permanent geologic repositories we’re talking about? 

Secretary MONIZ. In the Commission context I would say—and 

it’s very similar to the strategy of the Administration—the feeling 

is that first of all some communities may, of course, come forward 

with the idea of having both storage and repositories, others only 

storage or only repository. 

For those coming forward for a storage facility the view was simply that there has to be confidence that there’s going to be a pathway to geologic disposal. So quite simply that’s what’s needed. 

I think then we do believe that the initial storage facilities can 

be established more rapidly, realistically, from where we are today. 

The Administration plan lays out timelines. So it’s very important 

that as we move out that we have an aggressive program for moving out on the repositories at the same time as storage is being implemented. 

That will require looking at different kinds of geologies, characterizing potential sites, working with communities intervally and 

flexibly. 

Senator HEINRICH. But how would you describe that linkage because given the fact that we’ve spent 30 years and gone through 

this with Yucca Mountain. My concern is that there may be communities that may be interested in a storage facility but not a permanent repository. 

Secretary MONIZ. Mm-hmm. 

Senator HEINRICH. If we move so aggressively forward on storage 

and we don’t address the steps needed to get to a permanent geological repository those communities could end up being de facto 
19 

permanent storage. That, I believe, is someplace we shouldn’t be 

going. 

So, how do we make sure that these things are sequential and 

that there is a direct linkage that gives confidence to those communities that temporary storage is not going to become permanent 

storage rather than permanent disposal? 

Secretary MONIZ. Again, I think the issue is establishing that 

program and funding it well moving out. Again, I would say in S. 

1240 there is this issue of tying the commitment of resources to repositories for going forward with additional storage. So I think we 

have to hold to that. 

I think we need to have an aggressive program on repositories. 

Also I might say this is something again, that the Commission emphasized. We also should take a new look at things like deep bore 

holes as a different kind of geological isolation medium. 

So I think we really just have to pick up the game and look at 

these geological isolation issues aggressively. I do want to repeat 

a statement made in the Commission’s report. That is that there 

is fundamentally a view in the scientific community that long term 

geological isolation is sound. 

We have to implement the programs appropriately. 

Senator HEINRICH. Thank you, Secretary. 

Mr. Chair. 

The CHAIRMAN. Thank you, Senator Heinrich. 

It seems very fitting that our next Senator in order of appearance is Senator Alexander. I’m not going to put any words in anybody’s mouth and let Senator Alexander make his points. But I 

think Senators know that this issue of linkage is one that has consumed as much discussion as perhaps any other. It obviously will 

be one we’ll continue to have. 

Senator Alexander. 

Senator ALEXANDER. Thanks, Mr. Chairman. 

I want to continue with Senator Heinrich asked an excellent 

question and one I hope we’ll continue to discuss. 

I want to thank you and Senator Murkowski, Senator Feinstein 

and the Secretary for helping with the bill. 

Mr. Secretary, I learned a lesson as Governor. We were stuck on 

locating a prison. Nobody could locate one. I changed it around. 

Said, OK, let’s have a competition. 

We were able to locate 3 in the next 5 years because we weren’t 

forcing it down the throat of a community. We were saying if you 

want one, come apply for it and tell us under what conditions you’ll 

take the prison. 

Now am I correct that as you read this legislation a new longterm repository could only be located with the consent of the State? 

Secretary MONIZ. Correct. We believe it’s got to be both local and 

State. 

Senator ALEXANDER. Consent. 

Local and State. 

That was—— 

Secretary MONIZ. Tribal if appropriate. 

Senator ALEXANDER. It would be appropriate to say, I think, that 

that was a main thrust of the bipartisan commission. 
20 

Secretary MONIZ. In my view, that was the most important recommendation of the bipartisan commission. 

Senator ALEXANDER. It’s a part of the Administration’s strategy? 

Secretary MONIZ. Correct. 

Senator ALEXANDER. So that means if New Mexico or Oregon or 

Alaska or Tennessee don’t want one of these repositories, we 

won’t—or Nevada. 

[Laughter.] 

Senator ALEXANDER. We won’t have one. 

Is that correct? 

Secretary MONIZ. Under this that’s what consent based means. 

[Laughter.] 

Senator ALEXANDER. Now going to Senator Heinrich’s excellent 

question about linkages. As I understand your answer to Senator 

Wyden, you said that the so called linkage along parallel tracks. 

The idea that we would be going to a repository long term and the 

consolidationsite, short term would go along parallel tracks. But 

they need to be linked and that the language in this legislation, in 

your opinion, was sufficient minimum linkage. 

Is that correct? 

Secretary MONIZ. Yes. As I said I think it’s quite workable. 

Senator ALEXANDER. But would you not agree that it is only minimum linkage. Let’s say that a New Mexico or Nevada or Tennessee community wants a short term consolidationsite. But we 

don’t want it to turn into the next Yucca Mountain. 

We can negotiate our own linkage, can’t we? 

Secretary MONIZ. Sure. 

Senator ALEXANDER. I mean, we can come to the Department of 

Energy and say in order to make sure that our short term site 

doesn’t become a repository we won’t take it unless we negotiate 

with the Federal Government these additional requirements. 

Secretary MONIZ. Yes. The Administration strategy includes the 

idea that we need to retain the flexibility for how linkage is implemented in individual proposals. 

Senator ALEXANDER. So the Governor or the community might 

create its own linkage which might be in addition to the minimum 

linkage provided. 

Secretary MONIZ. That’s all in a negotiation and consent based 

process. 

Senator ALEXANDER. Let me shift gears a little bit to what would 

happen if we don’t have nuclear power. As I understand it about 

half our nuclear capacity, the licenses on the plants end in 2038. 

You understand that? 

Secretary MONIZ. That’s of course, the 40-year licenses and the 

20-year extensions. 

Senator ALEXANDER. The combination would be about half our 

capacity unless renewed. 

Secretary MONIZ. Correct. 

Senator ALEXANDER. Would be gone in 2038. 

Secretary MONIZ. Sure. 

Senator ALEXANDER. I understand that’s about 20 percent of our 

electricity production in the United States? 

Secretary MONIZ. Almost. Yes. 
21 

Senator ALEXANDER. About 60 percent of our carbon free electricity? 

Secretary MONIZ. Agreed. 

Senator ALEXANDER. I know you’re concerned about the effect of 

carbon production on climate change. What would be the effect if 

in 2038 suddenly half our nuclear capacity was gone? What would 

be the consequences to the United States? 

Secretary MONIZ. Again, my commitment is to a low carbon economy. 

Senator ALEXANDER. Right. 

Secretary MONIZ. We do have multiple technologies, nuclear, carbon capture and sequestration, potentially at large scale and of 

course, renewables. In my view it’s all of the above. 

Senator ALEXANDER. But nuclear is a base load. 

Secretary MONIZ. The job is much harder if we don’t have all—— 

Senator ALEXANDER. The major base load are coal, gas and nuclear, correct? 

Secretary MONIZ. Correct, and hydro in certain parts of the country. 

Senator ALEXANDER. Hydro is 6 or 7 percent of the total. But it 

would be substantial problem, would it not? 

Secretary MONIZ. Yes. 

Senator ALEXANDER. Would it not be both in terms of our capacity to have clean, cheap electricity in the United States if that did 

happen. If we do not solve this problem of where to put used nuclear fuel we run the risk, do we not, of not being able to build new 

nuclear plants. 

Secretary MONIZ. Yes. In particular, of course, different State 

laws have issues with regard to so called waste confidence rulings, 

etcetera. So it would certainly be a major complication. 

Senator ALEXANDER. Right. 

So and my last question is something you said. But one way to 

say it is this, would you agree—well you said this and that the 

legal capacity for Yucca Mountain is 70,000 metric tons. 

Even if it were to be over the most eloquent and vigorous opposition of my friend from Nevada, if for some reason we’re going to 

be filled up with all of the commercial used nuclear fuel we have 

today. It would be about full. So we would therefore need, at least, 

one more new repository. 

Is that not what you said? 

Secretary MONIZ. With the assumption that the current plants 

are going to run their lifetimes. 

Senator ALEXANDER. Yes. 

Secretary MONIZ. We are going to be way over 70,000 metric 

tons. 

Senator ALEXANDER. So it would be fair to say that whether 

you’re for Yucca Mountain or against Yucca Mountain that one 

could be for a bill, one should be for a bill that finds some reasonable way to create new repositories and new consolidated sites on 

a parallel track as long as they’re consent based and can’t be 

crammed down the throat of a host community or State which is 

perfectly free to negotiate its own linkage to make sure that doesn’t 

happen. 
22 

Secretary MONIZ. That is core of the Administration position and 

of S. 1240 as well. 

Senator ALEXANDER. Thank you. 

The CHAIRMAN. Senator Franken. 

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

Secretary. 

In my State this issue directly affects Prairie Island Indian Community. Some members live within or just 600 yards from where 

the fuel is, the spent fuel sits in dry casks. They’d like to see this 

removed. It’s not the best use of land. It was never intended for 

long term storage. 

So I support the long term solution of this problem. I have a 

number of questions. 

You talk about in the end a repository or multiple repositories 

for disposal. What is the distinction between storage and disposal 

in terms of, I guess, disposal is a permanent solution, but is it just 

storage in a permanent repository? Is that what we’re talking 

about? Is that disposal versus storage? 

Secretary MONIZ. Of course, yes. I mean the difference clearly is 

being 1,000 feet below ground for disposal. 

Senator FRANKEN. So how many—— 

Secretary MONIZ. I think the assumption has always been, but 

again this is a question of design of the next repositories. It’s something that has always been that there would be a period of 

retrievability from an underground storage site or disposal site and 

that ultimately upon monitoring, etcetera, this would be a policy 

decision to be made later. 

One could, in effect, assume like it’s kind of closed up. Whereas 

storage, we’re talking about above ground, typically dry cask storage in appropriate containers. 

Senator FRANKEN. How many geological formations are candidates for this around the country? I mean, in other words are we 

looking at a, you know, just a whole bevy of these or is this, I 

mean, what are we looking at? 

Secretary MONIZ. In the original studies of the National Academy 

going back decades there were multiple geologies proposed. If you 

look at Europe where they’re moving forward, it’s in hard rock. In 

Scandinavia it’s in clay. 

In France, granites, salts, multiple geological—— 

Senator FRANKEN. It’s almost an embarrassment of riches in 

terms of things—— 

Secretary MONIZ. There has to be specific site investigation and 

understanding of groundwater movements, etcetera. 

Senator FRANKEN. Yes, and consent. 

Secretary MONIZ. Yes. Yes, and incentives. 

Senator FRANKEN. That too. 

In terms of transporting waste you talked about how Europe 

does it. So then what do they do? Do they do it by rail mainly or 

by truck or how? 

Secretary MONIZ. There’s quite a bit of rail. In fact the Academy 

report several years ago recommended going toward rail as a principal mode. But clearly it has to be multimodal. You would certainly need some trucks, some barges. It’s that system design that 

we need. 
23 

The Nuclear Energy Office at DOE has launched a number of 

transportation studies over these last years. But once we get to this 

stage, in some years, of major movements it will require substantial planning and systems integration. 

Senator FRANKEN. Which would come first the choice of the sites 

or the transportation, you know the basic—— 

Secretary MONIZ. For example. 

Senator FRANKEN. Kinds of plants. 

Secretary MONIZ. If one starts with the so called pilot facility, 

let’s say a facility scaled to accept the spent fuel from the 12 or so 

shut down reactor sites. It’s a relatively small amount. I would assume that rail would be the main mode, at least in that initial 

phase. 

Senator FRANKEN. In the experience of Europe have there been 

any incidents? Have there been any problems? 

Secretary MONIZ. I am not aware of there having been any major 

incidents at all. I admit I’m out of date on that because I was on 

that committee quite a few years ago and I haven’t really examined 

it. 

But I’d be happy to get back to you on that. 

Senator FRANKEN. Sure. 

[The information referred to follows:] 

According to the World Nuclear Association (WNA), since 1971 there have been 

over 7,000 shipments of used nuclear fuel transported in Europe, totaling approximately 81,500 metric tons (MT). About half of this inventory has been shipped from 

European reactors to reprocessing facilities at La Hague, France. Another 30,000 

MT were shipped within the United Kingdom to the reprocessing facility at 

Sellafield, England. Also included in the total are more than 7,000 MT shipped to 

La Hague and Sellafield from Japan. In addition, Sweden has shipped 4,500 MT by 

vessel to its centralized storage facility, and continues to make 80 or more shipments per year. TN International, the AREVA subsidiary responsible for shipping 

used fuel, reports that over 200 shipments per year to La Hague are occurring from 

58 reactors in France and others throughout Europe. These shipments have been 

made using rail, truck, ship, and combinations thereof. 

WNA states that these shipments occurred ‘‘over many million kilometres with no 

property damage or personal injury, no breach of containment, and very low dose 

rate to the personnel involved.’’ Traffic accidents and incidents involving used fuel 

shipments have occurred, as they have in the United States, but none resulted in 

any release of the cask contents. 

There have been a small number of incidents where loaded casks were found to 

have surface contamination levels in excess of the regulatory limits. A recent incident involved a cask of used fuel leaving the Blayais nuclear power plant in France 

in December 2011, when a survey conducted during transfer of the cask from a 

truck to a railcar near the plant detected radiation levels above allowable limits. 

A formal investigation found that ‘‘the event had no real consequences to the personnel, the environment or the safety of the installation.’’ This finding is consistent 

with other investigations involving surface-contaminated casks that found no harmful radiological consequences. 

Sources 

• Autorite ́ de Suˆ rete ́ Nucleaire (France’s nuclear safety authority), Experience 

Feedback on Transport of Radioactive Material in France, 2012 

• National Academies Press, Going the Distance: the Safe Transport of Spent Nuclear Fuel and High-Level Radioactive Waste in the United States, 2006 

• Catherine Shelton, TN International, A Unique, Proven Used Fuel Transportation Experience (presentation to DOE’s Office of Nuclear Energy, May 29, 

2013) 

• World Nuclear Association, Transport of Nuclear Materials, July 2011 

Senator FRANKEN. I’ll bet you if there had been a major incident, 

you would be aware of it. 
24 

Secretary MONIZ. Actually Mr. Fertel of the next panel might 

have the answer. 

Senator FRANKEN. OK. OK. Thank you very much. 

Yeah, thank you, Mr. Secretary. 

Thank you, Mr. Chairman. 

Secretary MONIZ. Thank you. 

The CHAIRMAN. Thank you, Senator Franken. 

Our next Senator is Senator Risch. 

Senator RISCH. Thank you, Mr. Chairman. 

Secretary Moniz, thank you for coming today. You and I had a 

lengthy discussion about the state of the law when you came to see 

me. 

Secretary MONIZ. Mm-hmm. 

Senator RISCH. Regarding the fact that we have a law that clearly designates where the permanent storage is, your staff called my 

office just recently in preparation for this hearing asking whether 

I was the one that you had the discussion with. So I’m assuming 

you’ve had some time to think about this. 

As you know when we talked I’m troubled by the fact that we 

have, we’re a Nation of laws. Whether we agree with the law or 

not when a law is passed that’s pretty much the way it is. 

The executive branch has commanded to execute the laws that 

by our Constitution is commanded to execute the laws that the legislature passes. The executive branch indeed has commanded to 

obey court orders when a court orders something. 

What we have here is a situation where we have a law that identifies Yucca Mountain for what it is. Whether you agree or disagree 

it is the law. But yet for some reason nobody seems to care. 

I mean, for instance the Commission on which you served was 

designated to do something other than what the law indicated. But 

in any event we go around the world criticizing other countries who 

don’t obey their own laws that they’re not nations of laws. We have 

this law. 

So with all due respect to my good friend from Nevada, we have 

this law. I’ve read the report. The report is, as you suggest, or 

we’re waiting for a stampede of people to show up and volunteer 

to have this storage facility in their State. 

So far the crowd hasn’t shown up. Indeed I’m not aware of anybody who has shown up and raised their hand and said this is 

what we want. 

So where do we go if indeed no one does step up? 

Secretary MONIZ. First of all we expect that there will be a number of communities coming forward with interest. It is—— 

Senator RISCH. Have you had any inquiries? 

Secretary MONIZ. We are not at a position where we can enter 

into that level of discussion. But there have been—— 

Senator RISCH. Has anybody even suggested that maybe they’d 

be interested? 

Secretary MONIZ. Absolutely. 

Senator RISCH. Who would that be? 

Secretary MONIZ. I really cannot discuss that. I think the communities would have to speak for themselves. 

Senator RISCH. I’m not asking the communities. You’re here. 

Secretary MONIZ. Yes. 
25 

Senator RISCH. Who has contacted you? 

That’s not classified information. 

Secretary MONIZ. No one has contacted me personally. 

Senator RISCH. Alright. 

Secretary MONIZ. I would say—— 

Senator RISCH. What states were you referring to when you gave 

that answer? 

Secretary MONIZ. I really am, Senator, with all due respect, I 

really cannot go there. Let’s say there are media reports in which 

a number of communities have expressed interest. 

Senator RISCH. Can you recite the media reports then for us. 

Secretary MONIZ. I believe there was one recently in Mississippi, 

for example, that expressed interest. 

Senator RISCH. How many of those have you seen? 

Media reports with people expressing interest? 

Secretary MONIZ. I would say published media reports, small 

number. I would be hard pressed to remember which ones they 

were. 

Senator RISCH. Small being in the low single digits? 

Secretary MONIZ. Single digits, yes. Yes. 

Senator RISCH. Alright. Let’s go back to my question. 

Suppose we don’t get this consensus within a State where the 

legislature or the Governor or the locals, everybody is on board. 

Suppose that doesn’t happen. Where do we go? 

Secretary MONIZ. Of course for the moment we have, what I consider to be an unsatisfactory situation in terms of spent fuel being 

stored in many, many locations. That’s not been suggested as unsafe, but it’s not a very good way to run the business. 

Senator RISCH. I think everyone agrees with you. 

But the question is what’s the alternative? 

I read the report. I read that you’re hoping you’re going to get 

this interest in this and people coming forward. You know where 

I’m headed here. 

I mean, we’ve got a law. At what point in time do we say, OK, 

there’s nobody of interest. We’re going to go back to the law. 

When do we do that? 

Secretary MONIZ. First of all as you are quite aware there is litigation going on right now in which we, the Department of Energy, 

are not a party to that litigation. When that is resolved we will see 

what the directives are and go from there. 

But again, as we have seen by experience in the last 20 years, 

it’s not workable without State consent. There are many things 

that need to be done by the Congress and by the State to make it 

work. Let’s face it the default option is a highly distributed storage. 

Senator RISCH. That is your default. 

Secretary MONIZ. It’s not my default. That is the ground truth. 

That is the ground truth. 

Senator RISCH. That is the default option. 

Secretary MONIZ. That is the ground truth. 

Senator RISCH. At what point do we say, OK we’re there. This 

is the ground truth that’s now coming into play or is that where 

we are now? 

Secretary MONIZ. What I’m certainly hoping about is that we 

have the authorities from Congress, as in S. 1240, to move forward 
26 

with this consent based approach to pursue the parallel tracks of 

storage and disposal. This is a system which I think has an excellent chance of, certainly a much better chance for sure, than our 

current prescriptive approach. 

Senator RISCH. I appreciate your optimism. Of course everyone 

wishes you well in that regard. But the question I have again is 

at what point are we through with searching for a single permanent storage facility? 

Secretary MONIZ. We will start the process of establishing the 

new system once we have the authorities from Congress. 

Senator RISCH. OK. 

What do you thinking that once you start? Ten years? Fifteen 

years? Twenty years? 

Secretary MONIZ. As we’ve said, I’m optimistic. It’s a hard push. 

But I think within 10 years we could have a first storage facility 

operating. 

Senator RISCH. My time is up. Thank you very much, Mr. Chairman. 

The CHAIRMAN. Senator Risch, thank you. We’re going to continue this discussion, you know, obviously. It seems to me if you 

can’t find a volunteer it stays where it is. I think we’d all say that’s 

unacceptable. 

As of today the best people in the country, the people who are 

most knowledgeable about these issues believe that we can have a 

consent-driven approach. So I think this debate is going to continue. I think your question is a valid one. 

Senator RISCH. Mr. Chairman, we all hope you’re right. As you 

know, Idaho has an agreement with the Department of Energy as 

a given date on which the material has to be moved. That’s why 

I’m very interested in seeing that the date is reached because it 

can’t stay where it is in Idaho per the agreement between the State 

of Idaho and the Federal Government. 

The CHAIRMAN. Having it not stay where it is, I think, is something that we’ll have widespread support. So we will continue this 

and I thank you. 

Senator Barrasso is next. 

Senator BARRASSO. Thank you very much, Mr. Chairman. 

Mr. Secretary, welcome back. 

Secretary MONIZ. Thank you. 

Senator BARRASSO. I’d like to discuss the impact of this legislation, if enacted, what it would have on Yucca Mountain. 

The Nuclear Waste Policy Act requires the Department of Energy 

to take Title II, collect and dispose of our Nation’s spent nuclear 

fuel. Federal law designates Yucca Mountain as the site for permanent geologic repository. The American people have spent about 

$15 billion developing a primary repository at Yucca. 

The 2010 Department of Energy tried to withdraw its license application for Yucca pending at the Nuclear Regulatory Commission. 

NRC’s review of this license application is now subject to a lawsuit 

before a Federal court. 

We’re now considering a bill which would transfer many of the 

Department’s nuclear waste management responsibilities to a new 

agency and terminate the Department’s remaining nuclear waste 

management responsibilities. So I’m concerned about the effect 
27 

that this bill might have on the Department’s license application 

for Yucca Mountain. 

So the question is if Congress passes this bill what would be the 

impact on the Department of Energy’s license application for Yucca 

Mountain and the NRC’s review of that application? 

Secretary MONIZ. Senator, clearly as you’ve said, the litigation is 

ongoing. We don’t know the results. Certainly, again, as I’ve said 

to Senator Risch before, we believe in following the law. 

That judgment, when it comes, if it directs the NRC to resume 

the license review, all I can say is the Department of Energy will 

do what it is called upon to do, subject to having the funds, of 

course, to do it. So we’ll go forward with that if that’s what the 

court rules. 

Senator BARRASSO. Are you saying that then the Administration 

wouldn’t argue that the bill has an impact on the NRC’s review of 

the Yucca license? 

Secretary MONIZ. I guess personally I don’t see any strong connection there. As I’ve said and others have said, the Blue Ribbon 

Commission has said, we need a system, first of all, that has storage and repositories in parallel. We need them both for a system 

that has the appropriate flexibility and also it’s a system which, in 

our view, can accelerate waste acceptance. 

So we need that in any case. 

Senator BARRASSO. So could I ask about a consent based process 

for siting of permanent repository for nuclear waste? 

The bill requires the Federal Government obtain the consent of 

the local community and the State prior to selecting a site for the 

repository. This requirement is consistent with the recommendations of the Blue Ribbon Commission on America’s Nuclear Future. 

You served on the Commission, very familiar with the report issued 

in 2012. 

In that report the Commission explained that other country, I 

think such as Sweden, have been able to select a site for a permanent repository by obtaining the consent of the local community. 

There’s plenty of evidence to suggest that local communities 

throughout the country may be willing to host a repository. There’s 

Nye County in Nevada continues to support a repository at Yucca 

Mountain. But I find little evidence to suggest that states would 

consent to host a repository. 

So the Commission’s report references though the waste isolation 

pilot plan in New Mexico. But however I understand this facility 

stores low radioactivity waste not high level. So, you know, kind of 

following on Senator Risch’s question. 

What, if any, evidence suggests that a State government would 

consent to host a permanent repository for high level waste? 

Secretary MONIZ. I think we have to go out and ask for proposals. 

Senator BARRASSO. Start a competition like Senator Alexander. 

Secretary MONIZ. Start a competition. 

Senator BARRASSO. The bill before us establishes a new Federal 

agency called the Nuclear Waste Administration. 

The bill would transfer many of the DOE’s nuclear waste management responsibilities to this new agency. 
28 

The Nuclear Waste Administration would be led by an administrator appointed by the President, confirmed by the Senate, 6 year 

term. 

The bill would authorize the administrator to spend funds collected from ratepayers to establish interim storage facilities and a 

permanent repository without further appropriation from Congress. 

So I understand the purpose of establishing a new agency is to 

ensure that the entity responsible for this nuclear waste management would be insulated from political pressure from the White 

House and from Congress. 

To me it’s unclear why we need to establish another Federal bureaucracy and one subject to less accountability. 

The bill requires the Federal Government to obtain the consent 

of the local community and the State prior to siting interim storage 

facilities and a permanent repository. 

So if the local communities and states truly support the siting 

process why do we need to reduce oversight of nuclear waste management? 

Secretary MONIZ. Certainly the intent of the Administration 

strategy is not to reduce oversight at all. It’s just providing oversight from Congress and others with a new entity. I mean, any 

agency of the government has oversight. This one is organized in 

a somewhat different way. 

Furthermore the Administration has said in its strategy that it 

could be quite flexible in terms of how an organization is set up. 

But the Commission and the Administration’s strategy both feel 

that certainly a new organization is needed to provide continuity, 

to have the authorities, for example, of accessing the funds when 

they are needed. 

So again, it’s really a question of the authorities that are vested 

in this organization. As I stressed in my opening statement, has 

the appropriate, in italics, autonomy in order to do its job. 

Senator BARRASSO. Thank you, Mr. Secretary. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Barrasso. 

Senator Heller is next. 

Senator HELLER. Mr. Chairman, thank you. Thanks for holding 

this hearing. 

Secretary, thanks for being here. 

Secretary MONIZ. Thank you. 

Senator HELLER. Certainly appreciate and it’s good to see you 

again. Obviously you and I have had this same conversation when 

you came to my office. We’ll continue, I’m sure, in the future as we 

move on. 

I am concerned that the Nuclear Waste Administration Act of 

2013, of which we’re talking about today, doesn’t completely take 

Yucca Mountain off the table. I am pleased that we are discussing 

legislation that recognizes the need for realistic solutions. I appreciate your candor and your optimism that we can get there in the 

foreseeable future. 

As you know Nevada is home to the proposed Yucca Mountain 

nuclear waste repository. I have long had serious concerns, as others in our delegation, including Senator Reid, our House members 
29 

about the safety of Yucca Mountain, the suitability of Southern Nevada as the final resting place for these spent nuclear material. 

The amendment to the Nuclear Waste Policy Act of 1987 legally 

compelled Nevada, a State without any nuclear power plants, to 

bear the sole burden of long term storage of the Nation’s nuclear 

waste. So with the stroke of a pen, objective evaluation of Yucca 

Mountain, at that point ceased. 

Many people here know that I don’t trust the IRS. I don’t trust 

CSNA. I certainly don’t trust the Federal Government to appropriately manage a repository at this site. 

So I hope that my position is clear. 

The CHAIRMAN. It is. 

[Laughter.] 

Senator HELLER. Thank you. 

But I would like to shift the discussion briefly. 

That is, as you know, the Department of Energy and the State 

of Nevada have been discussing shipments of nuclear waste from 

Oak Ridge, Tennessee to the Nevada test site. What I’m concerned 

about any plan to bring nuclear waste to Nevada, continued to be 

concerned about the reclassification of waste for DOE’s convenience. I believe that that’s the motivating factor here. 

So my concern is that DOE wants a partner in the State of Nevada on activities at the test site then we need DOE to act like a 

partner. Let me explain what I mean by that, Mr. Secretary. 

That is we need, I believe the DOE needs to be more responsible 

and more responsive to the Governor of the State, Governor 

Sandoval. I was disappointed that he had to put in repeated requests to discuss this particular issue with you. But I am grateful 

that that conversation did finally take place and that I hope that 

there are many more in the future. 

Do you recall that conversation that you had with the Governor? 

Secretary MONIZ. I certainly do, Senator. I would like to clarify 

something for the record. 

After the Governor’s first letter the Deputy Secretary met with 

him, there were considerable staff discussions. Then we had a conversation directly. We’re also trying to meet in Nevada in August, 

although our schedules don’t look like they’re matching up very 

well. 

But we will get together in August or September. 

Senator HELLER. OK. 

Secretary MONIZ. But I do want to emphasize the Deputy Secretary met with him in that intervening period. 

Senator HELLER. I appreciate the clarification on that. I was unaware of that. 

I think this discussion or this conversation that we had—well, 

before I go there. Give me your insight on how that conversation 

went with the Governor. 

Secretary MONIZ. I believe he called it frank and straightforward. 

We want to work with the State and with the Governor, with the 

delegation, on this and all other issues. Obviously we have a lot of 

joint equities between the Department and the State. 

Senator HELLER. Sure. Sure. 
30 

Secretary MONIZ. Point out that there were long discussions held. 

Many memos signed on specifically this particular low level waste 

movement. 

The Department agreed to special activities for the disposal. 

The Department agreed to do something unprecedented to move 

this in secure transports. 

So we are trying to work out an agreement to allow us to move 

forward. 

We’ve been encouraged. I mean, there’s activity going on in terms 

of appropriate State officials looking at the test site. I believe going 

to go to Oak Ridge to look at the materials directly. 

So we are working together to try to get clarification on all of 

these issues. 

Senator HELLER. I think the way he finally put it, we agree to 

disagree. 

What did you disagree on? 

Secretary MONIZ. The issue was one of the extent to which we 

had the agreement of the State organizations, the State government agency, for this transport. We frankly, and I explained to the 

Governor that, you know, the exchange of memos was saying this 

works with our special precautions. That allowed us to stage the 

work in Oak Ridge in a certain direction. 

The delay now is costing us quite a bit of money. 

Senator HELLER. OK. 

What I want to get out of this, Mr. Chairman, if I just can be 

brief is a commitment that you’ll work with our Governor and have 

continued conversations. I think transparency in this process, critically important for people in the State of Nevada and frankly for 

everybody here that’s asking questions and those in the audience. 

Secretary MONIZ. Right. 

Senator HELLER. So if I can just get that commitment from you 

that we can address these issues of transportation, transparency. 

Secretary MONIZ. Yes. 

Senator HELLER. Collaboration. 

Secretary MONIZ. You have the commitment. He has the commitment. Also, I might say, it was raised where there’s a discussion 

about potentially setting up, kind of, an ongoing working group. 

Senator HELLER. Good. 

Secretary MONIZ. To make sure there’s not miscommunication. 

Senator HELLER. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Heller. 

Senator Murkowski made some important points about transportation as well, so point well taken. 

Senator Scott is next. 

Senator SCOTT. Thank you, Mr. Chairman. 

Dr. Moniz. 

Secretary MONIZ. Senator. 

Senator SCOTT. Congratulations on becoming the Secretary or 

condolences which one does it feel like so far? 

[Laughter.] 

Senator SCOTT. Don’t answer that question. 

[Laughter.] 

Secretary MONIZ. We will some other time. 
31 

Senator SCOTT. My concerns with this legislation are less about 

the content, though I am a bit concerned about the creating a new 

Federal bureaucracy, and more about why Congress is allowing 

DOE to continue to break the law of the land, as we know it today. 

The law is very clear. Our Nation’s spent nuclear fuel and Defense waste should be deposited, disposed, at Yucca. Unfortunately 

ignoring or failing to enforce laws that happen to be politically inconvenient is becoming a regular occurrence with the Obama Administration, even with laws they passed as we have seen recently 

with the delay of the employer mandate on Obama Care. 

The lack of commitment by the Obama Administration to the law 

and the international agreement is also true of the MOX facility at 

the Savannah River site. This Administration has abandoned its 

commitment to the people of South Carolina and not only will it 

ultimately cost the taxpayers more money, perhaps about a billion 

dollars more, but this August hundreds of hard working South 

Carolinians could lose their jobs because of decisions by the Obama 

Administration. 

There is simply no excuse for this Administration to back track 

on their commitments for political reasons whether it’s MOX, 

Yucca Mountain or Obama Care. I understand that some might 

find Yucca to be political inconvenient, but that doesn’t really matter. It’s still the law of the land. 

The nuclear industry, like any other industry, needs certainty. 

They need Yucca Mountain. What good are laws passed by Congress if for any reason we can decide to enforce or not enforce 

them? 

What good are laws like Obama Care that the employer mandate 

continues to be pushed back which perhaps sounds good for a little 

while. But in the end it causes consternation and lacks certainty. 

The same is true in the nuclear footprint. We continue to find 

ourselves finding ways out of the laws of the land as opposed to 

the enforcement of the laws of the land. Apparently our friends in 

the House, who just voted 335 to 81, to maintain $25 million dedicated to restarting the review and construction of Yucca Mountain 

would agree with this position. 

My question for you, Dr. Moniz, are numerous. But we have submitted these questions before on April 18, the Deputy Secretary 

Poneman. But we haven’t had any answers in about 4 months. 

We’re still waiting for those answers to those questions. 

I have a question for you, sir. 

I’d love for you to spend some time at the Savannah River site. 

I know you’ve been there before. 

Secretary MONIZ. Mm-hmm. 

Senator SCOTT. I’d love for you to commit to coming back and 

perhaps touring it with me or coming back at some time in the 

very near future so that we can take a look at the MOX facility. 

Look at the fact that we’re between 50 to 60 percent finished 

with the construction. 

Take a look at the fact that there really are no other options for 

us to honor the agreement to dispose of that 34 tons of nuclear 

waste. 

Let’s take our weapons grade nuclear waste. 
32 

I think if we were in a position to take a serious look at the footprint. I understand the challenges that we face on the site. The 

progress that we’ve made on the site. The ability for the MOX facility to be that place where the agreement comes to life in a place 

where the law of the land continues to be honored. The place where 

the taxpayers don’t foot a bill in excess of $1 billion because the 

Administration changes its direction, it would be a positive sign for 

you to be there. 

Secretary MONIZ. Thank you, Senator. 

First of all let me say we will look into this question of the unanswered questions for the Deputy Secretary. We’ll look into that and 

get back to you. 

Senator SCOTT. That would be great. 

[The information referred to follows:] 

RESPONSES OF HON. ERNEST J. MONIZ TO QUESTIONS FROM SENATOR SCOTT

PLUTONIUM DISPOSITION

Question 1. How can the Administration reconcile a ‘‘slowdown’’ to the program 

that could ultimately kill the MOX project, and simultaneously pledge to uphold our 

agreement with the Russians? 

Answer. The United States remains committed to achieving the important nonproliferation mission associated with the disposition of excess weapon-grade plutonium and to our agreement with Russia. However, considering the unanticipated 

cost increases associated with the MOX fuel approach and the current budget environment, the Administration is conducting an analysis to determine whether there 

are options to complete the mission more efficiently. 

MOX PROJECT

Question 2. How much will the slowdown of the MOX project affect its cost and 

schedule? 

Answer. As mentioned in response to your first question, the United States remains committed to achieving the important nonproliferation mission associated 

with the disposition of excess weapon-grade plutonium and to our agreement with 

Russia. However, considering the unanticipated cost increases associated with the 

MOX fuel approach and the current budget environment, the Administration is conducting an analysis to determine whether there are options to complete the mission 

more efficiently. Cost and schedule impacts will be a central component in determining next steps for fulfilling our plutonium disposition commitments. 

Question 3. What are NNSA’s estimates on how much it would cost to shut down 

the MOX project? 

Answer. NNSA does not have a current estimate of the cost to shutdown the MOX 

project. 

Question 4. How much is the study expected to cost and where will the money 

come from—NNSA, NE, EM or elsewhere? 

Answer. The Administration is conducting an analysis of plutonium disposition 

options, which is being funded primarily through NNSA. 

Question 5. When is the study expected to be completed? 

Answer. The Department intends to use the analysis in order to inform the FY 

2015 budget. 

Question 6. What are the other alternatives and are they consistent with the USRussia agreement? 

Answer. The analysis includes continuing the current path of disposing of plutonium as MOX fuel as well as other technically and financially feasible options. The 

U.S.-Russia Plutonium Management and Disposition Agreement (PMDA) allows for 

other disposition paths if agreed to by both parties. 

Question 7. Will the US-Russia Agreement have to be amended if the Obama Administration shuts down the MOX project to use an alternative? 

Answer. The United States remains committed to achieving the important nonproliferation mission associated with the disposition of excess weapon-grade plutonium and to our agreement with Russia. The U.S.-Russia Plutonium Management 

and Disposition Agreement (PMDA) allows for other disposition paths if agreed to 

by both parties. 
33 

Question 8. What assurance do we have that Russia will be amenable to something other the MOX process? 

