[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
IMPLEMENTING THE NUCLEAR WASTE POLICY ACT: NEXT STEPS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 10, 2013
__________
Serial No. 113-79
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
______
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COMMITTEE ON ENERGY AND COMMERCE
FRED UPTON, Michigan
Chairman
RALPH M. HALL, Texas HENRY A. WAXMAN, California
JOE BARTON, Texas Ranking Member
Chairman Emeritus JOHN D. DINGELL, Michigan
ED WHITFIELD, Kentucky FRANK PALLONE, Jr., New Jersey
JOHN SHIMKUS, Illinois BOBBY L. RUSH, Illinois
JOSEPH R. PITTS, Pennsylvania ANNA G. ESHOO, California
GREG WALDEN, Oregon ELIOT L. ENGEL, New York
LEE TERRY, Nebraska GENE GREEN, Texas
MIKE ROGERS, Michigan DIANA DeGETTE, Colorado
TIM MURPHY, Pennsylvania LOIS CAPPS, California
MICHAEL C. BURGESS, Texas MICHAEL F. DOYLE, Pennsylvania
MARSHA BLACKBURN, Tennessee JANICE D. SCHAKOWSKY, Illinois
Vice Chairman JIM MATHESON, Utah
PHIL GINGREY, Georgia G.K. BUTTERFIELD, North Carolina
STEVE SCALISE, Louisiana JOHN BARROW, Georgia
ROBERT E. LATTA, Ohio DORIS O. MATSUI, California
CATHY McMORRIS RODGERS, Washington DONNA M. CHRISTENSEN, Virgin
GREGG HARPER, Mississippi Islands
LEONARD LANCE, New Jersey KATHY CASTOR, Florida
BILL CASSIDY, Louisiana JOHN P. SARBANES, Maryland
BRETT GUTHRIE, Kentucky JERRY McNERNEY, California
PETE OLSON, Texas BRUCE L. BRALEY, Iowa
DAVID B. McKINLEY, West Virginia PETER WELCH, Vermont
CORY GARDNER, Colorado BEN RAY LUJAN, New Mexico
MIKE POMPEO, Kansas PAUL TONKO, New York
ADAM KINZINGER, Illinois
H. MORGAN GRIFFITH, Virginia
GUS M. BILIRAKIS, Florida
BILL JOHNSON, Ohio
BILLY LONG, Missouri
RENEE L. ELLMERS, North Carolina
7_____
Subcommittee on Environment and the Economy
JOHN SHIMKUS, Illinois
Chairman
PHIL GINGREY, Georgia PAUL TONKO, New York
Vice Chairman Ranking Member
RALPH M. HALL, Texas FRANK PALLONE, Jr., New Jersey
ED WHITFIELD, Kentucky GENE GREEN, Texas
JOSEPH R. PITTS, Pennsylvania DIANA DeGETTE, Colorado
TIM MURPHY, Pennsylvania LOIS CAPPS, California
ROBERT E. LATTA, Ohio JERRY McNERNEY, California
GREGG HARPER, Mississippi JOHN D. DINGELL, Michigan
BILL CASSIDY, Louisiana JANICE D. SCHAKOWSKY, Illinois
DAVID B. McKINLEY, West Virginia JOHN BARROW, Georgia
GUS M. BILIRAKIS, Florida DORIS O. MATSUI, California
BILL JOHNSON, Ohio HENRY A. WAXMAN, California (ex
JOE BARTON, Texas officio)
FRED UPTON, Michigan (ex officio)
(ii)
C O N T E N T S
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Page
Hon. John Shimkus, a Representative in Congress from the State of
Illinois, opening statement.................................... 48
Prepared statement........................................... 49
Hon. Paul Tonko, a Representative in Congress from the State of
New York, opening statement.................................... 50
Hon. Gene Green, a Representative in Congress from the State of
Texas, opening statement....................................... 51
Hon. Fred Upton, a Representative in Congress from the State of
Michigan, opening statement.................................... 52
Prepared statement........................................... 53
Hon. Henry A. Waxman, a Representative in Congress from the State
of California, opening statement............................... 53
Witnesses
Allison M. Macfarlane, Chairman, Nuclear Regulatory Commission... 55
Prepared statement........................................... 57
Answers to submitted questions............................... 99
Peter B. Lyons, Assistant Secretary for Nuclear Energy,
Department of Energy........................................... 64
Prepared statement........................................... 66
Answers to submitted questions............................... 116
Submitted Material
Opinion, dated August 13, 2013, In Re: Aiken County, et al.,
Petitioners, State of Nevada, Intervenor, On Petition for Writ
of Mandamus, U.S. Court of Appeals for the District of Columbia
Circuit, submitted by Mr. Shimkus.............................. 2
Editorial, dated August 20, 2013, ``Time to Stop Stalling on
Nuclear Waste,'' The New York Times, submitted by Mr. Shimkus.. 32
Letter of August 23, 2013, from Mr. Upton and Mr. Shimkus to Ms.
Macfarlane, submitted by Mr. Shimkus........................... 34
Letter of September 6, 2013, from Ms. Macfarlane to Mr. Upton,
submitted by Mr. Shimkus....................................... 37
Letter of August 26, 2013, from Mr. Upton and Mr. Shimkus to
Ernest Moniz, Secretary, Department of Energy, submitted by Mr.
Shimkus........................................................ 40
Letter of August 30, 2013, from Mr. Lyons to Mr. Shimkus,
submitted by Mr. Shimkus....................................... 42
IMPLEMENTING THE NUCLEAR WASTE POLICY ACT: NEXT STEPS
----------
TUESDAY, SEPTEMBER 10, 2013
House of Representatives,
Subcommittee on Environment and the Economy,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 10:03 a.m., in
room 2123 of the Rayburn House Office Building, Hon. John
Shimkus (chairman of the subcommittee) presiding.
Members present: Representatives Shimkus, Gingrey,
Whitfield, Pitts, Murphy, Latta, Harper, McKinley, Bilirakis,
Johnson, Upton (ex officio), Tonko, Green, Capps, McNerney,
Dingell, Barrow, and Waxman (ex officio).
Staff present: Nick Abraham, Legislative Clerk; Gary
Andres, Staff Director; Charlotte Baker, Press Secretary; David
Bell, Staff Assistant; Sean Bonyun, Communications Director;
Andy Caputo, Professional Staff Member; Vincent Esposito,
Fellow, Nuclear Programs; Brad Grantz, Policy Coordinator,
Oversight and Investigations; David McCarthy, Chief Counsel,
Environment and the Economy; Chris Sarley, Policy Coordinator,
Environment and the Economy; Peter Spencer, Professional Staff
Member, Oversight; Tom Wilbur, Digital Media Advisor; Jeff
Baran, Democratic Senior Counsel; Alison Cassady, Democratic
Senior Professional Staff Member; Greg Dotson, Democratic Staff
Director, Energy and Environment; and Caitlin Haberman,
Democratic Policy Analyst.
Mr. Shimkus. The committee will come to order. And we would
like to welcome our colleagues back from the break and also our
folks on the first panel.
Before we get down to my opening statement, I want to ask
unanimous consent to submit for the record the August 13, 2013,
decision of the U.S. Court of Appeals for the DC Circuit to
issue a writ of mandamus. Without objection, so ordered.
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Mr. Shimkus. I also would ask unanimous consent to submit
for the record an August 20 editorial by The New York Times
entitled, ``Time to Stop Stalling on Nuclear Waste.'' Without
objection, so ordered.
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Mr. Shimkus. I also ask unanimous consent to submit for the
record a letter that Chairman Upton and I sent to the NRC on
August 23 discussing the recent decision of the U.S. Court of
Appeals for the DC Circuit and the NRC's response dated
September 6, 2013. Without objection, so ordered.
[The information follows:]
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Mr. Shimkus. Then, finally, Chairman Upton and I received a
letter from Ranking Members Waxman and Tonko indicating their
desire to examine the status of Fukushima Nuclear Plant in
Japan. We look forward to discussing those issues with the full
commission when they appear this fall. And so we want to thank
you for that input.
And I would like to recognize myself for 5 minutes for my
opening statement.
OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
On August 13, the U.S. Court of Appeals for the District of
Columbia Circuit granted a writ of mandamus stating that ``the
Nuclear Regulatory Commission must promptly continue with the
legally mandated licensing process.'' The purpose of our
hearing today is to examine the next steps for the NRC and the
Department of Energy to implement the court's decision.
Thank you, Chairman Macfarlane and Assistant Secretary
Lyons, for your testimony today.
In its decision, the court rebuked the NRC for ``simply
flouting the law,'' something this committee recognized long
ago. How is it that an independent agency with a clear
statutory responsibility is criticized by a Federal court for
having ``no current intention of complying with the law''?
Today's hearing will be focused on looking forward, but we
have to be cognizant of the agency actions that led to this
situation and vigilant against resurgent efforts to undermine
the statutory process. The Commission's recent order to give
the parties until September 30 to comment on how the NRC should
proceed, however well-intentioned, is eerily reminiscent of
past NRC efforts to slow the review process and to stall the
release of its Safety Evaluation Report.
On June 3, 2008, the DOE filed a license application for
construction authorization to build a repository at Yucca
Mountain. NRC accepted the application and docketed it on
September 8, 2008. By the end of 2009, it was becoming clear
that the DOE would close down the Yucca Mountain program,
abandoning the 30 years of research and $15 billion invested.
By March 3, 2010, the DOE filed a motion to withdraw the
license application in a manner that would prevent any further
consideration of the site.
On June 29, 2010, the NRC's Construction Authorization
Board denied DOE's motion. In spite of this, then-NRC Chairman
Greg Jaczko was already laying the groundwork to unilaterally
cease the NRC's review of the license application, as we
learned in our hearing to review the NRC Inspector General's
report on this subject.
According to the IG's report, in spring of 2010, NRC staff
informed Chairman Jaczko that they were ahead of schedule and
could issue SER Volumes 1 and 3 earlier than the previously
projected dates of August and November 2010. This is very
important information. In fact, the NRC executive director had
the impression that Volume 3 would be ready for publication in
the summer of 2010. In June 2010, Chairman Jaczko directed the
staff in a memo to maintain their public schedule and not issue
Volumes 1 and 3 early.
At that point, it was clear to the deputy executive
director that the chairman planned to close down the license
review on October 1 and that ``the practical effect of the
Chairman's June memorandum was that it prevented the staff from
issuing Volume 3 should it have been finalized prior to October
1.''
Indeed, on October 4, Chairman Jaczko directed the staff to
cease its review of the license citing the Continuing
Resolution even though the CR would continue to provide funding
for the review at the existing level of $29 million. He later
told the IG that it was his responsibility to manage the
agency's workload and workflow with regard to scheduling.
Here we are, nearly a month after the DC Circuit issued a
writ of mandamus, and the NRC's only action we have seen so far
is to invite the parties to comment by September 30.
Electricity consumers and taxpayers have waited 30 years and
paid $15 billion to find out whether our independent nuclear
safety regulator concluded that Yucca Mountain would be safe or
not. Releasing the SER is the next step in the NRC process. The
NRC has the money to do it. A Federal court has ruled that the
NRC must proceed, and the NRC says hold on; let's ask the
parties what they think. This does not seem like the posture of
an agency intent on complying with a writ of mandamus. Instead,
the NRC appears again to be stalling.
I won't speak for other members on this committee but I
want to be very clear: I strongly believe the NRC's first order
of business is to complete and release the Safety Evaluation
Report. Transparency in this matter is essential to rebuilding
the agency's reputation as an independent and objective
regulator.
[The prepared statement of Mr. Shimkus follows:]
Prepared Statement of Hon. John Shimkus
On August 13, the U.S. Court of Appeals for the District of
Columbia Circuit granted a writ of mandamus stating that ``the
Nuclear Regulatory Commission must promptly continue with the
legally mandated licensing process.'' The purpose of our
hearing today is to examine the next steps for NRC and the
Department of Energy to implement the court's decision. Thank
you, Chairman Macfarlane and Assistant Secretary Lyons for
testifying today.
In its decision, the court rebuked the NRC for ``simply
flouting the law,'' something this committee recognized long
ago. How is it that an independent agency with a clear
statutory responsibility is criticized by a Federal court for
having ``no current intention of complying with the law''?
Today's hearing will be focused on looking forward, but we have
to be cognizant of the agency actions that led to this
situation and vigilant against resurgent efforts to undermine
the statutory process. The commission's recent order to give
the parties until September 30th to comment on how the NRC
should proceed, however wellintentioned, is eerily reminiscent
of past NRC efforts to slow the review process and to stall the
release of its safety evaluation report.
On June 3, 2008, the DOE filed a license application for
construction authorization to build a repository at Yucca
Mountain. NRC accepted the application and docketed it on Sept.
8, 2008. By the end of 2009, it was becoming clear that the DOE
would close down the Yucca Mountain program, abandoning the 30
years of research and $15 billion invested. By March 3, 2010,
the DOE filed a motion to withdraw the license application in a
manner that would prevent any future consideration of the site.
On June 29 of 2010, the NRC's Construction Authorization Board
denied DOE's motion. In spite of this, then NRC Chairman Greg
Jaczko was already laying the groundwork to unilaterally cease
the NRC's review of the license application as we learned in
our hearing to review the NRC Inspector General's report on
this subject.
According to the IG's report, in spring of 2010, NRC staff
informed Chairman Jaczko that they were ahead of schedule and
could issue SER Volumes 1 and 3 earlier than the previously
projected dates of August and November of 2010. In fact, the
NRC Executive Director had the impression that Volume 3 would
be ready for publication in summer 2010. In June of 2010,
Chairman Jaczko directed the staff in a memo to maintain their
public schedule--and not to issue Volumes 1 and 3 early.
