Nuclear Material: Several Potential Options for Dealing with DOE's Depleted Uranium Tails Could Benefit the Government
Released: 2008-04-03T00:00:00

Letter

Background

Since the 1940s, one mission of DOE and its predecessor agencies has been processing uranium as a source of nuclear material for defense and commercial purposes. A key step in this process is the enrichment of natural uranium, which increases its concentration of uranium-235, the isotope of uranium that undergoes fission to release enormous amounts of energy. Before it can be enriched, natural uranium must be chemically converted into uranium hexafluoride. The enrichment process results in two principal products: (1) enriched uranium hexafluoride, which can be further processed for specific uses, such as nuclear weapons or fuel for nuclear power plants; and (2) leftover “tails” of uranium hexafluoride. These tails are also known as depleted uranium because the material is depleted in uranium-235 compared with natural uranium.

Since 1993, uranium enrichment activities at DOE-owned uranium enrichment plants have been performed by USEC, formerly a wholly owned government corporation that was privatized in 1998. However, DOE still maintains over 700,000 metric tons of depleted uranium tails in about 63,000 metal cylinders in storage yards at its Paducah, Kentucky, and Portsmouth, Ohio, enrichment plants. It must safely maintain these cylinders because the tails are dangerous to human health and the environment. Uranium hexafluoride is radioactive and forms extremely corrosive and potentially lethal compounds if it contacts water. In addition, DOE also maintains large inventories of natural and enriched uranium that are also surplus to the department’s needs.

Tails have historically been considered a waste product because considerable enrichment processing is required to further extract the remaining useful quantities of uranium-235. In the past, low uranium prices meant that these enrichment services would cost more than the relatively small amount of uranium-235 extracted would be worth. However, an approximately tenfold increase in uranium prices—from approximately $21 per kilogram of uranium in the form of uranium hexafluoride in November 2000 to about $200 per kilogram in February 2008—has potentially made it profitable to re-enrich some tails to further extract uranium-235. Even with the current higher uranium prices, however, only DOE’s tails with higher concentrations of uranium-235 (at least 0.3 percent) could be profitably re-enriched, according to industry officials. About one-third of DOE’s tails contain uranium-235 concentrations at that level or higher.

DOE Has Options for the Tails but Has Not Finished a Comprehensive Assessment of Them

DOE’s potential options for its tails include selling the tails “as is,” re- enriching them, or storing them indefinitely. However, DOE’s legal authority to sell the tails in their current form is doubtful. Although we found that DOE generally has authority to carry out the re-enrichment and storage options, the department has not finished a comprehensive assessment of these options, and it is still evaluating the details of how such options might be implemented.

DOE’s Legal Authority to Sell the Tails in Their Current Form Is Doubtful

While selling the tails in their current unprocessed form is a potential option, we believe that DOE’s authority to conduct such sales is doubtful because of specific statutory language in 1996 legislation governing DOE’s disposition of its uranium. Appendix I contains our analysis of DOE’s authority to sell or transfer its depleted uranium in its current form, as well as to re-enrich and sell the tails, and to store the tails indefinitely. As our analysis explains, in 1996, Congress enacted section 3112 of the USEC Privatization Act, which limits DOE’s general authority, under the Atomic Energy Act or otherwise, to sell or transfer uranium. In particular, section 3112 explicitly bars DOE from selling or transferring “any uranium”— including but not specifically limited to certain forms of natural and enriched uranium—”except as consistent with this section.” Section 3112 then specifies conditions for DOE’s sale or transfer of natural and enriched uranium of various types, including conditions in section 3112(d) for sale of natural and low-enriched uranium from DOE’s inventory. To ensure the domestic uranium market is not flooded with large amounts of government material, in section 3112(d), Congress required DOE to determine that any such inventory sales will not have a material adverse impact on the domestic uranium industry. Congress also required in section 3112(d) that DOE determine it will receive adequate payment—at least “fair market value”—if it sells this uranium and that DOE obtain a determination from the President that such materials are not necessary for national security.

