House Committees Press Administration on Yucca Mountain

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Publication date: 
23 June 2011

The  decision by the Obama Administration to terminate the Yucca Mountain nuclear  waste repository continues to draw considerable criticism on Capitol Hill.  On a number of fronts, Members are pressing  the Administration about the actions which it has taken.

House  Republicans are moving through both the appropriations and authorization  committees in extensive committee and staff report language.   The FY 2012 Energy and Water Development  Appropriations Bill approved by the House Appropriations Committee criticized  the Administration’s actions in lengthy passages in the accompanying committee  report.

Taking  aim at the Nuclear Regulatory Commission, the appropriators state in the  introduction:

“The  Nuclear Regulatory Commission (NRC) is charged with overseeing the safety of  our current nuclear reactors fleet and responsible development of additional  nuclear power in the United States.  Nuclear  power is a critically important part of this nation’s energy mix, and the  tragic events following the earthquake and tsunami in Japan in 2011 show how  important a strong safety regime is to protect public health. Now, more than  ever, this country needs strong, objective regulatory oversight for the nuclear  energy sector.

“Unfortunately,  the Commission has recently suffered from several events which have eroded the  agency’s reputation for non-partisan leadership and oversight for the nuclear  sector. For example, Chairman Jaczko’s close-out of the Yucca Mountain license  application review process, in direct contravention of the NRC’s Atomic Safety  Licensing Board, shows a disregard for both congressional direction and  technical expertise. Additionally, the Chairman’s assumption of emergency  powers to respond to the Japanese nuclear crisis was a questionable use of  authorities provided to respond to crises with immediate, direct potential  impacts on the United States. As a result, this recommendation includes greater  congressional control over the actions of the NRC, including new budgetary control  points. The Committee strongly urges the NRC to take whatever steps necessary  to regain its reputation for nonpartisan oversight and regulation.”

In  a section entitled “Management of Nuclear Spent Fuel and Defense Waste” later  in the committee report, the appropriators state:

“The  nation’s nuclear spent fuel and defense waste currently resides at over 100  sites in 39 states. While the Committee is assured that this material is safe  and secure where it is currently stored, the tragic events in Japan highlight  that it is impossible to prepare for every exigency. Consolidation of this  material in a single site that provides enhanced safety and security will  improve public comfort with nuclear power, reduce potential safety and security  risk, and fulfill the federal government’s obligation under the Nuclear Waste  Policy Act of 1982 to assume responsibility of spent fuel.

“The  will of the Congress, expressed through law, is that this consolidation site is  Yucca Mountain. The Administration has unilaterally decided upon a path to  close the Yucca Mountain license application process, a decision which, if allowed,  would waste over two decades of study and a public investment of over $15  billion, plus tens of billions in additional fines and penalties. The Committee  strongly opposes the Administration’s plans and includes funding in this  recommendation under ‘Nuclear Waste Disposal’ and the Nuclear Regulatory  Commission to continue the license application.   Similarly, the Continuing Appropriations Act for Fiscal Year 2011 includes  $10,000,000 for the Nuclear Regulatory Commission to continue the license application.  This fiscal year 2011 funding, and the fiscal year 2012 recommendation, shall  not be used to terminate the license application process, and this  recommendation includes a general provision to this effect. This general  provision also prohibits the Department or the Nuclear Regulatory Commission from  using funds in this Act for activities that would irrevocably       remove  Yucca Mountain from consideration as a potential repository in the future.

“The  scientific community and the public have now had two years to understand the  implications of the Administration’s actions to close Yucca Mountain. As time  goes on, the extent of the Administration’s disregard for sound science and the  public’s hard-earned dollars becomes clearer. Already, multiple lawsuits in  federal court have been filed against the Administration on the policy itself.  Additionally, utilities have successfully sued the Administration for $2.2  billion in damages because the government has failed to live up to its  obligations under the Nuclear Waste Policy Act. The Department of Energy now  estimates that taxpayers will have to pay       nearly  $16.2 billion in damages by 2020, and an additional $500 million for each year  after 2020 that the Department does not fulfill its legal obligations.

“The  Administration’s misguided policy is also adding to requirements to the Department  of Energy’s budget and posing risks to our national security. In March 2011 the  Government Accountability Office released a report showing that, in addition to  the tens of billions of dollars in liabilities, and the more than $15 billion  in lost investments, the Administration’s policy could result in nearly $1  billion in additional storage costs incurred by the Department of Energy, tens  of millions of dollars in fines, and potential national security implications  if the naval reactors mission in Idaho is put at risk.

“Finally,  the single document that could provide the Administration with a scientific  basis for its position had been blocked from being released by political  appointees at the Nuclear Regulatory       Commission,  although all indications are that the staff work necessary for the report had  been completed for months. Volume Three of the Safety Evaluation Report Related  to Disposal of High-level Radioactive Wastes in a Geologic Repository at Yucca  Mountain, Nevada, was due in late 2010. However, until recently the  Administration had successfully blocked its release with the explanation that  Yucca Mountain was no longer its policy position. Fortunately, by majority vote  the Commissioners at the Nuclear Regulatory Commission were able to overcome  this partisan obstructionism, and the full report has now been provided to key  congressional       committees.  Until that report is released to the public and its findings can be  incorporated into the national debate over spent fuel, however, the taxpayer  will receive virtually no benefit from the $15 billion invested to date, and  critical information that has the potential to significantly move forward this  country’s plans for spent nuclear fuel will be lost.