At that point, it was clear to the deputy executive
director that the chairman planned to close down the license
review on October 1st and that ``the practical effect of the
Chairman's June memorandum was that it prevented the staff from
issuing Volume 3 should it have been finalized prior to October
1.'' Indeed on October 4th, Chairman Jaczko directed the staff
to cease its review of the license citing the continuing
resolution even though the CR would continue to provide funding
for the review at the existing level of $29 million. He later
told the IG that it was his responsibility to manage the
agency's workload and workflow with regard to scheduling.
Here we are, nearly a month after the DC Circuit issued a
writ of mandamus, and the NRC's only action we've seen so far
is to invite the parties to comment.by September 30.
Electricity consumers and taxpayers have waited 30 years and
paid $15 billion to find out whether our independent nuclear
safety regulator concluded that Yucca Mountain would be safe or
not, releasing the SER is the next step in the NRC's process,
the NRC has the money to do it, a Federal court has ruled that
the NRC must proceed, and the NRC says ``hold on, let's ask the
parties what they think.'' This does not seem like the posture
of an agency intent on complying with a writ of mandamus.
Instead, the NRC appears to again be stalling. I won't speak
for other members on this committee, but I want to be very
clear: I strongly believe the NRC's first order of business is
to complete and release the Safety Evaluation Report.
Transparency in this matter is essential to rebuilding the
agency's reputation as an independent and objective regulator.
Mr. Shimkus. And with that, I yield back the balance of my
time and I yield to the ranking member, Mr. Tonko, for 5
minutes.
OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Tonko. Thank you, Chair Shimkus. Good morning,
everyone.
And the United States Court of Appeals has now issued a
ruling ordering the Nuclear Regulatory Commission to resume
review of the Yucca Mountain license application. I do not
think this action alone has resolved much related to the
ongoing questions about the fate of nuclear waste. The court
decision does not reverse the opposition to the Yucca Mountain
project in the State of Nevada. It does not require the NRC or
DOE to move forward without additional appropriated funds. And
at this time, there is still a possibility that one or more of
the parties to this case will appeal the ruling.
It seems we all still have a great deal of work to do if we
are to move nuclear waste policy forward. Yucca Mountain may or
may not be part of this policy. Even if it is, we are still
many years, perhaps decades, from placing the first waste into
this repository. If nuclear power is to play a role in our
future energy supply, we need to explore other options for
dealing with this waste that could be implemented more quickly.
I do not expect we will resolve anything today. I hope we
will be able to move forward and work together to provide a
constructive solution to this very critical, very important
problem.
I want to thank Chair Macfarlane and Dr. Lyons for
appearing before the subcommittee today and would yield my
remaining time to the gentleman from Texas, Mr. Green.
OPENING STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Green. I thank my colleague and our ranking member for
yielding.
Mr. Chairman, thank you for holding this timely hearing on
nuclear waste at Yucca Mountain. I also want to thank Chair
Macfarlane and Assistant Secretary Lyons for joining us this
morning.
Earlier this year, Chair Macfarlane and her fellow
commissioners before this very subcommittee committed to
honoring the court's decision concerning the review of Yucca
Mountain license application. Since that time, the DC court
ruled that the NRC must resume its review in accordance with
the Nuclear Waste Policy Act.
I hope to hear in today's hearing that the NRC and DOE will
be following through with earlier statements and will use the
available resources to move the review process as far along as
possible. This should include plan to complete the Safety
Evaluation Reports which this subcommittee is told would take
an estimated 6 to 8 months to complete at a cost of 6.5
million. This should be all the more the case in light of the
fact that the NRC currently has over 11 million and DOE has 16
million in unobligated funds appropriated specifically for
Yucca licensing activities.
I also look forward to hearing how the NRC will be putting
together the best staff possible to complete the SERs,
hopefully with assigning many of the same people who worked on
the review process before it was halted prematurely.
Finally, I believe the court's ruling gives this committee,
the Energy Department, and the NRC an opportunity to redouble
our collective efforts in finding a final solution on this
matter that can be based on consensus science in honor of the
$15 billion investment the American people have already made
towards a permanent SNF storage.
Our country has a real serious and pending issue at hand
with regard to the storage and the disposal of nuclear waste
and must be dealt with sooner rather than later. Currently
spent fuel and reprocessed waste is stored at nuclear plants
and 77 sites scattered across the U.S. mounting to over 70,000
metric tons of spent nuclear fuel. Local communities are
spending millions of dollars annually to ensure the safety and
protection of our nuclear waste. Even with these current sites,
we are still producing nuclear waste, and that waste will need
to be stored for at least 1,000 years.
If we do not take action by following the circuit court's
decision or Congress finding a different path forward on this
important issue, all of us--DOE, NRC, and Congress--will be
letting down the very people we were sent here for and endanger
the health and safety of our communities.
Again, I thank Chair Macfarlane and Assistant Secretary
Lyons for appearing today and I look forward to your testimony.
And I again thank my colleague for my time.
Mr. Shimkus. The gentleman yields back his time. The chair
now recognizes the chairman of the full committee, Mr. Upton,
for 5 minutes.
OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Upton. Thank you, Mr. Chairman. And I appreciate Chair
Macfarlane and Dr. Lyons here today this morning as well.
As we know, the court recently ordered the NRC to proceed
with the Yucca Mountain license review. And the first task in
complying with the court's mandate and with the Nuclear Waste
Policy Act is in fact to release the Safety Evaluation Report.
Fortunately, you do indeed have the resources to proceed with
that release.
Congress needs the opportunity to examine the NRC's long-
overdue unredacted technical analysis, and the public who paid
for it deserve to know the report's conclusions. During the
last 3 years the administration has been suppressing this
document, Congress has been denied an informed discussion about
next steps.
For quite some time, Members on both sides of the aisle
have been saying--with our words and with our votes--Yucca
Mountain is in fact the law of the land. And a month ago, in
August, the DC Circuit Court did agree and ordered that NRC
must proceed with the license review. The path forward is
unmistakable. Compliance with the law is not optional.
The framework of the Nuclear Waste Policy Act is simple:
electricity consumers pay for the cost of used fuel disposal as
part of the cost of that electricity, and taxpayers pay for the
disposal costs of the high-level waste legacy of the Cold War.
But the reality of our current situation is in fact a lot
different. With no progress on a permanent repository, both
ratepayers and taxpayers continue to be charged, yet they
aren't getting what they are paying for.
DOE is spending the Nuclear Waste Fund money to shut down a
licensing process which the court has said must proceed. NRC is
spending resources to revise a Waste Confidence Rule as a
result of the repository program being shut down. And DOE is
spending taxpayer money on a sidetrack effort to supplant Yucca
Mountain.
Unfortunately, the disjointed policies have resulted in
higher costs. Moreover, electricity consumers are investing
about $750 million each year for fuel disposal, but none of the
money is currently being spent for that purpose and used fuel
sits at reactor sites, piling up even more costs to consumers.
Resumption of the Yucca Mountain program remains the
clearest, fastest, and most fiscally responsible way for the
government to meet its obligation to provide disposal, to
mitigate liability costs, and to reestablish a solid basis for
the Waste Confidence Rule. Not to mention, it is the law.
Politics needs to be removed once and for all from this
process. We have got to remember that while the administrations
come and go, used fuel is here to stay, and after three decades
it is time that we finally achieve a permanent storage site.
The NRC's completion of the SER is the necessary and long-
overdue next step.
The issue has enjoyed a long history of bipartisanship and
we will work very hard to continue that tradition until the job
gets done.
And I yield back my time.
[The prepared statement of Mr. Upton follows:]
Prepared Statement of Hon. Fred Upton
The court recently ordered NRC to proceed with the Yucca
Mountain license review. And the first task in complying with
the court's mandate, and with the Nuclear Waste Policy Act, is
releasing the Safety Evaluation Report. Fortunately, you
already have the resources to proceed with its release.
Congress needs the opportunity to examine the NRC's long-
overdue unredacted technical analysis, and the public who paid
for it deserve to know the report's conclusions. During the
three years the administration has been suppressing this
document, Congress has been denied an informed discussion about
next steps.
For quite some time, members on both sides of the aisle
have been saying--with our words and our votes--``Yucca
Mountain is the law of the land.'' A month ago, the DC Circuit
court agreed and ordered that NRC must proceed with the license
review. The path forward is unmistakable. Compliance with the
law is not optional.
The framework of the Nuclear Waste Policy Act is simple:
electricity consumers pay for the cost of used fuel disposal as
part of the cost of that electricity, and taxpayers pay for the
disposal costs of the highlevel waste legacy of the Cold War.
But the reality of our current situation is much different.
With no progress on a permanent repository, both ratepayers and
taxpayers continue to be charged, yet they aren't getting what
they paid for.
DOE is spending Nuclear Waste Fund money to shut down a
licensing process which the court has said must proceed. NRC is
spending resources to revise a waste confidence rule as a
result of the repository program being shut down. And DOE is
spending taxpayer money on a sidetrack effort to supplant Yucca
Mountain.
Unfortunately, the disjointed policies have resulted in
higher costs. Moreover, electricity consumers are investing
about $750 million per year for fuel disposal, but none of the
money is currently being spent for that purpose and used fuel
sits at reactor sites, piling up even more costs to consumers.
Resumption of the Yucca Mountain program remains the
clearest, fastest, and most fiscally responsible way for the
government to meet its obligation to provide disposal, to
mitigate liability costs, and to reestablish a solid basis for
the waste confidence rule. Not to mention, it is the law.
Politics needs to be removed once and for all from this
process. We must remember, whileadministrations come and go,
used fuel is here to stay, and after three decades it is time
we finally achieve a permanent storage site. The NRC's
completion of the SER is the necessary and long-overdue next
step.
This issue has enjoyed a long history of bipartisanship and
we will work to continue that tradition until the job gets
done.
Mr. Shimkus. The gentleman yields back his time. The chair
now recognizes the ranking member of the full committee, Mr.
Waxman, for 5 minutes.
OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Waxman. Thank you, Mr. Chairman.
Our nuclear waste laws are not working. Instead of holding
yet another hearing on Yucca Mountain, this committee should be
working to reform them. In 1987, Congress designated Yucca
Mountain in Nevada as the sole site to be considered for a
permanent geologic repository for spent nuclear fuel and high-
level radioactive waste. There was no plan B. This decision to
short-circuit the site selection process was widely viewed as
political and provoked strong opposition in Nevada.
Twenty-five years later, it is clear that this top-down
approach has broken down. President Obama wisely sought a new
approach. He chartered a Blue Ribbon Commission to develop a
new strategy for managing the country's nuclear waste. Last
year, we heard testimony from the co-chairs of this Blue Ribbon
Commission on the recommendations that resulted from their 2-
year effort.
In July, Secretary Moniz testified about DOE's strategy for
implementing many of those recommendations. He argued that a
consent-based approach to siting was essential and his
testimony raised a number of important policy questions, such
as whether to create a new organization to manage the nuclear
waste problem, how to use nuclear waste fees, and whether to
construct one or more consolidated interim storage facilities
in addition to one or more permanent geologic repositories.
These are policy questions that require Congress to
respond. Answering these questions requires an open mind and
willingness to move past a narrow obsession with Yucca
Mountain. But this committee seems fixated on Yucca Mountain.
In August, the Court of Appeals issued a decision on the
legality of the Nuclear Regulatory Commission's decision to
suspend its review of DOE's application for a permanent
repository at Yucca Mountain. The court ordered NRC to continue
its review of the Yucca Mountain license application as long as
it has any appropriated funds to do so. The problem with this
decision is that NRC has just spent money so that 11 million in
leftover funds is available for this purpose. This amount is
not nearly enough to complete the review. In fact, the
dissenting judge argued that the court was ordering NRC to ``do
a useless thing'' because most of the $11 million would be
spent restarting the process and the rest spent putting the
materials back into storage.
The reality is that the court decision has not really
changed anything. The decision does nothing to reduce the long-
standing public opposition to Yucca Mountain. It does not
establish a consent-based siting process or a new organization
to focus on the waste problem, and it does not solve the tricky
funding and appropriations issues to make sure that the funds
put aside for constructing a repository or storage facility can
actually be used for that purpose. A court decision was never
going to resolve any of these issues.
Today, the majority has summoned NRC and DOE for another
meeting of the Yucca Mountain fan club, but the Commission
hasn't had a chance to evaluate its options, develop its
response to the court decisions, or even decide whether to
appeal the decision. We should spend our witnesses' valuable
time discussing other pressing nuclear safety issues.
Yesterday, I sent a letter requesting a hearing on the
troubling developments at the Fukushima plant in Japan.
Radioactive water is leaking into the ground and the Pacific
Ocean. Some hotspots have radiation levels high enough to
deliver a lethal dose in 4 hours. The events in Japan deserve
the subcommittee's attention, as do NRC's ongoing
implementation of lessons learned from the Fukushima disaster
and the closure of the San Onofre plant in California.
Yucca Mountain has become a hopelessly divisive issue. The
sooner we recognize this and start considering a truer reform,
the sooner we will be able to fulfill our responsibility to
craft a sustainable nuclear waste policy for the Nation. Thank
you, Mr. Chairman. I yield back my time.
Mr. Shimkus. The gentleman yields back his time. I would
now like to recognize myself for 5 minutes. Oh, I am sorry. I
am so excited about going to questions. So let me now recognize
Madam Chairman from the Nuclear Regulatory Commission, Ms.
Macfarlane, for 5 minutes for an opening statement.