Answer. The U.S. will continue to engage Russia while conducting the options 

analysis and will work to continue progress in implementing the PMDA. 

Question 9. What national security assessments will be made if the MOX project 

is ultimately shut down? 

Answer. The Department has not cancelled the MOX project, and we cannot prejudge the outcome of the options analysis. 

Question 10. What options have been previously reviewed and eliminated and 

what has changed since the time of those studies that these same options should 

be considered again? What new serious options exist today that have not already 

been evaluated? 

Answer. As previously mentioned, the United States remains committed to achieving the important nonproliferation mission associated with the disposition of excess 

weapon-grade plutonium and to our agreement with Russia. However, considering 

the unanticipated cost increases associated with the MOX fuel approach and the 

current budget environment, the Administration is conducting an analysis to determine whether there are options to complete the mission more efficiently. The options include continuing the current path of disposing of plutonium as MOX fuel as 

well as other technically and financially feasible options. Previous reviews of the Administration’s plutonium disposition strategy will be taken into account in this new 

analysis. Some options are being analyzed that have been considered in the past; 

however, the new analysis will take into consideration new data and changes in the 

operating plans of DOE facilities. 

Question 11. How does the Administration intend to comply with the agreement 

with the State of South Carolina for the permanent disposition or removal of plutonium in the state? 

Answer. The Department understands our commitments under current legislation, 

and we will look to ensure compliance with the law as we analyze plutonium disposition options. 

Question 12. What will be the costs of complying with the agreement with the 

State of South Carolina and of non-compliance? 

Answer. Beginning in 2016, current law stipulates ‘‘economic assistance’’ in the 

form of fines and penalties of $1 million per day up to $100 million per year, subject 

to appropriations. 

Question 13. Does the Administration have a contingency for the removal of all 

the plutonium in the state of South Carolina? 

Answer. The Department understands the provisions of current law, and we will 

look to ensure compliance with the law as we analyze options. 

Question 14. If the MOX project is cancelled, will NNSA remove the plutonium 

from SRS, and if so, to where? How much will it cost to package, transport, safeguard and store this sensitive material? 

Answer. The Department understands the provisions of the current law, and we 

will evaluate the costs associated with meeting requirements as the path forward 

is determined. 

Question 15. If the plutonium storage facilities at Pantex are getting full, or, as 

the DOE IG found earlier this year may not be able to safely hold plutonium for 

much longer due to the age and condition of the storage bunkers, what is NNSA’s 

plan for the plutonium at SRS and Pantex? 

Answer. Although aged, the storage facilities at Pantex are safe and continue to 

be maintained by NNSA as mission critical assets. Additionally, a recent DOE IG 

study focused its concerns on bunkers which comprise a portion of the facilities used 

for plutonium storage at Pantex. As part of ongoing efforts to develop NNSA’s plutonium strategy, we are evaluating effective ways to safely store plutonium. 

Question 16. How many taxpayer dollars have been spent to date on DOE’s rulemaking regarding set-top box energy conservation requirements? 

Answer. To date, DOE has spent a total of approximately $2.9 million in contract 

funding and approximately $300,000 on Federal salary and benefits on the development of energy conservation standards and test procedure development for set-top 

boxes. This includes the development of the test procedure that is used to measure 

the energy efficiency of the set-top boxes. These test procedures are necessary as 

a foundation to both voluntary and regulatory programs. 

Question 17. How many taxpayer dollars does DOE anticipate spending during 

the lifecycle of this rulemaking process? 

Answer. A typical energy conservation standards rulemaking takes about 3 years 

to accomplish and costs approximately $3 to $5 million to complete, depending on 

the complexity of the rulemaking being performed. DOE is still early in the rule-
34 

1Lawrence Berkeley National Laboratory, Energy and Economic Impacts of U.S. Federal Energy and Water Conservation Standards Adopted From 1987 Through 2011 , http://ees.lbl.gov/ 

pub/energy-and-economic-impacts-us-federal-energy-and-water-conservation-standards-adopted1987-0 2Lawrence Berkeley National Laboratory, Energy and Economic Impacts of U.S. Federal Energy and Water Conservation Standards Adopted From 1987 Through 2011 , http://ees.lbl.gov/ 

pub/energy-and-economic-impacts-us-federal-energy-and-water-conservation-standards-adopted1987-0 

making process for set-top boxes, and acknowledges that funding of the process is 

subject to annual appropriations. 

Question 18. Has DOE contracted any of this rulemaking out to third parties? 

How much has been spent on the contractors? 

Answer. Yes, DOE has contracted approximately $2.9 million for energy conservation standards analysis and test procedure development for set-top boxes to date. 

The analysis was provided to industry and others and supported the voluntary 

agreement discussion. Test procedure development and finalization is necessary for 

both voluntary agreements and mandatory regulations. Contractors represent one 

way for DOE to access the expertise it needs to advance a rulemaking for the timeframe DOE requires that expertise. 

Question 19. In terms of carbon dioxide emissions savings, what percentage of the 

United States’ total carbon dioxide emissions do you anticipate DOE’s set-top box 

energy conservation standards will save? 

Answer. DOE has not proposed an energy conservation standard for set-top boxes, 

so it is not yet possible to estimate the carbon dioxide savings that could occur from 

an energy conservation standard at this time. If DOE were to propose an energy 

conservation standard, the proposed rulemaking would include an estimate of the 

potential carbon dioxide savings. 

Overall appliance and equipment standards are saving consumers significant 

amounts on their energy bills and helping avoid significant emissions of carbon dioxide. Based on a recent study by Lawrence Berkeley National Laboratory1, Federal 

energy conservation standards promulgated through 2011 saved consumers an estimated $42 billion on their utility bills and carbon emissions reductions attributed 

to the standards were realized at 176 million metric tons in 2011. 

Question 20. What percentage of total global carbon dioxide emissions do you anticipate DOE’s set-top box energy conservation standards will save? 

Answer. DOE has not proposed an energy conservation standard for set-top boxes. 

If DOE were to propose an energy conservation standard, the proposed rulemaking 

would include an estimate of the potential carbon dioxide savings. 

Question 21. If industry is willing to achieve the same cost and energy savings 

throughout a voluntary agreement, is it still DOE’s intention to proceed with a federal rulemaking process? 

Answer. DOE strongly encourages and will consider any non-regulatory agreement as an alternative to a regulatory standard. DOE recognizes that voluntary or 

other non-regulatory efforts by manufacturers, utilities, and other interested parties 

can result in substantial improvements to energy efficiency or reductions in energy 

consumption. In fact, as part of its rulemaking activities to consider a regulatory 

efficiency standard, DOE prepares a regulatory impact analysis. The regulatory impact analysis evaluates non-regulatory alternatives to standards, in terms of their 

ability to achieve significant energy savings at a reasonable cost, and compares the 

effectiveness of each one to the effectiveness of the proposed standards. 

Question 22. Considering the American taxpayers are funding this federal rule 

making process, how do additional layers of government red-tape ultimately benefit 

the taxpayers considering the industry has agreed to set-top box energy efficiency 

standards at no cost to the taxpayer? 

Answer. DOE’s statutory requirement is to maximize energy efficiency that is 

technologically feasible and economically justified (42 USC 6295 (o) (2)). DOE’s appliance standards program ensures that taxpayers are receiving cost-effective energy savings as justified by a thorough analysis of alternatives to determine which 

option conforms to this statutory requirement. 

DOE’s appliance and equipment standards program seeks to deliver significant 

benefits to consumers across the country across a wide variety of products. Overall 

appliance and equipment standards are saving consumers significant amounts on 

their energy bills and helping avoid significant emissions of carbon dioxide. Based 

on a recent study by Lawrence Berkeley National Laboratory2, Federal energy conservation standards promulgated through 2011 saved consumers an estimated $42 

billion on their utility bills and carbon emissions reductions attributed to the standards were realized at 176 million metric tons in 2011. 
35 

Secretary MONIZ. Second, of course, I want to emphasize the Administration and the Department of Energy, I personally, definitely, are committed to the law. With regard to the Yucca Mountain license, as we have discussed already, there’s litigation going 

on with the NRC and until that is resolved the path forward is unclear there. 

I do want to emphasize that, and this is what underpins the 

strong consent based approach embodied in the Blue Ribbon Commission report, the Administration strategy and S. 1240, all of the 

above, the fact is without both Federal and State laws and permitting being aligned, we just cannot move forward. 

So there are many issues. 

With regard to MOX, I think as you’re aware, in fact I had a 

team at Savannah River when you were visiting it, recently. 

Senator SCOTT. Yes. 

Secretary MONIZ. We have put a very high level team, working 

very hard with the contractors trying to understand their cost 

structure, why their costs went up so much. We are looking at alternatives. We are committed to disposing of the 34 metric tons of 

weapons grade plutonium. 

So we will be doing that. But the cost escalation just called for 

a re-examination of where we stand. Again, I would say, the contractors, CBI and AREVA are being very forthcoming in our discussions now, including, by the way, some management changes they 

have made in the project since we started our review. 

Senator SCOTT. As relates to the questions, Mr. Chairman. 

The CHAIRMAN. Yes, sir. 

Senator SCOTT. About the questions I’m happy to provide those 

questions for you so you can take them with you. 

Secretary MONIZ. OK. 

Senator SCOTT. The second part is that I think it’s really important for us to, once again, highlight the fact that the taxpayers are 

on the hook to the State of South Carolina for at least a million 

dollars a day, up to $100 million for the delay of the completion of 

this project. Frankly, other than the MOX facility, the ability to 

dispose of the weapons grade plutonium any other way and meet 

the agreement, as we discussed when you were going through the 

process of being nominated, doesn’t exist. Classification doesn’t get 

us there. 

For us to have a strategic retreat would still cost the taxpayers 

another billion dollars. So moving forward as we uncover and understand perhaps the delays, the construction costs, it would be an 

important part of the equation but moving forward, we should. 

Secretary MONIZ. Sir, let me say first of all the invitation to go 

to Savannah River. It’s one that I intend to take up. I think to 

make it productive we’re waiting to get through this review period 

so we know where things stand. 

Second, obviously I’m aware of the issues in terms of penalties, 

in terms of the plutonium that’s been moved into South Carolina. 

Let me say again, as with other of our sites, we very much appreciate the long collaboration that we’ve had with Savannah River, 

for sure. 

Third, the whole point of our review—and I might say, I think 

as you are aware, we are concerned about certainly maintaining 
36 

the skill base. We did have a reprogramming just about 2 weeks 

ago to help protect that skill base at the site. The point of the review, ultimately, is to make sure we are doing the best for the taxpayer in disposing of those 34 tons of plutonium. 

Senator SCOTT. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Scott. 

Senator Cantwell. 

Senator CANTWELL. Thank you, Mr. Chairman. Thanks for holding this hearing and trying to get a bipartisan approach on this 

with the Ranking Member, Senator Murkowski. 

I appreciate your focus both on civilian and Defense waste. I 

think you mentioned something earlier, before I got here. We were 

at a Commerce Committee markup and about this very issue as it 

related to your legislation. 

So I think your legislation takes an important step forward in 

calling out Defense waste. I think it should go a little further that 

Defense is not an afterthought. That we don’t go through this 

whole process again with the Blue Ribbon Committee approach of 

dialoging and then come to the end and it’s kind of a footnote. We 

need this to be a central part of the discussion. So that’s what I 

would be looking for in legislation. 

People know that Hanford in Washington State continues to 

make progress on an incredibly complex and costly endeavor. 

Thank you, Mr. Secretary for visiting that site. But we need an end 

point and a place for the recovered high level waste to go. 

To me, it’s unacceptable to our State, my constituents, to think 

that Hanford is just going to end up being that repository for that 

vast amount of high level Defense waste. 

So earlier this year DOE determined that 6 of the single shell 

waste tanks at Hanford are leaking radioactive, hazardous materials into the ground. So I’m not telling you anything you don’t 

know, Mr. Secretary. But to me, establishing a disposal site to isolate the high level Defense waste is the best, most comprehensive, 

cost effective way to deal with the immediate problem of a plan for 

the high level waste out of these tanks and to have that comprehensive plan and make sure that we have revisited this issue 

of comingling and come to a decision. Hopefully then have this plan 

for Defense waste updated every 5 years so that we’ve addressed 

this problem. 

So first, I guess my question is do you think our Nation should 

have an explicit plan on dealing with the Defense waste? How do 

we make sure that it doesn’t get lost in the debate this time 

around? 

Secretary MONIZ. Senator Cantwell, I certainly agree that we 

need a plan for high level waste. I think we will have a plan for 

high level waste. The question of comingling or not comingling, as 

the approach, is one that we are studying right now as recommended by the Commission and by the Administration strategy. 

Specifically I would say endorsed by S. 1240. 

So we really think it’s an important study to do. We expect to 

have results for you in the fall on that. 

Senator CANTWELL. That would explicitly re-evaluate whether 

separating them is the right? 
37 

Secretary MONIZ. It would look at all the factors involved in 

terms of comingling or not. 

Senator CANTWELL. OK. 

Secretary MONIZ. Recognizing that there are somewhat different 

waste forms, but technically they could be stored together. There’s 

many factors. We are bringing all those together in an ongoing 

study. 

Senator CANTWELL. I appreciate that before you said that a 

relook was necessary. I, you know, since your Hanford visit and 

you see the urgency. 

Secretary MONIZ. Mm-hmm. 

Senator CANTWELL. Having a plan that’s cohesive with the Defense waste that is going to be, you know, processed then a place 

for storage. Those are real near term dates. 

Secretary MONIZ. Yes. 

Senator CANTWELL. Would you agree a great challenge to us, as 

opposed to the commercial issues, which are longer and separate, 

can be separate issues. 

Secretary MONIZ. They, yes. 

Senator CANTWELL. As it relates to the science and storage. 

Secretary MONIZ. Look, we’re very, very committed to the high 

level waste movement, as well as the spent fuel. At Hanford there 

we have every intention of—there’s both the things in the future 

like the WTP waste that will be made into glass. There’s also other 

things like K-Basin fuel that’s been repackaged currently on the 

Central Plateau. 

So we need to have a place to move all of this. Again, we will 

come back with the results of our comingling study probably in a 

couple months. 

Senator CANTWELL. OK. 

Secretary MONIZ. Two, 3 months. 

Senator CANTWELL. Again, Mr. Chairman, this will be a key 

sticking point for me on this legislation. But I really appreciate you 

and Senator Murkowski’s leadership on a bipartisan effort. 

Thank you. 

The CHAIRMAN. Thank you, Senator Cantwell. 

As you know I feel very strongly that the area you’re discussing, 

particularly with respect to Defense and civilian waste, is a crucial 

one. We’ll be working very closely with you on—— 

Secretary MONIZ. Mr. Chairman. 

May I just make an editorial remark? 

The CHAIRMAN. Editorial remarks? You have license for editorializing. 

Secretary MONIZ. OK. I just wanted to say this is a little bit off 

topic, but with both of you here. I just wanted to say that my trip 

to Hanford was very interesting in seeing all the challenges that 

we have. 

I wanted to just add that not having been there, you know, in 

quite a few years, at least not with the vision of someone at Department of Energy. I was very impressed with the amount of 

progress that was made as well at the site since that last time. 

I think that sometimes we lose sight of that fact and at being 

able to have renewed access to a large part of the Columbia River 
38 

that goes through the site in 2015 and 2016. I mean, it’s really encouraging. 

So I think this in no way minimizing the huge challenge that we 

still have, but I do want to say that I was impressed as well by 

the progress. The plutonium finishing plant is well along in being 

removed and the new ground water pumping program for chromium. I thought it was actually also uplifting, at least in those 

ways. 

Senator CANTWELL. Yes, I know my time is expired, Mr. Chairman. 

The CHAIRMAN. Go ahead. 

Senator CANTWELL. But I would just say, thank you for those 

comments. 

But I think and that begets the point that as we debate this commercial issue we are going to make progress. DOE is going to hold 

them accountable to this timeline. Then we’re going to be sitting 

there with all of this waste in need of a repository that could be 

answered and dealt with just as we have isolated these various 

projects around the country and made progress or the sites within 

Hanford and made progress. DOE could make significant progress 

on Defense waste with a plan. 

Thank you. 

Secretary MONIZ. Thank you. 

The CHAIRMAN. Mr. Secretary, thank you. 

Nuclear waste legislation always passes unanimously. 

[Laughter.] 

The CHAIRMAN. You could see that again today. But I think 

you’ve been very, very constructive. We appreciate it. Suffice it to 

say, we couldn’t have gotten to this day where we actually had a 

bipartisan bill, in my view, had we not had your good counsel. 

Secretary MONIZ. Thank you so much. 

The CHAIRMAN. So we’ll excuse you at this time. I know we’ll be 

talking again very soon. Thank you. 

Secretary MONIZ. Thank you. Thank you, all. 

The CHAIRMAN. Our next panel. 

The Honorable Sally Young Jameson, Maryland Delegate, National Conference of State Legislatures. 

The Honorable David Boyd, National Committee on Electricity— 

the Committee on Electricity for the National Association of Regulatory Utility Commissioners. 

Mr. Marvin Fertel, President, Chief Executive Officer of the Nuclear Energy Institute. 

Mr. David Lochbaum, Director Nuclear Safety for the Union of 

Concerned Scientists. 

The Honorable Joe Garcia, Vice President, Southwest Area, National Congress of American Indians. 

The Honorable Chuck Smith, Vice Chair of the Energy Communities Alliance. 

Mr. Geoffrey H. Fettus, Senior Attorney for NRDC, the Natural 

Resources Defense Council. 

If you all would come forward. 

Thank you all for your patience and for coming. We’re going to 

make your prepared remarks a part of the hearing record in their 

entirety. I know there is always a compulsion to simply start read-
39 

ing. We’ll make your prepared remarks a part of the hearing record 

in their entirety and if you could just take a few minutes and talk 

to us and summarize your views that would be helpful. 

Ms. Jameson, welcome. 

STATEMENT OF SALLY YOUNG JAMESON, DELEGATE TO THE 

MARYLAND HOUSE OF DELEGATES, CHAIR, NUCLEAR LEGISLATIVE WORKING GROUP, NATIONAL CONFERENCE OF 

STATE LEGISLATURES 

Ms. JAMESON. Good afternoon everyone. 

Chairman Wyden, Ranking Member Murkowski and distinguished members of the committee, I am Sally Young Jameson, a 

member of the Maryland House of Delegates as well as a member 

of the National Conference of State Legislatures, Executive Committee, and I also Chair NCSL’s nuclear legislative working group. 

I appear before you today on behalf of NCSL which is a bipartisan 

organization representing the 50 State legislatures and the legislation—legislatures of our Nation’s commonwealths, territories, possessions and the District of Columbia. 

Mr. Chairman, we want to thank you for the opportunity to testify. I would respectfully request that a copy of NCSL’s radioactive 

waste policy directive be submitted for the record as you mentioned 

earlier. 

The CHAIRMAN. Without objection, it’s ordered. 

Ms. JAMESON. Thank you. 

Mr. Chairman, NCSL applauds your continued efforts, as well as 

the efforts of Senator Murkowski, Feinstein and Alexander, to develop bipartisan legislation needed to establish a program to manage the Nation’s spent nuclear fuel and high level radioactive 

waste. The release of the Nuclear Waste Administration Act of 

2013 represents a good step forward in this conversation. NCSL 

urges Congress to move expeditiously to review and act on this legislation while taking into account the proposals contained herein. 

With regard to the potential siting of a repository or interim storage facility, NCSL recognizes the need to develop processes that 

are efficient and effective in order to enable a constructive environment for these efforts. However, efforts to streamline this process 

do not necessitate overlooking the role of State legislatures in the 

process. In order to ensure that such a decision accurately reflects 

appropriate levels of State consensus, State legislatures and not 

just the State’s Governor, must be consulted regularly. 

Ensuring such consultation respects the traditional role of State 

legislatures in the appropriation of funds and performing program 

oversight. 

One option to consider would be to add the phrase, presiding officer of each legislative chamber,’’ to all references to the Governor 

or the duly authorized official of the State when mentioned with regards to site selection, study and siting for both the repository and 

storage facility processes. This would make it consistent with the 

Nuclear Waste Policy Act of 1982, section 117 which clearly states 

that the Department of Energy shall consult and cooperate with 

the Governor and legislature of such State. 

NCSL supports the creation of a public/private partnership to 

manage the back end of the fuel cycle as was recommended by the 
40 

final report of the Blue Ribbon Commission on America’s Nuclear 

Future rather than the establishment of a new Federal agency as 

described in the bill. Given the importance placed on State, local 

and tribal consultation in the bill, the committee should consider 

adding such representation to the oversight board and other advisory committees. 

NCSL supports your efforts to direct annual funding within the 

Nuclear Waste Administration Working Capital Fund and the Nuclear Waste Fund for their intended purpose of managing radioactive waste ensuring that the funds not be subject to non-related, 

Federal discretionary spending. These funds should be used for developing permanent disposal and consolidated interim storage facilities as well as for the use of financing mechanisms and incentives to host voluntary communities. 

NCSL supports the bill’s language that provides for advanced notification to State, through which transportation of spent nuclear 

fuel and high level radioactive waste will take place. Additionally 

State, local and tribal governments should be involved in a meaningful manner with regard to the development and implementation 

of transportation quality assurance measures including radiation, 

emissions standards and transportation equipment. 

I would like to take just a moment and remove my NCSL hat. 

The CHAIRMAN. We’re just a little short of time, Ma’am because 

you’re over and we’ve got so many other witnesses. 

Ms. JAMESON. I’m sorry. 

The CHAIRMAN. So if you could summarize, we will make your— 

for all of you, every word will be a part of the permanent record. 

Ms. JAMESON. I would just like to say that as a legislator with 

a nuclear power plant, Calvert Cliffs, is in my region. I just want 

you to know how important it is that we have a national repository. 

We have over 72 modules of nuclear waste already stored onsite. 

There’s 60 more to be, you know, also added. 

We want to see that waste removed from our community. Our 

constituents really would like to see the U.S. Government fulfill its 

promise to its people. 

Thank you very much. 

[The prepared statement of Ms. Jameson follows:] 

PREPARED STATEMENT OF SALLY JAMESON, DELEGATE TO THE MARYLAND HOUSE OF

DELEGATES, CHAIR, NUCLEAR LEGISLATIVE WORKING GROUP, NATIONAL CON- FERENCE OF STATE LEGISLATURES

DEVELOPING A SOLUTION

Chairman Wyden, Ranking Member Murkowski and distinguished members of 

the Senate Energy and Natural Resources Committee, I am Sally Jameson, member 

of the Maryland House of Delegates, as well as a member of the National Conference of State Legislatures (NCSL) Executive Committee and Chair of NCSL’s Nuclear Legislative Working Group. I appear before you today on behalf of NCSL, a 

bi-partisan organization representing the 50 state legislatures and the legislatures 

of our nation’s commonwealths, territories, possessions and the District of Columbia. 

We thank you for the opportunity to testify and inform you and the other members 

of the committee about NCSL’s work on nuclear energy issues facing the nation including waste disposition and storage. 

Mr. Chairman, NCSL applauds your continued efforts as well as the efforts of 

Senators Murkowski, Feinstein and Alexander to develop bipartisan legislation 

needed to establish a program to manage the nation’s spent nuclear fuel and high 

level radioactive waste. NCSL has long been on record in support of efforts by both 

Congress and the administration, including testifying before the Blue Ribbon Com-
41 

* Documents have been retained in committee files. 

mission on America’s Nuclear Future (BRC), to address the fundamental questions 

necessary for developing a solution to address spent nuclear fuel storage and high 

level radioactive waste management. The release of the Nuclear Waste Administration Act of 2013 (NWAA), represents a step forward in this conversation, and NCSL 

urges Congress to move expeditiously to review and act on this legislation, while 

taking into account the proposals contained herein. 

NCSL has an extensive history of working on nuclear energy issues through its 

Nuclear Legislative Working Group, which 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 helps to form NCSL policy directives on this and other topics. I am currently the chair of this working group and have valued the opportunity to discuss 

these important issues with my peers from around the country. I also have the 

privilege of serving on the NCSL Energy Supply Task Force created in 2009 by the 

NCSL Executive Committee, which explores current energy policies in the United 

States and also makes recommendations for changes to current NCSL policy directives related to energy issues. 

NCSL recognizes that nuclear power is an integral part of a national energy plan 

but also understands the need to address certain issues including transportation, 

storage and disposal of used nuclear fuel. State legislators can and do play a significant role in developing nuclear energy policy, whether it be in statehouses across 

the country, town hall meetings with our constituents or meetings with our respective Congressional delegation. 

It is critical that the Committee recognize the value of a strong partnership with 

state legislators who can help move policy forward in the states and in Congress. 

Together we can work on behalf of our mutual interests and common goals. As you 

are aware, NCSL has several applicable policy directives* on these topics, which 

have been submitted along with my written remarks to the Committee in advance 

of this hearing. NCSL’s recently reauthorized Radioactive Waste Management Policy Directive and National Energy Policy Directive serve as the foundation for 

NCSL’s recommendations to the committee. 

CONSENT BASED SITING

With regard to the potential siting of a repository or interim storage facility, 

NCSL recognizes the need to develop processes that are efficient and effective in 

order to enable a constructive environment for these efforts. However, efforts to 

streamline this process do not necessitate overlooking the role of state legislatures 

in the process. In order to ensure that such a decision accurately reflects appropriate levels of state consensus, state legislators, and not just a state’s governor, 

must be consulted regularly. Ensuring such consultation respects the traditional 

role of state legislatures in the appropriation of funds and performing program oversight. 

There are a number of legislative options to ensure that the consultation process 

can integrate all aspects of state government and ensure state legislative input. One 

option to consider would be to add ‘‘presiding officer of each legislative chamber’’ to 

all references to the ‘‘Governor or duly authorized official of the state,’’ when mentioned with regards to site selection, study and siting for both the repository and 

storage facility processes. This would make it consistent with the Nuclear Waste 

Policy Act of 1982 section 117, which clearly states that the Department of Energy 

‘‘shall consult and cooperate with the Governor and legislature of such State.’’ NCSL 

strongly urges this committee to ensure adherence to this requirement as it moves 

forward to develop a program for the long-term treatment and disposal of high-level 

radioactive waste. 

NUCLEAR WASTE ADMINISTRATION

NCSL supports the creation of a public-private partnership to manage the back 

end of the nuclear cycle, as was recommended by the final report of the BRC, rather 

than the establishment of a new federal agency as described in the NWAA. Additionally, NCSL would note that given the importance placed on state, local, and tribal consultation in the bill, the committee should consider adding such representation 

to the Oversight Board and other advisory committees, as discussed in Section 205. 

In order to not overburden the board structures, the appointments could be made 

through the national organizations representing state, local and tribal elected officials such as NCSL. 
42 

INTERIM STORAGE LINKAGES

NCSL supports federal action to develop consolidated interim storage facilities to 

temporarily house high level radioactive waste inventories until a permanent repository is operational. With respect to the issue of establishing a linkage between 

progress on development of a repository and progress on development of a storage 

facility, NCSL neither supports nor opposes such a linkage. However, NCSL does 

believe that consolidated interim storage facilities should be licensed for a specific, 

limited period of time not to exceed 25 years. 

WORKING CAPITAL FUND

NCSL supports your efforts to direct annual funding within the Nuclear Waste 

Administration Working Capital Fund and the Nuclear Waste Fund for their intended purpose of managing radioactive wastes, ensuring that the funds not be subject to non-related federal discretionary spending. These funds should be isolated for 

developing permanent disposal and consolidated interim storage facilities as well as 

for the use of financing mechanisms and incentives to voluntary host communities. 

NUCLEAR WASTE TRANSPORTATION

NCSL supports the bill’s language that provides for advanced notification to 

states through which transportation of spent nuclear fuel and high level radioactive 

waste will take place. NCSL also supports efforts to provide assistance to states 

from the administrator of the Nuclear Waste Administration to train public safety 

officials, acquire safety response equipment and other safety programs related to the 

transportation of nuclear waste. Additionally, state, local and tribal governments 

should be involved in a meaningful manner with regard to development and implementation of transportation quality assurance measures including radiation emissions standards, cask designs, support facilities, and transportation equipment. 

AN ISSUE CLOSE TO HOME

I would like to take a minute and remove my NCSL hat and speak to you as a 

Maryland legislator. The Calvert Cliffs Nuclear Power Plant, located on the Western 

Shore of the Chesapeake Bay, sits just a few miles outside of Maryland’s 28th District, my home district. Calvert Cliffs generally accounts for about one-third of the 

state’s energy generation, and produces enough power to light up every home and 

business in Baltimore according to the Maryland Power Plant Research Program. 

However, due to the lack of a national fuel repository or interim storage site, the 

plant’s used fuel is forced to remain on site. The plant’s independent spent fuel storage installation (ISFSI) currently contains 72 modules with a total of 1,920 fuel assemblies in dry fuel storage and 1,432 fuel assemblies currently in storage in the 

Spent Fuel Pool. Additionally, 24 more modules will be added later this year and 

another 36 are anticipated to be added in the future. The issue of developing a solution to the safe and secure storage of high-level radioactive waste and used nuclear 

fuel is one of great importance to both myself and my constituents. 

The Nuclear Waste Administration Act of 2013 continues to move the conversation on nuclear waste management issues forward and I urge Congress to review 

the above proposals and act expeditiously on this legislation. Again, thank you for 

the invitation to speak with you today on these important issues. NCSL stands 

ready to work with this committee to ensure that state policymakers are involved 

in creating a timely, cost-effective solution to this important public policy challenge. 

The CHAIRMAN. Very good. 

Mr. Garcia. 

STATEMENT OF JOE GARCIA, SOUTHWEST AREA VICE 

PRESIDENT, NATIONAL CONGRESS OF AMERICAN INDIANS 

Mr. GARCIA. Good afternoon, Honorable Chairman Wyden and 

Ranking Member Murkowski and Energy committee members. Special greetings to Senator Heinrich, but he just left, so he missed 

that. 

I’m Joe Garcia, Head Councilman from Ohkay Owingeh, former 

president of the National Congress of American Indians and currently serving as the NCAI Southwest Area Vice President. 
43 

The NCAI is the oldest and largest national tribal advocacy organization in the country. On behalf of the NCAI membership of over 

250 tribes, we thank you for conducting this hearing and inviting 

the NCAI to share some of the issues facing tribal governments 

and communities regarding spent nuclear fuel and radioactive 

waste storage disposal and transportation. 

I fully understand this hearing is being held not as a general 

overview of the nuclear waste problems existing in this country, 

but about S. 1240 which addresses disposition of commercial generated nuclear fuel. However, it is incumbent on our organization 

to remind everyone of the long standing detrimental impacts from 

environmental contamination and environmental health issues that 

nuclear activities continue to have on tribal lands that originated 

during the World War II era. 

Native peoples contributed a significant share in the war effort 

as Native warriors volunteered, fought and died to protect our 

homelands and this country. Tribal governments surrendered hundreds of thousands of acres of tribal lands for national defense purposes which were supposed to be returned to the tribes. That has 

not occurred. 

Additionally uranium mined and milled on tribal lands supplied 

the atomic materials for research and development of weaponry 

that ended the war. There are contaminated places that require 

immediate mitigation. 

Legacy radioactive defense waste has destroyed sacred areas. 

Stored radioisotopes are seeping into ground water. 

River systems containing habitat for native fish and other foods 

and medicines critical to the cultural survival of native peoples. 

The NCAI urges this committee to conduct an oversight hearing 

to assess and address the myriad of issues mentioned. 

Following enactment of the Nuclear Waste Policy Act of 1982, the 

NCAI managed a cooperative agreement with the Department of 

Energy, Office of Civilian Radioactive Waste Management to provide tribal governments with updates and implementation of the 

act. Under the DOE the cooperative agreement the NCAI created 

the National Indian Nuclear Waste Policy Committee and coordinated numerous meetings involving tribal government, DOE, Nuclear Regulatory Commission and Federal emergency management 

officials to discuss siting and transportation status and to relay 

tribal concerns. 

Tribal governments varied in their view of NWPA implementation. Many bands of Shoshone and Paiute tribes were adamantly 

opposed to the siting of a permanent repository at Yucca Mountain 

because the location is in the middle of their traditional territory. 

Their resistance also came from being left out of the early stages 

and eventual finding of no significant impact of the environmental 

impact statement. 

These tribes did not have the technical staff or the resources to 

fund western science studies. But they are well versed in traditional ecological knowledge. Nevertheless they were rendered helpless by a systematic definition of ‘‘affected Indian tribes’’ as defined 

in the 1982 Nuclear Waste Policy Act. 

Tribes like the Prairie Island Indian Community, whose island 

reservation is immediate adjacent to the Prairie Island Nuclear 
44 

Generating plant owned by Excel Energy, Inc., need to have a repository built to lessen the risk to their tribal communities. On 

Prairie Island spent nuclear fuel is stored in above ground casks 

a mere 600 yards from the nearest tribal citizen’s homes and less 

than one mile from the Tribal Clinic Government Offices Gaming 

Enterprise and other facilities. 

The definition of affected Indian tribes should be amended in 

both the Nuclear Waste Policy Act and the Nuclear Waste Administration Act to parallel the language of affected unit of general local 

government section to include any Indian tribe that are contiguous 

with the State or general local government unit that has jurisdiction over the site of repository or storage facility so that these and 

other similarly affected tribes can participate fully in all activities 

and proceedings. 

It appears I’m running out of time. 

But in conclusion I would like to see that any efforts having to 

do with S. 1240 that we are ensured that we have meaningful collaboration and consultation with the tribes and the members at 

large of whoever has jurisdiction. So we ensure that this thing will 

happen. But it will lead to good, successful effort from all across 

the land. 

So we ask that of this committee. Thank you so much for allowing NCAI to participate in this hearing. 

[The prepared statement of Mr. Garcia follows:] 

PREPARED STATEMENT OF JOE GARCIA, SOUTHWEST AREA VICE PRESIDENT, 

NATIONAL CONGRESS OF AMERICAN INDIANS

Honorable Chairman Wyden and Ranking Member Murkowski and Energy Committee members: 

I am Joe Garcia, Councilman from Ohkay Owingeh, and Southwest Area Vice 

President for the National Congress of American Indians, the oldest and largest national tribal advocacy organization in the country. On behalf of the NCAI membership of over 250 tribes we thank you for conducting this hearing and inviting the 

NCAI to share some of the issues facing tribal governments and communities regarding spent nuclear fuel and radioactive waste storage, disposal and transportation. 

I fully understand this hearing is being held not as a general overview of the nuclear waste problems existing in this country, but about S. 1240 which addresses 

disposition of commercial generated spent nuclear fuel. However, it is incumbent on 

our organization to remind everyone of the longstanding detrimental impacts from 

environmental contamination and environmental health issues that nuclear activities continue to have on tribal lands that originated during the World War II era. 

Native peoples contributed a significant share in the war effort as native warriors 

volunteered, fought and died to protect our homelands and this country. Tribal governments surrendered hundreds of thousands of acres of tribal lands for national 

defense purposes which were supposed to be returned to the tribes. That has not 

occurred. Additionally uranium mined and milled on tribal lands supplied the atomic materials for research and development of weaponry that ended the war. 

There are contaminated places that require immediate mitigation. Legacy radioactive defense waste has destroyed sacred areas; stored radioisotopes are seeping 

into groundwater, river systems containing habitat for native fish and other foods 

and medicines critical to the cultural survival of native peoples. The NCAI urges 

this committee to conduct an oversight hearing to assess and address the myriad 

issues mentioned. 

Following enactment of the Nuclear Waste Policy Act of 1982, the NCAI managed 

a cooperative agreement with the Department of Energy Office of Civilian Radioactive Waste Management to provide tribal governments with updates on implementation of the Act. Under the DOE cooperative agreement, the NCAI created the National Indian Nuclear Waste Policy Committee and coordinated myriad meetings involving tribal government, DOE, Nuclear Regulatory Commission, and Federal 
45 

Emergency Management officials to discuss the siting and transportation status and 

tribal concerns. 

Tribal governments varied in their view of NWPA implementation. Many bands 

of Shoshone and Paiute tribes were adamantly opposed to the siting of a permanent 

repository at Yucca Mountain because the location is in the middle of their traditional territory. Their resistance also came from being left out of the early stages 

and eventual finding of no significant impact of the Environmental Impact Statement. These tribes did not have the technical staff or the resources to fund western 

science studies but they are well versed in traditional ecological knowledge. Nevertheless they were rendered helpless by the systematic definition of ‘‘affected Indian 

Tribes’’ as defined in the 1982 Nuclear Waste Policy Act. 