“Put  simply, the Administration’s anti-Yucca Mountain stance has no scientific  basis, is wasting billions of taxpayer dollars, and may be illegal. The  Committee rejects the Administration’s plans to shut down the Yucca Mountain  license application process and includes funds in the recommendation to  continue the process. Once the full merits of this site are understood, and not  before, the nation should determine whether to move forward with full  construction of the site.

“Reporting  Requirement: National Waste Repository Workforce and Archiving Plan. -- The  Office of Nuclear Energy assumes the Department’s responsibilities under the  Nuclear Waste Policy Act, as well as activities and staff involving the Yucca  Mountain project.  Within 60 days of the  enactment of this Act, the Department shall submit a report on its plans to  retain the federal and contractor expertise on geological waste repositories  and archive all scientific documentation  relating to the project. This plan will help ensure the significant public  investment and the scientific knowledge gained from the Yucca Mountain project  will be available to serve       future  waste repository efforts.”

In  a later section, the appropriators described their decision to include $25  million in the FY 2012 funding bill for the Yucca Mountain license application.  The report also instructs the Department of  Energy to submit a plan in its FY 2013 budget request (to be submitted in  February 2012) for the consolidation and interim storage of spent fuel from  permanently closed reactors.  They state:

“The  Committee recommendation includes $25,000,000, $27,800,000 more than fiscal  year 2011 and $25,000,000 more than the request, to continue the Department of  Energy’s congressionally-      mandated  activities to continue the Yucca Mountain license application activity.

“As  discussed elsewhere in this report, the Administration’s attempts to shut down  this activity are without scientific merit and are contrary to existing law and  congressional direction. The Committee has included this funding to provide  necessary expenses in the event that ongoing litigation requires the  Administration to reconstitute its license application team.

“The  Committee supports the good analytical work that the Blue Ribbon Commission on  American’s Nuclear Future could contribute to the national dialogue surrounding  nuclear power. While the Committee understands that the Commission is not a  ‘siting commission,’ the Commission does have an obligation to include in its analysis  information gathered from decades of work on Yucca Mountain, and should be able  to show how and why any of its proposed alternatives  are better than the existing options. The Committee directs the Blue Ribbon  Commission, as it has in the past, to include Yucca Mountain among the  alternatives it is considering for the future of nuclear waste disposition in  the United States.

“While  disposition at Yucca Mountain and additional geological repositories must be  part of this nation’s spent fuel disposition plan, this Administration’s  political maneuvering has further delayed the opening of any such repository.  In the meantime, this delay is increasing the liability of the U.S. government  caused by its failure to fulfill the responsibilities laid out in the Nuclear       Waste  Policy Act of 1982, liabilities which must eventually be paid by the taxpayer.  As discussed above, these liabilities may be as much as $16.2 billion by 2020  and $500 million more each year after.

“This  Committee has long held the view that the federal government could demonstrate  its capability to meet its contractual obligation under the Nuclear Waste  Policy Act by addressing the spent fuel and other high-level nuclear waste at  permanently shut-down reactors. Moreover, the Department of Energy, in a  December 2008 report prepared at the direction of the Committee, indicated that  the interim storage of this material ‘would provide the Department       an  option in addition to Yucca Mountain to allow the Department to begin to meet  its contractual obligations with the owners of commercial spent nuclear fuel.  This option could prove beneficial       should  Yucca Mountain experience delays due to licensing, litigation, lack of funding  or other causes . . .’ Clearly, the Administration’s Yucca Mountain approach  has now caused such delays.

“Therefore,  the Committee directs the Department to submit, with its fiscal year 2013  budget request, a plan containing options to develop interim storage capacity  that would, as a priority matter, provide a means of consolidating the spent  nuclear fuel and other high level waste present at permanently shut-down  reactors. This plan should include a cost-benefit analysis comparing the  options to the status quo. The Department should also submit to the appropriate Committees  any legislation it determines necessary to facilitate the implementation of  such plan.”

Of  note, the Ranking Democrat on the Appropriations Committee, Rep. Norm Dicks  (D-WA) joined Republicans in criticizing the Administration’s actions, expressing  agreement with a policy rider in the bill language  preventing  funding from being used “for actions that irrevocably remove the possibility  that Yucca Mountain may be a repository option in the future.”