STATEMENTS OF ALLISON M. MACFARLANE, CHAIRMAN, NUCLEAR
REGULATORY COMMISSION, AND PETER B. LYONS, ASSISTANT SECRETARY
FOR NUCLEAR ENERGY, DEPARTMENT OF ENERGY
STATEMENT OF ALLISON M. MACFARLANE
Ms. Macfarlane. Thank you, Chairman Shimkus.
Good morning, Chairman Shimkus, Ranking Member Tonko, and
distinguished members of the subcommittee. On behalf of the
U.S. Nuclear Regulatory Commission, I appreciate the
opportunity to appear before you to discuss the actions the NRC
is taking to comply with the court's decision on Yucca Mountain
licensing activities. I am also pleased to appear with
Assistant Secretary Lyons.
The written testimony I have submitted for the record
contains information about the NRC's response to the recent
court decision on Yucca Mountain and the status of the NRC's
technical and adjudicatory activities at the time they were
suspended in 2011.
As you are aware, on August 13, a panel of the U.S. Court
of Appeals for the DC Circuit directed the NRC to resume its
review of the Department of Energy's application to construct a
geologic repository for high-level nuclear waste at Yucca
Mountain. On August 30, the Commission issued an order
requesting that all parties to the suspended adjudication
provide their views within 30 days on how the NRC should
continue with the licensing process. The Commission has also
directed the NRC offices to gather pertinent budgeting
information during this comment period.
The Commission will make an objective, transparent, and
collegial determination about the path forward based on the
internal and external input we receive. Because the Commission
has not yet reached its decision, it would be inappropriate for
me to speculate about what the final direction would be.
In March 2010, the DOE filed a motion to withdraw its
license application, and at the end of fiscal year 2011, the
NRC formally suspended its review. Between the time that the
DOE submitted its application in 2008 and the suspension in
2011, the NRC staff conducted its regulatory review. Among
other things, the staff's technical actions included work on
the Safety Evaluation Report, otherwise known as the SER, the 5
volumes of which were left in various stages of completion.
Separately, on the adjudicatory side, multiple parties
filed petitions seeking a hearing in this licensing proceeding
and the Atomic Safety Licensing Board, or ASLB, granted most of
the hearing requests. The focus of adjudicatory hearings is on
whether the license applicant has demonstrated that the
regulations have been met and the license should be issued. As
the license applicant in this case, the DOE bears the burden of
making this demonstration.
When the adjudicatory proceeding was suspended, the ASLB
closed out all activities associated with the hearing process
on the DOE application. At that time, a total of 288
contentions had been pending resolution on the merits. To date,
no evidentiary hearings have been held.
In addition, the NRC had created a web-based Licensing
Support Network, otherwise known as the LSN. This is required
by our regulations as a means for making all documents related
to the adjudicatory proceedings available electronically to all
participants. The NRC has preserved these records but the LSN
is no longer active.
I recognize that the completion of the 5-volume SER is of
particular interest. The NRC is confronted with challenges
associated with reconstituting a multidisciplinary team to
resume the licensing process. In addition, this milestone
represents one, albeit important, element in the overall
required licensing process. All of the issues raised before the
ASLB must also be resolved.
Finally, a completed adjudicated Environmental Impact
Statement and supplement is also necessary for a licensed
decision.
As this committee is aware, the NRC does not have
sufficient resources to complete all the remaining steps. As
part of the normal license review process, the NRC would also
need the DOE's participation as the applicant to address any
issues the NRC identifies. I defer to DOE officials to address
the Department's ability to do so.
Chairman Shimkus, Ranking Member Tonko, and members of the
subcommittee, the Commission will act expeditiously to direct
the staff on how to expend the agency's remaining resources
under the Nuclear Waste Fund. The Commission's recent order
will help ensure that our decision has the full benefit of
views submitted by various parties to the adjudicatory
proceedings. We will provide additional information to the
subcommittee through monthly reports as our decision process
continues.
I would be pleased now to respond to your questions.
[The prepared statement of Ms. Macfarlane follows:]
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Mr. Shimkus. Thank you, Madam Chair.
I now would like to recognize Mr. Peter Lyons, Assistant
Secretary for Nuclear Energy.
Sir, you are recognized for 5 minutes.
STATEMENT OF PETER B. LYONS
Mr. Lyons. Thank you, Mr. Chairman Shimkus, Ranking Member
Tonko, and members of the subcommittee. I appreciate your
invitation to testify at the subcommittee's hearing today.
The administration takes seriously its obligations to
manage and dispose of used nuclear fuel and high-level
radioactive waste, as emphasized in the testimony of Secretary
Moniz to this subcommittee just a few weeks ago.
President Obama has made climate change mitigation a
priority and set a goal of reducing emissions in the range of
17 percent below 2005 levels by 2020. He has emphasized the
important role of nuclear power in his all-of-the-above clean
energy strategy.
Nuclear power remains the United States single largest
contributor with more than 60 percent of non-greenhouse gas
emitting electric power generation while it has reliably and
economically contributed almost 20 percent of electrical
generation in the United States over the past two decades. We
believe that nuclear energy will continue to be an important
part of the Nation's low carbon future. Finding a solution to
managing and disposing of the Nation's high-level radioactive
waste and used nuclear fuel is a long-standing challenge. Such
a solution, however, is necessary to assure the future
viability of this important carbon-free energy supply and
further strengthen America's standing as a global leader on
issues of nuclear safety and nonproliferation.
The administration's strategy for the management and
disposal of used nuclear fuel and high-level radioactive waste
provides a framework for the administration and Congress to
continue to develop the path forward for disposal of nuclear
waste and provides near-term actions to be implemented by the
Department of Energy pending enactment of new legislation. We
are facing a unique opportunity to address the needs of the
back end of the nuclear fuel cycle by setting it on a
sustainable path providing the flexibility needed to engage
potential host communities and anticipate advancements in
technology development. The administration is ready and willing
to engage with both chambers of Congress to move forward.
Since Secretary Moniz testified before this subcommittee,
the U.S. Court of Appeals for the DC Circuit has issued a writ
of mandamus ordering the NRC to resume its review of the Yucca
Mountain license application. On August 30, the NRC issued an
order inviting all participants in the license proceeding to
provide by September 30 their views as to how the agency should
proceed. The Department is carefully considering how to respond
to this order.
As we have long made clear, however, the Department will
comply with NRC or judicial orders that are directed to DOE
subject of course to the availability of appropriated funds.
And as recently reported to the subcommittee, the Department
currently has approximately 16 million in unobligated funds
originally appropriated for Yucca Mountain licensing
activities, and in addition, the Department has approximately
30 million in obligated on cost of balances already committed
on existing contracts.
As we have said consistently, any workable solution for the
final disposition of used fuel and nuclear waste must be based
not only on sound science but also on achieving public
acceptance at the local, State, and tribal levels. When this
administration took office, the timeline for opening Yucca
Mountain had already been pushed back by two decades with no
end in sight. It was clear that stalemate could continue
indefinitely. Rather than continuing to spend billions of
dollars more on a project that faces such strong opposition,
the administration believes a pathway similar to that that the
Blue Ribbon Commission laid out, a consent-based solution, is
one that meets the country's national and energy security needs
and has the potential to gain the necessary public acceptance.
The administration looks forward to working with this
committee and other Members of Congress on crafting a path
forward for used nuclear fuel and high-level waste management
and disposal. This progress is critical to assure that the
benefits of nuclear power are available to current and future
generations.
And I will be pleased to answer questions that you folks
may have.
[The prepared statement of Mr. Lyons follows:]
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Mr. Shimkus. I thank you.
Now, before I start my questions, Madam Chairman, I am
going to hand you four documents that I will be referring to in
my questions. And I would like to recognize myself for 5
minutes.
Madam Chairman, have you read the June 6, 2011, NRC
Inspector General's report that I referred to in my opening
statement?
Ms. Macfarlane. Sorry. Can you repeat the question?
Mr. Shimkus. It is right in front of you. Have you ever
read that June 6, 2011, NRC Inspector General's report that I
referred to in my opening statement? And if you would, could
you please read----
Ms. Macfarlane. I----
Mr. Shimkus [continuing]. The highlighted excerpt from the
IG's report on page 28 regarding comments by the NRC's
assistant general counsel?
Ms. Macfarlane. Sure. You want me to read this?
Mr. Shimkus. Please.
Ms. Macfarlane. Sure. And for the record I have not read
this before.
Mr. Shimkus. OK. Then it is instructional to do so.
Ms. Macfarlane. Good. She said that as of--she, I assume,
is the assistant----
Mr. Shimkus. Assistant general counsel.
Ms. Macfarlane [continuing]. General counsel. She said that
``as of July 15, 2010, Volume 3 had been provided to the NMSS
director and was reported to be substantially complete.
However, the document was undergoing additional editing and
formatting, including a final quality control check to assure
appropriate nomenclature, proper numbering and sequencing, and
other minor administrative changes that may be necessary to
ensure completeness and accuracy.''
Mr. Shimkus. Thank you. So Volume 3 was substantially
complete except for editing and formatting. In fact, when
Chairman Jaczko directed the staff to stop their work on
October 4, 2010, the NRC was within about 3 months of issuing
Volume 4, within 5 months of issuing Volume 2, and just 6
months from releasing Volume 5. And you kind of mentioned in
your opening statement at various stages. According to the
NRC's internal schedule, which this committee examined in our
June 2011 hearing with the IG.
Now, I want to turn your attention to a commission
memorandum and order labeled CLI-09-14, which you also have
with you, which states, ``today, we respond to appeals of the
Construction Authorization Board's first prehearing conference
order.''
Ms. Macfarlane. I don't have it I am afraid.
Mr. Shimkus. Oh. OK. I am sorry you don't have that. We can
get it to you.
But now, according to Federal regulations Part 2, Appendix
D, which is the schedule for NRC to conduct the construction
authorization proceeding, 150 days after the application was
docketed, the Commission was supposed to rule on appeals for
the first prehearing conference order, which we know the
Commission did based upon CLI-09-14. Chairman Macfarlane, would
you please read the next item, which is highlighted on the
schedule, which is the next step to take.
Ms. Macfarlane. Certainly, yes. So this is Appendix D to
Part 2 of the 10 CFR. And this is the schedule for proceeding
with--this is the process laid out----
Mr. Shimkus. Right.
Ms. Macfarlane [continuing]. In the regulations.
Mr. Shimkus. Transparent.
Ms. Macfarlane. Right.
Mr. Shimkus. On your Web site--
Ms. Macfarlane. Exactly.
Mr. Shimkus [continuing]. For everyone to see.
Ms. Macfarlane. So on day 548 the action is that the
Nuclear Regulatory Commission staff issues the Safety
Evaluation Report.
Mr. Shimkus. Great. Thank you. This committee has
previously established that NRC has enough funding to complete
and release the SER in our February 28, 2013, so we are not
going to allow you to commingle this financial debate based
upon other activities. Our point is confirmed in testimony that
you have the funds available to finish the SER.
In our February 28, 2013, hearing you agreed that if the
Court required NRC to move forward, you would do so. As you
have just read, releasing the SER is the very next action for
the NRC to take. Given that the NRC was required to begin
complying with the writ of mandamus last week on September 3,
is the NRC currently taking any action to complete the
remaining SER volumes?
Ms. Macfarlane. We have taken action already. The
Commission is operating expeditiously on this matter. We issued
an order that requested----
Mr. Shimkus. But what have you done other than asking for
other people to weigh in? What have you done in this month to
start moving the SER forward?
Ms. Macfarlane. Thank you for the question. We have asked
our staff to provide us with budget information. We have to
understand the lay of the land in terms of the----
Mr. Shimkus. And you will be providing us monthly updates--
--
Ms. Macfarlane. And we will provide you monthly----
Mr. Shimkus. And we will ask you to provide monthly updates
on exactly what we are doing to move the SER forward?
Ms. Macfarlane. We will provide you monthly updates on
where we are going and what we are doing. And I believe the
first monthly update will begin in the middle of October.
Mr. Shimkus. And my last question, the ``transparency
page'' of the NRC Web site states, ``the U.S. Nuclear
Regulatory Commission has a long-standing practice of
conducting its regulatory responsibilities in an open and
transparent manner.''
Ms. Macfarlane. Um-hum.
Mr. Shimkus. In that way, the NRC keeps the public informed
of the agency's regulatory licensing and oversight activities,
which you stated earlier. Dr. Macfarlane, especially in light
of the NRC's commitment to transparency, you don't really see a
scenario where the NRC will decide not to release a Safety
Evaluation Report, do you?
Ms. Macfarlane. You know, we are still deliberating on that
so I can't say----
Mr. Shimkus. So you might find a way in which you might
not----
Ms. Macfarlane. I can't say one way or the other but I----
Mr. Shimkus. But the court has said you must and we know
you have the money.
Ms. Macfarlane. The court has said we must proceed with the
licensing.
Mr. Shimkus. And you have already testified that you have
the money----
Ms. Macfarlane. We----
Mr. Shimkus [continuing]. For the Safety Evaluation Report.
Ms. Macfarlane. We testified, I believe it was last
spring--
Mr. Shimkus. You testified----
Ms. Macfarlane. Yes, that there----
Mr. Shimkus [continuing]. That you would comply with the
law.
Ms. Macfarlane. I certainly did.
Mr. Shimkus. And you would submit the Safety Evaluation
Report, and you also testified that we have the money to do so.
So the question is you don't see any scenario that you would
not do this?
Ms. Macfarlane. We are still taking views from the
parties----
Mr. Shimkus. So you do see a scenario where you may not do
this?
Ms. Macfarlane. We are still taking views from the parties
and we will----
Mr. Shimkus. Madam Macfarlane, are you going to comply with
the law based upon your previous statements and the fact that
you have money available to do so?
Ms. Macfarlane. Of course we will comply with the law.
Mr. Shimkus. Thank you very much.