Tribes like the Prairie Island Indian Community whose island reservation is adjacent to the Prairie Island Nuclear Generating Plant owned by Excel Energy Incorporated, needs to have a repository built to lessen the risk to their tribal community 

members which incudes tribal government offices, tribal citizens’ homes, and their 

gaming facility. 

In the last search for an interim storage facility, Monitored Retrieval Storage, several tribes were negotiating with the Office of the Nuclear Waste Negotiator, the 

independent entity charged with this responsibility. Five tribes and seven states 

had stepped forward before the process was closed. The Skull Valley Goshute Tribe 

came the closest despite some tribal community’s citizens resisting the effort, however the most damaging opposition was the state in enacting state laws and lobby 

for federal legislation to derail the project. 

These examples of self-determination in exercising tribal sovereignty are intact 

and you will likely see a repeat of tribes supporting and opposing in varying degrees 

S. 1240 implementation if it is enacted. 

It appears that recommendations from the Blue Ribbon Commission on America’s 

Nuclear Future are incorporated into S. 1240. One of the Blue Ribbon Commission’s 

Principal Findings on Siting Processes and Related Issues states that, ‘‘‘‘State, tribal 

and local and tribal officials have primary responsibility for public safety and protection of the environment. These officials should be fully involved in the development of storage and transportation solutions and should be the primary interface 

with their communities. Their cooperation and involvement in past and ongoing 

projects has been a critical element of success.’’ 

S. 1240 contains provisions regarding the guidelines for the consideration of storage facilities that call for the Administrator to evaluate the extent that states and 

tribes will support the proposal. We support this language, and encourage you to 

go even further in ensuring consultation with affected tribal governments. 

Section 205 of the S. 1240 would establish the Nuclear Waste Oversight Board. 

Among the Board’s duties is to oversee use of funds in complying with the mission 

plan. The Oversight board should include professional staff with experience in working with and for tribal governments to ensure that there is ongoing tribal government consultation regarding programmatic and policy development. The professional 

staff should be able to assess the policy and programs information dissemination 

and required consultation to fulfill trust obligations regarding all impacts to trust 

lands and resources from upon which the trust relationship is based. 

One of the critical issues surrounding the Nuclear Waste Policy Act and S. 1240 

is transportation of spent nuclear fuel through state, tribal and local jurisdictions. 

Section 180(c) of the Nuclear Waste Policy Act calls for the safe and routine transportation of its materials. Safe and routine transportation includes notice to state 

and tribal governments, community and citizen public safety awareness and radiological emergency response capability in the event of a transportation accident. 

Tribal governments have less emergency management capacity than state counterparts due to tribal ineligibility to access the hundreds of millions of dollars for 

these purposes which has been provided by federal agencies including the Federal 

Emergency Management Agency (FEMA) and the Department of Homeland Security 

(DHS). We urge that the Committee to call upon DOE, FEMA, and the DHS to work 

with tribes on potential transportation routes to assess current radiological emergency response capability and develop programs and policies to achieve the capability required for safe and routine transportation. Otherwise this will be another 

unfunded mandate for tribal governments which have public safety responsibility 

for the likelihood of triple figure radioactive waste shipments but lack the necessary 

emergency management infrastructure. 

We believe tribal governments retain regulatory authority over commercial radioactive waste shipments as they have over other hazardous materials and are working to transportation departments with inspection, permitting and other oversight 

authority. It is possible that tribes impacted by the proposed spent nuclear fuel 

shipments may seek to create and manage transportation departments to oversee 
46 

radioactive materials shipments, which is well within their rights. However a tribal 

regulatory scheme also might include comity and shared responsibilities with surrounding jurisdictions. 

Last month the Nuclear Regulatory Commission issued its Final Rule on Advanced Notification to Native American Tribes of Certain Shipments of Nuclear 

Waste. The implementation action requires licensees to provide advanced to federally recognized tribal governments notice of certain shipments of irradiated reactor 

fuel and other nuclear wastes that pass within or across their reservations. This 

rulemaking began over 15 years ago but we believe the NRC is fulfilling its fiduciary responsibility in following through with this Final Rule. 

Our last issue, not specifically contained in S. 1240 but of equal importance is 

that we need the committee’s assistance to guide the DOE to get back on track regarding its duties and responsibilities under the DOE Indian Policy, to work on a 

government to government basis with tribes regarding the overall impacts of the 

Nuclear Waste Policy Act, and if enacted, the Nuclear Waste Administration Act. 

The DOE Office of Nuclear Energy is currently funding several interstate regional 

organizations to attend meetings and disseminate information to state governments 

and citizens about current and proposed radioactive waste transportation campaigns. To their benefit, states have multiple streams of input into the process and 

issues. However tribes do not have the same opportunity as the Office of Nuclear 

Energy has chosen to not support an intertribal organization for these purposes despite inquires and requests from tribal official and the NCAI. 

The absence of an entity to provide an opportunity and venue to discuss the current status of DOE activities with tribal officials is contradictory to the intent and 

purpose of the DOE Indian Policy. We urge the Committee to inquire of the Office 

of Nuclear Energy their reasons for not supporting an inter-tribal organization to 

serve the tribes in the same capacity as currently funded inter-state organizations. 

As the effort to resolve accumulation of spent nuclear fuel and radioactive waste 

moves forward, we urge this committee to be mindful of the legacy of impacts and 

the cost tribal governments and peoples have borne in defense of their homelands 

and this country. We believe the resolution of these problems will be beneficial to 

all citizens of this country. Thank you again for the opportunity for the NCAI to 

share the views of our organization and constituent tribal governments. 

The CHAIRMAN. Mr. Garcia, thank you, sir. 

The Honorable David Boyd. 

STATEMENT OF DAVID C. BOYD, CHAIRMAN, NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS COMMITTEE ON ELECTRICITY, VICE CHAIR, MINNESOTA PUBLIC 

UTILITIES COMMISSION 

Mr. BOYD. Good afternoon, Chairman Wyden, Ranking Member 

Murkowski and members of the committee. My name is David 

Boyd. I’m a Commissioner with the Minnesota Public Utilities 

Commission and Chair of the Electricity Committee for the National Association of Regulatory Utility Commissioners or NARUC. 

As economic regulators responsible for the rates paid by commercial, industrial and residential ratepayers in the U.S., we have a 

long history and record of engagement on these issues. In my 

State, Minnesota derives about 25 percent of its electricity from 3 

nuclear reactors on two sites. One that was mentioned by the Senator and by Mr. Garcia and have contributed approximately $750 

million from those reactors to the Nuclear Waste Fund. 

While not directed included or excluded from the pending legislation or the Blue Ribbon Commission report, NARUC’s position on 

the Yucca Mountain project is clearly articulated via our numerous 

resolutions on the matter. As quasi judicial bodies regulators are 

guided by statutes and rule on a daily basis in the Nuclear Waste 

Policy Act is crystal clear. Review of the DOE license application 

is mandated by the law and review of that license application must 

be completed. 
47 

More recently, however, we’ve also expressed support for the 

BRC findings as outlined in a resolution from this past February. 

Those recommendations in the Yucca Mountain situation are not 

mutually exclusive. We believe that the two efforts can be pursued 

in parallel in order to manage our Nation’s used nuclear fuel and 

create a sustainable program for such a purpose. 

With respect to S. 1240 we have a few observations. 

But we do have concerns about liability. We feel that requiring 

utilities to relinquish their rights to damages owed in order to have 

access to storage facilities should not be legislated. While this may 

relieve a burden on taxpayers it improperly shifts that burden and 

liability to the ratepayers. 

In terms of management of the program we do support moving 

this program outside of the Department of Energy and feel strongly 

that we must insulate the program from politics as much as is possible. 

Toward that end we prefer the single purpose, Federal corporation model where at a minimum an entity with a board of directors 

charged with selecting the corporation’s chief executive officer rather than a single administrator. 

We do, very much, appreciate the changes from earlier drafts of 

the bill but remained concerned that such proposed structure 

would lead to an impasse like the one we have now. 

Success will require clear legislative authority and funding. We 

feel strongly that NARUC must be on any new boards to represent 

the interest of the ratepayers. 

We’re pleased to see the nuclear waste fee assessments and Defense contributions directed to the working Capital Fund of the 

new entity and would suggest that interests, thrown off by the corpus of the Nuclear Waste Fund and single one time payments 

should be similarly directed to the working Capital Fund. The corpus of the Nuclear Waste Fund must be accessible to this new organization. We know it’s not needed now, but it will be at some 

time in the future. 

We could imagine phase transfers of that corpus over time to the 

new entity or some other mechanism that you may decide is reasonable and appropriate. But we feel it’s important that you clearly 

articulate how that fund will be available to the new entity when 

it’s needed. 

We do support interim storage for shut down plants called pilot 

storage facilities for priority waste in the bill. With respect to additional storage facilities for non priority waste details regarding 

scope, timeline and cost effectiveness remain unsupported and unclear. Therefore the new management entity should be directed to 

timely develop only those additional storage facilities deemed necessary and cost effective following extensive analysis and stakeholder input. 

We support the consent based siting mechanism and feel that 

that’s a process that could be used for the second repository as well 

as for interim facilities. 

The Department of Energy should act now to facilitate potential 

host interest. We’d emphasize the need to maintain flexibility for 

potential hosts to negotiate creative and effective solutions. The 
48 

concern is that a cumbersome or prescriptive process will actually 

stifle that kind of creative dialog. 

We also need to define what an enforceable agreement is as soon 

as possible so that the Nation can plan for and rely on these facilities. 

Thank you for your leadership in advancing these issues. We 

look forward to a continued engagement as we implement an improved program for used nuclear fuel management. I’ll gladly attempt to answer your questions. 

Thank you. 

[The prepared statement of Mr. Boyd follows:] 

PREPARED STATEMENT OF DAVID C. BOYD, CHAIRMAN, NATIONAL ASSOCIATION OF

REGULATORY UTILITY COMMISSIONERS (NARUC), COMMITTEE ON ELECTRICITY, VICE CHAIR, MINNESOTA PUBLIC UTILITIES COMMISSION

Good afternoon Chairman Wyden, Ranking Member Murkowski, and Members of 

the Committee. My name is David Boyd. I am a Commissioner from the Minnesota 

Public Utilities Commission and the Chair of the National Association of Regulatory 

Utility Commissioners (or NARUC) Committee on Electricity. I am honored by the 

invitation to appear before you today. 

NARUC was founded in 1889. Our members include utility commissions in all 

fifty States, D.C., and U.S. Territories. Like Congress and this Committee, NARUC 

is bipartisan. I represent a group of in-State experts whose interests are precisely 

aligned with each Senator in this room. It is unlikely any other stakeholder in this 

sector cares more about the impact of the current impasse on Yucca Mountain and 

the continuing build-up of waste in 33 States across the country on the citizens of 

your States, than the NARUC member residing in your State. Our members remain 

directly responsible for retail electricity rates and service in each of your States. 

As your States’ electric utility regulators, we are intimately aware of the rapidly 

accruing costs on both ratepayers and taxpayers. Because of the program failures, 

your constituents, either through electric rates or through the taxpayer-funded 

Judgment fund, have paid billions for re-racking of the utility spent fuel pools to 

accommodate more spent fuel, expensive on-site dry cask storage, increased security 

and to characterize the Yucca Mountain repository site. And they continue to pay. 

NARUC member commissions in the 40 States served by nuclear-generated electricity have been involved in the troubled history of nuclear waste disposal since 

1982. In the intervening thirty-plus years, we have been an integral component of 

the waste disposal policy debate, testifying frequently, engaging the Blue Ribbon 

Commission on America’s Nuclear Future (BRC) at multiple levels, and suing the 

federal government to require compliance with the laws (i) mandating review of the 

Yucca Licenses and (ii) requiring suspension of the electric ratepayer surcharge 

when the government has effectively dismantled the only currently lawful disposal 

alternative. 

Significantly, this involvement is driven by consensus and bipartisan advocacy 

resolutions passed by NARUC members. The most recent, passed in February of 

this year, is appended to this testimony. Since 1994, NARUC has passed 31 resolutions focused solely on this issue. Since 1991, our witnesses have continually testified that ‘‘the government has our money—we have their waste.’’ Fifteen years have 

lapsed since the 1998 deadline for the Department of Energy (DOE), as mandated 

by law, to accept waste. Instead of fulfilling their obligations, the federal government has delayed and ultimately stopped all work on the program, even though 

ratepayers continuing paying for a permanent repository, taxpayers continuing paying for the DOE’s inability to dispose of the waste, and States continue storing the 

government’s waste. To put a finer point on it, the government now has even more 

of our money and the States now have even more of their waste. 

I commend each of you for the efforts and tenacity that produced this legislation 

and for holding this hearing today. Unquestionably, some provisions of S.1240 are 

significant improvements over the status quo. However, others seem problematic 

and could continue or even potentially exacerbate the same problems which plague 

the current management scheme. In this testimony, I will try to highlight both. 

NARUC PRINCIPLES

There are four substantive positions, which NARUC adopted in the February 2013 

resolution, that act as the foundation for my comments: First, we have specifically 
49 

urged adoption of the BRC recommendations on the creation of a new organization 

outside of DOE with sole responsibility to manage nuclear waste. Second, NARUC’s 

member commissioners are best positioned to protect ratepayer interests in nuclear 

waste disposal issues and must be part of the board of directors and any oversight 

bodies for the new entities. Third, the federal government must improve its dismal 

record on waste disposal. And, fourth, ‘‘the Administration and the Nuclear Regulatory Commission should comply with the law passed in 2002 approving Yucca 

Mountain as the repository site by completing the licensing process.’’ NARUC’s February 2013 resolution also points out that ratepayer costs for permanent disposal 

should be minimized. Interim storage is not a panacea, and should be used only 

where necessary and cost-effective. So while NARUC has specifically endorsed some 

consolidated interim storage, it is crucial that the amount, basis of need and duration of such interim storage is examined and not allowed to divert or delay the 

progress toward a permanent disposal site. Continued storage at permanently shutdown plants is unacceptable because it imposes costs on ratepayers without equivalent benefits and prohibits economic reuse of the site, whereas, relocation and consolidation would likely reduce the government’s liability and improve security. Finally, NARUC joins with others that urge Congress not to adopt any structure that 

replicates the entire range of well-recognized problems that stymied progress on 

both the Yucca Mountain license review and resulted in the wholesale dismantling 

of the disposal program. 

We believe your legislation is, overall, a step in the right direction. 

OUTSTANDING YUCCA MOUNTAIN CONCERNS

Geologic disposal is a critical element of a sustainable used nuclear fuel and highlevel radioactive waste management program. While not expressly reaffirming the 

requirements of the Nuclear Waste Policy Act (NWPA), the Nuclear Waste Administration Act of 2013 does not preclude its long-overdue enforcement. The bill should 

be revised to require action responding to the important statutory requirements to 

complete the review of the still-pending license for nation’s first permanent repository at Yucca Mountain. NWPA is the law and should be enforced. Congress should 

provide the appropriate funding and direction to both the Nuclear Regulatory Commission (NRC) and the Department of Energy for the completion of the NRC’s review of the Yucca Mountain license application for construction authorization. Ratepayers deserve to know whether the billions they’ve invested in the Yucca Mountain 

facility resulted in a safe site for the permanent disposal of high-level radioactive 

waste as years of independent scientific research indicates. 

TITLE II—MANAGEMENT OF THE NUCLEAR WASTE PROGRAM

In Title II, Sections 201-205, the bill sets up a new agency to assume the responsibilities of the Secretary of Energy on siting, licensing, construction and operation 

of nuclear waste facilities. An Administrator, Deputy Administrator, and 5 member 

oversight board are to be appointed by the President, with the advice and consent 

of the Senate. 

This is an improvement over the discussion draft as S.1240 moves the responsibility from DOE, an Executive agency, to an independent agency and it no longer 

requires the appointment of three federal officials to the Oversight Board. However, 

the proposed structure is inferior to a single-purpose federal corporation. The BRC 

recommended a similar approach to ensure accountability, insulate the organization 

from political interference and excessive turnover, and develop and implement a focused, integrated program. NARUC is on record specifically endorsing the adoption 

of the Blue Ribbon Commission’s recommendations. As the BRC report suggests, a 

new management entity should be created outside of the Department of Energy with 

the sole purpose of managing the federal government’s used nuclear fuel and highlevel radioactive waste program. Key attributes of that entity include clear legislative authority, access to needed funding, and insulation from political interference. 

NARUC endorses a federal corporation model. The structure proposed in S.1240 

does not address the political problems that plague the current management 

scheme—problems that have stymied progress and wasted taxpayer and ratepayer 

resources. A key aspect of this new ‘‘gov-corp’’ approach would be a Board of Directors that included several of NARUC’s members. It would be logical to assign that 

Board, not the gov-corp, the responsibility to evaluate the adequacy of the Nuclear 

Waste Fund fees collected from ratepayers. 

TITLE III—FUNCTIONS

In Title III, S. 1240 outlines the functions of the new agency—which includes in 

Section 303 a requirement for the Administrator to site, construct and operate a 
50 

pilot facility for storing priority waste, one or more additional facilities for non-priority waste, and one or more repositories. It outlines a consent-based procedure for 

siting these new facilities. 

NARUC is still carefully evaluating this section of the bill. In our February resolution, we specifically endorse a consent-based approach to siting by requesting that 

new legislation require, as S. 1240 does, any new waste management organization 

to ‘‘engage with States and local governments in a more collaborative manner that 

can be guided by a negotiated consent agreement among the involved parties, 

whether for storage or disposal facilities.’’ 

The resolution also points out that: 

[c]ontinued storage at permanently shutdown plants is unacceptable because it imposes costs on ratepayers without equivalent benefits and prohibits economic reuse of the site, whereas, relocation and consolidation 

would likely reduce the government’s liability and improve security. The 

BRC report cites a study that contends that the savings from consolidated 

storage for this stranded spent fuel would be enough to pay for the cost of 

the storage facility. On an interim basis, only, pending development of full 

capacity of the permanent repository, it is better to store spent fuel at one 

(or more) central location(s) than to leave it at reactor sites. DOE and the 

utilities should pursue any and all such possibilities with a sense of urgency. 

Laudably, this section of S.1240 recognizes the need for disposal. However, the 

recognition is limited. S.1240 should provide strong incentives for the agency to site 

a permanent disposal facility as soon as possible. While providing a consent-based 

process for siting additional repositories is positive, the bill’s target date of December 2048 (Section 504(b)(C)) for such a repository to be operational is not acceptable. 

The date is taken from the DOE Strategy’s proposed repository date. That document 

provides no support for this ‘‘new’’ target date—which is after all THIRTY FIVE 

YEARS from now. Such a target date effectively eliminates any sense of urgency 

necessary to timely compel government action. Moreover, the deadline is so distant 

that potential hosts for consolidated storage facilities would be justifiably nervous 

about becoming de facto permanent sites. Congress and the Administration should 

instead support timely completion of the Yucca Mountain process and call for a 

more reasonable (and far less distant) date for an additional repository sited under 

a consent-based approach. 

TITLE IV—FUNDING AND LEGAL PROCEEDINGS

In Title IV, Sections 401-403, the bill sets up a new Working Capital Fund where 

ratepayer NWF assessments (currently about $765 million per year) are deposited 

and available to the agency without further appropriation. It specifies that no fees 

can be paid into this fund after December 31, 2025 unless the Administrator is operating a nuclear waste facility by that date. The fees already collected in the NWF 

(about $28.2 billion as of January 2013) remain subject to appropriation. Significantly, the Administrator must take the costs resulting from S.1240 into account 

when determining whether insufficient or excess revenues are being collected to ensure cost recovery. 

Access to Annual Assessments 

NARUC, obviously, has a strong interest in how the Nuclear Waste Fund functions. We will have an equally strong interest in how any Working Capital Fund 

will function. The federal government has collected billions from ratepayers and in 

return has given them a very expensive hole in the ground that the government is 

blocking any access to. While not a perfect solution, S.1240’s annual direct funding 

option is a tremendous improvement over the current system. Ideally, S.1240 should 

assure ‘‘full access to the corpus of the Nuclear Waste Fund’’ limited to supporting 

‘‘achievement of repository program milestones’’ without additional appropriations. 

However, the guarantee that the putative entity, hopefully a gov-corp, will have access to fees on a going-forward basis is one way around the pressures inherent in 

the appropriations process. Still, this provision could be improved by also requiring 

the transfer of future accrued interest on the Nuclear Waste Fund and one time 

payments to the new Working Capital Fund. 

Linkage to ‘‘Nuclear Waste Facilities’’ vs. a Repository 

NARUC has not taken position on the specifics of any linkage requiring action on 

a repository. However, the requirement to require cut-off of assessments in 2025 is 

an improvement over the current procedure. It should, however, be amended to 
51 

specify a working repository instead of just ‘‘nuclear waste facilities.’’ That would 

provide strong incentives to expedite the repository siting process. 

Evaluation of the Adequacy of Ratepayer Assessments 

As noted earlier, the assessment of the adequacy of the fees should be conducted 

by a Board that includes State commission members, not by the Administrator. 

Moreover, the requirement on ratepayers to not only fund a new agency but all the 

costs resulting from S.1240 is inappropriate. For example, our February resolution 

specifies that: ‘‘The DOE, not electric utility ratepayers, must be accountable for the 

financial consequences of its failure to begin accepting waste in 1998.’’ Section 

406(b)(1)) of S.1240 requires utilities to settle existing lawsuits against the federal 

government to have access to future storage facilities. This effectively shifts the current government liability for non-performance (via the taxpayer funded Judgment 

fund) to electric ratepayers. NARUC has not endorsed and likely will not endorse 

such an approach. Performance remains the key to reducing the federal government’s liability. Moreover, the specification in Section 308(c) that the portion of the 

cost of developing, constructing, and operating the repository or storage facilities attributable to defense wastes ‘‘shall be allocated to the Federal Government and paid 

by the Federal Government into the Working Capital Fund,’’ is a welcome and necessary component of any disposal plan. 

NARUC’s Resolution also specifies that the ‘‘BRC Report recommendations for 

consolidated interim storage represent a new use for the Nuclear Waste Fund that 

should be authorized only after consideration of the costs and benefits involved.’’ It 

is far from clear that the broad storage plans outlined in S.1240 reflect such considerations. These interim storage costs are needed only because the government has 

failed to permanently dispose waste in a working repository. At the same time, it 

appears an interim storage facility to concentrate waste currently stored at shuttered facilities may be appropriate. The BRC report cites a study that contends the 

savings from consolidated storage for this stranded spent fuel would be enough to 

pay for the cost of the storage facility. 

We continue to closely examine S.1240 and discuss various provisions with other 

stakeholders. NARUC commends all of you for your efforts to break the current logjam on nuclear waste policy. We will help any way we can. 

Note: Appendix A—Resolution Regarding Guiding Principles for Management and 

Disposal of High-Level Nuclear Waste has been retained in committee files. 

The CHAIRMAN. Thank you very much, Mr. Boyd. 

Mr. Smith, we’re going to welcome you. 

Here’s where we are. 

Senator Murkowski just showed we’re supposed to have 5 votes 

starting in about 5 minutes which would mean that we’d have like 

20 minutes to at least get everybody’s testimony in. There’s 4 of 

you, so we ought to be able to be pretty close to it. 

If you could go maybe 4 minutes, that would be great. 

Mr. Smith, we’ll make your prepared remarks a part of the 

record. 

STATEMENT OF CHUCK SMITH, JR., COUNCIL MEMBER, AIKEN 

COUNTY, SOUTH CAROLINA, VICE CHAIR, ENERGY COMMUNITIES ALLIANCE 

Mr. SMITH. Chairman Wyden, Ranking Member Murkowski and 

members of the committee, thank you for inviting me to testify 

today making nuclear waste management solutions a priority 

through bipartisan legislation. 

I’m Chuck Smith, Council Member of Aiken County, South Carolina and Vice Chairman of the Energy Communities Alliance, ECA, 

the association of local communities that are adjacent to, impacted 

by and support DOE facilities. I am testifying today on behalf of 

ECA members that include local communities that may potentially 

host a future consolidated storage facility or geologic repository. 
52 

ECA supports the goal of the legislation to create a process to address nuclear waste. 

As you consider this legislation ECA offers the following recommendations. 

One, local governments that are or may become host must be included throughout the entire decisionmaking process. 

No. 2, a consent agreement between the local government, State 

and Federal entity must be legally enforceable and reflect the 

terms and conditions under which a community will host, agree to 

host, a nuclear waste facility. 

On governance, local communities need to better understand how 

a new comprehensive nuclear waste policy will be implemented and 

by whom. 

Disposition of Defense waste must be considered a priority. 

Resources must be provided for educating local communities on 

the technical, health and safety and other issues related to nuclear 

waste. 

Legislation must consider addressing impacts of transportation 

on local governments. 

If a site is deemed safe and suitable and certain conditions are 

met several communities may be willing to host a nuclear waste 

storage and disposal mission. But they must be provided with the 

resources necessary to ensure their involvement from the beginning 

of the decisionmaking process to the end. 

Support can only be built if a potential host community trusts 

that their interests and priorities are being meaningfully considered. 

Funding is needed to develop public outreach and education programs and ensure local communities understand the proposed 

project including the potential risk and benefits. 

These programs must start as early as possible in order to determine if enough support exists for a community to volunteer. 

Our members recognize that there is no one size fit all consent 

agreement. Rather the terms of the consent agreement will be specific to each local host community and State. Local governments 

are uniquely positioned to negotiate these conditions on behalf of 

the impacted communities. 

In regards to governance, whether the new Nuclear Waste Administration or FedCorp is responsible for implementing the Nuclear Waste Management program there needs to be clear legislative authority, appropriate autonomy, oversight mechanisms, access to required funding and transparent decisionmaking. 

ECA urges that a local government representative be appointed 

to serve on the oversight board to ensure local and community perspectives are represented. 

The disposition of legacy Defense waste is a priority for ECA. We 

recommend that it be addressed with more urgency. The legislation 

fails to outline how or on what basis decisions regarding Defense 

nuclear waste will be made. Many local communities have become 

de facto storage sites for legacy waste, some being stored in old 

tanks such as the one at Hanford and Savannah River. 

Defense waste is older and colder than the commercial spent 

fuel. It can never be reused. It is ready to move. Failing to 

prioritize this disposal keeps this waste in our communities longer 
53 

than originally planned and may adversely affect DOE’s cleanup 

program. 

Much attention is paid to the liability associated with the government’s failure to take title to commercial spent nuclear fuel. But 

the government also has an obligation to cleanup Defense sites. 

ECA recognizes the challenges associated with developing a comprehensive nuclear waste policy. There are some outstanding questions that need to be explored further such as what will happen to 

Yucca Mountain. 

Who will determine who is local in terms of affected parties and 

on what basis? 

Why was an independent government agency chosen rather than 

a FedCorp? 

We hope to work with the committee to provide input on these 

issues. 

In closing local communities agree that nuclear waste management is a priority. A failure to address it increases a risk to our 

communities. It also threatens our energy security, impacts the economics of nuclear power as a viable energy resource and limits 

prospects for new nuclear development in keeping with all of the 

above energy strategy. 

Thank you again for the opportunity to speak on behalf of our 

members. 

The CHAIRMAN. Thank you very much, Mr. Smith. I know you 

were running out of breath. 

[Laughter.] 

Mr. SMITH. Four minutes. 

[Laughter.] 

[The prepared statement of Mr. Smith follows:] 

PREPARED STATEMENT OF CHUCK SMITH, JR., COUNCIL MEMBER, AIKEN COUNTY, SC, 

VICE CHAIR, ENERGY COMMUNITIES ALLIANCE

Chairman Wyden, Ranking Member Murkowski and Members of the Committee, 

I thank you for inviting me to testify on S. 1240, 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. I am Chuck Smith, Council Member of Aiken County, South Carolina, and 

Vice Chairman of the Energy Communities Alliance (ECA), the association of local 

governments and Community Reuse Organizations that are adjacent to, impacted 

by, or support Department of Energy (DOE) activities. The testimony I present to 

you today is on behalf of ECA’s members, the local elected and appointed officials 

at sites that send and receive nuclear waste, and sites that may potentially host 

a future consolidated storage facility, reprocessing facility or geologic repository. 

ECA appreciates the efforts made by Chairman Wyden, and Senators Murkowski, 

Feinstein and Alexander to introduce bipartisan legislation and to make nuclear 

waste management a priority. ECA supports the goal of the legislation—to create 

a process to address nuclear waste. 

ECA communities have been home to federally-owned and operated nuclear facilities for over half a century. Local communities like mine currently store high-level 

defense nuclear waste, and have operated on good faith based on federal law, as 

codified in the Nuclear Waste Policy Act (NWPA), that the waste would ultimately 

be disposed of in a geologic repository. As hosts of DOE sites where this waste has 

been produced and stored, our communities have unique health and safety concerns. 

As potential hosts of future nuclear waste management and disposal facilities, we 

play a critical role in mitigating concerns through outreach and public education. 

Local governments and others around ECA member sites meet together regularly 

to discuss how local governments and communities can work with each other and 

as partners with States and the federal government to address the nuclear waste 

problem. In addition, the communities have met with DOE and private companies 
54 

to highlight key issues such as what does consent based siting mean and what are 

the resources that the communities need to be able to engage at a local and national 

level on this critical issues. 

As you consider this legislation, ECA offers the following recommendations: 

1. Local governments that are or may become hosts must be included 

throughout the entire decision-making process. 

2. A consent agreement between local government, state and a federal entity 

must be legally enforceable and reflect the terms and conditions under which 

a community will agree to host a nuclear waste facility. 

3. On governance, local communities need to better understand how a new 

comprehensive nuclear waste policy will be implemented and by whom. 

4. Disposition of defense waste must be considered a priority. 

5. Resources must be provided for educating local communities on the technical, health and safety and other issues related to nuclear waste. 

6. Legislation must consider and address the impacts of transportation on 

local governments. 

Local governments are engaged on this important issue since it directly impacts 

our communities. 

1. LOCAL GOVERNMENTS THAT ARE OR MAY BECOME HOSTS MUST BE INCLUDED

THROUGHOUT THE ENTIRE DECISION-MAKING PROCESS

ECA supports the role for local governments outlined in the legislation specifically 

a consent-based siting process based on sound science, ‘‘meaningful collaboration 

with affected communities,’’ flexibility, and transparency. 

Several local governments have identified that, if a site is deemed safe and suitable, and if certain conditions are met, the local community may be willing to accept 

a high-level waste and used nuclear fuel storage and/or disposal mission. The key 

conditions for local governments are (1) to be involved in the entire decision-making 

process and (2) to be provided with the resources necessary to ensure local government involvement. 

Local governments considering hosting nuclear waste storage and disposal facilities need to become educated on nuclear issues. In turn, they must also educate citizens within their communities and work with their state governments to ensure everyone is involved in the decision. The local community that hosts a facility should 

know as much as they can about the health, safety and other issues that are inherent in hosting a site. Support can only be built if a potential host community understands the process, can choose independent experts to supply scientific data, and 

most importantly, if they trust that their interests, concerns and priorities are being 

meaningfully considered. 

Once a community determines it is interested in hosting a new facility, the local 

government remains responsible for outreach to the community, as well as to state, 

regional and federal decision-makers. History has shown that support will be needed at all these levels to successfully site a new nuclear facility. 

2. A CONSENT AGREEMENT BETWEEN LOCAL GOVERNMENT, STATE AND A FEDERAL ENTITY MUST BE LEGALLY ENFORCEABLE AND REFLECT THE TERMS AND CONDITIONS

UNDER WHICH A COMMUNITY WILL AGREE TO HOST A NUCLEAR WASTE FACILITY

ECA supports the consent-based siting process outlined in the legislation. We 

agree that a successful siting process must allow ‘‘the affected communities to decide 

whether, and on what terms, the affected communities will host a nuclear facility,’’ 

in order to build long-lasting support. 

Our members met recently to discuss how a consent-based agreement would be 

defined, concluding that there is no one-size fits all consent agreement—rather the 

terms of a consent agreement will be specific to each potential host community and 

State, as negotiated with the federal government. As part of a consent agreement, 

ECA agrees that local governments should broadly consider: 

• Financial compensation and incentives. 

• Economic development assistance. 

• Operational limitations or requirements. 

• Regulatory oversight authority. 

ECA recommends that the strength and terms of the linkage between storage and 

disposal programs should be negotiated between the federal government, the State 

and the local government and included in the consent agreement. 

In addition, ECA suggests that potential hosts may want to negotiate additional 

conditions to include in a consent agreement, such as: 
55 

• Amending existing compliance agreements or statutory limitations. 

• An enforceable deadline for removing nuclear waste from a storage facility. 

• Volume limitations. 

• Penalties to be incurred by the federal government and/or State for failure to 

meet obligations under the consent agreement. 

• Triggers for termination of the consent agreement. 

• Agreement of indemnification to allow local communities to be compensated for 

any accidents or releases that impact their community. 

• Opportunities for universities and community colleges related to future nuclear 

energy missions and workforce development. 

• Research and development projects in coordination with national laboratories. 

• Designation of transportation routes to a storage facility or repository. 

• Requiring a position on any proposed oversight board and/or an advisory committee. 

Local governments are uniquely positioned to negotiate these conditions on behalf 

of the impacted community; as is a Governor for the impacted State. If their conditions are met, a local community may be willing to accept a High-Level Waste 

(HLW) and Spent Nuclear Fuel (SNF) disposal mission. 

ECA agrees that, once negotiated, the consent agreement should be ratified by 

law, binding on all parties, and not amended or revoked except by mutual agreement by the parties. 

3. ON GOVERNANCE, LOCAL COMMUNITIES NEED TO BETTER UNDERSTAND HOW A NEW

COMPREHENSIVE NUCLEAR WASTE POLICY WILL BE IMPLEMENTED AND BY WHOM

Regardless of whether DOE, a new FedCorp, or the new Nuclear Waste Administration outlined in this bill is responsible for implementing the nuclear waste management program, there needs to be: 

• Clear legislative authority. 

• Appropriate autonomy. 

• Oversight mechanisms. 

• Access to required funding. 

• Transparent decision-making 

Our members are concerned about the length of time it will take to formally create this new entity and a new regulatory structure. For communities currently storing nuclear waste, delays could result in elevated risks to human health and the 

environment. As a result, these communities should be given resources to mitigate 

impacts of storing waste longer than expected. 

In regards to the Oversight Board, ECA appreciates changes made from the discussion draft to move from three federal officials to five members selected through 

Presidential appointment and Senate confirmation. ECA urges that a local government representative be appointed to serve on the Oversight Board to ensure local 

and community perspectives and concerns are identified and represented. 

4. DISPOSITION OF DEFENSE WASTE MUST BE CONSIDERED A PRIORITY

ECA recommends that legislation address the management and disposal of legacy 

waste with more urgency. We do appreciate that the bill differs from the discussion 

draft in that the Secretary of Energy will have one rather than two years to determine whether to reevaluate the decision to commingle defense waste from nuclear 

waste from civilian nuclear power reactors; however, the legislation still fails to outline how or when decisions regarding defense nuclear waste will be made. Many 

local communities have become de facto storage sites for this legacy waste, some 

being stored in old tanks such as the ones at Hanford and Savannah River. The nation’s defense waste is older and colder than the commercial spent fuel, it has no 

value as it can never be reused, and can be more easily transported to a storage 

or disposal facility. Failing to prioritize its disposal increases the risk to human 

health and the environment, adversely affects DOE’s Office of Environmental Management cleanup program and the costs associated with legacy management. These 

local communities need to be given resources to evaluate the impacts of keeping this 

waste in place for longer than originally planned. Much attention is paid to the liabilities associated with the government’s failure to take title to commercial SNF, 

but the government also has an obligation to clean up defense sites. Further delays 

could violate legal commitments the federal government has made with the State 

and could cause taxpayer dollars to be spent on fines and litigation instead of invested in cleanup. 
56 

5. RESOURCES MUST BE PROVIDED FOR EDUCATING LOCAL COMMUNITIES ON THE

TECHNICAL, HEALTH, SAFETY AND OTHER ISSUES RELATED TO NUCLEAR WASTE

Funding is needed to develop public outreach programs, to educate stakeholders, 

government officials in county, city and town agencies, students, employees and individuals involved with emergency response and average citizens. Funding will also 

allow a community to bring in experts it trusts and whose responsibilities are to 

that community. 

