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115th Congress } { Rept. 115-355
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
======================================================================
NUCLEAR WASTE POLICY AMENDMENTS ACT OF 2017
_______
October 19, 2017.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Walden, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
together with
ADDITIONAL AND DISSENTING VIEWS
[To accompany H.R. 3053]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 3053) to amend the Nuclear Waste Policy Act of
1982, and for other purposes, having considered the same,
report favorably thereon with an amendment and recommend that
the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 15
Background and Need for Legislation.............................. 16
Committee Action................................................. 40
Committee Votes.................................................. 41
Oversight Findings and Recommendations........................... 44
New Budget Authority, Entitlement Authority, and Tax Expenditures 44
Congressional Budget Office Estimate............................. 44
Federal Mandates Statement....................................... 58
Statement of General Performance Goals and Objectives............ 58
Duplication of Federal Programs.................................. 59
Committee Cost Estimate.......................................... 59
Earmark, Limited Tax Benefits, and Limited Tariff Benefits....... 59
Disclosure of Directed Rule Makings.............................. 59
Advisory Committee Statement..................................... 59
Applicability to Legislative Branch.............................. 59
Section-by-Section Analysis of the Legislation................... 59
Changes in Existing Law Made by the Bill, as Reported............ 66
Additional and Dissenting Views.................................. 111
Exchange of Letters with Additional Committees of Referral....... 114
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Nuclear Waste Policy
Amendments Act of 2017''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--MONITORED RETRIEVABLE STORAGE
Sec. 101. Monitored retrievable storage.
Sec. 102. Authorization and priority.
Sec. 103. Conditions for MRS agreements.
Sec. 104. Survey.
Sec. 105. Site selection.
Sec. 106. Benefits agreement.
Sec. 107. Licensing.
Sec. 108. Financial assistance.
TITLE II--PERMANENT REPOSITORY
Sec. 201. Land withdrawal, jurisdiction, and reservation.
Sec. 202. Application procedures and infrastructure activities.
Sec. 203. Pending repository license application.
Sec. 204. Limitation on planning, development, or construction of
defense waste repository.
Sec. 205. Sense of Congress regarding transportation routes.
TITLE III--DOE CONTRACT PERFORMANCE
Sec. 301. Title to material.
TITLE IV--BENEFITS TO HOST COMMUNITY
Sec. 401. Consent.
Sec. 402. Content of agreements.
Sec. 403. Covered units of local government.
Sec. 404. Termination.
Sec. 405. Priority funding for certain institutions of higher
education.
Sec. 406. Disposal of spent nuclear fuel.
Sec. 407. Updated report.
TITLE V--FUNDING
Sec. 501. Assessment and collection of fees.
Sec. 502. Use of Waste Fund.
Sec. 503. Annual multiyear budget proposal.
Sec. 504. Availability of certain amounts.
TITLE VI--MISCELLANEOUS
Sec. 601. Certain standards and criteria.
Sec. 602. Application.
Sec. 603. Transportation safety assistance.
Sec. 604. Office of Civilian Radioactive Waste Management.
Sec. 605. West Lake Landfill.
Sec. 606. Subseabed or ocean water disposal.
Sec. 607. Sense of Congress regarding storage of nuclear waste near the
Great Lakes.
TITLE I--MONITORED RETRIEVABLE STORAGE
SEC. 101. MONITORED RETRIEVABLE STORAGE.
(a) Proposal.--Section 141(b) of the Nuclear Waste Policy Act of 1982
(42 U.S.C. 10161(b)) is amended--
(1) in paragraph (1)--
(A) by striking ``1985'' and inserting ``2019''; and
(B) by striking ``the construction of'';
(2) in paragraph (2)--
(A) by amending subparagraph (C) to read as follows:
``(C) designs, specifications, and cost estimates sufficient
to--
``(i) solicit bids for the construction of one or
more such facilities; and
``(ii) enable completion and operation of such a
facility as soon as practicable;'';
(B) in subparagraph (D), by striking ``this Act.''
and inserting ``this Act; and''; and
(C) by adding at the end the following:
``(E) options to enter into MRS agreements with respect to
one or more monitored retrievable storage facilities.''; and
(3) by amending paragraph (4) to read as follows:
``(4) The Secretary shall, not later than 90 days after the date of
enactment of the Nuclear Waste Policy Amendments Act of 2017, publish a
request for information to help the Secretary evaluate options for the
Secretary to enter into MRS agreements with respect to one or more
monitored retrievable storage facilities.''.
(b) Additional Amendments.--
(1) In general.--Section 141 of the Nuclear Waste Policy Act
of 1982 (42 U.S.C. 10161) is further amended--
(A) in subsection (c)(2)--
(i) by striking ``If the Congress'' and all
that follows through ``monitored retrievable
storage facility, the'' and inserting ``The'';
and
(ii) by striking ``construction of such
facility'' and inserting ``construction of a
monitored retrievable storage facility''; and
(B) by striking subsections (d) through (h).
(2) Definitions.--Section 2 of the Nuclear Waste Policy Act
of 1982 (42 U.S.C. 10101) is amended--
(A) in paragraph (34), by striking ``the storage
facility'' and inserting ``a storage facility''; and
(B) by adding at the end the following:
``(35) The term `MRS agreement' means a cooperative
agreement, contract, or other mechanism that the Secretary
considers appropriate to support the storage of Department-
owned civilian waste in one or more monitored retrievable
storage facilities as authorized under section 142(b)(2).
``(36) The term `Department-owned civilian waste' means high-
level radioactive waste, or spent nuclear fuel, resulting from
civilian nuclear activities, to which the Department holds
title.''.
(3) Technical amendments.--Section 146 of the Nuclear Waste
Policy Act of 1982 (42 U.S.C. 10166) is amended--
(A) in subsection (a), by striking ``such
subsection'' and inserting ``subsection (f) of such
section''; and
(B) in subsection (b), by striking ``this
subsection'' and inserting ``this section''.
SEC. 102. AUTHORIZATION AND PRIORITY.
Section 142 of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10162)
is amended by striking subsection (b) and inserting the following:
``(b) Authorization.--Subject to the requirements of this subtitle,
the Secretary is authorized to--
``(1) site, construct, and operate one or more monitored
retrievable storage facilities; and
``(2) store, pursuant to an MRS agreement, Department-owned
civilian waste at a monitored retrievable storage facility for
which a non-Federal entity holds a license described in section
143(1).
``(c) Priority.--
``(1) In general.--Except as provided in paragraph (2), the
Secretary shall prioritize storage of Department-owned civilian
waste at a monitored retrievable storage facility authorized
under subsection (b)(2).
``(2) Exception.--
``(A) Determination.--Paragraph (1) shall not apply
if the Secretary determines that it will be faster and
less expensive to site, construct, and operate a
facility authorized under subsection (b)(1), in
comparison to a facility authorized under subsection
(b)(2).
``(B) Notification.--Not later than 30 days after the
Secretary makes a determination described in
subparagraph (A), the Secretary shall submit to
Congress written notification of such determination.''.
SEC. 103. CONDITIONS FOR MRS AGREEMENTS.
(a) Amendment.--Section 143 of the Nuclear Waste Policy Act of 1982
(42 U.S.C. 10163) is amended to read as follows:
``SEC. 143. CONDITIONS FOR MRS AGREEMENTS.
``(a) In General.--The Secretary may not enter into an MRS agreement
under section 142(b)(2) unless--
``(1) the monitored retrievable storage facility with respect
to which the MRS agreement applies has been licensed by the
Commission under the Atomic Energy Act of 1954 (42 U.S.C. 2011
et seq.);
``(2) the non-Federal entity that is a party to the MRS
agreement has approval to store Department-owned civilian waste
at such facility from each of--
``(A) the Governor of the State in which the facility
is located;
``(B) any unit of general local government with
jurisdiction over the area in which the facility is
located; and
``(C) any affected Indian tribe;
``(3) except as provided in subsection (b), the Commission
has issued a final repository decision; and
``(4) the MRS agreement provides that the quantity of high-
level radioactive waste and spent nuclear fuel at the site of
the facility at any one time will not exceed the limits
described in section 148(d)(3) and (4).
``(b) Initial Agreement.--
``(1) Authorization.--The Secretary may enter into one MRS
agreement under section 142(b)(2) before the Commission has
issued a final repository decision.
``(2) Funding.--There are authorized to be appropriated to
carry out this subsection--
``(A) for each of fiscal years 2020 through 2022, the
greater of--
``(i) $50,000,000; or
``(ii) the amount that is equal to 10 percent
of the amounts appropriated from the Waste Fund
in that fiscal year; and
``(B) for each of fiscal years 2023 through 2025, the
amount that is equal to 10 percent of the amounts
appropriated from the Waste Fund in that fiscal year.
``(3) Priority.--
``(A) In general.--An MRS agreement entered into
pursuant to paragraph (1) shall, to the extent
allowable under this Act (including under the terms of
the standard contract established in section 691.11 of
title 10, Code of Federal Regulations), provide for
prioritization of the storage of Department-owned
civilian waste that originated from facilities that
have ceased commercial operation.
``(B) No effect on standard contract.--Nothing in
subparagraph (A) shall be construed to amend or
otherwise alter the standard contract established in
section 691.11 of title 10, Code of Federal
Regulations.
``(4) Conditions.--
``(A) No storage.--Except as provided in subparagraph
(B), the Secretary may not store any Department-owned
civilian waste at the initial MRS facility until the
Commission has issued a final repository decision.
``(B) Exception.--
``(i) Finding.--The Secretary, in
consultation with the Chairman of the
Commission, may make a finding that a final
repository decision is imminent, which finding
shall be updated not less often than quarterly
until the date on which the Commission issues a
final repository decision.
``(ii) Storage.--If the Secretary makes a
finding under clause (i), the Secretary may
store Department-owned civilian waste at the
initial MRS facility in accordance with this
section.
``(iii) Notice.--Not later than seven days
after the Secretary makes or updates a finding
under clause (i), the Secretary shall submit to
Congress written notification of such finding.
``(iv) Reporting.--In addition to the
requirements of section 114(c), if the
Secretary makes a finding under clause (i), the
Secretary shall submit to Congress the report
described in such section 114(c) not later than
1 month after the Secretary makes such finding
and monthly thereafter until the date on which
the Commission issues a final repository
decision.
``(C) No effect on federal disposal policy.--Nothing
in this subsection affects the Federal responsibility
for the disposal of high-level radioactive waste and
spent nuclear fuel, or the definite Federal policy with
regard to the disposal of such waste and spent fuel,
established under subtitle A, as described in section
111(b).
``(c) Definitions.--For purposes of this section:
``(1) Final repository decision.--The term `final repository
decision' means a final decision approving or disapproving the
issuance of a construction authorization for a repository under
section 114(d)(1).
``(2) Initial mrs facility.--The term `initial MRS facility'
means the monitored retrievable storage facility with respect
to which an MRS agreement is entered into pursuant to
subsection (b)(1).''.
(b) Conforming Amendment.--The item relating to section 143 in the
table of contents for the Nuclear Waste Policy Act of 1982 is amended
to read as follows:
``Sec. 143. Conditions for MRS agreements.''.
SEC. 104. SURVEY.
Section 144 of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10164)
is amended--
(1) by striking ``After the MRS Commission submits its report
to the Congress under section 143, the'' and inserting ``(a) In
General.--The'';
(2) in the matter preceding paragraph (1), by striking ``for
a monitored retrievable storage facility'' and inserting ``for
any monitored retrievable storage facility authorized under
section 142'';
(3) in paragraph (6), by striking ``; and'' and inserting a
semicolon;
(4) in paragraph (7), by striking the period at the end and
inserting ``; and''; and
(5) by adding after paragraph (7) the following:
``(8) be acceptable to State authorities, affected units of
local government, and affected Indian tribes.
``(b) Request for Proposals.--The Secretary shall issue a request for
proposals for an MRS agreement authorized under section 142(b)(2)
before conducting a survey and evaluation under subsection (a), and
shall consider any proposals received in response to such request in
making the evaluation.''.
SEC. 105. SITE SELECTION.
Section 145 of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10165)
is amended--
(1) in subsection (a)--
(A) by striking ``select the site evaluated'' and
inserting ``select a site evaluated'';
(B) by striking ``the most''; and
(C) by inserting ``authorized under section
142(b)(1)'' after ``monitored retrievable storage
facility''; and
(2) by striking subsection (g).
SEC. 106. BENEFITS AGREEMENT.
Section 147 of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10167)
is amended--
(1) by inserting ``the Secretary intends to construct and
operate under section 142(b)(1)'' after ``storage facility'';
and
(2) by inserting ``or once a non-Federal entity enters into
an MRS agreement under section 142(b)(2),'' after ``section
145,''.
SEC. 107. LICENSING.
(a) Review of License Application.--Section 148(c) of the Nuclear
Waste Policy Act of 1982 (42 U.S.C. 10168(c)) is amended by striking
``section 142(b)'' and inserting ``section 142(b)(1)''.
(b) Licensing Conditions.--Section 148(d) of the Nuclear Waste Policy
Act of 1982 (42 U.S.C. 10168(d)) is amended--
(1) in paragraph (1), by striking ``has issued a license for
the construction of a repository under section 115(d)'' and
inserting ``has issued a final decision approving or
disapproving the issuance of a construction authorization for a
repository under section 114(d)(1)''; and
(2) in paragraph (2), by striking ``or construction of the
repository ceases''.
SEC. 108. FINANCIAL ASSISTANCE.
Section 149 of the Nuclear Waste Policy Act of 1982 is amended by
inserting ``authorized under section 142(b)(1)'' after ``a monitored
retrievable storage facility''.
TITLE II--PERMANENT REPOSITORY
SEC. 201. LAND WITHDRAWAL, JURISDICTION, AND RESERVATION.
(a) Land Withdrawal, Jurisdiction, and Reservation.--
(1) Land withdrawal.--Subject to valid existing rights and
except as provided otherwise in this section, the lands
described in subsection (c) are withdrawn permanently from all
forms of entry, appropriation, and disposal under the public
land laws, including the mineral leasing laws, the geothermal
leasing laws, and the mining laws.
(2) Jurisdiction.--Except as otherwise provided in this
section, jurisdiction over the withdrawal is vested in the
Secretary. There are transferred to the Secretary the lands
within the withdrawal under the jurisdiction of the Secretary
concerned on the effective date described in subsection (j)(1).
(3) Reservation.--The withdrawal is reserved for use by the
Secretary for development, preconstruction testing and
performance confirmation, licensing, construction, management
and operation, monitoring, closure, postclosure, and other
activities associated with the disposal of high-level
radioactive waste and spent nuclear fuel under the Nuclear
Waste Policy Act of 1982 (42 U.S.C. 10101 et seq.).
(b) Revocation and Modification of Public Land Orders and Rights-of-
Way.--
(1) Public land order revocation.--Public Land Order 6802 of
September 25, 1990, as extended by Public Land Order 7534, and
any conditions or memoranda of understanding accompanying those
land orders, are revoked.
(2) Right-of-way reservations.--Project right-of-way
reservations N-48602 and N-47748 of January 2001, are revoked.
(c) Land Description.--
(1) Boundaries.--The lands and interests in lands withdrawn
and reserved by this section comprise the approximately 147,000
acres of land in Nye County, Nevada, as generally depicted on
the Yucca Mountain Project Map, YMP-03-024.2, entitled
``Proposed Land Withdrawal'' and dated July 21, 2005.
(2) Legal description and map.--Not later than 120 days after
the date of enactment of this Act, the Secretary of the
Interior shall--
(A) publish in the Federal Register a notice
containing a legal description of the withdrawal; and
(B) file copies of the maps described in paragraph
(1) and the legal description of the withdrawal with
the Congress, the Governor of the State of Nevada, and
the Archivist of the United States.
(3) Technical corrections.--The maps and legal description
referred to in this subsection have the same force and effect
as if they were included in this section. The Secretary of the
Interior may correct clerical and typographical errors in the
maps and legal description.
(d) Relationship to Other Reservations.--The provisions of subtitle A
of title XXX of the Military Lands Withdrawal Act of 1999 (sections
3011-3023 of Public Law 106-65) and of Public Land Order 2568 do not
apply to the lands withdrawn and reserved for use by the Secretary
under subsection (a). This Act does not apply to any other lands
withdrawn for use by the Department of Defense under subtitle A of
title XXX of the Military Lands Withdrawal Act of 1999.
(e) Management Responsibilities.--
(1) General authority.--The Secretary shall manage the lands
withdrawn by subsection (a) consistent with the Federal Land
Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.),
this section, and other applicable law. The Secretary shall
consult with the Secretary concerned in discharging that
responsibility.
(2) Management plan.--
(A) Development.--The Secretary, after consulting
with the Secretary concerned, shall develop a
management plan for the use of the withdrawal. Within 3
years after the date of enactment of this Act, the
Secretary shall submit the management plan to the
Congress and the State of Nevada.
(B) Priority of yucca mountain project-related
issues.--Subject to subparagraphs (C) and (D), any use
of the withdrawal for activities not associated with
the Project is subject to conditions and restrictions
that the Secretary considers necessary or desirable to
permit the conduct of Project-related activities.
(C) Department of the air force uses.--The management
plan may provide for the continued use by the
Department of the Air Force of the portion of the
withdrawal within the Nellis Air Force Base Test and
Training Range under terms and conditions on which the
Secretary and the Secretary of the Air Force agree
concerning Air Force activities.
(D) Other non-yucca-mountain-project uses.--The
management plan shall provide for the maintenance of
wildlife habitat and shall provide that the Secretary
may permit non-Project-related uses that the Secretary
considers appropriate, including domestic livestock
grazing and hunting and trapping in accordance with the
following requirements:
(i) Grazing.--The Secretary may permit
grazing to continue where established before
the effective date described in subsection
(j)(1), subject to regulations, policies, and
practices that the Secretary, after consulting
with the Secretary of the Interior, determines
to be necessary or appropriate. The management
of grazing shall be conducted in accordance
with applicable grazing laws and policies,
including--
(I) the Act commonly known as the
``Taylor Grazing Act'' (43 U.S.C. 315
et seq.);
(II) title IV of the Federal Land
Policy and Management Act of 1976 (43
U.S.C. 1751 et seq.); and
(III) the Public Rangelands
Improvement Act of 1978 (43 U.S.C. 1901
et seq.).
(ii) Hunting and trapping.--The Secretary may
permit hunting and trapping within the
withdrawal where established before the
effective date described in subsection (k)(1),
except that the Secretary, after consulting
with the Secretary of the Interior and the
State of Nevada, may designate zones where, and
establish periods when, no hunting or trapping
is permitted for reasons of public safety,
national security, administration, or public
use and enjoyment.
(E) Mining.--
(i) In general.--Except as provided in clause
(ii), surface or subsurface mining or oil or
gas production, including slant drilling from
outside the boundaries of the withdrawal, is
not permitted at any time on lands on or under
the withdrawal. The Secretary of the Interior
shall evaluate and adjudicate the validity of
all unpatented mining claims on the portion of
the withdrawal that, on the date of enactment
of this Act, was under the control of the
Bureau of Land Management. The Secretary shall
provide just compensation for the acquisition
of any valid property right.
(ii) Cind-R-Lite mine.--Patented Mining Claim
No. 27-83-0002, covering the Cind-R-Lite Mine,
shall not be affected by establishment of the
withdrawal set forth in subsection (a)(1). In
that event, the Secretary shall provide just
compensation.
(F) Limited public access.--The management plan may
provide for limited public access to the portion of the
withdrawal under Bureau of Land Management control on
the effective date described in subsection (j)(1).
Permitted uses may include continuation of the Nye
County Early Warning Drilling Program, utility
corridors, and other uses the Secretary, after
consulting with the Secretary of the Interior,
considers consistent with the purposes of the
withdrawal.
(3) Closure.--If the Secretary, after consulting with the
Secretary concerned, determines that the health and safety of
the public or the common defense and security require the
closure of a road, trail, or other portion of the withdrawal,
or the airspace above the withdrawal, the Secretary may effect
and maintain the closure and shall provide notice of the
closure.
(4) Implementation.--The Secretary and the Secretary
concerned shall implement the management plan developed under
paragraph (2) under terms and conditions on which they agree.
(f) Immunity.--The United States and its departments and agencies
shall be held harmless and shall not be liable for damages to persons
or property suffered in the course of any mining, mineral leasing, or
geothermal leasing activity conducted on the withdrawal.
(g) Land Acquisition.--The Secretary may acquire lands and interests
in lands within the withdrawal. Those lands and interests in lands may
be acquired by donation, purchase, lease, exchange, easement, rights-
of-way, or other appropriate methods using donated or appropriated
funds. The Secretary of the Interior shall conduct any exchange of
lands within the withdrawal for Federal lands outside the withdrawal.
(h) Material Requirements.--Notwithstanding any other provision of
law, no Federal, State, Interstate, or local requirement, either
substantive or procedural, that is referred to in section 6001(a) of
the Solid Waste Disposal Act (42 U.S.C. 6961(a)) applies with respect
to any material--
(1) as such material is transported to a repository for
disposal at such repository; or
(2) as, or after, such material is disposed of in a
repository.
(i) Definitions.--
(1) Nuclear waste policy act of 1982 definitions.--For
purposes of this section, the terms ``disposal'', ``high-level
radioactive waste'', ``repository'', ``Secretary'', and ``spent
nuclear fuel'' have the meaning given those terms in section 2
of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10101).
(2) Other definitions.--For purposes of this section--
(A) the term ``withdrawal'' means the geographic area
consisting of the land described in subsection (c);
(B) the term ``Secretary concerned'' means the
Secretary of the Air Force or the Secretary of the
Interior, or both, as appropriate; and
(C) the term ``Project'' means the Yucca Mountain
Project.
(j) Effective Date.--
(1) In general.--Except as provided in paragraph (2), this
section shall take effect on the date on which the Nuclear
Regulatory Commission issues a final decision approving the
issuance of a construction authorization for a repository under
section 114(d)(1) of the Nuclear Waste Policy Act of 1982 (42
U.S.C. 10134(d)) (as so designated by this Act).
(2) Exceptions.--Subsections (c), (e)(2)(A), (h), (i), and
(j) shall take effect on the date of enactment of this Act.
SEC. 202. APPLICATION PROCEDURES AND INFRASTRUCTURE ACTIVITIES.
(a) Status Report on Application.--Section 114(c) of the Nuclear
Waste Policy Act of 1982 (42 U.S.C. 10134(c)) is amended by striking
``the date on which such authorization is granted'' and inserting ``the
date on which the Commission issues a final decision approving or
disapproving such application''.
(b) Application Procedures and Infrastructure Activities.--Section
114(d) of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10134(d)) is
amended--
(1) by striking ``The Commission shall consider'' and
inserting the following:
``(1) Applications for construction authorization.--The
Commission shall consider'';
(2) by striking ``the expiration of 3 years after the date of
the submission of such application'' and inserting ``30 months
after the date of enactment of the Nuclear Waste Policy
Amendments Act of 2017'';
(3) by striking ``70,000 metric tons'' each place it appears
and inserting ``110,000 metric tons''; and
(4) by adding at the end the following new paragraphs:
``(2) Applications to amend.--If the Commission issues a
construction authorization for a repository pursuant to
paragraph (1) and the Secretary submits an application to amend
such authorization, the Commission shall consider the
application to amend using expedited, informal procedures,
including discovery procedures that minimize the burden on the
parties to produce documents. The Commission shall issue a
final decision on such application to amend within 1 year after
the date of submission of such application, except that the
Commission may extend such deadline by not more than 6 months
if, not less than 30 days before such deadline, the Commission
complies with the reporting requirements established in
subsection (e)(2).
``(3) Infrastructure activities.--
``(A) In general.--At any time before or after the
Commission issues a final decision approving or
disapproving the issuance of a construction
authorization for a repository pursuant to paragraph
(1), the Secretary may undertake infrastructure
activities that the Secretary considers necessary or
appropriate to support construction or operation of a
repository at the Yucca Mountain site or transportation
to such site of spent nuclear fuel and high-level
radioactive waste. Infrastructure activities include
safety upgrades, site preparation, the construction of
a rail line to connect the Yucca Mountain site with the
national rail network (including any facilities to
facilitate rail operations), and construction, upgrade,
acquisition, or operation of electrical grids or
facilities, other utilities, communication facilities,
access roads, and nonnuclear support facilities.
``(B) Environmental analysis.--If the Secretary
determines that an environmental analysis is required
under the National Environmental Policy Act of 1969
with respect to an infrastructure activity undertaken
under this paragraph, the Secretary need not consider
alternative actions or a no-action alternative. To the
extent any other Federal agency must consider the
potential environmental impact of such an
infrastructure activity, the agency shall adopt, to the
extent practicable, any environmental analysis prepared
by the Secretary under this subparagraph without
further action. Such adoption satisfies the
responsibilities of the adopting agency under the
National Environmental Policy Act of 1969, and no
further action is required by the agency.
