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Forward Step: Senate Bill on Nuclear Waste

Richard M. Jones
Number 133 - November 2, 2012  |  Search FYI  |   FYI Archives  |   Subscribe to FYI

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The Senate Energy and Natural Resources Committee held a hearing to review legislation that may serve as the framework for the storage and later permanent disposal of the nation’s civilian and defense nuclear waste.  Meeting to receive testimony on S. 3469, The Nuclear Waste Administration Act of 2012, the committee received generally positive reviews of this bill introduced by committee chairman Jeff Bingaman (D-NM).

Bingaman’s bill would implement the major recommendations of the Blue Ribbon Commission on America’s Nuclear Waste (BRC).  Established after the Administration’s controversial termination of the review of the proposed Yucca Mountain nuclear waste repository, the BRC called for a consent-based approach to the siting of one or more short term storage sites and geological repositories.  Other recommendations included a new congressionally-chartered entity to manage nuclear waste, changes in the use of the nuclear waste fund, and planning for large-scale waste transportation.  The committee held a hearing on the report in February during which Bingaman remarked “The Blue Ribbon Commission has provided us with a roadmap for putting the program back on track, but it will obviously once again take bipartisan cooperation, resolve and good sense on our part to act upon its recommendations.”  

Putting words into action, Bingaman introduced his bill on August 1 to implement the commission’s eight recommendations.  Indicative of how deeply troublesome it has been to find agreement on the handling of nuclear waste was the breakdown of a plan to include Lisa Murkowski (R-AK), Dianne Feinstein (D-CA), and Lamar Alexander (R-TN) as original cosponsors of the legislation.  These senators are the chairs or ranking members of the Senate authorization and appropriations committees with primary jurisdiction over nuclear waste.  The four senators were unable to reach agreement on a legislative mechanism to ensure that a temporary site does not become a permanent storage facility.  Almost three months after the bill was introduced, it has no sponsor besides its author.  “With time running out in this Congress, we agreed that I should go ahead and introduce the bill as it stands, and hold this hearing on the bill, and leave it to the next Congress to continue working on the issue,” Bingaman said in his opening remarks at the September 12 hearing.

Reviews of S. 3469 were generally positive.   In her opening remarks, Murkowski said “Mr. Chairman, the legislation that you introduced is indicative of months of good, productive discussions between you, Senator Feinstein, Senator Alexander, and myself discussing ways to address the back-end of the nuclear fuel cycle.  I congratulate you for moving the discussion forward and putting a marker out there toward reaching that goal.  While we ultimately could not bridge the issue of linking progress on interim storage and a permanent repository, I want to be clear to those following these discussions that while prospects for legislative enactment [by] this Congress [which will adjourn at the end of this year] are not favorable, we will continue the effort next year and build upon the progress that the Chairman has begun.” 

Five witnesses provided their perspectives on the legislation.  Brent Scowcroft and Richard Meserve served on the BRC and testified that the bill “generally mirrors the Commission’s recommendations.”  They outlined differences between the bill and their report, including the bill’s provision that would make the proposed Nuclear Waste Administration a federal agency instead of their recommended federally-charted corporation that, they contend, would “provide a degree of isolation from short-term political pressures.” 

Of greater significance was whether there should be “linkage” between a storage facility and an agreement on a permanent geological repository.  The BRC recommended that there be no linkage.  S. 3469 mandates this linkage: “the Administrator may not possess, take title to, or store spent nuclear fuel at a storage facility licensed under this Act before ratification of a consent agreement for a repository. . . .”

The bill does make one exception, recognizing a section in the Senate version of the FY 2013 Energy and Water Development Appropriations Bill that was promoted by subcommittee chair Feinstein to establish a pilot plant for the storage of nuclear waste.  Bingaman’s bill states: “Exception- The Administrator may possess, take title to, and store not more than 10,000 metric tons of spent nuclear fuel at a storage facility licensed and constructed pursuant to a cooperative agreement entered into before the date of enactment of this Act under section 312 of the Energy and Water Development and Related Agencies Appropriations Act, 2013, before ratification of a consent agreement for a repository.”

Disagreement about linkage between one or more short-term storage facilities and a permanent repository (similar to Yucca Mountain) was the primary reason why Bingaman’s bill does not have additional cosponsors.  Bingaman spoke of the need to ensure that a storage facility not become a de facto repository if no agreement is reached on a permanent repository, adding that he welcomes suggestions on how to resolve this matter.  Responding to Bingaman’s comments, Meserve expressed concern about the bill’s severe restraint on opening a storage facility, and predicted that a community agreeing to a storage facility would also consent to a repository. 