Outreach programs will ensure local communities understand the proposed 

project, the health and safety issues, the real vs. perceived risks, and will provide 

awareness of potential benefits—such as job creation or infrastructure development. 

Education and outreach efforts may include: hosting meetings in the community; 

creating public information campaigns; coordinating programs with local universities and community colleges; building websites and producing written material for 

distribution. 

These programs must start as early as possible in order to determine if enough 

support exists within a community for it to volunteer for a nuclear waste mission. 

6. LEGISLATION MUST CONSIDER AND ADDRESS THE IMPACTS OF TRANSPORTATION ON

LOCAL GOVERNMENTS

While the bill specifically states that notification, financial and technical assistance be provided to State and Indian tribes for transportation planning purposes, 

local governments are not mentioned. In order to maintain the strong track record 

that exists for transporting nuclear waste, resources should also be provided at the 

local level for training, equipment, emergency responders and public education. This 

will help ensure consistency among all affected parties as waste moves across the 

country. 

CONCLUSION

ECA recognizes the challenges associated with developing a nuclear waste policy 

and siting waste facilities. This legislation reflects the hard work done to address 

these challenges and implement the Blue Ribbon Commission’s recommendations. 

From the energy communities’ perspective, there are some outstanding questions 

that need to be explored further, such as what will happen with Yucca Mountain? 

Who will determine ‘‘who is local’’ in terms of affected parties and on what basis? 

Why was an independent government agency chosen rather than a FedCorp? What 

does the Committee see as the advantages? We hope to work with the Committee 

and other nuclear stakeholders to provide input on these issues. 

In closing, ECA appreciates the opportunity to provide this testimony. We applaud 

this Committee’s work to address nuclear waste management and implement the 

recommendations of the Blue Ribbon Commission. Our members agree that nuclear 

waste management is a priority, and a failure to address it increases the risks to 

the health and environment of our communities. It also threatens our energy security, impacts the economics of nuclear power as a viable energy resource, and limits 

prospects for new nuclear development in keeping with an ‘‘all of the above’’ strategy. 

ECA looks forward to providing any assistance we can as your work continues. 

More information about the Energy Communities Alliance can be found at 

www.energyca.org. 

The CHAIRMAN. I appreciate it. 

Thank you also, Mr. Fertel, because I know you all have been cooperating on the feasibility of onsite storage. We appreciate it. 

Mr. Fertel. 

STATEMENT OF MARVIN S. FERTEL, PRESIDENT AND CHIEF 

EXECUTIVE OFFICER, NUCLEAR ENERGY INSTITUTE 

Mr. FERTEL. Thank you, Chairman Wyden and Ranking Member 

Murkowski for the opportunity to testify today. 

It is industry’s view that consolidated storage and a willing host 

community and State is the quickest route for the Federal Government to begin moving used fuel from commercial and Federal sites 

and to reduce the taxpayer liabilities that are estimated, as Ranking Member Murkowski said, to reach $20.8 billion by 2020. Con-
57 

solidated storage is not a complete answer. But is a prudent investment while continuing to pursue geologic disposal and is a good 

contingency in case the repository program suffers additional 

delays. 

We’re confident that a consolidated storage facility can be operational in 10 years assuming a successful 3-year consent based 

siting process. 

However, in addition to consolidated storage the industry continues to believe that consistent with existing law, the Yucca 

Mountain licensing process must be completed. 

I want to thank Senators Wyden, Murkowski, Feinstein and Alexander for their effort to establish a sustainable program under 

new management outside of the Department of Energy. The industry believes that the operating characteristics of a new management entity must closely resemble those of a corporation rather 

than a Federal agency. It must come as close as possible to the decisionmaking project management capability that is characteristic 

of a corporate organization. 

Congress and the Administration should retain an oversight authority. The board of directors should be appointed by the President with the advice and consent of the Senate. But the chairman 

of the board should be elected by the board members. 

The chief executive officer should be appointed by the board and 

not subject to the political uncertainties associated with Presidential appointments. It is also essential that the CEO of the organization have the authority to hire his or her senior staff and deputies rather than having them appointed by the President. 

Since this new management entity will be in existence as long 

as commercial nuclear power is used in the United States and beyond, the CEO must have flexibility to reorganize the management 

structure when appropriate. 

We would encourage the proposed legislation to be altered to reflect our comments. 

We agree with the comments made by Commissioner Boyd about 

the importance of having access to the corpus of the Nuclear Waste 

Fund as well as to move the interest and the onetime fee into the 

Capital Fund. 

The industry is committed to reducing the growing Federal liability through the establishment and execution of a sustainable program in a timely manner. However, we strongly disagree with the 

legislative provision which intends to reduce liability by requiring 

contract holders to settle all claims against the United States as 

a condition precedent for taking title and moving used fuel to a 

storage facility. This would be a denial of a company’s right under 

the standard contract to have its used fuel taken unless it agreed 

to accept a settlement on whatever terms the government wanted 

to impose. 

We strongly recommend that this provision be removed from the 

proposed bill. 

Energy companies, their local communities and states, the American taxpayers deserve to have confidence in a Federal program 

that will meet the statutory and contractual obligations to safely 

and securely accept transport, store and ultimately dispose of used 

nuclear fuel and high level radioactive waste. While the industry 
58 

has and always will manage its used nuclear fuel safely and securely, we believe that action by Congress is necessary now to establish a sustainable program and reduce the liabilities for the taxpayers as soon as possible. 

The Nuclear Waste Administration Act of 2013 is a significant 

step forward. We look forward to working with the committee and 

the Senators to have it come as legislation. 

Thank you. 

[The prepared statement of Mr. Fertel follows:] 

PREPARED STATEMENT OF MARVIN S. FERTEL, PRESIDENT AND CHIEF EXECUTIVE

OFFICER, NUCLEAR ENERGY INSTITUTE

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

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

Waste Administration Act of 2013. I am Marvin Fertel, President and CEO of the 

Nuclear Energy Institute (NEI). NEI is responsible for establishing unified nuclear 

industry policy on regulatory, financial, technical and legislative issues affecting the 

industry. NEI members include all companies licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect/ 

engineering firms, fuel cycle facilities, materials licensees, labor organizations, universities and other organizations and individuals involved in the nuclear energy industry. 

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. We also applaud Senators Wyden, Murkowski, Feinstein, 

and Alexander for leading the effort and for releasing a discussion draft to obtain 

stakeholder comments before introducing the legislation; a process which resulted 

in beneficial changes. Although the proposed legislation represents a positive start 

to overhauling the federal program and incorporates some of the stakeholder comments provided on the discussion draft, additional enhancements should be made 

to ensure the creation of a sustainable integrated program. 

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 70,000 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 

now, pursuant to the Nuclear Waste Policy Act (NWPA), the Department of Energy 

(DOE) should have already moved more than 28,000 MTU of reactor fuel from our 

sites and should be moving an additional 3,000 MTU every year. 

Consumers of electricity generated at nuclear energy facilities have committed 

more than $35 billion since 1982 to the Nuclear Waste Fund for the federal program 

that should have begun removing used fuel from commercial nuclear power plant 

sites 15 years ago. The Department of Energy continues to collect more than $750 

million per year from consumers, and the fund accrues more than $1 billion in investment income on the remaining balance of over $28 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 and has yet to implement a new program. 

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. 

Oral arguments in the case are scheduled for September. 
59 

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: 

• The United States must have a durable policy supported by a dedicated and 

sustainable infrastructure to manage used nuclear fuel and high-level radioactive waste responsibly. 

• The United States 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, policies, and management, while building public trust in the systems and facilities ultimately developed. 

Legislative action is needed to put such an enduring policy and program in place. 

The industry supports an integrated used nuclear fuel management strategy consisting of six basic elements: 

• A new management and disposal organization outside of the Department of Energy (DOE). 

• Access to the Nuclear Waste Fund and annual fees for their intended purpose, 

without reliance on the annual appropriations process but with appropriate 

Congressional oversight. 

• Completion of the Yucca Mountain repository license review. Nuclear electric 

consumers deserve to know whether Yucca Mountain is a safe site for the permanent disposal of high-level radioactive waste, as billions of dollars and years 

of independent scientific research suggest. 

• A consolidated storage facility for used nuclear fuel and DOE’s high-level radioactive waste in a willing host community and state and substantial progress toward developing the Yucca Mountain site and/or a second geologic repository. 

A consolidated storage facility would enable the DOE or a new management entity to move used nuclear fuel from decommissioned and operating plants long 

before a repository or recycling facilities begin operations. Used fuel from decommissioned commercial reactor sites without an operating reactor should 

have priority when shipping commercial used fuel to the storage facility. 

• Research, development and demonstration on improved or advanced fuel-cycle 

technologies to close the nuclear fuel cycle. 

• NRC’s promulgation of a temporary storage rule and an eventual legislative determination of waste confidence supported by a sustainable federal program 

founded on the elements above. 

Since the Obama Administration suspended the NRC’s review of the Yucca Mountain repository license application in 2010, the federal government has not had a 

viable used fuel management program. The Administration’s Blue Ribbon Commission on America’s Nuclear Future (BRC), established to recommend a new direction 

for the program, published its final report in January 2012. Among its key recommendations were: 

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

• A new organization dedicated solely to implementing the waste management 

program and empowered with the authority and resources to succeed. 

• Access to the funds nuclear utility ratepayers are providing for the purpose of 

nuclear waste management. 

• Prompt efforts to develop one or more geological disposal facilities. 

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

The BRC’s recommendations are generally consistent with the industry’s integrated used nuclear fuel management strategy and are supported by the industry 

with the exception that the BRC did not address the need to complete the Yucca 

Mountain licensing process. 

In January 2013, the Obama Administration released its ‘‘Strategy for the Management and Disposal of Used Nuclear Fuel and High-Level Radioactive Waste.’’ 

This strategy is also generally consistent with the industry strategy but is dependent upon Congress to establish direction and create a program. 
60 

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 taxpayers, through payments from the 

taxpayerfunded Judgment Fund, are paying for court-awarded damages from DOE’s 

partial breach of its contracts with electric companies. The BRC report estimated 

that the damage awards from the Judgment Fund will total $20.8 billion if the federal government begins accepting used fuel in 2020 and may increase by as much 

as $500 million for each year after 2020 that DOE does not begin to accept used 

fuel. To date, approximately $2 billion has already been paid in damage and settlement awards. This expense, for which the taxpayer receives no benefit, is in addition to monies paid into the Nuclear Waste Fund by consumers of electricity produced from nuclear energy. Given the absence of any federal program, it has become 

virtually impossible for the DOE to begin to meet its obligation to move used fuel 

before 2020. The industry is committed to reducing the growing federal liability 

through the establishment of a sustainable federal program. The Nuclear Waste Administration Act of 2013 also recognizes the need to reduce the federal liability as 

quickly as possible. However, the liability can only be reduced through the establishment of a program and execution of the program by the new management entity 

in a timely manner. 

The industry disagrees with the provision in the draft legislation which tries to 

reduce liability by requiring contract holders to settle all claims against the United 

States as a condition precedent for taking title to and moving used fuel to a storage 

facility. This forced settlement provision should be removed from the proposed bill. 

The industry has already demonstrated its commitment to negotiate settlements in 

good faith. However, the effect of this provision would be a denial of a utility’s right 

under the Standard Contract to have its used fuel taken by the federal government 

unless the utility agreed to accept a settlement of its breach of contract claims on 

whatever terms the government wanted to impose. That would effectively deprive 

the utilities of their contractual rights, under which the government is supposed to 

take their spent fuel in exchange for many hundreds of millions of dollars in Nuclear Waste Fees paid to the government. A more effective and fairer approach 

would be to direct the Department of Justice to settle the breach of contract lawsuits on reasonable terms with willing contract holders without imposing conditions 

on the settlements. 

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 and 

numerous stakeholders support the concept of a federal corporation. The operating 

characteristics of a new management entity must more closely resemble those of a 

corporation with a clear mission rather than a federal agency in order to succeed. 

The new management entity must come as close as possible to the decision-making 

and project management capability and discipline that is more characteristic of a 

corporate organization. 

Similar to commercial companies, the chief executive officer of the new management entity should be selected and appointed by a board of directors. 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. The industry recommends that at least three members of the board be appointed from entities that 

contribute or have contributed to the Nuclear Waste Fund and that at least two 

members of the board be appointed from state public utility commissions or representatives thereof. The legislation should also specify minimum qualifications for 

board members and define a quorum as being simply more than half of the standing 

directors. The chairman of the board should be elected by its members. The CEO 

should not be subjected to the political uncertainties associated with presidential appointments so that he or she, while remaining accountable to the board, can focus 

entirely on performing 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 instability that can be created as a result of the political appointment process 

is wellillustrated 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. 
61 

The incumbent director was replaced with every new administration. It is also essential that the CEO of the organization have the authority to hire his or her senior 

staff and deputies, in consultation with the board as appropriate, rather than having them appointed by the President. Since this new management entity will be in 

existence as long as commercial nuclear power is used in the United States, and 

beyond, the CEO must have the flexibility to reorganize the management structure 

when appropriate, without artificial constraints imposed by legislation. 

The Nuclear Waste Administration Act of 2013, as currently structured, 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. Numerous studies of the management 

issue have been carried out over the past decades, from the Congressionally mandated Advisory Panel on Alternate Financing and Managing Radioactive Waste Facilities Report in 1984 through the BRC recommendations in 2012. The studies advocate consistently for a management entity with a corporate structure providing 

continuity, efficiency and an appropriate degree of insulation from undue political 

influence. 

When the new management entity is created, 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. The 

Nuclear Waste Administration Act of 2013 addresses Congressional oversight appropriately but, in one instance, reduces this oversight compared to the Nuclear Waste 

Policy Act by removing Congressional review of changes in the nuclear waste fee. 

The industry recommends that Congressional oversight over the nuclear waste fee 

be maintained. 

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 

2013 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 which 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. Historically, this resulted in lower appropriations than requested which contributed to project and schedule delays. 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 and inequities, a new management entity must be given unrestricted access to both the Nuclear Waste Fees 

and the Nuclear Waste Fund with Congressional oversight of the efficient use of 

these funds continuing. This will enable the new management entity to appropriately manage and fund, without reliance on Congressional appropriations, the development of storage and disposal facilities consistent with standard industry practices for other large-scale nuclear safety-related projects. The current legislation 

achieves this goal for the Nuclear Waste Fee payments. The industry, though, believes that the corpus of the Nuclear Waste Fund and its earned interest, in addition to the Nuclear Waste Fees, also must be made available to the new management entity for its intended purpose without being subject to competing appropriations. This, however, could be accomplished with transfers to the new management 

entity over a reasonable schedule defined within the legislation. 

GEOLOGIC DISPOSAL AND CONSOLIDATED STORAGE ARE CRITICAL

In the current fuel cycle and in all foreseeable advanced fuel cycles, a geologic repository will be required. Pursuit of a geologic repository and a consolidated storage 

facility should occur simultaneously, as the Nuclear Waste Administration Act of 

2013 would require. A consolidated storage facility would enable the management 
62 

* Illustration has been retained in committee files. 

entity to move used nuclear fuel from shutdown and operating plants long before 

a repository or recycling facilities begin operations and is the quickest way to stem 

the increase in damage awards beyond the estimated $20.8 billion through 2020. 

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, restoring faith 

in the federal program, and paving the road for a repository. As the industry is well 

aware, technical and political hurdles can arise which can significantly delay a 

project or curtail the operation of a facility. A consolidated storage program is a 

good contingency in case the repository program suffers delays either as a result of 

funding issues or unforeseen circumstances. 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 called publicly for action to implement the BRC recommendations and, 

specifically, development of a consolidated storage facility. 

Attachment 1* provides a comparison of hypothetical timelines for the development of a consolidated storage facility using a consent-based siting process and the 

Yucca Mountain repository assuming that both programs are underway in 2014. As 

the attachment illustrates, the completion date for Yucca Mountain will 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, in the absence of a new management entity with 

direct access to the Nuclear Waste Fees and Fund, the program could be appropriated sufficient funding necessary (approaching $2 billion annually) to complete 

licensing and construction in the near term. The 2027 opening date for Yucca Mountain, shown in Attachment 1, assumes successful NRC licensing, efficient management, full funding, and positive support from the State of Nevada. Even if these assumptions are met, it will still be challenging to complete the Yucca Mountain 

project by 2027; an endeavor that will cost more than $14 billion in 2012 dollars. 

Until it is clear that all of these assumptions can be met, the industry strongly believes that it is prudent to pursue consolidated storage in parallel with repository 

activities. If a second repository is pursued, the siting, licensing, and construction 

will most likely take close to three decades. 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 $525 million in 2012 dollars. As Attachment 

1 illustrates, the industry estimates that a consolidated storage facility could be 

opened by 2024 in a willing host community and state if work begins in 2014. The 

main assumption in this estimate is the 3-year time to execute a consent-based 

siting process. The industry feels this is a reasonable assumption for a consolidated 

storage facility but that a consent-based siting process for a second repository could 

take substantially longer. The estimated times for design, licensing, and construction are based on a review of licensed and constructed dry cask storage facilities at 

reactor sites and the Idaho National Laboratory. To ensure that the licensing process is efficient, the industry requests that the legislation instruct the NRC to issue 

a final decision approving or disapproving a license for a consolidated storage facility no later than two years after the date of submission. 

A consolidated storage facility would be used 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, which could be collocated with the repository, where it would be stored until a final disposal or alternate 

disposition pathway is available. 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 and 

eventually prepare it for final disposal. 

Although the industry supports the completion of the Yucca Mountain licensing 

effort, we recognize that it may be appropriate for the new management entity to 

begin efforts to site a second repository. Since we expect nuclear power to continue 

to be a significant contributor of electricity in the United States, used fuel will continue to be produced. It is generally agreed that Yucca Mountain can accommodate 

significantly more used fuel than the 70,000 MTU limit imposed in the NWPA. Even 

though the limit is appropriately removed in this legislation, it may still be necessary to site a second repository. Since the NRC and the Environmental Protection 

Agency have Yucca Mountain repository-specific regulations and the generic reposi-
63 

* Document has been retained in committee files. 

tory regulations are generally considered to be out of date, the industry recommends 

that the NRC and the Environmental Protection Agency be instructed, in this legislation, to develop new generic repository regulations. The search for a new repository will not be successful unless the regulatory structure is properly defined prior 

to the search. 

PRIORITY TO SHUTDOWN SITES

The Department of Energy and eventually the new federal management entity 

should collaborate with industry to ensure that transportation issues, including efficient ordering of used fuel acceptance from commercial sites, are addressed appropriately. 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 2013, has numerous advantages. It would permit shutdown 

sites, which in many cases have only used fuel storage remaining at the site, to be 

fully decommissioned and the land used for other 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 millions 

of dollars 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 2013 proposes, 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 and 

prompted questions about how such a process would be implemented. 

A consent-based siting process should not be defined prescriptively, 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 as described in the Nuclear Waste Administration Act of 2013. 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 benefits. The industry does not believe that it is necessary 

to establish multiple additional criteria—or linkage between development of consolidated storage and permanent disposal—that, in essence, are intended to ‘‘protect’’ 

the state, affected local community and/or tribe from being forced to host an unwanted facility. In this regard, we appreciate the changes made from the discussion 

draft that provide more responsibility to the communities and states to establish the 

framework and conditions under which they wish to operate a consolidated storage 

facility. 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. 

CONCLUSION

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 Nuclear Waste 

Administration Act of 2013 is a significant step forward and, with the enhancements 

proposed here, it could create a sustainable program that would garner wide stakeholder support. In addition to the enhancements mentioned above, the industry has 

developed legislative principles for nuclear waste reform, included as Attachment 

2*, which should also be considered when revising the Nuclear Waste Administration Act of 2013. While the industry has and always will manage its used nuclear 

fuel safely and securely, we believe that action by Congress is necessary now to establish a sustainable program and reduce the liabilities for the taxpayer as quickly 

as possible. 

The CHAIRMAN. Thank you very much. 

Mr. Fettus. 
64 

STATEMENT OF GEOFFREY H. FETTUS, SENIOR ATTORNEY, 

NATURAL RESOURCES DEFENSE COUNCIL, INC 

Mr. FETTUS. Yes, thank you. 

I’m Geoffrey Fettus, an attorney with NRDC. Thank you so much 

for having us. 

Last year with the introduction of S. 3469 we were optimistic 

meaningful solutions were achievable. We’re less optimistic today 

unfortunately. We worry that we could miss a prime opportunity 

to put in place a durable, lasting nuclear waste legislation that 

draws support from both sides of the aisle. We hope this process 

can be salvaged. 

I’ll focus only on two points today. 

Geologic repositories isolated from the biosphere are the only 

technically, economically and morally viable solution for nuclear 

waste. NRDC strongly supports the development of an improved 

legislative pathway for geologic repositories. We’re disappointed 

that S. 1240, in our view, severs the link between interim and final 

nuclear waste storage doing away with primacy of repositories as 

a solution. Just as harmful, potentially creating a de facto, longterm, above ground site that becomes permanent. 

Eviscerating the link between storage and disposal guarantees a 

repeat of the mistakes we’ve seen made over the past half century. 

We think virtually ensures a moribund repository program. To give 

you an example of a well constructed link between storage and disposal last year’s bill barred any future nuclear waste administration from taking title to and storing spent fuel before ratification 

of the consent agreements included in section 304 of last year’s bill. 

A provision that bars moving forward with interim storage before 

a repository program is under full development wisely puts the 

horse before the cart and ensures no temporary site becomes permanent. This bill has no such provision and allows interim storage 

to move forward regardless of the state of the repository program. 

Let there be no mistake, we support moving forward with limited 

interim storage. But we urge a pilot project. Here I stress pilot 

project, as in smaller scale and initial proof of concept. 

We think you can do it in a relatively short timeframe for storage 

that can address stranded waste at the 13 closed reactor sites or 

for spent fuel that fails to meet certain safety thresholds. An example of such a site is the hardened outhouse facility in Germany. 

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, as noted by Senator Murkowski as a significant concern, is 

already in place along with the consent necessary for hosting nuclear facilities in the first instance and by keeping consolidated interim storage spent fuel under the guardianship of the industry 

that produced the waste in the first place, Congress ensures careful 

progress with a repository program because all parties will know 

it’s necessary. 

Turning quickly to point two. 

We applauded the consent based approach in last year’s bill and 

in the BRC. That approach, we think, has been lost in this 

iteration. We urge you to rectify this mistake. 
65 

Further we urge you to consider that any consent based process 

will enjoy a far 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 anachronous exemptions from environmental law are at the heart of State and 

public distrust of both government and nuclear facilities. We hope 

such a suggestion, with its advancement of State rights, garner 

support from both sides of the aisle. 

If EPA and most importantly, the states, had full legal authority 

and could treat radio nuclides as they do other pollutants 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 avoid some of the ongoing disputes over operations at commercial sites. Even the BRC recognized this as a 

noted New Mexico’s regulation of the WIPP facility is a critical element of public acceptance. 

In conclusion, the committee should reinstate the primacy of geologic repositories and ensure that no temporary site becomes the de 

facto permanent site and already seen many others could support 

such legislation. 

I’ll close with the overarching premise that we hope guides your 

work. Years or decades from now others will face the same predicament we face here today unless you create a transparent, equitable 

process with strong public health and environmental standards 

that can’t be manipulated in order to license a site that may not 

be suitable. 

Thanks again for this opportunity. 

[The prepared statement of Mr. Fettus follows:] 

PREPARED STATEMENT OF GEOFFREY H. FETTUS, SENIOR ATTORNEY, NATURAL

RESOURCES DEFENSE COUNCIL, INC

I. INTRODUCTION

Chairman Wyden and Ranking Member Murkowski, and members of the Committee, thank you for providing the Natural Resources Defense Council, Inc. (NRDC) 

this opportunity to present our views on S. 1240, a bill [T]o 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. NRDC has worked on nuclear waste issues for over four 

decades, and continues to be engaged in shaping U.S. law and policy on the nuclear 

fuel cycle. 

On September 12, 2012, NRDC testified before this committee on S. 3469, the 

template for S. 1240. We commended the preceding bill’s adherence to three principles that, in our view, must be complied with if America is ever to develop an adequate, safe solution for nuclear waste—(1) radioactive waste from the nation’s commercial nuclear power plants and nuclear weapons program must be buried in technically sound deep geologic repositories, the waste permanently isolated from the 

human and natural environments; (2) governing legislation must contain a strong 

link between developing waste storage facilities and establishing final deep geologic 

repositories that ensures no ‘‘temporary’’ storage facility becomes a permanent one; 

and (3) nuclear waste legislation must embody the fundamental concept that the 

polluter pays the bill for the contamination that the polluter creates. 

NRDC cannot support S. 1240 in its present form, as described in this testimony 

and consistent with our 2012 testimony and May 2013 comments filed on the Discussion Draft. NRDC cannot support S. 1240 in its present form because the bill: 
66 

1See http://www.energy.senate.gov/public/index.cfm/democratic-news?ID=490349a4-4b5e-4ac2- 

83e7-6e9a54c7aaf0 

1) severs the crucial link between storage and disposal; 2) places highest priority 

on establishing a Federal interim storage facility at the expense of getting the geologic repository program back on track; 3) fails to ensure that adequate geologic repository standards will be in place before the search for candidate geologic repositories sites commences; 4) fails to provide states with adequate regulatory authority 

over radiation-related health and safety issues associated with nuclear waste facilities in their respective states; and 5) fails to prohibit the Administrator(or Board) 

from using funds at his disposal to engage in, or support spent fuel reprocessing 

(chemical or metallurgical), ostensibly to improve the waste form for permanent disposal of spent fuel. 

Regrettably, it appears that the authors of S. 1240 have rejected several key recommendations of the President’s Blue Ribbon Commission for America’s Nuclear Future (BRC). Instead, the bill wrongly prioritizes the narrow aim of getting a government-run interim spent fuel storage facility up and running as soon as possible— 

a priority with potential financial benefits for business interests. However, we believe S.1240 is salvageable and we look forward to engaging in constructive efforts 

to address the shortcomings we present in this testimony. 

Of the five objections enumerated above, the first one—severing the link between 

interim and final nuclear waste storage—is possibly of greatest concern because it 

means the bill could result in the creation of de facto long-term above-ground repositories. As we’ve stressed since the initiation of the BRC process, law should establish a strong linkage that bars an interim or temporary storage site from becoming 

a de facto repository. NRDC concurs with the former Chairman of the Energy and 

Natural Resources Committee who cautioned that interim storage needs to be done 

‘‘only as an integral part of the repository program and not as an alternative to, or 

de facto substitute for, permanent disposal.’’1 Such caution is consistent with decades of national policy and the purpose of the Nuclear Waste Policy Act (NWPA), 

42 U.S.C. δ 10131(b)(1). Indeed, last year we expressed concern that the pilot program in S. 3469 could lessen the impetus for a strong repository program. Unfortunately S. 1240 goes further and effectively eviscerates the link between storage and 

disposal. This guarantees a repeat of the mistakes we have seen made over the past 

half century and virtually ensures a moribund repository program. Further, NRDC 

believes that if S. 1240 becomes law, a future Congress will be forced to deal with 

this issue once again, with no meaningful disposal solution on the horizon. 

After more than 55 years of failure, the history of U.S. nuclear waste policy offers 

Congress all the lessons it needs and it can ignore them only at its peril. Efforts 

such as the failed bedded salt repository in Lyons, Kansas (1972) and the 1975 

abandonment of the 100-year Retrievable Surface Storage Facility (RSSF) are decades distant, but directly relevant to this Committee’s consideration of S. 1240. 

Adopting a short-term, politically expedient course for interim storage at the expense of durable solutions is the recipe for failure for both storage and disposal facilities. The failed Yucca Mountain project is merely the latest and largest of these 

debacles. While the BRC rightly recognized the 1987 amendments to the NWPA 

were ‘‘highly prescriptive’’ and ‘‘widely viewed as being driven too heavily by political considerations,’’ the BRC failed to take into account (or recount) all that has 

transpired over the past three decades. 

Put bluntly, first the U.S. Department of Energy (DOE) and then Congress corrupted the site selection process that resulted in selecting Yucca Mountain as the 

only option for a deep geologic repository. 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 medium. 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 play out as intended, would have been consistent with elements of 

the adaptive, phased, and science-based process the BRC Report later recommended. 

But instead, DOE first selected sites it had pre-determined. Then in May, 1986 

DOE announced 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). 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 
67 

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 the proposed 

Yucca site remained the sole site), and eviscerated public support for the Yucca 

Mountain project. 

By ending all impetus for the disposal program, S. 1240 risks sending the nation 

down another dead-end road. But we believe this situation can be rectified. NRDC, 

relying on decades of scientific consensus, supports the focus of developing geologic 

repositories and ensuring a strong link between storage and disposal that ensures 

no storage site will ever become a de facto repository. After detailing the shortcomings of S. 1240, we offer specific suggestions for crafting successful, durable legislation and a bill that can address the longstanding national challenge of nuclear 

waste. 

II. SPECIFIC COMMENTS ON S. 1240 AND THE EVOLUTION OF THE BRC PROCESS

A. Comments on Title I: Sections 101-103 

Title I of S. 1240 closely tracks last year’s S. 3469, which in turn, recognized our 

generation’s ethical obligation to future generations regarding nuclear waste disposal. Unfortunately, subsequent Sections of the bill sever the crucial link between 

storage and disposal. 

As we suggested last fall, the bill should include an explicit adoption of the primary 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: public health, environmental protection and financial security. 

Also, the meaning of Section 102(4) should be expanded and clarified by removing 

the word ‘‘centralized’’ and inserting the words ‘‘safe, environmentally sound and 

publicly accepted’’ to address several of the concepts we detail below. 

B. Comments on Title II: Sections 201-206 

With respect to 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 (the Energy Research Development Agency, DOE 

and the Nuclear Regulatory Commission (NRC)) make the case that an alternative 

institutional vehicle for nuclear waste disposal is necessary. However, we caution 

that any 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 process (for example, in support of the initial guidelines), but it is clear to 

us that NEPA has full application to the newly proposed S. 1240. We hope the Committee will speak to this matter in the record of this proceeding including any report 

filed with the bill or, better yet, simply clarify the matter in future and improved 

versions of the bill. 

Further, as noted in our introduction, NRDC advises the new nuclear waste entity 

be governed by a board of directors. The lengthier processes associated with arriving 

at consensus decisions—as compared to the decision-making capacity of a single administrator—can be painful but are worthwhile in the end. A single administrator 

can upset carefully crafted disposal progress in one term; a diverse board of directors is less likely to do so. The BRC itself is a good example of the benefits of a 

group decision-making structure, where a wide array of viewpoints (though not 

nearly as diverse as we suggested or think was necessary) can and did produce useful results. 

In our May 2013 comments on the Discussion Draft of this bill, we stated that 

representation on this board of directors should be balanced by political party representation, by governmental affiliation (i.e., federal, state, or tribal), and include 

representation by non-governmental organizations in addition to industry. In addition, in establishing the board of directors of the nuclear waste entity, the legislation should have a provision explicitly prohibiting the majority on the board from 

comprising members with existing or historical ties to the nuclear industry. Such 

a requirement would recognize the existing revolving door between government 

service at NRC, DOE and the nuclear industry. Further, ensuring the board is not 

disproportionately composed of members with existing or historical ties to the nuclear industry would improve public trust and acceptance of the government’s newly 

legislated nuclear waste storage and disposal program. 

We also note with concern changes to Section 205, the Nuclear Waste Oversight 

Board. Here, the language of Section 205(a) has been substantially refined to focus 

on financial aspects of the Nuclear Waste Fund, the Working Capital Fund, and the 
68 

2The Nuclear Waste Discussion Draft released by the Committee in March of this year included a proposal for an alternative Section 305 as a suggested replacement of Section 304(b)- 

(g) of the draft bill. S. 1240 includes the replacement language, and while some elements of alternative Section 305 have been altered in the interim, the majority of the text remains the 

same. 3See BRC Final Report at xii, ‘‘[A]t the same time, efforts to develop consolidated storage 

must not hamper efforts to move forward with the development of disposal capacity. To allay 

the concerns of states and communities that a consolidated storage facility might become a de 

facto disposal site, a program to establish consolidated storage must be accompanied by a parallel disposal program that is effective, focused, and making discernible progress in the eyes of 

key stakeholders and the public.’’ See also, ‘‘[t]his 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 must be sought without further delay.’’ BRC Final 

Report at 40. 

performance of the Administrator in fulfilling contracts. Stressing the importance of 

the Oversight Board’s review of financial aspects seems appropriate, but the potential crucial functions of the Oversight Board—chiefly, review of the progress of nuclear waste facilities—have been relegated to Subsection (m). It is not clear to us 

why the bill includes this apparent legislative devaluation, especially when the functions delineated by Subsection (m) include oversight of the funds made available to 

the Administrator, the adequacy of the fees, and the liability of the United States 

to contract holders. We suggest returning the functions (now in Subsection (m)) to 

primary placement at the beginning (in Subsection (a)) and deleting the duplicative 

text of Subsection (a)(1)(A)(B) and (C), saving such admonishment for the Committee Report. 

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, while creating a review board may be a useful first step, more importantly the full suite of 

existing environmental laws should have full application to nuclear waste matters, 

and the new Nuclear Waste Administration should be bound by, and benefit from 

clearly defined external regulation. We address this issue in more detail, infra at 

10-12. 

C. Comments on Title III: Sections 301-308 

As noted in our introduction, disposal of nuclear waste in geologic repositories 

should remain the core focus of this legislation. Regrettably, by the inclusion of 

much of ‘‘alternative’’ Section 305 from the Nuclear Waste Discussion Draft,2 S. 

1240 presents a structure that advantages immediate introduction of interim storage options over development of a sound geologic repository program. As a preliminary matter, we stress NRDC supports commencing work on consolidated interim 

storage with a specific focus on development of an interim storage facility for 

stranded fuel. Indeed, we have proposed a set of steps to develop such a pilot interim storage option and do so again today, infra at 9-10. 

(1) EVOLUTION OF THE INTERIM STORAGE ISSUE SUBSEQUENT TO THE BRC

The nuclear waste legislative process has been moving in the wrong direction. The 

BRC initially set out a phased, careful approach to developing both repositories and 

storage sites with strong checks to ensure storage sites could not become de facto 

repositories. This has been transmogrified in S. 1240 to a measure that prioritizes 

consolidated storage at the expense of a meaningful repository program. In short, 

NRDC believes that if S. 1240 becomes law, a future Congress will be forced to deal 

with this issue again, with no meaningful disposal solution on the horizon, but with 

an even larger burden of radioactive hazardous materials. 

S. 1240 lacks, for example, the specific check on the development of interim storage sites pending meaningful progress on the repository program found in Section 

306 of last year’s S. 3469. The requirement in Section 306(a) stated: ‘‘The 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 put the horse before the cart and 

ensured the crucial linkage between storage and disposal that the BRC acknowledges is necessary.3 Such language should be included in S. 1240. 

We expressed concern last year with an exception for 10,000 metric tons of spent 

nuclear fuel destined for storage, and express similar concerns about Section 309 of 

S. 1245 (Energy and Water Development Appropriations Act of 2014). But the lan-
69 

guage of S. 1240 merits our outright objection and goes far beyond the careful, 

phased approach of last year’s bill, which very closely tracked the BRC Final Report. 

Indeed, Section 305 of S. 1240 even does away with the Nuclear Waste Discussion 

Draft’s fig leaf Suspension For Lack Of Substantial Progress, severing even the last 

minimal checks on interim storage in the event no progress is made on a repository, 

leaving the repository program and storage program on two entirely separate tracks. 

(2) A COMPARISON OF S.3469 WITH S.1240

Sections 304, 305 and 306 of last year’s S. 3469 went much of the way toward 

structuring a result that would avoid repeating the failure of the Yucca Mountain 

process. The 2012 version of Section 305(a) directed the U.S. Environmental Protection Agency (EPA) to adopt, by rule, broadly applicable standards for the protection 

of the general environment from offsite releases from radioactive material in geologic repositories. Further, last year’s Section 305(b) directed NRC to then amend 

its regulations governing the licensing of geological repositories to be consistent with 

any relevant standard adopted by EPA. These requirements and this phasing of 

agency actions in S. 3469 were appropriate (i.e., first EPA sets the standards and 

then NRC ensures its licensing process meets those standards). In our earlier testimony on S. 3469 we expressed concern that the timeline for this phasing was inadequate, but those were concerns we hoped could be addressed in a later version of 

that bill. Unfortunately, Section 307 of S. 1240 does not even approximate such requirements, and also ignores the BRC’s recommendation that new, applicable rules 

be in final form before site selection. 