``(C) No grounds for disapproval.--The Commission may
not disapprove, on the grounds that the Secretary
undertook an infrastructure activity under this
paragraph--
``(i) the issuance of a construction
authorization for a repository pursuant to
paragraph (1);
``(ii) a license to receive and possess spent
nuclear fuel and high-level radioactive waste;
or
``(iii) any other action concerning the
repository.''.
(c) Connected Actions.--Section 114(f)(6) of the Nuclear Waste Policy
Act of 1982 (42 U.S.C. 10134(f)(6)) is amended by striking ``or
nongeologic alternatives to such site'' and inserting ``nongeologic
alternatives to such site, or an action connected or otherwise related
to the repository to the extent the action is undertaken outside the
geologic repository operations area and does not require a license from
the Commission''.
SEC. 203. PENDING REPOSITORY LICENSE APPLICATION.
Nothing in this Act or the amendments made by this Act shall be
construed to require the Secretary to amend or otherwise modify an
application for a construction authorization described in section
114(d) of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10134(d))
pending as of the date of enactment of this Act.
SEC. 204. LIMITATION ON PLANNING, DEVELOPMENT, OR CONSTRUCTION OF
DEFENSE WASTE REPOSITORY.
(a) Limitation.--The Secretary of Energy may not take any action
relating to the planning, development, or construction of a defense
waste repository until the date on which the Nuclear Regulatory
Commission issues a final decision approving or disapproving the
issuance of a construction authorization for a repository under section
114(d)(1) of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10134(d))
(as so designated by this Act).
(b) Definitions.--In this section--
(1) the terms ``atomic energy defense activity'', ``high-
level radioactive waste'', ``repository'', and ``spent nuclear
fuel'' have the meanings given those terms in section 2 of the
Nuclear Waste Policy Act of 1982 (42 U.S.C. 10101); and
(2) the term ``defense waste repository'' means the
repository for high-level radioactive waste and spent nuclear
fuel derived from the atomic energy defense activities of the
Department of Energy, as described in the draft plan of the
Department titled ``Draft Plan for a Defense Waste Repository''
published on December 16, 2016.
SEC. 205. SENSE OF CONGRESS REGARDING TRANSPORTATION ROUTES.
It is the sense of Congress that the Secretary of Energy should
consider routes for the transportation of spent nuclear fuel or high-
level radioactive waste transported by or for the Secretary under
subtitle A of title I of the Nuclear Waste Policy Act of 1982 (42
U.S.C. 10131 et seq.) to the Yucca Mountain site that, to the extent
practicable, avoid Las Vegas, Nevada.
TITLE III--DOE CONTRACT PERFORMANCE
SEC. 301. TITLE TO MATERIAL.
Section 123 of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10143)
is amended--
(1) by striking ``Delivery'' and inserting ``(a) In
General.--Delivery'';
(2) by striking ``repository constructed under this
subtitle'' and inserting ``repository or monitored retrievable
storage facility''; and
(3) by adding at the end the following new subsection:
``(b) Contract Modification.--The Secretary may enter into new
contracts or negotiate modifications to existing contracts, with any
person who generates or holds title to high-level radioactive waste or
spent nuclear fuel of domestic origin, for acceptance of title,
subsequent transportation, and storage of such high-level radioactive
waste or spent nuclear fuel (including to expedite such acceptance of
title, transportation, and storage of such waste or fuel from
facilities that have ceased commercial operation) at a monitored
retrievable storage facility authorized under subtitle C.''.
TITLE IV--BENEFITS TO HOST COMMUNITY
SEC. 401. CONSENT.
Section 170 of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10173)
is amended--
(1) in subsection (c), by striking ``shall offer'' and
inserting ``may offer'';
(2) in subsection (d), by striking ``shall'' and inserting
``may'';
(3) in subsection (e)--
(A) by inserting a comma after ``repository''; and
(B) by inserting ``per State,'' after ``facility'';
and
(4) by adding at the end the following new subsection:
``(g) Consent.--The acceptance or use of any of the benefits provided
under a benefits agreement under this section by the State of Nevada
shall not be considered to be an expression of consent, express or
implied, to the siting of a repository in such State.''.
SEC. 402. CONTENT OF AGREEMENTS.
(a) Benefits Schedule.--The table in section 171(a)(1) of the Nuclear
Waste Policy Act of 1982 (42 U.S.C. 10173a(a)(1)) is amended to read as
follows:
``BENEFITS SCHEDULE
----------------------------------------------------------------------------------------------------------------
Event MRS Repository
----------------------------------------------------------------------------------------------------------------
(A) Annual payments prior to first spent fuel receipt......... $5,000,000 $15,000,000
----------------------------------------------------------------------------------------------------------------
(B) Upon first spent fuel receipt............................. $10,000,000 The amount described
in section 302(f)(1)(B)
----------------------------------------------------------------------------------------------------------------
(C) Annual payments after first spent fuel receipt until $10,000,000 The amounts described
closure of the facility...................................... in section
302(f)(1)(C)''.
----------------------------------------------------------------------------------------------------------------
(b) Restrictions on Use.--Section 171(a) of the Nuclear Waste Policy
Act of 1982 (42 U.S.C. 10173a(a)) is amended--
(1) in paragraph (6), by striking ``paragraph (7)'' and
inserting ``paragraphs (7) and (8)''; and
(2) by adding at the end the following new paragraph:
``(8) None of the payments under this section may be used--
``(A) directly or indirectly to influence legislative action
on any matter pending before Congress or a State legislature or
for any lobbying activity as provided in section 1913 of title
18, United States Code;
``(B) for litigation purposes; or
``(C) to support multistate efforts or other coalition-
building activities inconsistent with the siting, construction,
or operation of the monitored retrievable storage facility or
repository concerned.''.
(c) Contents.--Section 171(b) of the Nuclear Waste Policy Act of 1982
(42 U.S.C. 10173a(b)) is amended--
(1) by striking paragraph (2);
(2) by redesignating paragraphs (3) through (5) as paragraphs
(2) through (4), respectively; and
(3) in paragraph (3) (as redesignated by paragraph (2) of
this subsection), by striking ``in the design of the repository
or monitored retrievable storage facility and''.
(d) Payments From the Waste Fund.--Section 171(c) of the Nuclear
Waste Policy Act of 1982 (42 U.S.C. 10173a(c)) is amended by striking
the first sentence and inserting the following: ``The Secretary shall
make payments to the State of Nevada under a benefits agreement
concerning a repository under section 170 from the Waste Fund.''.
SEC. 403. COVERED UNITS OF LOCAL GOVERNMENT.
(a) In General.--The Nuclear Waste Policy Act of 1982 (42 U.S.C.
10101 et seq.) is amended by inserting after section 172 the following
new section:
``SEC. 172A. COVERED UNITS OF LOCAL GOVERNMENT.
``(a) Benefits Agreement.--Not earlier than 1 year after the date of
enactment of this section, the Secretary may enter into a benefits
agreement with any covered unit of local government concerning a
repository for the acceptance of high-level radioactive waste or spent
nuclear fuel in the State of Nevada.
``(b) Content of Agreements.--In addition to any benefits to which a
covered unit of local government is entitled under this Act, the
Secretary shall make payments to such covered unit of local government
that is a party to a benefits agreement under subsection (a) to
mitigate impacts described in section 175(b).
``(c) Payments From Waste Fund.--The Secretary shall make payments to
a covered unit of local government under a benefits agreement under
this section from the Waste Fund.
``(d) Restriction on Use.--None of the payments made pursuant to a
benefits agreement under this section may be used--
``(1) directly or indirectly to influence legislative action
on any matter pending before Congress or a State legislature or
for any lobbying activity as provided in section 1913 of title
18, United States Code;
``(2) for litigation purposes; or
``(3) to support multistate efforts or other coalition-
building activities inconsistent with the siting, construction,
or operation of the repository.
``(e) Consent.--The acceptance or use of any of the benefits provided
under a benefits agreement under this section by any covered unit of
local government shall not be considered to be an expression of
consent, express or implied, to the siting of a repository in the State
of Nevada.
``(f) Covered Unit of Local Government Defined.--In this section, the
term `covered unit of local government' means--
``(1) any affected unit of local government with respect to a
repository; and
``(2) any unit of general local government in the State of
Nevada.''.
(b) Conforming Amendments.--
(1) Benefits agreement.--Section 170(a)(4) of the Nuclear
Waste Policy Act of 1982 (42 U.S.C. 10173(a)(4)) is amended--
(A) by inserting ``made available pursuant to a
benefits agreement under this section'' after ``under
this subtitle''; and
(B) by striking ``with a benefits agreement under
this section'' and inserting ``with such benefits
agreement''.
(2) Limitation.--Section 170(e) of the Nuclear Waste Policy
Act of 1982 (42 U.S.C. 10173(e)) is further amended by
inserting ``under this section'' after ``may be in effect''.
(3) Table of contents.--The table of contents for the Nuclear
Waste Policy Act of 1982 (42 U.S.C. 10101 note) is amended by
adding after the item relating to section 172, the following:
``Sec. 172A. Covered units of local government.''.
SEC. 404. TERMINATION.
Section 173 of the Nuclear Waste Policy Act of 1982 (42 U.S.C.
10173c) is amended--
(1) in subsection (a)--
(A) by striking ``under this title if'' and inserting
``under this title'';
(B) in paragraph (1), by inserting ``concerning a
repository or a monitored retrievable storage facility,
if'' before ``the site under consideration''; and
(C) in paragraph (2), by striking ``the Secretary
determines that the Commission cannot license the
facility within a reasonable time'' and inserting
``concerning a repository, if the Commission issues a
final decision disapproving the issuance of a
construction authorization for a repository under
section 114(d)(1)''; and
(2) by amending subsection (b) to read as follows:
``(b) Termination by State or Indian Tribe.--A State, covered unit of
local government (as defined in section 172A), or Indian tribe may only
terminate a benefits agreement under this title--
``(1) concerning a repository or a monitored retrievable
storage facility, if the Secretary disqualifies the site under
consideration for its failure to comply with technical
requirements established by the Secretary in accordance with
this Act; or
``(2) concerning a repository, if the Commission issues a
final decision disapproving the issuance of a construction
authorization for a repository under section 114(d)(1).''.
SEC. 405. PRIORITY FUNDING FOR CERTAIN INSTITUTIONS OF HIGHER
EDUCATION.
(a) In General.--Subtitle G of the Nuclear Waste Policy Act of 1982
(42 U.S.C. 10174 et seq.) is amended by adding at the end the following
new section:
``SEC. 176. PRIORITY FUNDING FOR CERTAIN INSTITUTIONS OF HIGHER
EDUCATION.
``(a) In General.--In providing any funding to institutions of higher
education from the Waste Fund, the Secretary shall prioritize
institutions of higher education that are located in the State of
Nevada.
``(b) Definition.--In this section, the term `institution of higher
education' has the meaning given that term in section 101 of the Higher
Education Act of 1965 (20 U.S.C. 1001).''.
(b) Conforming Amendment.--The table of contents for the Nuclear
Waste Policy Act of 1982 (42 U.S.C. 10101 note) is amended by adding
after the item relating to section 175, the following:
``Sec. 176. Priority funding for certain institutions of higher
education.''.
SEC. 406. DISPOSAL OF SPENT NUCLEAR FUEL.
Section 122 of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10142)
is amended by adding at the end the following: ``Any economic benefits
derived from the retrieval of spent nuclear fuel pursuant to this
section shall be shared with the State in which the repository is
located, affected units of local government, and affected Indian
tribes.''.
SEC. 407. UPDATED REPORT.
Section 175(a) of the Nuclear Waste Policy Act of 1982 (42 U.S.C.
10174a(a)) is amended by striking ``Nuclear Waste Policy Amendments Act
of 1987'' and inserting ``Nuclear Waste Policy Amendments Act of
2017''.
TITLE V--FUNDING
SEC. 501. ASSESSMENT AND COLLECTION OF FEES.
(a) In General.--Section 302(a)(4) of the Nuclear Waste Policy Act of
1982 (42 U.S.C. 10222(a)(4)) is amended--
(1) in the first sentence--
(A) by striking ``(4) Not later than'' and inserting
the following:
``(4) Assessment, collection, and payment of fees.--
``(A) Assessment of fees.--Not later than'';
(B) by striking ``the date of enactment of this Act''
and inserting ``the date of enactment of the Nuclear
Waste Policy Amendments Act of 2017''; and
(C) by striking ``collection and payment'' and
inserting ``assessment'';
(2) in the second sentence, by striking ``collection of the
fee'' and inserting ``such amount'';
(3) in the third sentence, by striking ``are being
collected'' and inserting ``will result from such amounts'';
(4) in the fifth sentence, by striking ``a period of 90 days
of continuous session'' and all that follows through the period
at the end and inserting ``the date that is 180 days after the
date of such transmittal.''; and
(5) by adding at the end the following:
``(B) Collection and payment of fees.--
``(i) In general.--Not later than 180 days
after the date of enactment of Nuclear Waste
Policy Amendments Act of 2017, the Secretary
shall establish procedures for the collection
and payment of the fees established by
paragraph (2) and paragraph (3), or adjusted
pursuant to subparagraph (A).
``(ii) Limitation on collection.--The
Secretary may not collect a fee established
under paragraph (2), including a fee
established under paragraph (2) and adjusted
pursuant to subparagraph (A)--
``(I) until the date on which the
Commission issues a final decision
approving or disapproving the issuance
of a construction authorization for a
repository under section 114(d)(1); and
``(II) after such date, in an amount
that will cause the total amount of
fees collected under this subsection in
any fiscal year to exceed 90 percent of
the amounts appropriated for that
fiscal year for purposes described in
subsection (d).
``(iii) Payment of full amounts.--
Notwithstanding the noncollection of a fee by
the Secretary pursuant to clause (ii) in any
fiscal year, a person who has entered into a
contract with the Secretary under this
subsection shall pay any uncollected amounts
when determined necessary by the Secretary,
subject to clause (ii), for purposes described
in subsection (d).''.
(b) Authority To Modify Contracts.--The Secretary of Energy may seek
to modify a contract entered into under section 302(a) of the Nuclear
Waste Policy Act of 1982 (42 U.S.C. 10222(a)) before the date of
enactment of this Act to ensure that the contract complies with the
provisions of such section, as amended by this Act.
(c) Technical and Conforming Amendments.--Section 302(a) of the
Nuclear Waste Policy Act of 1982 (42 U.S.C. 10222(a)) is amended--
(1) in paragraph (1), by striking ``paragraphs (2) and (3)''
and inserting ``paragraphs (2), (3), and (4)'';
(2) in paragraph (3), by striking ``126(b)''; and
(3) in paragraph (4), by striking ``insure'' and inserting
``ensure''.
SEC. 502. USE OF WASTE FUND.
(a) In General.--Section 302(d) of the Nuclear Waste Policy Act of
1982 (42 U.S.C. 10222(d)) is amended--
(1) in paragraph (1), by striking ``maintenance and
monitoring'' and all that follows through the semicolon at the
end and inserting ``maintenance and monitoring of any
repository or test and evaluation facility constructed under
this Act;'';
(2) in paragraph (4), by striking ``to be disposed of'' and
all that follows through the semicolon at the end and inserting
``to be disposed of in a repository or to be used in a test and
evaluation facility;'';
(3) in paragraph (5), by striking ``at a repository site''
and all that follows through the end and inserting ``at a
repository site or a test and evaluation facility site and
necessary or incident to such repository or test and evaluation
facility;'';
(4) in paragraph (6), by striking the period at the end and
inserting ``; and''; and
(5) by inserting after paragraph (6) the following:
``(7) payments under benefits agreements for a repository
entered into under section 170 or 172A.''.
(b) Conforming Amendments.--Section 117(d) of the Nuclear Waste
Policy Act of 1982 (42 U.S.C. 10137(d)) is amended by inserting
``designated with respect to a repository'' after ``such
representatives''.
SEC. 503. ANNUAL MULTIYEAR BUDGET PROPOSAL.
Section 302(e)(2) of the Nuclear Waste Policy Act of 1982 (42 U.S.C.
10222(e)(2)) is amended by striking ``triennially'' and inserting
``annually''.
SEC. 504. AVAILABILITY OF CERTAIN AMOUNTS.
Section 302 of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10222)
is amended by adding at the end the following:
``(f) Availability of Certain Amounts.--
``(1) In general.--Notwithstanding any other provision of
this section, for the purposes described in subsection (d) that
are specified in subparagraphs (A) through (E) of this
paragraph, the following amounts from the Waste Fund shall be
available to the Secretary without further appropriation:
``(A) An amount equal to 1 percent of 2017 Waste Fund
amounts, on the date on which high-level radioactive
waste or spent nuclear fuel is received at the Yucca
Mountain site, and in each of the 25 years thereafter,
for costs associated with construction and operation of
a repository or facilities at the Yucca Mountain site.
``(B) An amount equal to 1 percent of 2017 Waste Fund
amounts, on the date on which high-level radioactive
waste or spent nuclear fuel is received at the Yucca
Mountain site, to make payments under a benefits
agreement entered into under section 170 with the State
of Nevada concerning a repository.
``(C) An amount equal to 0.1 percent of 2017 Waste
Fund amounts, on the date that is one year after the
date on which high-level radioactive waste or spent
nuclear fuel is received at the Yucca Mountain site,
and in each year thereafter until closure of the
repository, to make payments under a benefits agreement
entered into under section 170 with the State of Nevada
concerning a repository.
``(D) An amount equal to 20 percent of 2017 Waste
Fund amounts, on the date on which monitoring of the
repository during the decommissioning period commences,
for waste package and drip shield fabrication
activities.
``(E) An amount equal to the amount of any fee
collected pursuant to subsection (a)(3) after the date
of enactment of the Nuclear Waste Policy Amendments Act
of 2017, on the date on which such fee is collected,
for costs associated with construction and operation of
a repository or facilities at the Yucca Mountain site.
``(2) 2017 waste fund amounts.--For purposes of this
subsection, the term `2017 Waste Fund amounts' means the
amounts in the Waste Fund on the date of enactment of the
Nuclear Waste Policy Amendments Act of 2017.''.
TITLE VI--MISCELLANEOUS
SEC. 601. CERTAIN STANDARDS AND CRITERIA.
(a) Generally Applicable Standards and Criteria.--
(1) Environmental protection agency standards.--
(A) Determination and report.--Not later than 2 years
after the Nuclear Regulatory Commission has issued a
final decision approving or disapproving the issuance
of a construction authorization for a repository under
section 114(d)(1) of the Nuclear Waste Policy Act of
1982 (42 U.S.C. 10134(d)) (as so designated by this
Act), the Administrator of the Environmental Protection
Agency shall--
(i) determine if the generally applicable
standards promulgated under section 121(a) of
the Nuclear Waste Policy Act of 1982 (42 U.S.C.
10141(a)) should be updated; and
(ii) submit to Congress a report on such
determination.
(B) Rule.--If the Administrator of the Environmental
Protection Agency determines, under subparagraph (A),
that the generally applicable standards promulgated
under section 121(a) of the Nuclear Waste Policy Act of
1982 (42 U.S.C. 10141(a)) should be updated, the
Administrator, not later than 2 years after submission
of the report under subparagraph (A)(ii), shall, by
rule, promulgate updated generally applicable standards
under such section.
(2) Commission requirements and criteria.--Not later than 2
years after the Administrator of the Environmental Protection
Agency promulgates updated generally applicable standards
pursuant to paragraph (1)(B), the Commission shall, by rule,
promulgate updated technical requirements and criteria under
section 121(b) of the Nuclear Waste Policy Act of 1982 (42
U.S.C. 10141(b)) as necessary to be consistent with such
updated generally applicable standards.
(b) Site-Specific Standards and Criteria.--Nothing in this section
shall affect the standards, technical requirements, and criteria
promulgated by the Administrator of the Environmental Protection Agency
and the Nuclear Regulatory Commission for the Yucca Mountain site under
section 801 of the Energy Policy Act of 1992 (42 U.S.C. 10141 note).
SEC. 602. APPLICATION.
Section 135 of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10155)
is amended by striking subsection (h) and redesignating subsection (i)
as subsection (h).
SEC. 603. TRANSPORTATION SAFETY ASSISTANCE.
Section 180(c) of the Nuclear Waste Policy Act of 1982 (42 U.S.C.
10175(c)) is amended--
(1) by striking ``(c) The Secretary'' and inserting the
following:
``(c) Training and Assistance.--
``(1) Training.--The Secretary''; and
(2) by striking ``The Waste Fund'' and inserting the
following:
``(2) Assistance.--The Secretary shall, subject to the
availability of appropriations, provide in-kind, financial,
technical, and other appropriate assistance, for safety
activities related to the transportation of high-level
radioactive waste or spent nuclear fuel, to any entity
receiving technical assistance or funds under paragraph (1).
``(3) Source of funding.--The Waste Fund''.
SEC. 604. OFFICE OF CIVILIAN RADIOACTIVE WASTE MANAGEMENT.
(a) Amendment to the Nuclear Waste Policy Act of 1982.--Subsection
(b) of section 304 of the Nuclear Waste Policy Act of 1982 (42 U.S.C.
10224(b)) is amended to read as follows:
``(b) Director.--
``(1) Functions.--The Director of the Office shall be
responsible for carrying out the functions of the Secretary
under this Act. The Director of the Office shall report
directly to the Secretary.
``(2) Qualifications.--The Director of the Office shall be
appointed from among persons who have extensive expertise and
experience in organizational and project management.
``(3) Tenure.--The Director of the Office may serve not more
than two 5-year terms.
``(4) Service during interim period.--Upon expiration of the
Director's term, the Director may continue to serve until the
earlier of--
``(A) the date on which a new Director is confirmed;
or
``(B) the date that is one year after the date of
such expiration.
``(5) Removal.--The President may remove the Director only
for inefficiency, neglect of duty, or malfeasance in office. If
the President removes the Director, the President shall submit
to Congress a statement explaining the reason for such
removal.''.
(b) Transfer of Functions.--
(1) Amendment.--Section 203(a) of the Department of Energy
Organization Act (42 U.S.C. 7133(a)) is amended by striking
paragraph (8).
(2) Transfer of functions.--The functions described in the
paragraph (8) stricken by the amendment made by paragraph (1)
shall be transferred to and performed by the Office of Civilian
Radioactive Waste Management, as provided in section 304 of the
Nuclear Waste Policy Act of 1982 (42 U.S.C. 10224).
(c) Technical Amendment.--Section 2(17) of the Nuclear Waste Policy
Act of 1982 (42 U.S.C. 10101(17)) is amended by striking ``section
305'' and inserting ``section 304''.
SEC. 605. WEST LAKE LANDFILL.
Not later than one year after the date of enactment of this Act, the
Administrator of the Environmental Protection Agency shall submit to
Congress a report containing the final remedy to be implemented at the
West Lake Landfill and the expected timeline for implementation of such
final remedy.
SEC. 606. SUBSEABED OR OCEAN WATER DISPOSAL.
(a) Prohibition.--Section 5 of the Nuclear Waste Policy Act of 1982
(42 U.S.C. 10104) is amended--
(1) by striking ``Nothing in this Act'' and inserting:
``(a) Effect on Marine Protection, Research, and Sanctuaries Act of
1972.--Nothing in this Act''; and
(2) by adding at the end the following new subsection:
``(b) Subseabed or Ocean Water Disposal.--Notwithstanding any other
provision of law--
``(1) the subseabed or ocean water disposal of spent nuclear
fuel or high-level radioactive waste is prohibited; and
``(2) no funds shall be obligated for any activity relating
to the subseabed or ocean water disposal of spent nuclear fuel
or high-level radioactive waste.''.
(b) Repeal.--Section 224 of the Nuclear Waste Policy Act of 1982, and
the item relating thereto in the table of contents for such Act, are
repealed.
SEC. 607. SENSE OF CONGRESS REGARDING STORAGE OF NUCLEAR WASTE NEAR THE
GREAT LAKES.
It is the Sense of Congress that the Governments of the United States
and Canada should not allow permanent or long-term storage of spent
nuclear fuel or other radioactive waste near the Great Lakes.
Purpose and Summary
H.R. 3053, the Nuclear Waste Policy Amendments Act of 2017,
was introduced on June 26, 2017, by Rep. John Shimkus (R-IL).
The bill amends the Nuclear Waste Policy Act of 1982 (NWPA)\1\
to improve the Department of Energy's (DOE) nuclear waste
management program to store and dispose of spent nuclear fuel
(SNF) and high-level radioactive waste (HLW).