Two  House authorizing committees have also been reviewing the Administration’s  actions on Yucca Mountain.  On June 8,  the Majority Staff of the House Science, Space, and Technology Committee  released a report, “Yucca Mountain: The Administration’s Impact on U.S. Nuclear  Waste Management Policy.”  The report  was requested  by Investigations and Oversight Subcommittee Chairman Paul Broun (R-GA) who has  been highly critical of the Administration’s action.  The report’s analysis is 39 pages long, with  an additional 164 pages of background material.   In the report’s Executive Summary, the staff concludes:

"The  results of this review are striking. Despite numerous suggestions by political  officials -       including  President Obama  - that Yucca Mountain is  unsafe for storing nuclear waste, the       Committee  could not identify a single document to support such a claim. To the contrary,  the       Committee  found great agreement among the scientific and technical experts responsible  for       reviewing  the suitability of Yucca Mountain - considered by many to be the most studied  piece of  land on Earth - that nuclear waste can be safely stored at the site for tens of  thousands of       years  in accordance with Nuclear Regulatory Commission (NRC) requirements."

Later  the summary notes:

"Why,  then, has the President shut down the Yucca Mountain Project? And why does NRC Chairman  Jaczko refuse to permit NRC safety review of the site to continue, and refuse  to allow       his  fellow Commissioners to formally vote on DOE‘s Motion to Withdraw the Yucca  Mountain License  Application? The answer is clearly not explained by or based on any scientific  or       technical  evaluation.

"While  the specific instances of concern uncovered by the Committee and detailed in  this report are  convincing in and of themselves, they collectively reveal not just a pattern,  but a systematic       and  active effort on the part of the Administration to obfuscate, delay, and muzzle  scientific and technical  information and related processes in order to shut down Yucca Mountain.

"These  actions have not only violated the President‘s own highly promoted principles  and directives  on scientific integrity, transparency, and openness, they have also increased  taxpayer       liabilities  under the Nuclear Waste Policy Act, left nuclear waste sitting at reactor sites  across the       country  with no plan for disposal, and ultimately threatened the long-term potential of  nuclear       power  to meet America‘s growing energy demands with safe, clean, and affordable  baseload electricity.

"In  closing, it should be noted that, despite the path that has been worn and the  damage that has been  done, the Administration still has ample opportunity to make things right.  Disclosing to       Congress  the relevant and necessary information related to the Yucca Mountain decision  process,       allowing  formal completion of the Safety Evaluation Reports, and bringing the DOE‘s  Motion to       Withdraw  its license application to a vote before the full Commission would go a long  way to restoring  public confidence in the nuclear waste management policy process."

On  June 14, the House Subcommittee on Environment and the Economy of the Energy  and Commerce Committee continued its series of hearings on Yucca Mountain.  The subcommittee received testimony from  Hubert Bell, the Inspector General of the Nuclear Regulatory Commission.  Bell discussed a 46-page memorandum entitled  “NRC Chairman’s Unilateral Decision to Terminate NRC’s Review of DOE Yucca  Mountain Repository License Application (OIG Case No. 11-05).”  The report  was requested by Energy and Commerce Committee Chairman Fred Upton (R-MI) and  Rep. Edward Whitfield (R-KY).

In  dispassionate language, the June 6, 2011 memorandum recounts interviews the  Inspector General conducted and pertinent events.  The review determined that Jaczko had not  been forthcoming with the other NRC Commissioners about some of the critical  actions leading up to implementation of close-out activities.  The Inspector General found “a majority of  the Commissioners did not think the conditions to proceed to closure (i.e.,  withdrawal or suspension) had been met.”   The Inspector General concluded that “adjudicatory voting procedures are  not consistently enforced,” and determined that Jaczko “controls information  provided to the other Commissions based on his interpretation of his statutory  authority as Chairman versus the authority given to the Commission.” 

In  a June 8 response to the Inspector General Report, Jaczko stated:

“The  U.S. Nuclear Regulatory Commission’s Inspector General conducted a  comprehensive review of the agency’s handling of the High-Level Waste program.  The conclusions of the report reaffirm that my actions have been and remain  consistent with established law, guidance, and my authorities as Chairman. With  the IG report now completed, we can all move forward with a renewed commitment  to ensuring public health and safety in the use of nuclear materials -- the  essential mission of the NRC.

“The  closeout of the Yucca Mountain license review has been a complicated issue,  with dedicated and experienced people holding different viewpoints. All NRC  Chairmen have the responsibility to make difficult and sometimes controversial  decisions. The IG plays an important role in enabling the American people to  continue to have confidence that my focus as Chairman – and the entire agency’s  focus – is on effectively carrying out the NRC’s vital safety mission. Thus, I  appreciate the thoroughness with which the IG and his staff conducted this  comprehensive review over the last seven months.”

In  remarks at the June 14 hearing on this report, Subcommittee Chairman John  Shimkus (R-IL) commented on the “horribly inefficient process” the NRC commissioners  used in reaching decisions, blaming Jaczko.   Shimkus criticized Jaczko’s “neglect of this duty,” and charged “there  is outright malfeasance.”  Committee  Democrats responded by explaining that the Inspector General’s report did not  find that Jaczko acted illegally.

The  subcommittee will continue its review of events leading up to the decision to  close Yucca Mountain, with a hearing scheduled for this Friday at which NRC  senior staff will appear as witnesses.

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