Nowhere, however, does section 3112(d) or any other provision of section 3112 explicitly provide conditions for DOE to transfer or sell depleted uranium. Because section 3112(a) states that DOE may not “transfer or sell any uranium . . . except as consistent with this section,” and because no other part of section 3112 sets out the conditions for DOE to transfer or sell depleted uranium, we believe that under rules of statutory construction, DOE likely lacks authority to sell the tails. While courts have not addressed this question before and thus the outcome is not free from doubt, this interpretation applies the plain language of the statute. It also respects the policy considerations and choices Congress made in 1996 when presented with the disposition of DOE’s valuable uranium in a crowded and price-sensitive market. Finally, this reading of DOE’s authority is consistent with how courts address changes in circumstances after a law is passed: Statutes written in comprehensive terms apply to unanticipated circumstances if the new circumstances reasonably fall within the scope of the plain language. Thus, under the current terms of section 3112, DOE’s sale of its tails would be covered by the statute’s general prohibition on sale of uranium, even if tails were not part of the universe Congress explicitly had in mind when it enacted the statute in 1996.

Should Congress grant DOE the needed legal authority by amending the USEC Privatization Act or through other legislation, firms such as nuclear power utilities and enrichment companies would be interested in purchasing at least that portion of the tails with higher concentrations of extractable uranium-235 as a valuable source for nuclear fuel. Officials from 8 of 10 U.S. nuclear utilities indicated tentative interest in such a purchase. Individual utilities were often interested in limited quantities of DOE’s tails because they were concerned about depending upon a single source to fulfill all of their requirements. Multiple utilities acting together as a consortium could mitigate these concerns and purchase larger quantities of tails. Some enrichment firms also told us of some interest in purchasing portions of the inventory, but their anticipated excess enrichment capacity to process the tails into a marketable form affected both the quantity of tails they would purchase and the timing of any purchase.

Potential buyers suggested various commercial arrangements, including purchasing the tails through a competitive sale, such as an auction, or through negotiations with DOE. However, industry officials told us that buyers would discount, perhaps steeply, their offered prices to make buying tails attractive compared with purchasing natural uranium on the open market. That is, DOE might get a discounted price for the tails to compensate buyers for additional risks, such as rising enrichment costs or buyers’ inability to obtain sufficient enrichment services. In addition, potential buyers noted that any purchase would depend upon confirming certain information, such as that the tails were free of contaminants that could cause nuclear fuel production problems and that the cylinders containing the tails—some of which are 50 years old and may not meet transportation standards—could be safely shipped.

DOE Could Re-enrich Its Tails

Although DOE’s legal authority to sell the tails in their current form is doubtful, DOE has the general legal option, as discussed in appendix I, of re-enriching the tails and then selling the resulting natural or enriched uranium. DOE would have to contract for enrichment services commercially because the department no longer operates enrichment facilities itself. Furthermore, DOE would have to find a company with excess enrichment capacity beyond its current operations, which may be particularly difficult if large amounts of enrichment processing were required. Within the United States today, for example, the only operating enrichment facility is DOE’s USEC-run Paducah, Kentucky, plant, and almost all of its enrichment capacity is already being used through 2012, when the facility may stop operating. USEC and at least two other companies are also constructing or planning to construct new enrichment facilities in the United States that potentially could be used to re-enrich DOE’s tails.

Although DOE would have to pay for re-enrichment, it might obtain more value from selling the re-enriched uranium instead of the tails if its re- enrichment costs were less than the discount it would have to offer to sell the tails as is. Enrichment firms with whom we spoke told us they would be interested in re-enriching the tails for a fee. The quantity of tails they would re-enrich annually would depend on the available excess enrichment capacity at their facilities.

Additionally, as noted above, prior to selling any natural or enriched uranium that results from re-enriching tails, DOE would be required under section 3112(d) of the USEC Privatization Act to determine that sale of the material would not have a material adverse impact on the domestic uranium industry and that the price paid to DOE would provide at least fair market value. Section 3112(d) also would require DOE to obtain the President’s determination that the material is not needed for national security.

DOE Could Store the Tails

DOE also has the general legal option, as discussed in appendix I, to store the tails indefinitely. In the late 1990s, when relatively low uranium prices meant that tails were viewed as waste, DOE developed a plan for the safe, long-term storage of the material. DOE is constructing two new facilities to chemically convert its tails into a more stable and safer uranium compound that is suitable for long-term storage. DOE estimates that after the conversion facilities begin operating in 2009, it will take approximately 25 years to convert its existing tails inventory.