---------------------------------------------------------------------------
\1\P.L. 97-425
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Title I of the bill directs DOE to initiate a program to
consolidate and temporarily store commercial SNF during the
development, construction, and initial operation of a
repository, with preference for the Department to take
ownership of SNF from facilities that have ceased commercial
operation. This title also authorizes DOE to enter into an
agreement with a non-Federal entity for the purposes of storing
SNF to which the Department holds title.
Title II addresses Federal land withdrawal and related
management issues associated with the licensing and
construction of a permanent geologic repository at the Yucca
Mountain, Nevada site. This title provides for the permanent
withdrawal of specific Federal land for repository use by DOE;
updates the Nuclear Regulatory Commission (NRC) licensing
process and conditions for the repository; and limits
activities relating to a separate repository for HLW generated
by atomic energy defense activities.
Title III provides DOE with consolidated storage options to
help fulfill the Federal government's obligations to take title
to SNF. Provisions amend the NWPA to authorize DOE to modify
contracts to allow the transfer of commercial SNF to DOE for
monitored retrievable storage in addition to DOE's existing
legal obligations to ensure the permanent disposal of
commercial spent fuel.
Title IV provides benefits to the repository host State and
units of local governments. The provisions update the NWPA to
requalify the State of Nevada to enter into an agreement with
DOE to help mitigate potential impacts that may result from
hosting the repository. The title also allows qualified covered
units of local government to enter into separate benefits
agreements with DOE.
Title V amends the method by which DOE funds its nuclear
waste management activities through the collection and usage of
the Nuclear Waste Fund (Fund). The bill also makes specific
portions of previously collected funding available to the
Department without further appropriation throughout the multi-
decade life cycle of the repository program.
Title VI makes miscellaneous changes to the NWPA, including
updating the generic (non-Yucca Mountain specific) standards
for a repository, setting a fixed-term appointment for the
Office of Civilian Radioactive Waste Management (OCRWM)
Director, and expanding the qualified usage of DOE financial
assistance to state and local organizations to support SNF
transportation activities.
Background and Need for Legislation
Historical context
Spent nuclear fuel and high-level radioactive waste is
generated as a result of commercial generation of nuclear power
and as a byproduct of our nation's nuclear defense activities,
such as legacy material from maintaining a nuclear weapons
stockpile, and used fuel from the U.S. Navy's fleet of nuclear-
powered submarines and aircraft carriers. This material must be
permanently isolated from the manmade environment, and
scientific consensus has consistently maintained that isolation
in a deep, geologic repository is the best path forward.\2\
---------------------------------------------------------------------------
\2\The first comprehensive analysis was undertaken in the 1950's
and repository disposal remains the most widely supported policy. See
National Research Council. 1957. The Disposal of Radioactive Waste on
Land. Washington, DC: The National Academies Press. https://doi.org/
10.17226/10294. See, more recently, National Research Council. 2001.
Disposition of High-Level Waste and Spent Nuclear Fuel: The Continuing
Societal and Technical Challenges. Washington, DC: The National
Academies Press. https://doi.org/10.17226/10119.
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Throughout the 1960's and 1970's, the Federal government
unsuccessfully sought a permanent disposal site for this
material. For example, in the 1960's the Atomic Energy
Commission (AEC)\3\ attempted to locate a deep geologic
repository at an abandoned salt mine near Lyons, Kansas. The
State of Kansas ultimately opposed the siting of a repository
at the Lyons site because of a lack of transparency and due to
processes associated with the site's scientific
characterization. Also, in the late 1970's, the Energy Research
and Development Administration\4\ conducted the National Waste
Terminal Storage Program. The Program identified dozens of
geologic sites in 36 states to characterize as potential
repositories. However, when the Federal government sent
requests to the governors representing the prospective
locations, no governor agreed to move forward in partnership
with DOE. The program was subsequently terminated.
---------------------------------------------------------------------------
\3\The United States Atomic Energy Commission was created by the
Atomic Energy Act to promote and regulate the use of atomic science and
technology. The AEC was disbanded in 1974 and two organizations were
established to separate the nuclear promotional activities, which were
placed into the Energy Research and Development Administration, from
the regulation of civilian nuclear activities, within the Nuclear
Regulatory Commission.
\4\In 1977, Congress enacted the Department of Energy Organization
Act, which transferred ERDA's activities into the newly established
Department of Energy.
---------------------------------------------------------------------------
At the same time, pressure was growing to establish a
program for permanent disposal. During the late 1970's, a
number of state legislatures were successful in efforts to
prohibit the construction of commercial nuclear power plants
until there was a Federal nuclear waste management program.\5\
Additionally, the NRC was successfully sued and required by the
courts to have a reasonable expectation that the commercial SNF
would be permanently disposed.\6\ As a consequence of these
lawsuits, the NRC developed what was known as the ``Waste
Confidence'' rule, which stated that the NRC could continue to
license commercial reactors as long as there was a certain
level of assurance that there was a nuclear waste disposal
program in place.
---------------------------------------------------------------------------
\5\California and Minnesota were prominent in their efforts.
According to the National Conference of State Legislatures, California,
Connecticut, Hawaii, Illinois, Maine, Massachusetts, Minnesota,
Montana, New Jersey, New York, Oregon, Rhode Island, Vermont, and West
Virginia currently have restrictions on new commercial nuclear power
plants due to disposal policy.
\6\See Minnesota v. NRC 302 F.2d 412 (D.C. Cir. 1979)
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The Nuclear Waste Policy Act of 1982
The combination of the external efforts, along with the
Federal government's unsuccessful attempts to find a nuclear
waste disposal option, prompted Congress to take control of the
process and enact the NWPA. The NWPA established the statutory
framework that continues to govern DOE's nuclear waste
management policy and the development of a permanent geologic
nuclear waste repository.
NWPA established a scientifically based, multi-stage,
statutory process for selecting the eventual site of the
nation's permanent geologic repository.\7\ NWPA designated
specific responsibilities, decision schedules, and funding to
develop a secure facility to dispose of the radioactive waste
located around the nation. The NWPA created a Federal
obligation to take title to, remove, and transport spent
nuclear fuel from commercial nuclear power reactor sites around
the nation directly to a permanent repository or an interim
storage facility before permanent disposal. The Act provided
what was intended to be a dedicated funding stream for the
program by establishing the Nuclear Waste Fund, funded by a fee
charged on nuclear-generated electricity, under the principle
that those who benefit from nuclear power should fund waste
disposal activities. The NWPA designated the Federal agencies
responsible for implementing this nuclear waste policy and
specified their roles: DOE, to characterize, site, design,
build, and manage a Federal waste repository; the Environmental
Protection Agency (EPA), to set the public health standards for
the repository; and the Nuclear Regulatory Commission (NRC), to
license the repository's construction, operation, and closure.
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\7\For additional background: see ``Closing Yucca Mountain:
Litigation Associated with Attempts to Abandon the Planned Nuclear
Waste Repository'' Congressional Research Service, July 4, 2012
(R41675).
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Key provisions of NWPA continue to affect DOE's nuclear
waste management policy today and inform the need for H.R.
3053. These provisions include:
Establishment of a formal responsibility by
DOE to dispose of commercially generated SNF, which was
required to be subject to a legally-binding contract
between DOE and the commercial nuclear power generator;
Creation of a ``fee for service'' model for
the Nuclear Waste Fund, in which commercial utilities
that generate SNF pay a fee to DOE in exchange for the
future commitment to dispose of the SNF;
Establishment of a January 31, 1998 deadline
for DOE to begin taking title to the commercial SNF.
The Act also established the Office of Civilian Radioactive
Waste Management (OCRWM) within DOE, headed by a Director who
is appointed by the President and confirmed by the Senate. The
Director is ``responsible for carrying out the functions of the
Secretary'' under the NWPA and is directly responsible to the
Secretary.
Under the Act, Congress required a Presidential finding\8\
as to whether waste from atomic energy defense activities could
be disposed of in a single, common repository to be developed
under the NWPA. In 1985, President Reagan determined that a
defense waste only repository was not required and DOE
proceeded to develop and plan for one repository to include
both defense HLW and commercial SNF.\9\
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\8\Section 8 of the Nuclear Waste Policy Act of 1982.
\9\In April 2015, President Obama issued a determination that HLW
from atomic energy defense activities, such as nuclear weapons programs
and spent nuclear fuel from Navy submarines and aircraft carriers, is
required to be disposed of in a separate repository apart commercial
SNF. In January 2017, the Government Accountability Office found DOE's
cost and schedule estimates for the two-repository approach are not
reliable, excluded major costs, lacked information and the schedule was
not realistic. GAO recommended DOE ``(1) assess benefits, costs, and
schedule estimates, and (2) reassess its decision to conduct site
section activities.'' U.S. Government Accountability Office, ``Nuclear
Waste: Benefits and Costs Should Be Better Understood Before DOE
Commits to a Separate Repository for Defense Waste,'' GAO-17-174.
January 31, 2017.
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As previously noted, the Act established a Waste Fund
intended to be a ``fee for service'' model in which commercial
entities paid the Federal government a fee in return for the
contractual obligation that DOE would take title to the SNF.
Congress recognized, under the NWPA provisions, that access to
previously collected program funding would give DOE certainty
in planning for a multi-generational project. However, the
budgetary treatment of the Fund, under a subsequent statute
enacted in 1985, limited the original vision and funding model
intended under the NWPA.
The Gramm-Rudman-Hollings Balanced Budget Act of 1985\10\
set in motion policy changes that designated the accounting
method of the Waste Fund fee as a mandatory receipt, but
subjected spending on the project from the Fund as
discretionary spending. Because payments from the Fund were
classified as discretionary, money spent on nuclear waste
management activities has been subject to overall budget caps
of the Federal government and thus has competed with all other
discretionary spending, which has limited the use of the Fund.
At the same time, the receipts continue to be applied annually
to offset deficit spending, further limiting access to the fund
for its intended purpose.
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\10\P.L. 99-177.
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To date, over $40 billion has been collected for the
purposes of the Waste Fund and the current balance of the
account is $37 billion.\11\ Future access to this fund will
remain constrained by the current accounting methods absent
additional statutory direction to reestablish long-term
spending certainty.\12\
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\11\DOE Office of Inspector General, ``Audit Report: Department of
Energy's Nuclear Waste Fund's Fiscal Year 2016 Financial Statement
Audit,'' OAI-FS-17-04. December 2016.
\12\For more information regarding the Waste Fund's creation,
budgetary treatment and need for reform, see Committee on Energy and
Commerce Subcommittee on Environment and the Economy hearing titled,
``The Nuclear Waste Fund: Budgetary, Funding, and Scoring Issues,'' on
December 3, 2015.
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Congress set the initial fee at one mil (one tenth of one
cent) per kilowatt hour, but gave the Secretary the authority
to revise the fee level. To determine the lifecycle funding
requirements of the program, the Act required the Secretary to
annually review the level of the fee, through what is known as
the ``fee adequacy'' report. Over the period in which the fee
was collected, the Secretary never exercised this authority to
adjust the fee from the original level established by Congress.
Repository selection and monitored retrievable storage
The NWPA required DOE to establish a process to identify
and characterize repository sites in order to select a single
location for the first repository. From 1983 through 1987, DOE
conducted several multi-attribute analyses for sites of the
first repository.\13\ The locations of the three final
candidate sites included Hanford, Washington; Deaf Smith
County, Texas; and Yucca Mountain, Nevada. In the analysis, the
Yucca Mountain site consistently ranked at the top of the most
suitable locations.\14\
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\13\During this time, DOE also initiated a program to identity the
site of a second repository in the eastern United States. In
particular, as a matter of geographic equity, western states believed
there should be a repository in states that relied more heavily on
nuclear power, namely east of the Mississippi River. However, this
second repository program was strongly opposed by potentially impacted
governors and considered unnecessary until the first repository was
operational. When Congress amended the NWPA in 1987, the second
repository program had already been terminated by DOE, but Congress
established a statutory cap of 70,000 metric tons of SNF in the Yucca
Mountain repository to create the potential future need for a second
repository.
\14\Department of Energy, ``A Multiattribute Utility Analysis of
Sites Nominated For Characterization For the First Radioactive-Waste
Repository--A Decision Aiding Methodology,'' DOE/RW-0074, May 1986.
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Section 141 of the NWPA also authorized DOE to pursue a
``monitored retrievable storage'' (MRS) facility.\15\ In
authorizing an MRS program, Congress found that storage would
provide optionality in the waste management system to the
Department as it developed a permanent repository. The
optionality would allow DOE a higher probability of taking
title to SNF by the 1998 deadline. In performing the
requirements of the MRS program, DOE identified three sites in
Tennessee and formally recommended the Clinch River Site as the
preferred location. The State of Tennessee disapproved of this
recommendation, not on scientific or technical grounds, but
because it determined that an MRS facility was not needed.
Testimony before the Committee on Energy and Commerce during
this period was clear: all initial efforts should be focused on
the development of the first permanent repository.\16\
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\15\The NWPA defines an MRS facility as a facility designed to
accommodate SNF and HLW from civilian nuclear activities; that permits
continuous monitoring, management, and maintenance of SNF and waste for
the foreseeable future; that provides for the ready retrieval of such
SNF and waste for further processing or disposal; and that safely
stores SNF and waste as long as may be necessary. See NWPA sec.
141(b)(1).
\16\The Committee on Energy and Commerce Subcommittee on Energy
Conservation and Power held hearings in the 99th Congress on August 1,
1985, October 15, 1985, April 23, 1986, and May 1, 1986, to examine the
progress of the DOE nuclear waste management program under the Nuclear
Waste Policy Act. 43 witnesses appeared before the Committee in these
hearings.
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Nuclear Waste Policy Act Amendments of 1987
Following extensive Congressional examination of DOE's
nuclear waste program during this time, and partially out of
concern of program cost and a rapidly approaching legal
deadline, Congress amended the NWPA in 1987.\17\ Congress
designated the Yucca Mountain, Nevada site as the sole location
for the first repository and prohibited DOE from conducting any
site-specific work other than at the Yucca location.
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\17\Congress amended the Nuclear Waste Policy Act in the Omnibus
Budget Reconciliation Act of 1988: P.L. 100-203.
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The 1987 Amendments also amended section 141 by nullifying
the Clinch River recommendation and establishing a new, more
prescriptive siting, characterization, and development process
for DOE's MRS program. The conditions for a DOE MRS included a
10,000-ton capacity limit, required that NRC issue a
construction authorization for the Yucca Mountain repository
prior to developing an MRS, and prohibited an MRS facility from
being located within 50 miles of the repository. These policies
were intended to assure that an MRS facility would not
undermine the policy and related support for developing a
permanent disposal facility. The MRS provisions remained
focused exclusively on a DOE-owned and operated facility.
Congress acknowledged that Nevada deserved the opportunity
to benefit as the host State. Subtitle F (Benefits) of the NWPA
Amendments of 1987 includes a structured process for Nevada to
enter into a benefits agreement with the Secretary of Energy.
However, Congress conditioned the benefits agreements on
requiring the State of Nevada to waive their ability to
disapprove of the site recommendation.\18\ Additionally,
Subtitle G of the NWPA Amendments (Other Benefits) directed the
Secretary to preferentially site Federal research projects in
the host State and to publish a report of potential impacts
associated with hosting the repository. The report was to serve
as a basis for Federal government mitigation efforts.\19\
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\18\The State of Nevada disapproved of the site selection and never
entered into an agreement, largely due to the condition the State would
have to waive its right to veto the site recommendation.
\19\The Secretary of Energy published the Section 175 Report in
1988 and found that DOE had sufficient authority to mitigate impacts
through financial assistance, transportation programmatic decisions,
collaboration with the State and units of local government, and
monitoring programs.
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The Yucca Mountain Program
In 1992, Congress took another significant step relating to
the repository development by requiring the EPA to set
regulations for protection of human health and the environment
specifically for the Yucca Mountain site.\20\ The Yucca
Mountain specific standards superseded standards that had been
previously required under section 121 of the NWPA. The EPA
standards were finalized in 2001 and were based on the concept
of ``reasonable expectation''\21\ of performance over a 10,000-
year timeframe. The State of Nevada challenged the standards,
and EPA subsequently modified the compliance period to a one-
million-year performance standard. The development of these
Yucca Mountain specific standards and associated actions slowed
implementation of DOE's repository program.
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\20\P.L. 102-486
\21\``Reasonable expectation means that the NRC is satisfied that
compliance will be achieved based on upon the full record before it.
Reasonable expectation is used by EPA to recognize that absolute proof
is neither necessary nor possible since performance of the disposal
system must be projected 10,000 years.'' See: https://www.epa.gov/
sites/production/files/2015-05/documents/wm02papr.pdf
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Throughout the 1990's, DOE studied, characterized, and
designed a repository at Yucca Mountain that would include
multiple manmade barriers in addition to taking advantage of
the unsaturated location of the site. This included the
development of a total system performance assessment, which
provides long-term performance estimates based on the
probabilistic likelihood of future disruptive events.
In 2002, as required by the NWPA,\22\ Energy Secretary
Spencer Abraham recommended the Yucca mountain site to
President Bush, and President Bush formally approved the Yucca
Mountain site. Pursuant to section 116(b) of the NWPA, the
State of Nevada issued a notice of disapproval of the project.
However, Congress, as provided in NWPA, overrode the
disapproval.\23\ Having completed the statutorily required
selection and approval process for the Yucca Mountain site, DOE
prepared the supporting documentation to submit a license
application for a construction authorization to the Nuclear
Regulatory Commission.
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\22\Section 115 of the NWPA sets for the review of the repository
site selection process. Upon the State's notice of disapproval, the
introduction of a joint resolution of Congress was required. The
resolution had specific procedures for consideration in both the House
of Representatives and Senate which required expedited consideration.
\23\H.J. Res 87 was introduced in the House on April 11, 2002 by
Energy and Commerce Chairman Joe Barton. The Committee on Energy and
Commerce reported the resolution favorably on May 1. The House passed
the resolution by a vote of 306-117 on May 8 and the Senate passed the
resolution without amendment by voice vote on July 9.
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DOE submitted a license application seeking authorization
to construct the repository, required by section 114(d) of the
NWPA, to the NRC in June 2008.\24\ The license application
contained a comprehensive Safety Analysis Report, which
incorporated the full scientific and environmental analysis of
the Yucca Mountain site to provide information necessary for
NRC to determine if the repository would meet all regulatory
requirements for the safe, permanent disposal of SNF and HLW.
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\24\Section 114 of the NWPA established requirements relating to
the process by which DOE and the NRC license the Yucca Mountain
repository. The law requires the Secretary of Energy submit to the NRC
an application for a construction authorization for a repository
following the President's site recommendation. It requires that the
Commission ``shall consider an application for a construction
authorization for all or part of a repository'' and the Commission
``shall issue a final decision approving or disapproving the issuance
of a construction authorization not later than the expiration of 3
years after the date of the submission of such application.'' In
addition, Section 121 of the NWPA requires a three-part licensing
process for repositories. The steps include NRC approval or disapproval
of ``(i) applications for authorization to construct repositories; (ii)
applications for licenses to receive and possess spent nuclear fuel and
high-level radioactive waste in such repository; and (iii) applications
for authorization for closure and decommissioning of such
repositories.''
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NRC docketed the license application in September 2008. It
then commenced a two-pronged review of the application. First,
it launched a technical licensing review by the NRC staff to
assess the technical merits of the repository design and
formulate a position on whether to issue a construction
authorization for the repository. Second, NRC initiated
adjudicatory hearings by the NRC's Construction Authorization
Board to consider technical and legal challenges to the
application.\25\ To date, the State of Nevada has filed more
than 200 contentions for adjudication. Pursuant to NWPA, the
Commission, based on a staff Safety Evaluation Report (SER) and
the Board hearings, must determine solely on the technical
merits whether to authorize construction of the repository.
---------------------------------------------------------------------------
\25\See https://www.nrc.gov/waste/hlw-disposal/licensing-
process.html
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Subsequent NRC review of the construction authorization
resulted in the issuance of a five-volume SER,\26\ in which NRC
technical staff concluded that the Yucca Mountain project, as
outlined in the DOE license application, was reasonably
expected to meet EPA's one-million-year regulatory
requirements. When the staff released the final SER volume in
January 2015, it noted that DOE had not yet met two conditions
for license issuance: DOE had not demonstrated the land would
be permanently withdrawn for use of the repository nor had DOE
acquired the necessary water use permits from Nevada.\27\ This
SER was completed against a backdrop of an Administration that
had been attempting to end the Yucca Mountain Program.
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\26\Nuclear Regulatory Commission, ``Safety Evaluation Report
Related to Disposal of High-Level Radioactive Waste in a Geologic
Repository at Yucca Mountain, Nevada,'' NUREG-1949. Available at:
https://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1949/
\27\The Department of Energy sought a water use permit from the
Nevada State Water Engineer. However, the State of Nevada enacted a law
stating the Yucca Mountain repository was not in the public interest,
which is a requirement for the State to issue a water permit.
Litigation between DOE and Nevada is currently under a stay following
the Obama Administration's decision to stop work on the repository
program.
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Attempts to end the Yucca Mountain Program
In 2009, despite the statutory requirements and the
successful submission of a license application for repository
construction, the Obama Administration initiated a process to
change course on DOE's nuclear waste management policy.\28\
Over the course of two fiscal years, the Secretary of Energy
dismantled the agency's staff and closed OCRWM offices. In
March 2010, DOE submitted a motion to the NRC to withdraw
permanently the DOE application for a license to construct a
repository at Yucca Mountain.\29\ The motion was unsuccessful,
but the Administration continued other efforts to defund the
program--effectively halting NRC adjudicatory proceedings, and
delaying issuance of the SER. Concurrently, the Administration
initiated a study of potential recommendations to reform
approaches to nuclear waste management.\30\ Energy Secretary
Steven Chu established the Blue Ribbon Commission on America's
Nuclear Future (BRC) to recommend an alternative nuclear waste
policy. The BRC issued its final report in 2012,\31\ and, in
response to the BRC's recommendations, DOE issued its own
``Strategy for the Management and Disposal of Used Nuclear Fuel
and High-Level Radioactive Waste'' in 2013.\32\
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\28\See for example, FY 2010 Congressional Budget Request for DOE,
at page 504, which notes in relevant part: ``The FY2010 requests . . .
implements the Administration's decision to terminate the Yucca
Mountain program . . . .'' DOE Office of Chief Financial Officer, May
2009.
\29\``In the Matter of U.S. Department of Energy (High-Level Waste
Repository),'' Docket No. 63-001. The NRC rejected DOE's petition to
withdraw and ensuing decisions by the D.C. Circuit Court of Appeals
required the NRC to continue its review of the license application.
\30\President Obama directed the Secretary of Energy to create the
Blue Ribbon Commission for America's Nuclear Future, which would not
identify an alternative site, but would recommend reforms to nuclear
waste policy established in statute; See http://brc.gov/
\31\Blue Ribbon Commission on America's Nuclear Future, ``Report to
the Secretary of Energy,'' January 2012.
\32\Department of Energy, ``Strategy for the Management and
Disposal of Used Nuclear Fuel and High-Level Radioactive Waste,''
January 2013.
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The BRC and ``DOE Strategy'' both recommended that DOE
should pursue a consolidated interim storage program, similar
to the NWPA's MRS program. The recommendations centered on
proposals from private companies to acquire an NRC license for
storage of SNF\33\ and enter into a contract with DOE. The BRC
and ``DOE Strategy'' also emphasized the first storage facility
should prioritize taking title to SNF from locations that have
permanently ceased commercial operation.\34\
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\33\One private entity, Private Fuel Storage LLC, currently holds
an NRC license for this purpose. Two companies have submitted a license
application; however, one company requested no further NRC action on
the application and NRC has not yet formally accepted the other
application as part of the licensing docket.
\34\For a more complete record of attempts to end the Yucca
Mountain Program and related activities, see the following Committee on
Energy and Commerce hearings: ``The Role of the Nuclear Regulatory
Commission in America's Energy Future,'' May 4, 2011, Serial No. 112-
43; ``The Department of Energy's Role in Managing Civilian Radioactive
Waste,'' June 1, 2011, Serial No. 112-54; ``The NRC Inspector General
Report on the `NRC Chairman's Unilateral Decision to Terminate NRC's
Review of the DOE Yucca Mountain Repository License Application',''
June 14, 2011, Serial No. 112-161; ``NRC Repository Safety Division--
Staff Perspective on Yucca License Review, June 24, 2011, Serial No.
112-67; and ``Recommendations of the Blue Ribbon Commission on
America's Nuclear Future,'' February 1, 2012, Serial No. 112-109.
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Mounting Liabilities
After the 1998 deadline was missed for DOE to take title to
SNF, utilities filed suit against the Department because it had
not met the legally required terms of the Standard
Contract.\35\ Through multiple court cases, DOE was ultimately
held in partial breach of contract\36\ and ordered to pay
financial damages to the utilities. The damages reimbursed
costs associated with storing SNF onsite, which would not have
been necessary had DOE taken title to the fuel for disposal.