A third area of disagreement between the bill and the BRC concerned the size and composition of a proposed Nuclear Waste Oversight Board.

While DOE Assistant Secretary Lyons did not endorse the bill, he did not raise any red flags. He spoke of the Administration’s agreement that a new nuclear waste management and disposal entity would be advantageous and that it should have “timely access” to nuclear waste funds.  He testified the Administration supports “the broad scientific and international consensus that a geological repository is the most effective permanent solution to dispose of high level waste.”  Of note, Lyons said “it is evident that a once-through cycle is appropriate for the foreseeable future.”  Regarding the importance of a consent-based approach for future facilities, Lyons told the committee:

“No matter what organization, funding, and storage decisions are made moving forward, a consent-based approach to siting is critical to success. The Administration supports working with Congress to develop a consent-based process that is transparent, adaptive, and technically sound. The BRC emphasized that flexibility, patience, responsiveness and a heavy emphasis on consultation and cooperation will all be necessary in the siting process and in all aspects of implementation. Experiences in other countries indicate that a consent-based process - developed through engagement with states, tribes, local governments, key stakeholders, and the public - offers a greater probability of success. DOE is currently evaluating critical success factors in the siting of nuclear facilities in the U.S. and abroad to facilitate the development of a siting process.”

Discussion with the witnesses focused on several additional topics.  Murkowski asked Lyons when the Administration would issue an implementation plan responding to the BRC report.  Lyons responded that substantial work has been done, but declined to give a specific date.  Senator Ron Wyden (D-OR) and Senator Maria Cantwell (D-WA) pressed for a solution to stored radioactive waste at Hanford and other DOE nuclear weapons production facilities, with Cantwell declaring that her support for this legislation would be predicated on how this waste is handled.  Senator Al Franken (D-MN) expressed his “very real concern” about spent fuel pools at the Prairie Island Nuclear Power Plant located on the banks of the Mississippi River and asked Lyons about the suitability of specialized storage casks now being used in Sweden that permit transport after a relatively short time.

Constellation Energy Nuclear Group President and CEO Henry Barron and Natural Resources Defense Council Senior Project Attorney Geoffrey Fettus also testified.  Barron characterized S. 3469 as “a positive start” but said “it does not provide the comprehensive changes that are needed.”  Barron, speaking on behalf of the Nuclear Energy Institute, called for a continuation of the Yucca Mountain licensing process, citing billions of dollars in damage awards the federal government will pay to utilities because it has not taken possession of spent nuclear fuel.  He called for the development of consolidated storage.  When questioned by Bingaman if such storage would prompt utilities to settle future claims against the government, Barron replied affirmatively.  They both agreed that “stranded” spent fuel at closed power plants should receive priority in a new storage facility.  Barron cautioned that “consolidated storage is not a complete answer,” and said “geologic disposal is critical.”  He told the committee that “a consent-based siting process is essential to developing enduring local and state support for new facilities.”

Fettus commended several components of S. 3469.  NRDC agrees with the utilization of “technically sound deep geologic repositories,” the bill’s “essential” linkage of interim storage to a repository program, and “the fundamental concept that the polluter pays the bill for the contamination that it creates.”  He called on Congress to “create a transparent, equitable process incorporating strong public health and environmental standards,” and criticized existing law (specifically the Atomic Energy Act) for exempting radionuclides from water and hazardous waste laws.  “These anachronistic exemptions from environmental law are at the heart of state and public distrust of both government and commercial nuclear facilities,” Fettus told the committee, calling radioactive material “a privileged pollutant.”  He criticized the proposed pilot storage facility in the Senate’s DOE appropriations bill, saying it would only have merit for the storage of stranded spent fuel.  Regarding reprocessing, Fettus stated:

“Congress should look at the reality of the federal budget over the next decade and narrow the options and focus on those that are most promising. Given that there is no current or prospective closed fuel cycle that can economically compete with the current open cycle, Congress should prioritize R&D funding to support technologies that can mitigate climate change in the near-term at the least cost. This excludes government funded R&D on closed plutonium fuel cycles.”

Further action on this or any other nuclear waste bill will occur in the next Congress in the form of a new bill.  Bingaman, who was elected to the Senate in 1982, will retire at the end of this Congress.  When introducing S. 3469 Bingaman told his colleagues:

“The [BRC] commission has performed a very valuable service to the nation in showing us a way forward. Its recommendations merit our careful consideration and deserve our approval. I have attempted to put them into legislative form so that they can be enacted and implemented.  I recognize that will not happen this year. It will take a great deal more time and work. But it must begin and I hope it will continue in the next Congress.”

Richard M. Jones
Government Relations Division
American Institute of Physics