Storing the tails indefinitely could prevent DOE from taking advantage of the large increase in uranium prices to obtain potentially large amounts of revenue from material that was once viewed as waste. DOE would also continue to incur costs associated with storing and maintaining the cylinders containing the tails. These costs amount to about $4 million annually. Sale (if authorized) or re-enrichment of some of DOE’s tails could also reduce the amount of tails that would need to be converted and, thereby, save DOE some conversion costs.

Moreover, once the tails were converted into a more stable form of uranium oxide, DOE’s costs to re-enrich the tails would be higher if it later decided to pursue this approach. This is because of the cost of converting the uranium oxide back to uranium hexafluoride, a step that would be required for re-enrichment. However, according to DOE officials, after the conversion plants begin to operate, the plants will first convert the lower concentration tails because they most likely will not be economically worthwhile to re-enrich. This would give DOE additional time to sell or re- enrich the more valuable higher-concentration tails.

DOE Has Not Completed a Comprehensive Assessment of Options for Its Tails

DOE has been developing a plan since 2005 to sell excess uranium from across its inventories of depleted, natural, and enriched uranium to generate revenues for the U.S. Treasury. In March 2008, DOE issued a policy statement that established a general framework for how DOE plans to manage its uranium inventories. One feature of this policy statement is the establishment of an annual cap on total uranium sales from all of DOE’s inventories. The cap is designed to minimize a material adverse impact on domestic uranium producing companies that could result from DOE depressing uranium prices by selling large amounts of uranium. Thus, under this policy, the maximum amount of tails that DOE would sell annually will depend on the amount of planned sales from its other uranium inventories. In addition, because most uranium to be used as fuel for U.S. nuclear power plants comes from foreign sources, DOE may also choose to retain, rather than sell, some of its uranium as a reserve stockpile to be used in case of a significant disruption in world supplies.

However, the March 2008 policy statement is not a comprehensive assessment of the sales, re-enrichment, or storage options for DOE’s tails. The policy statement lacks specific information on the types and quantities of uranium that the department has in its inventory. Furthermore, the policy statement does not discuss whether it would be more advantageous to sell the higher-concentration tails as is (if authorized) or to re-enrich them. It also does not contain details on when any sales or re-enrichment may occur or DOE’s legal authority to carry out those options under section 3112 of the USEC Privatization Act. It also lacks information on the uranium market conditions that would influence any DOE decision to potentially sell or re-enrich tails. Further, it does not analyze the impact of such a decision on the domestic uranium industry, and it does not provide guidance on how a decision should be altered in the event that market conditions change. Although the policy statement states that DOE will identify categories of tails that have the greatest potential market value and that the department will conduct cost-benefit analyses to determine what circumstances would justify re-enriching and/or selling potentially valuable tails, it does not have specific milestones for doing so. Instead, the policy statement states that this effort will occur “in the near future.”

DOE’s Depleted Uranium Inventory Is Potentially Worth Billions of Dollars, but Many Factors Could Greatly Change Its Value

At current uranium prices, we estimate DOE’s tails to have a net value of $7.6 billion; however, we would like to emphasize that this estimate is very sensitive to changing uranium prices, which recently have been extremely volatile, as well as to the availability of enrichment capacity. This estimate assumes the February 2008 published uranium price of $200 per kilogram of natural uranium in the form of uranium hexafluoride and $145 per separative work unit—the standard measure of uranium enrichment services. Our model also assumes the capacity to re-enrich the higher- concentration tails and subtracts the costs of the needed enrichment services. It also takes into account the cost savings DOE would realize from reductions in the amount of tails that needed conversion to a more stable form for storage, as well as the costs to convert any residual tails.