The Courts directed that these damages were to be paid out of a
specific Treasury Department account, known as the Judgment
Fund, which pays all claims against the Federal government,
rather than out of the Nuclear Waste Fund, which was
specifically dedicated to funding nuclear waste management
activities.
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\35\The Standard Contract is required under the NWPA for entities
licensed under section 103 or 104 of the Atomic Energy. The contract
governs the disposal of HLW and SNF that may result from the use of
such license. See section 302(b) of the NWPA.
\36\A ``partial breach of contract'' determines that damages are
ongoing. In Indiana Michigan Power Co. v. United States it was held
that a ``partial breach plaintiff can recover damages incurred from the
point at which the `party has reason to know that performance by the
other party will not be forthcoming' to the date of trail.'' For more
information see: Congressional Research Service, ``Legal Developments
Relating to Nuclear Waste Storage and Disposal in the Yucca Mountain
Repository Site,'' R44151. August 29, 2016.
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To date, total damages are expected to total approximately
$30 billion.\37\ This taxpayer liability estimate has risen by
about two billion dollars annually over the last decade.\38\
---------------------------------------------------------------------------
\37\Department of Energy, ``Fiscal Year 2016: Agency Financial
Report,'' DOE/CF-0128, November 2016. The DOE Report notes that
industry estimates the total liability will exceed $50 billion. Based
on recent trends, the industry estimate may be reasonable.
\38\For more information see letter from Committee on Energy and
Commerce Environment Subcommittee Chairman John Shimkus to Secretary of
Energy Rick Perry dated August 21, 2017.
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Need for Legislation
The country's long history of challenges managing nuclear
waste, the extensive scientific and technical record associated
with the Yucca Mountain site, and decades of Congressional
oversight by the Committee on Energy and Commerce, indicate the
essential framework established in the NWPA remains sound.
Despite substantial delays, the process succeeded in
meeting a number of the critical statutory steps necessary for
establishing a permanent repository. With Congress's
affirmative, bi-partisan support, the Department of Energy
produced a complete license application for the Yucca Mountain
repository. The NRC initiated the critical, independent review
of the license application, and found that the proposed project
would meet all regulatory requirements.
After much delay, Congress must resurrect a stalled
program, including the governance regime and funding necessary
for DOE to defend the application and for NRC to complete the
adjudicatory process. Only when NRC completes the process and
makes a decision on the license application will the public
have full information about the safety of the Yucca Mountain
Site. In the long term, the committee's oversight demonstrates
the need to ensure durable funding for operating the facility
for decades. As the preceding section indicates, there are a
number of practical reforms to NWPA that will help ensure both
short-term and long-term success of the program. These include
provisions to address governance, access to the Nuclear Waste
Fund, state participation, and adding flexibility for the
Secretary of Energy to ensure more timely and sustained
implementation of the nation's responsibilities for disposing
of SNF and HLW.
WHAT THE BILL WILL DO
H.R. 3053, Nuclear Waste Policy Amendments Act of 2017,
makes targeted and practical updates to the Nuclear Waste
Policy Act, to provide a durable and effective Federal nuclear
waste management program. Enactment of this bill will address
key challenges associated with storage and disposal of SNF and
HLW to ensure the Federal government remains on the path to
fulfill its legal and moral obligation to ratepayers,
taxpayers, and communities across the country.
Consolidated interim storage
Title I amends Subtitle C of the NWPA, Monitored
Retrievable Storage, to direct DOE to initiate a program to
take ownership of and store SNF. The bill authorizes DOE to
enter into MRS agreements with non-Federal entities to serve as
a temporary storage facility. Taken together, the provisions
create a structured, predictable, and cost-effective program to
provide optionality for DOE, while the permanent repository is
licensed and constructed during initial repository operations.
The storage program's first step requires the Secretary of
Energy to submit a report to Congress by June 1, 2019, on the
need for and feasibility of the construction of one or more MRS
facilities. As part of the original passage of the NWPA,
Congress required DOE to submit this proposal by June 1,
1985.\39\ However, as previously described, DOE's efforts to
develop an MRS facility were unsuccessful. Today, the delayed
repository program and associated financial liabilities have
changed the circumstances concerning the potential viability
and need for MRS.
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\39\Department of Energy, ``Monitored Retrievable Storage
Submission to Congress,'' DOE/RW-0035. March 1987.
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DOE's MRS program requires the Secretary receive robust
information relating to the potential use of an MRS agreement
with a non-Federal entity. Data collected through the issuance
of a request for information and, should DOE continue to pursue
an MRS facility, a request for proposal, should assure that the
initial storage facility is appropriately scoped and
characterized prior to committing funding.
Section 101(b) makes minor modifications to section 141 of
the NWPA to account for the explicit Congressional
authorization of one or more MRS facilities. The legislation
adds ``MRS agreement'' and ``Department-owned civilian waste''
definitions to in section 2 of the NWPA. ``MRS agreements'' may
provide the Department flexibility in how DOE considers
contractual obligations with potential non-Federal entities.
The Committee expects an MRS agreement shall be done in a
competitive manner as set forth through Title I. The term
``Department-owned civilian waste'' applies to commercial spent
nuclear fuel to which DOE has taken title, pursuant to the
terms of the Standard Contract, and excludes waste from atomic
energy defense activities. This assures it is clear DOE has
taken title to such SNF, thus the Federal government payments
from the Judgment Fund for partial breach of contract have
ceased.
The bill amends section 142 of the NWPA to provide the
Secretary of Energy the authority to site, construct, and
operate one or more MRS facilities or to enter into an MRS
agreement with a non-Federal entity for temporary storage.
Given DOE's unsuccessful historical endeavors of siting and
developing significant facilities, the legislation directs the
Secretary to prioritize one or more MRS agreements with a non-
Federal entity over a DOE-owned facility. However, if problems
persist with both the repository program and the private MRS
initiatives are unsuccessful, the Secretary may determine it is
faster and less expensive for DOE to choose the first path (a
federal facility).
Section 103 prescribes the manner in which MRS agreements
are authorized to be established. These conditions are central
to the Department's storage program because they assure that
taxpayer liabilities can be reduced while still assuring that
the Federal government fulfills its obligation to permanently
dispose of nuclear waste. The conditions of the agreement
include:
1. A requirement that the non-Federal entity be fully
licensed by the Nuclear Regulatory Commission;
2. A requirement that non-Federal entities secure approval
from state and local stakeholders to operate and store civilian
waste;
3. A limitation on the total storage capacity of 10,000
metric tons of SNF; and
4. A final NRC decision on the pending Yucca Mountain
licensing proceeding, with the exception of the first MRS\40\
agreement.
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\40\Section 103 authorizes the Secretary to enter into ``one MRS
agreement'' before the Commission has issued a final repository
decision.
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Each of these conditions are a direct extension of
historical experience and critical for the success of DOE's
nuclear waste program. The first condition will assure that a
storage facility will safely operate as required by the Atomic
Energy Act, which will instill public confidence in the
Department. The second condition will prevent host state
opposition from hindering DOE's ability to store material at
the non-Federal entity.\41\ The third condition provides host
communities surety that a temporary storage site will not
become a de facto repository, because the total volume of
nuclear waste will continue to necessitate the permanent
repository program. The fourth condition will both protect
nuclear waste appropriations from diversion away from the
completion of the Yucca Mountain construction authorization and
reinforce the public confidence that an MRS program will only
be a temporary facility.
---------------------------------------------------------------------------
\41\For example, the State of Utah opposed a previously private
interim storage initiative undertaken in the 1990's by Private Fuel
Storage.
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Congress and the Federal government have repeatedly
expressed concern that, absent a requirement that a repository
move forward concurrently with an interim storage facility,
storage would supplant the disposal requirement. In 1972, the
AEC presented a plan known as the Retrievable Surface Storage
Facility (RSSF), which was an engineered surface facility to
store waste until a permanent repository was available.
However, EPA was sharply critical of the plan out of concern
that the RSSF concept would make disposal a secondary program.
EPA believed the development of an ultimate disposal facility
must be the primary goal.
Congress enshrined this policy in the NWPA, by limiting the
quantity of SNF stored at an MRS site, mandating the approval
of the Yucca Mountain license application prior to MRS facility
development, and supported the disposal first project through
annual appropriations. John Dingell, the Chairman of the
Committee on Energy and Commerce during passage of the NWPA and
1987 Amendments, explained why these policies were critical and
included in the law during Committee consideration of the
Nuclear Waste Policy Amendments Act of 1999. He stated: ``it is
in the national interest of the United States to develop an
interim storage facility so long as it can be funded adequately
and so long as it does not undercut the permanent repository
program''\42\ and ``above all, we must not inadvertently
undermine the permanent repository without which there will be
no real disposal solution for utility and defense waste
temporarily stored in dozens of States.''\43\
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\42\Committee on Commerce Subcommittee on Energy and Power hearing
``The Nuclear Waste Policy Act of 1999,'' 106th Congress. Serial No.
106-17. February 10, and March 12, 1999.
\43\Ibid.
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More recently, the BRC argued that ``the challenge of
establishing positive linkages such that progress on storage
does not undermine, but rather supports progress on repository
development remains an important one.''\44\ The ``DOE
Strategy'' also noted that
---------------------------------------------------------------------------
\44\Blue Ribbon Commission on America's Nuclear Future
The Obama Administration also agrees with the BRC
that a linkage between opening an interim storage
facility and progress toward a repository is important
so that states and communities that consent to hosting
a consolidated interim storage facility do not face the
prospect of a de facto permanent facility without
consent.\45\
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\45\DOE Strategy for the Management and Disposal of Used Nuclear
Fuel and High-Level Radioactive Waste.
During the Committee markup of the bill,\46\ Rep. Ben Ray
Lujan (D NM) noted his support for a strong linkage policy by
quoting former New Mexico Senator Jeff Bingaman, who said
``interim storage can play in important role in a comprehensive
waste management program, but only as an integral part of the
repository program and not as an alternative to or de facto
substitute for permanent disposal.'' Rep. Lujan went on to
quote the two sitting U.S. Senators from New Mexico, repeating
Senator Udall's comment that ``no matter where it is built, I
will not support an interim disposal site without a plan for a
permanent disposal, whether the site is in southeastern New
Mexico or anywhere else in the country, because that nuclear
waste could be orphaned there indefinitely,'' and Senator
Henrich's opposition to any interim storage facility until New
Mexico is sure there will be a path forward to permanent
disposal.
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\46\Committee on Energy and Commerce markup of H.R. 3053, the
Nuclear Waste Policy Amendments Act of 2017. June 28, 2017.
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Requiring the NRC to determine whether Yucca Mountain meets
all regulatory requirements and can be licensed for
construction will help the state and local communities of
potential storage sites have an answer to the question posed by
the New Mexico Senators. This is particularly notable given New
Mexico's interactions with DOE's Waste Isolation Pilot Project
(WIPP), as well as the current outlook in which the only active
NRC interim storage proceeding is proposed to be located in
southeastern New Mexico.
The legislation provides a narrow and defined exception for
the fourth condition by authorizing DOE to enter into a single
agreement prior to completion of the Yucca Mountain
construction authorization. The bill directs funding from the
general fund and links the authorized funding levels to amounts
appropriated from the Waste Fund to protect funding for the
completion of the Yucca Mountain license application. The
expected length of time to complete NRC's review of the
repository is three to five years\47\ and any remaining Waste
Fund activity from fiscal year 2023 through 2025 would be
adequate to allow for the MRS agreement to be funded at ten
percent of those levels.
---------------------------------------------------------------------------
\47\Government Accountability Office, ``Commercial Nuclear Waste:
Resuming Licensing of the Yucca Mountain Repository Would Require
Rebuilding Capacity at DOE and NRC, Among Other Key Steps,'' GAO-17-
340. April 2017.
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While the bill allows limited funding to be directed to the
first MRS agreement, it prohibits the shipment of any fuel to
the MRS until either NRC has issued a final decision approving
or disapproving of the Yucca Mountain construction
authorization or if the Secretary of Energy finds such a
decision is imminent, submits the finding and issues monthly
reports to Congress updating the status of the licensing
proceeding. The Committee recognizes the National Association
of Regulatory Utility Commissioners' (NARUC) support for
legislative provisions to require a final NRC decision before
other aspects of the bill can be implemented.\48\ The potential
movement of SNF to an MRS facility runs contrary to the
documented support for a strong linkage policy. The limited
exception provided in this provision does not authorize a broad
perpetual exemption for the Secretary to transport SNF to the
MRS, but rather applies to an unforeseen circumstance
temporarily delaying the Commission's issuance of the final
decision. It should not be interpreted to endorse any deviation
from the Federal government's policy to dispose of all nuclear
waste in a repository.
---------------------------------------------------------------------------
\48\Letter from NARUC Executive Director Greg White to Committee on
Energy and Commerce Chairman Greg Walden and Subcommittee on the
Environment Chairman John Shimkus dated June 22, 2017.
---------------------------------------------------------------------------
The Committee received extensive feedback from
industry,\49\ communities, and took into account BRC
recommendations\50\ that the first MRS agreement should also
prioritize the storage of SNF from sites where nuclear power
plants have permanently ceased commercial operation. In 2008,
DOE published a Congressionally directed report on a
demonstration project for the consolidation of SNF from
decommissioned sites that noted that legislation would be
required to undertake interim storage in a timely manner.\51\
These stranded sites are no longer generating electricity and,
in some cases,\52\ only used fuel remains at the sites,
limiting use or redevelopment.
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\49\See, for example, testimony from Mr. Steve Nesbit on behalf of
the United States Nuclear Infrastructure Council, Committee on Energy
and Commerce Subcommittee on Environment hearing, ``H.R.__, the Nuclear
Waste Policy Amendments Act of 2017,'' April 26, 2017.
\50\Blue Ribbon Commission on America's Nuclear Energy Future.
\51\The report found that pursuing Yucca Mountain was the fastest
and best option for fulfilling its NWPA requirements. However, the
report noted legislation would be needed ``(1) to direct the Department
to take spent nuclear fuel from decommissioned commercial nuclear power
reactors as soon as possible; (2) to establish an expedited siting
process; and (3) to authorize the Department to construct and operate
the facility under its regulatory authority, or, if the facility were
to be constructed and operated under a [NRC] license, to provide for an
expedited siting and licensing process.'' DOE, ``Report to Congress on
the Demonstration of the Interim Storage of Spent Nuclear Fuel from
Decommissioned Nuclear Power Reactor Sites.'' DOE/RW-0596. December
2008.
\52\There are currently 16 power reactors in the decommissioning
process or are full decommissioned. Eight more plants have announced
the sites will permanently cease operation by 2024.
---------------------------------------------------------------------------
The legislation does not require that DOE alter the terms
of the Standard Contract, which are established on the
principle of oldest fuel first. Under this principle, oldest
SNF, or the date from when the fuel is discharged from the
reactor, is the highest priority in the acceptance queue.\53\
The Committee notes that the Department maintains existing
authority to rearrange the acceptance priority list and
utilities also have the ability to negotiate with DOE or other
utilities when such fuel would be delivered to the Department.
---------------------------------------------------------------------------
\53\Settlements for damages as a result of the partial breach of
contract are calculated on the ``oldest fuel first'' policy, which are
based on DOE's Acceptance Priority Ranking and Annual Capacity Report.
For example, see Department of Energy, ``Acceptance Priority Ranking &
Annual Capacity Report,'' July 2004. Accessible at: https://
curie.ornl.gov/system/files/documents/not%20ye%20assigned/Acceptance%20
Priority%20Ranking%20%26%20Annual%20Capacity%20Report__0.pdf.
---------------------------------------------------------------------------
While several proposals have been put forth to consolidate
commercial SNF, any effort that effectively abdicates DOE's
obligation to develop a repository would strand defense waste
from disposal. Congress and the Federal government owe those
respective communities that have been partners and hosted key
national security facilities--such as Hanford, Washington; the
Savannah River Site in South Carolina; and southeastern Idaho--
the fulfillment of the Federal obligation to clean up those
sites. Any interim storage policy that does not require
advancement of the repository program would place those
communities at a disadvantage because DOE's focus would likely
be placed on reducing the overall liabilities, which are not
linked to the defense sites.
Sections 105, 106, 107, and 108 make conforming changes to
the NWPA to allow for more than one MRS site to be selected,
modify the conditions for a DOE-owned MRS facility to be
developed, and clarify that certain financial assistance
provisions for licensing proceedings only applies to Federal
MRS facilities.
Development of a permanent repository
Title II of the legislation addresses issues associated
with moving forward with the permanent disposal repository at
the Yucca Mountain, Nevada site, as Congress designated in 1987
and affirmed in 2002. The provisions will assist DOE in
completing the statutorily required NRC review of the pending
license application, protect funding for national security
programs, and acknowledge the State of Nevada's concerns
regarding transportation routes to the repository site.
As previously noted, completing the NRC's review will help
inspire public confidence in the repository by having Nevada's
contentions adjudicated and ruled on by independent safety
judges and regulatory staff.
Section 201 permanently withdraws the land at the site for
use by DOE for repository operations.\54\ NRC staff noted DOE
has not yet demonstrated the repository site would be used for
any other purpose over the course of the project.\55\ This
section will fulfill NRC's requirement. All authority within
the withdrawal is vested in the Secretary of Energy.
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\54\The legislation is substantially the same as language that was
submitted to Congress in 2007 by DOE.
\55\See testimony from Josephine Piccone, Director of NRC's Yucca
Mountain Directorate at Subcommittee on Environment and the Economy
hearing, ``Update on the Current Status of Nuclear Waste Management
Policy,'' May 15, 2015.
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Section 201(e)(2)(C) requires the Secretary to develop a
management plan for use of the withdrawal. In developing the
management plan, the Secretary shall consult with the Secretary
of Air Force regarding the portion of the withdrawal within the
Nellis Air Force Base Test and Training Range. Nothing in this
legislation affects previous usage agreements between DOE and
the Air Force. To address previous concerns from the Air Force,
DOE selected a preferred route that would not impact operations
at the base.
The legislation limits the requirements of the Solid Waste
Disposal Act for material that is transported to the repository
or for disposal in the repository. This provision will provide
DOE optionality to dispose of ``mixed waste'' material or
material that contains material regulated both under the Atomic
Energy Act as well as hazardous waste under the requirements of
the Solid Waste Disposal Act. This provision does not change
existing requirements applied to the regulation of the material
or state permitting authorities.
The land withdrawal provisions only become effective if the
Commission issues a final decision approving a construction
authorization to DOE for the Yucca Mountain repository, except
for provisions describing the withdrawal's boundary, the
material requirements, and definitions.
The legislation updates certain application procedures
associated with NRC's consideration of the pending Yucca
Mountain construction authorization. For example, the NWPA
mandated the NRC complete the review of the construction
authorization within three years of DOE's submission. However,
due to the Obama Administration's attempts to withdraw the
license application and DOE not being a willing applicant, the
deadline is no longer applicable. The legislation updates this
requirement to provide NRC 30 months after the date of the
bill's enactment to issue a final decision on the construction
authorization.
If the Commission approves the construction authorization,
the legislation provides for the use of informal hearing
procedures to amend the authorization to minimize potentially
burdensome processes. This provision does not apply to NRC's
regulations required to issue a receive and possess license.
The legislation authorizes DOE to undertake activities at
and surrounding the site to develop supporting infrastructure.
Such activities may assist DOE in preparing the site in a more
expeditious manner to construct, license and operate the
repository. Any supporting infrastructure activities may not be
grounds for the NRC to disapprove of the construction
authorization. Section 203 affirms that enactment of the
legislation does not require the Secretary to modify or amend
the pending license application.
Section 204 prohibits DOE from conducting any activity in
support of a defense-waste only repository until the NRC has
issued a final decision on the Yucca Mountain construction
authorization. The development of the Yucca Mountain repository
is the quickest path to dispose of our nation's HLW from atomic
energy defense activities. Further, a single common repository
allows the commercial ratepayers and defense budget accounts to
share the overall cost of developing a disposal facility. To
date, American taxpayers, through national defense accounts to
pay for nuclear waste disposal, have paid $3.7 billion towards
Yucca Mountain,\56\ in addition to the expenditures from the
Nuclear Waste Fund. The Committee heard from witnesses on the
importance of continuing to share repository costs for disposal
of both commercial and government SNF and HLW.\57\
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\56\Letter from Secretary of Energy Ernest Moniz to Committee on
Energy and Commerce Chairman Fred Upton, May 15, 2015.
\57\See Mr. Steve Nesbit, on behalf of NIC, ``We are very much in
favor of [Section 205.] I think it is a win-win for both the customers
of nuclear-generated electricity, the burden that they bear, and the
taxpayers who bear the burden of funding the disposal of so-called
defense waste.''
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Section 205 recognizes the concerns raised by Nevada
stakeholders regarding the shipment of SNF or HLW through
population centers. In hearings during the 114th Congress and
during the legislative hearing in April 2017, some Members of
Congress representing Nevada objected to moving forward with
the repository under the existing NWPA framework.\58\ Among the
identified concerns was the potential impact on tourism due to
transportation through Clark County, Nevada. DOE has previously
conducted substantial research on potential transportation
routes and identified a preferred transportation route that
largely avoids Las Vegas. However, the legislation acknowledges
these concerns through the Sense of Congress.
---------------------------------------------------------------------------
\58\Committee on Energy and Commerce Subcommittee on Environment
and the Economy hearing ``Federal, State, and Local Agreements and
Associated Benefits for Spent Nuclear Fuel Disposal,'' July 7, 2016 and
``H.R. __, the Nuclear Waste Policy Amendments Act of 2017.''
---------------------------------------------------------------------------
Transfer of ownership to the Department of Energy
Title III authorizes DOE to modify the existing contracts
to take title to SNF to go also to an MRS facility, with a
priority placed on sites that have permanently ceased
commercial operation. Currently, the Standard Contract
governing the Department's legal obligations for SNF are
conditioned on DOE taking title for disposal. The legislation
should not be interpreted to require a change in contract;
however, based on DOE's existing authority and in agreement
with the contract holder, the intent of the section is to
encourage the Department to prioritize decommissioned SNF to
MRS facility.
The provision is not intended to permit DOE to take title
to SNF at the existing sites. The Committee received testimony
expressing the concern that DOE would take ownership to the SNF
without moving the used fuel offsite.\59\ The legislation
supports the ``delivery and acceptance'' policy that the
Department only satisfies its obligations to take title to SNF
when the SNF is removed from the site.
---------------------------------------------------------------------------
\59\The Honorable Anthony J. O'Donnell, Commissioner, Maryland
Public Service Commission, Chairman, NARUC Subcommittee on Nuclear
Issues-Waste Disposal. Testimony on behalf of the National Association
of Regulatory Utility Commissioners before the United States House of
Representatives Committee on Energy and Commerce Subcommittee on
Environment, ``H.R. __, the Nuclear Waste Policy Amendments Act of
2017. April 26, 2017. See also letter from NARUC Executive Director
Greg White, NARUC has ``one significant concern: section 301's
discussion of the requirements for DOE to take title to waste should be
clarified to assure that DOE cannot simply `take title' of waste where
it is currently being stored.''
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State and local engagement and benefits
A constructive dialogue with the repository host State will
help foster trust and improve nuclear waste management program
execution. Nevada's position in opposition to the repository
has delayed the facility by decades, resulted in numerous legal
challenges, and cost American taxpayers tens of billions of
dollars. While the most important path for Nevada is the
opportunity to adjudicate the State's contentions on the
pending construction authorization, the legislation seeks to
provide an opportunity for Nevada, and its counties, to discuss
a path forward.
Title IV of the legislation amends Subtitle F and Subtitle
G of the NWPA to allow Nevada to benefit as the repository host
State, updates the benefits schedule, enables Nevada counties
to directly enter into benefits agreements with DOE, provides
for additional non-financial benefits, and makes conforming
changes to the NWPA.
While Congress afforded Nevada the opportunity to enter
into a benefits agreement, Nevada did not want to create any
appearance that it supported the site selection and refused to
discuss potential benefits. Section 401 clearly states that
entering into a benefits agreement is not an expression of
consent. This provision should assure the State that it does
not waive its right to adjudicate contentions on the pending
license application or any future activity because it engages
with DOE for the purposes of entering into a benefits
agreement.
The bill updates the amount of funding available through
the benefits schedule as described in Section 171(a)(1) of the
NWPA. The legislation increases the amount of the annual
payments to the State prior to arrival of first spent fuel from
$10 million to $15 million; the amount upon first spent fuel
receipt from $20 million to one percent of the balance of the
Nuclear Waste Fund on the date of enactment of the legislation,
which would currently total approximately $375 million; and the
amount for annual payments after first spent fuel receipt until
the closure of the facility to one tenth of one percent of the
current balance of the Nuclear Waste Fund, which would
currently total approximately $37 million each year and nearly
$4 billion over the course of the repository project.
