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House Committees Press Administration on Yucca Mountain

Richard M. Jones
Number 75 - June 23, 2011  |  Search FYI  |   FYI Archives  |   Subscribe to FYI

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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.

Richard M. Jones
Government Relations Division
American Institute of Physics