I would like to now recognize Mr. Tonko for 5 minutes.
Mr. Tonko. Thank you, Chair Shimkus.
I would like to thank Chair Macfarlane and Dr. Lyons for
appearing before the subcommittee today, but I regret that we
didn't wait a few weeks to let NRC and DOE take some time to
figure out a path forward in light of the Court of Appeals
decision. I therefore ask about the status of the proceedings
so that Members will have a better sense of what questions you
are able to answer at this time.
On August 30, NRC issued an order inviting all participants
to the Yucca Mountain proceeding to provide their views as to
how the Commission should continue with the licensing process.
This is an opportunity for both the opponents and supporters of
Yucca Mountain to make suggestions to the Commission about how
they should proceed. The deadline for providing their views, I
believe, is September 30.
So, Chair Macfarlane, are you able to testify today about
the likely outcome of that stakeholder process?
Ms. Macfarlane. No.
Mr. Tonko. And, Dr. Lyons, has DOE responded to this order
yet?
Mr. Lyons. No, Mr. Tonko.
Mr. Shimkus. Is your mike on or is it pulled close enough
to you?
Mr. Lyons. I am sorry. Is this better?
Mr. Shimkus. Yes, sir.
Mr. Lyons. OK. Mr. Tonko, we are awaiting action by the NRC
with regard to their decision before we decide how to proceed
with the licensing effort.
Mr. Tonko. OK. Thank you. The Commission also directed the
NRC staff to gather pertinent information, budget information,
during this 30-day comment period. There is only $11 million
available so you will need to know what the price tag would be
for the range of possible activities. Chair Macfarlane, are you
able to give definitive estimates today about the cost of
various options without the budget information that is
currently being developed?
Ms. Macfarlane. No, I am not. That is why we asked the
staff to collect the information for us.
Mr. Tonko. Thank you. And how long after that September 30
deadline will it take for NRC to compile all of the views and
produce a plan for responding to that court decision?
Ms. Macfarlane. I am not certain at this point in time but
we will endeavor to work as expeditiously as possible.
Mr. Tonko. I thank you for that. It makes sense for NRC to
await the outcome of this public comment process before
reaching conclusions about the very best way to spend the
agency's limited resources. You should get the facts and do the
stakeholder outreach before making decisions.
So the story of the Yucca Mountain repository is a story of
one group of stakeholders believing that they could ignore the
concerns of another group of stakeholders. That is a mistake we
do not want to repeat.
There is the separate question of whether the Court of
Appeals decision will be appealed. Chairman Macfarlane, has a
window for NRC to appeal the court's decision closed?
Ms. Macfarlane. I am sorry. Can you repeat the question?
Mr. Tonko. Sure. Has the window for NRC to appeal the
court's decision closed?
Ms. Macfarlane. No, it has not.
Mr. Tonko. OK. And will you be able to share NRC's plans to
appeal or to not appeal the decision with us today?
Ms. Macfarlane. No, I cannot.
Mr. Tonko. Other parties may choose to appeal. Is that
correct?
Ms. Macfarlane. That is correct. Other parties may choose
to appeal.
Mr. Tonko. So we don't even know whether the Court of
Appeals decision will be the final answer in this case?
Ms. Macfarlane. That is correct.
Mr. Tonko. In many ways, the Department of Energy's
planning is contingent upon NRC determining its next step. Dr.
Lyons, what actions can DOE take with regard to the license
application before NRC determines how to proceed?
Mr. Lyons. I am sorry. Could you repeat that question? I am
not--
Mr. Tonko. Sure. What actions can DOE take with regard to
the license application before NRC determines how to proceed?
Mr. Lyons. We really are in a position where we must await
the actions by the NRC, understand their path forward, and what
we may be required from the Department of Energy, and only then
can I answer that question. It would be premature now.
Mr. Tonko. Thank you. And, Chair Macfarlane, would you have
been in a better position to answer the subcommittee's
questions about implementation of the court's order in a few
weeks?
Ms. Macfarlane. In a few weeks, yes.
Mr. Tonko. And, Dr. Lyons, what about you?
Mr. Lyons. Yes. Once we understand the path forward
identified by the NRC, we can then evaluate how we will
respond.
Mr. Tonko. Thank you. Well, I hope that members of the
subcommittee will be mindful of the position have placed
witnesses in by insisting that they testify today rather than
in a few weeks. Members want to know what the plan is for
responding to the court's order but the plan hasn't been
developed yet. The court issued its order less than 2 weeks ago
and the agencies need to examine the options and the cost of
those options to see what can be done with the limited funds
available.
These are questions that will be answered in due time I am
convinced. Unfortunately, it seems obvious that we won't get
those answers today.
And with that, I will yield back, Mr. Chair.
Mr. Shimkus. The gentleman yields back his time. I would
just remind my colleague that they have had 30 days since the
court order, and we can always have them come back, which I am
sure they would be happy to do so.
Mr. Tonko. I am talking about valuable use of their time in
a way that brings into working order all of the requirements
that have been asked.
Mr. Shimkus. And I am talking about oversight by the
legislative branch over the executive branch and independent
agencies.
I yield now 5 minutes to Mr. Gingrey for his statement.
Mr. Gingrey. I thank the chairman for yielding and I agree
with him completely the importance of the oversight of the
legislative branch over the executive branch, and as he just
pointed out, you have had 30 days. And why should we waste
additional time, therefore the timeliness of this hearing. And
I do appreciate both of you being here.
I strongly agree that the NRC should immediately work to
issue the Safety Evaluation Report. The cost of completing and
publicly releasing the SER has been estimated to be $6.5
million. Now, that seems a little high to me, but as I
understand it, the Safety Evaluation Report is comprised of 5
volumes. Volume 1 was completed and released so that means
there are 4 volumes left, as pointed out by Chairman Shimkus.
Volume 3 was reportedly substantially complete. On page 27, the
Inspector General's June 6 report, the IG report that the NMSS
director believed that minimal resources were needed to
complete the review process and issue Volume 3. She also
commented that by September 30, 2010, NRC had all the
information it needed from DOE to complete the SER.
To Chairman Macfarlane, please answer yes or no, Chairman
Macfarlane. So Volume 3 is substantially complete and requires
minimal resources, correct? Yes or no?
Ms. Macfarlane. I have not seen Volume 3 and I understand
it is in some stage of completion but I do not know the entire
stage of completion. I do not know how much, how many resources
it will take to complete. That is why we have asked the staff
to go and make some estimates--
Mr. Gingrey. Yes, but therefore, it shouldn't take long to
issue that one. Is that also correct?
Ms. Macfarlane. It depends largely on what the staff says
it needs. I think we need to understand something to begin with
here that the staff that we had originally assigned to work on
the Safety Evaluation Report have since been reassigned; a
number of them have retired. And so it will take some time to
reassemble this group. Being mindful that there are a number of
staff who are working now on mission-critical issues and we
need to be careful that we don't--
Mr. Gingrey. Well, it seems----
Ms. Macfarlane [continuing]. Lose that safety--
Mr. Gingrey. Madam Chairman, it sounds like what you are
saying is it depends heavily on whether they are go-getters or
foot-draggers, this replacement team that you are talking
about.
Dr. Lyons, yes or no, is it your understanding that
completing the SER doesn't require any additional information
by the Department of Energy, thereby not costing the Department
of Energy, DOE, any additional resources? Yes or no?
Mr. Lyons. I can't respond to that, sir, because it would
depend on whether the NRC asks us additional questions if they
were to choose to move in that direction. I haven't seen the
SER either and I have no idea what NRC may request of us.
Mr. Gingrey. Well, during the June 14, 2011, hearing, this
committee examined the NRC internal schedule for releasing the
SER volumes. When former Chairman Jaczko shutdown the staff's
review October the 4th, 2010, Volume 2 was about 5 months for
being published. Now, this was 2010. Volume 4 was a little over
3 months from being published, and Volume 5 was less than 6
months from being published. That is a fact.
Chairman Macfarlane, given these volumes were nearly ready
and do not require any input from DOE, why should it cost $6.5
million to complete and publish them?
Ms. Macfarlane. I don't know how much it will cost to
complete and publish these. That is why we have asked the staff
to give us estimates of what they need in terms of resources
and--
Mr. Gingrey. Well, do you know this, Dr. Macfarlane? How
much money will be spent seeking comments from the parties?
Ms. Macfarlane. A de minimis amount.
Mr. Gingrey. Does that money come from the Nuclear Waste
Fund?
Ms. Macfarlane. I am going to take that one for the record
just to be sure.
Mr. Gingrey. If you will get back to me on that----
Ms. Macfarlane. Sure.
Mr. Gingrey [continuing]. I would greatly appreciate it.
And lastly, Dr. Macfarlane, will you commit to having the
Commission approve all NWF expenditures, Nuclear Waste Fund
expenditures?
Ms. Macfarlane. Have the Commission--
Mr. Gingrey. Will you commit to having the Commission
approve all Nuclear Waste Fund expenditures?
Ms. Macfarlane. I am going to have to take that one for the
record, too. I need to find out what the required process is in
regulations and in the law.
Mr. Gingrey. Well, I know you can't get that to me in 2
seconds, but I would very much appreciate that information.
Ms. Macfarlane. Absolutely.
Mr. Gingrey. I yield back.
Mr. Shimkus. The gentleman yields back the time.
The chair now recognizes the chairman emeritus, Mr.
Dingell, for 5 minutes.
Mr. Dingell. Chairman, I commend you for the hearing. I
thank you for the recognition. My questions will require mostly
yes-or-no answers.
And I want to begin by saying we have a fine mess on our
hands. The taxpayers are paying, ratepayers are paying, money
is being dissipated, work that should be done is not being
done.
Madam Chairman, I don't blame you for this. This antedates
your work and a lot of it originates in a place in the United
States Senate.
In any event, according to a recent ruling by the DC
Circuit Court in testimony you have given to this subcommittee,
NRC has approximately $11 million in funding for the licensing
review process. Since you last testified before this
subcommittee in February, has the NRC spent any of these funds?
Yes or no?
Ms. Macfarlane. Since the court decision, the NRC spent a
de minimis amount. We are now focused on going forward in
determining how to spend that remaining amount.
Mr. Dingell. Would you submit to us a statement of how much
has been spent and how much remains in that fund?
Now, Madam Chairman, I understand NRC has an open comment
period soliciting feedback on how the Commission should move
forward in light of the DC court's recent decision. One major
step in the process is completion of the Safety Evaluation
Report. One of the 5 volumes has already been completed and it
is my understanding that the technological evaluation reports
were completed on 3 of the 4 remaining volumes. Does NRC have
staff in place to that is qualified to take these technical
evaluations and complete the safety evaluations with the
appropriate recommendations? Yes or no?
Ms. Macfarlane. We don't have them all in place now. We are
asking the staff to get back to us about staffing and resource
needs.
Mr. Dingell. Would you submit to us, please, a statement of
the status of those matters for the record?
If NRC were only to focus on completion of the Safety
Evaluation Reports, do you believe you have enough funds to
complete the work on the reports? Would you please answer yes
or no?
Ms. Macfarlane. As referenced earlier in previous
testimony, we said that it would cost to 6.5 million to
complete the SER--
Mr. Dingell. So the answer is----
Ms. Macfarlane [continuing]. But we have asked our staff to
update that number.
Mr. Dingell. Would you submit us a statement of the status
of those funds, please?
Now, Mr. Lyons, is DOE collecting fees into the Nuclear
Waste Fund? Yes or no?
Mr. Lyons. Yes, the funds continue to be--
Mr. Dingell. Thank you. The DC Circuit Court decision in
2012 ordered DOE to reevaluate the fee assessment. Since Yucca
Mountain facility has not moved forward in recent years and
there is still no statutorily alternative site for a permanent
high-level waste repository, has DOE considered whether it
should continue to assess the fee? Please answer yes or no.
Mr. Lyons. Mr. Dingell, as Secretary Moniz discussed when
he was with this subcommittee, the fees continue to be
collected because they--
Mr. Dingell. So----
Mr. Lyons [continuing]. Reference a service of disposal of
the used fuel.
Mr. Dingell. Is that a yes or no, sir? My time is very
limited. Please, yes or no? To the question, yes or no?
Mr. Lyons. Again, these--
Mr. Dingell. OK. Would you please submit additional
information on that matter for purposes of the record?
Now, because the Federal Government has not upheld its
responsibility to provide a permanent high-level nuclear waste
repository, it is my understanding that orders of nuclear
facilities are suing the Federal Government for compensation to
store waste on sites and locations across the country.
According to the February 2012 report by CRS, there has been
over $2 billion in awards and settlements as a result of these
claims. These payments come from the judgment funded by
taxpayers' dollars. The Department of Justice has spent
approximately 200 million defending the government against
these claims.
Now, Madam Chairman, I urge NRC to focus on the completion
of the Safety Evaluation Reports. Should the reports determine
that the Yucca Mountain facility is appropriate, hopefully
opponents will allow the process to move forward. Should the
reports deem the Yucca Mountain unsafe, I think this committee
and I are prepared to work with all of our colleagues to amend
the Nuclear Waste Policy Act and to find a viable path forward
in order to deal with the safe disposition of nuclear waste. We
have to find a way forward and I believe that the completion of
the Safety Evaluation Report will significantly help us follow
the path forward. Will you please comment on that with a yes or
no? Do you agree or not?
Ms. Macfarlane. Completion of--
Mr. Dingell. Just yes or no.
Ms. Macfarlane. Completion of the Safety Evaluation Report
is one step in the overall process and we are already receiving
other--
Mr. Dingell. Madam Chairman, I am going to ask you just yes
or no and then I am going to ask you to submit a further
statement for the record on the matter.