The significant increase in the level of funding when first
spent fuel arrives more accurately reflects the increased cost
to the Federal government of inaction. The funding of first
spent fuel receipt and annual payments thereafter would not be
subject to appropriation to assure Nevada that the money would
be available. This will help the State plan accordingly during
the budget development process. This level of funding is a
baseline. The section allows DOE and the State to negotiate a
higher level of funding, if documented and justified.
The bill sets restrictions on the funding set forth in the
benefits schedule. These restrictions limit the State from
using Federal funding to oppose Department and Federal
government repository activities. Waste Fund money may not be
used for activities that are contrary to the purpose of the
Nuclear Waste Policy Act.
Additionally, the legislation amends the required
components of the benefits agreement by striking section
171(b)(2), which required the State to waive its rights to
disapprove of the recommendation of the site for a repository.
As previously noted, Nevada refused to waive its rights to
disapprove of the site recommendation in order to receive
limited benefits agreement funding. Striking this paragraph
requalifies the State to enter into a benefits agreement.
Section 403 adds a new section to the NWPA to authorize the
Secretary of Energy to enter into a benefits agreement with a
covered unit of local government. The NWPA authorized only one
benefits agreement for a repository that was to be entered into
with the State of Nevada. Further, the benefits agreement
between Nevada and DOE required the State to transfer not less
than one-third of the amount of the payment to affected units
of local government (AULG), as defined by the NWPA.\60\ Because
of the State's refusal to discuss benefits with DOE, affected
units of local government were negatively impacted. Adding this
new section would remedy this situation by enabling dialogue
directly between DOE and Nevada counties.
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\60\DOE recognizes ten affected units of local government including
Mineral County, Lander County, Churchill County, Lincoln County, Eureka
County, Nye County, White Pine County, Clark County, Esmeralda County,
and Inyo County (CA).
---------------------------------------------------------------------------
Prior to entering into an agreement under the new section
172A, the required report under section 175(b) must be
completed. Completing this report will provide a basis to
inform the total funding level subject to the benefits
agreement. These agreements must be based on realistic
potential impacts and it is expected that these agreements will
not be uniform, but tailored to the respective potential impact
of repository activities undertaken by the Department. Under
this rationale, it is expected that Nye County would receive
the most robust agreement, followed by Lincoln and Clark
Counties.
For the purposes of this section, the bill defines covered
units of local government to include both affected units of
local government, as defined by the Act, but also all units of
general local government in the State of Nevada. This qualifies
an additional seven counties to negotiate agreements with DOE.
The legislation provides the same restrictions on funding
to covered units of local government that are on the funding
authorized under section 171 benefits agreements; Federal money
cannot be used to oppose or contravene the development of the
repository. Additionally, because these agreements would
directly support repository efforts, the Waste Fund is
authorized to fund the agreements.
The legislation amends section 170 to note that only one
agreement with the State of Nevada may be in effect at one
time, but does not prohibit the Secretary from negotiating
multiple benefits agreements with State under section 170 and
covered units of local government under section 172A. The
Secretary should balance the need to advance constructive
conversations with State and local stakeholders with the total
financial needs to be supported through the Waste Fund.
The benefits agreements are terminated if the NRC
disapproves of the construction authorization for the
repository.
While the focus of the benefits agreements under sections
170 and section 172A is on financial transactions, benefits
agreements should not be limited solely to financial
compensation. DOE and Nevada should identify other
opportunities to ensure that the items identified in the
section 175 report may be addressed. Doing so will establish
more durable partnerships.
Section 405 inserts a new section into the NWPA to require
expenditures that the Secretary authorizes from the Waste Fund
for institutions of higher education to be prioritized to
institutions located in the host State. If Waste Fund money to
develop a repository is to go to universities, Nevada
universities should receive that money to help develop academic
expertise and programs.
The legislation requires a portion of potential future
economic benefits from used fuel to be reserved to the State to
further compensate Nevada for hosting the facility. While
reprocessing spent nuclear fuel is currently not cost effective
in the United States, if such a program is pursued in the
future, Nevada would further benefit. The legislation does not
dictate what percentage of value should be provided to the
State; however, the Secretary, in consultation with the
Governor and the Review Panel established by section 172, shall
determine the terms of compensation.
Congress required the Secretary to report to Congress on
the potential impacts of locating a repository at the Yucca
Mountain site within one year of the Nuclear Waste Policy
Amendments Act of 1987. The Secretary submitted this report to
Congress in 1988; however given the considerable advancement in
the repository program and developments in Nevada, the
conclusions of the original report may be out of date.\61\ The
potential impacts to be examined are wide ranging and include
impacts on education, public health, law enforcement, fire
protection, medical care, distribution of public lands,
vocational training and employment services, social services,
transportation, emergency preparedness personnel, availability
of energy, tourism and economic development, and any other
needs associated with the construction, operation, and eventual
closer of the repository facility. Section 407 of the
legislation requires the Secretary provide a report directed
under section 175(a) of the NWPA within one year after
enactment of the bill.
---------------------------------------------------------------------------
\61\U.S. Department of Energy, Office of Civilian Radioactive Waste
Management, ``Section 175 Report; Secretary of Energy's Report to the
Congress Pursuant to Section 175 of the Nuclear Waste Policy Act, As
Amended,'' December 1988.
---------------------------------------------------------------------------
While benefits agreements will not replace the State's
interest in assuring the protection of public health and safety
of Nevadans, the combination of provisions within this
legislation give the opportunity to be appropriately
compensated for hosting the repository.
Financing and funding of Nuclear Waste Management Program
As noted above, Congress set up the nuclear waste
management program as a ``fee for service'' model in which the
consumers of nuclear energy paid a fee through nuclear power
utilities to fund a disposal program. However, this model never
fully functioned as intended. This resulting model has severely
hampered the Department's program and ability to dispose of
used fuel.
Title V of the legislation reforms portions of this
financing mechanism to more equitably treat ratepayers, provide
certainty to DOE's program management, and make it easier for
Congress to appropriate Nuclear Waste Fund money for its
intended purposes, without taking resources away from other
priority programs across the Federal government.
Managing a multi-generational infrastructure project poses
major challenges for assuring that adequate funding is
available to the program when needed. Predictable and
sufficient funding levels are imperative not just to help the
Department, but also for all authorized uses under the NWPA,
including funding for AULGs and Nevada to participate in the
licensing process, for Payments Equal to Taxes (PETT), for
state and local transportation stakeholders, and for benefits
agreement authorized under Subtitles F and G. The availability
of funding is central to the program's success.
The Nuclear Waste Fund currently maintains a balance of
approximately $37 billion and the value increases annually,
even over the previous three years when no new fees were being
collected, because the NWPA required DOE to invest in U.S.
Treasury bonds to generate interest to capture the time value
of money. Congress recognized that spent fuel generated today
would be managed over decades, thus requiring that money
provided to the Federal government should generate interest. In
Fiscal Year 2016, approximately $1.4 billion in interest was
generated according to DOE's Annual Financial Report.\62\\63\
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\62\Department of Energy, ``Fiscal Year 2016: Agency Financial
Report,'' DOE/CF-0128. November 15, 2016.
\63\The Congressional Budget Office does not recognize interest as
revenue realized by the U.S. Treasury or to the Nuclear Waste Fund, but
rather is considered as an intergovernmental transfer. For more
information, see Congressional Budget Office testimony from December 3,
2015 Subcommittee on Environment and the Economy hearing.
---------------------------------------------------------------------------
Meanwhile, as payments to the Fund were collected the
revenue was directed towards deficit reduction or to offset
deficit spending of other government programs. Therefore, while
there is a separate accounting of the Nuclear Waste Fund
(currently about $37 billion), OMB has already allocated the
value of those receipts under its unified Federal budget
scoring method.
DOE access to the existing balance of the Fund is critical.
Because the current balance of the Fund increasing annually,
the Fund will continue to grow at an appreciable rate. Absent
the assurance that DOE will spend the previously collected
money, DOE may face challenges restarting collection of the
fee. If DOE is prohibited from restarting the fee, no new
revenue from Fund payments will be realized by the U.S.
Treasury. This, under OMB and CBO accounting rules, would
worsen our Federal deficits.
Throughout the oversight and legislative hearings, the
Committee consistently heard about the need to address the
funding mechanism. In December 2015, the Committee received
expert testimony regarding the complexities of the fee
collection, the Federal accounting of the money, and usage of
the Fund. The Committee's legislative hearing on the discussion
draft also included extensive support for the provisions to
reform the fee collection, the budgetary treatment of the
account, and the usage of the Waste Fund.\64\
---------------------------------------------------------------------------
\64\O'Donnell testimony, ``H.R. __, the Nuclear Waste Policy
Amendments Act of 2017,'' and letter from Greg White, Executive
Director, NARUC, to Chairman Greg Walden.
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Title V addresses three funding challenges: (1) near-term
funding while the pending Yucca Mountain construction
authorization is adjudicated and approved or disapproved; (2)
resolving the mismatched accounting applications between
mandatory receipts and discretionary outlays when the fee is
restarted; and, (3) making a portion of the previously
collected funding available to the Department over the
repository program's lifecycle. Each of these provisions have
equal importance and will help sustain a program moving
forward.\65\
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\65\See Subcommittee on Environment hearing on April 26, 2017.
Congressman Flores asked the witnesses if the provisions to reform the
NWF and financing mechanisms are an important improvement from the
existing mechanism. Mr. Sproat answer ``yes.'' Mr. O'Donnell said the
provisions would help enable a program to properly fund nuclear waste
management activities and Mr. Nesbit also agreed it would help the
program.
---------------------------------------------------------------------------
First, the legislation prohibits DOE from resumption of the
fee until the NRC makes a final decision approving or
disapproving of the pending Yucca Mountain construction
authorization. While the previous Administration terminated the
Yucca Mountain program, shuttered OCRWM, sought to withdraw the
license application, and established the BRC, ratepayers
continued to pay over $750 million annually to the Waste Fund,
specifically for activities authorized by the NWPA. However,
DOE's activities ran contrary to the NWPA. The ratepayer fee
collections continued until the D.C. Circuit Court of Appeals
ordered DOE to stop collection, determining that there was no
basis to justify the fee collection.\66\
---------------------------------------------------------------------------
\ 66\NARUC v. United States Department of Energy No. 11-1066,
United States Court of Appeals for the District of Columbia Circuit.
The notable opinion stated, DOE's analysis that the costs of disposal
could run between a $2 trillion deficit and a $4.9 trillion surplus
``reminds us of the lawyer's song in the Musical `Chicago,'--`Give them
the old razzle dazzle.''
---------------------------------------------------------------------------
During this period, approximately two and a half billion
dollars in fees were paid to the Waste Fund.\67\ While a
significant balance exists in the Fund, the repository program
has been stalled for almost eight years.\68\ Ratepayers must
see tangible progress on waste management before reinstatement
of the fee. The legislation thus prohibits DOE from resuming
fee collection\69\ until the NRC makes a final decision
approving or disapproving the issuance of the construction
authorization. GAO reported the completion of the licensing
process would take between three and five years.\70\
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\67\See U.S. Department of Energy Office of Inspector General,
Office of Audits & Inspections, ``Audit Report: Department of Energy's
Nuclear Waste Fund's Fiscal Year 2011 Financial Statements,'' OAS-FS-
12-03. November 2011. Further OIG Audits for Fiscal Years 2012, 2013,
2014, and Fiscal Year 2015.
\68\Since May 2014, when the fee collection was halted, the Office
of Management and Budget (OMB) and Congressional Budget Office (CBO)
has continued to include fee receipts in annual and semi-annual budget
projections. According to DOE, OMB and CBO projected $1.41 billion in
estimated total NWF receipts since the fee was set to zero in 2014. The
actual level of NWF receipts under section 302(a)(2) during this time
period was zero dollars. See: Letter from Energy Secretary Rick Perry
to Environment Subcommittee Chairman John Shimkus, dated October 2,
2017.
\69\The legislation does not address whether DOE can begin
assessing the fee prior to NRC's final decision. It is the Committee's
expectation that DOE would not make an assessment until the final
decision has been made due to the uncertainties that are associated
with the Commission's decision.
\70\Government Accountability Office, ``Commercial Nuclear Waste:
Resuming Licensing of the Yucca Mountain Repository Would Require
Rebuilding Capacity at DOE and NRC, Among Other Key Step,'' GAO-17-340.
April 26, 2017.
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Once the Commission has issued a final decision on the
Yucca Mountain construction authorization, DOE is authorized to
resume fee collection. However, the legislation will address an
underlying problem with the current funding set up with
receipts classified as mandatory revenue, while expenditures
are categorized as discretionary. The bill does so by
bifurcating the ``fee adequacy'' determination by the Secretary
into an assessment process and fee collection procedures.
Prior to resumption of the fee, the Secretary must complete
a lifecycle cost estimate for the repository program to
determine how much funding will be required to support the 120-
year project. This total assessed value\71\ must be accounted
for with respective commercial operating reactors and must be
available to be collected when DOE demands payment.\72\ Once
the assessment is complete, the Secretary must develop a
process for the resumption of fee collection.
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\71\The legislation does not state whether or not the assessment
will generate interest during the period between assessment and
collection. The Secretary has the authority to make that decision as
part of the assessment and must take the decision into account as part
of the lifecycle cost analysis.
\72\Note Standard Contract currently governs the relationship
between DOE and utilities, but there is authority to have conversation
by all parties that could allow the Contract to be renegotiated. To fix
a broken system, need to fix the underlying contract.
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Following the assessment and establishment of a collection
process, the legislation limits the total amount collected on
an annual basis to 90 percent of the appropriation. The
collection is intended to help offset annual appropriations
from the existing Fund corpus and thus limit the overall impact
on budget allocations subject to annual caps, while also
protecting ratepayers from having to pay the Federal government
if DOE is not actively fulfilling the requirements of the NWPA.
The Committee heard strong support for this provision to
protect ratepayers,\73\ as well as the need to address this
issue from former OCRWM officials.\74\ The Appropriations
Committee also retains authority to access the balance in the
Fund.
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\73\NARUC Executive Director Greg White letter to Environment
Subcommittee Chairman Shimkus on June 22, 2017, ``section 504 assures
that the Secretary can only collect, through fees, 90 percent of
amounts appropriated for any fiscal year--assuring any fees collected
going forward are immediately available to the Secretary for waste-
related activities. If the NWF fee is restarted, this provision is
absolutely crucial.''
\74\When asked about the most critical provision in the
legislation, Ward Sproat, former Director of OCRWM, said ``the very
first or top priority is about getting the issues associated with the
[NWF] fixed . . . so getting the issue around the [NWF] and the
mismatch between the mandatory receipts and discretionary
appropriations I would say is probably the top priority.
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The legislation amends the authorized usage of the Waste
Fund by removing monitored retrievable storage from section
302(d) of the NWPA. This restriction only applies to the MRS
agreements authorized in Title I, or Subtitle C of the
NWPA.\75\ The Committee is concerned about increasing financial
demands on the Waste Fund, which would require an increased
assessment and collection on ratepayers going forward. At the
Committee's legislative hearing, the Committee received
testimony that previous DOE analysis of interim storage would
impose additional costs and require a higher fee.\76\
Currently, the fleet of commercial nuclear power plants are
facing economic challenges partially due to market impacts. The
Committee is concerned that forcing new costs onto the industry
relating to storage would worsen the economic outlook for
nuclear power plants.
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\75\Title I of H.R. 3053 authorizes expenditures for MRS agreements
from the general fund and subject to appropriations.
\76\See DOE, ``Report to Congress on the Demonstration of the
Interim Storage of Spent Nuclear Fuel from Decommissioned Nuclear Power
Reactor Sites.'' DOE/RW-0596. December 2008.
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Prohibiting Waste Fund expenditures for MRS facilities also
will ensure that DOE remains focused on the overall disposal
policy of the NWPA. The Committee recognizes that nuclear waste
management programs cannot be entirely delineated between MRS
and permanent disposal; the system must be integrated. The
legislation does not prohibit the Fund from being used for
overall management activities and other activities such as
transportation to an MRS, so long as those activities are
integrated into a permanent disposal program.
Section 503 amends the NWPA to require DOE to update its
budgetary projections annually, rather than the current
requirement for a triannual update. Under the revised
collection method, which would likely result in collections
increasing or decreasing depending on program need and
Congressional appropriation, it is important for Public Service
Commissions and utilities to have a reasonable expectation of
near-term collection amounts. Requiring DOE to update
projections annually will allow for more transparency in the
collection process, subject to appropriation.
As previously discussed, it is critical for DOE to have
access to the previously collected funding in a predictable
manner, while still assuring Congress can annually conduct
program management. To achieve this policy goal, section 504
makes certain amounts of the Fund available to DOE for
specified purposes over the course of the project.\77\ These
amounts will ensure that the program has a minimal level of
funding for some basic operations at the repository, while
still ensuring Congress can exercise annual oversight of the
program. The bill makes the following amounts available, not
subject to future appropriation:
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\77\See examples from April 26, 2017 Subcommittee on Environment
hearing. Mr. Anthony O'Donnell stated the provision ``is essential to
the central component from NARUC's perspective on this draft
legislation.'' Mr. Sproat said ``whatever the legislation that is
required to be able to give the Department access to the corpus of the
fund as well as the interest being generated on the fund in a manner
that meets the construction, the optimum construction expenditure
profile, needs to be figured out how to do that.''
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One percent of the balance of the Fund on the date
of enactment, available to the State of Nevada when first SNF
arrives at the site. That amount would currently equal
approximately $370 million.
This provides a baseline of funding, but does not prohibit
DOE and Nevada from having additional funding pursuant to the
benefits agreements.
One tenth of one percent of the balance of the
Fund on the date of enactment available to the State of Nevada
for each fiscal year for the course of the project until the
site is closed. That amount is approximately $37 million
annually.
This provides a baseline of funding, but does not prohibit
DOE and Nevada from having additional funding pursuant to the
benefits agreements.
One percent of the balance of the Fund on the date
of enactment available to DOE starting in the first fiscal year
in which SNF or HLW is received at the repository site and for
the 25 years thereafter, available only for the purposes of
repository operations at the site. This funding shall not be
used for transportation, program management, or associated Fund
costs. The additional annual funding required to manage the
program must be appropriated by Congress.
This funding, approximately $370 million annually, would
prevent future political interference through the
appropriations process.
The most recent Total System Life Cycle Cost Report (TSLCC)
for the Yucca Mountain program estimated that the repository's
operational costs would be between $756 million and $877
million during the first 25 years of operation.\78\ The funding
under this bill will need to be supplemented through the
appropriations process.\79\
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\78\Department of Energy, ``Analysis of the Total System Life Cycle
Cost of the Civilian Radioactive Waste Management Program, Fiscal Year
2007,'' DOE/RW-0591. July 2008.
\79\For a full understanding of the annual Yucca Mountain
projections, see Appendix B, ``Annual Cost Profile,'' of the DOE TSLCC.
Figure B1 and Table B1 compile the expected costs from 1983 through
2133. These projections are the most credible and detailed analysis for
the repository program and relied upon to inform the legislation. The
Committee notes that while a 130-year cost profile of $96 billion
appears significant, the existing liabilities due to inaction already
total nearly $30 billion in less than 20 years of partial breach of
contract. The annual cost of inaction and associated litigation exceeds
the annual cost to develop, construct, operate, decommission, and close
the Yucca Mountain repository.
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Twenty percent of the balance of the Fund,
approximately $7.4 billion, on the date of enactment available
to DOE to acquire, install, and manage drip shields during the
decommissioning phase.
Installation of titanium drip shields during the project's
decommissioning phase is a key engineered barrier component of
the repository design to protect groundwater flow. This phase
is expected to be initiated about 75 years after the repository
begins operations and immediately precedes the closure of the
site. Making this funding available will assure host
communities and regulators that DOE will move forward with this
design in the future.
The 2008 TSLCC estimated the cost for waste package and
drip shield fabrication to total approximately $7.6 billion
throughout this phase of the project. The funding under this
bill will need to be supplemented through the appropriations
process.
The legislation also makes available to DOE, without
further appropriation, what are known as ``one-time fees,''
fees that utilities had deferred payment as authorized by the
NWPA.\80\ The purpose of this provision is to help DOE manage
the expected spike in costs that will accompany the project
during the construction phase. The 2008 TSLCC projected costs
during the construction phase to spike over $1.9 billion
annually, with appropriations over $1 billion required for a
decade during construction of the facility, the Nevada
Transportation Project, and for associated transportation
activities. This mechanism will allow Congress additional
flexibility to direct limited funding to other program
components and limit the potential to require significant fee
collection. Similar to the funding for repository operations
after first spent fuel is received at the site, this money may
only be used for costs associated with the repository to assure
that specific, discrete costs are covered while annual
appropriations for program direction and oversight will still
be necessary.
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\80\ See NWPA section 302(a)(3), ``For [SNF or HLW] derived from
[SNF], which fuel was used to generate electricity in a civilian
nuclear power reactor prior to the application of the [annual fee] to
such reactor, the Secretary shall, not later than 90 days after the
date of enactment of this Act, establish a 1 time fee per kilogram of
heavy metal in [SNF or HLW].
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Miscellaneous program provisions
Title VI of the legislation addresses miscellaneous
provisions to improve the management and execution of DOE's
nuclear waste program and reflects amendments adopted during
the Committee's consideration of the bill.
The legislation requires EPA to decide whether generic
repository standards developed over 35 years ago, and required
by the NWPA, should be updated.\81\ However, this initial
examination is delayed until after the NRC has made a decision
on the pending construction authorization. Near-term resources
should be directed towards completing that process and any
standards relating to generic repository would only be
necessary after Yucca Mountain begins operations.
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\81\The BRC made a number of recommendations for developing future
disposal facility standards, including closer coordination of EPA and
NRC regulations, be based on scientifically possible and reasonable
compliance, and be defined as performance standards are developed.
---------------------------------------------------------------------------
This section does not affect the existing Yucca Mountain
site specific standards under 10 CFR Part 63, promulgated as a
result of EPACT 1992.\82\ NRC will consider all licensing
proceedings and related regulatory activities for the Yucca
Mountain repository under those existing standards.
---------------------------------------------------------------------------
\82\NRC's regulations for Yucca Mountain are under 10 CFR Part 63,
while the generic repository standards are under 10 CFR Part 60.
---------------------------------------------------------------------------
Section 602 strikes section 135(h) of the NWPA, which
states:
[N]othing in the Act shall be construed to encourage,
authorize, or require the private or Federal use,
purchase, lease or other acquisition of any storage
facility located away from the site of any civilian
nuclear power reactor and not owned by the Federal
Government [on the date of NWPA enactment.]
This section makes a conforming change to align with the
authority under Title I of the legislation, which provides DOE
authority to enter into an MRS agreement to store SNF with a
non-Federal entity.
The Committee received testimony discussing challenges
associated with state and local stakeholders to adequately plan
for the transportation of spent nuclear fuel.\83\ Section
180(c) of the NWPA authorizes DOE to provide grants to help
with the safe and secure transport of shipments. However, DOE
has previously interpreted section 180(c) to authorize only
training funding, rather than financial assistance for
operational safety when the transportation campaign is
initiated. Mr. Kelly Horn, on behalf of the Midwestern
Radioactive Materials Transportation Committee of the Council
of State Governments, noted that DOE's narrow interpretation
would limit the effectiveness of the funds.\84\ The legislation
acknowledges the potential negative impact and financial stress
on state transportation organizations and clarifies the
allowable use of DOE grants to plan for SNF and HLW
transportation activities.
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\83\Committee on Energy and Commerce Subcommittee on Environment
and the Economy, ``Transporting Nuclear Materials: Design, Logistics,
and Shipment,'' October 1, 2015.
\84\Mr. Kelly Horn, testimony before the Committee on Energy and
Commerce Subcommittee on Environment and the Economy hearing,
``Transporting Nuclear Materials: Design, Logistics, and Shipment,''
October 1, 2015.
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The legislation amends the Department of Energy
Organization Act to transfer all the responsibilities currently
assigned to the Assistant Secretary responsible for nuclear
waste management\85\ to the OCRWM Director and to reassert the
need to designate OCRWM as the specific, dedicated office in
DOE to manage its nuclear waste program. When the Secretary of
Energy closed OCRWM in 2010, citing authority under the
Department of Energy Organization Act, all nuclear waste
activities were transferred to DOE's Office of Nuclear Energy.
Managing DOE's nuclear waste should not compete with other
high-priority activities that are overseen as part of DOE's
commercial civilian nuclear energy activities.