Further, S. 3469’s Section 304, the heart of the BRC’s original template, set forth 

a clear, linked and strongly similar process for the development of both interim storage sites and repositories. The original Section 304(a) set 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 whether, and on what terms, 

they would host a nuclear waste facility was an important step forward that has 

not previously existed in nuclear legislation. S. 3469’s Section 304(b) wisely provided 

for consistency with Section 112(a) of the NWPA but required the issuance of guidelines not later than one year after the date of enactment of the Act. We thought 

this one-year period was insufficient, but supported such consistency with the enumerated provisions in Section 112(a). Last year’s Section 304(c) set up a process for 

determining candidate sites that, in general terms, could chart a process arriving 

at protective disposal solution, if it were: (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. And Section 304(f) designed a consent process applicable to both storage and disposal sites. 

Ultimately, last year’s bill, S. 3469, was attentive to BRC’s recommendation of a 

‘‘consent-based, adaptive, and phased approach’’ for developing geologic disposal options. We agreed with the general thrust of such a conceptual framework for developing repositories, but suggested that any such ‘‘consent-based’’ process would enjoy 

a far higher probability of success in concert with a simple, but profound, change 

in the law—Congress with its firm understanding of federalism, should 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. 

We discuss this further below. 

(3) THE FAILURE TO LINK STORAGE AND DISPOSAL IN S. 1240

We turn now to the analogous Sections in the current bill, S. 1240, and the contrasts are dismaying. The basic structure of the template from S. 3469 is scattered 

in pieces throughout the current bill, and the development of repositories and interim storage facilities have been placed on very different tracks. 

We find that Section 304 of S. 1240 has been truncated even compared to the Discussion Draft and reduced to mere aspirations it will structurally no longer be able 

to achieve. Section 305 spells out the new process for Interim Storage facilities, in 

great measure modeled on the ‘‘alternative’’ Section provided with the Discussion 

Draft. Section 305 of S. 1240 requires requests for proposals (RFPs) for interim storage sites not later than 180 days after enactment, likely before an Administrator 

is even confirmed by the Senate. The RFPs shall include general guidelines and, 

after one or more public hearings, a process for site characterization, selection, and 

licensing. Remaining links between storage and disposal are found in Section 305(c), 

where the Administrator is urged (in the wispiest terms) ‘‘to seek to ensure’’ that 

efforts to develop a storage site for ‘‘nonpriority’’ waste are accompanied by parallel 

efforts to develop a repository. 
70 

In S. 1240, during the first 10 years after enactment, the Administrator may issue 

RFPs for one or more storage sites for non-priority waste, but may not issue additional RFPs unless the Administrator has obligated funds for activities in the repository program. After the first 10 years, the Administrator may not issue additional 

RFPs for non-priority waste storage unless there is a repository site under evaluation. There is no volume limit for the non-priority storage site in either case. 

And priority and preference in site selection for sites suitable for co-location of a 

storage facility and a repository provide cold comfort for the following reasons. Unfortunately, preference and priority for co-location are not articulated as binding factors, no matter how moribund a repository program. And even if they were meaningfully binding, which they are currently not, such preference presents a host of 

problems that could lead to the consolidated storage site morphing into the de facto 

repository, regardless of the progress in the repository program (if, e.g., the co-located repository program derails late in the process for technical or institutional 

reasons). Further, there is nothing in Title III barring the construction and operation of facilities for repackaging nuclear spent fuel and nuclear waste, which could 

include construction and operation of facilities for spent fuel reprocessing (chemical 

or metallurgical). Indeed, NRDC is already aware of multiple efforts and interest 

in co-locating storage and reprocessing facilities. 

In summary, there is nothing in S. 1240 to halt a governor interested in hosting 

a potentially unlimited interim storage site and associated reprocessing facility from 

putting the process on a fast track before EPA’s new radiation protection rules and 

NRC’s new licensing rules are in place; before a repository program has even commenced meaningful work; and indeed, potentially before submission of the final 

‘‘Mission Plan’’ described in Section 504. Whether such a situation could emerge in 

Idaho, New Mexico, Tennessee, South Carolina, or other states, or even at Nevada’s 

Yucca Mountain (with attendant controversy and rancor) is beside the point because 

the phased, careful process designed to achieve a publicly acceptable result outlined 

by the BRC and included in last year’s S. 3469 has been jettisoned by S. 1240’s 

prioritizing of interim storage. 

(4) THE CONSENT AGREEMENTS OF SECTIONS 305 AND 306 ARE INADEQUATE

The siting and consensus approval for storage and repository facilities should be 

strongly consistent, if not identical. For storage facilities, there is the possibility, but 

not the requirement, of a ‘‘cooperative agreement’’ in Section 305(b)(3)(C). The consent process should require this minimal, initial agreement. The consent process of 

Section 305(b)(4)(B) includes no provisions related to the contents or terms and conditions of a consent agreement as were included in S. 3469. In addition to the lack 

of adequate technical requirements, this lack of an adequate consent process is contrary to the purpose of ‘‘establish[ing] a new consensual process’’ (Section 102(3)) 

and makes it unlikely that there will be successful siting of storage facilities. 

The consent process for repositories still exists in Section 306(e) of S. 1240. But 

the ratification requirement of S. 3469 Section 304(f)(4) is missing. Apparently, Congress could, at any time, choose not to ratify the consent agreement, or ratify it with 

changed conditions, or not provide funding or allow other provisions to be implemented. It is not clear to NRDC why any state would consider this to be an adequate ‘‘consent’’ process, when its requirements could be arbitrarily overturned by 

Congress. 

D. Comments on Title V—Sections 501-509 

Unfortunately, the timeline found in the ‘‘mission plan’’ also do not provide a 

meaningful linkage between storage and disposal. In brief, the ‘‘mission plan’’ is the 

report required under Section 504, presented to Congress, the Oversight Board, the 

NRC, the Nuclear Waste Technical Review Board, and then released for public comment. All this is to be done in short order. The proposed mission plan is due not 

later than one year after the date of enactment of S. 1240. There is no specific date 

for final issuance, and there is provision for revision to reflect major changes, including from the ‘‘consent’’ process in the planned activities, schedules, milestones, 

and cost estimates reported in the mission plan. 

The pertinent dates of the mission plan are found in Subsection (b), where the 

Administrator is to set out schedules for operation of a pilot facility not later than 

December 31, 2021; a storage facility for ‘‘nonpriority’’ waste not later than December 31, 2025; and a repository not later than December 31, 2048, likely more than 

three decades distant from the passage of any iteration of the Nuclear Waste Administration Act. Any analysis of ‘‘meaningful’’ progress on the repository during the 

first few years subsequent to the Act’s enactment is meaningless when weighed 

against a scale of more than 3 decades. Further, the allowance for revision of the 
71 

mission plan can be used to simply shunt aside observations about problems in repository development or rapid development of the interim storage sites. 

The certification process and suspension proceedings in Subsections (c) and (d) 

could prove to be politically fraught, but ultimately meaningless in light of the time 

frames. Rather than the hard cap on volume present in last year’s S. 3469 or, as 

NRDC suggests, an interim storage pilot project at operating commercial site(s) limited to the stranded fuel, S. 1240 sets out a functionally meaningless process that 

requires the Administrator to move quickly with consolidated interim storage and 

posit (likely rosy) scenarios about repository development decades away. 

III. HOW THE EVOLUTION OF THE BRC PROCESS CAN BE SAVED: NRDC’S PRESCRIPTION

The Committee has the ability to reinstate the primacy of geologic repositories as 

the solution for nuclear waste and to ensure strong linkage between storage and disposal that ensures the former never become de facto disposal sites. NRDC and many 

others could support such legislation. 

NRDC offers five recommendations to finally provide durable legislation for nuclear waste. They are: (1) recognize that geologic repositories must remain the core 

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 last year’s S. 3469; and (5) exclude distracting and polarizing closed 

fuel cycle and reprocessing options. 

Importantly, our view on each aspect is premised on a single overarching caution: 

to avoid repeating the mistakes of the last three decades, whether in siting a repository or developing interim storage options, Congress must create a transparent, equitable process incorporating strong public health and environmental standards insulated from political expediency or other distortions. That would ensure, at the conclusion of the process, the licensing of a suitable site (or sites). What follows is 

NRDC’s detailed prescription for amending S. 1240 and establishing a protective 

and robust nuclear waste storage and disposal process. 

A. Geologic Disposal Must Remain Primary 

The primacy of geologic disposal as the solution for nuclear waste is consistent 

with more than 50 years of scientific consensus and, most recently, with the findings 

of the bipartisan BRC. No other solutions are technically, economically or ethically 

viable over the long term for the environment and human society. NRDC strongly 

supports the development of a science-based repository program that acknowledges 

the significant institutional challenges facing spent fuel storage and disposal. Advancing S. 1240 without reinstating the primacy of geologic disposal as the solution 

would gravely harm collective efforts to establish lasting solutions for nuclear waste 

and would be contrary to the efforts of the BRC. 

B. Create a Coherent Legal Framework before Site Development 

We have described the basis for this already in our discussion of S. 3469’s Section 

305 and do not need to belabor the point, supra at 5. Quite simply, if Congress ensures that rules for developing nuclear waste facilities are in place before the selection of sites begins, it will forestall a host of problems likely to emerge down the 

road. We only need reflect on this history of Lyons, Yucca Mountain, Monitored Retrievable Storage, and many other failed attempts. 

C. Address Interim Storage in a Phased Approach Consistent With the BRC 

We commence by reminding the Committee that the United States attempted to 

sever the link between interim storage and final disposal previously, only to conclude doing so was a mistake. Beginning in 1957, the Atomic Energy Commission 

(AEC) pursued a geologic repository program for high-level radioactive waste (HLW) 

in a salt deposit near Lyons, Kansas. Opposition initially came from the Kansas Geological Survey but soon spread. Concerns over conditions in the mine, the presence 

of numerous oil and gas wells in the vicinity, and the fact that there was solution 

mining at an operating adjacent salt mine operated by American Salt Company 

forced the AEC to abandon the site in 1972. Following the demise of the Lyons repository effort, later in 1972 the AEC announced it intended to develop a 100-year 

Retrievable Surface Storage Facility (RSSF). The U.S. Environmental Protection 

Agency (EPA) and others opposed this interim storage proposal because it diverted 

attention and resources from efforts to find a permanent geologic disposal solution. 

As a consequence of this opposition, the Energy Research and Development Agency 

(ERDA) abandoned its plans for a RSSF in 1975. The similarities of this history 
72 

with failed attempts to force acceptance of the proposed Yucca site should be apparent. 

We now offer four observations on interim storage: 

1.) Consolidated storage of spent fuel from currently operating reactor sites 

at an alternate, previously greenfield site is unnecessary and ill-advised. Any 

pilot project for consolidated storage should be limited to hardened, dry-cask 

storage of stranded spent fuel from shut down reactor sites. 

2.) If emergency conditions arise at an existing operating reactor site, e.g., 

due to an earthquake, discovery of a fault under the reactor(s), or a disaster 

related condition, that threatens the environment and public health, the reactors should be shut down and the spent fuel at the site would qualify as stranded spent fuel. 

3.) Existing and currently operating reactor sites have government and implicit public consent for interim storage of spent fuel. 

4.) Consolidated spent fuel storage should not be viewed as a step toward, or 

means of furthering, spent fuel reprocessing. 

With those observations in mind, NRDC urges the Committee to write legislative 

language for a pilot project to address the total stranded spent fuel at closed reactor 

sites (currently 13 sites), currently defined in S.1240 as ‘‘priority fuel,’’ where spent 

fuel would be stored in dry casks within one or more hardened buildings similar 

to the Ahaus facility in Germany. Potential volunteer sites already demonstrating 

‘‘consent’’ are found at operating commercial reactors. The utility of using existing 

commercial operating reactor sites rather than burdening new areas with spent nuclear fuel should be apparent: existing sites require far less new infrastructure, already have the capacity for fuel management and transportation and have the consent necessary for hosting nuclear facilities. And by keeping consolidated, interimstored spent nuclear fuel under the guardianship of the nuclear industry that produced the waste in the first instance, Congress ensures that careful progress continues with the repository program because all parties will know that it is necessary. 

Further, S. 1240 is silent on an important matter—the current configuration of 

spent fuel storage at a number of operating reactor sites. 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 security risks that interim wet storage poses. 

This is true regardless of the seismic, population density, or other natural factors 

that might create concern with the current storage configuration. NRDC and our 

colleagues at the Union of Concerned Scientists and many others noted 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 to 

seven years following discharge from the reactor. We again urge Congress to act on 

this issue in this legislation or even in a stand-alone bill. 

To reiterate, a pilot interim storage project housed at an existing commercial reactor site that addresses issues of stranded fuel would go far in dealing with a number 

of public safety and environmental harms, would do no damage to a carefully constructed bill that focuses on repository development. 

D. Consent, Federalism, and a Fundamental Change In Law 

(1) The Consent Agreements Suggested by BRC and Found In Section 306 Are 

Inadequate To the Task 

For all its laudable qualities, we believe the consent agreements in Section 306 

(for repositories and not for storage sites) will not solve the fundamental problem 

facing nuclear waste disposal nor allow States the oversight role necessary to create 

a durable, lasting solution. Rather, Congress, with its firm understanding of federalism, should 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 play a central role for a repository and 

waste storage program to be successful, and regrettably in S. 1240 they cannot. The 

BRC recognized as much and noted that federal and state tensions are often central 

to nuclear waste disputes. We note that 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. Nev-
73 

ertheless, 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 S. 1240 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 306(e) were enacted, we think it likely disputes will continue unchecked, including as the Administrator and state and local governments seek to negotiate a consent agreement, unless Congress finally makes a decades-overdue change in the law. 

(2) NRDC’s Prescription for Ensuring States’ Authority—Remove the AEA’s 

Exemptions from Environmental Law 

A meaningful and appropriate role for states in nuclear waste storage and disposal siting can be accomplished in a straightforward manner by amending the 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 the Senate 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 retains broad authority over its vast amounts of radioactive waste, with 

EPA and state regulators only able to push for adequate cleanups at 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 under RCRA as a critical positive element in the development of the currently active site (Final Report at 21). 

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 NRC and DOE, but the agencies can, and do, 

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 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 the Nation 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 

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. 

Section 306(e) allows a consent agreement with terms and conditions including 

‘‘regulatory oversight authority.’’ The attempt to remedy regulatory deficiencies 

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 consent agreement could potentially give a state some measure of comfort that the 

agreement it had painstakingly negotiated over ‘‘undue burdens’’ or conflicting compliance agreements will hold fast. But there would be nothing stopping Congress 

from revisiting this law, ratifying the consent agreement 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 negotia-
74 

tion 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. 

E. Exclude Distracting and Polarizing Closed Fuel Cycle and Reprocessing Options 

The unlimited interim storage allowed for in S. 1240, regardless of the state of 

repository program, is a course of action benefitting the narrow financial interests 

of industry, and it undermines final repository solutions, and sets up a clear set of 

incentives for reprocessing and fast reactors. This is an enormous step back from 

S. 3469. Last year former Chairman Bingaman noted: 

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. 

NRDC concurs. The lack of a limit on consolidated interim storage increases the 

probability of continued efforts at reprocessing the spent fuel, resulting in plutonium separations with no way to ensure that the plutonium would not be used to 

make nuclear weapons. Inclusion of incentives for reprocessing and fast reactors 

would necessitate NRDC’s further objection to such nuclear waste legislation. In addition, reprocessing has proven to be expensive, environmentally disastrous, and a 

serious non-proliferation threat. And as the BRC found, reprocessing is also not a 

viable waste management strategy because it does not significantly reduce the radioactivity of the waste that must be stored in a repository. Indeed, just as for spent 

fuel, we must also work to resolve the path to a repository for the millions of gallons 

of dangerous, highly radioactive waste generated by spent nuclear fuel reprocessing 

in the United States over the past half century. 

In contrast to this setup for reprocessing and fast reactor facilities, NRDC’s recommendation of an interim storage pilot project that is strictly limited to existing 

commercial operating sites avoids the likelihood that reprocessing would occur. 

First, our consolidated pilot proposal gets the ball rolling on spent fuel almost all 

parties agree is ‘‘stranded.’’ Second, with its strict limit to shut down reactors and 

careful attention to establishing appropriate safety criteria, any such interim site 

could solve immediate public safety risks but not take the air out of meaningful 

progress geologic repository program. 

IV. CONCLUSION

We share the frustrations of the Committee and the bill’s sponsors with the halting pace of efforts to find a disposal solution for nuclear waste. But we urge you 

to not let such frustration result in short-sighted ‘‘solutions’’ such as those found in 

S. 1240. 

Efforts to ‘‘streamline,’’ ‘‘reduce regulatory obligations’’ or simply force through 

projects by setting arbitrary deadlines, are in significant measure how the original 

NWPA process and then the Yucca project were derailed. Rather than trying to 

short circuit an imaginary parade of onerous regulatory obligations, NRDC urges 

careful attention to creating a coherent legal framework before commencing any geologic repository or interim storage site development process. Then (and only then) 

will it be possible to have a consent-based approach for nuclear waste storage and 

disposal consistent with our history of federalism. 

Simply, NRDC opposes interim storage configurations that remove the necessity 

of a repository program and provide clear incentives for reprocessing and fast reactors. Further, relying on the two-track storage and disposal process presented in S. 

1240 to provide the meaningful oversight role States seek is another recipe for gridlock—there is no provision in the storage Section for a consent agreement and the 

provision in the repository Section does not bar Congress from revisiting any negotiated agreement, ratifying the consent agreements with conditions, and removing 

whatever meaningful restraint a state might assert. This is a recipe for failure as 

highlighted by an ongoing example. The Energy Department’s current effort to reclassify high-level radioactive waste and ship it to the Waste Isolation Pilot Plant 

(WIPP) in New Mexico illustrates just how an agency can and will take such liberties (and simultaneously not solve any of the pressing problems at the Hanford 

site). 
75 

In contrast to the difficulties in structuring state and federal roles noted above, 

ending the anachronistic AEA exemptions solves the matter of meaningful state 

oversight once and for all. It is past time for Congress to take such a step and this 

is the legislation where it should finally be done. 

We look forward to continuing to work with the Committee on this difficult topic 

and I am happy to answer any questions. 

The CHAIRMAN. Thank you very much. 

Mr. Lochbaum. 

STATEMENT OF DAVID LOCHBAUM, DIRECTOR, NUCLEAR 

SAFETY PROJECT, UNION OF CONCERNED SCIENTISTS 

Mr. LOCHBAUM. I thank Chairman Wyden, Ranking Member 

Murkowski and all members of the committee for this opportunity. 

S. 1240 seeks to remedy problems resulting from the Nuclear 

Waste Policy Act not attaining its specified outcome, namely a Federal repository accepting spent fuel by January 1998. The failure 

to open the repository means that spent fuel continues accumulating at the plants. The departure from the Nuclear Waste Policy 

Act forced nuclear plant owners to expand onsite spent fuel storage 

capacities. Plant owners have sued the Federal Government for recovery of these costs. 

There was another consequence. Spent fuel pools initially designed to hold slightly over one reactor core now hold up to 9 reactor cores. Large amounts of radioactive material which should now 

be within a repository designed to isolate it from the environment 

for at least 10,000 years, instead remain at the plant sites. 

UCS wants to see the status quo ended. 

We strongly advocate accelerating the transfer from spent fuel 

pools into dry storage. 

Figure one in our written material contrasts the amount of spent 

fuel actually stored at the nuclear plants with the amount had the 

repository opened on schedule. 

The triangles show onsite spent fuel storage amounts steadily declining from a peak of about 38,000 metric tons in 1998 as some 

went to the repository. 

The diamonds show the amounts instead climbing to over 67,000 

metric tons. 

Portions of S. 1240 address the cost implications of the failure to 

accept spent fuel. This is fair and reasonable because the plant 

owners incurred costs they would not have otherwise encountered 

had the Federal Government met its obligations. 

But fairness dictates that another consequence from that failure 

also be rectified. Had the Federal Government met its obligations 

spent fuel pools would not contain up to 9 reactor cores. If legislation addresses the financial implications than it is only fair that it 

address the safety implications also. If the Congress sends the 

President a nuclear waste bill that fails to address this inequity it 

would have failed the public in a major way. 

That accelerating the transfer from spent fuel pools into dry storage reduces risk as shown in Figure two of our written testimony. 

The columns labeled high density reflect the current situation. 

The columns labeled low density reflect the situation if transfer 

into dry storage is expedited. 

The low density columns also reflect the situation that would 

now exist had the Federal Government met its obligations under 
76 

* Figure 1 has been retained in committee files. 

the Nuclear Waste Policy Act. The risk reduction is undeniable. 

The contaminated land area drops from 9400 square miles to 170 

square miles and the number of displaced persons drops from 4.1 

million to 81,000. 

Dry storage is not inherently safe. But it provides significantly 

better risk management. 

For the record all of the contaminated area and displaced persons in both cases is due to radioactivity released from spent fuel 

pools. Not a single person is forced to leave from their home, leave 

their home, due to radioactivity released from dry storage. 

The Nuclear Regulatory Commission’s actions reinforce this reality. Shortly after 9/11 the NRC issued ordered to upgrade security at operating nuclear power plants, followed 3 months later by 

orders for spent fuel pools, followed 5 months later by orders for 

dry storage security. 

The NRC triaged the relative hazards tackling the highest first 

and the lowest last. After Fukushima the NRC directed its inspectors to examine reactor core and spent fuel pool cooling systems for 

vulnerabilities in the event of similar challenge. The NRC did not 

instruct its inspectors to waste a minute examining the low, dry 

storage hazard. 

We urge the Congress to accelerate the transfer from spent fuel 

pools into dry storage. This does not introduce an additional step 

in the road to repository since spent fuel must be removed from the 

pools to dry cask in order to be transported. It merely entails taking this step sooner rather than later. 

Americans deserve this protection. 

Thank you. 

[The prepared statement of Mr. Lochbaum follows:] 

PREPARED STATEMENT OF DAVID LOCHBAUM, DIRECTOR, NUCLEAR SAFETY PROJECT, 

UNION OF CONCERNED SCIENTISTS

On behalf of the Union of Concerned Scientists, I thank Chairman Wyden, Ranking Member Murkowski, Senator Feinstein, Senator Alexander, and all members of 

the Energy and Natural Resources committee for this opportunity to provide our 

views on S.1240, the Nuclear Waste Administration Act of 2013. 

S.1240 seeks to remedy problems resulting from the Nuclear Waste Policy Act of 

1982 not attaining its specified outcome; namely, a geological repository for spent 

fuel from civilian nuclear plants operated by the federal government and accepting 

waste by January 31, 1998. 

Had the Nuclear Waste Policy Act (NWPA) been implemented as enacted, the federal government would have begun accepting spent fuel in 1998. The nominal 3,000 

metric tons per year transfer rate from plant sites to the federal repository exceeded 

the rate at which spent fuel was being generated. Thus, the amount of spent fuel 

stored at plant sites around the country would have peaked in 1998 at around 

38,000 metric tons and steadily declined thereafter as shown in Figure 1.* 

The delay in opening the federal repository meant that spent fuel continued to 

accumulate at the plant sites. By year end 2011, over 67,000 metric tons remained 

at plant sites while 0 ounces resided in a federal repository under the NWPA. 

The departure from the NWPA plan forced nuclear plant owners to pay for expanded onsite spent fuel storage capacity (e.g., replacing original low-density storage 

racks in spent fuel pools with high-density racks and building onsite dry storage facilities to supplement storage in wet pools). Plant owners have sued the federal government for recovery of costs they incurred for storing spent fuel at their sites that 

should have been in a federal repository under the NWPA. The U.S Government Ac-
77 

1 U.S. Government Accountability Office, ‘‘Spent Nuclear Fuel: Accumulating Quantities at 

Commercial Reactors Present Storage and Other Challenges,’’ GAO-12-797, August 2012. 

* Figure 2 has been retained in committee files. 

countability Office reported that these lawsuits cost American taxpayers $1.6 billion 

with an estimated $19.1 billion of additional liability through 2020.1

There was another consequence from expanded onsite spent fuel storage. Spent 

fuel pools initially designed to hold slightly over one reactor core’s inventory of irradiated fuel now hold up to nearly 9 reactor cores of irradiated fuel. Unlike the reactor cores, the spent fuel pools are not protected by redundant emergency makeup 

and cooling systems and or housed within robust containment structures having reinforced concrete walls several feet thick. Thus, large amounts of radioactive material—which under the NWPA should be stored within a federal repository designed 

to safely and securely isolate it from the environment for at least 10,000 years— 

instead remains at the reactor sites. 

There is no easy solution to this situation. UCS applauds this committee for trying to end the status quo. Unfortunately, it is not a task of picking the best among 

an array of suitable options. It is the more unpleasant chore of picking the lesser 

of many evils. UCS wants to make it clear that sustaining the status quo is one 

of the evil options. Under the status quo, costs and risks of onsite spent fuel storage 

will continue to increase unnecessarily. 

UCS wants to see the status quo ended by reducing the inventories of irradiated 

fuel in spent fuel pools. We strongly advocate accelerating the transfer of irradiated 

fuel from spent fuel pools to dry storage. In our view, currently available and used 

dry storage technologies can be used to substantially reduce the inventory of irradiated fuel in spent fuel pools, with a goal of limiting it to the equivalent of one or 

two reactor cores per pool. 

Figure 1 contrasts the actual amount of spent fuel stored at nuclear plants sites 

with the amount that would have been there had the NWPA been implemented as 

intended. The green triangles represent onsite spent fuel storage amounts steadily 

declining from a peak of about 38,000 metric tons in 1998 as fuel gets transported 

to the federal repository at a rate of 3,000 metric tons per year (the red squares). 

The blue diamonds show the amounts instead climbing to over 67,000 metric tons. 

The lawsuits brought by nuclear plant owners and the financial portions of S.1420 

address the cost implications of the failure of the federal government to accept spent 

fuel under the NWPA. This is fair and reasonable because the plant owners have 

incurred costs they would not have encountered had the federal government fulfilled 

its obligations under the NWPA. 

But fairness also dictates that the other primary consequence from the federal 

government’s failure also be rectified. Had the federal government met its obligations under the NWPA, spent fuel pools would not contain up to 9 reactor core’s 

worth of irradiated fuel. More fuel in the pools means a greater risk to the surrounding public if there is a problem with the pools that releases radioactivity. If 

lawsuits and legislation address the financial repercussions caused by the performance gap identified in Figure 1, then it is only fair and reasonable that this legislation also address the associated safety and security implications. They are inseparable in reality and must also be inseparable in law. If the Congress approves and 

sends to the president a nuclear waste bill that fails to address this serious risk 

and inequity, it will have failed the American public in a major way. 

Accelerating the transfer of irradiated fuel from spent fuel pools to onsite dry storage reduces the overall safety and security threat profile of the plant as shown in 

Figure 2.* The columns labeled High Density (1x4) reflect the current situation. The 

columns labeled Low Density reflect the situation if irradiated fuel transfer into dry 

storage is expedited. The risk reduction is undeniable: the contaminated land area 

is reduced from 9,400 square miles to 170 square miles and the number of people 

displaced from their communities for a long time drops from 4,100,000 to 81,000. 

Dry storage is not absolutely or inherently safe and secure; if so, the federal government’s repository problems would be solved. But dry storage provides significantly 

better management of the onsite spent fuel storage risks. 

The Nuclear Regulatory Commission’s (NRC’s) actions illustrate this point. After 

the tragic events of 9/11, the NRC issued orders to upgrade security measures for 

nuclear facilities. On February 25, 2002, the NRC issued orders to upgrade security 

for operating nuclear reactors. On May 23, 2002, the NRC issued orders to upgrade 

security for spent fuel pools. And on October 16, 2002, the NRC issued orders to 

upgrade dry storage security. The NRC properly triaged the hazards, tackling the 

highest first and the lowest last. 

After the tragic events at Fukushima, the NRC instructed its nuclear plant inspectors to look at capabilities for cooling the reactor core and spent fuel pool in 
78 

event of a beyond design basis challenge like that faced in Japan. The NRC quite 

properly did not instruct its inspectors to waste resources examining the low hazard 

posed by onsite dry storage. 

In March 2012, the NRC ordered plant owners to implement an array of measures 

intended to better protect irradiated fuel in reactor cores and spent fuel pools from 

damage. The NRC did not require owners to take any additional measures to better 

protect irradiated fuel in dry storage from damage. This low hazard was already 

adequately protected. 

Because the federal government failed to meet its obligations under the NWPA, 

spent fuel pools contain much more irradiated fuel and are essentially loaded guns 

aimed at neighboring communities. The scope of S.1420 must include removing 

some of these bullets. 

We urge the Congress to accelerate the transfer of irradiated fuel from spent fuel 

pools to dry storage. This does not introduce an additional step in the road to a repository since spent fuel must be moved from pools to dry casks in order to be transported; it merely entails taking necessary steps on that path sooner rather than 

later. 

The CHAIRMAN. Thank you very much. 

We are going to call another audible here because I guess we 

have a couple more minutes before we have votes. So I think Senator Murkowski, we can each probably take 5 minutes or so and 

at least have a chance to ask a few questions. 

Mr. Lochbaum, let me begin with you. 

The bill, as you know, sets up a program for the Federal Government to build new storage facilities for spent fuel. It was our sense 

that it was logical to move spent fuel if it was going to be cheaper 

and safer. For example, decommissioned nuclear power plants 

where there’s not going to be the ongoing operations. 

However, at some nuclear power plants there are going to be continued operations and maintenance and security and environmental monitoring for a long time to come, maybe decades. It 

might not be cheaper or safer to move the fuel to a central storage 

site especially since it will need to be moved again to the repository. 

So my question to you is would it make sense to try to figure out 

a way to perhaps make some payments for continued onsite storage 

at nuclear power plant sites if overall that would make an approach less expensive and safer? 

Mr. LOCHBAUM. If I understand the question correctly, yes. But 

if it just finances continuing the current practice where we keep 

pools close to being filled and pays for onsite storage, then there 

might be some cost savings but there’s no safety gain. 

The CHAIRMAN. The idea is to get a twofer. If you can get a 

twofer, if you can get more, an added measure of safety and it costs 

less than the concept, in my view of providing some payments for 

continued onsite storage, is worth looking at. 

Mr. LOCHBAUM. Right. 

The CHAIRMAN. You’ll see now I’m going to ask a follow up. 

I’m going to ask a question of you, Mr. Fertel. 

Now you also have recommended, Mr. Lochbaum, accelerating 

the transfer of spent fuel from spent fuel pools to dry cask storage 

and that was certainly my take away from going to Fukushima is 

to look at an approach like that. 

Are there other steps the Congress could take to encourage 

movement of spent fuel out of reactor pools such as allowing the 

Attorney General to enter into negotiations with utilities to pursue 

voluntary agreements to transfer their waste to dry cask storage as 
79 

part of a settlement agreement in return for providing interim storage? 

Mr. LOCHBAUM. Certainly. There are a number of ways such as 

that one. Also allowing the decommissioning fund that plant owners have set aside to be used for expanded onsite dry cask storage 

would also be a way to achieve the twofer that you mentioned earlier. 

The CHAIRMAN. OK. 

The same question for you, Mr. Fertel, that I asked Mr. 

Lochbaum. On this question of paying, looking at a way to make 

some payments for continued onsite storage at nuclear power plant 

sites when you hit what Mr. Lochbaum and I were talking about, 

the added measure of safety and less cost. 

Are you open to looking at something like that? 

Mr. FERTEL. Let me first say I totally respect your comment 

when you visited Fukushima and said that it made you think about 

events that people don’t think can happen. So with that as a context, if you look at the studies that have been done the Nuclear 

Regulatory Commission, by EPRI, a review by the AC Advisory 

Committee on Reactor Safeguards, there is not a significant difference in safety. 

Now you can do assessments which show what David said as far 

as if I have a release what’s the difference. But if we’re talking 

about very, very, very, low probability events the question isn’t so 

much do you pay for it. It’s how do you use your resources to improve safety at the plants smart? 

So we are right now, based upon Fukushima and based upon the 

Nuclear Regulatory Commission, taking steps to make sure one, we 

know what’s happening in a pool at the time through instrumentation under any event. 

Two, that we can get water to the pool under any event. 

So you can definitely do things at our plants and get an increment in safety in almost anything, Mr. Chairman. The question is, 

is it there that you should get it? I would say that right now what 

we’re doing makes a lot of sense. 

The pools did not fail at Fukushima. Though a lot of people 

thought they did. They didn’t. 

The CHAIRMAN. As you know, there were continued predictions 

about weather and the like. I’ll tell you when I was there looking 

at spent fuel rods, spent fuel pools and the proximity to the water 

that is not a prescription for a happy ending. 

Here’s my point and then I’m going to go right to Senator Murkowski. 

I just hope we can stay flexible on this kind of topic. I take your 

point as a thoughtful one. You’ve said, alright it might be safer, but 

it might not be the best use of the safety dollar. 

Mr. FERTEL. Right. 

The CHAIRMAN. So be it. I just hope because, I mean, here’s my 

point and I’ll let Senator Murkowski have the last word. 

In a tough debate about energy and natural resources, nobody 

gets what they want. Nobody gets what they believe they deserve. 

The question is can people get, in effect, what they need that as 

part of a solution that’s good for the country. 
80 

I think we all understand that this issue falls into the basket of 

essentially running longer than the Trojan War. It is just gone on 

and on and on. Apropos, Senator Risch’s point, we sure don’t do 

very well if we don’t get a solution and everything than everything 

just stays put. 

So both of you have been thoughtful on this point. It’s representative of what we’re going to have to do to try to find some common 

ground. 

So last questions and the last word for Senator Murkowski. 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

Gentlemen and Ms. Jameson, thank you for your testimony here 

this afternoon. You heard the discussion here earlier with the Secretary on the issue of consent based approach. The Secretary has 

pretty much summed it up saying that’s the basis on which the 

Blue Ribbon Commission came out and really so much of what our 

legislation is formulated around is this consent based siting. 

I guess this would be a question to you, Mr. Garcia or perhaps, 

Mr. Smith, any of you. 

In terms of what we have provided in this bill do you think that 

there is sufficient encouragement within the legislation that would 

allow for communities, tribes, to step forward and say, sure, we 

will be the host? 

What would it take for a tribe, a community, a State, to step up 

and say, we will be the host of a repository or a permanent facility? 

Mr. GARCIA. I can answer. Thank you. 

First of all that, you know, this legislation does allow for opportunities for anyone who wants to host and in this case tribal governments as such. If you remember some years ago there were efforts and there were at least 5 to 7 tribes that had said yes, we’ll 

take on this opportunity. They looked at it as an opportunity. 

But what failed in that case is the states invoked some legislation that disallowed a tribe to partner up in looking for a facility. 

I think that so as long as there’s a safeguard beyond that. So we 

can’t just leave it up to one of the Senators suggested that it’s up 

to the State. 

It can’t just be up to the State. It’s got to be a collaborative effort 

between the State and the tribe if a tribe so desires to move in 

with this kind of an endeavor then it should be up to the tribe as 

well. But I think those opportunities are there. 

So the other thing that tribe would like to be involved at the 

onset. Not just establish the agency and then forget about the Administration and forget about well, the bill is there. But we’ll get 

to it later. 

So I think it’s important to keep tabs and to move forward consistently with collaborative efforts, not so much consultation. I hate 

the word consultation. But collaborative effort to moving forward 

with resolving because it could happen because we looking at the 

country for the safety and well being of all of our people. 

Senator MURKOWSKI. Mr. Smith. 

Mr. SMITH. Senator, I think that all of our communities have expressed an interest in considering moving forward with this process. You know, first they’re looking for a path forward and certainty out of this consent process. But they’re also looking for economic development opportunities and job creation. I think that’s 
81 

got to come with it for communities that are going to be willing to 

consider this mission. 

Senator MURKOWSKI. So I believe it was Senator Alexander that 

mentioned a competition. I think it was Sweden that has essentially put the idea forth in that regard allowing for a competition. 

Do you need to have a prize at the end or is the prize the jobs 

and the economic activity that come with development? 