Ms. Macfarlane. It is a complex situation. I can't answer
yes or no.
Mr. Dingell. All right. Well, this demonstrates what a
magnificent mess we have here, and I don't blame you, Madam
Chairman, but you sure have got to get busy to get it fixed.
Thank you, Mr. Chairman.
Mr. Shimkus. And I thank my colleagues.
The chair now recognizes the gentleman from Kentucky, Mr.
Whitfield, for 5 minutes.
Mr. Whitfield. Chairman Shimkus, I want to thank you very
much for having this important hearing.
You know, my humble opinion, the Obama administration has
really established a pattern of disregarding laws that they do
not agree with.
Now, in 1987 Congress passed the Act identifying Yucca
Mountain as a primary national repository site. Prior to that,
DOE looked at nine sites, but in '87 Congress acted. And in
this decision I would like to just read some excerpts from this
decision that was just issued. ``The Nuclear Regulatory
Commission has continued to violate the law governing the Yucca
Mountain licensing process. The statutory deadline for the
Commission to complete the licensing process and approve or
disapprove the Department of Energy's application has long
since passed. Yet the Commission still has not issued the
decision required by statute. Indeed by its own admission the
Commission has no current intention of complying with the law.
Rather, the Commission has simply shut down the review and
consideration of the process.''
Now, from a taxpayer standpoint, $15 billion has been spent
on Yucca Mountain, and in 1983, the government entered into
contracts with the 104 nuclear power plants roughly that the
government would take possession of that material, that waste
material in 1998. That time has come and gone and the Federal
Government was sued because they did not take possession
because Yucca Mountain was not completed. And so in addition to
the $15 billion spent on Yucca Mountain, we now have judgments
that, by 2020, is supposed equal $19 billion because the
government cannot meet its contractual obligation.
And so here the taxpayers are with a $17 trillion Federal
debt, 34 billion spent on Yucca Mountain, and the court is
saying that the Nuclear Regulatory Commission, which you are
now responsible for, Chairman Macfarlane--you have been there
for a year and a half--and I don't blame you for this because
you did not take the action that precipitated these lawsuits,
but with all of this money spent and with a clear violation of
the Federal law, I would hope that you and Mr. Lyons--Mr. Lyons
has been at the Department of Energy since the beginning of the
Obama administration, I believe. I hope that you will do
everything possible to expedite this, not try to rewrite the
law, not try to change other people's opinion, but make a
decision based on the safety issues. And even the court says
there is $11 million available right now to start this process.
And so can you commit to the committee that you intend to
move forward to try to obey the law?
Ms. Macfarlane. Certainly. We commit to moving as
expeditiously as possible.
Mr. Whitfield. And I hope that you will direct your staff
to do the same.
Ms. Macfarlane. We have already done so.
Mr. Whitfield. Do you have any comments, Mr. Lyons?
Mr. Lyons. I would only comment that the dollar values that
you cite are precisely the reason why the administration feels
strongly that it is important that we move forward on a
workable solution as opposed to spending still more money on an
unworkable solution.
Mr. Whitfield. Well, I mean it is a Federal law right now
that Yucca Mountain is the designated site. So I don't think
that you all have a right to go around and--I mean, I know what
the Blue Ribbon Commission said. They want to just start all
over again, but we have a Federal law on the books. The courts
have said that it needs to be enforced and the court has said
that the Nuclear Regulatory Commission is violating the law. So
with all due respect to the great work that you all do, the
great responsibility that you have, I do think you also have a
responsibility to be leaders and enforce the law and try to
protect the taxpayers' money.
And the President frequently talks about an all-of-the-
above policy. I support an all-of-the-above energy policy. And
yet what he is doing in the area of nuclear would indicate that
he is not really committed to that and we know that you cannot
build a new coal-powered plant in America, the only country in
the world where you cannot do so. So how can he say that he is
for an all-of-the-above energy policy?
And my time is expired.
Mr. Shimkus. The gentleman's time is expired.
The chair now recognizes the ranking member of the full
committee, Mr. Waxman, for 5 minutes.
Mr. Waxman. Thank you very much, Mr. Chairman.
I would like to ask Chairwoman, Chair Macfarlane?
Ms. Macfarlane. Chairman.
Mr. Waxman. Chairman Macfarlane, you have testified today
that the NRC is still formulating its response to the recent
court ruling and that it is hard to discuss a plan that isn't
yet created. Therefore, before turning to Yucca Mountain, I
want to ask you and take this opportunity to inquire about some
issues that are important to the people of California about
recent events at the damaged Fukushima nuclear power plant in
Japan.
Over the last several months, news reports have painted a
troubling picture of the situation at Fukushima. The Tokyo
Electric Power Company, TEPCO, announced that pits and tanks
holding vast amounts of radioactive wastewater had begun
leaking. Contaminated water is flowing into the Pacific Ocean
at the rate of about 300 tons per day. At the same time,
Japanese officials have said that TEPCO may need to release
contaminated water from the storage tanks into the ocean. Some
news reports have raised concerns about whether radiation
entering the Pacific Ocean from Fukushima could eventually
reach the shoreline of the United States and its territories.
Chairman Macfarlane, what impact if any will the
contaminated water from Fukushima have on America's West Coast?
What assurances can I give my constituents at this time?
Ms. Macfarlane. Thanks for the question. This is an
important issue and I know it has been in the news a lot lately
so I know it is of concern to many people.
Contaminated water has essentially, my understanding, been
leaking from the Fukushima site since the beginning of the
accident. One thing people should keep in mind is that the
largest releases of contamination of radioactive materials were
2 \1/2\ years ago, and they were significantly larger than
anything that is being released on a daily basis now. But the
good news is the Pacific Ocean is very large and any
radionuclides that get into the Pacific Ocean near Fukushima
will be diluted by many thousands of times by the time they get
anywhere near the West Coast of the United States. And so in
the end there will be very little harm or negligible harm to
the West Coast of the United States. So people in the U.S.--
Mr. Waxman. Well, that is comforting.
Ms. Macfarlane. --can remain assured that they will be OK.
Mr. Waxman. It appears that TEPCO did not adequately
anticipate the challenges of managing vast amounts of
radioactive wastewater over a long period of time. This raises
questions about additional lessons that we can learn from the
Japanese experience. What is NRC's Fukushima task force doing
to review the wastewater challenges at the Fukushima plant and
apply any lessons learned to U.S. facilities?
Ms. Macfarlane. Well, we are certainly and we have been
taking lessons through the entire accident and now as well, and
my understanding is that some of our research folks are looking
into the situation of dealing with large volumes of
contaminated water after an accident now.
Mr. Waxman. So you are continuing to prioritize preventing
an accident at U.S. facilities but NRC has tasked some
researchers with a question of how better to handle large
primes of radioactive wastewater?
Ms. Macfarlane. Yes.
Mr. Waxman. Is that your position?
Ms. Macfarlane. Yes. We are----
Mr. Waxman. OK. Thank you.
Yesterday, Ranking Member Tonko and I sent a letter to
Chairman Upton asking that the committee schedule a hearing to
review the recent events at Fukushima and the lessons we can
learn from them, and I am hopeful we can agree that this is a
topic worthy of bipartisan examination.
Turning back to Yucca Mountain, the majority called this
hearing to examine the recent court decisions requiring NRC to
restart the license review process but the court didn't resolve
the most fundamental outstanding question about the future of
this possible waste repository.
Dr. Lyons, did the court decision alter the State of
Nevada's long-standing opposition to the project?
Mr. Lyons. Well, I am not sure I am the best equipped to
answer that question, sir, but not to my knowledge.
Mr. Waxman. OK. The President's Blue Ribbon Commission
recommended that Congress create a new organization devoted
entirely to managing the nuclear waste problem. Did the court
decision determine what that organization should look like?
Mr. Lyons. The court decision did not address that, sir.
Mr. Waxman. We also need to fix several funding and
appropriations problems to make sure that the funds put aside
for constructing a repository or storage facility can actually
be used for that purpose. Did the court resolve those issues?
Mr. Lyons. No, sir.
Mr. Waxman. The court decision doesn't resolve any of the
major policy questions facing this committee. We need to heed
the advice of the Blue Ribbon Commission: adopt a new consent-
based approach to tackling the Nation's nuclear waste problem.
Nothing in the court decision changes the fact that Congress
needs to act in a bipartisan manner to accomplish this.
Thank you, Mr. Chairman.
Mr. Shimkus. The gentleman's time is expired.
The chair now recognizes the gentleman from Ohio, Mr.
Latta, for 5 minutes.
Mr. Latta. Thank you, Mr. Chairman.
And thank you very much to our witnesses for being with us
today. I greatly appreciate hearing your testimony today.
Chairman Macfarlane, if I could pose my first question to
you, and if I may, I am going to have to read through a little
bit here. But on April 11, 2011, from an order from the Nuclear
Regulatory Commission's Atomic Safety and Licensing Board, it
stated that in order to fulfill the responsibility to preserve
the document discovery materials residing on the LSN, a system
mandated by 10 CFR Part 2, Subpart J, et cetera, it said the
board directs pursuant to its authority under the 10 CFR that
each party shall take the following actions: preserve all LSN
documents in PDF format, submit its LSN document collection
together with the associated biographic files to the NRC Office
Of Secretary on optical storage media specified in guidance for
electronic submissions to the Commission for the inclusion in
the docket, and then also for large collections taking more
than a month to complete the PDF to submit those documents
converted a little bit later. But it says that once received,
the Secretary shall install the documents and associated
biographic information into a separate LSN docket library on
ADAMS for public access via www.NRC.gov.
Then a little later at another date it states that on May
12, 2012, an oral argument from the Aiken County case, one of
the attorneys for the Commission stated, ``in other words, we
would, presuming that we would order us to take back up we may
not activate the LSN; we may simply treat the case as a larger
paper case.''
I guess, Chairman Macfarlane, my question then is if I
understand this correctly, the LSN documents are available to
all parties and the public at this time, and hence, the LSN
would not need to be immediately reconstituted prior to the
resumption of the proceeding. Is that correct?
Ms. Macfarlane. The LSN documents are not available at this
point in time. They are in a safe from my understanding. And so
the LSN network would have to be reconstituted as part of
moving forward. That is required in our regulations.
Mr. Latta. OK. But could you explain that different then
from this order from April 11, 2011? If these----
Ms. Macfarlane. I am going to have to take that for the
record so I can see that order and give you a proper----
Mr. Latta. OK. I tell you what, we will get this to you
because we need to get that answered because it is saying here
that once received, and then when they are talking about the
NRC Office of the Secretary shall install the documents and
associated biographic information into a separate LSN docket
library of ADAMS for public access via www.NRC.gov.
Ms. Macfarlane. Yes.
Mr. Latta. So we will get this to you, but if we will get
an answer to that, please.
Ms. Macfarlane. Absolutely.
Mr. Latta. And right now with the DOE's NRC action
shutdown, the Yucca Mountain program and the license review
triggered the 2 mandamus cases and the waste case before the DC
Circuit Court, Dr. Lyons, if I could ask, since DOE has really
caused, you know, the mess that is on out there by attempting
to withdraw the license and the court has now corrected it,
will you commit to this committee that DOE will not attempt to
slow or obstruct the resumption or pace of the licensing
review?
Mr. Lyons. At this point I can commit that we will continue
to evaluate the NRC's decision and formulate a path forward.
And I am not sure I heard all of your question.
Mr. Latta. OK. But the question is when you say that you
are going to commit to go forward, but you are not going to be
slowing the process down to get to this decision, are you,
where we are supposed to be?
Mr. Lyons. We have committed to respond to NRC requests
within available appropriations.
Mr. Latta. Well, we really want to make sure because there
is a lot of money being spent out there and it is taxpayers'
dollars, and we want to make sure that this is not slowed or
obstructed and we want to make sure that the pace is going on
in the licensing review. So that is one of the things we would
like to see that is committed from DOE.
And, Mr. Chairman, I see my time is expired and I yield
back the balance of my time.
Mr. Shimkus. The gentleman yields back his time.
The chair now recognizes the gentleman from Texas, Mr.
Green, for 5 minutes.
Mr. Green. Chairman Macfarlane, in the record of the
hearing before this subcommittee on February the 28th, you and
your fellow commissioners committed to honor the decision of
the Court of Appeals for the DC Circuit Court concerning
resumption of Yucca Mountain licensing process. Recognizing
that commitment, the court statement regarding the need to
comply with Congress direction on the Nuclear Waste Policy Act,
do you believe the agency should appeal the decision?
Ms. Macfarlane. I can't say at this time. The period for
seeking review hasn't expired so it wouldn't be appropriate for
me to comment.
Mr. Green. Besides the August 30 commission order, what
actions have been taken so far by the agency to respond to the
court's decision?
Ms. Macfarlane. We have issued an order asking the parties
and participants to comment on how to proceed, and we have also
requested from the staff budget information on how much it
would cost to move forward to expend the 11 million.
Mr. Green. The Safety Evaluation Reports will inform the
public and Congress of the results of NRC's extensive review of
the license application. A number of entities have recommended
that completion and publication of the SER should be the NRC's
first priority. What is your view?
Ms. Macfarlane. It is a significant part of the process
that we talked about earlier that is set out in Appendix D, but
it certainly doesn't constitute the entire licensing decision.
The SER will not in and of itself provide a licensing decision.
We have to also complete the adjudicatory hearing and the
Commission has to hear contested and uncontested issues.
Mr. Green. OK. In my opening statement I was concerned
about the funding. Parties in the Yucca Mountain licensing
procedures have suggested the NRC reconstitute the hearing
boards and restore the licensing network as a first priority.