---------------------------------------------------------------------------
\85\There is not currently, nor has there ever existed a DOE
Assistant Secretary for Nuclear Waste Management.
---------------------------------------------------------------------------
As part of the legislation to reestablish OCRWM, section
603 establishes a five-year, fixed-term appointment for the
OCRWM Director. In doing so, the Department's nuclear waste
management program will gain continuity throughout presidential
administrations, which is important for State and local
stakeholders. A fixed-term will also elevate the position to
inspire confidence in potential candidates who must be
nominated by the President and confirmed by the Senate.\86\ The
key quality is project management for a director because of the
many different program elements that are critical for program
success.
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\86\A total of six Senate-confirmed OCRWM Directors served in the
position from the establishment of the office in 1983 through 2009,
when the office was closed. Throughout this time period, the position
was consistently filled with an Acting Director. In many cases, the
tenure lasted considerably less than the four-year term of a
Presidential Administration. For example, John Bartless was confirmed
by the Senate on April 5, 1990, Ivan Itkin was confirmed on November
19, 1999, and Edward Sproat was confirmed on May 26, 2006.
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The bill allows for the Director to be re-nominated for an
additional five-year term and allows the Director to continue
to serve while the Senate considers a pending nomination. This
provision is intended to avoid repeated vacancies that plagued
the program through various points of OCRWM's history. Acting
Directors lack the full credibility and authority of a Senate-
confirmed Director. However, providing for a sitting Director
to continue to serve does not obviate the need for timely
nomination and confirmation.
The President may remove the Director for inefficiency,
neglect of duty, or malfeasance in office. Congress shall be
notified if the President decides to remove the Director.
During the Committee on Energy and Commerce markup on H.R.
3053, the legislation was amended to include section 605 to
require the Administrator of the Environmental Protection
Agency to submit a report to Congress on the final remedy to be
implemented at the West Lake Landfill and the expected
timeline.
The Committee also adopted two amendments to prohibit
subseabed or ocean water disposal of spent fuel and a Sense of
Congress that the Governments of the United States and Canada
should not allow for permanent or long-term storage of spent
nuclear fuel or other radioactive waste near the Great Lakes.
The intent of the entire legislation is to provide a disposal
pathway to the Yucca Mountain site and therefore, transport
spent nuclear fuel from existing sites surrounding the Great
Lakes to the deep, geologic repository.
Committee Action
On April 26, 2017, the Subcommittee on Environment held a
hearing on H.R. 3053. The Subcommittee received testimony from:
Dean Heller (NV), Member, U.S. Senate;
Ruben Kihuen (NV), Member, U.S. House of
Representatives;
Dina Titus (NV), Member, U.S. House of
Representatives;
Jacky Rosen (NV), Member, U.S. House of
Representatives;
Joe Wilson (SC), Member, U.S. House of
Representatives;
Ward Sproat, former Director, Office of
Civilian Radioactive Waste Management, Department of
Energy;
Anthony O'Donnell, Chairman, Nuclear Issues
Subcommittee, National Association of Regulatory
Utility Commissioners;
Ed Lyman, Senior Scientist, Global Security
Program, Union of Concerned Scientists;
Steven P. Nesbit, Chairmen, Backend Working
Group, Nuclear Infrastructure Council; and,
Mark McManus, General President, United
Association.
Additionally, in the 114th Congress, the Committee heard
from 37 witnesses over the course of 9 hearings which discussed
components of a nuclear waste management program and associated
challenges. These include:
Subcommittee on Energy and Power, ``The
Fiscal Year 2016 Department of Energy Budget,'' on
February 9, 2015;
Subcommittee on Energy and Power, ``The
Fiscal Year 2017 Department of Energy Budget,'' on
February 29, 2016;
Subcommittee on Energy and Power and
Subcommittee on Environment and the Economy ``Oversight
of the Nuclear Regulatory Commission,'' on September 9,
2015;
Subcommittee on Energy and Power and
Subcommittee on Environment and the Economy ``Fiscal
Year 2017 Nuclear Regulatory Commission Budget,'' April
18, 2016;
Subcommittee on Environment and the Economy,
``Update on the Current Status of Nuclear Waste
Management Policy,'' on May 15, 2015;
Subcommittee on Environment and the Economy,
``Transporting Nuclear Materials: Design, Logistics,
and Shipment,'' on October 1, 2015;
Subcommittee on Environment and the Economy,
``Update on Low-Level Radioactive Waste Disposal
Issues,'' on October 28, 2015;
Subcommittee on Environment and the Economy,
``The Nuclear Waste Fund: Budgetary, Funding, and
Scoring Issues,'' on December 3, 2015; and
Subcommittee on Environment and the Economy,
``Federal, State, and Local Agreements and Associated
Benefits for Spent Nuclear Fuel Disposal,'' on July 7,
2016.
On June 15, 2017, the Subcommittee on Environment met in
open markup session and forwarded the Committee Print entitled
``Nuclear Waste Policy Amendments Act of 2017,'' without
amendment, to the full Committee by a voice vote. H.R. 3053 was
introduced on June 26, 2017, and was substantially similar to
the Committee Print forwarded by the Subcommittee. On June 28,
2017, the full Committee on Energy and Commerce met in open
markup session and ordered H.R. 3053, as amended, favorably
reported to the House by a record vote of 49 yeas and 4 nays.
Committee Votes
Clause 3(b) of rule XIII requires the Committee to list the
record votes on the motion to report legislation and amendments
thereto. The following reflects the record votes taken during
the Committee consideration:
Oversight Findings and Recommendations
Pursuant to clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII, the Committee held a hearing on April 26, 2017, and
made findings that are reflected in this report.
New Budget Authority, Entitlement Authority, and Tax Expenditures
Pursuant to clause 3(c)(2) of rule XIII, the Committee
finds that H.R. 3053 would result in no new or increased budget
authority, entitlement authority, or tax expenditures or
revenues.
Congressional Budget Office Estimate
Pursuant to clause 3(c)(3) of rule XIII, the following is
the cost estimate provided by the Congressional Budget Office
pursuant to section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 4, 2017.
Hon. Greg Walden,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3053, Nuclear
Waste Policy Amendments Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Megan
Carroll.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 3053--Nuclear Waste Policy Amendments Act of 2017
Summary: Under the Nuclear Waste Policy Act (NWPA), the
federal government, through the Department of Energy (DOE), is
responsible for permanently disposing of the nation's nuclear
waste in a geologic repository at Yucca Mountain, Nevada. H.R.
3053 would not change that fundamental requirement, but would
temporarily limit DOE's authority to collect certain fees
charged to utilities with nuclear plants to cover the costs of
disposing of the waste they generate and would authorize DOE to
enter into agreements to provide benefits to state, local, and
tribal governments that might host or be affected by facilities
related to the waste management program.
In general, CBO expects that enacting H.R. 3053 would not
significantly change the overall magnitude of the long-term
costs the government will incur under the NWPA (tens of
billions of dollars over multiple decades). However, relative
to CBO's 10-year baseline projections, we estimate that
enacting the bill would increase direct spending over the next
10 years. In particular, the bill would reduce projected
receipts from certain fees (which are treated as reductions in
direct spending) that utilities might otherwise pay by about
$1.5 billion and would increase direct spending for payments to
state, local, and tribal governments by $260 million over the
2018-2027 period.
However, the House Committee on the Budget has directed CBO
to estimate the budgetary effects of H.R. 3053 on the
assumption that, under current law, the utilities will pay none
of the affected fees over the 2018-2027 period. On that basis,
CBO estimates that enacting H.R. 3053 would not reduce
projected receipts, but would increase direct spending by $260
million over the 2018-2027 period.
In addition, assuming appropriation of the authorized and
estimated amounts, CBO estimates that implementing the bill
would have discretionary costs of $300 million over the next 10
years.
Pay-as-you-go procedures apply because enacting H.R. 3053
would affect direct spending. Enacting the bill would not
affect revenues.
CBO estimates that enacting H.R. 3053 would increase net
direct spending after 2027. However, CBO cannot determine
whether such net increases would exceed $5 billion in one or
more of the four consecutive 10-year periods beginning in 2028
because the bulk of such increases would depend on whether a
geologic repository at Yucca Mountain is licensed, built, and
put into operation. Whether such events occur depends on
factors that lie beyond the scope of this legislation--namely,
what the outcome is for the Nuclear Regulatory Commission's
(NRC's) review of DOE's application for a license to construct
a geologic repository at Yucca Mountain and whether the
Congress provides the funding necessary for DOE to establish
such a facility and carry out other activities related to the
disposal of nuclear waste.
H.R. 3053 would impose intergovernmental mandates as
defined in the Unfunded Mandates Reform Act (UMRA). The bill
would preempt state and local regulatory authority over
hazardous waste that would be transported to and stored in a
nuclear waste repository in Nevada. Although the preemption
would limit the application of state and local laws and
regulations, CBO estimates that the preemption would impose no
duty on state or local governments that would result in
additional spending or a loss of revenues.
H.R. 3053 also would impose a private-sector mandate as
defined in UMRA on owners of mining claims by prohibiting
mining on federal land withdrawn from public land laws for the
construction of a repository. Based on information about the
number of mining claims in the area and the value of mining
claims on federal land, CBO estimates that the cost of the
mandate would fall below the annual threshold established in
UMRA for private-sector mandates ($156 million in 2017,
adjusted annually for inflation).
Background: Under the NWPA, the federal government faces
substantial costs to implement a program to permanently dispose
of the nation's nuclear waste.\1\ Under the law, the only
authorized means of disposal involves constructing a geologic
repository, and Yucca Mountain, Nevada, is the only authorized
site where such a repository can be located. In 2008, DOE
submitted to the NRC an application for a license to construct
a repository at Yucca Mountain. However, starting in 2010, the
Administration took a variety of actions to terminate that
project. Since that time, the Congress has provided no new
funding for the Yucca Mountain project. Meanwhile, after
exhausting funds made available for the licensing effort, both
DOE and the NRC have no effective capability to carry out the
regulatory activities that must be completed before DOE can
implement a program to dispose of nuclear waste.\2\ (However,
the Administration has requested funding to resume licensing
activities in 2018.)
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\1\For additional information about the federal government's
responsibilities and liabilities under the Nuclear Waste Policy Act,
see the testimony of Kim Cawley, Chief, Natural and Physical Resources
Cost Estimate Unit, Congressional Budget Office, before the
Subcommittee on Environment and the Economy of the House Committee on
Energy and Commerce, The Federal Government's Responsibilities and
Liabilities Under the Nuclear Waste Policy Act (December 3, 2015),
www.cbo.gov/publication/51035.
\2\See Government Accountability Office, Commercial Nuclear Waste:
Resuming Licensing of the Yucca Mountain Repository Would Require
Rebuilding Capacity at DOE and NRC, Among Other Key Steps, GAO-17-340
(April 2017), www.gao.gov/products/GAO-17-340.
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DOE has also incurred--and partially breached--contractual
obligations to remove waste from existing nuclear facilities.
Under contracts signed with electric utilities pursuant to the
NWPA, in exchange for fees to cover the government's costs, DOE
was scheduled to start removing waste from storage sites at
power plants and transport it to a federal storage or disposal
facility by 1998. After the government missed that deadline,
utilities with nuclear plants began to successfully sue the
government for resulting damages. By the end of fiscal year
2016, utilities had received $6.1 billion in payments from the
Judgment Fund (a permanent indefinite appropriation available
to pay judicially and administratively ordered monetary awards
against the United States).
The potential timing and magnitude of additional spending
that must occur to enable the government to meet its
obligations under the NWPA and the extent to which federal
costs will be defrayed by fees from nuclear utilities are all
uncertain. Resuming activities to execute the program currently
authorized under that law will require a significant and
sustained increase in federal appropriations to rebuild DOE's
and the NRC's capacity to complete licensing activities and to
construct the facilities and infrastructure authorized under
the act and CBO cannot predict whether the necessary funding
will be provided.\3\ Likewise, although the NWPA requires DOE
to charge fees to nuclear utilities to cover the government's
cost to dispose of the waste they generate, the extent to which
the Secretary will exercise his discretion, under current law,
to assess and collect such fees is uncertain, particularly in
light of recent legal proceedings.
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\3\In 2008, DOE estimated that costs associated with geologic
disposal of civilian and defense-related nuclear waste (including those
related to transportation and project management) would total $96
billion (in 2007 dollars) over a period of more than 100 years. See
Department of Energy, Office of Civilian Radioactive Waste Management,
Analysis of the Total System Life Cycle Cost of the Civilian
Radioactive Waste Management Program, Fiscal Year 2007, DOE/RW-0591
(July 2008), http://go.usa.gov/cjmtG. In addition, the NRC previously
estimated that completing activities related to its review and
adjudication of DOE's application for a license to construct a
repository at Yucca Mountain would cost $330 million.
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CBO'S BASELINE PROJECTIONS
On the basis of underlying provisions of the NWPA, federal
cash flows related to the nuclear waste program involve a mix
of discretionary spending and mandatory spending.
Under the NWPA, spending from the NWF is not automatically
triggered by the collection of fees or transfers of amounts
credited as intragovernmental interest. Instead, it is
controlled by annual appropriation acts, and is therefore
considered discretionary spending. Under current law, no
discretionary spending is occurring for permanent geologic
disposal as authorized under the NWPA; as a result, CBO's
baseline projections include no such spending.
In contrast, fees paid by nuclear utilities are governed by
statutory provisions of the NWPA and the terms of contracts
entered into pursuant to that act. As a result, they are
classified as offsetting receipts, which are credited against
mandatory spending. Likewise, ongoing spending for DOE's
liabilities stemming from its partial breach of those contracts
is classified as mandatory spending because the source of such
spending--the Treasury's Judgment Fund--is governed by
underlying law that provides permanent, indefinite budget
authority for such payments.
Projected receipts from nuclear waste fees
CBO's baseline projections of receipts from fees paid by
utilities reflect uncertainty about events that could transpire
under current law. Following litigation in which the nuclear
industry challenged DOE's authority to collect annual fees, DOE
complied, in 2014, with a court order to reduce the rate of the
fees from $0.001 per kilowatt hour (kwh) of electricity
generated by nuclear power to $0.0 per kwh.\4\
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\4\The National Association of Regulatory Utility Commissioners and
the Nuclear Energy Institute filed petitions with the U.S. Court of
Appeals for the District of Columbia Circuit to end the federal
government's collections of annual fees. In 2013, that court found that
DOE had failed to provide a legally justifiable basis for continuing to
collect fees in the absence of an identifiable strategy for waste
management. The court ordered the Secretary of Energy to reduce the
annual fee to zero until the agency either justifies a reinstatement of
annual fees with a new study on the adequacy of the balances in the NWF
or until the Congress enacts new legislation authorizing an alternative
to Yucca Mountain as a disposal site.
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However, that court order also referenced procedures
established under the NWPA, which are still in effect under the
order, by which DOE could reinstate annual fees under certain
conditions. Specifically, the NWPA requires DOE to periodically
review and, if necessary, adjust the rate of the annual fee to
ensure that the projected balances of the NWF (including
interest credited to the fund) are sufficient to pay the full
long-term costs associated with geologic disposal of nuclear
waste. Under the court order, if DOE completed such an analysis
and determined that additional fees were needed, it could
reinstate fees at whatever rate it considered necessary. Given
that possibility--that DOE could reinstate annual fees under
current law--CBO's baseline follows the agency's usual
practices for projecting spending and receipts related to
activities involving the possibility of administrative actions.
Specifically, CBO estimates the total amounts that would be
collected if fees were fully reinstated and to account for the
uncertainty under current law, includes 50 percent of those
amounts in its baseline. Thus, CBO's baseline includes $385
million annually in nuclear waste fees--roughly half the amount
that had been collected before DOE reduced the fee to zero. The
Administration follows similar procedures in preparing baseline
projections of nuclear waste fees.
Projected spending for DOE's contractual liabilities
CBO's projections of mandatory spending include significant
amounts of spending for continued on-site storage of waste at
civilian nuclear facilities--in the form of payments from the
Judgment Fund related to DOE's contractual liabilities. Because
of the timing lag between when such liabilities are incurred
and damages are eventually paid, CBO expects that most of the
anticipated nuclear waste-related spending from the Judgment
Fund over at least the next 10 years--which CBO estimates will
total at least $5 billion--is attributable to liabilities that
DOE has either already incurred or cannot avoid.
Estimates of the government's remaining liabilities are
uncertain and depend critically on when and how DOE begins to
accept waste and how long eliminating the backlog will take. In
2016, DOE estimated that if it could begin to accept waste
within the next 10 years, remaining liabilities would total $25
billion.\5\ However, CBO estimates that even if that time frame
could be achieved, the department will face a backlog in
meeting contractually specified schedules for accepting waste
that would take more than 20 years to clear. As long as DOE
remains behind schedule, the government will continue to incur
liabilities.
---------------------------------------------------------------------------
\5\Department of Energy, Fiscal Year 2016 Agency Financial Report,
DOE/CF-0128 (November 2016), https://energy.gov/sites/prod/files/2016/
11/f34/DOE_FY2016_AFR.pdf.
---------------------------------------------------------------------------
Estimated cost to the Federal Government: The estimated
budgetary effect of H.R. 3053 is shown in the following table.
The costs of this legislation fall within budget function 270
(energy).
Basis of estimate: In general, CBO expects that enacting
H.R. 3053 would not significantly change the overall magnitude
of costs the government will ultimately incur to dispose of
civilian nuclear waste. The bill would not alter the
government's responsibility to permanently dispose of nuclear
waste at a geologic repository, and although the bill would
make important changes to provisions of the NWPA that pertain
to the repository at Yucca Mountain, that site would remain the
only authorized location where such a repository could be
built.\6\ Similarly, enacting the bill would not change DOE's
obligation under the NWPA to levy fees on the nuclear industry
at rates that are sufficient to ensure that projected balances
in the Nuclear Waste Fund (or NWF, an accounting mechanism used
to record cash flows related to the civilian nuclear waste
program) will be sufficient to cover the full extent of long-
term costs of disposing such waste.
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\6\Key provisions of H.R. 3053 related to the repository authorized
at Yucca Mountain would permanently withdraw from public use
approximately 147,000 acres of land in Nye County, Nevada, that
surround the site--which would then be administered by the Secretary of
Energy. The bill also would amend the NWPA to allow DOE, at any time,
to construct and upgrade infrastructure that the Secretary considers
necessary to support the construction or operation of the repository.
(Under current law, such activities cannot occur unless the NRC
approves DOE's license application.) Finally, the bill would increase,
from 70,000 to 110,000 metric tons, the statutory cap on the volume of
waste that can be disposed of at the repository. In the absence of such
a change, the government could face additional costs to build further
capacity to dispose of waste from nuclear utilities, which have already
generated more than 70,000 metric tons of waste. Thus, increasing the
authorized capacity of Yucca Mountain could affect the future long-term
costs of disposing of civilian nuclear waste, but CBO has not estimated
either the long-term costs the government already faces under current
law or how that change might affect them.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------------------------------------------------------------------------------------
2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2018-2022 2018-2027
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
INCREASES IN DIRECT SPENDING RELATIVE TO DIRECTION BY THE HOUSE COMMITTEE ON THE BUDGETa
Benefits Agreements:
Estimated Budget Authority.............................. 15 30 35 35 20 20 30 25 25 25 135 260
Estimated Outlays....................................... 15 30 35 35 20 20 30 25 25 25 135 260
INCREASES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level............................... 0 0 50 50 50 50 50 50 0 0 150 300
Estimated Outlays........................................... 0 0 0 75 75 50 50 50 0 0 150 300
Memorandum:
INCREASES IN DIRECT SPENDING RELATIVE TO CBO'S BASELINE PROJECTIONS
Temporary Limits on Payments of Annual Fees:
Estimated Budget Authority.............................. 385 385 385 385 0 0 0 0 0 0 1,540 1,540
Estimated Outlays....................................... 385 385 385 385 0 0 0 0 0 0 1,540 1,540
Total Changes in Direct Spending Relative to CBO's
Baseline Projections:b
Estimated Budget Authority.......................... 400 415 420 420 20 20 30 25 25 25 1,675 1,800
Estimated Outlays................................... 400 415 420 420 20 20 30 25 25 25 1,675 1,800
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\Relative to CBO's baseline projections, we estimate that increases in direct spending over the 2018-2027 period would stem from provisions that would temporarily limit utilities' payments
of fees and authorize DOE to provide benefits to nonfederal governments affected by waste-related facilities. However, the House Committee on the Budget has directed CBO to estimate the
budgetary effects of H.R. 3053 on the assumption that utilities will pay none of the affected fees over the 2018-2027 period. On that basis, CBO estimates that fee-related provisions would
have no effect, and increases in direct spending under H.R. 3053 resulting from benefits paid to nonfederal governments affected by waste-related facilities would total $260 million over the
2018-2027 period.
bIncludes spending for benefits agreements with nonfederal governments that host or are affected by waste-related facilities.
Relative to CBO's baseline projections, however, provisions
of the bill would increase direct spending over the 10-year
period covered by this estimate by $1.8 billion--due to a
provision that would limit utilities' payments of fees under
the NWPA ($1.5 billion) and from benefits agreements ($260
million). In addition, assuming appropriation of amounts
authorized for new activities, CBO estimates that implementing
the bill would have a discretionary cost of $300 million.
However, for the estimate of H.R. 3035, the House Committee
on the Budget has directed CBO to assume that, under current
law, the affected utilities will not pay any annual fees over
the 2018-2027 period. On that basis, CBO estimates that
enacting H.R. 3053 would not affect the annual fees, and would
increase direct spending by $260 million over the 2018-2027
period. (The direction from the House Committee on the Budget
would not affect CBO's estimate of discretionary spending.)
Estimate of direct spending as directed by the House Committee on the
Budget
Relative to direction from the House Committee on the
Budget, there would be no budgetary effect from prohibiting DOE
from collecting annual fees from utilities with nuclear power
plants. Direct spending over the 2018-2027 period would result
entirely from provisions that would authorize DOE to provide
assistance to nonfederal governments affected by the disposal
program.
Specifically, H.R. 3053 would authorize DOE to enter into
``benefits agreements'' with and make payments to state, local,
or tribal governments that might host facilities related to the
disposal program to help those governments mitigate potential
related effects. The bill also would specify amounts to be paid
annually to those governments that participate in benefits
agreements. In general, the payments would be lower during the
initial years (when siting, licensing and construction
activities would occur) and, after a onetime payment in the
year when a facility first accepts waste, would increase while
the facility continues to operate. Under H.R. 3053, DOE and
affected governments would negotiate the terms of any benefits
agreements they enter into. Under certain conditions--namely,
if sites are disqualified as candidates or, in the case of the
authorized repository at Yucca Mountain, if the NRC disapproves
DOE's license application--the agreements could be terminated.
To the extent they remain in effect, however, participating
state, local, or tribal governments would effectively be
entitled to annual payments of benefits in accordance with
schedules specified under the bill. Therefore, in CBO's view,
such commitments would increase direct spending.
CBO estimates that increased direct spending stemming from
benefits agreements under H.R. 3053 would total $260 million
over the 2018-2027 period. That amount includes $195 million
for benefits related to a repository at Yucca Mountain and $65
million for benefits related to other facilities.
Repository-Related Benefits Agreements. H.R. 3053 would
modify the NWPA to authorize DOE to enter into a benefits
agreement with Nevada and specify amounts to be paid to that
state on an annual basis.\7\ In addition, the bill would
authorize DOE, after one year, to negotiate benefits agreements
with affected local governments within that state. Under H.R.
3053, CBO expects DOE would enter into an agreement with Nevada
in 2018 and multiple agreements with other governments in 2019.
CBO also expects that payments to those other governments would
not, in total, exceed the amount authorized to be paid to
Nevada--$15 million annually until a repository begins to
operate, which CBO does not expect will occur before 2027.\8\
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\7\When Nevada Governor Guinn formally objected to President Bush's
site recommendation of Yucca Mountain in 2002, the state forfeited the
opportunity to receive benefits under the NWPA.
\8\H.R. 3053 also would authorize a onetime payment, upon the date
when a repository first accepts waste, of an amount equal to 1 percent
of the balance of funds credited to the NWF as of the date of the
bill's enactment--or $370 million, CBO estimates (on the basis of the
fund's existing balance and assuming the bill is enacted early in
2018). After that onetime payment, annual payments would equal 0.1
percent of that balance--or $37 million annually--and continue for
decades until the repository ceases operations.
---------------------------------------------------------------------------
The cost of repository-related benefits agreements is
uncertain and would depend on the outcome of the NRC's
licensing process. That agency's decision, which CBO expects
would occur in 2021, would probably determine whether payments
for benefits agreements related to a repository at Yucca
Mountain continued. If the NRC approves the application, CBO
anticipates that the affected governments would continue to
receive benefits. However, if the NRC disapproves the
application, CBO expects that DOE would exercise its authority
to terminate any agreements governing such benefits.