As noted above, this estimate is very sensitive to price variations for uranium as well as to the availability of enrichment services. Uranium prices are very volatile, and a sharp rise or fall in prices could greatly affect the value of the tails. For example, since 2000, uranium prices have varied from a low of about $21 per kilogram in November 2000 to a high of about $360 per kilogram in mid-2007, before falling to their recent level of about $200 per kilogram. Substituting the high and low end of historical uranium prices over the past 8 years for current prices results in a range of values for the tails from being nearly worthless, assuming $21 per kilogram of uranium, to over $20 billion, assuming $360 per kilogram of uranium. There is no consensus among industry players whether uranium prices will fall or rise in the future or on the magnitude of any future price changes. Furthermore, the introduction of additional uranium onto the market by the sale of large quantities of DOE depleted, natural, or enriched uranium—assuming DOE obtains authority to sell depleted uranium—could also lead to lower uranium prices. Therefore, according to DOE officials, DOE’s uranium sales strategy, when completed, will likely call for limits on the quantity of uranium the department would sell annually to help achieve DOE’s goal of minimizing the negative effects on domestic uranium producers. However, this would lengthen the time necessary to market DOE’s uranium, increasing the time the department is exposed to uranium price volatility. These factors all result in great uncertainty of the valuation of DOE’s tails.

In addition, the enrichment capacity available for re-enriching tails may be limited, and the costs of these enrichment services are uncertain. For example, USEC currently only has a small amount of excess enrichment capacity at its Paducah plant. If it used the spare capacity, USEC would only be able to re-enrich about 14 percent of DOE’s most economically attractive tails between now and the possible closing of the plant in 2012. Although USEC officials told us the company was willing to explore options to extend the Paducah plant’s operations beyond 2012 and dedicate Paducah’s capacity solely to re-enriching DOE’s tails after this point, negotiations between the company and DOE would be needed to determine the enrichment costs that would be paid by DOE. The Paducah plant uses a technology developed in the 1940s that results in relatively high production costs. Even if the Paducah plant were to be dedicated entirely to re-enriching DOE tails after 2012, over a decade would be required to complete the work because of limitations on the annual volume of tails that can be physically processed by the plant. This lengthy period of time would expose DOE to risks of uranium price fluctuations and increasing maintenance costs.

USEC and other companies are constructing or planning to construct enrichment plants in the United States that utilize newer, lower-cost technology. However, these facilities are not expected to be completed until various times over the next decade. It is unclear exactly when these facilities will be fully operating, the extent to which they will have excess enrichment capacity to re-enrich DOE’s tails, and what enrichment costs DOE could expect to pay. For example, the size of the fee DOE may have to pay an enrichment company to re-enrich its tails would be subject to negotiation between DOE and the company.

Conclusions

Recent dramatic increases in uranium prices present the U.S. government with an opportunity to gain some benefit from material that was once considered a liability. Under current law, however, one potential avenue for dealing with DOE’s depleted uranium tails—sale of the material in its current form—is likely closed to the department. Obtaining legal authority from Congress to sell depleted uranium under USEC Privatization Act section 3112 or other legislation would provide the department with an additional option in determining the best course of action to obtain the maximum financial benefit from its tails. We therefore recommended that Congress consider clarifying DOE’s statutory authority to manage depleted uranium, under the USEC Privatization Act or other legislation, including explicit direction about whether and how DOE may sell or transfer the tails. Depending on the terms of such legislation, this could reap significant benefits for the government because of the potentially large amount of revenue that could be obtained. In any event, enacting explicit provisions regarding DOE’s disposition of depleted uranium would provide stakeholders with welcome legal clarity and help avoid litigation that could interrupt DOE’s efforts to obtain maximum value for the tails.

Unfortunately, DOE has not completed a comprehensive assessment of its options with sufficient speed to take advantage of current market conditions. Despite working since 2005 to develop a plan for its uranium inventories, DOE’s March 2008 policy statement on the management of its excess uranium inventories lacks detailed information on the types and amounts of uranium that the department plans to potentially sell, further enrich, or store. Although pledging to conduct appropriate cost-benefit analyses as well as analyses on the impact of any proposal on the domestic uranium industry, the policy statement lacks specific milestones for doing so. Because of the potentially significant amounts of revenue that could be obtained from DOE’s uranium inventories and the extreme volatility of the uranium market, we recommended that the department complete, as soon as possible, a comprehensive uranium management assessment that details DOE’s options, its authority to implement these options, and the impact of these options on the domestic uranium industry. Without such an assessment that contains detailed information on each of its options, DOE will be unable to quickly react to rapidly changing market conditions to achieve the greatest possible value from its uranium inventories.

Mr. Chairman, this completes my prepared statement. I would be happy to respond to any questions that you or other Members of the Subcommittee may have at this time.