In light of the fact that their only remains 11.1 million
available to NRC's review of the Yucca Mountain application, do
you believe that implementing these suggestions would deplete
those available funds without appreciably advancing the
agency's review and adjudication of the application?
Ms. Macfarlane. It would be inappropriate for me to comment
now because we are still collecting information on this.
Mr. Green. OK. Could you, when the time comes--I know if we
could get our committee----
Ms. Macfarlane. Certainly. The Commission will make all its
decisions public.
Mr. Green. Previously, NRC estimated 6 to 8 months was
needed to complete all the volumes of the SER at the cost of
6.5 million. The budget is within the appropriated unobligated
funds now available at the Commission. What steps have you
taken to evaluate the basis for the 6.5 million estimate? Do
you believe that 6.5 million is accurate?
Ms. Macfarlane. We have asked the staff to go back and give
us an updated estimate of that, and so we are waiting to see
what the staff says.
Mr. Green. Are there any other efficiencies that the agency
can adopt to it reduce the cost of completing the SERs without
sacrificing their quality?
Ms. Macfarlane. Well, we are in the process of collecting
all that information now, so we will have a better answer for
you in some time.
Mr. Green. What schedule do you believe is reasonable for
the NRC to complete and publish the SERs?
Ms. Macfarlane. Again, that is information that we are
collecting right now. I can't comment.
Mr. Green. Given the import of the SERs as a part of the
record, the NRC's adjudicatory proceedings, would you agree
that the resumption of the hearings should occur only after the
completion of the SERs?
Ms. Macfarlane. Again, we have to hear from all of the
parties and participants to the proceeding and we have to get
information from the staff on resources required.
Mr. Green. The Yucca Mountain license application utilized
the total system performance assessment as a methodology to
assess the long-term performance of the repository's
acceptability. Chairman Macfarlane, before you became a member
of the Commission, you were critical of that methodology. Can
you assure the public that you can objectively evaluate the
license application and include its reliance on the TPSA?
Ms. Macfarlane. Absolutely. I have an open mind on this
matter--on the Yucca Mountain licensing matter and I will
maintain an open mind on it.
Mr. Green. When do you expect to be able to issue an order
or a staff requirements memorandum announcing the Commission's
response to the court's decision?
Ms. Macfarlane. Well, we already did issue one order----
Mr. Green. OK.
Ms. Macfarlane [continuing]. Asking the parties to comment
and requesting the staff to collect budget information, and
then the next steps I can't tell you exactly when we will----
Mr. Green. So----
Ms. Macfarlane [continuing]. But we are working as
expeditiously as possible.
Mr. Green. So there is no time frame on the staff reporting
back?
Ms. Macfarlane. The staff will report back and the parties
will comment by the end of September. September 30 I believe is
the close date for that information.
Mr. Green. OK. Mr. Chairman, thank you. Obviously, we need
some more hearings.
Mr. Shimkus. Thank you.
And now the chair now recognizes the gentleman from West
Virginia, Mr. McKinley, for 5 minutes.
Mr. McKinley. Thank you, Mr. Chairman.
Several questions. One is I just was verifying the quote
that was given on August 21. It was kind of a revealing quote
from Senator Reid when the question was raised to him with a
news broadcast in Nevada about the thoughts of the court
decision. His response was ``as a result of political
compromise, we put some really bad judges on the circuit court
and they produced a 2 to 1 decision requiring the Nuclear
Regulatory Commission to license Yucca Mountain. Their opinion
means nothing. Yucca Mountain is dead. It is padlocked. Nothing
is going to happen there.''
Now, we have had 3 votes in Congress over the last year on
a vote of 4 to 1 ratio saying we want something to happen.
Well, was Harry Reid correct that nothing is going to happen?
It means nothing for the vote of the court and the vote of
Congress to take this action? Either one of you.
Ms. Macfarlane. I can't comment on the Senator's statement.
Mr. McKinley. You can comment your opinion. Was he correct?
I am just asking, was he correct?
Ms. Macfarlane. I can't comment on the Senator's statement.
Mr. McKinley. You don't know whether he was correct?
Ms. Macfarlane. I can't comment on the Senator's statement.
Mr. McKinley. OK. I hear you. Mr. Lyons?
Mr. Lyons. Well----
Mr. McKinley. Was he correct? Yes or no?
Mr. Lyons. I certainly can't comment on what the Senator
said. That is simply not appropriate. However, the court
decision stands and we are awaiting----
Mr. McKinley. Well, if you can't----
Mr. Lyons [continuing]. The NRC's review of the court
decision.
Mr. McKinley. I know your answer is on the thing but I was
just curious to see if you would say it aloud.
But let's go back to this. Under the regulations, there was
apparently an ability that the other States could override
Nevada or that Congress could override Nevada, so I am just
curious when they listen to the State of Nevada and this was a
decision made and has been endorsed now by congressional votes
that there is support, did you go back to the other 34 States
and ask them their opinion before, Mr. Lyons?
Mr. Lyons. I have to confess that I am not sure I am
following the line of your questioning, sir.
Mr. McKinley. Well, the issue comes down to whether or not
the definition of public support. If the public support of
Nevada overrides the--I believe there are 34 other States that
have spent nuclear fuel rods. Did you go back and ask them
whether or not they concurred with this decision to stop the
movement in Yucca Mountain? I think the answer is yes or no.
Did you go to the other 34 States and ask for their input?
Mr. Lyons. The administration has stated on many
occasions----
Mr. McKinley. Yes----
Mr. Lyons [continuing]. A workable solution is a path
forward.
Mr. McKinley. So I am going to assume unless you say
otherwise the answer is no. You only went to Nevada with that.
Can you tell me, if the Congress has acted this way, what
authority do you have just to deem away an act of Congress that
we are not going to do this, that we are not going to proceed?
The court has had to step in and make you do it.
Mr. Shimkus. If the gentleman would yield. And to the
members of the panel, you better take the questions seriously
because he is asking a question why didn't you comply with the
law? That is the basic question. If you are confused about what
Mr. McKinley is asking, he is asking why the NRC walked away
without a public hearing and not complied with the law and he
is asking you for the DOE perspective why did the
administration not comply with the law? And I think that is a
very serious charge.
Ms. Macfarlane. Let me say from the NRC's perspective that
we of course intend to follow the law. We are now following the
law. We are moving forward. We are forward-focused on this.
And in terms of your question of did you ask other States,
we have asked all parties to the legal proceeding and
participants to comment now moving forward.
Mr. McKinley. So the other States, they have agreed?
Ms. Macfarlane. It is up to them whether they comment.
Mr. McKinley. OK. Just one in closing in a few seconds I
have left on it, there was testimony earlier about in Michigan
and elsewhere but at least in Michigan there was some $600
million has been spent in the Yucca Mountain project out there.
If we don't advance this, are they going to be reimbursed? Or
what did the State of Michigan get for the $600 million that
the taxpayers spent at Yucca Mountain? What did they get for
that?
Ms. Macfarlane. You know, we as the NRC, our job is to
ensure that a repository application and the repository itself
would be safe and operate safely. That is our job. So in terms
of policy questions associated with the Nuclear Waste Fund,
that is something that I defer to the Department, to the
administration and the Congress.
Mr. McKinley. OK. I am sorry.
Mr. Shimkus. OK. The gentleman's time is expired.
The chair now recognizes the gentleman from California, Mr.
McNerney, for 5 minutes.
Mr. McNerney. Well, thank you, Mr. Chairman.
Chairman Macfarlane, it seems to me that the hearing we are
holding here this morning is premature. We should be holding
this hearing in 2 weeks or a month later, that you would be
able to answer a lot of questions that have been asked this
morning more satisfactorily. Would you agree with that?
Ms. Macfarlane. I think in a number of weeks or a month or
two, we will certainly be able to have more satisfying answers
for you.
Mr. McNerney. Would you be able to produce a more concrete
answer in terms of when you would be ready to answer the
questions that have been asked this morning?
Ms. Macfarlane. In a number of weeks or a month, certainly
after the time has expired for parties to comment and the staff
to get back to us after the end of September and after we have
a little bit of time to sift through those, we will have a much
better idea of what the plan is to move forward.
Mr. Shimkus. Would the gentleman yield? Not to take away
from your time, but the full commission will be coming back
this fall and that will give us an opportunity also to fully
vet this.
Ms. Macfarlane. End of October we will be back.
Mr. McNerney. Thank you.
Well, focusing funds on the Safety Evaluation Report is
presumably one of the options that the Commission will be
looking at but the safety report is just one of many steps
needed. You have mentioned a couple of these. There will need
to be an Environmental Impact Statement would need to be
supplemented, more than 300 claims would have to be conducted,
adjudicated, more than 100 depositions taken, and then there
would need to be evidentiary hearings, and then the final
decision will be made by the Commission. Is that about right?
Ms. Macfarlane. There are some other steps in there, too.
The Licensing Support Network that has gotten some discussion
this morning would have to be put back and there are some other
issues as well that the Environmental Impact Statement would
have to be completed and the supplement would have to be
completed as well.
Mr. McNerney. Dr. Lyons, even if the license were issued
sometime in the future, there would need to be more steps that
would have to happen before the repository would be
operational. For example, the State of Nevada is strongly
opposed to the project and they would need to issue a number of
permits. The Congress and the President would have to sign a
land withdrawal bill and the Department of Energy would need to
actually build the repository with tens of billions of dollars
in appropriations over the next few years. Is that about right?
Mr. Lyons. That is all correct, sir.
Mr. McNerney. So, Mr. Chairman, it is clear to me that the
NRC and the DOE do not have sufficient funds to complete the
Yucca Mountain licensing, and there is still a lot of public
opposition in the State of Nevada. The Court of Appeals
decision doesn't change either one of those facts. It is time
for us in the subcommittee to start grappling with the tough
policy questions we need to answer in order to establish a new
consensus-based siting process that has a real chance of
getting a repository built.
With that, I will yield back.
Mr. Shimkus. The gentleman yields back his time.
The chair now recognizes the gentleman from Pennsylvania,
Mr. Pitts, for 5 minutes.
Mr. Pitts. I thank the gentleman. I apologize for coming in
and out. We have a couple of hearings going on at the same
time.
Chairman Macfarlane, in your written testimony you state
``in September 2008 the NRC staff adopted the EIS subject to
additional supplementation on groundwater analysis. In October
2008 the DOE had notified the NRC of its intent to supplement
the EIS. Subsequently, in July of 2009, the DOE notified the
NRC that it had decided not to prepare a supplement. To satisfy
National Environmental Policy Act, NEPA, obligations, the EIS
would need to be supplemented.''
Now, I have here a report dated July of 2009 from DOE's
Office of Civilian Radioactive Waste Management entitled
``Analysis Of Post-Closure Groundwater Impacts.'' And this
document notes the NRC staff's September 8, 2008, adoption
report regarding the DOE's Environmental Impact Statements,
EIS, and indicates ``in response to NRC's staff adoption
report, DOE has prepared this analysis of post-closure
groundwater impacts. This analysis of post-closure groundwater
impacts addresses the information identified by the NRC staff
as needed to supplement DOE's Environmental Impact
Statements.''
I have another document here from the NRC's Web site
indicating that the supporting documentation for this report
was provided to the NRC's public document room and the NRC's
file center. Dr. Lyons, do you know whether DOE provided NRC
the groundwater analysis Chairman Macfarlane mentions in her
testimony?
Mr. Lyons. The report that you reference, sir, was provided
by the Department of Energy and it was--at least the
understanding of our staff at the time that the supplemental
details would be added by the NRC to the EIS. That could be
revisited if the NRC wishes, but yes, we have provided that
documentation as you cited.
Mr. Pitts. Chairman Macfarlane, is it possible that your
staff made a mistake and the DOE did actually send the
supplement that you need for the EIS?
Ms. Macfarlane. My understanding is that we still need the
supplement to the EIS, but I can get back to you with the
longer answer for the record.
Mr. Pitts. Did you want to respond, Dr. Lyons?
Mr. Lyons. I think we are both saying the same thing. The
EIS needs to be supplemented. The question is we think we have
provided the information to the NRC to do the supplement, but
if they wish us to do it, we would use the information that we
provided to them. There may be a misunderstanding simply on who
is going to write the supplement, but we provided the
information.
Mr. Pitts. Well, is there an open action item here or can
we cross this off the list of things that you folks need to do
to comply with the court?
Ms. Macfarlane. Clearly, the supplement needs to be
completed, and this is one of the other steps that would have
to be done to complete the licensing process, and it is a step
that we would have to try to understand the resource allocation
for and whether it would be the Department of Energy who would
take this on or the NRC.
Mr. Pitts. OK.
Ms. Macfarlane. But this is something that needs to be
completed and needs to be decided how to move forward.
Mr. Pitts. Now, this administration shut down the Yucca
Mountain program, and the issue that brings us here today,
contrary to the Nuclear Waste Policy Act and stranding spent
nuclear fuel indefinitely at plants across the country, Dr.
Lyons, was there a scientific reason for shutting it down?
Mr. Lyons. As we have testified in other hearings, our
concern has been whether this is a workable solution to move
forward, and I believe that without a consent-based process, it
is not a workable solution.
Mr. Shimkus. Will the gentleman yield?
So that is a no, Mr. Lyons? That is a no that it wasn't a
science-based decision to shut it down? That is what you just
said. You are saying it was a political----
Mr. Lyons. The Department of Energy submitted the license
application based on the technical requirements.
Mr. Shimkus. Your answer to his question was no, that it
was not science-based, it was a politically based decision.
That is fine.
Mr. Lyons. Mr. Shimkus----
Mr. Shimkus. I will yield back to the gentleman from
Pennsylvania.