CBO has no basis, though, for predicting the outcome of the
NRC's licensing process. To account for that uncertainty, CBO
assumes for this estimate that there is a 50 percent chance
that payments to Nevada and local governments within that state
would continue after 2021. On that basis, CBO estimates that
direct spending for repository-related benefits agreements
would increase by a total of $195 million over the 2018-2027
period. That amount includes $15 million in 2018 (for Nevada),
$30 million annually (for Nevada and local governments) over
the 2019-2021 period--the full extent of payments CBO estimates
would be authorized during those years while the NRC completes
its licensing activities. To account for uncertainty about
whether payments would continue in later years, CBO's estimate
also includes payments to Nevada and affected governments
totaling $15 million annually over the 2022-2027 period (half
the total amount CBO estimates might be paid in those years).
Benefits Agreements With Governments Hosting Other
Facilities. Under H.R. 3053, DOE could enter into one agreement
with each state or tribal government that has jurisdiction over
land with a site identified as a potential candidate for
hosting what is termed a monitored retrievable storage (MRS)
facility. DOE could enter into only one such agreement with a
state or tribe at any given time. Under the bill, during the
initial years of siting, licensing, and constructing an MRS
facility, the host government would receive $5 million
annually. When the facility first accepts spent fuel, the host
government would receive a onetime payment of $10 million.
Subsequent payments would rise to $10 million annually for the
life of the facility.
The amount and timing of direct spending to provide
benefits to governments that host MSR facilities is uncertain.
For this estimate, CBO assumes that under H.R. 3053, DOE would
commit to pay at least one potential host government of an MRS
facility over the 2018-2027 period. On the basis of the
potential time frame for developing such a facility, CBO
estimates that payments to that government would begin in 2020
(after a needs analysis by DOE, as required under the bill)
and, assuming the facility begins to accept waste in 2024,
would total $65 million over the 2020-2027 period. After that
time, federal spending of $10 million annually for benefits
would continue for several decades. (An MRS agreement would
also lead to discretionary spending; more detail about those
costs is provided below under the heading, ``Spending Subject
to Appropriation.'')
Direct spending relative to CBO's baseline
Relative to CBO's baseline projections, we estimate that
enacting H.R. 3053 would increase net direct spending by $1.8
billion over the 2018-2027 period. That 10-year cost includes:
$1.5 billion in forgone receipts resulting from a
provision that would temporarily limit DOE's authority to
accept payments of annual fees that CBO expects might be paid
in the future by nuclear utilities (there would be no cost for
those foregone receipts under the direction of the Budget
Committee), and
$260 million for benefits that would be paid to
state, local, and tribal governments that might host or be
affected by facilities related to the civilian nuclear waste
program (those costs would be the same under both CBO's
baseline and the direction from the Budget Committee).
Temporary Limits on DOE's Authority To Accept Payments of
Annual Fees. Under the NWPA and the terms of related contracts
entered into by DOE and utilities with nuclear plants,
utilities pay two types of fees to cover the costs of disposing
of the nuclear waste they generate. Annual fees are based on
the amount of electricity they sell that is generated by
nuclear power plants and onetime fees are based on the volume
of waste those plants generated before the NWPA was enacted.
H.R. 3053 would direct DOE to establish separate procedures
for assessing annual fees and accepting payments. Under the
bill, DOE would establish, within 180 days, procedures for
assessing the annual fees, which CBO expects would be
consistent with the NWPA's underlying requirement that the
Secretary set the rate of annual fees at the level necessary to
ensure that projected balances in the NWF are sufficient to
cover the costs of disposing of civilian nuclear waste. Broadly
speaking, because enacting H.R. 3053 would not substantively
affect those costs, CBO expects that the new procedures would
not significantly change the total amount of annual fees DOE
would assess utilities.
However, the bill would prohibit DOE from accepting any
payments of assessed fees until the NRC issues a decision
regarding the agency's license application. Relative to CBO's
baseline projections, CBO estimates that the temporary
prohibition would reduce annual fees by a total of $1.5 billion
over the next four years.
In addition, DOE's authority to collect fees in years
following the NRC's decision could be constrained by the
amounts of future appropriations for the waste program. To
fulfill its statutory obligation to charge fees sufficient to
cover the costs of disposing of civilian waste, the department
could need to adjust the fees each year depending on the
appropriations received, but CBO has no basis for estimating
such changes.
Estimated Effects of Temporary Limits on Payments of Annual
Fees. Upon enactment, H.R. 3053 would prohibit DOE from
accepting payments of annual fees until the NRC issues a
decision regarding DOE's license application. The bill would
not explicitly prevent DOE from assessing annual fees during
that time; however, based on an analysis of information from
the department, CBO expects that DOE would not assess annual
fees when the prohibition is in effect. Thus, relative to CBO's
baseline projections, enacting that provision would eliminate
the possibility of DOE collecting any fees while the NRC
conducts its analysis. On the basis of information from the NRC
about the potential time frame required to resume and complete
its review and adjudication of DOE's license application, CBO
expects that the proposed prohibition would last about four
years and thereby reduce receipts, relative to the baseline, by
a total of $1.5 billion.
Potential Limits on Payments of Assessed Fees Based on
Future Appropriation Acts. In years following the NRC's
decision, DOE's authority to collect fees that it assesses
could be affected by the amount of funding provided for the
waste disposal program. Specifically, H.R. 3053 would limit
DOE's authority to collect, in any year, annual fees that total
more than 90 percent of the amount appropriated in that year
from the NWF for activities related to the Yucca Mountain
project. The bill also would specify, however, that regardless
of any limitation on the amount of payments that might occur in
a given year, the utilities would remain liable for the full
amount of the fees assessed and would set forth conditions
under which the Secretary could require utilities to pay the
uncollected portion of fees previously assessed.
Enacting those provisions could affect the timing and
magnitude of receipts from payments of annual fees. CBO has no
basis, however, for estimating the extent to which those
receipts would differ from amounts projected in our baseline.
More broadly, for the reasons described, receipts from annual
fees paid in any given year under H.R. 3053, as under current
law, would remain uncertain. As a result, this estimate does
not reflect any potential changes to annual receipts after
2021.
Spending subject to appropriation
H.R. 3053 would direct DOE to determine by June 1, 2019,
the need for MRS facilities to store waste--temporarily--until
the department can permanently dispose of it in a geologic
repository. The bill also would authorize DOE and willing
utilities to enter into new contracts or renegotiate the terms
of existing contracts to allow the department to accept waste
and store it at an MRS facility, with priority given to waste
generated by nuclear facilities that are no longer operating.
Under current law, DOE can accept waste only for the purpose of
permanently disposing of it in a geologic repository.
Unless the Secretary determines that constructing a federal
MRS facility would be faster and less costly, the bill would
direct DOE to prioritize storage of civilian waste to which it
takes title at nonfederal MRS facilities. Under H.R. 3053, DOE
could not enter into an MRS agreement unless the sponsor of the
nonfederal facility obtained a license from the NRC as well as
permission to store department-owned waste from the state's
governor, any local government units with jurisdiction over the
area, and affected Indian tribes. In general, the bill would
permit DOE to enter into multiple MRS agreements, but only one
such agreement could be signed before the NRC issues its
decision on DOE's application for a license to build a
repository at Yucca Mountain.
The bill would authorize appropriations to implement that
initial MRS agreement. Specifically, over the 2020-2022 period,
the bill would authorize the appropriation of up to $50 million
annually. For each of fiscal years 2023 through 2025, the bill
would authorize appropriations in amounts equal to 10 percent
of the amounts appropriated from the NWF. For this estimate,
CBO assumes that authorization levels over the 2023-2025 period
would remain in line with the $50 million cap specified for
earlier years.
Thus, CBO estimates that H.R. 3053 would authorize
appropriations totaling $300 million over the 2020-2025 period
for DOE to implement an initial MRS agreement and that the
resulting discretionary spending over the period would be the
same amount. Based on an analysis of information from DOE, the
NRC, and the nuclear industry, CBO further anticipates that
such funding would support the development of one nonfederal
MRS facility that would be licensed in 2021, be constructed
over the 2022-2023 period, and begin to operate in 2024.
Pay-As-You-Go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending or
revenues. The direction by the House Committee on the Budget to
assume that nuclear utilities will not pay any fees over the
2018-2027 period under current law would not affect what is
recorded under that act. Thus, CBO is providing our estimate of
the net changes in outlays that are subject to those pay-as-
you-go procedures in the following table. The Office of
Management and Budget is responsible for recording any changes
in direct spending or revenues under that act.
CBO ESTIMATE OF PAY-AS-YOU-GO EFFECTS FOR H.R. 3053, AS ORDERED REPORTED BY THE HOUSE COMMITTEE ON ENERGY AND COMMERCE ON JUNE 28, 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------------------------------------------------------
2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2018-2022 2018-2027
--------------------------------------------------------------------------------------------------------------------------------------------------------
NET INCREASE IN THE DEFICIT
Statutory Pay-As-You-Go Impact.................... 400 415 420 420 20 20 30 25 25 25 1,675 1,800
--------------------------------------------------------------------------------------------------------------------------------------------------------
Increase in long-term direct spending and deficits: For the
four consecutive 10-year periods following 2027, CBO estimates
that enacting H.R. 3053 would probably increase net direct
spending by at least a few billion dollars and potentially as
much as nearly $20 billion dollars. Whether such higher costs
would arise is uncertain and would depend on whether a geologic
repository at Yucca Mountain is licensed, built, and put into
operation. Those events depend on factors beyond the scope of
this legislation--namely, whether the NRC approves DOE's
application for a license to construct a geologic repository at
Yucca Mountain and whether the Congress enacts new laws to
provide funding for the department to establish such a facility
and implement other related activities. CBO has no basis for
predicting the outcome of the NRC's licensing process or
whether activities related to the disposal program will receive
necessary funding. Nor can CBO estimate the extent to which
enacting H.R. 3053 might reduce future direct spending related
to DOE's contractual liabilities. As a result, CBO cannot
determine whether net increases in direct spending would exceed
$5 billion in any of the four 10-year periods following 2027.
In addition to continued spending for benefits agreements,
long-term increases in direct spending after 2027 are
attributable to provisions of H.R. 3053 that would appropriate
balances of the NWF and authorize DOE to spend onetime fees.
CBO also expects that implementing provisions in H.R. 3053 that
would authorize DOE to pursue temporary storage facilities
could potentially reduce the government's exposure to
contractual liabilities under the NWPA.
Authority to spend NWF balances
When DOE first accepts waste for disposal at Yucca
Mountain, H.R. 3053 would permanently appropriate, on an annual
basis for 25 years, 1 percent of the balance of funds credited
to the NWF as of the date of enactment of H.R. 3053--or about
$370 million annually, CBO estimates. If provided, such funding
would total $9.3 billion over 25 years and remain available to
DOE for repository-related construction costs and operating
expenses. Later, when Yucca Mountain ceases operations, H.R.
3053 would provide a onetime appropriation equal to 20 percent
of the fund's balance as of the date of enactment--or about
$7.4 billion--for activities related to monitoring and
decommissioning that facility.
Thus, H.R. 3053 could increase direct spending of NWF
balances by nearly $17 billion over the next several decades.
However, as explained previously, whether that facility will be
constructed is uncertain and depends on factors that lie beyond
the scope of H.R. 3053.
Authority to spend onetime fees
H.R. 3053 would authorize DOE to spend, without further
appropriation, onetime fees established under the NWPA to cover
the costs of disposing of waste that was generated before the
law was enacted. Under that law, DOE gave utilities options for
postponing payments of such fees, but utilities must pay their
outstanding balance when the department accepts their waste to
permanently dispose of it in the Yucca Mountain repository.
Because that event is unlikely by the end of the projection
period in 2027, CBO anticipates that the bulk of onetime fees
are unlikely to be paid until after that time.\9\
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\9\The MRS-related provisions of H.R. 3053 could accelerate
payments of onetime fees. Specifically, to the extent that those
provisions enable DOE to accept nuclear waste (for storage in an MRS
facility) sooner than it otherwise could under current law, they might
trigger payments of onetime fees as early as 2024, when CBO assumes
such a facility would begin to store waste under the bill. Regardless
of those timing issues, though, the total increase in direct spending
attributable to the bill's provision regarding onetime fees would
remain the same.
---------------------------------------------------------------------------
To date, several utilities have not paid the fees, and
according to DOE, the balance of uncollected fees currently
stands at roughly $2.6 billion. Interest accrues on the
balances due until the utilities pay them to the government;
therefore, when the fees are paid, resulting receipts (and
corresponding direct spending) will probably be greater than
the current balances due. As a result, CBO estimates that
enacting H.R. 3053 would increase direct spending by an amount
that, in total, would be equivalent to $2.6 billion in today's
dollars, but that spending would occur after 2027.
Potential reductions in contractual liabilities
As previously noted, the federal government has already
incurred significant liabilities for damages related to its
partial breach of contracts with utilities. DOE is nearly 20
years behind schedule in meeting its contractual obligations to
accept and dispose of civilian nuclear waste, and as long as it
remains behind schedule, the government will continue to incur
liabilities. The extent of those liabilities will ultimately
depend on when and how the government fulfills its obligations
to accept and dispose of the waste.
Even though those factors would be largely unaffected by
H.R. 3053, the bill could enable DOE to avoid at least some
future liabilities stemming from its partial breach of
contracts, thereby reducing taxpayers' exposure to such costs.
Specifically, H.R. 3053 would allow DOE and utilities to
voluntarily renegotiate their contractual obligations, thus
potentially enabling the government to begin to fulfil them
sooner than it otherwise could under current law--if DOE is
able to accept nuclear waste and store it at MRS facilities, as
envisioned by the bill.
Thus, the total magnitude of federal contractual
liabilities under H.R. 3053 could be less than under current
law. CBO has no basis, however, for estimating the potential
savings that might result; they would depend on uncertain
factors such as the extent to which utilities chose to
renegotiate contracts and the number and capacity of MRS
facilities that might be developed. The savings could be
significant but if they occurred they probably would not arise
until well beyond 2027.
ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS
Mandates on public entities
The bill would impose intergovernmental mandates as defined
in UMRA by preempting state and local regulatory authority over
hazardous waste that would be transported to and stored in a
nuclear waste repository in Nevada. Although the preemption
would limit the application of state and local laws and
regulations, CBO estimates that the preemption would impose no
duty on state or local governments that would result in
additional spending or a loss of revenues.
Other effects on public entities
While state, local, and tribal governments would not be
required to participate in licensing and review proceedings
related to Yucca Mountain or an MRS facility under the Nuclear
Waste Policy Act, CBO expects that agencies of those
governments would likely choose to participate in the review
processes for such projects and would incur costs. Costs of
participation would include legal and administrative expenses,
as well as the costs of conducting scientific and technical
analyses. Any costs incurred by those entities would result
from voluntary commitments. Based on an analysis of information
provided by officials from Nevada's Agency for Nuclear Projects
and from Nye County's Nuclear Waste Repository Project Office,
CBO estimates that public agencies would spend $10 million to
$15 million per year over the 2018-2022 period to participate
in proceedings related to the Yucca Mountain repository. CBO
estimates that costs would be lower for public agencies
participating in proceedings related to an MRS facility because
of the lower complexity involved with such a project. (The most
likely location for an MRS facility would be in New Mexico or
Texas). Under the NWPA, DOE is authorized to provide financial
and technical assistance to defray the costs to public agencies
of participating in review proceedings for a proposed
repository or MRS facility.
Although H.R. 3053 would, by itself, establish no new
enforceable duties on state, local, or tribal governments,
shipments of nuclear waste for temporary storage at an MRS
facility and for permanent storage at Yucca Mountain probably
would increase the costs to state, local, and tribal agencies
of complying with existing requirements for federal grants and
conditions of participation in other federal programs. Those
requirements include compliance with federal laws governing
transportation, public safety, and environmental protection
that are implemented by public agencies. Additional spending by
state, local, and tribal agencies would support a number of
activities, including emergency response planning and training,
public health and safety, road and rail maintenance,
inspections, and security activities such as escort of waste
shipments. These indirect costs would not stem from mandates as
defined by UMRA, but could total tens of millions of dollars
per year across all public entities. In addition, costs for
upgrading highway or rail infrastructure to accommodate waste
shipments could range into the hundreds of millions of dollars,
based on past studies by the Nevada Department of
Transportation. In the event of an accident or attack involving
shipment of radioactive waste, costs would likely be
significantly higher.
To compensate state, local, and tribal governments in
Nevada--and in states where an MRS facility is located--for the
various governmental costs of accommodating a nuclear waste
storage site, the bill would authorize the DOE to enter into
benefits agreements with those governments. If state, local,
and tribal governments choose to enter into such agreements,
they would receive annual payments from DOE that would vary
depending on whether an MRS facility or a repository is
constructed in the state and on whether the site is accepting
waste shipments for storage. Receipt of benefits would depend
upon the outcome of the NRC's licensing process, and the amount
of benefits received would ultimately depend upon negotiations
between DOE and the affected governments.
For the purposes of this estimate, CBO assumes that DOE
would make benefits payments to state and local governments in
Nevada relating to Yucca Mountain totaling $15 million 2018 and
that payments would increase to $30 million per year from 2019
through 2021. If the NRC approves DOE's license application for
the repository in 2021, CBO estimates that payments would
continue at that level until the repository begins to accept
waste sometime after 2027. When the repository first receives
waste, parties to a benefits agreement would receive a one-time
payment estimated at $370 million, and would receive an
estimated $37 million each year thereafter until the repository
ceases operations. If, on the other hand, the NRC disapproves
DOE's licensee application, CBO assumes that DOE would exercise
its authority to terminate any agreements governing such
benefits. For the purposes of this estimate, CBO assumes that
DOE would begin providing benefits to one host government
relating to an MRS facility--likely in New Mexico, Texas, or
Nevada totaling $5 million per year beginning in 2020 and that
payments would increase to $10 million per year once the
facility starts accepting waste in 2024. Finally, the bill also
would require that any economic benefits derived from the
future retrieval of spent nuclear fuel from Yucca Mountain be
shared with the affected state, local, and tribal governments.
Estimated impact on the private sector: H.R. 3053 would
impose a private-sector mandate as defined in UMRA on owners of
mining claims by prohibiting mining on federal land withdrawn
from public land laws for the construction of a repository.
Based on information submitted in DOE's license application to
NRC and information from the Government Accountability Office,
CBO estimates that about 100 mining claims may be affected by
the mandate. The mandate would apply only to owners of valid
claims, as determined by the Secretary of the Interior, and the
cost of the mandate would be the fair market value of the
claim. Mining claims on federal land are determined to be valid
only after the discovery of a valuable mineral deposit. Based
on information about the value of mining claims, CBO estimates
that the value per claim affected by the mandate would not be
substantial. Consequently, CBO estimates that the cost of the
mandate would fall below the annual threshold established in
UMRA for private-sector mandates ($156 million in 2017,
adjusted annually for inflation). The bill would compensate
owners for claims determined to be valid.
Estimate prepared by: Federal costs: Megan Carroll; Impact
on state, local, and tribal governments: Jon Sperl; Impact on
the private sector: Amy Petz.
Estimate approved by: H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Statement of General Performance Goals and Objectives
Pursuant to clause 3(c)(4) of rule XIII, the general
performance goal or objective of this legislation is to amend
the Nuclear Waste Policy Act of 1982 to enable the Department
of Energy to manage, store, and permanently dispose of
commercial spent nuclear fuel and high-level radioactive waste.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII, no provision of
H.R. 3053 is known to be duplicative of another Federal
program, including any program that was included in a report to
Congress pursuant to section 21 of Public Law 111-139 or the
most recent Catalog of Federal Domestic Assistance.
Committee Cost Estimate
Pursuant to clause 3(d)(1) of rule XIII, the Committee
adopts as its own the cost estimate prepared by the Director of
the Congressional Budget Office pursuant to section 402 of the
Congressional Budget Act of 1974.
Earmark, Limited Tax Benefits, and Limited Tariff Benefits
Pursuant to clause 9(e), 9(f), and 9(g) of rule XXI, the
Committee finds that H.R. 3053 contains no earmarks, limited
tax benefits, or limited tariff benefits.
Disclosure of Directed Rule Makings
Pursuant to section 3(i) of H. Res. 5, the Committee finds
that H.R. 3053 contains no directed rule makings.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
The legislation includes the following provisions:
Section 1. Short title and table of contents
This section provides the short title, the ``Nuclear Waste
Policy Amendments Act of 2017'' and identifies the sections of
the bill as follows: Section 1, Short Title and Table of
Contents; Title I, Monitored Retrievable Storage; Title II,
Permanent Repository; Title III, DOE Contract Performance;
Title IV, Benefits to Host Community; Title V, Funding; and,
Title VI, Miscellaneous.
TITLE I. MONITORED RETRIEVABLE STORAGE
Sec. 101. Monitored retrievable storage
This section amends section 141(b) of the Nuclear Waste
Policy Act of 1982 (NWPA) to direct the Secretary of Energy
(Secretary) to complete a study of the need for and feasibility
of the construction of one or more monitored retrievable
storage facilities (MRS) and submit such report to Congress by
June 1, 2019. The section also requires the Secretary to
publish a request for information to help the Secretary
evaluate options to enter into MRS agreements with respect to
one or more MRS.
Section 101(b) makes conforming changes to allow for more
than one MRS and by striking section 141(d) through (h), and
adds definitions to section 2 of the NWPA for ``MRS agreement''
and ``Department-owned civilian waste.''
Sec. 102. Authorization and priority
This section amends section 142 of the NWPA to authorize
the Secretary to site, construct, and operate one or more MRS
and store, pursuant to a MRS agreement, Department-owned
civilian waste at a non-Federal MRS that is licensed by the
Nuclear Regulatory Commission (NRC or Commission). The section
also directs the Secretary to prioritize storage at a non-
Federal MRS unless the Secretary determines it is faster and
less expensive for the Department of Energy (DOE) to site,
construct, and operate an MRS. The Secretary must provide such
determination to Congress within 30 days.
Sec. 103. Conditions for MRS agreements
This section amends section 143 of the NWPA to prohibit the
Secretary from entering into an MRS agreement for an MRS unless
(1) the MRS holds a license pursuant to the Atomic Energy Act
of 1954 and has approval to store Department-owned civilian
waste at such facility from the governor of the state, any unit
of general local government with jurisdiction over the area,
and any affected Indian tribe; (2) the Commission has issued a
decision for a repository under section 114(d) of the NWPA,
with the exception of the first agreement; and (3) the MRS
agreement provides the quantity of high-level radioactive waste
(HLW) and spent nuclear fuel (SNF) will not exceed the limits
described in section 148(d)(3) and (4).
The new subsection 143(b) authorizes the Secretary to enter
into one MRS agreement prior to the Commission issuing a final
decision approving or disapproving the issuance of a
construction authorization. For fiscal years 2020 through 2022
there is authorized the greater of $50 million or an amount
equal to 10 percent of the amounts appropriated from the Waste
Fund in that fiscal year for the MRS agreement. For fiscal
years 2023 through 2025, there is authorized an amount equal to
10 percent of amounts appropriated from the Waste Fund. The
Secretary shall prioritize storage of Department-owned civilian
waste from facilities that have ceased commercial operation at
the first MRS facility. The Secretary is prohibited from
storing spent nuclear fuel at the facility unless the
Commission has issued a final decision or if the Secretary
finds the decision is imminent. If a decision is imminent, the
Secretary must notify Congress within seven days and provide a
monthly report to Congress on the status of the license.
Sec. 104. Survey
This section amends section 144 of the NWPA to allow the
Secretary to survey and evaluate sites for an MRS based on
listed criteria, including acceptability to state authorities,
affected units of local government, and affected Indian tribes.
The section would require the Secretary to issue a request for
proposals for a MRS agreement with a non-Federal MRS before
conducting any survey.
Sec. 105. Site selection
This section amends section 145 of the NWPA to allow for
more than one MRS site to be evaluated.
Sec. 106. Benefits agreement
This section amends section 147 of the NWPA to allow a non-
Federal entity subject to a MRS agreement to enter into a
benefits agreement with the Secretary under section 170.
Sec. 107. Licensing
This section amends section 148(c) of the NWPA to apply to
a DOE MRS and amends section 148(d) of the NWPA to modify the
requirement that the Commission issue a license for a
construction authorization for a repository prior to licensing
an MRS to require the Commission to issue a final decision
approving or disapproving a construction authorization prior to
MRS licensing.