GAO Contact and Staff Acknowledgments

If you have any questions or need additional information, please contact Robert A. Robinson at (202) 512-3841 or robinsonr@gao.gov. Major contributors to this statement were Ryan T. Coles (Assistant Director), Ellen Chu, Terry Hanford, Karen Keegan, Omari Norman, Susan Sawtelle, and Franklyn Yao.

Appendix I: GAO’s Legal Analysis of DOE’s Current Authority to Manage Depleted Uranium

Introduction and Summary of Conclusions

As part of the Government Accountability Office’s review of the Department of Energy’s (DOE) potential options for managing its inventory of excess depleted uranium (also known as “tails”), we examined DOE’s legal authority to implement three basic options: (1) re- enriching the tails and then selling or transferring them, (2) storing the un- enriched tails indefinitely, and (3) selling or transferring the inventory of tails “as is.”

We conclude that DOE has general authority under the Atomic Energy Act to carry out the first and second options—to re-enrich and then sell or transfer the tails, as well as to store them indefinitely. However, we believe that because of constraints on DOE’s Atomic Energy Act authority in the USEC Privatization Act, the department’s authority to carry out the third option—to sell or transfer the tails in their current form—is doubtful. We believe that under rules of statutory construction, DOE likely lacks such authority under current law.

Because this is an issue of first impression, and because the question could significantly affect the public interest and DOE’s development of a comprehensive strategy for its excess-uranium inventory, we recommend that Congress consider enacting legislation clarifying the conditions (if any) under which DOE may sell or transfer its depleted uranium. Depending on the terms of such legislation, this could reap benefits for the government because of the potentially significant revenue that could be obtained. In any event, such clarification would provide stakeholders with welcome legal clarity, potentially enhance the attractiveness to interested purchasers, and help avoid litigation that could interrupt DOE’s efforts to obtain maximum value for the public.

Analysis

A. DOE authority to re-enrich and sell or transfer the tails DOE has general authority under the Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2011 et seq. (AEA), to re-enrich its depleted uranium inventory to natural or low-enriched levels and then to sell or transfer the re-enriched product. First, AEA section 41, 42 U.S.C. § 2061, authorizes DOE to re-enrich depleted uranium to low-enriched levels, and AEA sections 63 and 66, 42 U.S.C. §§ 2093, 2096—which authorize DOE’s acquisition and distribution of source material—implicitly authorize DOE to re-enrich depleted uranium to natural levels. Second, AEA sections 53, 63, and 161m, 42 U.S.C. §§ 2073, 2093, 2201(m), authorize DOE to transfer this re-enriched uranium, subject to certain conditions, to appropriately licensed entities such as nuclear power reactor operators.

This general AEA authority is limited by any applicable restrictions in the USEC Privatization Act, enacted in 1996. Section 3112(a) of the act, 42 U.S.C. §§ 2297h-10(a), prohibits DOE from transferring or selling “any uranium (including natural uranium concentrates, natural uranium hexafluoride, or enriched uranium in any form) . . . except as consistent with this section.” The remaining provisions of section 3112 then specify the conditions under which DOE may sell or transfer various types of natural and enriched uranium. Thus, DOE is authorized to sell or transfer re-enriched depleted uranium provided such transactions satisfy the remaining section 3112 conditions.

B. DOE authority to store the un-enriched tails indefinitely DOE has general authority under the AEA to store its unenriched depleted uranium indefinitely, as well as to convert the tails to a more stable form for storage. We believe this authority is implicit under AEA sections 63 and 66, which, as discussed above, authorize DOE to acquire and distribute source material. This authority is also implicit under AEA section 41, which authorizes DOE to enrich uranium, a process which inevitably generates depleted uranium. In addition, to the extent the department’s depleted uranium is “hazardous waste,” AEA section 91a(3), 42 U.S.C. § 2121(a)(3), explicitly authorizes DOE to store, process, transport, and dispose of “hazardous waste (including radioactive waste) resulting from nuclear materials production, weapons production and surveillance programs, and naval nuclear propulsion programs.”