Mr. SMITH. Yes. I think the jobs and the economic development 

that come with the activity are going to be sufficient assuming that 

we go through the consent process and local and State governments 

have full input into this process. 

Senator MURKOWSKI. Yes, back to the full collaboration. 

Mr. Fertel. 

Mr. FERTEL. I think the only thing I would add and it was said 

by one of the Senators, it’s credibility of the Federal program that 

you’re going to actually implement effectively over time. I think 

that’s the other aspect that’s got to be very important to everybody. 

Senator MURKOWSKI. We kind of lost that credibility at this 

point. Nobody believes that we’re going to be—— 

Mr. FERTEL. That’s part of it. That’s part of the problem right 

now that I think we have. I know that you visited the WIPP facility and saw that. 

While it’s a great success right now, it took them over 10 years, 

you know, to get to the point where they believed in it and then 

they made it work. 

Senator MURKOWSKI. Let me ask the question since you mentioned 10 years. As I asked the Secretary whether or not the 10- 

year period within which we’ve outlined in the legislation is sufficient, is too aggressive? 

Do you believe that we can get to that point where we have the, 

a storage facility up and operating within a 10-year period? 

Mr. FERTEL. I think to Geoff’s comment on a pilot type facility 

that’s taking the decommissioned waste, I think that’s certainly 

possible the same way the Secretary said it. DOE is looking at the 

infrastructure required right now at the sites that are shut down. 

What would they need there to be able to take the canisters? 

Would it be by truck to rail or by truck all the way? 

So we think 10 years actually is good. It’s a forcing function, obviously not to cut any corners on safety or anything, but a forcing 

function to be diligent in doing it. 

Senator MURKOWSKI. Mr. Chairman, I do have some other questions, but I’ll submit them in writing as I’m sure some of our colleagues will as well. 

But thank you for the hearing and thank you to all of our witnesses. 

The CHAIRMAN. Very good point. We’ll keep the hearing record 

open for our colleagues who have additional questions. 

Thank you to all of our witnesses for their patience. Obviously 

we’ve got a lot of heavy lifting to do to get a bipartisan bill like 

this enacted. But we’re going to do everything we can because it 

seems to me to just allow this to go on and on and on as we heard 

in the discussion with Senator Risch, means that we have a solution that, at least, everyone agrees is unacceptable. 
82 

So we thank all of you. Thank you for your patience. The Energy 

and Natural Resources Committee is adjourned. 

[Whereupon, at 4:43 p.m. the hearing was adjourned.] 

[The following statements were received for the record.] 

NUCLEAR WASTE STRATEGY COALTION, 

July 30, 2013. 

Hon. RON WYDEN, 

Chairman, Senate Energy & Natural Resources Committee, 304 Dirksen Senate Office Building, Washington, DC, 

Hon. LISA MURKOWSKI, 

Ranking Member, Senate Energy & Natural Resources Committee, 304 Dirksen Senate Office Building, Washington, DC. 

DEAR CHAIRMAN WYDEN, RANKING MEMBER MURKOWSKI, AND SENATE ENR COM- MITTEE MEMBERS: 

The Nuclear Waste Strategy Coalition (NWSC)* appreciates your continued commitment to advance the nuclear waste policy debate with introduction of S.1240, the 

‘‘Nuclear Waste Administration Act of 2013.’’ We offer the following comments for 

the record. 

Upon reviewing the specific changes from the prior ‘‘Discussion Draft’’ to the current bill as introduced, we were pleased to see improvements in a few significant 

areas (e.g., removal of statutory ‘‘linkage’’ between pilot storage facilities and 

progress on a repository; and removal of three federal officials as designated appointees to the Nuclear Waste Oversight Board). It is an unusual and appreciated 

step for Congress to seek comment on draft legislation, and the revised language 

is responsive to concerns raised by stakeholders in certain areas. However, we must 

be clear that additional improvements are necessary to truly create a ‘‘sustainable, 

participatory process for managing nuclear waste,’’ as intended by the bill’s authors. 

Respectfully, we outline key areas requiring additional attention below. 

SETTLEMENT PROVISION (SEC 406(B)(1))

Because it requires utilities to settle existing lawsuits against the federal government in order to have access to future storage facilities (which utilities will have 

paid for through nuclear waste fee collections from ratepayers), the NWSC must 

strongly oppose Section 406(b)(1) and seek its removal. Our members cannot support 

relinquishing rights to damages owed to utilities and their consumers for repeated 

and costly government failures. Clearly, settling litigation may result in significant 

benefits for all affected parties, and the NWSC supports voluntary efforts to negotiate mutually acceptable resolutions. In fact, many contract holders (including 

NWSC members) have settled claims suits with the Department of Justice (DOJ). 

Recently, however, the DOJ has insisted contract holders give up unrelated contractual rights as the ‘‘price’’ for settlement; it is that fact, not reluctance by contract 

holders, that prevents more settlements. While the NWSC appreciates the authors’ 

attempts to protect taxpayers from mounting liabilities associated with the federal 

government’s failure to perform, the approach in this provision is not the solution. 

A legislative requirement to settle claims in order to get something the government 

owes under current federal law—removal of used nuclear fuel and high-level radioactive waste from plant sites—is unjust and unnecessary. Performance remains the 

key to reducing the federal government’s liability. 

MANAGEMENT & OVERSIGHT OF NUCLEAR WASTE PROGRAM (TITLE II)

As noted previously, the Nuclear Waste Oversight Board proposed in the discussion draft moved in a positive direction in that S.1240 no longer requires the appointment of three designated federal officials to constitute the Oversight Board. 

Having said that, the bill’s proposed duo of a Nuclear Waste Administration and an 

Oversight Board remain vastly inferior to the single-purpose federal corporation 

model (such as proposed in companion bills S.3322 and H.R.5979, by Senator 

Voinovich and Representative Upton, respectively, in 2010) and models that similarly establish a qualified board of directors to govern the entity and select and 

oversee the chief executive. In multiple studies over several decades, experts (most 

recently the Blue Ribbon Commission on America’s Nuclear Future (BRC)) repeatedly recommend such models to ensure accountability, to reasonably insulate the organization from political interference and excessive turnover, and to develop and implement a focused, integrated program for the transportation, storage, and disposal 

of nuclear waste. The nuclear waste program cannot continue to be a politically- 
83 

driven, ineffective process with no assurance that the nation’s consumers will receive what they have long been owed; after all, consumers have paid and continue 

to pay for the designated purpose of nuclear waste disposal in accordance with the 

Nuclear Waste Policy Act (NWPA) and government contracts with utilities. While 

we remain extremely supportive of moving the program out of the Department of 

Energy (DOE), we are concerned that the proposed single administrator model falls 

short of addressing the problems inherent in the current model and instead transfers them to a new agency. Therefore, the NWSC continues to seek changes that 

will establish a single-purpose federal corporation or models that similarly establish 

a qualified board of directors to select and manage the chief executive. 

Additionally, key stakeholders who are knowledgeable about the issues and committed to timely, effective solutions in accordance with the law—representatives of 

the National Association of Regulatory Utility Commissioners (NARUC); the National Association of State Utility Consumer Advocates (NASUCA); tribal, state, and 

local governments affected by commercial dry cask storage; the Energy Communities Alliance (ECA); and utility contract holders—should serve on the board. While 

such stakeholders may serve in other advisory capacities as well, they should not 

be relegated to advisory status only, as their expertise and commitment are needed 

to ensure the chief executive fulfills his or her duties. 

The current language does not ensure that appointments to the bill’s Oversight 

Board include such qualified, knowledgeable, and engaged stakeholders. In fact, despite their valuable expertise and commitment to a timely resolution of these issues, 

utility contract holders, and those with any financial interest in utility contract 

holders, are expressly precluded from serving. 

There are a variety of ways to provide for valuable stakeholder representation on 

a board, and we offer two models here for your consideration. First, we submit that 

Section 3103 of the aforementioned H.R.5979 provides a preferable approach for 

populating a board of directors. It calls for the President to appoint 9 members, of 

which at least 3 were to be from stakeholder organizations that were contributing 

or had contributed to the Nuclear Waste Fund and at least 2 reserved for nominations from State public utility commissions. 

Another approach may be to expressly provide for such a 9-member board of directors to include, for example: 

• 1 or more state utility commissioners from states with nuclear power generation 

and/or commercial dry cask storage to be selected by the President from a list 

of three nominations per slot from NARUC; 

• 1 consumer advocate from a state with nuclear power generation and/or commercial dry cask storage to be selected by the President from a list of three 

nominations from NASUCA; 

• 1 or more representatives from tribal, state, or local governments with commercial dry cask storage within their legal boundaries to be selected by the President; 

• 1 local government representative from a community that is adjacent to or impacted by DOE activities to be selected by the President from a list of three 

nominations from the ECA; 

• 1 or more utility contract holders to be selected by the President from a list of 

three nominations per slot from Nuclear Energy Institute; 

• 1 representative of an environmental organization that is supportive of constructively solving the nuclear waste issue to be selected by the President; and 

• Any others necessary to fill the remaining board slots to be selected via an application process to be established by the board members above. 

Either of these approaches, especially when paired with a federal corporation 

model, is far preferable to the approach for appointments to the bill’s Oversight 

Board. While the Oversight Board section improved from the discussion draft, the 

bill still fails to (i) provide for a board that selects and manages the chief executive; 

(ii) ensure key, qualified stakeholder appointments to the board; and (iii) prevent 

board appointees who are not working toward the safe and timely removal and disposal of nuclear waste from current locations across the country. Populating a board 

of directors or the bill’s proposed Oversight Board with any entity that is not supportive of constructively solving the nuclear waste issue is unacceptable and should 

be strictly prevented. We stress that regardless of one’s position on nuclear power, 

it is in the country’s best interest to resolve this issue in a responsible and timely 

manner. 

Finally, regardless of the model chosen for transferring nuclear waste management functions out of DOE, guidance to facilitate a smooth transition would be helpful. Representative Upton’s H.R.5979 called for the President to appoint a ‘‘Transi-
84 

tion Manager’’ to oversee this important exercise, and we recommend such a provision for inclusion in S.1240. 

FUNDING REFORM (TITLE IV)

The NWSC strongly supports the bill’s provision to ensure that future payments 

collected by utilities from electric consumers are directed to the new management 

entity for use in the program via creation of a new Working Capital Fund (WCF) 

and without reliance on the annual appropriations process. This is a marked improvement over the current state of Nuclear Waste Fund (NWF) operation and is 

similar to the reforms proposed in the previously referenced companion bills introduced in 2010, S.3322 and H.R.5979. 

While S.1240’s proposed approach to reform the nuclear waste program’s funding 

mechanism is the most positive aspect of the legislation, it falls short in that it fails 

to: 

• maintain Congressional review of changes in the nuclear waste fee; 

• transfer future accrued interest on the NWF to the new WCF; 

• transfer future 1-time fee payments to the new WCF; and most importantly, 

• ensure the NWF corpus will be made available when needed for future program 

needs without being subject to competing appropriations—a challenging goal 

but one that could be accomplished with transfers to the new management entity over a reasonable schedule, preferably defined within the legislation. 

We understand the complexity in addressing the entire funding problems at once 

and commend the authors for this positive first step to ensure access to future collections. However, we must continue to argue for all consumer payments into the 

NWF to be preserved for nuclear waste management and disposal as intended by 

the NWPA. 

Likewise, we support the funding reform measure recommended by BRC CoChairs Hamilton and Scowcroft in a December 2011 letter to the President and repeated in their January 2012 report. They delineated near-term steps designed to 

protect future payments by electric consumers as follows: 

We have recommended that your Administration offer to amend the 

standard nuclear waste contract with nuclear utilities, which you are authorized to do under current law, so that utilities remit only the portion of 

the annual nuclear waste fee that is appropriated for waste management 

each year. The rest of the funding would be placed in a trust account, held 

by a qualified third?party institution, to be available when needed. At the 

same time, we have recommended that the Office of Management and 

Budget work with the Congressional budget committees and the Congressional Budget Office to change the budgetary treatment of annual fee receipts so that these receipts can directly offset appropriations for the waste 

program. 

Unfortunately, this recommendation does not appear to have been pursued by the 

Administration despite its authority to take action under current law, and no transparent explanation has been offered. We respectfully ask for the consideration that 

this novel-yet-straightforward approach deserves. 

CONSENT-BASED SITING (TITLE III)

The NWSC sincerely hopes that consent may be achieved in siting future nuclear 

waste storage and disposal facilities and believes that DOE should be taking actions 

now to facilitate meaningful host interest. Such efforts should complement (and not 

compete with) actions to carry out the NWPA, which itself recognized the need for 

additional nuclear waste facilities and provided for a degree of state and local input 

into facility siting. In any consent-based siting process, the NWSC emphasizes the 

need to (i) maintain flexibility so as not to limit creative, effective solutions that 

may be proposed by potential hosts and negotiated by the parties in consent agreements; and (ii) produce a legally enforceable consent agreement as quickly as possible so that the nation may, in a timely manner, plan for and rely on such facilities. 

Regarding the former, we thank the authors for restoring a degree of flexibility to 

potential hosts with two noteworthy changes included in the filed bill: (1) removal 

of the prior ‘‘linkage’’ provisions pertaining to the pilot storage facility; and (2) removal of the former requirement that the Administrator take into account ‘‘undue 

burdens’’ on a state in siting process. 
85 

STORAGE FACILITIES (SECTION 305)

To make progress in the removal of used nuclear fuel and high-level radioactive 

waste, the NWSC supports pursuing consolidated storage with priority for shutdown 

reactor fuel on a parallel track with current and future pursuit of permanent disposal facilities. We are pleased that the provisions pertaining to pilot storage facilities for priority waste now contain no applicable linkage provisions that limit a potential host’s ability to negotiate contract terms as appropriate. Regarding the bill’s 

provisions for additional storage facilities for nonpriority waste, details regarding 

scope, timeline, and cost-effectiveness remain unsupported and unclear. Therefore, 

the new management entity should be directed to timely develop only those additional storage facilities deemed necessary and cost-effective following extensive analysis and stakeholder input. Finally, while we continue to believe statutory linkage 

is unnecessary, the linkage pertaining to additional storage facilities is an improvement over the linkage provisions in the discussion draft. 

REPOSITORIES (SECTION 306)

Recognizing a need for disposal under any scenario, actions to support the prompt 

removal of used nuclear fuel and high-level radioactive waste must include establishing a permanent disposal facility as soon as possible. The bill should, but does 

not, reaffirm the need to carry out the important statutory requirements pertaining 

to the nation’s first permanent repository at Yucca Mountain. The NWPA is the law 

of the land and should be enforced, and the critical next step is the completion of 

the Nuclear Regulatory Commission’s (NRC) independent and well-advanced review 

of the Yucca Mountain license application that was submitted by DOE in 2008. Specifically, we request Congressional leadership in (i) appropriating the necessary 

funds to facilitate timely completion of the licensing process; and (ii) requesting a 

specific plan from DOE and NRC for completing the licensing process, including 

identification of the resources required, particularly in light of pending action by the 

US Court of Appeals for the DC Circuit. Whether or not a consent-based process 

for future disposal facilities is enacted and successful, the Yucca Mountain repository was designated by Congress and merits the scientific review begun years ago 

and required by law. Given the approximately $35 billion (including interest) paid 

by electric consumers for the purpose of such disposal, it is time for the NRC to provide answers to the public. 

We agree with the bill’s removal of the 70,000 MTU limit imposed on the Yucca 

Mountain repository in the NWPA, but we recognize that it may be appropriate for 

the new management entity to begin efforts to site a second repository. 

While providing a consent-based process for siting additional repositories is in 

itself positive, the bill’s target date of December 2048 for such a repository to be 

operational provides no sense of urgency. It simply mirrors the DOE Strategy’s proposed repository date, which is unsupported and so distant that potential hosts for 

consolidated storage facilities would be justifiably nervous about becoming de facto 

permanent sites. It would be a far better signal to such potential hosts and to the 

public for Congress and the Administration to support (i) timely completion of the 

Yucca Mountain process; and (ii) a more reasonable target date for an additional 

repository sited under a consent-based approach. In addition to the often-stated reasons for a permanent repository, some states are precluded from using nuclear as 

a generation source until a repository is operational, and thus, from pursuing an 

all-of the-above energy strategy as recommended by the Administration. 

Finally, the regulatory structure with respect to any new repository should be 

properly defined. To place a new repository other than Yucca Mountain into operation, the country needs workable generic repository public health and safety standards. Unfortunately, none exist today. With no generic standards in place, it is not 

clear how a repository siting process can move forward. Even in the best case scenario, experience indicates it will take the better part of a decade to promulgate 

such standards. Therefore, the new management entity should promote the prompt 

development of modern, workable repository health and safety standards applicable 

on a generic basis to any repository other than Yucca Mountain. 

TRANSPORTATION (SECTION 309)

DOE or the new management entity should facilitate the construction and operation of infrastructure and systems necessary to transport commercial used nuclear 

fuel and high-level radioactive material (as required in the NWPA) in existing and 

future NRC-licensed canisters to consolidated storage and permanent disposal facilities as appropriate. We were pleased to see that the bill reaffirms the need for technical assistance and funding for the training of public safety officials in local com-
86 

1The opinions and conclusions expressed in this testimony are the author’s alone and should 

not be interpreted as representing those of RAND or any of the sponsors of its research. This 

product is part of the RAND Corporation testimony series. RAND testimonies record testimony 

presented by RAND associates to federal, state, or local legislative committees; government-appointed commissions and panels; and private review and oversight bodies. The RAND Corporation is a nonprofit research organization providing objective analysis and effective solutions that 

address the challenges facing the public and private sectors around the world. RAND’s publications do not necessarily reflect the opinions of its research clients and sponsors. 2This testimony is available for free download at http://www.rand.org/pubs/testimonies/CT398/ . 3Lynn E. Davis, Debra Knopman, Michael D. Greenberg, Laurel E. Miller, Abby Doll, Paul 

Steinberg, Bruce R. Nardulli, Tom LaTourrette, Noreen Clancy, and Zhimin Mao, Choosing a 

New Organization for Management and Disposition of Commercial and Defense High-Level Radioactive Materials, Santa Monica, Calif.: RAND Corporation, MG-1230-DOE, 2012, http:// 

www.rand.org/pubs/monographs/MG1230. For a summary of the research, see Options for an Organization to Manage and Dispose of Radioactive Materials, Santa Monica, Calif.: RAND Corporation, RB-9677-DOE, 2012, http://www.rand.org/pubs/researchlbriefs/RB9677.html. 4 U.S. Department of Energy, Strategy for the Management and Disposal of Used Nuclear 

Fuel and High-Level Radioactive Waste, January 2013, http://energy.gov/downloads/strategymanagement-and-disposal-used-nuclear-fuel-and-high-level-radioactive-waste. 

munities and tribes that are affected by used nuclear fuel and high-level radioactive 

waste transportation. 

* * * * * 

Thank you for the opportunity to submit these comments and for the time and 

attention you have devoted to these critical issues of national importance. Your continued leadership is needed—to facilitate the removal of used nuclear fuel and highlevel radioactive waste from existing and decommissioned reactor sites across the 

country and to protect millions of electric consumers and all taxpayers. The NWSC 

stands ready to work with you and your Congressional colleagues, the Administration, and DOE to advance meaningful nuclear waste policy reform. 

Sincerely, 

DAVID C. BOYD, 

Chairman, Nuclear Waste Strategy Coalition, 

Commissioner, Minnesota Public Utilities Commission. 

*The NWSC is an ad hoc organization representing the collective interests of member state utility regulators, consumer advocates, tribal governments, local governments, electric utilities, and other government and industry experts on nuclear waste 

policy matters. Its primary focus is to protect electric consumer payments into the Nuclear Waste Fund and to support the removal and ultimate disposal of used nuclear 

fuel and high-level radioactive waste currently stranded at numerous sites across the 

country. 

STATEMENT OF LYNN E. DAVIS & DEBRA KNOPMAN1, THE RAND CORPORATION, ON

S. 1240—NUCLEAR WASTE ADMINISTRATION ACT OF 20132

As lead authors of the 2012 RAND report Choosing a New Organization for Management and Disposition of Commercial and Defense High-Level Radioactive Materials,3 we would like to comment on the way in which the Nuclear Waste Administration Act (S. 1240) appears to strike a balance between the competing values of 

public accountability and insulation from political influence. 

We share the view of the Blue Ribbon Commission (BRC), the administration, and 

(now) this Committee that there is a need to move forward expeditiously with the 

establishment of a new organization responsible for the management and disposition of nuclear waste. 

The Nuclear Waste Administration Act calls for a new, independent agency, headed by a single administrator. A conclusion of the RAND study, adopted by the administration in its Strategy for the Management and Disposal of Used Nuclear Fuel 

and High-Level Radioactive Waste,4 is that either an independent government agency or a federal government corporation could be established with the critical attributes of accountability, transparent decisionmaking, autonomy, a public interest 

mission, and organizational stability. 

The RAND study also concluded that the choice between an independent agency 

and a government corporation should hinge on how Congress and the President 

wish to strike the balance between competing sets of values: providing sufficient 

mechanisms for political accountability to uphold the public interest, influencing the 

operations of the organization, and maintaining the political credibility to engage 
87 

5This discussion can be found in Chapter Four and is summarized in Table 4.3 of the RAND 

report. 6See p. 32 of the RAND report. 

successfully with stakeholders, on the one hand, and providing autonomy, insulating 

the organization from political pressure, and ensuring its flexibility in conducting 

its activities, on the other. 

In proposing the establishment of a government agency, S. 1240 strikes the balance in favor of more political accountability: ensuring that the public interest is 

taken into account in the organization’s operation and making available (through 

the relationship to the President) the full resources of the federal government for 

the siting of storage and disposal facilities. At the same time, S. 1240 sets the term 

of the administrator to six years, with the option to serve multiple terms. This will 

provide greater organizational stability and political insulation than has been the 

case with the program being managed by the Department of Energy. 

As the Committee knows, the BRC struck a different balance in recommending 

a federal government corporation, favoring greater independence from executive 

branch oversight and, thus, more political insulation and potentially even more organizational stability. 

While the choice in S. 1240 of an independent government agency clearly signals 

the sponsors’ interest in more autonomy and independence than offered by the status quo of continued program management by the Department of Energy, the inclusion of the Oversight Board in Section 205 indicates a desire to moderate that autonomy with an additional layer of oversight between the administrator and the executive branch and Congress. The President would appoint five members to the 

board with the advice and consent of the Senate, with not more than three members 

coming from the same political party. Members would have staggered six-year terms 

to maintain the continuity of the board’s operations. 

The RAND report assessed the various structural and procedural features that either are inherent in the independent government agency model or can be built into 

it to achieve more or less autonomy and accountability.5 For example, the most common governance and executive structure for an independent government agency is 

a multimember board or commission, although several have only a single administrator. The Federal Reserve Board has seven members; NASA and EPA have single 

administrators; the U.S. Postal Service has a board of governors appointed by the 

President, and this board appoints the Postmaster General.6

S. 1240 would represent a departure from precedent by designating a single administrator and then inserting the Oversight Board above the administrator. Section 205(a)(1) and (a)(2) provide the board with considerable scope in reviewing not 

only financial aspects of the Nuclear Waste Administration’s (NWA) operations but 

also the performance of the administrator in carrying out his or her responsibilities, 

the NWA’s mission plan, and management reports. The board will independently report to the President and Congress (Section 205[n]). 

On the basis of our study, we have some concern that this structure could lead 

to gridlock within the NWA. It is difficult to see how the Oversight Board adds 

value in terms of accountability beyond what is ordinarily provided by Congress and 

the executive branch, particularly in the absence of a requirement that stakeholders 

be represented on the board: states, local government, tribes, industry, and public 

interest groups. In effect, the Oversight Board would be a third layer of oversight 

scrutinizing the actions of the NWA administrator. The board would be in addition 

to the Inspector General, a fourth layer of accountability, established under Section 

204. 

We note that Section 502(c) of S.1240 provides for the establishment of one or 

more advisory boards. Our view is that advisory boards will provide the administrator with a transparent, manageable mechanism for regularly garnering a range 

of views from stakeholders and experts, and they will provide the executive branch 

and Congress more generally with a sounding board regarding the policies, management, and operations of the NWA. 

In Chapter Two of the RAND report, we assess the several reasons that past arrangements for the management and disposition of nuclear waste failed. One of the 

primary difficulties that the Office of Radioactive Waste Management in the Department of Energy faced over the past 30 years in carrying out its mission under the 

1982 Nuclear Waste Policy Act was micromanagement on the part of the White 

House and Congress. Without the inclusion of the Oversight Board, the NWA will 

still have access to the normal oversight mechanisms within the executive branch 

and in Congress, and it will have its own Inspector General as a further backstop. 

The potential benefit of another layer of oversight seems small in comparison to the 

potential cost of organizational dysfunction. 

(89) 

APPENDIX 

RESPONSES TO ADDITIONAL QUESTIONS

RESPONSES OF JOE GARCIA TO QUESTIONS FROM SENATOR WYDEN

Question 1. One of the central recommendations of the Blue Ribbon Commission 

is the need for a consent-based siting process where the Federal Government works 

with States and Indian Tribes to pick a site, and not in opposition to them. If there’s 

a lesson that can be learned from Yucca Mountain, it’s that the Federal Government 

needs to do a better job of working with States in picking nuclear waste sites. However, I don’t think you can have a process that puts what’s politically expedient 

ahead of safety. How can communities and the States that surround them be assured that a consent-based siting process is picking a safe site, not just the most 

politically popular site? 

Answer. The question needs to be rephrased to include tribal governments and 

tribal communities regarding assurance of consent-based siting. Tribal governments 

have common as well as different priorities about criteria for siting as well as transportation issues. Early and meaningful consultation and participation in the siting 

processes will be important as well. There are federal consultation policies which 

must be implemented as tribes tribal considerations were not considered important 

in previous siting matters. Transportation issues are important as spent nuclear 

fuel payloads destined for a repository or interim storage facility will be transported 

through and near lands under tribal government jurisdiction. 

Question 2. Historically, citizens, local governments, and tribes have expressed interest in hosting nuclear waste facilities, but state-level opposition prevented any 

deals from being signed. Our bill tries to address this problem by clearly spelling 

out a role for the state from the beginning. Are there other measures that we should 

include to address potential differences between local communities and broader, 

state-wide interests? 

Answer. states sought to undermine tribes interested in hosting a repository. 

State congressional delegations introduced federal legislation aimed at suppressing 

tribal participation that included prohibition of building rail and highway routes 

through state and federal lands for access to tribal lands for these purposes. Tribal 

sovereignty has to be recognized in future siting processes. 

RESPONSES OF JOE GARCIA TO QUESTIONS FROM SENATOR MURKOWSKI

Question 1. With regard to the Oversight Board, the legislation leaves it to the 

President to determine who should be appointed—with the advice and consent of the 

Senate. Some have recommended that seats be reserved for various entities. Do you 

believe this legislation should provide more specificity as to who should be appointed to the Board? 

Answer. The makeup of an Oversight Board should be identified and must include 

a qualified tribal government official for the participatory reasons stated above. 

Question 2. While I understand that some of you would prefer a Board of Directors structure to the new entity, assume that the single Administrator approach is 

retained. Is the six-year service term appropriate? Should it be longer/shorter? 

Answer. A four year term may be more palatable with staggered term appointments to overlap changes in the administration. 

Question 3. How many storage facilities and repositories do you believe will be 

needed to handle this nation’s nuclear waste? Should they be co-located? Should 

they be geographically spread across the country? 

Answer. Wherever the storage facilities and repositories, singular or plural, are 

located, a significant factor should be that the location should be in the immediate 

vicinity of the beneficiaries. If a study was done, the previous locations of these proposed facilities on and near tribal lands were beyond the service areas of the nuclear-powered reactors. The customers who derive benefit from nuclear energy oper-
90 

ation and transmission should bear the risk of spent nuclear fuel storage and disposition as a matter of equity. Ironically, Prairie Island Indian Community which 

is adjacent to the Prairie Island Xcel operations does not receive one kilowatt of 

power from the immediate neighboring reactors. 

Question 4. When it comes to a state, local community, or tribal government interacting with the new entity, is it preferable to interact with a single administrator 

type structure, or a board of directors with a CEO? 

Answer. The question creates creates the question of how much decision-making 

authority a CEO has in representing the Board opinions, but a board entity is preferable and more likely to be even-handed. 

IN CLOSING FOR THE RECORD

There is concern from Indian Country about the current dynamic of DOE consultation and outreach on these matters. As stated in testimony, from the outset of 

the Nuclear Waste Policy Act the Department of Energy created and fostered deep 

distrust by tribal governments and communities by excluding them from meaningful 

participation. We are not convinced that DOE learned any valuable lessons regarding the required consultation embodied in Executive Order 13175 when it comes to 

federal spent nuclear fuel and radioactive waste repository, interim storage, and 

transportation issues. 

In addition to potential long term devastating impacts to tribal lands, resources, 

peoples, and communities, there are places of great cultural significance which 

places tribal cultural integrity at risk. There should be an extensive effort by DOE 

to ensure that tribal concerns are solicited and included in all phases and components of managing and disposing of spent nuclear fuel and radioactive waste. Soliciting tribal impacts and concerns falls under the trust obligation of the DOE. 

There is even greater concern about the failure of the DOE Office of Nuclear Energy (NE) to ensure dissemination of current and planned programs and policies to 

Indian Country. DOE NE Nuclear Fuels Storage & Transportation Planning Project 

management officials choose not to fund a tribal entity that would help inform tribal 

officials about the status of the transportation program despite repeated requests 

by tribal representatives to fund a tribal entity for these same purposes. DOE transportation officials contend they do not have an active campaign or program to ship 

but are inviting tribal officials to transportation meetings and even paying for travel. However DOE also is funding several state regional organizations to convene forums and meetings to meet with DOE officials and discuss relevant topics while ignoring repeated requests to fund a similar entity for tribal governments. In short, 

DOE has funded several state entities for the benefit of states state constituents to 

express their concerns and raise issues but DOE is not doing the same on behalf 

of tribal governments and communities. 

There may not be an active transportation program regarding spent nuclear fuel 

and radioactive waste but obviously DOE is supporting state entities and meetings 

are taking place. We request the Energy Committee look into the how DOE is conducting outreach and consultation with tribes on all aspects of spent nuclear fuel 

and radioactive waste management and disposal. 

RESPONSE OF HON. ERNEST J. MONIZ TO QUESTION FROM SENATOR MURKOWSKI

Question 1. Do you think that future required R&D activities—those that could 

be needed to address any outstanding issues, such as waste storage and transportation issues are enabled by the proposed legislation? Do we need to be more specific 

about the type of R&D that DOE and/or the new administration should carry out? 

Also, do you think that there are any open issues that may pose a challenge to get 

a storage facility and/or repository sited, licensed and constructed with the current 

timeline? 

Answer. The Administration is still reviewing the draft legislation, S. 1240. 

While we expect there will be challenges in implementing the program, the 

timeline and program laid out in the Strategy is achievable but is dependent on legislation for full deployment. In the meantime, the Administration, through the Department of Energy (DOE), is undertaking activities within existing Congressional 

authorization to plan for the eventual transportation, storage, and disposal of used 

nuclear fuel. Activities range from examining waste management system design concepts, to developing plans for consent-based siting processes, to conducting research 

and development on the suitability of various geologies for a repository. 
91 

RESPONSES OF HON. ERNEST J. MONIZ TO QUESTIONS FROM SENATOR HEINRICH

Question 1. In a consent-based process, what would be the appropriate range of 

terms and conditions for a state, tribe and local community to consent to hosting 

a repository or an interim storage facility? For example, in addition to a package 

of benefits and compensation, do you think states and tribes should be given a role 

in the regulatory, permitting and oversight of the storage facility or repository? 

Answer. Promising experiences in other countries indicate that a consent-based 

process, developed through engagement with states, tribes, local governments, key 

stakeholders, and the public, offers a greater probability of success than a top down 

approach to siting. Defining consent, deciding how that consent is codified, and determining whether or how it is ratified by Congress are critical first steps toward 

siting the storage facilities and repository. As such, they are among the near-term 

activities to be undertaken by the Administration in consultation with Congress and 

others. The Department is currently gathering information from the siting of nuclear facilities in the U.S. and elsewhere in order to better understand critical success factors in these efforts and to facilitate the development of a future siting process for a repository and storage facilities. As part of this process the Department 

will consider the question of host-requested terms and conditions. The Administration looks forward to working with Congress to develop a consent-based process that 

is transparent, adaptive, and technically sound. 

The Administration’s Strategy endorses the proposition that prospective host jurisdictions must be recognized as partners. Public trust and confidence is a prerequisite to the success of the overall effort, as is a program that remains stable 

over many decades; therefore, public perceptions must be addressed regarding the 

program’s ability to transport, store, and dispose of used nuclear fuel and high-level 

radioactive waste in a manner that is protective of the public’s health, safety, and 

security and protective of the environment. 

Question 2. The BRC’s proposed consent-based process calls for a cooperative 

agreement for communities that host nuclear waste storage or disposal facilities. 

Such an agreement could include substantial financial commitments and possible 

regulatory roles not generally provided to states. Under such a consent-based process, would states and communities have greater confidence the government will actually meet its commitments if Congress also ratified the agreements made with the 

states, tribes and communities? 

Answer. Promising experiences in other countries indicate that a consent-based 

process, developed through engagement with states, tribes, local governments, key 

stakeholders, and the public, offers a greater probability of success than a top down 

approach to siting. Defining consent, deciding how that consent is codified, and determining whether or how it is ratified by Congress are critical first steps toward 

siting the storage facilities and repository. As such, they are among the near-term 

activities to be undertaken by the Administration in consultation with Congress and 

others. The Department is currently gathering information from the siting of nuclear facilities in the U.S. and elsewhere in order to better understand critical success factors in these efforts and to facilitate the development of a future siting process for a repository and storage facilities. The Administration looks forward to working with Congress to develop a consent-based process that is transparent, adaptive, 

and technically sound. 

Question 3. In the cooperative agreement with the state, tribe and local community for an interim storage facility, should there also be an enforceable deadline 

with penalties for failing to remove the waste from the storage facility? How large 

do you think such a penalty would have to be to assure a repository was in operation in 2048 as required? What would be the source of funds for the payment of 

penalties? 

Answer. The BRC recommended that ‘‘one or more consolidated (interim) storage 

facilities be developed to start the orderly transfer of used nuclear fuel from reactor 

sites to safe and secure centralized facilities independent of the schedule for operating a permanent repository.’’ The Administration agrees that interim storage 

should be included as a critical element in the waste management system. DOE has 

initiated a planning project with the objective of pursuing activities that can be conducted within the constraints of the NWPA and will facilitate the development of 

an interim storage facility, of a geologic repository, and of the supporting transportation infrastructure, including evaluating operational options for consolidated storage and furthering the design of a generic consolidated storage facility. The Department will continue with these activities within existing Congressional authorization 

while the Administration and Congress work together on potential changes to the 

nuclear waste management program. 
92 

RESPONSES OF HON. ERNEST J. MONIZ TO QUESTIONS FROM SENATOR SCOTT

PLUTONIUM DISPOSITION

Question 1. How can the Administration reconcile a ‘‘slowdown’’ to the program 

that could ultimately kill the MOX project, and simultaneously pledge to uphold our 

agreement with the Russians? 

Answer. The United States remains committed to achieving the important nonproliferation mission associated with the disposition of excess weapon-grade plutonium and to our agreement with Russia. However, considering the unanticipated 

cost increases associated with the MOX fuel approach and the current budget environment, the Administration is conducting an analysis to determine whether there 

are options to complete the mission more efficiently. 

MOX PROJECT

Question 2. How much will the slowdown of the MOX project affect its cost and 

schedule? 

Answer. As mentioned in response to your first question, the United States remains committed to achieving the important nonproliferation mission associated 

with the disposition of excess weapon-grade plutonium and to our agreement with 

Russia. However, considering the unanticipated cost increases associated with the 

MOX fuel approach and the current budget environment, the Administration is conducting an analysis to determine whether there are options to complete the mission 

more efficiently. Cost and schedule impacts will be a central component in determining next steps for fulfilling our plutonium disposition commitments. 

Question 3. What are NNSA’s estimates on how much it would cost to shut down 

the MOX project? 

Answer. NNSA does not have a current estimate of the cost to shutdown the MOX 

project. 

Question 4. How much is the study expected to cost and where will the money 

come from-NNSA, NE, EM or elsewhere? 