Mr. Lyons. We can debate what you mean by a politically
based decision. I am simply----
Mr. Shimkus. I am using your words, not mine. You are the
one who just meandered on that it wasn't science-based. The
question was was it science-based? And you said no.
Mr. Lyons. Based on a----
Mr. Shimkus. It is a consensus-based analysis, and we have
always heard this story before. So your answer to my colleague
from Pennsylvania was no.
Mr. Lyons. I have attempted to indicate the range of issues
that were considered, sir.
Mr. Shimkus. We got you on record as no.
The gentleman from Pennsylvania has expired.
Mr. Pitts. Thank you, Mr. Chairman.
Mr. Shimkus. The chair now recognizes the gentleman from
Georgia, Mr. Barrow, for 5 minutes.
Mr. Barrow. Thank you, Mr. Chairman.
And, Chair Macfarlane, I want to begin by thanking you for
your personal interest in the expansion of nuclear generating
capacity in this country. It has gone on in my backyard in
Georgia and next door in South Carolina and you have taken a
personal interest in this and I want to commend you for that
and thank you and encourage you to help us through this renewal
of nuclear energy generation in this country.
I gather that you all want input from the interested
parties as to how best to proceed. I want to offer some input
as to how best to proceed. Assuming that the Court of Appeals
decision becomes final in the law of the case, I take it that
the usual practice in cases of this sort is that the SER is
formally adopted before you enter into any adjudicatory
proceedings to rule on any contentions that raise objections to
the SER. Is that correct?
Ms. Macfarlane. That is correct.
Mr. Barrow. There is no reason to depart from that in this
instance, is there?
Ms. Macfarlane. Well, it depends on the parties and the
participants and their views. We do have to weigh them all
moving forward----
Mr. Barrow. I understand you have to weigh their views but
you all get to decide how you proceed, how you go forward.
Ms. Macfarlane. Right. I mean we are trying to understand
what we can do with the limited resources that exist at the
moment.
Mr. Barrow. Of course. And I guess the input I want to
offer is that it seems to me it would make very little sense to
enter into any formal adjudicatory proceedings to rule on any
contentions that raise objections to the SER before the SER is
even adopted.
Ms. Macfarlane. Yes.
Mr. Barrow. The input that I would offer is it would make
no sense whatsoever to be having hearings on objections to the
SER before it is adopted and then at some distant time in the
future have it adopted, and then have post-adoption contentions
raising further objections ruled on later on. Let's just keep
it one step at a time, shall we, one war at a time as Lincoln
said.
Ms. Macfarlane. I do very much so appreciate your input and
we will take that into consideration as we deliberate and move
forward.
Mr. Barrow. Thank you very much. No further questions.
Mr. Shimkus. The gentleman yields back his time.
The chair now recognizes the other gentleman from
Pennsylvania, Mr. Murphy, for 5 minutes.
Mr. Murphy. Thank you, Mr. Chairman.
To both of you, the fiscal year 2011 Continuing Resolution
was the last time NRC and DOE received funding for the license
review. Am I correct on that, Ms. Macfarlane?
Ms. Macfarlane. I am sorry, the fiscal year--
Mr. Murphy. The fiscal year 2011 Continuing Resolution was
the last time NRC and DOE received funding for license review--
Ms. Macfarlane. Yes.
Mr. Murphy [continuing]. Am I correct, Mr. Lyons, is that
true as well?
Ms. Macfarlane. I do believe that is correct.
Mr. Murphy. And the purpose of that funding was to carry
out the purposes of the Nuclear Waste Policy Act, am I correct?
Ms. Macfarlane. Sorry?
Mr. Murphy. The purpose of that funding was to carry out
the purposes of the Nuclear Waste Policy Act?
Ms. Macfarlane. Yes.
Mr. Murphy. Am I correct?
Ms. Macfarlane. Certainly.
Mr. Murphy. And, Dr. Lyons, but DOE used that money for the
opposite purpose, to shut down the Yucca Mountain program in an
attempt to withdraw the license application, am I correct?
Mr. Lyons. The fiscal year 2010 funding was used for
shutdown of the program, yes.
Mr. Murphy. All right. And, Dr. Macfarlane, the NRC also
used that money to suspend the license review, correct?
Ms. Macfarlane. Correct.
Mr. Murphy. And, Dr. Lyons, how much money from the Nuclear
Waste Fund did DOE spend to shut down the program?
Mr. Lyons. I would prefer to give you a precise number. It
was around 130 million but we can give it to you precisely in
writing.
Mr. Murphy. I have 138 million. I just wanted to be sure
but let me know the precise number.
Chairman Macfarlane, how much money from the Nuclear Waste
Fund did NRC spend to suspend the license review?
Ms. Macfarlane. I believe it was 7.4 million.
Mr. Murphy. OK. I thought it was a little bit more. Could
you double-check the number, please?
Ms. Macfarlane. I can certainly double-check the number.
Mr. Murphy. So, to both of you, together your two agencies
have spent, by my calculations, a little bit under $150 million
of electricity consumers' money shutting down a license review
that the court has now said you have to complete. So
electricity consumers throughout this country paid for you to
conduct the license review, not to scuttle it. So how will your
agencies restore that money to its lawful purpose?
Ms. Macfarlane. In terms of the Nuclear Regulatory
Commission, this is actually an issue that is under
adjudication right now and so it is not appropriate for me to
comment.
Mr. Murphy. Are you going to have the money to do that?
Ms. Macfarlane. Sorry?
Mr. Murphy. Are you going to have the money to restore
that?
Ms. Macfarlane. Again, this is an issue that we have asked
the staff to collect information on all budgeting----
Mr. Murphy. And, Dr. Lyons, do you have a different answer
on that? Do you have any idea where the money is going to come
from?
Mr. Lyons. In my written testimony I gave the numbers for
the currently available funds that we have, either unobligated
or costed and obligated.
Mr. Murphy. I appreciate that but I am trying to get to the
point that isn't it fair that you have to restore that money to
back to what its legal purpose was for? Am I correct?
Mr. Lyons. The position of the administration continues to
be that if we want to stop wasting money, we should be moving
in a direction to have a workable--
Mr. Murphy. Well, no, no, no----
Mr. Shimkus. Will the gentleman yield for one second?
Mr. Murphy. Yes.
Mr. Shimkus. Aren't you saying that the NRC and the DOE
spent $150 million to break the law?
Mr. Murphy. That is what I am hearing and now you are
talking about something else.
Look, we need a straightforward answer on this. You know,
the fairness to the American people who have been paying these
rates is that money was misused by DOE and by NRC. And so now
what I am asking you is are you going to work on a plan to
restore that, you are talking about finding other ways to not
waste money. This is a colossal waste of money. So now I don't
understand. So just give me a straightforward answer. Isn't it
fair that you find a way to restore that money to its lawful
legal purpose?
Mr. Lyons. I am not aware, sir, what that mechanism would
be. Perhaps someone on your side is. I am not aware of what
that mechanism would be.
Mr. Murphy. Oh, no, it is not my responsibility to fix your
problem. Your breaking the law is not my responsibility to fix
it. The misuse of money from your agencies is not the
responsibility of the American people to come up with another
answer. It is your responsibility. We are going to hold you to
that.
Chairman McFarlane, in your testimony you mentioned the NRC
currently has 13.6 million available to fund resumption of
license review. Is that enough to fully comply with the court's
decision?
Ms. Macfarlane. Let me clarify. We have 11.1 million
available and 2.6 million in obligated----
Mr. Murphy. Will that be enough to complete the application
review and issue a decision?
Ms. Macfarlane. And issue the license?
Mr. Murphy. Yes.
Ms. Macfarlane. Absolutely not.
Mr. Murphy. But you are both legally responsible now for
complying with the law.
Ms. Macfarlane. We will comply with the law, sir.
Mr. Shimkus. Would the gentleman yield? Ask that question
on the Safety Evaluation Report. That is the question that we
still need to get a firm answer from the chairman.
Mr. Murphy. So let me ask that. On the Safety Evaluation
Report, will you be able to comply?
Ms. Macfarlane. We have asked the staff to update the
information, update the resources needed to complete the Safety
Evaluation Report and to do a number of other entities, and as
soon as we get that information, the Commission will be able to
provide a written response.
Mr. Murphy. So just to cut to the chase, it sounds like
neither of your agencies has enough resources to complete the
licensing review mandated by the court and by law. So when was
the last time either of your agencies asked for funding in your
budget proposal to do any of this?
Mr. Lyons. The last funding we received was fiscal year
2010 to the best of my memory.
Mr. Murphy. You haven't asked for any since then to comply?
You have not asked for any since then?
Mr. Lyons. That is correct.
Mr. Murphy. Will you be forwarding a supplemental budget
request to fund these?
Mr. Lyons. Until we know the requirements from the NRC,
until we have evaluated a path forward, it would simply be
premature for me to speculate on whether that would be the
course of action, sir.
Mr. Murphy. Mr. Chairman, there is still follow-up here.
The law says you have got to comply, the court said you have to
comply, you said you don't have the money to comply, and now
you are saying it is speculation to find out if you are going
to--this is a simple thing that if your desire is to comply
with the courts and you are legally bound to do so by law and
you don't have the money to do it, I would hope that that is
already in the works to say we are going to need more money to
move forward on this and comply with the law. Do you have to
hesitate on that?
Mr. Lyons. I would give you essentially the same response,
sir. It is just simply premature at this stage of the process
to speculate what will be required of the Department or to
commit to any course of action.
Mr. Murphy. I appreciate the note you have been handed but
I am asking you this is----
Mr. Shimkus. The gentleman's time is expired.
The chair now recognizes the gentlelady from California for
5 minutes.
Ms. Capps. I thank you, Mr. Chairman.
And thank you to our witnesses today for your testimony and
for being here.
Nuclear fuel storage obviously is an important issue, and
for communities with nuclear power plants, it is a very local
issue. That is the case with my district. I represent San Luis
Obispo, California, which is home to Diablo Canyon nuclear
power plant.
Before I get to fuel storage, I wanted to follow up on an
issue I raised with you, Chairwoman Macfarlane, last time you
testified and that is the topic of seismic safety. We are
seeing fresh reminders from Fukushima of just how devastating
an earthquake can be if we are not fully prepared. And as you
know, Diablo Canyon sits on both the Hosgri and the recently
discovered shoreline faults. Last February, I asked you about a
peer-reviewed study by Dr. Jeanne Harderbeck that concludes an
earthquake much larger than current NRC estimates is possible
along these very fault lines. I asked whether or not NRC is
incorporating Dr. Harderbeck's findings into its safety
standards for Diablo Canyon. Your written response states ``the
NRC staff believes that the views expressed by Dr. Harderbeck's
paper will be fully considered by the experts involved in the
seismic hazard reevaluation process.''
So my question is, to give you an opportunity right now to
update us on whether the NRC is taking any additional actions
to address the concerns raised in this report.
Ms. Macfarlane. So I believe that Dr. Harderbeck presented
at the second Seismic Hazard Workshop that happened this past
year, and her theories on the shoreline fault activity rate,
the geometry, the fault geometry will be included in the
overall seismic hazard characterization model.
Mrs. Capps. Does it involve any changes or concrete
actions?
Ms. Macfarlane. Well, we will see the results of the model
at the next workshop, which I believe is coming up in the
spring.
Mrs. Capps. OK. So we can expect a follow-up----
Ms. Macfarlane. Yes.
Mrs. Capps [continuing]. Report after that time?
Ms. Macfarlane. Yes.
Mrs. Capps. We will stay in touch with you on that and I
appreciate that answer very much.
And now to the topic at hand today, fuel storage, given our
inability to implement a permanent solution, my constituents
are very concerned about Diablo Canyon becoming a de facto
permanent storage site. I am sure other facilities around the
country may have the same concerns. I have been pleased to see
more spent fuel being moved into dry cask storage at Diablo
Canyon and also across the country, but these casks are really
not permanent solutions.
A few weeks ago I asked Secretary Moniz about this and he
said the casks are safe for about 100 years. Chairwoman
Macfarlane, do you agree with this estimate?
Ms. Macfarlane. Well, we are actively trying to understand
aging issues that are associated with casks. This is an
important area of research for us at the Nuclear Regulatory
Commission.
Mrs. Capps. So you don't want to comment on his estimate of
100 years?
Ms. Macfarlane. We license the casks for 20 years and we
have given a 20-year extension. We will continue to see if
further extensions are warranted.
Mrs. Capps. Obviously, spent fuel has got to be safely
stored for much longer than 20 years, even if it is
reauthorized, and longer than 100 years. My follow-up question
then to you is has the NRC evaluated onsite storage solutions
that can safely store fuel for longer than 100 years? Because
this to me is such a pressing issue for my constituents but it
certainly isn't limited to my constituents.
Ms. Macfarlane. We are certainly looking at the issues of
longer-term storage both in the casks and in the spent fuel
pools, so this is an area that we are actively considering.
Mrs. Capps. I appreciate that. Well, I firmly support
finding a permanent solution, but I really think it is critical
that we have a backup plan. And can you tell me if there is one
of those in the works?
Ms. Macfarlane. A backup plan for--that is a policy issue
and I defer to Congress to develop that policy issue.
Mrs. Capps. Well, then I defer to the chairman of this
committee that that is something that we want to consider in
the nature of our--and to our ranking member as well to the
nature of our task that permanent storage is a huge issue with
nuclear energy.
Mr. Shimkus. Yes, and if the gentlelady would yield, we
currently have a law to deal with that and we are just trying
to enforce the administration to comply with the law.
Mrs. Capps. All right. I yield back.
Mr. Shimkus. The gentlelady yields back.
The chair now recognizes the gentleman from Mississippi,
Mr. Harper, for 5 minutes.
Mr. Harper. Thank you, Mr. Chairman.