Again, this AEA authority is limited by any applicable restrictions in the USEC Privatization Act. Section 3112 of that act does not apply to, and thus does not restrict, storage of DOE’s uranium. Section 3113, 42 U.S.C. § 2297h-11, does not apply to or restrict storage of its own depleted uranium, but it is relevant in that it reinforces DOE’s authority to store this type of uranium under the AEA. Section 3113(a) requires DOE to accept depleted uranium from other entities for storage and disposal in the event the depleted uranium is determined to be “low-level radioactive waste.” If the waste generator is a Nuclear Regulatory Commission (NRC) licensee, DOE must take title and possession of the depleted uranium “at an existing DUF6 storage facility.” Implicit in these provisions is that DOE may store and dispose of its own depleted uranium waste as well, under its AEA or other authority.

C. DOE authority to sell or transfer the tails in their current form DOE has general authority under the AEA to sell or transfer depleted uranium in its current form. As noted, sections 63 and 161m authorize DOE to distribute or sell “source material” to appropriately licensed entities, provided certain conditions are met, and depleted uranium is “source material.” AEA section 11z, 42 U.S.C. § 2014(z).

Again, this AEA authority is limited by any applicable restrictions in the USEC Privatization Act. While this is an issue of first impression, we believe DOE’s authority to sell or transfer depleted uranium in its current form is doubtful. We believe courts applying rules of statutory construction would likely find DOE lacks such authority under current law. “ shall not . . . transfer or sell any uranium (including natural uranium concentrates, natural uranium hexafluoride, or enriched uranium in any form) to any person except as consistent with this section.” (Emphasis added.) The remainder of section 3112 then prescribes the conditions under which DOE may sell or transfer particular types of uranium, namely, so-called Russian-origin uranium (subsection (b)); natural and enriched uranium transferred to USEC (subsection (c)); natural and low-enriched uranium sold from DOE’s inventory (subsection (d)); and enriched uranium transferred to federal agencies, state and local agencies, nonprofit, charitable or educational institutions, and others (subsection (e)). No provision explicitly addresses depleted uranium.

Read naturally and in accordance with its plain language, section 3112 prohibits DOE from selling or transferring its depleted uranium. The tails consist of uranium-235 and uranium-238, whether they are deemed a waste or a valuable commodity, and a DOE Office of Environmental Management official confirmed to us that operationally, the department treats depleted, natural, and enriched uranium all as “uranium.” Thus, depleted uranium would be covered by section 3112 as a type of “any uranium.” This plain meaning is reinforced by the fact that section 3112(a) lists nonexclusive examples of uranium—”any uranium (including natural uranium . . . or enriched uranium in any form)”—making clear that additional types of uranium are covered by section 3112. A 2005 DOE internal legal memorandum (2005 DOE Memorandum) reaches the same conclusion. Thus, because DOE may sell or transfer uranium only as consistent with the terms of sections 3112(b)-3112(e), and because none of those provisions specifies conditions under which depleted uranium may be sold, the plain words of the statute prohibit it.

The statutory structure and legislative history support this conclusion. It is clear that when Congress passed the USEC Privatization Act in 1996, it was familiar with depleted uranium as a category of uranium requiring management. Because depleted uranium was only considered as a valueless waste at that time, Congress only explicitly referred to one management option in the statute: disposal. As noted, in section 3113, Congress required DOE to take responsibility for disposal of other entities’ depleted uranium, should it ever be determined to be a “low-level radioactive waste.” As NRC noted recently in making such a determination, however, when depleted uranium is treated as a “resource,” rather than a waste, section 3113 does not apply. See NRC, In re Louisiana Energy Services, L.P. (National Enrichment Facility), No. CLI-05-05 (Jan. 18, 2005), at 1, 3, 15, 17. In that event—where depleted uranium is a resource to be sold or transferred—section 3112, by its terms, would apply. The fact that Congress did not specify section 3112 conditions under which depleted uranium may be sold, as it did for DOE’s other valuable uranium, reflects only that depleted uranium was not deemed valuable in 1996. It does not reflect congressional intent that valuable depleted uranium is not subject to section 3112’s general prohibition against sales of “any uranium.” While this result may appear anomalous because depleted uranium is now considered a potentially highly valuable commodity and a potential source of revenue for the federal government, that is a matter for Congress to remedy, if it so chooses.

