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[Senate Hearing 113-123]
[From the U.S. Government Publishing Office]

                                                        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

                  U.S. GOVERNMENT PRINTING OFFICE
85-875                    WASHINGTON : 2013
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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                      RON WYDEN, Oregon, Chairman

TIM JOHNSON, South Dakota            LISA MURKOWSKI, Alaska
MARY L. LANDRIEU, Louisiana          JOHN BARRASSO, Wyoming
MARIA CANTWELL, Washington           JAMES E. RISCH, Idaho
BERNARD SANDERS, Vermont             MIKE LEE, Utah
DEBBIE STABENOW, Michigan            DEAN HELLER, Nevada
MARK UDALL, Colorado                 JEFF FLAKE, Arizona
AL FRANKEN, Minnesota                TIM SCOTT, South Carolina
JOE MANCHIN, III, West Virginia      LAMAR ALEXANDER, Tennessee
BRIAN SCHATZ, Hawaii                 ROB PORTMAN, Ohio
MARTIN HEINRICH, New Mexico          JOHN HOEVEN, North Dakota
TAMMY BALDWIN, Wisconsin

                    Joshua Sheinkman, Staff Director
                      Sam E. Fowler, Chief Counsel
              Karen K. Billups, Republican Staff Director
           Patrick J. McCormick III, Republican Chief Counsel

                            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

                             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.
    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 
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.
    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 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 
government'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.
    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 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 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-gas-emitting electric power generation. We 
believe that nuclear energy will continue to be an important part of 
the Nation's low carbon future.
    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 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 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 high-
                        level 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.

    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 technically sound. The 
BRC emphasized that flexibility, patience, responsiveness and a heavy 
emphasis on consultation and cooperation will all be necessary in the 
siting process and in all aspects of implementation. Experiences in 
other countries indicate that a consent-based process--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:

   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.
            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.
                                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.
    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 
high-level 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 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. 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 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 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 
long-term 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.
    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.
    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.
    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.
    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 Surete 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.
    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.
    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 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 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.
    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 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.
    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.
    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.
    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 US-Russia 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 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 rulemaking 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 Laboratory\1\, 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.
---------------------------------------------------------------------------
    \1\ Lawrence 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-adopted-
1987-0
---------------------------------------------------------------------------
    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 Laboratory\2\, 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.
---------------------------------------------------------------------------
    \2\ Lawrence 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-adopted-
1987-0

    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 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?
    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 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 reading. 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 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 
                    Conference 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 Commission 
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.
---------------------------------------------------------------------------
    * Documents have been retained in committee files.
---------------------------------------------------------------------------
                          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.
                        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.
    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 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 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 
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.
    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 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 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 high-level 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 
high-level 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 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 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. 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 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 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:

   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.
 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. Consolidated 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 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.
                          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.
                       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. 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 
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.
---------------------------------------------------------------------------
    * Illustration has been retained in committee files.
---------------------------------------------------------------------------
    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 repository 
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.
---------------------------------------------------------------------------
    * Document has been retained in committee files.

    The Chairman. Thank you very much.
    Mr. Fettus.

   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, long-term, 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.
    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: 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. ' 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.
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    \1\ See http://www.energy.senate.gov/public/index.cfm/democratic-
news?ID=490349a4-4b5e-4ac2-83e7-6e9a54c7aaf0
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    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 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. Sec.  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. 
Sec.  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 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.
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    \2\ The 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.
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    (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.
---------------------------------------------------------------------------
    \3\ See 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.
---------------------------------------------------------------------------
    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 language 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.
    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 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 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, 
interim-stored 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. Nevertheless, we believe 
        it will be essential to affirm a role for states, tribes, and 
        local governments that is at once positive, proactive, and 
        substantively meaningful and thereby reduces rather than 
        increases the potential for conflict, confusion, and delay.

    Final Report at 56 (citation omitted).
    Without fundamental changes in 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 negotiation on a site. Indeed, 
while it would be possible for a future Congress to revisit the AEA and 
re-insert exemptions from environmental law, it would have to do so in 
a manner that would remove overdue jurisdictional authority from all 
states (or Congress would have to single out one state for special 
treatment). The difficulty of prevailing over the interest of all 50 
states rather than simply amending legislation that affects the 
interests of just one state should be apparent.
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).
    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 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.*
---------------------------------------------------------------------------
    * Figure 1 has been retained in committee files.
---------------------------------------------------------------------------
    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 Accountability Office reported that these lawsuits cost 
American taxpayers $1.6 billion with an estimated $19.1 billion of 
additional liability through 2020.\1\
---------------------------------------------------------------------------
    \1\ U.S. Government Accountability Office, ``Spent Nuclear Fuel: 
Accumulating Quantities at Commercial Reactors Present Storage and 
Other Challenges,'' GAO-12-797, August 2012.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    * Figure 2 has been retained in committee files.
---------------------------------------------------------------------------
    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 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 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.
    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 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.
    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 
Committee 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-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 ``Transition 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 
Co-Chairs 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.
                    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 communities 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 high-level 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 Knopman\1\, The RAND Corporation, on 
          S. 1240--Nuclear Waste Administration Act of 2013\2\
---------------------------------------------------------------------------
    \1\ The 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.
    \2\ This testimony is available for free download at http://
www.rand.org/pubs/testimonies/CT398/.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \3\ Lynn 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/research_briefs/RB9677.html.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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/strategy-management-and-disposal-
used-nuclear-fuel-and-high-level-radioactive-waste.
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \5\ This discussion can be found in Chapter Four and is summarized 
in Table 4.3 of the RAND report.
    \6\ See p. 32 of the RAND report.
---------------------------------------------------------------------------
    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.
                                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 
operation 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.
  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.
   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 US-Russia 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 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 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 Laboratory\1\, 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.
---------------------------------------------------------------------------
    \1\ Lawrence 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-adopted-
1987-0
---------------------------------------------------------------------------
    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 Laboratory\2\, 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.
---------------------------------------------------------------------------
    \2\ Lawrence 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-adopted-
1987-0
---------------------------------------------------------------------------
  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 reevaluation 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 high-level 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 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 government-run 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.
---------------------------------------------------------------------------
    \1\ The BRC Report omits discussion of the fierce effort New Mexico 
waged to obtain RCRA authority over the site.
---------------------------------------------------------------------------
    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 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.
      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 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:
---------------------------------------------------------------------------
    \1\ Final Interpretation of Nuclear Waste Issues, 60 Fed.Reg. 
21,793 (1995)

          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\
---------------------------------------------------------------------------
    \2\ See, 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.

    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.
    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 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?
    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 repository. 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 worse-
than-``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?
    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 company 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?
    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. 
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 non-performance, 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 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 
chloride-induced 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 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 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 assured 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 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.

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