Answer. The Administration is conducting an analysis of plutonium disposition 

options, which is being funded primarily through NNSA. 

Question 5. When is the study expected to be completed? 

Answer. The Department intends to use the analysis in order to inform the FY 

2015 budget. 

Question 6. What are the other alternatives and are they consistent with the USRussia agreement? 

Answer. The analysis includes continuing the current path of disposing of plutonium as MOX fuel as well as other technically and financially feasible options. The 

U.S.-Russia Plutonium Management and Disposition Agreement (PMDA) allows for 

other disposition paths if agreed to by both parties. 

Question 7. Will the US-Russia Agreement have to be amended if the Obama Administration shuts down the MOX project to use an alternative? 

Answer. The United States remains committed to achieving the important nonproliferation mission associated with the disposition of excess weapon-grade plutonium and to our agreement with Russia. The U.S.-Russia Plutonium Management 

and Disposition Agreement (PMDA) allows for other disposition paths if agreed to 

by both parties. 

Question 8. What assurance do we have that Russia will be amenable to something other the MOX process? 

Answer. The U.S. will continue to engage Russia while conducting the options 

analysis and will work to continue progress in implementing the PMDA. 

Question 9. What national security assessments will be made if the MOX project 

is ultimately shut down? 

Answer. The Department has not cancelled the MOX project, and we cannot prejudge the outcome of the options analysis. 

Question 10. What options have been previously reviewed and eliminated and 

what has changed since the time of those studies that these same options should 

be considered again? What new serious options exist today that have not already 

been evaluated? 

Answer. As previously mentioned, the United States remains committed to achieving the important nonproliferation mission associated with the disposition of excess 

weapon-grade plutonium and to our agreement with Russia. However, considering 

the unanticipated cost increases associated with the MOX fuel approach and the 

current budget environment, the Administration is conducting an analysis to determine whether there are options to complete the mission more efficiently. The options include continuing the current path of disposing of plutonium as MOX fuel as 
93 

well as other technically and financially feasible options. Previous reviews of the Administration’s plutonium disposition strategy will be taken into account in this new 

analysis. Some options are being analyzed that have been considered in the past; 

however, the new analysis will take into consideration new data and changes in the 

operating plans of DOE facilities. 

Question 11. How does the Administration intend to comply with the agreement 

with the State of South Carolina for the permanent disposition or removal of plutonium in the state? 

Answer. The Department understands our commitments under current legislation, 

and we will look to ensure compliance with the law as we analyze plutonium disposition options. 

Question 12. What will be the costs of complying with the agreement with the 

State of South Carolina and of non-compliance? 

Answer. Beginning in 2016, current law stipulates ‘‘economic assistance’’ in the 

form of fines and penalties of $1 million per day up to $100 million per year, subject 

to appropriations. 

Question 13. Does the Administration have a contingency for the removal of all 

the plutonium in the state of South Carolina? 

Answer. The Department understands the provisions of current law, and we will 

look to ensure compliance with the law as we analyze options. 

Question 14. If the MOX project is cancelled, will NNSA remove the plutonium 

from SRS, and if so, to where? How much will it cost to package, transport, safeguard and store this sensitive material? 

Answer. The Department understands the provisions of the current law, and we 

will evaluate the costs associated with meeting requirements as the path forward 

is determined. 

Question 15. If the plutonium storage facilities at Pantex are getting full, or, as 

the DOE IG found earlier this year may not be able to safely hold plutonium for 

much longer due to the age and condition of the storage bunkers, what is NNSA’s 

plan for the plutonium at SRS and Pantex? 

Answer. Although aged, the storage facilities at Pantex are safe and continue to 

be maintained by NNSA as mission critical assets. Additionally, a recent DOE IG 

study focused its concerns on bunkers which comprise a portion of the facilities used 

for plutonium storage at Pantex. As part of ongoing efforts to develop NNSA’s plutonium strategy, we are evaluating effective ways to safely store plutonium. 

SET-TOP BOXES

Question 1. How many taxpayer dollars have been spent to date on DOE’s rulemaking regarding set-top box energy conservation requirements? 

Answer. To date, DOE has spent a total of approximately $2.9 million in contract 

funding and approximately $300,000 on Federal salary and benefits on the development of energy conservation standards and test procedure development for set-top 

boxes. This includes the development of the test procedure that is used to measure 

the energy efficiency of the set-top boxes. These test procedures are necessary as 

a foundation to both voluntary and regulatory programs. 

Question 2. How many taxpayer dollars does DOE anticipate spending during the 

lifecycle of this rulemaking process? 

Answer. A typical energy conservation standards rulemaking takes about 3 years 

to accomplish and costs approximately $3 to $5 million to complete, depending on 

the complexity of the rulemaking being performed. DOE is still early in the rulemaking process for set-top boxes, and acknowledges that funding of the process is 

subject to annual appropriations. 

Question 3. Has DOE contracted any of this rulemaking out to third parties? How 

much has been spent on the contractors? 

Answer. Yes, DOE has contracted approximately $2.9 million for energy conservation standards analysis and test procedure development for set-top boxes to date. 

The analysis was provided to industry and others and supported the voluntary 

agreement discussion. Test procedure development and finalization is necessary for 

both voluntary agreements and mandatory regulations. Contractors represent one 

way for DOE to access the expertise it needs to advance a rulemaking for the timeframe DOE requires that expertise. 

Question 4. In terms of carbon dioxide emissions savings, what percentage of the 

United States’ total carbon dioxide emissions do you anticipate DOE’s set-top box 

energy conservation standards will save? 

Answer. DOE has not proposed an energy conservation standard for set-top boxes, 

so it is not yet possible to estimate the carbon dioxide savings that could occur from 

an energy conservation standard at this time. If DOE were to propose an energy 
94 

1Lawrence Berkeley National Laboratory, Energy and Economic Impacts of U.S. Federal Energy and Water Conservation Standards Adopted From 1987 Through 2011 , http://ees.lbl.gov/ 

pub/energy-and-economic-impacts-us-federal-energy-and-water-conservation-standards-adopted1987-0 2Lawrence Berkeley National Laboratory, Energy and Economic Impacts of U.S. Federal Energy and Water Conservation Standards Adopted From 1987 Through 2011 , http://ees.lbl.gov/ 

pub/energy-and-economic-impacts-us-federal-energy-and-water-conservation-standards-adopted1987-0 

conservation standard, the proposed rulemaking would include an estimate of the 

potential carbon dioxide savings. 

Overall appliance and equipment standards are saving consumers significant 

amounts on their energy bills and helping avoid significant emissions of carbon dioxide. Based on a recent study by Lawrence Berkeley National Laboratory1, Federal 

energy conservation standards promulgated through 2011 saved consumers an estimated $42 billion on their utility bills and carbon emissions reductions attributed 

to the standards were realized at 176 million metric tons in 2011. 

Question 5. What percentage of total global carbon dioxide emissions do you anticipate DOE’s set-top box energy conservation standards will save? 

Answer. DOE has not proposed an energy conservation standard for set-top boxes. 

If DOE were to propose an energy conservation standard, the proposed rulemaking 

would include an estimate of the potential carbon dioxide savings. 

Question 6. If industry is willing to achieve the same cost and energy savings 

throughout a voluntary agreement, is it still DOE’s intention to proceed with a federal rulemaking process? 

Answer. DOE strongly encourages and will consider any non-regulatory agreement as an alternative to a regulatory standard. DOE recognizes that voluntary or 

other non-regulatory efforts by manufacturers, utilities, and other interested parties 

can result in substantial improvements to energy efficiency or reductions in energy 

consumption. In fact, as part of its rulemaking activities to consider a regulatory 

efficiency standard, DOE prepares a regulatory impact analysis. The regulatory impact analysis evaluates non-regulatory alternatives to standards, in terms of their 

ability to achieve significant energy savings at a reasonable cost, and compares the 

effectiveness of each one to the effectiveness of the proposed standards. 

Question 7. Considering the American taxpayers are funding this federal rule 

making process, how do additional layers of government red-tape ultimately benefit 

the taxpayers considering the industry has agreed to set-top box energy efficiency 

standards at no cost to the taxpayer? 

Answer. DOE’s statutory requirement is to maximize energy efficiency that is 

technologically feasible and economically justified (42 USC 6295 (o) (2)). DOE’s appliance standards program ensures that taxpayers are receiving cost-effective energy savings as justified by a thorough analysis of alternatives to determine which 

option conforms to this statutory requirement. 

DOE’s appliance and equipment standards program seeks to deliver significant 

benefits to consumers across the country across a wide variety of products. Overall 

appliance and equipment standards are saving consumers significant amounts on 

their energy bills and helping avoid significant emissions of carbon dioxide. Based 

on a recent study by Lawrence Berkeley National Laboratory2, Federal energy conservation standards promulgated through 2011 saved consumers an estimated $42 

billion on their utility bills and carbon emissions reductions attributed to the standards were realized at 176 million metric tons in 2011. 

RESPONSES OF HON. ERNEST J. MONIZ TO QUESTIONS FROM SENATOR BALDWIN

Question 1. You mention in your testimony the subject of commingling defense 

and commercial waste in the same repository as being a matter of policy since 1985. 

It is my understanding that the repository requirements for defense high-level 

waste and commercial spent fuel are quite different. In order to avoid further delays 

in nuclear waste processing, clarity about regulatory authority for both defense 

high-level and commercial waste is essential. Given the opportunity, do you think 

that the US would benefit by re-separating these waste streams? And if so, do you 

think that the defense waste should remain with the Department of Energy or be 

transferred to the proposed Nuclear Waste Administration for management? 

Answer. The Nuclear Waste Policy Act requires that either a commingled repository or a defense-only repository be regulated by the Nuclear Regulatory Commission (NRC). As I indicated in my appearance before the Committee, the Department 

has a study underway to reevaluate whether or not the wastes should be commingled, which draws upon previous work done by the Department. Because the re-
95 

evaluation is not complete, it is not yet clear what the results will be about commingling and what organization should have the responsibility. 

Question 2. The NWAA specifically calls for a pilot interim storage facility that 

accepts ’priority’ used fuel. After Kewaunee Power Station closed in May of this 

year, along with the LaCrosse Boiling Water Reactor, the state of Wisconsin now 

has two shuttered plants whose fuel in residence would qualify as ’priority’. In the 

Administration’s current Used Fuel Disposition ’Strategy’, is there a similar priority 

placed on fuel residing at shuttered plants? Can you please elaborate on the Administration’s position on the storage of ’priority’ versus ’nonpriority’ used fuel as it differs from the proposed Nuclear Waste Administration Act? 

Answer. The Administration is still reviewing the draft legislation, S. 1240. However, the Administration’s Strategy specifically supports the development of a pilot 

interim storage facility with an initial focus on accepting fuel from shut-down reactor sites: ‘‘At its core, this Strategy endorses a waste management system containing a pilot interim storage facility; a larger, full-scale interim storage facility; 

and a geologic repository in a timeframe that demonstrates the federal commitment 

to addressing the nuclear waste issue, builds capability to implement a program to 

meet that commitment, and prioritizes the acceptance of fuel from shut-down reactors...The Administration supports a nuclear waste management system with the 

following elements: 

• A pilot interim storage facility with limited capacity capable of accepting used 

nuclear fuel and high-level radioactive waste and initially focused on serving 

shut-down reactor sites; 

• A larger, consolidated interim storage facility, potentially co-located with the 

pilot facility and/or with a geologic repository, that provides the needed flexibility in the waste management system and allows for important near-term 

progress in implementing the federal commitment; and 

• A permanent geologic repository for the disposal of used nuclear fuel and highlevel radioactive waste.’’ 

RESPONSE OF GEOFFREY H. FETTUS TO QUESTION FROM WYDEN

Question 1. One of the central recommendations of the Blue Ribbon Commission 

is the need for a consent-based siting process where the Federal Government works 

with States and Indian Tribes to pick a site, and not in opposition to them. If there’s 

a lesson that can be learned from Yucca Mountain, it’s that the Federal Government 

needs to do a better job of working with States in picking nuclear waste sites. However, I don’t think you can have a process that puts what’s politically expedient 

ahead of safety. How can communities and the States that surround them be assured that a consent-based siting process is picking a safe site, not just the most 

politically popular site? 

Answer. Communities and the States surrounding potential sites can be assured 

a safe, technically adequate site—as opposed to a site that is only politically popular—when Congress has ensured that two crucial principles are in effect. First, 

make sure the public safety and environmental rules are in place before site selection begins. Second, provide States with meaningful and explicit regulatory authority. 

MAKE SURE THE RULES ARE IN PLACE BEFORE SITE SELECTION BEGINS

NRDC joins with the President’s Blue Ribbon Commission for America’s Nuclear 

Future (BRC) in urging Congress ensure radiation protection standards and licensing rules for developing nuclear waste facilities be in place before the selection of 

sites begins, and thus, forestalling a host of problems likely to emerge down the 

road. If there are rules in place before site selection commences, any sites investigated will have to meet (hopefully) protective rules. Further, with rules in place 

it will be substantially harder to pressure the agencies to weaken established rules 

in order to allow a pre-selected site to go forward, a primary reason for the failure 

of the Yucca Mountain process. 

Sections 304, 305 and 306 of last year’s S. 3469 went much of the way toward 

having rules in place prior to site selection, thus structuring a result that would 

avoid repeating the failure of the Yucca Mountain process. Specifically, S. 3469’s 

Section 305(a) directed the U.S. Environmental Protection Agency (EPA) to adopt, 

by rule, broadly applicable standards for the protection of the general environment 

from offsite releases from radioactive material in geologic repositories. And S. 3469’s 

Section 305(b) directed NRC to then amend its regulations governing the licensing 

of geological repositories to be consistent with any relevant standard adopted by 
96 

1The BRC Report omits discussion of the fierce effort New Mexico waged to obtain RCRA authority over the site. 

EPA. These requirements and this phasing of agency actions in S. 3469 were appropriate (i.e., first EPA sets the standards and then NRC ensures its licensing process 

meets those standards). All of this would take place prior to the time site selection 

would begin in earnest. Unfortunately, Section 307 of S. 1240 does not even approximate such requirements, and ignores the BRC’s recommendation that new, applicable rules be in final form before site selection. 

PROVIDE STATES WITH MEANINGFUL REGULATORY AUTHORITY

Second, as detailed in our written testimony, we will not approach closure and 

consent on transparent, phased, and adaptive decisions for nuclear waste siting unless a meaningful and appropriate role for states is provided. This can be done simply 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 governmentrun nuclear complexes. 

As the Chairman 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 through RCRA 

as critical positive element in the development of the currently active site. Final Report at 21.1 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. Indeed, disputes over 

cleanup at the Hanford Reservation have gone on for decades and show little sign 

of subsiding. 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 

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. 

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 reinsert 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. 
97 

RESPONSES OF GEOFFREY H. FETTUS TO QUESTIONS FROM MURKOWSKI

Question 1. With regard to the Oversight Board, the legislation leaves it to the 

President to determine who should be appointed—with the advice and consent of the 

Senate. Some have recommended that seats be reserved for various entities. Do you 

believe this legislation should provide more specificity as to who should be appointed to the Board? 

Answer. Yes. In our May 2013 comments on the Discussion Draft of this bill, we 

asserted representation on this board of directors should be balanced by political 

party representation, by governmental affiliation (i.e., federal, state, or tribal), and 

include representation by non-governmental organizations in addition to industry. 

We hold the same concerns for any Oversight Board and make similar suggestions. 

In establishing an Oversight Board for whatever nuclear waste entity is created, the 

legislation should have a provision explicitly prohibiting the majority on the board 

from comprising members with existing or historical ties to the nuclear industry. 

Such a requirement would recognize the existing revolving door between government service at NRC, DOE and the nuclear industry. Further, ensuring the Oversight Board is not disproportionately composed of members with existing or historical ties to the nuclear industry would improve public trust and acceptance of the 

government’s newly legislated nuclear waste storage and disposal program. 

Question 2. While I understand that some of you would prefer a Board of Directors structure to the new entity, assume that the single Administrator approach is 

retained. Is the six-year service term appropriate? Should it be longer/shorter? 

Answer. Assuming a single Administrator approach is retained, we think a four 

year term commensurate with the appointing Administration is appropriate. Despite 

our concern a single administrator can undo or upset carefully crafted decisions in 

a short time frame (as opposed to a more balanced board), the likelihood of strong 

tension and an inability to carry out policy options between an administrator and 

President of differing parties (or, for that matter, differences with Congress) weighs 

strongly in favor allowing the Executive Branch to appoint its selected manager. 

Question 3. How many storage facilities and repositories do you believe will be 

needed to handle this nation’s nuclear waste? Should they be co-located? Should 

they be geographically spread across the country? 

Answer. While we expect at least two repositories will ultimately need to be developed, NRDC has no precise number of repositories or storage facilities in mind for 

management and disposal of nuclear waste. Our nation already manages nuclear 

waste at more than 100 operating or retired commercial nuclear reactors and at dozens of legacy nuclear weapons sites. For political reasons and institutional reasons 

well documented by the BRC and any cursory review of the last 55 years, we think 

it unlikely a repository program focused on a single site is tenable. 

With respect to repositories in particular, NRDC submits that development of 

multiple repositories is not an impossible Gordian knot. No one can guarantee solutions in the future but we can learn from the past and avoid at least the most obvious pitfalls, such as pre-selecting sites and then weakening regulatory standards in 

order for the site to be licensed. Further, providing States with meaningful regulatory oversight, as described in our written testimony and in answer to Chairman 

Wyden’s question, can allow states in our federal system the comfort and control 

necessary to allow for technically adequate and publicly accepted sites to go forward 

without fear of political retribution. Thus, we can start to solve the problem of how 

many repositories might be necessary with fundamental changes in the law to address such federal, state and tribal tensions over nuclear waste—the institutional 

blockages in our federal system that will never disappear but can only be managed. 

With respect to a number of storage sites, as we noted in written testimony, a 

pilot interim storage project housed at an existing commercial reactor site that addresses issues of stranded fuel would go far in dealing with a number of public safety and environmental harms, would do no damage to a carefully constructed bill 

that focuses on repository development. 

Specifically, we urged the Committee to write legislative language for a pilot 

project to address the total stranded spent fuel at closed reactor sites (13 sites), currently defined in S.1240 as ‘‘priority fuel,’’ where spent fuel would be stored in dry 

casks within one or more hardened buildings similar to the Ahaus facility in Germany. Potential volunteer sites already demonstrating ‘‘consent’’ are found at operating commercial reactors. The utility of using existing commercial operating reactor 

sites rather than burdening new areas with spent nuclear fuel should be apparent: 

existing sites require far less new infrastructure, already have the capacity for fuel 

management and transportation and have the local community and state de facto 

consent for spent fuel storage necessary for hosting nuclear facilities. And by keeping consolidated, interim-stored spent nuclear fuel under the guardianship of the 
98 

1Final Interpretation of Nuclear Waste Issues, 60 Fed.Reg. 21,793 (1995) 

2See, Indiana Michigan Power Company v. Department of Energy, Case Nos. 95-1279 et al. 

(DC Circuit 1996), available online at: http://caselaw.findlaw.com/us-dc-circuit/1278574.html. 

nuclear industry that produced the waste in the first instance, Congress ensures 

that careful progress continues with the repository program because all parties will 

know that it is necessary. Such a pilot project demonstrates proof of concept for safe 

storage, reduces the number of sites where spent nuclear fuel is stored, and, importantly, does not pollute a green-field site that could also be adopted for divisive and 

unwise closed fuel cycle activities. 

We look forward to continuing to work with the Committee on this difficult topic. 

RESPONSES OF DAVID C. BOYD TO QUESTIONS FROM SENATOR WYDEN

Question 1. The BRC cites the Government’s liability for breaching its contractual 

commitment to dispose of the utilities’ nuclear waste as one of the main arguments 

supporting development of interim storage facilities. The Government is liable for 

billions of dollars in damages for failing to begin disposing of the utilities’ waste in 

1998, but it is under no obligation to take title to the utilities’ waste and remove 

it from the reactor sites until the Government has a repository in which to put it. 

The proposed legislation solves this problem by authorizing the Government to 

begin storing the utilities’ waste before a repository is built, but in return, asks the 

utilities to settle their lawsuits. The BRC urged settlement or arbitration of these 

suits. Why shouldn’t the bill require the Attorney General and the utilities to settle 

the lawsuits, on a mutually agreeable basis, in return for providing interim storage 

and taking the waste off the utilities’ hands sooner than it would without the new 

legislation? 

Answer. The fundamental premise of this question is inaccurate. DOE has a current obligation to take possession of the waste. In 1995, DOE issued a ‘‘Final Interpretation of Nuclear Waste Acceptance issues.’’1 There, just as this question presumes, DOE found it did not have an unconditional statutory or contractual obligation to accept high-level waste and spent fuel beginning January 31, 1998 in the 

absence of a repository or interim storage facility constructed under the NWPA. 

However, on appeal, the D.C. Circuit disagreed, noting, inter alia: 

DOE’s duty under subsection (B) to dispose of the SNF is conditioned on 

the payment of fees by the owner and is triggered, at the latest, by the arrival of January 31, 1998. Nowhere, however, does the statute indicate that 

the obligation established in subsection (B) is somehow tied to the commencement of repository operations referred to in subsection (A). . . Thus, 

we hold that section 302(a)(5)(B) creates an obligation in DOE, reciprocal 

to the utilities’ obligation to pay, to start disposing of the SNF no later than 

January 31, 1998.2

DOE’s obligation to physically take possession of the waste, which is the basis of 

its liability, is clear. Once the government, through the new program established in 

new legislation, is positioned to accept waste, they can move it without proposed 

Section 406(b)(1). That section requires the contract holder to settle all claims for 

breach of contract for the disposal of nuclear waste as a condition for the Administrator to ‘‘take title to and store the nuclear waste of the contract holder at a storage facility.’’ The section is not necessary and actually removes incentives for government action. 

As a direct consequence of DOE action that complies with the contracts, there will 

necessarily also be specific reductions in liability associated with the waste actually 

taken for interim storage. Performance should remain the key component to reducing the federal government’s liability. Given the history of this program, i.e., the 

federal government’s difficulty and sometime recalcitrance with complying with the 

law, an ever-increasing federal liability is the only incentive for action. There is no 

question that, as fiscal pressure on the Judgment Fund grows, it can only ratchet 

up political pressure for action. History suggests little else has an impact. 

Aside from the fact that Section 406(b)(1) eliminates perhaps the strongest incentive for government action, it also unfairly and inappropriately shifts liability from 

taxpayers generally to electric ratepayers before the DOE takes actual possession 

of the waste. Under the new legislation, ratepayers are already on the hook to pay 

for interim storage, and the associated additional transportation that will be required—costs that would not be necessary if the government fulfilled its responsibility to establish a working geological repository. 
99 

Question 1, Subpart 1. The Nuclear Waste Policy Act asks nuclear ratepayers to 

pay one-tenth a cent per kilowatt-hour on nuclear-generated electricity. DOE hasn’t 

met its contractual obligation to begin disposing of the utilities waste, but neither 

has it raised the disposal fee in 30 years—not even for inflation. And the additional 

cost to the utilities of storing their waste at their reactors is being paid out of the 

Treasury’s Judgment Fund, not by raising the fee on ratepayers. How would ratepayers be harmed by requiring the Attorney General to settle the pending lawsuits 

by seeking a reduction in future damage payments in return for taking the waste 

off the utilities’ hands sooner, thereby reducing the damages the utilities would otherwise be owed? 

Answer. NARUC has challenged the current NWF fees as unjustified. As a matter 

of both fact and law, prior fee assessments conducted by federal government indicated that the fund was ‘‘sufficient’’ to cover the costs of disposal without increases—even to reflect inflation. The effort to equate the non-performance by the 

government to the fact that the fee has not increased is illogical. As noted in our 

first response, it is difficult to understand how a settlement affecting waste that remains onsite will do anything to incent DOE to move more quickly to ‘‘take the 

waste off the utilities’ hands.’’ The incentive for that action is outstanding with no 

additional legislation. Ratepayers have upheld their side of the contract. They have 

paid the fees for years, and, so far, have not received the service for which they have 

paid. Even if one discounts NARUC’s contention that such settlements would make 

it less, not more, likely that the Government will act in a timely manner, there is 

still no way to gauge the actual impact of settlements. The bill does not detail how 

they will be structured, how much liability is shifted to ratepayers, or even provide 

a reasonable explanation for how or why the settlements will actually ‘‘incent’’ government action. Future expenditures due to contract breaches by the federal government not covered under the settlements will fall on ratepayers, because the bill requires that settlements release the federal government of all existing and future liability before the waste is actually moved. Should additional on-site storage be necessary due to future delays, then those costs will also fall exclusively upon the ratepayer. And then there is always the question of this or a future Administration’s 

compliance with the law. Given past practice, it is certainly possible that settlements could be reached and an Administration will decide that compliance with the 

law—no matter how clear—is ‘‘not practical.’’ The fundamental question remains: 

Why is it necessary for the federal government to receive some sort of dispensation 

or additional consideration/compensation for doing what they agreed to do decades 

ago? 

Question 2. DOE stated in its response to the BRC report its goal to have a repository constructed and operating by 2048. 35 years is a long time to wait. Is this goal 

reasonable, and if not, what do you believe is a more logical timeframe? 

Answer. Based on the history of the repository program, we are not confident a 

repository will be operating by 2048. In the April 18, 1983 Federal Register, DOE 

made this statement, ‘‘The 1998 date (to begin permanent disposal of spent nuclear 

fuel) is called for in the Act, and we believe it to be a realistic date. Our performance will be judged by meeting that date.’’ Performance to-date is non-existent. The 

bill’s target date of December 2048 (Section 504(b)(C)) for such a repository to be 

operational is not acceptable. The date is taken from the DOE Strategy’s proposed 

repository date. That document provides zero support or rationale for this ‘‘new’’ target date. The only thing that is clear is that no one involved with this issue today 

is likely to be around to accept responsibility for non-compliance. Obviously, a target 

date so far in the future effectively eliminates any sense of urgency necessary to 

compel timely government action. Moreover, the deadline is so distant that potential 

hosts for consolidated storage facilities would be justifiably nervous about becoming 

de facto permanent sites. We believe there is no way to come up with a timeframe, 

logical or not, unless this Administration and future Administrations commit to upholding the law and this Congress as well as future Congresses appropriate the necessary funds that have been and continue to be collected for this purpose. 

RESPONSES OF DAVID C. BOYD TO QUESTIONS FROM SENATOR MURKOWSKI

Question 1. With regard to the Oversight Board, the legislation leaves it to the 

President to determine who should be appointed—with the advice and consent of the 

Senate. Some have recommended that seats be reserved for various entities. Do you 

believe this legislation should provide more specificity as to who should be appointed to the Board? 

Answer. Electricity ratepayers are funding the bulk of the government’s permanent disposal operations. Given that State Utility Commissioners are intimately 

concerned with disposal and related cost issues, a minimum of a third of any board 
100 

should be, at the time of their nomination, serving State Commissioners nominated 

by NARUC only from States with working nuclear power plants or commercial/defense waste slated for permanent disposal by the federal government. If they leave 

public service for a position with another stakeholder group on waste disposal 

issues, NARUC should be allowed to nominate a replacement to finish out that 

term. 

Question 2. While I understand that some of you would prefer a Board of Directors structure to the new entity, assume that the single Administrator approach is 

retained. Is the six-year service term appropriate? Should it be longer/shorter? 

Answer. NARUC, as an organization, has not taken a specific position on the 

issue of length of service. Logic suggests a Federally-chartered corporation structure 

with an executive officer and Board, as recommended by the BRC, will provide a 

more successful vehicle for disposal activities. However, it does appear that a six 

year term is too short for an Administrator. A longer fixed term for the Administrator—one that spans multiple administrations perhaps 10-14 years or more— 

would enhance the stability and political insulation of the position. 

Question 3. How many storage facilities and repositories do you believe will be 

needed to handle this nation’s nuclear waste? Should they be co-located? Should 

they be geographically spread across the country? 

Answer. NARUC, as an organization, has not taken a specific position on either 

issue. Many argue that even if the license for Yucca Mountain is approved and additional waste storage is authorized there, a new geological repository may be required. Logic suggests that, if collocation is a scientifically safe option, it can only 

reduce the complexity and cost of both transport and security. 

Question 4. Do you support the language we have included in the legislation 

under Section 401 to cut off fee collection after December 31, 2025 unless the Administrator is operating a nuclear waste facility by that date? 

Answer. While not perfect, the requirement to require cut-off of assessments in 

2025 is certainly an improvement over the current circumstances. The provision 

should, however, be amended to specify a working repository instead of just ‘‘nuclear 

waste facilities.’’ That would provide strong incentives to expedite the repository 

siting process. 

RESPONSES OF MARVIN S. FERTEL TO QUESTIONS FROM SENATOR WYDEN

Question 1. Several states have laws prohibiting construction of new nuclear 

power plants until a solution has been found for nuclear waste. To what extent do 

you see the uncertainty of US policy on spent fuel storage and disposal to be a barrier to the future use of nuclear power? 

Answer. A few states do have moratoria on construction until a disposal pathway 

is available. In some instances, these bans are being reconsidered and may be lifted. 

While these bans do create a barrier to the construction of new nuclear plants in 

those specific states, the primary barriers are the economic fundamentals of electricity generation, low economic growth and no growth in electricity demand, which 

has led to excess generating capacity in most parts of the country, and the low cost 

of natural gas. Five new reactors are currently under construction in the United 

States and, in these instances, used fuel management was not a significant consideration in the final decision to authorize the projects. The current lack of a federal 

program, however, did contribute to the Court’s decision to vacate NRC’s temporary 

storage rule (waste confidence rule). This has resulted in a temporary halt to licensing of new reactors and completion of licensing renewals. So it is imperative that 

a sustainable program be established as soon as possible. 

Question 2. The BRC cites the Government’s liability for breaching its contractual 

commitment to dispose of the utilities’ nuclear waste as one of the main arguments 

supporting development of interim storage facilities. The Government is liable for 

billions of dollars in damages for failing to begin disposing of the utilities’ waste in 

1998, but it is under no obligation to take title to the utilities’ waste and remove 

it from the reactor sites until the Government has a repository in which to put it. 

The proposed legislation solves this problem by authorizing the Government to 

begin storing the utilities’ waste before a repository is built, but in return, asks the 

utilities to settle their lawsuits. Your organization has expressed concern about this 

provision. The law generally favors settlement of litigation. The BRC urged settlement or arbitration of these suits. Why shouldn’t the bill require the Attorney General and the utilities to settle the lawsuits, on a mutually agreeable basis, in return 

for providing interim storage and taking the waste off the utilities’ hands sooner 

than it would without the new legislation? 
101 

Answer. The Government has already paid out billions of dollars in damages for 

its breach of its contractual obligation to begin taking the utilities’ spent nuclear 

fuel by January 31, 1998. The longer it takes for the Government to begin to meet 

its obligations, the larger the damages. Even if the government were to begin to perform by 2020, the Secretary of Energy has estimated that damages would exceed 

$20 billion. 

Since the Government’s 1998 obligation, first breached 15 years ago, can be met 

either by DOE taking spent fuel initially for interim storage or directly to a repository, the proposed legislation does not create any new rights for the utilities. Until 

the DOE can accept the utilities’ spent fuel either at a repository or an interim storage facility, it will continue to be in breach and the utilities will continue to be able 

to recover as damages their added costs imposed by that breach. 

We certainly agree that settlements should be favored, and many utilities have 

voluntarily entered into settlements of their breach of contract claims. In any case, 

while we support the concept of encouraging settlements, the provisions of the bill 

would go far beyond encouraging and would for all practical purposes give the Government the complete ability to force on the utilities any terms it wanted as the 

price for the Government meeting the contractual obligations that it is already subject to. Such a settlement would most likely not be ‘‘mutually agreeable,’’ since the 

utilities would have to agree to whatever terms the Government insisted upon in 

order to receive the performance that it has been paying for. Should Congress impose such a one-sided deal on the utilities, it would be in essence breaching the 

Standard Contract, since the Contract as described below does not limit the requirement for the Government’s performance to the existence of a repository. The Supreme Court in the Winstar cases has held that Congressional legislation in such 

circumstances is itself a contractual breach, entitling the private party to recover 

damages from the Government. By making the DOE’s obligation to provide interim 

storage subject to the utilities agreeing to a settlement, the legislation imposes a 

one-sided sanction, since there would be no incentive on the Government’s part for 

a true negotiated settlement. That’s why a more effective and fairer approach would 

be to direct the Department of Justice to settle the breach of contract lawsuits on 

reasonable terms with willing contract holders without the legislation imposing conditions on the settlements. 

The assumption underlying Question 2 seems to be that the Government’s obligation to perform is tied to the existence of a repository. This assumption was explicitly rejected by the US Court of Appeals for the DC Circuit in Indiana Michigan 

Power Co. v. DOE, 88 F.3d 1272 (DC Cir. 1996). The Court was clear that DOE’s 

statutory obligation to perform and its liability for breaching that obligation was not 

tied to the existence of a repository. Nor is DOE’s contractual obligation to start taking the utilities’ spent fuel tied to the existence of a repository. The Standard Contract, 10 CFR Part 961, requires DOE to begin its services ‘‘after commencement 

of facility operations, not later than January 31, 1998.’’ Article II. And ‘‘facility’’ is 

defined in Article I.10 to include both ‘‘a facility . . . for the purpose of disposing 

of spent nuclear fuel . . ., or such other facility(ies) to which spent nuclear fuel . 

. may be shipped by DOE prior to its transportation to a disposal facility.’’ In other 

words, neither DOE’s obligation to accept nor its liability for nonperformance is tied 

to the existence of a repository. 

In terms of DOE’s obligation to take title to the utilities’ spent fuel, again the 

Standard Contract does not tie this obligation to the existence of a repository. Article VII (Title) says that ‘‘Title to all SNF . . . accepted by DOE for disposal shall 

pass to DOE at the Purchaser’s site as provided for in Article VI hereof.’’ Article 

VI in turn sets forth general requirements as to the specifications for acceptable 

spent fuel, procedures for acceptance, priorities, and consequences of improperly described spent fuel. Article VI says nothing about where the spent fuel is to be 

shipped. And the wording in Article VII the spent fuel has to be ‘‘accepted by DOE 

for disposal’’ does not mean that once the spent fuel is accepted, it must immediately be shipped to a repository, rather than initially to an interim storage facility. 

Since DOE will ultimately dispose of the spent fuel, whether or not the spent fuel 

is first shipped to a repository or an interim storage facility, in either case it is 

being ‘‘accepted . . . for disposal.’’ 

To the extent that the Question is based on an interpretation of section 123 of 

the Nuclear Waste Policy Act, that interpretation is not correct. Section 123 states 

that ‘‘Delivery, and acceptance by the Secretary, of any . . . spent nuclear fuel for 

a repository constructed under this subtitle shall constitute a transfer to the Secretary of title to such . . . spent fuel.’’ As with the wording of Article VII of the 

Standard Contract, when DOE takes spent fuel from a utility, it is taking that spent 

fuel for ultimate disposal at a repository, even if it first goes to DOE interim storage. So here too, the Government’s obligation is not tied to the existence of a reposi-
102 

tory. Nor does Section 123 state that it is the only way that title can transfer to 

the Government. 

Question 3. S.1240 establishes a category for priority waste that literally gets priority when it comes to access to Federal storage. This includes spent fuel at decommissioned power plants, for example. Are there other categories of spent fuel shipments that should get priority that have not been included? For example, should 

nuclear power plants that have had particular types of safety problems and have 

more often received a worse-than-‘‘green’’ rating from the NRC get priority? 

Answer. The industry is supportive of initially giving priority to used fuel from 

shutdown plants without an operating reactor. Moving this used fuel would permit 

the new management entity to ramp-up operations while achieving immediate results and a reduction in liabilities for the taxpayers and it would permit sites which 

have only used fuel storage remaining to be fully decommissioned and the land used 

for other purposes. The order in which used fuel will be picked up from commercial 

reactors is governed by the principle of ‘‘oldest fuel first’’ as outlined in the contracts 

between the companies and the Department of Energy. The Department of Energy 

collects used fuel discharge information and, based on this information, creates a 

queue for prioritizing shipments. This approach for shipping used fuel from commercial nuclear reactors provides a good legal framework but does not provide a practical and efficient framework for moving used fuel. At the appropriate time, the 

structure of the queue must be addressed by the commercial entities. The goal at 

that time should be to establish a priority list for used fuel that minimizes operational burdens on operating reactors while optimizing overall system efficiency and 

cost. 