A recently issued DOE policy on disposition of its excess uranium inventory recognizes this increase in value for depleted uranium. To take advantage of this development, department officials suggested to us that they would be authorized to sell the tails in their current form using DOE’s general AEA section 161m authority, without regard to the prohibitions in the USEC Privatization Act. They suggested such an approach might be reconciled as “consistent with” section 3112, as section 3112(a) requires, because none of the provisions in section 3112 specifies conditions of sale for depleted uranium. The 2005 DOE Memorandum makes a similar argument, pointing to the fact that the legislative history contains no explicit mention of restricting DOE’s existing AEA authority to sell depleted uranium.

We disagree with this interpretation. DOE in effect reads a depleted uranium exception into the unqualified term “any uranium,” and rewrites section 3112 to say that only sale and transfer of uranium categories explicitly identified in that section are restricted. That is not what the statute says, and this reading would violate the principle that statutory exceptions are to be narrowly construed. See, e.g., Commissioner v. Clark, 489 U.S. 726, 738-39 (1989) (“Given that Congress has enacted a general rule . . ., we should not eviscerate that legislative judgment through an expansive reading of a somewhat ambiguous exception.”). Nor does the legislative history support this result. The fact that there was no mention of limiting DOE’s existing depleted uranium sales authority under the AEA is unremarkable, because in 1996, there was no valuable depleted uranium to sell.

Finally, it would not be consistent with section 3112 to allow DOE to sell depleted uranium under the AEA. It would violate the statute’s prohibition against sales of “any uranium,” because there are no section 3112 exceptions under which its sale is permitted. It would also be incongruous to allow DOE to sell or transfer potentially billions of dollars’ worth of federal assets without the scrutiny Congress gave to disposition of DOE’s valuable uranium in enacting section 3112. Section 3112 represents Congress’ more specific and later-enacted intent regarding the types of factors to be considered in selling DOE’s uranium inventories, including price, protection of the domestic uranium industry, and safeguarding the national security, and therefore takes precedence. See, e.g., Smith v. Robinson, 468 U.S. 992 (1984) (more specific and recent statute takes precedence).

In sum, we believe our reading of section 3112 carries out the plain words of the act and respects the policy considerations and choices Congress made in 1996 when presented with the disposition of DOE’s valuable uranium in a crowded and price-sensitive market. Our reading is also consistent with how courts interpret broad statutes when circumstances change: laws written in comprehensive terms apply to unanticipated circumstances if they reasonably fall within the scope of the plain language. See, e.g., Unexcelled Chemical Corp. v. United States, 345 U.S. 59 (1953). Thus, depleted uranium sales are covered by the prohibition in section 3112, even if depleted uranium was not part of the universe Congress explicitly had in mind when it enacted the statute in 1996.

The same concerns that led Congress to legislate explicit conditions of sale for DOE’s other uranium inventories in 1996 may apply equally with regard to sale of its depleted uranium inventory today. Congress now has the opportunity to address the intervening increase in uranium values and balance the competing concerns associated with its sale. Because the question of DOE’s authority to sell its depleted tails would be a statutory construction issue of first impression and thus is not free from doubt, and because the question is an issue of significant public interest and importance, we recommend that Congress consider enacting legislation setting forth the explicit conditions (if any) under which DOE may sell or transfer its depleted uranium. Depending on the terms of such legislation, this could reap significant benefits for the government because of the potentially significant revenue that could be obtained. In any event, enacting explicit provisions regarding DOE’s sale or transfer of its depleted uranium would provide stakeholders with welcome legal clarity and help avoid litigation that could interrupt DOE’s efforts to obtain maximum value for the public.

Conclusion

In summary, we conclude that DOE has general authority under the Atomic Energy Act to re-enrich and then sell or transfer the tails, provided the transaction meets the conditions of section 3112 of the USEC Privatization Act. DOE also has general AEA authority to store the tails indefinitely. However, we believe that because of constraints on DOE’s AEA authority in the USEC Privatization Act, the department’s authority to sell or transfer tails in their current form is doubtful and that under rules of statutory construction, DOE likely lacks such authority under current law. We recommend that Congress consider enacting legislation explicitly addressing the scope of DOE’s authority to sell and transfer depleted uranium.

This is a work of the U.S. government and is not subject to copyright protection in the United States. The published product may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately.