Excess Uranium Inventories: Clarifying DOE's Disposition Options Could Help Avoid Further Legal Violations
Released: 2011-09-26T00:00:00

Letter

Background

Before uranium can become nuclear fuel to produce energy or be used in weapons, it must be mined from the earth. Mining firms in the United States extract uranium by conventional means, such as open-pit and underground mining, as well as by means of a liquid that leaches uranium from the ground. The product from these techniques is a substance called yellowcake. Yellowcake on its own cannot fuel nuclear reactors and weapons. Rather, it is shipped to a conversion facility, where the yellowcake is converted to uranium hexafluoride (a gas when heated) for the enrichment process. Uranium comprises a mix of several isotopes, or forms of the same element with different atomic weights. Less than 1 percent of natural uranium found in yellowcake is the isotope uranium- 235—the fissile isotope used in nuclear reactors and nuclear weapons. After conversion, enrichment firms use one of several processes to increase the amount of uranium-235 to concentrations suitable for generating nuclear power or for nuclear weapons. To be suitable as fuel for nuclear reactors, natural uranium must be enriched to a concentration of from 3 to 5 percent uranium-235. This fuel is referred to as low- enriched uranium. Natural uranium enriched to a concentration of over 90 percent uranium-235 is highly enriched uranium, which is considered weapons-grade material. For more detailed information about the nuclear fuel cycle, see appendix II.

Initially, the federal government was the only entity providing domestic enrichment services in the United States. More recently, however, domestic uranium enrichment activities have been performed by private industry. USEC is one of several firms that provide enrichment services to utilities operating nuclear power plants. It has provided enrichment services using DOE-owned facilities since 1993, when it began functioning as a government-owned corporation. In 1998, USEC began functioning as a private corporation, which today runs the Paducah Gaseous Diffusion Plant in Kentucky. USEC ran the Portsmouth Gaseous Diffusion Plant in Piketon, Ohio, until 2001, when DOE contracted the firm to maintain the plant in cold-standby status for a number of years until the department was ready to decontaminate and decommission it. USEC is currently seeking funding to open a new enrichment facility, the American Centrifuge Plant, at the Portsmouth site.

The market for uranium works somewhat differently from other commodity markets. In one of two ways, uranium buyers, such as utilities, purchase uranium and the services to convert it into nuclear fuel. First, buyers can obtain uranium under long-term contracts with sellers in the “term” market. Second, sellers can make their uranium available for immediate sale in a forum called the “spot” market. Transaction details about sales through both long-term contracts and the spot market are ordinarily considered business proprietary information. Uranium typically changes ownership through a process called a book transfer. Book transfers do not usually involve the physical movement of uranium, generally occurring at conversion and enrichment facilities, which tend to maintain large quantities of yellowcake or uranium hexafluoride on site for their customers. Uranium transactions are conducted directly between buyers and sellers, but brokers also match buyers with sellers for a fee. In addition, speculators may hold and sell uranium strategically to profit from swings in the price of the material.

DOE Has Used Excess Uranium to Pay for Cleanup Services, and Additional Transactions Are Planned

Since 2008, DOE has engaged in transactions involving excess uranium to pay two contractors for cleanup services at the Portsmouth Gaseous Diffusion Plant. Most of the uranium went to USEC to prepare the Portsmouth facility for decontamination and decommissioning. DOE plans additional transactions involving excess uranium.

DOE Has Used Nearly 1,900 Metric Tons of Excess Uranium to Pay for More Than $250 Million in Cleanup Services

From December 2009 through June 2011, DOE used 1,873 metric tons of its excess natural uranium to pay for $256 million in cleanup services at its Portsmouth facility (see table 1). During this period, the department completed seven transactions with two firms.

DOE’s first six transactions took place with USEC. In these transactions, DOE released in total about 1,473 metric tons of uranium valued at about $194.3 million. In return, USEC provided accelerated cleanup services to prepare the Portsmouth facility for eventual decontamination and decommissioning. For example, USEC removed and disposed of chemical and hazardous materials, including electrical equipment containing polychlorinated biphenyls, toxic chemicals that the Environmental Protection Agency states have been demonstrated to cause cancer. Other work USEC performed included relocating a cooling water line and identifying excess equipment suitable for recycling.

One uranium transaction to date has also occurred between DOE and Fluor-B&W Portsmouth. This firm began activities to decontaminate and decommission the Portsmouth facility in March 2011, according to a DOE official. In June 2011, DOE released 400 metric tons of uranium valued at nearly $62 million to Fluor-B&W Portsmouth as payment for additional cleanup services at the Portsmouth facility.

In these transactions, the value DOE received for each lot of natural uranium was reduced by the transaction costs both USEC and Fluor- B&W Portsmouth expected to incur to carry out the seven transactions (see table 2). These costs, which included charges for such things as storage cylinder handling and inspections, record keeping, and sales management, totaled almost $4 million. To account for these costs in the first six transactions, USEC reduced the value of the uranium transactions by 1 percent. Fluor-B&W Portsmouth reduced the value of its June 2011 transaction by substantially more—almost 2.8 percent—to account for sales costs. Fluor-B&W Portsmouth expects to discount all future transactions by a similar percentage as well, according to company representatives. In addition, under its contract with the department, Fluor- B&W Portsmouth also sought cost reimbursement from DOE for expenses associated with uranium handling and inspection and setting up what the parties referred to as a “uranium transfer management program.” According to Fluor-B&W Portsmouth representatives, Fluor- B&W Portsmouth was not a participant in the uranium market before it entered into its contract with DOE, which required the company to establish processes and procedures to manage 10 anticipated transactions over two and a half years. DOE plans nine additional transactions of natural uranium with Fluor-B&W Portsmouth through 2013, according to agency documents.

In addition to the natural uranium that DOE anticipates it will release to Fluor-B&W Portsmouth for cleanup services through 2013, DOE also maintains other inventories of natural uranium. In 2008, DOE stored approximately 4,500 metric tons of uranium that does not currently meet commercial specifications for manufacturing nuclear fuel. According to DOE’s December 2008 uranium management plan, this uranium would require considerable processing before it could meet commercial standards. The plan states that some of this material would eventually be processed and offered for use in the commercial market over a number of years. According to DOE, however, some of the material is so contaminated that it is no longer under consideration for processing, and DOE is uncertain what its ultimate disposition will be.

In addition to natural uranium, DOE maintains inventories of enriched and depleted uranium that are in excess of the department’s needs. For example, at the end of fiscal year 2010, DOE had 89 metric tons of excess highly enriched uranium in its inventories. To dispose of highly enriched uranium, DOE’s National Nuclear Security Administration (NNSA), a semiautonomous agency within DOE that is responsible for the management of the nation’s nuclear weapons program, has reduced the enrichment level of some of this uranium so it is potentially usable as nuclear fuel in the Tennessee Valley Authority’s nuclear power reactors. Some of the down-blended material has also gone to support DOE’s American Assured Fuel Supply Program, which ensures, among other things, access to nuclear fuel for civilian reactors in foreign countries that have good nonproliferation credentials.