The industry currently safely and securely manages used fuel at reactor sites and 

decommissioned sites. Operational issues that are identified by either the industry 

or the Nuclear Regulatory Commission are appropriately resolved through the existing regulatory framework. While the industry is committed to continual safety improvement, priority should be given to those areas that will achieve the largest safety benefit. For example, the industry’s resources should be devoted to those safety 

improvements associated with reactor operations and spent fuel pool monitoring (a 

lesson learned from the Fukushima accident—see question 5 for additional information) and not arbitrarily reducing the inventory of the pools as a result of a worsethan-‘‘green’’ rating from NRC, which in and of itself may not be very safety significant. The legislation as currently drafted provides for ‘‘emergency’’ shipments. This 

category, in addition to the defined ‘‘priority’’ shipments, provides the new management entity and the industry with sufficient flexibility to manage used fuel without 

legislatively establishing additional criteria for prioritizing used fuel shipments. 

Question 4. DOE stated in its response to the BRC report its goal to have a repository constructed and operating by 2048. 35 years is a long time to wait. Is this goal 

reasonable, and if not, what do you believe is a more logical timeframe? 

Answer. The industry reacted with frustration to the target date of 2048 for the 

opening of a new repository. The industry still supports the completion of the Yucca 

Mountain licensing process and believes that if successfully licensed and appropriately managed and funded the Yucca Mountain repository could be opened well 

before 2048. However, if a second repository program is initiated, the industry believes that the target date for beginning operations should be no more than 25 years 

after program commencement. Being able to meet or exceed this time period, 

though, will require a focused effort from beginning to end from a new management 

entity solely dedicated to the project with unfettered access to the Nuclear Waste 

Fee payments and the corpus of the Nuclear Waste Fund. Key aspects of this effort 

must include generic repository (NRC and/or EPA) regulations prior to completion 

of siting, and a requirement for the NRC to complete the licensing review in three 

years similar to the review period for the Yucca Mountain license application. 

Question 5. This bill sets up a program for the Federal Government to build new 

storage facilities for spent fuel. I think it makes sense to move spent fuel if it’s going 

to be cheaper and safer, for example, at decommissioned nuclear power plants 

where there’s not going to be ongoing operations. However, at some nuclear power 

plants, there are going to be continued operations, and maintenance, and security, 

and environmental monitoring for decades to come. It might NOT be cheaper or 

safer to move this fuel to a central storage site, especially since it will need to be 

moved again to the repository. Should the bill include a program to help pay for 

continued on-site storage at nuclear power plant sites if that would be safer and less 

expensive? 

What else could Congress do to encourage movement of spent fuel out of reactor 

pools, such as allowing the Attorney General to enter into negotiations with the utilities to seek their voluntary agreement to transfer their waste to dry cask storage 

as part of a settlement agreement in return for providing interim storage off-site? 
103 

Answer. The new management entity should work closely with the industry to 

maximize the efficiency of the used fuel program while minimizing the total program cost. As the pilot consolidated storage facility and repository are being developed, the new management entity should assess the situation to determine how 

much used fuel should be shipped to a consolidated storage facility. The new management entity should also determine the long-term role of a consolidated storage 

facility. For example, the new management entity could choose to utilize the consolidated storage facility as the front-end processing and repackaging (if necessary) facility for the repository and such a facility could be co-located with the repository 

if practical. Opening a consolidated storage facility will enable the new management 

entity to begin performing under the standard contract and to begin reducing taxpayer liability. However, the lawsuits for partial breach of contract will continue 

well beyond the date that the new management entity begins accepting used fuel. 

The industry has, and always will, safely and securely manage used fuel at our 

sites. We do not believe that reducing the inventory in the spent fuel pools will increase safety margins sufficiently compared to other safety enhancements currently 

underway. The industry has extensively reviewed the Fukushima tragedy and is 

making the appropriate changes to improve monitoring and instrumentation of 

spent fuel pool water level as a result of the lessons learned from the accident. It 

should be noted that the primary release of radiation during the accident was from 

the reactors and not the spent fuel pools. In fact, the water level in the spent fuel 

pools never fell below the top of the used fuel assemblies and the spent fuel pool 

structures withstood the hydrogen explosions while maintaining structural integrity. 

A review of the accident confirms that industry resources are appropriately being 

devoted to safety improvements associated with reactor operations and spent fuel 

pool monitoring and not reducing the inventory of the pools. The industry’s FLEX 

program, which provides multiple redundant resources to maintain water in the reactor and in the spent fuel pool under unforeseen circumstances, is a prime example 

of prioritized safety enhancements. Ultimately, the quickest way to reduce the inventory in the pools is to establish a sustainable program that can move used fuel 

off the sites quicker than it is being generated. The industry is committed to the 

establishment of such a program and will work with the new management entity 

to maximize efficiency and minimize program cost. 

RESPONSES OF MARVIN S. FERTEL TO QUESTIONS FROM SENATOR MURKOWSKI

Question 1. With regard to the Oversight Board, the legislation leaves it to the 

President to determine who should be appointed—with the advice and consent of the 

Senate. Some have recommended that seats be reserved for various entities. Do you 

believe this legislation should provide more specificity as to who should be appointed to the Board? 

Answer. The industry has advocated that the new management entity should 

have a corporate structure with a Board of Directors and a CEO that is chosen and 

hired by the Board. At a basic level, the elements of the management structure desired by the industry and that proposed in the legislation are similar: each approach 

has a board that provides oversight for the organization and each has a leader that 

is responsible for the day-to-day operations of the entity and is the person to be contacted when significant problems occur. There are, however, significant differences 

in how the industry believes these management elements should be implemented 

compared to the legislation. In the industry model, the Board of Directors would 

provide policy direction, hold the CEO accountable for performance (including dismissal if necessary), and ultimately approve the management budget. The CEO 

should be an individual that has experience managing large organizations, is well 

versed in the culture of commercial nuclear facilities and has requisite attention to 

nuclear safety and security that is expected from all employees of a nuclear industrial company. In the case of the legislation, both the Administrator and Deputy Administrator are political appointments and cannot be reprimanded or dismissed by 

the oversight board. While it is essential that a corporate CEO has relevant and 

successful management experience, the political appointment process does not ensure that the individuals chosen to lead government agencies have such experience. 

In a corporate environment, significant cost overruns and project delays on billion 

dollar projects could result in the dismissal of the CEO. In government agencies senior leadership is not held responsible for cost overruns and project delays as evidenced by numerous project failures and delays within the Department of Energy 

and other agencies. 

Corporate boards are typically focused on the entity’s balance sheet and its financial strength. For that reason, they pay most attention to issues associated with financing (where is the money coming from) and liabilities (how much might the com-
104 

pany owe). In that context, it would authorize a major capital project including its 

cost and financing plan, and then monitor its progress to assure it is staying on 

track. The scope of the Board’s responsibilities should be clearly defined in legislation. In our testimony, NEI did advocate for particular seats on the Board to be reserved for certain stakeholders. The legislation should ensure that the Board includes representation from stakeholders both inside and outside of government. The 

Board should include members from entities that contribute or have contributed to 

the Nuclear Waste Fund. Other members of the Board should be appointed from 

state public utility commissions or representatives thereof. NEI recommends that an 

individual must be a citizen of the U.S. and have management, financial, technical 

or other appropriate expertise to be eligible for appointment to the Board. 

Question 2. While I understand that some of you would prefer a Board of Directors structure to the new entity, assume that the single Administrator approach is 

retained. Is the six-year service term appropriate? Should it be longer/shorter? 

Answer. The industry does not believe a government agency structure with an Administrator will ever deliver a sustainable and successful program. The new management entity must come as close as possible to a corporate structure, with the 

project management capability and discipline associated with the corporate structure. Compare the experience with the on-going Vogtle and V. C. Summer nuclear 

plant expansions in Georgia and South Carolina and any recent Department of Energy high dollar value construction project. The DOE projects are regularly years 

behind schedule and over budget whereas the Vogtle and V. C. Summer projects, 

in contrast, are close to on-time and on-budget. The difference between the performance of government projects and commercial projects can be attributed largely to the 

management oversight of the contractors and not the contractors themselves. For 

this reason, the industry strongly recommends a corporate structure (as described 

above in the response to question 1) as opposed to a government agency, even one 

run by a single administrator. In response to the question, however, NEI would recommend that the Administrator’s term be on the order of ten years, similar to the 

Director of the FBI, in order to ensure political stability and continuity, especially 

during a change of Administration. The Administrator should also be permitted to 

serve multiple concurrent terms. 

Question 3. How many storage facilities and repositories do you believe will be 

needed to handle this nation’s nuclear waste? Should they be co-located? Should 

they be geographically spread across the country? 

Answer. As an estimate, the U.S. commercial nuclear industry has about 70,000 

metric tons of spent fuel stored at reactor sites around the country presently (not 

including defense waste). The commercial industry produces another 2,000 metric 

tons of used fuel each year. The number of storage facilities and repositories needed 

would depend ultimately on the outcomes of the recommended consent-based siting 

process and the resolution of the Yucca Mountain licensing process. An effective consent-based siting process will permit the state, affected local community and/or tribe 

to determine what size facility they are willing to host. So the number of facilities 

greatly depends on what sites come forward during the consent-based process and 

how much nuclear waste each site can technically and politically accommodate. 

The number of nuclear waste management facilities also depends on the schedule 

for when such facilities become operational. If the Yucca Mountain repository was 

operational and the statutory limit of 70,000 metric tons was removed, the U.S. may 

only need that one disposal site as it is generally agreed, based on technical studies 

performed by the Department of Energy and the Electric Power Research Institute, 

that Yucca Mountain can accommodate significantly more used fuel than the statutory limit. As the pilot consolidated storage facility and repository are being developed, the new management entity should assess the situation to determine how 

much used fuel should be shipped to a consolidated storage facility. The new management entity should also determine the long-term role of a consolidated storage 

facility vis-&-vis the progress made on developing a repository. 

Co-locating a repository and storage facility would have advantages. However, 

NEI believes that the timelines for determining if a site is suitable to host a repository will be considerably longer than for a storage facility. As a result, NEI questions whether attempting to comply with this preference may create unforeseen 

challenges to siting a facility. If multiple sites for storage and repository are needed, 

the industry would support geographically diverse locations to minimize the transportation of nuclear waste over long distances. Multiple locations also provide redundancy that would greatly enhance the reliability of the whole nuclear waste 

management system. 

Question 4. Do you support the language we have included in the legislation 

under Section 401 to cut off fee collection after December 31, 2025 unless the Administrator is operating a nuclear waste facility by that date? 
105 

Answer. The industry supports the inclusion of this subsection that would suspend waste fee payments if a disposal or storage facility is not open by the end of 

2025. We suggest that the language be modified to address the conditions under 

which the waste fee payments would be restarted. 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. Oral 

arguments in the case are scheduled for September. 

Question 5. Your testimony refers to an EPRI study that suggests a storage facility could be constructed for $525 million. Given that this legislation makes the fuel 

at decommissioned and stranded sites a priority, does that amount include what will 

be necessary to rebuild the infrastructure at those sites to get the casks to railhead? 

How much do you estimate it would cost to rebuild that infrastructure? 

Answer. The EPRI study referenced in NEI’s testimony does include some costs 

for transportation infrastructure, although not for any specific site where fuel is to 

be removed. As the EPRI report states ‘‘the costs associated with development of 

the transportation infrastructure for a generic interim storage facility will be highly 

dependent upon the site chosen for the facility. Costs will depend upon the site’s 

proximity to rail transportation corridors and the resulting length of a rail spur or 

heavy haul route to the site. The costs associated with the design and construction 

of site access roads will depend upon the existing transportation infrastructure, site 

topography, etc.’’ The total cost that EPRI included was $176.5 million, which included access road improvements, rail spur and the various rail car components 

needed for transport (locomotive, escort, buffer). 

The Department of Energy has studied the existing infrastructure at the decommissioned plant sites and issued a report about developments that are needed. The 

report, ‘‘Preliminary Evaluation of Removing Used Nuclear Fuel from Nine Shutdown Sites,’’ issued on April 30, 2013, includes characterizations of each site. It does 

not, however, include any cost estimations for the infrastructure developments needed at each site. But this type of analysis (including costs) will be needed to move 

the casks off the site regardless if the fuel is bound for a repository or consolidated 

storage facility. 

RESPONSES OF SALLY JAMESON TO QUESTIONS FROM SENATOR WYDEN

Question 1. Several states have laws prohibiting construction of new nuclear 

power plants until a solution has been found for nuclear waste. To what extent do 

you see the uncertainty of US policy on spent fuel storage and disposal to be a barrier to the future use of nuclear power? 

Answer. Speaking for myself as a Maryland state legislator, even though a few 

states have rescinded their prohibition in the last several years, not having a solution for the removal of spent nuclear fuel (SNF) certainly gives those who oppose 

nuclear power plants an argument that creates a certain level of fear in the public. 

Even though NCSL has no formal policy admonishing a state for prohibiting nuclear 

power, it is clear to me that nuclear power is the only base load power source that 

is virtually carbon free. NCSL also has policies related to federal clean air climate 

change actions. 

Additionally, there is no question that not having a solution for SNF has clearly 

propagated questions about fuel pool safety, over packing of pools two to ten times 

their design capacity and storing spent fuel in highly populated areas or adjacent 

to populations. Establishing interim storage sites and repositories would provide 

evidence to the states that we as a nation are serious about climate change, safety 

and nuclear power, which I see as a solution to carbon free, base load electricity. 

Question 2. One of the central recommendations of the Blue Ribbon Commission 

is the need for a consent-based siting process where the Federal Government works 

with States and Indian Tribes to pick a site, and not in opposition to them. If there’s 

a lesson that can be learned from Yucca Mountain, it’s that the Federal Government 

needs to do a better job of working with States in picking nuclear waste sites. However, I don’t think you can have a process that puts what’s politically expedient 

ahead of safety. How can communities and the States that surround them be assured that a consent-based siting process is picking a safe site, not just the most 

politically popular site? 

Answer. Again, in speaking for myself as a Marylandstate legislator, the siting 

process for the Monitored Retrievable System (MRS) program and for the Global 

Nuclear Energy Partnership (GNEP), now known as the International Framework 

for Nuclear Energy Cooperation (IFNEC), includes basic geographic and geologic criteria that were established for any applicant to meet the sniff test for acceptability. 
106 

Such criteria as distance from populations, known water table depths, historical geologic stability, dryness of area, air traffic, distance from waterways, rivers, lakes, 

etc. are considered. Fundamental known geology of an area and the geography of 

a site is the beginning criteria for finding safe sites and eliminates those that will 

present a hazard. If the facility is a repository there must be some known geo-technical information that would make the medium for a facility location preliminarily 

acceptable. Once the preliminary criteria are met then there must be political acceptance by the affected city councils and county commissions by resolution of support who are typically close to their community residents and are able to represent 

the consent of their area constituents. The next big leap is to have a letter from 

the governor of the state, with approval from the legislature, asking for money from 

the Department of Energy (DOE) to begin the education process statewide, as well 

as with the legislature, regarding the pros and cons of a facility and to develop the 

precepts of a consent agreement. This process requires a request by the governor 

and an expression of interest on behalf of the state, but does not require a commitment. Then, assuming the education and consent process goes well and the public 

has had significant opportunity to have input into a ‘‘consent agreement’’ and there 

is an understanding of acceptance of the facility, the legislature and governor would 

collaborate on a final agreement to be offered to DOE. Upon receipt of that state 

document, DOE would then embark on geo-technical confirmation of the site at 

DOE’s expense. That evaluation should be at least equivalent to the Safety Analysis 

Report and other geo-technical requirements of an NRC license. The NRC is a very 

tough regulator, and safety is their sole objective when it comes to nuclear facilities. 

Assuming this all passes NRC standards, the path to an NRC license application 

should be paved. At this point, with no geo-technical issues standing in the way of 

licensing, the state and DOE would complete final negotiations on the contract, 

which must be irrevocable by either party and completely enforceable in a court of 

competent jurisdiction. The project would then begin post haste. The state will obviously have health, safety, environmental, and financial assurance of closure or decommissioning, a benefit package for the state and local governments and probably 

other conditions such as an NRC license, co-inspections by the state, fines for nonperformance, public involvement, reporting, and other terms and conditions. 

This process is very public and includes local, county, state elected officials every 

step of the way and into the future. It concludes with a contract that is enforceable 

and creates transparency. 

As a final recommendation, I would suggest that DOE not only provide money in 

the first tranche for the ‘‘consent process,’’ but also include enough funds for the 

state to hire an expert team of lawyers and scientists solely responsible to the state 

to make sure the state is well informed as to the NRC process, DOE standards and 

federal contracting to enhance confidence. Most states lack this expertise within any 

of their departments. 

Question 3. Historically, citizens, local governments, and tribes have expressed interest in hosting nuclear waste facilities, but state-level opposition prevented any 

deals from being signed. Our bill tries to address this problem by clearly spelling 

out a role for the state from the beginning. Are there other measures that we should 

include to address potential differences between local communities and broader, 

state-wide interests? 

Answer. As I described in my written testimony, there are a number of legislative 

options for ensuring the consultation process can integrate all aspects of state government and assure state legislative input. As state legislators represent local communities, ensuring state legislator participation in the consent process would build 

a system for addressing any potential differences between local communities and 

state-wide interests. 

Specifically, one option to consider would be to add ‘‘presiding officer of each legislative chamber’’ to all references to the ‘‘Governor or duly authorized official of the 

state’’ when mentioned with regards to site selection, study and siting for both the 

repository and storage facility processes. This would make it consistent with the Nuclear Waste Policy Act of 1982 section 117, which clearly states that the Department 

of Energy ‘‘shall consult and cooperate with the Governor and legislature of such 

State.’’ 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. 

RESPONSES OF SALLY JAMESON TO QUESTIONS FROM SENATOR MURKOWSKI

Question 1. With regard to the Oversight Board, the legislation leaves it to the 

President to determine who should be appointed—with the advice and consent of the 

Senate. Some have recommended that seats be reserved for various entities. Do you 
107 

believe this legislation should provide more specificity as to who should be appointed to the Board? 

Answer. Given the importance placed on state, local, and tribal consultation in the 

draft, NCSL would recommend adding such representation to the Oversight Board 

and other advisory committees, as discussed in Section 205. In order to not overburden the board structures, the appointments could be made through the national organizations representing state, local and tribal elected officials such as NCSL. 

Question 2. While I understand that some of you would prefer a Board of Directors structure to the new entity, assume that the single Administrator approach is 

retained. Is the six-year service term appropriate? Should it be longer/shorter? 

Answer. NCSL has not yet taken a position on this issue. 

Question 3. How many storage facilities and repositories do you believe will be 

needed to handle this nation’s nuclear waste? Should they be co-located? Should 

they be geographically spread across the country? 

Answer. NCSL has not yet taken a position on this specific issue regarding the 

geographic placement and co-locating of sites. However, NCSL does support one of 

the main recommendations of the Blue Ribbon Commission regarding the need for 

a consent-based siting process where the federal government works with states and 

Indian Tribes to pick a site. 

Question 4. When it comes to a state, local community, or tribal government interacting with the new entity, is it preferable to interact with a single administrator 

type structure, or a board of directors with a CEO? 

Answer. NCSL has not yet taken a position on this issue. 

UNION OF CONCERNED SCIENTISTS, 

Chattanooga, TN, August 8, 2013. 

Hon. RON WYDEN, 

Chairman, 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 MR. CHAIRMAN AND RANKING MEMBER MURKOWSKI: On behalf of the Union 

of Concerned Scientists, I appreciate your Committee conducting the July 30 hearing on the draft S.1240, the Nuclear Waste Administration Act of 2013, and for inviting me to share our views on the matter during the hearing. Onsite spent fuel 

storage is one of UCS’s primary nuclear safety concerns and we view this draft bill 

as the best opportunity in many years to make substantive progress in dealing with 

this issue. We are very mindful of and appreciative for the key roles you have 

played as co-authors of the bill and leaders of the Committee in creating this opportunity. We pledge our support in getting legislation enacted that provides significant, tangible improvements from the current situation. 

Enclosed are my responses to the Questions for the Record from the July 30 hearing. If I can provide additional or clarifying information, please let me know. 

Sincerely, 

DAVID LOCHBAUM, 

Director, Nuclear Safety Project. 

[Enclosure.] 

RESPONSES TO QUESTIONS FROM SENATOR WYDEN

Question 1. Our bill establishes a category for priority waste that literally gets 

priority when it comes to access to Federal storage. This includes spent fuel at decommissioned power plants, for example. Are there other categories of spent fuel 

shipments that should get priority that have not been included? For example, 

should nuclear power plants that have had particular types of safety problems and 

have more often received a worse-than-‘‘green’’ rating from the NRC get priority? 

Answer. During the July 30 hearing, Chairman Wyden spoke of spent fuel storage 

measures that can reduce costs while improving safety. Those reasonable principles 

may identify spent fuel shipments having secondary priority. For example, dry storage methods are long lasting but not immortal. The U.S. Nuclear Regulatory Commission (NRC) issued Information Notice 2012-20 (available online at http:// 

pbadupws.nrc.gov/docs/ML1231/ML12319A440.pdf) last fall about potential chlorideinduced stress corrosion cracking of dry cask storage system canisters. Last year the 

NRC also issued Information Notice 2012-13 (available online at http:// 

pbadupws.nrc.gov/docs/ML1216/ML121660156.pdf) about aging degradation of safety 
108 

materials in spent fuel pools. Owners of operating reactors could pay for the measures necessary to protect safety margins from such degradation mechanisms. There 

is also the potential for an existing onsite dry storage facility to become filled, requiring its owner to pay for supplemental onsite storage capacity (e.g, construct additional horizontal concrete vaults or pour larger concrete pads for vertical casks). 

In such cases, shipment from operating reactor sites to a Federal storage site might 

reduce overall system costs while also increasing safety levels or preserving safety 

margins. The bill should empower the entity tasked with managing the Federal 

storage program to authorize spent fuel shipments from operating reactor sites as 

a secondary priority based on safety management and cost savings grounds. 

Question 2. This bill sets up a program for the Federal Government to build new 

storage facilities for spent fuel. I think it makes sense to move spent fuel if it’s going 

to be cheaper and safer, for example, at decommissioned nuclear power plants 

where there’s not going to be ongoing operations. However, at some nuclear power 

plants, there are going to be continued operations, and maintenance, and security, 

and environmental monitoring for decades to come. It might NOT be cheaper or 

safer to move this fuel to a central storage site, especially since it will need to be 

moved again to the repository. Should the bill include a program to help pay for 

continued on-site storage at nuclear power plant sites if that would be safer and less 

expensive? 

Answer. Yes, the bill should provide funding for continued onsite storage at operating reactor sites when it reduces risk and saves money. The bill should not fund 

higher risk and higher cost onsite storage methods. For example, operating reactors 

with spent fuel pools nearly filled to capacity may be required to shuffle the fuel 

assemblies within the pools to maintain the desired old fuel/new fuel configuration 

or be required to implement additional maintenance/monitoring measures to mitigate the neutron absorber degradation problem the NRC described last year in Information Notice 2012-13 (available online at http://pbadupws.nrc.gov/docs/ML1216/ 

ML121660156.pdf). Because the cheaper and lower risk alternative would be to offload fuel assemblies from overcrowded spent fuel pools into dry storage onsite, the 

bill should not finance this folly. But the bill would improve safety and lower costs 

by providing financial incentives for owners to accelerate the transfer from spent 

fuel pools to dry storage. The bill could do so by paying for the dry storage canisters 

and the costs of loading them. 

Question 3. You have recommended accelerating the transfer of spent fuel from 

the spent fuel pools to dry-cask storage. What else could Congress do to encourage 

movement of spent fuel out of reactor pools, such as allowing the Attorney General 

to enter into negotiations with the utilities to seek their voluntary agreement to 

transfer their waste to dry cask storage as part of a settlement agreement in return 

for providing interim storage off-site? 

Answer. In the past, some owners have explored using money from their decommissioning funds to pay for onsite dry storage but have not been allowed to do so. 

Regulation 10 CFR 50.75 (available online at http://www.nrc.gov/reading-rm/doc-collections/cfr/part050/part050-0075.html) requires owners to establish decommissioning funds. Regulation 10 CFR 50.82 (available online at http://www.nrc.gov/reading-rm/doc-collections/cfr/part050/part050-0082.html) governs when and how the decommissioning funds can be used. Once an owner has notified the NRC per 10 CFR 

50.82 that a reactor has permanently shut down, decommissioning funds can be 

used to pay for onsite dry storage. But decommissioning funds cannot readily be 

used to pay for onsite dry storage for an operating reactor. Onsite dry storage can 

be considered a pre-decommissioning or early decommissioning step consistent with 

the overall goals of 10 CFR 50.75 and 10 CFR 50.82. Thus, the bill might clearly 

authorize owners of operating reactors to use decommissioning funds to pay for onsite dry storage. 

RESPONSES TO QUESTIONS FROM SENATOR MURKOWSKI

Question 1. With regard to the Oversight Board, the legislation leaves it to the 

President to determine who should be appointed—with the advice and consent of the 

Senate. Some have recommended that seats be reserved for various entities. Do you 

believe this legislation should provide more specificity as to who should be appointed to the Board? 

Answer. No, the legislation handles the Oversight Board similar to how appointments to the Nuclear Regulatory Commission are handled. Both feature five-member panels of qualified individuals appointed by the President and confirmed by the 

Senate with a provision that no more than three members be from the same political party. The existing provisions of the legislation provide the bi-partisan panel 
109 

of diverse viewpoints and interests to fulfill the role intended for the Oversight 

Board. 

Question 2. While I understand that some of you would prefer a Board of Directors structure to the new entity, assume that the single Administrator approach is 

retained. Is the six-year service term appropriate? Should it be longer/shorter? 

Answer. The six-year term, with the option for additional term(s) as provided in 

the legislation, seems appropriate. It is long enough to provide continuity of leadership yet short enough to avoid imposing the ‘‘burnout’’ burden on any individual. 

Question 3. How many storage facilities and repositories do you believe will be 

needed to handle this nation’s nuclear waste? Should they be co-located? Should 

they be geographically spread across the country? 

Answer. Science and the consent-based selection process provided for in the legislation should answer these questions rather than the legislation itself. As Senator 

Alexander suggested during the July 30 committee hearing, a site might require 

conditions on its acceptance of a storage facility or repository. Those conditions 

might cap the amount of material received at the site or require that it not be used 

for both interim storage and ultimate disposal of nuclear waste. The Nuclear Waste 

Administration would also be a party in the site selection process and would presumably not authorize selection of a site that would result in the need to find too 

many other sites. If the legislation were to specify x locations with some here and 

others there, it could impede the ability of the Nuclear Waste Administration and 

the consent-based process from finding the best answers to these key questions. 

RESPONSE TO QUESTION FROM SENATOR BALDWIN

Question 1. The departure from the 1982 Nuclear Waste Policy Act plan forced 

nuclear plant operators to pay for expanded onsite spent fuel storage capacity. In 

order to meet this increased need, nuclear plants simply crowded their existing 

spent fuel pools, placing radioactive materials very close to one another, increasing 

the risk of a meltdown. Dry cask storage can reduce the crowding of irradiated fuel 

in spent fuel pools, bringing the pools back to housing a safe level of reactor cores. 

I am concerned about the safety of workers and the communities adjacent to nuclear 

plants with crowded fuel pools. Dry cask storage is currently housing only 30 percent of Wisconsin’s nuclear waste. In order to safeguard communities and plant 

workers, how can the Department of Energy, or the Nuclear Waste Administration 

if applicable, incentivize nuclear plant operators to switch to dry storage technology? 

Answer. UCS strongly advocates accelerating the transfer of irradiated fuel assemblies from spent fuel pools into dry storage via either the carrot or stick approach. The stick approach could entail measures in the bill that require owners to 

transfer all irradiated fuel discharged from the reactor more than 10 years ago into 

dry storage within 20 years of enactment and then to sustain transfers to limit residence time in spent fuel pools to only irradiated fuel discharged from reactors within 10 years. Another stick might be to codify guidelines adopted by the U.S. Nuclear 

Regulatory Commission after 9/11 to reduce risk of spent fuel pool sabotage. For example, the bill could require that all spent fuel pools be reconfigured to a 1x4 arrangement (one irradiated fuel assembly with three empty storage cells) within 5 

years of enactment. On the carrot side, the bill could pay for dry storage canisters 

and associated transfers. Another carrot might be for the bill to clearly allow owners 

of operating reactors to use the decommissioning funds required under 10 CFR 

50.75 (available online at http://www.nrc.gov/reading-rm/doc-collections/cfr/part050/ 

part050-0075.html) to pay for onsite dry storage. Or, the bill could provide a carrot 

in the form of treating any nuclear plant site that has reduced the inventory or irradiated fuel assemblies within its spent fuel pools to less than the equivalent of two 

reactor cores as having Priority Waste eligible for shipment to a Nuclear Waste Facility. The bill might also feature a combination of carrot(s) and stick(s)—carrot(s) 

to reward owners who pro-actively undertake accelerated transfers into dry storage 

and stick(s) to protect the public from further undue lagging. 

RESPONSES OF CHUCK SMITH TO QUESTIONS FROM SENATOR WYDEN

Question 1. One of the central recommendations of the Blue Ribbon Commission 

is the need for a consent-based siting process where the Federal Government works 

with States and Indian Tribes to pick a site, and not in opposition to them. If there’s 

a lesson that can be learned from Yucca Mountain, it’s that the Federal Government 

needs to do a better job of working with S tates in picking nuclear waste sites. However, I don’t think you can have a process that puts what’s politically expedient 

ahead of safety. How can communities and the States that surround them be as-
110 

sured that a consent -based siting process is picking a safe site, not just the most 

politically popular site? 

Answer. Education, involvement and technical feasibility will be keys picking a 

safe site. There are activities at the federal and local level that can help assure communities and states that a consent-based siting process is picking a safe site. 

At the local level, to the extent the site is technically feasible, support can only 

be built if a potential host community understands the process for selection of the 

site, contraction and long-term operations and if the community trusts that its interests, concerns and priorities are being meaningfully considered and will be addressed. To that end, local governments must be (1) involved in the entire decision 

-making process from site analysis, selection, construction and operation and (2) provided with the resources necessary to enable their independent involvement 

throughout all of the phases of the project. 

Local governments considering hosting nuclear waste storage and disposal facilities need to become educated on nuclear issues. Funding is needed to develop public 

outreach and education programs for stakeholders, government officials in county, 

city and town agencies, students, employees and individuals involved with emergency response and average citizens. Funding will also allow a community to bring 

in experts it trusts and whose responsibilities are to that community. 

Outreach programs will ensure local communities understand the proposed 

project, the health and safety issues, the real vs. perceived risks, and will provide 

awareness of potential benefits — such as job creation or infrastructure development. Education and outreach efforts may include: hosting meetings in the community; creating public information campaigns; coordinating programs with local universities and community colleges; building websites and producing written material 

for distribution. 

These programs must start as early as possible in order to determine if enough 

support exists within a community for it to volunteer for a nuclear waste mission. 

Also, these programs must continue for the long-term in the community. 

At the federal level, ECA recommends re-examination of work done in the 1980s, 

when the Federal government identified technically feasible sites in a variety of geologic media across the United States. That work can be supplemented and amended 

to create a list of suitable disposal mediums and where they exist. ECA further recommends that the Department of Energy, the Nuclear Regulatory Commission, and 

Environmental Protection Agency (EPA) immediately develop scientifically-based 

health and environmental standards, model state laws and regulations to help guide 

the siting process. 

Finally, ECA recommends consideration of lessons learned at Yucca Mountain. 

Billions of dollars were invested in scientific research resulting in a majority of technical experts recommending the site as safe and suitable. However the Administration’s decision that Yucca Mountain is ‘‘unworkable’’ after years of characterization 

and without completing the licensing process, has eroded trust that the federal government will follow the law. 

It is fair to expect that unanimity will not be reached at any one site, so the process has to be defensible and binding agreements with local governments, states and 

tribes regarding future site evaluations will be required. Over the long-term ‘‘safety’’ 

will need to be reviewed and analyzed by the regulators and community continuously. 

Question 2. Historically, citizens, local governments, and tribes have expressed interest in hosting nuclear waste facilities, but state-level opposition prevented any 

deals from being signed. Our bill tries to address this problem by clearly spelling 

out a role for the state from the beginning. Are there other measures that we should 

include to address potential differences between local communities and broader, 

state-wide interests? 

Answer. As noted above funding for education will be a key to permitting the 

state to participate in the process and to ensure that the public in the state understands (and possibly supports) the initiative to site a facility in the state. A key to 

the legislation will be the authorization of grant funding for the state to analyze 

the technical issues independently from any federal entity and to use the funds to 

educate the state on safety issues and the economic benefits and other benefits to 

the state. 

While ECA has concluded that there is no one-size fits all consent agreement— 

the terms of a consent agreement will be specific to each potential host community 

and state, as negotiated with the federal government—the more clarity there is, the 

less likely interest will be reversed over time. To that end, the federal government 

should provide resources now for site studies and education as the local government 

of an interested community is responsible for outreach to the community as well as 

to the state. Local communities can provide information on the risks and benefits 
111 

of a project and help educate state officials regarding the safe transportation and 

operational records of facilities like the Waste Isolation Pilot Plant (WIPP) and private disposal facilities. Unlike the last siting effort, there is now a defensible safety 

record for state officials to consider. It would also be helpful if the Federal government could better define the level of benefits available for states or local governments considering hosting a nuclear waste facility. 

ECA agrees with the legislation that, once negotiated, the consent agreement 

should be ratified by law, binding on all parties, and not amended or revoked except 

by mutual agreement by the parties. The question of when consent needs to be 

reached is one that requires further discussion. It has been suggested that consent 

be obtained early in the process contingent on NRC approval of licensing. If NRC 

licensing proves to be problematic, all benefits accrued should be retained by the 

state and local community. 

RESPONSES OF CHUCK SMITH TO QUESTIONS FROM SENATOR MURKOWSKI

Question 1. With regard to the Oversight Board, the legislation leaves it to the 

President to determine who should be appointed—with the advice and consent of the 

Senate. Some have recommended that seats be reserved for various entities. Do you 

believe this legislation should provide more specificity as to who should be appointed to the Board? 

Answer. Yes, there should be seats specifically for key stakeholders. ECA urges 

that a local government representative from an affected local jurisdiction be appointed to ensure community perspectives and concerns are represented. This is important to build public trust and confidence in the system. 

In addition, membership on the board should be specific as to purpose and responsibilities, i.e., technical, scientific, policy, regulatory and political, and defined in legislation to promote accountability. 

Political influence must be limited to the extent possible. 

Question 2. While I understand that some of you would prefer a Board of Directors structure to the new entity, assume that the single Administrator approach is 

retained. Is the six-year service term appropriate? Should it be longer/shorter? 

Answer. It has been estimated that it will take about two decades to site, license, 

construct and begin operations of a high-level radioactive waste centralized storage 

facility. A repository will take until 2048 according to DOE’s latest estimate, which 

is optimistic. A six-year term should allow sufficient time to make progress, but may 

not preclude political manipulation. 

Question 3. How many storage facilities and repositories do you believe will be 

needed to handle this nation’s nuclear waste? Should they be co-located? Should 

they be geographically spread across the country? 

Answer. ECA supports focusing on achieving public acceptance and siting, characterizing, licensing and opening one storage facility and one repository. Our collective 

inability to do so thus far has been the real issue. ECA does not have position on 

whether there should be more than one storage facility or repository but most experts agree that more than one facility and repository will likely be needed. 

It would be ideal and beneficial for a storage facility to be co-located in order to 

consolidate and stage the waste. However, it should not be a requirement as safe 

transportation has been demonstrated. 

Finally, while geographically distributed sites may be desirable, the location of a 

repository should be science-based on the most suitable geology available and public 

acceptance. However, it should be noted that the Nuclear Waste Policy Act was 

passed principally because there was an agreement that no one state would have 

to take all the waste. 

Question 4. When it comes to a state, local community, or tribal government interacting with the new entity, is it preferable to interact with a single administrator 

type structure, or a board of directors with a CEO? 

Answer. Both can work if managed properly. ECA urges that a representative of 

the state and local government hosting the nuclear waste facility have a position 

directly on any oversight or advisory board. 

Æ