And I thank each of you for being here today.
And, Chairman Macfarlane, you just said regarding a backup
plan you said I defer to Congress for that issue, but didn't
Congress set the law that has been ignored that is the source
of the opinion that was just handed down in August? And so we
have that, yes, you say that but we have dealt with another
experience through this.
But I wanted to ask you some questions if I could. And I
understand, Chairman Macfarlane, that several parties have
signed a motion questioning your impartiality and requesting
your recusal and that you decided I believe last night not to
recuse yourself. Considering the motion for your recusal was
pending at the time, I want to know did you participate in the
Commission's order for the parties to submit comments by
September the 30th?
Ms. Macfarlane. I did take part in that and that was a
ministerial issue.
Mr. Harper. Do you know Angela Coggins, the former
chairman's policy director and chief of staff?
Ms. Macfarlane. No, I do not. I have never met her.
Mr. Harper. Are you familiar with her role in the closure
of the license review as described in the NRC Inspector
General's report dated June 6, 2011?
Ms. Macfarlane. No, I am not.
Mr. Harper. But you do know now that she is working in the
high-level waste section of the general counsel's office?
Ms. Macfarlane. No, I did not know that.
Mr. Harper. Well, those are things you might want to take a
look at and I would encourage you to do that.
And I would ask, too, that you review her past actions and
review that IG report, look at her current role, and then
answer back to us if you could let us know, given her past
actions on this issue and her ability to influence future
actions given her position, don't you think this contributes to
the appearance that you are unable to be impartial? And I would
like for you to answer that question and submit that in writing
back to the committee after you have had a chance to review
that and determine the position and history of Angela Coggins.
Chairwoman Macfarlane, as the IG indicated in his report,
the former chairman believed that stalling the public release
of the SER volumes was within his responsibility to manage the
staff. Do you believe that conforms to your responsibility as
chairman to uphold the President's commitments for transparency
and open government?
Ms. Macfarlane. I am sorry. Could you repeat the question?
Mr. Harper. Certainly. As the IG indicated in his report,
your former chairman believed that stalling the public release
of the SER volumes was within his responsibility to manage the
staff. Do you believe that conforms to your responsibility as
chairman to uphold the President's commitments for transparency
and open government?
Ms. Macfarlane. I can't comment on the actions of my
predecessor.
Mr. Harper. You are not aware of the history and the
actions and the history of your agency?
Ms. Macfarlane. I am not aware of the details of what
occurred to do with Yucca Mountain before I--
Mr. Harper. Are you not aware of the IG report?
Ms. Macfarlane. I am aware that it exists but I have not
read it.
Mr. Harper. OK. And you have been in your role for how
long?
Ms. Macfarlane. For a year and 2 months.
Mr. Harper. Wouldn't you think that during the course of
the year and 2 months and hopefully by the time you have been
there a year and 3 months that reading your IG report would be
something that would be very important?
Ms. Macfarlane. It is certainly an important issue. We have
a large mission at the Nuclear Regulatory Commission to oversee
the safety and security of over 100 reactors and over 20,000
materials licensees. We have quite a bit on our plate. And
until August 13, Yucca Mountain was not an active issue.
Mr. Harper. Well, it was an active issue under the laws of
this country, but your agency chose to ignore Congress even
though you have said here today that you defer to Congress for
a policy issue. There was a set law and you ignored that, did
you not? Not you personally but your agency, and certainly now
you have had it for a year and 2 months. But wouldn't an IG
report be something that would be very important to be aware of
in your role to make sure that you don't fall into any of those
problems in the future?
Ms. Macfarlane. Let me assure you this, that all decisions
on the matter of Yucca Mountain will be full commission
decisions and we will act collegially. I think my record shows
we have acted over the last year and 2 months very collegially
on all issues, and that is how we will work moving forward.
Mr. Harper. But your agency unilaterally decided to ignore
the law in this country, and now because the court has finally
recognized that the executive authority has overstepped their
bounds that we are now back trying to take care of something
that should have long been done before. And I hope you
understand our frustration. We want your agency to succeed. We
want this to work for our country. And we urge you to continue
to look at this and this concern that we have.
And I yield back.
Mr. Shimkus. The gentleman yields back his time.
The chair now recognizes the gentleman from Florida, Mr.
Bilirakis, for 5 minutes.
Mr. Bilirakis. Thank you very much, Mr. Chairman. I
appreciate it. Thanks for calling this hearing.
The administration's shutdown of the Yucca Mountain program
in 2010--again, they shut it down--the ramifications of that
shutdown are still reverberating. In a decision last year
remanding the NRC's Waste Confidence Rule, the DC court
observed ``at this time there is not even a prospective site
for repository, let alone progress toward the actual
construction of one. The lack of progress on a permanent
repository has caused considerable uncertainty regarding the
environmental effects of temporary spent nuclear fuel storage
and the reasonableness of continuing to license and relicense
nuclear reactors.'' So the administration's actions to shut
down the Yucca Mountain program have caused a Federal court
order to question the reasonableness of licensing nuclear
plants.
Dr. Lyons, if the administration really supported nuclear
energy, wouldn't it want to reconstitute the Yucca Mountain
program? Shouldn't they reconstitute the Yucca Mountain
program, Dr. Lyons? Isn't it a demonstration that the Federal
Government's will to follow the law the surest way to restore
the waste confidence and provide a solid basis for the NRC to
license? If you can answer that question.
Mr. Lyons. Thank you for your question. I noted in my
testimony that we are already as a Nation 20 years past the
anticipated opening of Yucca Mountain. We are at an impasse.
The administration's approach is to try to work towards a
workable solution that can move us past the impasse, and yes,
support nuclear power by providing a consent-based approach to
move ahead on this vital issue of the back end of the fuel
cycle.
Mr. Bilirakis. Would you like to comment as well?
Ms. Macfarlane. Would I like----
Mr. Bilirakis. Yes, please.
Ms. Macfarlane. I didn't hear you. Not at this time.
Mr. Shimkus. Would the gentleman yield?
Mr. Bilirakis. Yes.
Mr. Shimkus. The real question is because of the delay and
the stopping of Yucca Mountain, the Waste Confidence Rule for
interim storage has been attacked and is causing problems in
local storage areas because we don't have a location. So now
the Waste Confidence Rule is up for litigation or review, which
continues to cause additional problems. Isn't that correct?
Ms. Macfarlane. No, they have nothing to do with each other
right now.
Mr. Shimkus. They do have by the ruling and the statements
Mr. Bilirakis just stated. The Waste Confidence Rule was
predicated on a long-term geological storage.
Ms. Macfarlane. Um-hum.
Mr. Shimkus. When you walk away from a long-term geological
storage, you upset the whole Waste Confidence Rule. So I find
it incredulous that you would say they have nothing to do with
each other.
Ms. Macfarlane. Well, I say that simply because the court
that ruled on the waste confidence decision required us to
consider the case where there is no repository. And----
Mr. Shimkus. And there is no repository because the
administration has broken the law to not proceed.
Ms. Macfarlane. I can't comment on that.
Mr. Shimkus. But I can and Mr. Lyons can. Is that why?
Mr. Lyons. As we have testified repeatedly, sir, our
general counsel supported, endorsed our ability to withdraw the
license back in that----
Mr. Shimkus. So you are blaming your general counsel for
making a ruling that you could break the law that upset the
court on the Waste Confidence Rule?
Mr. Lyons. And our focus is on finding a workable solution
that can move this country forward.
Mr. Shimkus. And I apologize if I take my colleague's time.
Where is the only vote from a legislative body on the floor of
either chamber that talks about a bipartisan movement, Mr.
Lyons?
Mr. Lyons. Again, sir, we are trying to find a workable----
Mr. Shimkus. You talk bipartisanship, 4 to 1 by this
chamber in the House 3 consecutive years in a row in supporting
Yucca Mountain. So that is where the bipartisan agreement is
and it is about time that the administration started following
it.
I yield back to Mr. Bilirakis.
Mr. Bilirakis. One last question for Dr. Lyons. Do you
believe that the science done by our national labs in support
of Yucca Mountain license application was sound?
Mr. Lyons. Yes.
Mr. Bilirakis. Thank you.
I yield back, Mr. Chairman.
Mr. Shimkus. The gentleman yields back time.
The chair now recognizes the gentleman from Ohio, Mr.
Johnson, for 5 minutes.
Mr. Johnson. I thank you, Mr. Chairman. You know, I want to
make a couple of comments before I start.
Dr. Macfarlane, you made the statement in your testimony
several times this morning--you qualified your answers with
``you must understand something.'' I hope that you understand
something and that you have seen the resolve of this committee
to hold your agency accountable to the American people and to
the laws that have been duly passed by this Congress. We have
multiple ways of doing that. It doesn't just involve hearings.
So I hope you understand the seriousness with which we are
approaching these issues.
Dr. Lyons, in your testimony you said maybe someone on our
side has a mechanism for restoring those lost funds. You used
the phrase ``on your side.'' We are supposed to be on the same
side. It is the side of the American people. And the way this
system works is that Congress passes laws and the
administration implements the law, not sidestep the law, not
avoid the law, not remake the law, but comply with the law.
So I hope both of you understand that it doesn't stop here
today. We are going to hold you accountable. I hope that is
clear.
Dr. Lyons, the NRC is committed to provide this committee
with a monthly report detailing their actions and expenditures
to comply with the court's decision. Will you make that same
commitment to provide us with a monthly report on DOE's actions
and expenditures as the applicant in support of the license
review?
Mr. Lyons. We will be happy to commit to provide you with
regular reports as there are events that lead to----
Mr. Johnson. A monthly report. I asked about a monthly
report detailing the actions. Are you willing to provide us
with a monthly report on the Department of Energy's actions and
expenditures?
Mr. Lyons. If you wish it monthly----
Mr. Johnson. A monthly report----
Mr. Lyons. Yes, sir. We will do it monthly----
Mr. Johnson. OK.
Mr. Lyons. Our suggestion is doing it when there are
changes----
Mr. Johnson. Well, no, I want a monthly report. This
committee wants a monthly report just like we are going to get
from the NRC. Can you commit to that?
Mr. Lyons. Yes, sir.
Mr. Johnson. OK. Thank you.
Initially, as the applicant, DOE advocated in favor of NRC
granting construction authorization for a repository at Yucca
Mountain. Later, DOE attempted to withdraw the application in
such a way as to prevent the NRC from ever considering the
Yucca Mountain in the future. In July when testifying before
this committee, Secretary Moniz was asked if DOE would honor
the court decision, and he indicated that DOE would follow the
law.
So, Dr. Lyons, now that the court has decided and the law
is clear, will DOE as the applicant in this proceeding once
again advocate in favor of NRC granting construction
authorization?
Mr. Lyons. Our path forward remains under evaluation. It
depends on----
Mr. Johnson. No, no, that wasn't the question. I am not
asking you about the evaluation. I am asking you about what Dr.
Moniz, what he said, was Secretary Moniz said, that DOE would
follow the law. And so now I am asking you a very simple
question. Now that the court has decided and the law is clear,
will DOE as the applicant in the proceeding once again advocate
in favor of NRC granting construction authorization? Will you
follow the law?
Mr. Lyons. We will certainly commit to following the law
but----
Mr. Johnson. Great. That is what I needed to know.
Mr. Lyons [continuing]. It is premature to say what the
exact path will be.
Mr. Johnson. Next question. I would like to follow up on
some questions that I posed to Secretary Moniz in July. In your
July 22 response to Chairman Shimkus, you noted that DOE's 2014
budget request money from the Nuclear Waste Fund to support
storage and transportation activities for locations other than
Yucca Mountain. Dr. Lyons, given the court's order, do you
still believe that DOE is authorized to spend Nuclear Waste
Fund money for purposes other than Yucca Mountain?
Mr. Lyons. My response in that letter very carefully
distinguished between generic R&D which continues to be our
focus which is nonstop----
Mr. Johnson. I am talking transportation activities. Let me
repeat the question because it must not have been clear. You
requested budget request from the Nuclear Waste Fund to support
storage and transportation activities for locations other than
Yucca Mountain. Given the court's order, do you still believe
that DOE is authorized to spend Nuclear Waste Fund money for
purposes other than Yucca Mountain, transportation activities,
et cetera?
Mr. Lyons. Since this is a----
Mr. Johnson. Take your note because I think your guy back
there in the back has got the answer for you. I think the
answer is you should comply with the law, right?
Mr. Lyons. Anything that we are doing on transportation at
this point is location-neutral. On the specifics of exactly
which----
Mr. Johnson. If it is providing locations for any place
other than Yucca Mountain, it is not location-neutral. And that
is not the purpose of the Nuclear Waste Fund, Dr. Lyons. So
given the court order, is it still your belief that DOE is
authorized to spend Nuclear Waste Fund money for purposes other
than Yucca Mountain? Because you and I both know what the law
says.
Mr. Lyons. Nuclear Waste Fund money will be spent on Titles
I and II of the Nuclear Waste Policy Act. I will rely on
general counsel as to exactly what falls within that category.
Mr. Johnson. Clearly, I am not going to get a straight
answer, Mr. Chairman. I yield back.
Mr. Shimkus. The gentleman's time is expired.
And we can pause and we are done. So we want to thank the
panel for being here. I have to thank you. This is a tough
issue. There are emotions rampant on both sides. We do
appreciate you putting up with us, but you will see us again, I
am sure.
In conclusion, I would like to thank again you all for
being here and the Members who participated and remind my
colleagues that they have 10 business days to submit questions
for the record. And I ask the witnesses all to agree to respond
as promptly as possible to all questions.
And with that, the hearing is adjourned.
[Whereupon, at 12:00 p.m., the subcommittee was adjourned.]
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