According to agency officials, DOE also has approximately 750,000 metric tons of depleted uranium tails that it stores in about 63,000 metal cylinders in storage yards at its Paducah and Portsmouth enrichment plants. A product of the enrichment process, this depleted uranium has historically been considered of limited use, but increases in uranium prices have potentially made it profitable to re-enrich some of the tails to further extract uranium-235. We reported in June 2011 that at May 2011 uranium prices and enrichment costs, DOE’s tails have a net value of $4.2 billion. This estimate is very sensitive, however, to changing uranium prices, which have been extremely volatile, as well as to the availability of sufficient enrichment capacity.

USEC has publicly announced an interest in re-enriching some of DOE’s tails beginning in 2012. USEC plans to shut down operations at DOE’s Paducah facility, depending on market conditions, and also plans to replace some of the Paducah facility’s production capacity with the new centrifuge-based uranium enrichment plant it is constructing. USEC is considering continued operation of the Paducah facility beyond May 2012. According to USEC, processing depleted uranium could contribute toward maintaining operations at Paducah and retaining 1,200 employees the company might otherwise have to lay off. DOE officials, however, said that the department has no current plans to sell or re-enrich depleted uranium tails.

DOE’s Transactions Did Not Exceed Targets Set by Its Uranium Management Plan, but DOE’s Activities Were Not Consistent with the Plan in Other Ways

DOE’ s excess uranium transactions have been consistent with parts of its uranium management plan but not with others. Specifically, the amount of uranium the department sold or transferred is less than the target of 10 percent of annual domestic fuel requirements that DOE established under the 2008 plan. With regard to other provisions, however, DOE has departed somewhat from the plan. For example, DOE has deviated from the schedule of uranium transfers articulated by the plan, resulting in more uranium entering the market much sooner than cited.

DOE’s Uranium Transactions Have Not Exceeded the Target of 10 Percent of Domestic Uranium Demand Specified by the Plan

The total amount of uranium that DOE sold or transferred from January 2008 to June 2011 has stayed below the target specified in the department’s December 2008 uranium management plan. The plan stated that DOE would adhere to a target for uranium sales and transfers of no more than 10 percent of the annual U.S. requirements for nuclear fuel. The target was established in part to alleviate concerns raised by uranium industry officials that sales of uranium by DOE could harm the domestic uranium mining, conversion, and enrichment industries. Such concerns included a fear that sudden marked increases in the supply of uranium could depress prices. The targeted limit on uranium sales and transfers reflects DOE and uranium industry officials’ concurrence that the industry could withstand, without adverse material impact, the addition to the market from DOE’s uranium inventory of up to 10 percent of the U.S. demand for uranium in any year.

DOE’s December 2008 plan estimated that U.S. nuclear fuel requirements would be about 19,250 metric tons of uranium annually from 2008 through 2010. According to industry analysts, requirements are likely to increase gradually to about 20,000 metric tons by 2013. As shown in table 3, the total uranium DOE released to the market represented only about 5 percent of total U.S. demand in 2008 and 6 percent in 2009, significantly below the 10 percent target established by the plan.

Consistent with its 2008 plan, DOE has successfully kept its sales or transfers of uranium below the 10 percent target, but it has departed from other key provisions in its 2008 plan. For example, the plan scheduled uranium sales or transfers so that uranium would be released into the market gradually from 2009 through 2013. As shown in figure 1, DOE originally intended to increase the amount of uranium released year by year, from about 600 metric tons of uranium in 2008 to nearly 2,000 metric tons by 2013. But as a result of the uranium transactions with USEC and Fluor-B&W Portsmouth, which were announced after DOE’s December 2008 plan, DOE is poised to release substantially more uranium faster than the plan stated.

DOE’s plan also stated that the department may sell or re-enrich up to 7,000 metric tons of depleted uranium from 2008 to 2017. We learned from DOE officials, however, that the department has no plans to release any inventory of depleted uranium in the near term. According to DOE officials, a key reason depleted uranium is not likely to be sold or re- enriched is concern that doing so would push total DOE uranium sales and transfers over the December 2008 plan’s 10 percent target.

According to domestic uranium industry officials we interviewed, DOE’s departure from its 2008 plan has created anxiety about how much further DOE might deviate from its plan in the future. In particular, industry officials were concerned that uncertainties about the quantities of uranium DOE might suddenly decide to sell or transfer could cause a fall in future uranium prices. Industry officials told us that this fear of declining prices discouraged potential investment in the industry, particularly in newer mining companies seeking to start production. Industry officials also said they feared that uncertainties about DOE’s future plans would raise the costs of borrowing and of insurance coverage.

In discussions, DOE officials stated that the December 2008 uranium management plan was out of date soon after it was issued and that most of the plan’s projected transfers from 2011 forward no longer reflected the department’s present intentions. DOE officials told us that the department has begun work on updating the uranium management plan, but officials were unable to provide a date by which the update will be completed.

DOE’s Uranium Transactions with USEC Were Consistent with Federal Law Governing Uranium Transactions but Did Not Comply with Federal Fiscal Law

We found that DOE’s uranium transactions with USEC constituted sales authorized under the USEC Privatization Act and that conditions the act requires before a uranium sale can be made were met. We found, however, that by not depositing an amount equivalent to the proceeds from these transactions into the Treasury, DOE violated the miscellaneous receipts statute.

DOE’s Uranium Transactions with USEC Constituted Sales through an Agent

The Atomic Energy Act of 1954, as amended, gives DOE general authority under certain conditions to sell, lease, distribute, or otherwise make available source material, including natural uranium. Congress, however, limited this authority in 1996 when it passed the USEC Privatization Act. This act prohibits the Secretary of Energy from transferring or selling any uranium except as consistent with the act’s specific terms and conditions. The specific provision governing the material that DOE provided to USEC authorizes only sales of that material.

We found that from December 2009 through March 2011, DOE sold natural uranium into the market using USEC as its agent. DOE maintains that these transactions constituted barters with USEC, rather than sales by DOE using USEC as its agent, in that the transactions involved an exchange of services (environmental cleanup work) for materials (uranium). Our review of the substance of these transactions, however, showed that they were sales. A sale typically involves an exchange of goods or services for cash, and DOE in fact arranged for USEC to receive cash from the sale of federal uranium assets as compensation for services USEC provided to DOE. The transactions were thus sales executed through an agent—USEC. (Appendix III contains a detailed legal analysis of these issues.) Such sales are authorized by the USEC Privatization Act. Because we found that the transactions were sales, we did not consider and did not decide whether barters are also authorized under the USEC Privatization Act.

Two key factors demonstrate that DOE’s transactions with USEC were sales through an agent, rather than barters: first, DOE had control over USEC’s sales of the uranium, which was the property of the federal government, and second, and USEC sold the uranium for the benefit of the government and assumed no financial risk in the transaction.

According to USEC officials, USEC finalized the sales of uranium to third parties before it signed the contract modifications under which it agreed to conduct cleanup in exchange for the uranium. That is, USEC arranged for the sale of federal property; it did not sell its own property. DOE has stated that it did not control the sale of the uranium under the terms of the contract modifications with USEC, but because the uranium was marketed and sold before those contract modifications were made final, the terms of the contract modification did not govern the sale. Instead, DOE and USEC officials told us that they had an earlier, oral agreement for the valuation of the material under which USEC solicited buyers for federal uranium assets. During the term of this agreement, which led directly to sales of the uranium, DOE had the right to exercise control over USEC’s actions as an agent. Moreover, USEC sold the uranium primarily for DOE’s benefit. USEC stated in its 2010 annual report to the U.S. Securities and Exchange Commission that it never considered itself the owner of the uranium because the company assumed no risk in its sale and did not stand to earn a profit. USEC also stated in the report that the amount of work USEC was to provide under the cleanup contract depended on the net value of the uranium (minus transaction costs). If USEC had secured less value for the material, it would have done less work for DOE; it therefore did not stand to gain or lose on the uranium sales. The primary beneficiary of the transactions was DOE, which sought to structure the transactions to avoid the receipt of cash it was not authorized to retain and use to pay for cleanup at the Portsmouth facility.

That USEC acted as DOE’s agent is also indicated by the value DOE received for the uranium (in terms of work to be performed by USEC), which was reduced by an amount equal to the transaction costs that USEC incurred in the sale of the uranium. In other words, DOE did not receive the gross value, or price, that USEC realized from the sale of the uranium but instead received value equal to the net proceeds of its sale.

USEC deducted from its valuation of the natural uranium transfer costs for such things as materials handling and a commission covering its sales management activities. For example, USEC deducted $825,000 in sales management fees, plus other transaction and transfer costs, from the value of the uranium involved in the transaction. A USEC official said that the sales management fees were for the time and expertise to collect offers, value the material, negotiate sales of the material, and execute book transfers of the material. In other words, USEC charged a commission against the value of the material. DOE officials stated that such transactional fees or costs are routinely part of any commodity transaction. We agree that such costs routinely figure into commodity transactions, but where those costs are incurred by the recipient and charged back to the seller, and where those costs include a commission, the transactions are most accurately understood as ones involving an agent. DOE has mischaracterized the transactions as barters, but it is not this mischaracterization that makes the transactions illegal. The transactions constituted sales, and sales—whether through an agent or not—are authorized by the USEC Privatization Act. Rather, DOE’s legal violation occurred when it failed to deposit the value of the net proceeds into the Treasury as required by the miscellaneous receipts statute.

Conditions Required by the USEC Privatization Act Were Met, but Analysis of the Market Impact of the Uranium Transactions Was Inconclusive

For DOE to carry out sales under the USEC Privatization Act, three conditions must first be met. First, the President must determine that the uranium intended for sale is not needed for national security. The uranium involved in DOE’s transactions with USEC has been in DOE’s inventory for over a decade. According to DOE, in that time this uranium has never been included in a nuclear weapons stockpile memorandum signed by the President, which identifies inventories of uranium for national defense needs. Because the uranium involved in DOE’s transactions was not included in the most recent memorandum, the Nuclear Weapons Council—a joint Department of Defense and DOE organization established by Congress to manage the U.S. nuclear weapons stockpile—approved the release of the material for other purposes. Thus, the first condition was met.

Second, the USEC Privatization Act requires that the Secretary of Energy receive no less than fair market value for uranium sold. To ensure that this condition was met, DOE officials said they assessed USEC’s proposed valuation of the uranium and considered the most recent average spot market prices and USEC’s transfer costs. The department then issued a determination that USEC’s valuation represented fair market value for the material. Although we did not conduct our own analysis as to whether the Secretary in fact received fair market value for the uranium, we do not dispute the department’s determination that it met this requirement of the USEC Privatization Act.

Third, the act requires the Secretary of Energy to determine that proposed transactions will have no adverse material impact on the domestic uranium mining, conversion, and enrichment industries. To meet this requirement, DOE contracted with an energy research firm, Energy Resources International, which issued a market impact analysis in November 2009 that projected the potential market effects of planned uranium sales and transfers from the last quarter of calendar year 2009 through 2013. The study took into consideration the five planned transactions for environmental cleanup at Portsmouth, as well as other planned transactions, including those between NNSA and the Tennessee Valley Authority and the American Assured Fuel Supply Program, among others. The authors of the study stated that DOE’s planned transactions would have no adverse material impact on uranium producers, and DOE issued the required determination on the basis of this study. Thus, the third condition under the USEC Privatization Act was met.

Nevertheless, our review found the results of the market impact analysis to be inconclusive. The economic model developed by Energy Resources International analyzed market impact for the term market and included assumptions about supply-and-demand characteristics that represent the long-term, rather than the spot market, even though DOE, industry experts, and Energy Resources International analysts themselves agreed that DOE uranium transactions would have the potential to affect the spot market most. Furthermore, the study stated that long-term prices are more relevant to investment decisions by the industry. In fact, in a subsequent study issued in December 2010 to account for additional DOE transactions beginning in 2011, Energy Resources International expanded its analysis to include the price impact of the transfers on the spot market, which it had previously characterized as too difficult to assess.

The new study included an econometric model to evaluate the price impact in the spot market, but we found that it too was inconclusive. In particular, the econometric model used historic data on price, quantity supplied, and quantity demanded and did not identify and evaluate the effects of other factors that could also affect the behavior of uranium spot prices. These factors could include market participants’ expectations about future uranium supply and demand, as well as their expectations of future levels of uranium inventories. In addition, because the details about uranium sales through both long-term contracts and the spot market are typically considered business proprietary information, data about expected future uranium supply and demand are usually not available and thus difficult or impossible to adequately model. A change in the price of competing energy resources, such as oil and coal, could also affect uranium spot prices. Changes in the prices of related minerals found in tandem with uranium, such as gold, copper, and vanadium, can also affect uranium spot prices. Specifically, a high market price for gold, copper, vanadium may encourage uranium exploration and production. Furthermore, domestic and international political and economic events or natural disasters—such as the March 2011 earthquake, tsunami, and subsequent nuclear accident in Japan—can affect uranium spot prices.

Because the econometric model used was not able to evaluate any of these factors, its estimate of the change in the spot market price of uranium caused by an isolated event would be inconclusive. We agree, as Energy Resources International noted in its study, that it is difficult to predict a specific change in the spot market price due to one particular future event, such as a DOE uranium transaction.

DOE Violated the Miscellaneous Receipts Statute by Not Depositing the Value of Net Proceeds from Uranium Transactions with USEC into the Treasury

DOE violated the miscellaneous receipts statute in handling the proceeds of its sales of uranium through USEC. This statute requires that “an official or agent of the Government receiving money for the Government from any source shall deposit the money in the Treasury as soon as practicable without deduction for any charge or claim.” Generally, a federal agency may not operate beyond the level that it can finance with its annual appropriation without specific congressional authorization. For an agency to keep money that has not been appropriated is to undercut Congress’s constitutional power of the purse.

In providing uranium to USEC for sale to a third party and allowing USEC to keep the proceeds, DOE constructively received money for the government and improperly extended its reach beyond the operating level that it was otherwise authorized to achieve through its congressional appropriation. DOE officials readily acknowledged that if the department had sold the uranium directly into the market and received cash, it would have had to deposit that cash into the Treasury. DOE officials also acknowledged that it structured its transactions with USEC the way it did so as to avoid having to deposit the proceeds of a sale into the Treasury. DOE said that without this mechanism, it would not have been able to fund the accelerated cleanup at Portsmouth. In DOE’s view, however, because it received no cash in these transactions, it was not required to deposit any proceeds into the Treasury.

We disagree with DOE’s conclusion—that, because it received no direct cash for its uranium, it was not subject to the miscellaneous receipts statute—for the same reasons that we found similar actions by DOE in 2006, also involving use of USEC as its sales agent, to violate this law. It is a well-understood principle of law that what cannot be done directly cannot be done indirectly. An agency that lacks authority to retain and use amounts that it receives directly cannot circumvent its lack of authority by engaging a contractor or, as here, a sales agent to indirectly receive, retain, and use the funds. To the extent that Congress sees merit in the additional cleanup work that DOE states is needed at its facilities, it could provide DOE with explicit authority to barter uranium, as well as authority to receive and retain funding from the department’s barters, transfers, and sales of uranium.

Conclusions

One purpose of DOE’s December 2008 uranium management plan was to reassure the domestic uranium industry that the department would refrain from suddenly releasing unanticipated amounts of uranium into the market. But by announcing, 8 months after issuing its plan, uranium transactions that were not envisioned in the plan, DOE introduced additional uncertainty into that market. Partly as a result of the department’s actions, the domestic uranium producers we interviewed fear the consequences of future transactions in which the department may engage. Without an accurate, updated plan that clearly details DOE’s future uranium activities and the circumstances under which departmental plans could change, companies in the domestic uranium industry cannot adequately anticipate the department’s actions and take steps to mitigate the consequences of those actions.

Federal law authorizes DOE to dispose of its excess uranium by selling it directly on the open market and depositing the proceeds in the Treasury. According to DOE officials with whom we spoke, however, DOE has no incentive to do so because the department would be unable to use the proceeds for its own cleanup priorities without specific congressional authorization. Nevertheless, our review indicates that DOE’s uranium transactions with USEC constituted sales and that USEC served as the department’s sales agent. Even though DOE did not directly receive cash for its uranium, in our view the transactions constituted sales, and thus the department was required to deposit an amount equal to the value of the uranium into the Treasury. By not doing so, DOE has inappropriately circumvented the power of the purse granted to Congress under the Constitution and violated the miscellaneous receipts statute. We do not question the need to decontaminate and decommission DOE’s uranium enrichment facilities. If, however, the department cannot finance these cleanup activities without additional funding, it is the prerogative of Congress, not DOE, to make the necessary funding available.

Recommendation for Executive Action

To improve DOE’s management of its excess uranium inventories, we recommend that the Secretary of Energy update the December 2008 “Excess Uranium Inventory Management Plan” to more accurately reflect DOE’s plans for marketing its uranium.

Matter for Congressional Consideration

If Congress sees merit in using proceeds from the barter, transfer, or sale of federal uranium assets to pay for environmental cleanup of uranium enrichment facilities, it should consider:  providing DOE with explicit authority to barter excess uranium and to retain the proceeds from barters, transfers, or sales or  directing DOE to sell federal uranium assets for cash and directing that collected proceeds be made available for obligation only to the extent and in the amount provided in advance in appropriations acts for necessary expenses in decontaminating and decommissioning uranium facilities and directing DOE to deposit into the Treasury any excess over what is appropriated.

Agency Comments and Our Evaluation

We provided a draft of this report to DOE for comment. In its written comments, reproduced in appendix IV, DOE agreed with our recommendation to update its excess uranium management plan but disagreed that the department violated federal fiscal law.

In general, DOE’s comments focused on our finding that DOE’s uranium transactions constituted sales through an agent. Specifically, DOE commented that its transfer of uranium to USEC was a barter, exchanging uranium assets for environmental cleanup, and that USEC was not a sales agent for the department. Therefore, according to DOE, the department did not violate the miscellaneous receipt statute. DOE stated that no authorized official signed a written agreement with USEC under which the company would sell uranium for DOE, nor could the department be bound by an oral agreement. DOE stated that the contract modifications under which USEC agreed to conduct cleanup in exchange for uranium did not include any language indicating USEC should obtain offers for DOE uranium or otherwise serve as DOE’s sales agent. In DOE’s view, we should not have considered any evidence other than the written contract modifications between DOE and USEC. DOE also disagreed with our statement that USEC faced no risk of loss in its sale of the uranium and that DOE paid a commission to USEC for its sale of the uranium. In addition, DOE disagreed that it entered into the transactions with USEC specifically to avoid receiving cash, contrary to what USEC and DOE officials explicitly told us. Instead, DOE stated the purpose of the transactions was to achieve accelerated cleanup of the Portsmouth site, which would help create or retain jobs at the site and save the federal government money in long-term maintenance costs. DOE also disagreed with our estimate of the value of the department’s depleted uranium tails and provided updated data on the department’s actual and planned uranium sales and transfers.

DOE’s comments do not undermine our conclusion that the department violated the miscellaneous receipts statute. DOE arranged for USEC to receive cash from the sales of federal uranium as compensation for cleanup activities that DOE would otherwise have had to pay for out of its appropriated funds. Rather than address this fact, DOE reasserts its position that the transactions constituted barters, not sales through an agent. DOE’s argument is misplaced, however. Whether the transactions were barters or sales goes mainly to the question of whether DOE was authorized to engage in the transactions at all under the USEC Privatization Act, and we found that the transactions were authorized as sales. As we noted in our report, that the transactions were sales and not barters is also significant to the question of whether DOE complied with the miscellaneous receipts statute, but only in that DOE did not deposit the net proceeds from its sales into the Treasury. The department does not refute, however, the central tenet behind our conclusion that it violated the miscellaneous receipts statute. It asserts that because it did not receive any actual cash in the transaction, it did not have to deposit any money into the Treasury. As we noted in our draft report, GAO and the courts have found in a number of instances that an entity does not have to receive actual cash to trigger a responsibility to deposit money into the Treasury.

DOE’s comments also do not refute our finding that its transactions with USEC were sales through an agent. DOE focuses on the lack of a written agreement between the department and USEC that establishes the company as DOE’s agent. We agree that no written agreement exists authorizing USEC to value DOE’s uranium assets. Nevertheless, DOE has acknowledged the existence of an oral agreement, and whether DOE could be bound to act under such an agreement is not relevant to the present analysis. The fact remains that DOE requested USEC’s valuation of the uranium, which it knew to be based on the solicitation of firm offers for the material and which led directly to the uranium’s sale. Further, it was necessary and appropriate to look to evidence other than the contract modifications because the contract modifications do not cover valuation of the uranium.

Our review, therefore, appropriately examined the process USEC and DOE used to establish the uranium’s value before the contract modifications were signed. Our review of this process also established that USEC in fact faced no risk of loss in its sale of the uranium because it sold the uranium before agreeing on how much work it would do in exchange for the uranium. In addition, DOE did pay a commission to USEC under the common definition of the term, that is, “a fee paid to an agent or employee for transacting a piece of business or performing a service.” DOE acknowledges that it paid a “sales management fee” to USEC. We see no distinction between such a fee and a commission. Further, we do not dispute DOE’s contention that the overall purpose of accelerating the Portsmouth cleanup work may have been to save on long-term site maintenance costs and protect local employment, but DOE officials repeatedly told us that the department chose to pay for this project in the manner it did specifically to avoid the receipt of cash. DOE provided no other reason why it would seek to barter uranium rather than sell it. We therefore conclude that DOE manipulated the disposition of federal assets to avoid the payment of proceeds for those assets into the federal Treasury. Doing so violated the miscellaneous receipts statute.

With regard to our estimate of the value of DOE’s depleted uranium tails, DOE stated that the draft report did not include any source or backup information for our $4.2 billion estimate of the tails’ value. DOE’s statement is incorrect. The draft report cited our June 2011 report that explained in detail how we developed our estimate. Specifically, our estimate is based on a model we previously developed that uses standard formulas to estimate how much enriched uranium and tails can be produced from a given amount of uranium and enrichment services. The model employs price data obtained from nuclear industry trade publications. Such data are commonly used to estimate the market price for uranium. We agree with DOE that our estimate of the tails’ value does not include the additional costs that may be incurred processing tails stored in deteriorating cylinders, addressing the poor quality of some material, or packaging and transporting the material. Our estimate omits these costs because they are unknown. DOE is mistaken, however, in stating that our estimate does not include the costs of production. Our model includes the cost of enrichment services in its estimate of the tails’ net value. Nevertheless, as our June 2011 report and the draft report noted, our estimate is very sensitive to changing uranium prices, as well as to the availability of sufficient enrichment capacity. Uranium prices are volatile, and a sharp rise or fall can greatly affect the value of uranium tails. Any estimates of the value of DOE’s tails are therefore subject to great uncertainty.

Finally, after we received the department’s comments on our draft report, DOE officials provided additional updated data on the department’s actual and planned uranium sales and transfers. We revised the report accordingly to reflect the most current data DOE provided to us.

We are sending copies of this report to the appropriate congressional committees, the Secretary of Energy, the Director of the Office of Management and Budget, and other interested parties. In addition, the report will be available at no charge on the GAO Web site at http://www.gao.gov.

If you or your staff members have any questions regarding this report, please contact Gene Aloise at (202) 512-3841 or aloisee@gao.gov. You may also contact Susan D. Sawtelle at (202) 512-6417 or sawtelles@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made major contributions to this report are listed in appendix V.

Appendix I: Scope and Methodology

To identify the Department of Energy’s (DOE) transactions involving excess uranium used to pay for accelerated cleanup work at the Portsmouth Gaseous Diffusion Plant, we obtained department summary data drawn from the Nuclear Materials Management and Safeguard System regarding all sales and transfers of uranium from January 1, 2008, through June 30, 2011. To identify specific transactions involving natural uranium during this time frame, we also obtained and reviewed individual nuclear materials transaction reports, which detailed the change of uranium ownership from DOE to the United States Enrichment Corporation (USEC) and to Fluor-B&W Portsmouth. We obtained information on the value of these transactions and the services paid for by these transactions by reviewing uranium valuation documents from USEC and Fluor-B&W Portsmouth, as well as the relevant DOE contracts or contract modifications related to the transactions. To further our understanding of these transactions and to determine DOE’s future plans to sell or transfer uranium, we interviewed DOE nuclear materials management officials from the National Nuclear Security Administration (NNSA), the Office of Nuclear Energy, and the Office of Environmental Management. We also met with or interviewed by phone knowledgeable USEC officials at the Paducah Gaseous Diffusion Plant in Kentucky and Fluor-B&W Portsmouth officials at the Portsmouth Gaseous Diffusion Plant in Ohio. We did not determine the accuracy of DOE’s uranium inventory data or specifically verify the amount of uranium physically transferred from DOE to other entities, including USEC and Fluor-B&W Portsmouth. We instead reviewed extensive department guidance regarding the Nuclear Materials Management and Safeguard System, including the Nuclear Materials Control and Accountability System, which tracks the character, location, and transfer of all federal inventories of nuclear materials, including uranium. Associated documentation indicates that an extensive program exists to ensure the accuracy of information on the nuclear materials inventory, but we nevertheless reviewed recent assessments of key databases that make up the nuclear materials management system. No material weaknesses were reported. We therefore determined that uranium inventory data drawn from these systems were sufficiently reliable for purposes of this report.

To determine the extent to which DOE’s natural uranium transactions were consistent with DOE’s “Excess Uranium Inventory Management Plan” issued in 2008, we compared key provisions of the plan to DOE’s specific activities to manage its uranium inventory. To develop an understanding of DOE’s uranium management activities, we interviewed DOE officials at the Portsmouth/Paducah Project Office in Lexington, Kentucky, which has managed the recent uranium transactions, as well as the DOE contracting officers responsible for negotiating and executing federal contracts for cleanup services. To develop an understanding of the impact that DOE’s uranium transactions might have on the market for uranium products, we also interviewed a wide range of uranium industry representatives. These representatives included officials from uranium trade associations; startup and established mining companies; ConverDyn’s conversion facility in Metropolis, Illinois; and USEC’s gaseous diffusion enrichment plant in Paducah, Kentucky. We also interviewed officials from selected utility companies operating commercial nuclear power plants, commodities brokers and traders, and market analysts. We visited two mining operations, a Cameco corporation “in situ” uranium mine at Smith Ranch, Wyoming, and the Denison Mines corporation underground mine and uranium milling facility near Blanding, Utah.

Finally, to determine the extent to which DOE’s uranium transactions were consistent with applicable federal law, we reviewed requirements of the Atomic Energy Act, the USEC Privatization Act and the miscellaneous receipts statute. We obtained and reviewed internal DOE documentation authorizing uranium transactions and changing ownership of cylinders containing natural uranium to USEC and to Fluor-B&W Portsmouth. We reviewed market impact analyses prepared by Energy Resources International, Inc., under contract with DOE; internal documents certifying that DOE would receive fair market value for its natural uranium; and secretarial determinations that uranium transactions would have no adverse impact on the uranium market and that the uranium was not needed for national security purposes. For information on how the uranium transactions were documented for accounting purposes, we also reviewed USEC’s annual 10-K report to the Securities and Exchange Commission and interviewed USEC and Fluor-B&W Portsmouth business and accounting officials.

We conducted this performance audit from November 2010 through September 2011, in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Appendix II: The Nuclear Fuel Cycle

1. Finding uranium deposits Unlike coal, which forms continuous seams in rock, uranium forms discrete, concentrated deposits distributed like the specks in blue cheese. Uranium can be found by detecting the presence of radioactivity from the air, from the earth’s surface, or by excavation.

Appendix II: The Nuclear Fuel Cycle

2. Uranium mining regulation and startup The uranium mining industry is regulated by various federal and state authorities. To bring a mine into production takes 8 to 10 years and costs many millions of dollars.

The cost to bring a conventional open-pit or underground mine on line can be up to $400 million, while an “in situ” mine, which extracts minerals from an underground aquifer, costs about $100 million.

Appendix II: The Nuclear Fuel Cycle

Conventional open-pit mining gains access to ore by using explosives to remove surface material. If the uranium is too far below the surface, tunnels and shafts are dug to reach and extract the ore. Broken ore is then sent to a processing mill.

At the mill, the ore is crushed, ground, and then fed to a leaching system that uses resin and chemicals to separate uranium from the ore. The resulting yellow slurry—called “yellowcake” —is washed, dried, and sold to utility customers.

Interactive features: Roll your mouse over to see yellowcake.

Appendix II: The Nuclear Fuel Cycle

4. Mining by in situ recovery In situ mineral recovery circulates naturally occurring groundwater through uranium deposits in porous sandstone. At the surface, the uranium is treated to separate it from the water and then dried. The resulting yellowcake is sold to utility customers.

Appendix II: The Nuclear Fuel Cycle

The uranium in yellowcake is heated and combined with other gases to produce uranium hexafluoride, a gas. Once cooled, uranium hexafluoride crystallizes and becomes a solid, which can be easily shipped in cylinders to a uranium enrichment plant.

Appendix II: The Nuclear Fuel Cycle

6. Department of Energy inventory of uranium hexafluoride The Department of Energy oversees a substantial supply of uranium hexafluoride cylinders left over from prior nuclear weapons programs or received under U.S. nuclear nonproliferation agreements with the Russian Federation.

The department has occasionally sold or transferred this uranium, most recently to accelerate cleanup of the Portsmouth Gaseous Diffusion Plant near Piketon, Ohio.

Appendix II: The Nuclear Fuel Cycle

Commercial nuclear reactors in the United States require fuel consisting of at least 3 percent concentration of uranium-235. Uranium hexafluoride, the gaseous form of natural uranium, contains a concentration of only 0.71 percent uranium-235 and therefore requires enrichment before it can be used as fuel. In the United States, enrichment is done primarily by means of gaseous diffusion and gas centrifuge.

Appendix II: The Nuclear Fuel Cycle

8. Enrichment by gaseous diffusion Enriching uranium through gaseous diffusion repeatedly forces uranium hexafluoride under pressure through porous membranes, separating the isotope uranium-235 from uranium-238. The gas must be processed through as many as 1,400 stages to achieve a concentration of 3 percent uranium-235.

Interactive features: Roll your mouse over to see the gaseous diffusion stage.

Appendix II: The Nuclear Fuel Cycle

9. Enrichment by gas centrifuge Enriching uranium with a gas centrifuge involves spinning uranium hexafluoride gas at high speed in a series of cylinders to separate uranium-235 from uranium-238. Centrifuge technology requires only 10 to 20 stages and a fraction of the energy required for gaseous diffusion.

Appendix II: The Nuclear Fuel Cycle

To fabricate fuel, enriched uranium hexafluoride gas is combined with other elements to form a uranium dioxide powder, which is compressed, formed into pellets, and then sealed into long metal tubes to form fuel rods. These rods are bundled to create a fuel assembly.

Depending on the reactor type, about 179 to 264 fuel rods are required for each fuel assembly; a typical reactor core holds 121 to 193 fuel assemblies.

Appendix III: Legal Analysis of DOE’s Strategy to Finance USEC’s Cleanup Work at the Portsmouth Gaseous Diffusion Plant

Introduction and Summary of Conclusions

As part of GAO’s review of DOE’s overall uranium management plan, we examined what DOE referred to as a series of “barter arrangements” between DOE and USEC for accelerated cleanup services at the Portsmouth Gaseous Diffusion Plant. Specifically, we examined the consistency of these transactions with federal law governing uranium transactions and the disposition of government assets.

We found that DOE’s transactions constituted sales of uranium, which were authorized under the USEC Privatization Act but violated the miscellaneous receipts statute because DOE failed to deposit the value of the net proceeds into the Treasury. We came to the same conclusion in 2006 in analyzing a similar series of transactions between DOE and USEC. In particular, although DOE has characterized its most recent transactions with USEC as “barters,” they are more accurately characterized as sales of uranium into the market, with USEC acting as DOE’s sales agent. The miscellaneous receipts statute requires government officials who receive money for the government to deposit the money into the Treasury. Although DOE did not receive cash from the sale of federal uranium assets, it allowed USEC to receive and keep cash from the sales. Because DOE was not authorized to keep the sale proceeds, the department also was not authorized to engage USEC to receive them. The current transactions differ in some superficial respects from the 2006 transactions, but the core substance is the same, and, as DOE told us, in this case it intentionally structured the disposition of federal assets to avoid payment of the proceeds for those assets into the federal Treasury.

Analysis

DOE’s Uranium Transactions with USEC Were Sales Authorized by the USEC Privatization Act

Under the Atomic Energy Act of 1954, as amended, DOE has general authority to sell, lease, distribute, or otherwise make available source material, including natural uranium, under certain conditions to licensed entities. Congress limited this general authority in 1996, however, in the USEC Privatization Act. Section 3112(a) of this act explicitly prohibits DOE from selling or transferring “any uranium” except as “consistent with” section 3112. The remaining provisions of section 3112 then specify the conditions under which DOE may sell or transfer various types of natural and enriched uranium. Section 3112(b) covers uranium transferred to DOE under the US-Russia Highly Enriched Uranium Purchase Agreement in 1995 and 1996. Section 3112(c) covers natural and enriched uranium transferred before 1998 to USEC without charge as part of its privatization. Section 3112(e) covers transfers of enriched uranium to federal, state, and local agencies; nonprofit, charitable, or educational institutions; and others. Section 3112(d)(1) covers natural and low-enriched uranium sold from DOE’s inventory that is not otherwise covered under sections 3112(b), (c), or (e). According to DOE, the uranium subject to the 2009-2011 transactions with USEC was natural uranium from DOE’s inventory. It therefore does not fall into any of the categories covered by sections 3112(b), (c), or (e) and is thus covered by section 3112(d)(1). Because section 3112(d)(1) only authorizes sales, DOE’s transactions with USEC must be sales or else be prohibited by the USEC Privatization Act.

According to DOE, its transactions with USEC constituted barters—an exchange of goods (natural uranium) for services (accelerated cleanup services at the Portsmouth Gaseous Diffusion Plant) authorized by the Atomic Energy Act—and are not “inconsistent with” the USEC Privatization Act. DOE declined to explain to us whether and how barters authorized under the Atomic Energy Act also constitute sales authorized by the USEC Privatization Act. DOE instead stressed that because it relies on its broad Atomic Energy Act authority to dispose of source material, the distinction between barters and sales is not relevant. Specifically, in DOE’s view, the USEC Privatization Act does not affect its authority under the Atomic Energy Act to engage in transactions involving uranium but simply establishes additional conditions that apply to the exercise of its authority under this act. Because we found that the current transactions in question were sales (through an agent) of uranium, and because all such sales are governed by the USEC Privatization Act, we need not and did not address whether barters are authorized under this act.

In this report we found, as we did in analyzing similar transactions in 2006, that DOE’s transactions with USEC constituted sales authorized by section 3112(d)(1) of the USEC Privatization Act—but through USEC as agent, rather than to USEC as buyer. DOE and USEC had different views about the nature of their relationship with respect to the most recent transactions. DOE told us that it bartered federal uranium assets for cleanup services with USEC and did not employ USEC as an agent to sell the uranium to third parties. By contrast, a USEC official told us that USEC did act as DOE’s sales agent and in its 2010 annual report to the U.S. Securities and Exchange Commission stated that USEC never owned the material because it did not stand to make a profit or loss from the uranium sale. Labels that parties ascribe to their roles are not controlling as to whether a principal-agent relationship exists, however. That relationship is determined by considering four key characteristics and looking to the substance of the transaction as a whole, with no single characteristic being determinative. The four characteristics of a sales agency arrangement are (1) one entity delivers goods to another; (2) the other entity is to sell the goods not as his own property but as the property of and for the benefit of another, with the first entity remaining the owner of the goods; (3) the first entity has the right to control the sale, fix the price and terms, and recall the goods; and (4) the first entity has the right to demand and receive proceeds of the goods when sold, minus the agent’s commission. The series of transactions between DOE and USEC exhibited the last three of these four characteristics, and the first, delivery of the goods, is not applicable to uranium. Thus, taken as a whole, the DOE-USEC series of transactions indicates that the relationship was functionally one of agency, with DOE as the principal and USEC as the agent.

First, USEC sold uranium that was the property of the federal government primarily for the benefit of the government. According to USEC officials, USEC finalized the sales of the uranium to third parties before it signed the contract modifications with DOE under which it agreed to conduct cleanup in exchange for the uranium. USEC arranged for the sale of federal property; it did not sell its own property. This point is underscored by USEC’s 10-K report, in which it states that it did not consider itself to be the owner of the material. USEC also sold the uranium primarily for DOE’s benefit: USEC’s 10-K states that USEC assumed no risk in the sale and did not stand to make any profit because the amount of work USEC was to provide under the cleanup contract was dependent on the net value of the uranium. USEC set the value of the uranium on the basis of offers it received for the uranium, the highest of which it subsequently accepted and translated into sales. If USEC had secured less value for the material, it would have done less work for DOE. The only benefit of the “barter” transaction accrued to DOE: as DOE officials told us, by purportedly structuring the transactions as barters, DOE sought to avoid receiving cash, which it would have had to deposit into the Treasury. USEC kept the proceeds of the sale and used them for the cleanup services it provided at the Portsmouth facility but became entitled to the value of the uranium only after it signed the contract modifications to furnish cleanup services in exchange for that value. Those proceeds, therefore, cannot be said to be a benefit of the transaction that resulted in the sale of the uranium. The contract modifications purported to transfer title to the uranium to USEC, but at the time the contract modifications were signed, the uranium had already been sold. To the extent that title did actually pass through USEC, it could only have been to facilitate further transfers to the ultimate buyers.

Second, DOE had the right to control the sale of the uranium. DOE stated that it did not control the sale of the uranium under the terms of the contract modifications with USEC but, rather, bartered federal uranium assets to USEC in exchange for cleanup services. DOE also stated that USEC was subsequently free to sell the uranium at any time it wished. The uranium was marketed and sold before the contract modifications were executed, however, so the terms of those contract modifications are not relevant in evaluating the control that DOE did or did not exercise over the sale. Instead, DOE and USEC officials told us that they had an oral agreement for the valuation of the material before the contract modifications were signed. DOE stated that it did not specifically authorize, require, or request USEC to solicit offers for the uranium but acknowledged that it requested USEC’s valuation of the uranium, which it knew was to be based on the solicitation of firm offers for the material. During the term of this agreement, which led directly to sale of the uranium, DOE had the right to exercise control over USEC’s actions as agent.

Moreover, although DOE officials stated that they did not know whether or when USEC in fact sold the material, a USEC official told us that a DOE official knew that USEC was seeking to finalize sales contracts with the highest bidders for the uranium and in fact encouraged USEC to finalize the sales quickly so that the contract modifications could be signed. In addition, two of the letters that USEC sent to DOE to establish the value of the uranium on the basis of offers received refer to the material as already sold. These facts indicate that DOE was, or should have been, aware that the material was being sold before finalization of its “barter” agreement, while the material was still subject to DOE’s control, and that DOE at least assented to, and may have explicitly authorized, the sales.

That DOE controlled the price obtained from the sales is also evinced by the fact that the valuation process, over which DOE had approval, was tied up with the sales process. USEC submitted its valuation of the uranium to DOE for approval for two reasons: (1) to determine the amount of work that USEC would be required to perform in exchange for that value and (2) to enable DOE to determine that it would receive fair market value for the material. Receipt of no less than fair market value is a condition required by the USEC Privatization Act before the sale of uranium. As USEC stated in a series of letters to DOE establishing the value of the uranium, USEC felt that actual bids represented a more realistic value than mere consultation of spot market prices at the time of the sale. Soliciting firm offers for the material may have provided a realistic valuation of the material, but the same process also constituted USEC’s first step in selling federally owned uranium on DOE’s behalf. Further, this step was taken with DOE’s knowledge and approval, including its specific approval of the price to be attained.

Third, the value that DOE received for the uranium, in terms of work to be performed by USEC, was reduced by an amount equal to the transaction costs that USEC incurred in the sale of the uranium. In other words, DOE did not receive the gross value, or price, that USEC realized from the sale of the uranium but instead received value equal to the net proceeds of its sale. USEC deducted its transaction costs from the value it attributed to the uranium, and DOE approved that net value as the fair market value of the material. The value USEC attributed to the uranium was also the price received from its buyers, and the fact that costs were deducted from the value means that the value DOE received equaled the net proceeds of the sale to a third party from its agent, USEC, rather than the price of the sale from USEC as buyer.

Furthermore, the value of the uranium was decreased to account for USEC’s “sales management fee” in addition to USEC’s other transaction costs. USEC clearly labeled these amounts as sales management fees in its valuation letters for DOE approval, and DOE did in fact approve the net valuations. A USEC official told us that the sales management fee represented USEC’s fee for brokering the material, USEC’s fee for negotiating the actual sales of the material, and USEC’s costs associated with arranging book transfers of the material. In other words, USEC charged a commission against the value of the material. DOE has stated that such transactional fees or costs are routinely part of any commodity transaction. We agree that such costs routinely figure into commodity transactions, but where those costs are incurred by the recipient and charged back to the seller, and where those costs include a commission, they indicate a transaction involving an agent.

In sum, DOE’s uranium transactions with USEC, viewed as a whole, constituted sales through an agent rather than barters. USEC arranged for the sale of federal uranium assets while the uranium was still federal property. The only party that benefited from the sale was DOE. USEC deducted its transactions costs, as well as a commission, from the value of the uranium. These are all characteristics of sales agency rather than barter and resale. Even assuming some ambiguity in how these facts and circumstances should be characterized—agency or sale—courts have long found against the party whose mixed motives created the ambiguity. In this case, any mixed motives are attributable to DOE. DOE’s acknowledged objectives were to accomplish the cleanup work and avoid using appropriated funds to do so. It was motivated to structure the uranium transactions as purported barters so that it would not receive cash that it would have to deposit into the Treasury. At the same time, it was motivated to provide an arrangement acceptable to USEC so that the cleanup work could be accomplished. USEC’s sole motivation was to minimize the risks inherent in the transaction. USEC officials told us they only accepted uranium as payment for cleanup services because they did not believe that DOE could finance the cleanup work with cash (i.e., appropriated funds), and they wanted the cleanup work to proceed to keep the skilled employees at Portsmouth working until USEC could open its new gas centrifuge enrichment facility there. Thus, USEC accepted the arrangement DOE offered, but only after it had found buyers for DOE’s uranium, so the time USEC held the uranium and USEC’s exposure to swings in the uranium market would be minimized. USEC was willing to take DOE’s uranium only in a manner that made it DOE’s sales agent. Although DOE did not specifically ask USEC to deal with the uranium in this way, DOE knew what actions USEC was taking and approved of the steps USEC took along the way. The true nature and effect of this arrangement was that USEC served as DOE’s agent in selling federal uranium assets into the market.

DOE Violated the Miscellaneous Receipts Statute by Not Depositing the Value of Net Proceeds from Uranium Transactions with USEC into the Treasury

Our present review found, as did our analysis of similar transactions in 2006, that DOE did not comply with the miscellaneous receipts statute because it did not deposit the proceeds from sale of its uranium into the Treasury. Under the miscellaneous receipts statute, “an official or agent of the Government receiving money for the Government from any source shall deposit the money in the Treasury as soon as practicable without deduction for any charge or claim.” As a general proposition, a federal agency may not augment its appropriations from Congress without specific statutory authority. When Congress makes an annual appropriation to an agency, it is also establishing an authorized program level. In other words, Congress is telling the agency that it cannot operate beyond the level it can finance under its appropriation. To permit an agency to operate beyond this level, with funds derived from some other source without specific congressional approval, would amount to a usurpation of Congress’s constitutional prerogative to appropriate funds. Restated, the objective of the rule against augmentation of appropriations is to prevent a government agency from undercutting Congress’s constitutional “power of the purse” by circuitously exceeding the amount Congress has appropriated for that activity. For an agency to keep money that has not been appropriated by Congress is to augment its appropriation.

In providing uranium to USEC for sale to a third party and allowing USEC to keep the proceeds, DOE constructively received money for the government. DOE used the proceeds of the sale to fund activities that the department would otherwise have had to pay for out of its appropriation. By allowing USEC to retain the cash proceeds from the sale of federal uranium, DOE improperly extended its reach beyond the operating level that it was otherwise authorized to achieve through its congressional appropriation. DOE readily acknowledged to us that if it had sold its uranium directly into the market and received cash, it would have had to deposit that cash into the Treasury. DOE officials also told us that they structured the transactions with USEC as they did to avoid having to deposit the proceeds of a sale into the Treasury. DOE stated that because it received no cash in this transaction, it was not required to deposit any proceeds into the Treasury. We disagree with DOE’s conclusion. It is a fundamental principle of law that what cannot be done directly cannot be done indirectly. An agency that lacks the authority to retain and use amounts that it receives directly cannot circumvent its lack of authority by engaging a contractor or, as here, a sales agent to indirectly receive, retain, and use the funds. In similar circumstances, the courts and we have recognized that a contractor constructively receiving money for a federal agency is not free of the requirement of the miscellaneous receipts statute: that funds received for the use of the United States be deposited in the Treasury. We have also found that a federal agency receives money under the miscellaneous receipts statute if the receipts are to cover the expenses of the government or to pay government obligations. Here, USEC received money for DOE. The uranium belonged to DOE when USEC arranged for its sale, but instead of passing the cash proceeds back to DOE, USEC was allowed to keep the cash as compensation for work under its cleanup contract—work for which it was DOE’s responsibility to pay.

Finally, we examined whether DOE’s set of transactions with USEC could be characterized as a no-cost contract. In a no-cost contract, a contractor provides a service to the government, but the government has no financial liability to the contractor and the contractor has no expectation of payment from the government. For example, in a case in which the General Services Administration contracted for real estate brokerage services and brokers were compensated not by the agency but through commissions received from landlords, we found that these contracts were no-cost contracts that did not violate the miscellaneous receipts statute. The General Services Administration did not augment its appropriation by accepting services without payment, however, because it had no financial liability to the brokers; the common industry practice was for those brokers to receive their compensation from third parties. But the transactions between DOE and USEC were not comparable. In this case, DOE incurred a cost: it paid a total of $194.3 million in federal uranium assets for accelerated cleanup services. It allowed USEC to retain cash from the sale of these assets as compensation for services USEC provided to DOE, services for which DOE would otherwise have had to pay out of its appropriated funds. Thus DOE, unlike the General Services Administration, augmented its appropriation.

Conclusion

Transactions that DOE characterized as “barters” between itself and USEC, whereby federal uranium assets were used to compensate USEC for cleanup services at the Portsmouth Gaseous Diffusion Plant, are more accurately characterized as sales of uranium into the market with USEC acting as DOE’s sales agent. Such sales complied with the USEC Privatization Act, but DOE violated the miscellaneous receipts statute when it did not deposit the value of the net proceeds of these sales into the Treasury. The fact that DOE did not receive any actual cash from the sales is irrelevant. DOE arranged for USEC to receive cash from the sales as compensation for cleanup activities that DOE would otherwise have had to pay for out of its appropriated funds. DOE was not itself authorized to keep the proceeds of the sale, nor was it authorized to allow USEC to keep them. DOE may not manipulate the disposition of federal assets to avoid the payment of proceeds for those assets into the federal Treasury.

Appendix IV: Comments from the Department of Energy

Appendix V: GAO Contacts and Staff Acknowledgments

GAO Contacts

Staff Acknowledgments

In addition to the individuals named above, Ryan T. Coles (Assistant Director), Antoinette Capaccio, Ellen W. Chu, Cheron Green, Paul Kazemersky, Karen Keegan, Mehrzad Nadji, Kathryn Pedalino, and Ginny Vanderlinde made key contributions to this report.