TITLE II. PERMANENT REPOSITORY
Sec. 201. Land withdrawal, jurisdiction, and reservation
This section provides for the permanent withdrawal of lands
described in subsection (c) and provides the Secretary
jurisdiction over the withdrawal. The withdrawal is reserved by
the Secretary for development, preconstruction testing and
performance confirmation, licensing, construction, management
and operation, monitoring, closure, postclosure, and other
activities associated with the disposal of HLW and SNF under
the NWPA.
Section 201(b) revokes previous public land orders and
right-of-way within the withdrawal.
Section 201(c) describes the boundaries of the land subject
to the withdrawal and requires the publication in the Federal
Register and documentation of the copies of the described maps.
Section 201(d) describes the relationship of the withdrawal
to lands previously withdrawn for use by the Department of
Defense under subtitle A of title XXX of the Military Lands
Withdrawal Act of 1999.
Section 201(e) assigns certain management responsibilities
to the Secretary for lands in the withdrawal, including the
development of a management plan for the lands; prioritizing
Yucca Mountain Project activities; use by the Air Force under
agreed terms and conditions with the Secretary; and related
non-Yucca Mountain Project uses, such as grazing, hunting and
trapping, and mining. The subsection provides for limited
public access to continue the Nye County Early Warning Drilling
Program, utility corridors, and other uses the Secretary
considers consistent with the purposes of the withdrawal. The
subsection also authorizes the Secretary to close a portion of
the withdrawal or airspace above the withdrawal.
Section 201(f) provides that the United States and its
departments and agencies shall be held harmless and shall not
be liable for damages to persons or property as a result of
mining, mineral leasing, or geothermal leasing activities
conducted on the withdrawal.
Section 201(g) provides the Secretary authority to acquire
lands and interests within the withdrawal.
Section 201(h) removes Federal, state, Interstate, and
local requirements subject to section 6001(a) of the Solid
Waste Disposal Act for material transported to a repository for
disposal, or as, or after, such material is disposed of in a
repository.
Section 201(i) defines terms used in this section
consistent with the NWPA, in addition to defining the
``withdrawal,'' ``Secretary concerned,'' and ``Project.''
Section 201(j) makes this section, except subsections (c),
(e)(2)(A), (h), (i), and (j), effective on the date that the
Commission approves the issuance of a construction
authorization under section 114(d) of the NWPA for the Yucca
Mountain site.
Sec. 202. Application procedures and infrastructure activities
This section amends section 114(d) of the NWPA to require
NRC consideration of the construction authorization for the
repository 30 months after the date of enactment of the Nuclear
Waste Policy Amendments Act of 2017. It also removes certain
conditions on the quantity of metric tons of heavy metal for
Commission's approval to authorize construction submitted under
section 114(b). It also allows for amendments to an approved
construction authorization license to be considered using
expedited, informal procedures and directs the Commission to
decide on such amendments within one year, unless the
Commission notifies Congress that the deadline needs to be
extended. The subsection allows the Secretary to undertake
infrastructure activities at the Yucca Mountain site considered
necessary or appropriate to support the construction or
operation of a repository or transportation to such site.
Infrastructure activities include safety upgrades; site
preparation; the construction of a rail line to connect the
Yucca Mountain site with the national rail network; and
construction, upgrade, acquisition or operation of electrical
grids or facilities, other utilities, communication facilities,
access roads, and nonnuclear support facilities.
Section 202(b) amends section 114(f)(6) to add certain
actions that are not required for an environmental analysis,
prohibits the Commission from disapproving of the construction
authorization, license to receive and possess or any other
action, on the grounds that an infrastructure activity was
undertaken. The section increases the statutory cap on the
quantity of spent nuclear fuel at the repository from 70,000
metric tons to 110,000 metric tons. The section also provides
that actions undertaken outside the geologic repository
operations area do not require a license from the Commission.
Sec. 203. Pending repository license application
This section provides that nothing in this Act or
amendments made by this Act shall be construed to require the
Secretary to amend or otherwise modify an application for a
construction authorization pending as of the date of enactment
of this Act.
Sec. 204. Limitation on planning, development, or construction of
defense waste repository
This section prohibits the Secretary from taking any action
relating to planning, development, or construction of a defense
waste repository until the Commission issues a final decision
on an application for a construction authorization for a
repository under section 114(d)(1) of the NWPA. The section
also defines the term ``defense waste repository.''
Sec. 205. Sense of Congress regarding transportation routes
This section expresses the Sense of Congress that the
Secretary should consider transportation routes to the
repository site to avoid Las Vegas, Nevada.
TITLE III. DOE CONTRACT PERFORMANCE
Sec. 301. Title to material
This section amends section 123 of the NWPA to allow the
Secretary to accept title to HLW or SNF for a repository or an
MRS. The section also provides the Secretary the authority to
enter into new contracts or negotiate modifications to existing
contracts for acceptance of title, subsequent transportation,
and storage of HLW or SNF, including the expedited titling,
transportation, and storage of fuel to an MRS from nuclear
facilities that have ceased commercial operation.
TITLE IV. BENEFITS TO HOST COMMUNITY
Sec. 401. Consent
This section amends section 170 of the NWPA by clarifying
the number of benefits agreements that may be available and by
adding a new subsection (g) expressing that if the State of
Nevada enters into a benefits agreement under this section,
such agreement shall not be considered an expression of consent
to siting the repository.
Sec. 402. Content of agreements
This section amends the table in section 171 of the NWPA
titled ``Benefits Schedule.''
Section 402(b) amends section 171(a) of the NWPA to
prohibit payments from a benefits agreement to be used to
influence legislative action or any matter pending before
Congress or a state legislature, for litigation purposes, or to
support multistate efforts or other activities inconsistent
with the siting, construction, or operation of the MRS or
repository concerned.
Section 402(c) amends section 171(b) of the NWPA to remove
the State of Nevada's agreement to waive its rights to
disapprove of the recommendation of the Yucca Mountain site as
a condition to enter into a benefits agreement.
Section 402(d) amends section 171(c) of the NWPA to provide
that payments under a benefits agreement to the State of Nevada
shall be made from the Waste Fund.
Sec. 403. Covered units of local government
This section inserts section 172A in the NWPA to allow
covered units of local government, not earlier than one year
after the date of enactment, to enter into a benefits agreement
with the Secretary. Such benefits agreements are to mitigate
impacts of locating a repository at the Yucca Mountain site, as
described in section 175(b). Payments to covered units of local
governments under a benefits agreement are provided by the
Waste Fund and cannot be used to influence legislative action
or any matter pending before Congress or a state legislature,
for litigation purposes, or to support multistate efforts or
other activities inconsistent with the siting, construction, or
operation of the repository. Entering into a benefits agreement
under this section by a covered unit of local government shall
not be considered to be an expression of consent to the siting
of a repository in the State of Nevada. This section also
defines covered unit of local government to mean any affected
unit of local government with respect to a repository or any
unit of general local government in the State of Nevada.
Section 403(b) makes conforming amendments to section
170(a)(4) relating to benefits agreements.
Sec. 404. Termination
This section amends section 173 of the NWPA to modify the
conditions for the termination of a benefits agreement from a
Secretarial determination to the Commission's disapproval of a
license to authorize construction for a repository under
section 114(d).
Sec. 405. Other benefits
This section amends section 174 of the NWPA to require the
Secretary to prioritize funding for higher education from the
Waste Fund to institutions located in the State of Nevada.
Sec. 406. Disposal of spent nuclear fuel
This section amends section 122 of the NWPA to require
economic benefits derived from the retrieval of SNF to be
shared with any state, affected units of local government, and
affected Indian tribes, where the repository is located.
Sec. 407. Updated report
This section amends section 175(a) of the NWPA to require
the Secretary to update a report identifying potential actions
to mitigate impacts associated with the activities authorized
under Subtitle A.
TITLE V. FUNDING
Sec. 501. Assessment and collection of fees
This section amends section 302(a)(4) of the NWPA to direct
the Secretary to establish procedures for the assessment of
fees to provide sufficient revenues to offset the costs
required by the Waste Fund.
The section also directs the Secretary to establish
procedures to collect fees. The Secretary may not collect a fee
until the Commission issues a final decision on the
construction authorization for a repository under section
114(d) and the fees collected cannot exceed 90 percent of the
amounts appropriated from the Waste Fund. Assessed fees that
are not collected pursuant to the requirements of this section
shall be collected when the Secretary determines necessary for
the purposes of the Waste Fund, subject to appropriations.
Section 501(b) provides the Secretary the authority to seek
modification of a contract under section 302(a) of the NWPA to
ensure the contract complies with this section.
Section 502(c) makes technical and conforming amendments to
section 302(a) of the NWPA.
Sec. 502. Use of Waste Fund
This section amends section 302(d) of the NWPA to define
allowable uses of the Waste Fund.
Section 502(b) makes conforming amendments in section
117(d) and 141(f) with respect to allowable uses of the Waste
Fund.
Sec. 503. Annual multi-year budget proposal
This section amends section 302(e) of the NWPA to require
DOE to submit a multi-year budget proposal annually.
Sec. 504. Availability of certain amounts
This section amends section 302 of the NWPA by adding a new
subsection (f) that makes certain amounts of funding from the
Waste Fund available to the Secretary, without further
appropriations. One percent of Waste Fund amounts will be
available for each of the 25 years after HLW or SNF is received
at the Yucca Mountain site for costs associated with
construction and operation of a repository or facilities at the
Yucca Mountain site; one percent of Waste Fund amounts will be
available for payments to the State of Nevada when Yucca
Mountain receives first fuel; one tenth of one percent of Waste
Fund amounts will be available for annual payments under a
benefits agreement, 20 percent of Waste Fund amounts during the
decommissioning period for waste package and drip shield
fabrication activities, and fees not yet collected pursuant to
subsection (a)(3) will be available for costs associated with
construction and operation of a repository or facilities at the
Yucca Mountain site.
TITLE VI. MISCELLANEOUS
Sec. 601. Certain standards and criteria
This section requires the Environmental Protection Agency
to determine if standards promulgated under section 121(a) of
the NWPA should be updated and to submit to Congress a report
on such determination. If the Administrator determines that the
standards promulgated under section 121(a) of the NWPA should
be updated, the Administrator shall promulgate updated
standards within two years of making such determination. This
section also requires the NRC to promulgate updated technical
requirements under section 121(b) of the NWPA to be consistent
with updated generally applicable standards.
Section 601(b) states that nothing in this section shall
affect the standards, technical requirements, and criteria for
the Yucca Mountain site under section 801 of the Energy Policy
Act of 1992.
Sec. 602 Application
This section makes a conforming amendment by striking
section 135(h) of the NWPA, which prohibits DOE from using a
private facility for management of spent nuclear fuel.
Sec. 603. Transportation safety assistance
This section amends section 180(c) of the NWPA to direct
the Secretary to make in-kind, financial, technical, and other
appropriate assistance for safety activities related to the
transportation to state and regional entities currently
receiving technical assistance for training.
Sec. 604. Office of Civilian Radioactive Waste Management
This section amends section 304(b) of the NWPA to provide
for not more than two five-year terms for the Director of the
Office of Civilian Radioactive Waste Management and requires
the Director to be appointed from persons who have extensive
expertise and experience in organizational and project
management. The section also allows the Director to serve up to
one year following the expiration of the term or until a new
Director is confirmed.
Section 604(b) amends section 203(a) of the Department of
Energy Organization Act by striking paragraph (8) and
transferring all functions described in that paragraph to the
Office of Civilian Radioactive Waste Management.
Section 604(c) makes a conforming amendment to section
2(17) of the NWPA.
Sec. 605. West Lake Landfill
This section requires the Administrator of the
Environmental Protection Agency to submit to Congress a report
containing a final remedy to be implemented at the West Lake
Landfill not later than one year after the date of enactment of
the Act.
Sec. 606. Subseabed or ocean water disposal
This section amends section 5 of the NWPA by prohibiting
the subseabed or ocean water disposal of SNF or HLW and
preventing the funding of any activity relating to such
disposal.
Sec. 607. Sense of Congress regarding storage of nuclear waste near the
Great Lakes
This section is a sense of Congress stating that the
Governments of the United States and Canada should not allow
permanent or long-term storage of SNF or other radioactive
waste near the Great Lakes.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
NUCLEAR WASTE POLICY ACT OF 1982
short title and table of contents
Section 1. This Act may be cited as the ``Nuclear Waste
Policy Act of 1982''.
TABLE OF CONTENTS
* * * * * * *
TITLE I--DISPOSAL AND STORAGE OF HIGH-LEVEL RADIOACTIVE WASTE, SPENT
NUCLEAR FUEL, AND LOW-LEVEL RADIOACTIVE WASTE
* * * * * * *
subtitle subtitle Subtitle C--Monitored Retrievable Storagesubtitle
* * * * * * *
[Sec. 143. Monitored Retrievable Storage Commission.]
Sec. 143. Conditions for MRS agreements.
* * * * * * *
subtitle subtitle Subtitle F--Benefitssubtitle
* * * * * * *
Sec. 172A. Covered units of local government.
Subtitle G--Other Benefits
* * * * * * *
Sec. 176. Priority funding for certain institutions of higher education.
* * * * * * *
TITLE II--RESEARCH, DEVELOPMENT, AND DEMONSTRATION REGARDING DISPOSAL OF
HIGH-LEVEL RADIOACTIVE WASTE AND SPENT NUCLEAR FUEL
* * * * * * *
[Sec. 224. Subseabed disposal.]
* * * * * * *
definitions
Sec. 2. For purposes of this Act:
(1) The term ``Administrator'' means the
Administrator of the Environmental Protection Agency.
(2) The term ``affected Indian tribe'' means any
Indian tribe--
(A) within whose reservation boundaries a
monitored retrievable storage facility, test
and evaluation facility, or a repository for
high-level radioactive waste or spent fuel is
proposed to be located;
(B) whose federally defined possessory or
usage rights to other lands outside of the
reservation's boundaries arising out of
congressionally ratified treaties may be
substantially and adversely affected by the
locating of such a facility: Provided, That the
Secretary of the Interior finds, upon the
petition of the appropriate governmental
officials of the tribe, that such effects are
both substantial and adverse to the tribe;
(3) The term ``atomic energy defense activity'' means
any activity of the Secretary performed in whole or in
part in carrying out any of the following functions:
(A) naval reactors development;
(B) weapons activities including defense
inertial confinement fusion;
(C) verification and control technology;
(D) defense nuclear materials production;
(E) defense nuclear waste and materials by-
products management;
(F) defense nuclear materials security and
safeguards and security investigations; and
(G) defense research and development.
(4) The term ``candidate site'' means an area, within
a geologic and hydrologic system, that is recommended
by the Secretary under section 112 for site
characterization, approved by the President under
section 112 for site characterization, or undergoing
site characterization under section 113.
(5) The term ``civilian nuclear activity'' means any
atomic energy activity other than an atomic energy
defense activity.
(6) The term ``civilian nuclear power reactor'' means
a civilian nuclear powerplant required to be licensed
under section 103 or 104 b. of the Atomic Energy Act of
1954 (42 U.S.C. 2133, 2134(b)).
(7) The term ``Commission'' means the Nuclear
Regulatory Commission.
(8) The term ``Department'' means the Department of
Energy.
(9) The term ``disposal'' means the emplacement in a
repository of high-level radioactive waste, spent
nuclear fuel, or other highly radioactive material with
no foreseeable intent of recovery, whether or not such
emplacement permits the recovery of such waste.
(10) The terms ``disposal package'' and ``package''
mean the primary container that holds, and is in
contact with, solidified high-level radioactive waste,
spent nuclear fuel, or other radioactive materials, and
any overpacks that are emplaced at a repository.
(11) The term ``engineered barriers'' means manmade
components of a disposal system designed to prevent the
release of radionuclides into the geologic medium
involved. Such term includes the high-level radioactive
waste form, high-level radioactive waste canisters, and
other materials placed over and around such canisters.
(12) The term ``high-level radioactive waste''
means--
(A) the highly radioactive material resulting
from the reprocessing of spent nuclear fuel,
including liquid waste produced directly in
reprocessing and any solid material derived
from such liquid waste that contains fission
products in sufficient concentrations; and
(B) other highly radioactive material that
the Commission, consistent with existing law,
determines by rule requires permanent
isolation.
(13) The term ``Federal agency'' means any Executive
agency, as defined in section 105 of title 5, United
States Code.
(14) The term ``Governor'' means the chief executive
officer of a State.
(15) The term ``Indian tribe'' means any Indian
tribe, band, nation, or other organized group or
community of Indians recognized as eligible for the
services provided to Indians by the Secretary of the
Interior because of their status as Indians, including
any Alaska Native village, as defined in section 3(c)
of the Alaska Native Claims Settlement Act (43 U.S.C.
1602(c)).
(16) The term ``low-level radioactive waste'' means
radioactive material that--
(A) is not high-level radioactive waste,
spent nuclear fuel, transuranic waste, or by-
product material as defined in section 11e(2)
of the Atomic Energy Act of 1954 (42 U.S.C.
2014(e)(2)); and
(B) the Commission, consistent with existing
law, classifies as low-level radioactive waste.
(17) The term ``Office'' means the Office of Civilian
Radioactive Waste Management established in [section
305] section 304.
(18) The term ``repository'' means any system
licensed by the Commission that is intended to be used
for, or may be used for, the permanent deep geologic
disposal of high-level radioactive waste and spent
nuclear fuel, whether or not such system is designed to
permit the recovery, for a limited period during
initial operation, of any materials placed in such
system. Such term includes both surface and subsurface
areas at which high-level radioactive waste and spent
nuclear fuel handling activities are conducted.
(19) The term ``reservation'' means--
(A) any Indian reservation or dependent
Indian community referred to in clause (a) or
(b) of section 1151 of title 18, United States
Code; or
(B) any land selected by an Alaska Native
village or regional corporation under the
provisions of the Alaska Native Claims
Settlement Act (43 U.S.C. 1601 et seq.).
(20) The term ``Secretary'' means the Secretary of
Energy.
(21) The term ``site characterization'' means--
(A) siting research activities with respect
to a test and evaluation facility at a
candidate site; and
(B) activities, whether in the laboratory or
in the field, undertaken to establish the
geologic condition and the ranges of the
parameters of a candidate site relevant to the
location of a repository, including borings,
surface excavations, excavations of exploratory
shafts, limited subsurface lateral excavations
and borings, and in situ testing needed to
evaluate the suitability of a candidate site
for the location of a repository, but not
including preliminary borings and geophysical
testing needed to assess whether site
characterization should be undertaken.
(22) The term ``siting research'' means activities,
including borings, surface excavations, shaft
excavations, subsurface lateral excavations and
borings, and in situ testing, to determine the
suitability of a site for a test and evaluation
facility.
(23) The term ``spent nuclear fuel'' means fuel that
has been withdrawn from a nuclear reactor following
irradiation, the constituent elements of which have not
been separated by reprocessing.
(24) The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of
Puerto Rico, the Virgin Islands, Guam, American Samoa,
the Northern Mariana Islands, the Trust Territory of
the Pacific Islands, and any other territory or
possession of the United States.
(25) The term ``storage'' means retention of high-
level radioactive waste, spent nuclear fuel, or
transuranic waste with the intent to recover such waste
or fuel for subsequent use, processing, or disposal.
(26) The term ``Storage Fund'' means the Interim
Storage Fund established in section 137(c).
(27) The term ``test and evaluation facility'' means
an at-depth, prototypic, underground cavity with
subsurface lateral excavations extending from a central
shaft that is used for research and development
purposes, including the development of data and
experience for the safe handling and disposal of
solidified high-level radioactive waste, transuranic
waste, or spent nuclear fuel.
(28) The term ``unit of general local government''
means any borough, city, county, parish, town,
township, village, or other general purpose political
subdivision of a State.
(29) The term ``Waste Fund'' means the Nuclear Waste
Fund established in section 302(c).
(30) The term ``Yucca Mountain site'' means the
candidate site in the State of Nevada recommended by
the Secretary to the President under section
112(b)(1)(B) on May 27, 1986.
(31) The term ``affected unit of local government''
means the unit of local government with jurisdiction
over the site of a repository or a monitored
retrievable storage facility. Such term may, at the
discretion of the Secretary, include units of local
government that are contiguous with such unit.
(32) The term ``Negotiator'' means the Nuclear Waste
Negotiator.
(33) As used in title IV, the term ``Office'' means
the Office of the Nuclear Waste Negotiator established
under title IV of this Act.
(34) The term ``monitored retrievable storage
facility'' means [the storage facility] a storage
facility described in section 141(b)(1).
(35) The term ``MRS agreement'' means a cooperative
agreement, contract, or other mechanism that the
Secretary considers appropriate to support the storage
of Department-owned civilian waste in one or more
monitored retrievable storage facilities as authorized
under section 142(b)(2).
(36) The term ``Department-owned civilian waste''
means high-level radioactive waste, or spent nuclear
fuel, resulting from civilian nuclear activities, to
which the Department holds title.
* * * * * * *
ocean disposal
Sec. 5. [Nothing in this Act] (a) Effect on Marine
Protection, Research, and Sanctuaries Act of 1972._Nothing in
this Act shall be deemed to affect the Marine Protection,
Research, and Sanctuaries Act of 1972 (33 U.S.C. 1401 et seq.).
(b) Subseabed or Ocean Water Disposal.--Notwithstanding any
other provision of law--
(1) the subseabed or ocean water disposal of spent
nuclear fuel or high-level radioactive waste is
prohibited; and
(2) no funds shall be obligated for any activity
relating to the subseabed or ocean water disposal of
spent nuclear fuel or high-level radioactive waste.
* * * * * * *
TITLE I--DISPOSAL AND STORAGE OF HIGH-LEVEL RADIOACTIVE WASTE, SPENT
NUCLEAR FUEL, AND LOW-LEVEL RADIOACTIVE WASTE
* * * * * * *
Subtitle A--Repositories for Disposal of High-Level Radioactive Waste
and Spent Nuclear Fuel
* * * * * * *
site approval and construction authorization
Sec. 114. (a) Hearings and Presidential Recommendation.--(1)
The Secretary shall hold public hearings in the vicinity of the
Yucca Mountain site, for the purposes of informing the
residents of the area of such consideration and receiving their
comments regarding the possible recommendation of such site.
If, upon completion of such hearings and completion of site
characterization activities at the Yucca Mountain site, under
section 113, the Secretary decides to recommend approval of
such site to the President, the Secretary shall notify the
Governor and legislature of the State of Nevada, of such
decision. No sooner than the expiration of the 30-day period
following such notification, the Secretary shall submit to the
President a recommendation that the President approve such site
for the development of a repository. Any such recommendation by
the Secretary shall be based on the record of information
developed by the Secretary under section 113 and this section,
including the information described in subparagraph (A) through
subparagraph (G). Together with any recommendation of a site
under this paragraph, the Secretary shall make available to the
public, and submit to the President, a comprehensive statement
of the basis of such recommendation, including the following:
(A) a description of the proposed repository,
including preliminary engineering specifications for
the facility;
(B) a description of the waste form or packaging
proposed for use at such repository, and an explanation
of the relationship between such waste form or
packaging and the geologic medium of such site;
(C) a discussion of data, obtained in site
characterization activities, relating to the safety of
such site;
(D) a final environmental impact statement prepared
for the Yucca Mountain site pursuant to subsection (f)
and the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.), together with comments made
concerning such environmental impact statement by the
Secretary of the Interior, the Council on Environmental
Quality, the Administrator, and the Commission, except
that the Secretary shall not be required in any such
environmental impact statement to consider the need for
a repository, the alternatives to geological disposal,
or alternative sites to the Yucca Mountain site;
(E) preliminary comments of the Commission concerning
the extent to which the at-depth site characterization
analysis and the waste form proposal for such site seem
to be sufficient for inclusion in any application to be
submitted by the Secretary for licensing of such site
as a repository;
(F) the views and comments of the Governor and
legislature of any State, or the governing body of any
affected Indian tribe, as determined by the Secretary,
together with the response of the Secretary to such
views;
(G) such other information as the Secretary considers
appropriate; and
(H) any impact report submitted under section
116(c)(2)(B) by the State of Nevada.
(2)(A) If, after recommendation by the Secretary, the
President considers the Yucca Mountain site qualified for
application for a construction authorization for a repository,
the President shall submit a recommendation of such site to
Congress.
(B) The President shall submit with such recommendation a
copy of the statement of such site prepared by the Secretary
under paragraph (1).
(3)(A) The President may not recommend the approval of the
Yucca Mountain site unless the Secretary has recommended to the
President under paragraph (1) approval of such site and has
submitted to the President a statement for such site as
required under such paragraph.
(B) No recommendation of a site by the President under this
subsection shall require the preparation of an environmental
impact statement under section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)), or to
require any environmental review under subparagraph (E) or (F)
of section 102(2) of such Act.
(b) Submission of Application.--If the President recommends
to the Congress the Yucca Mountain site under subsection (a)
and the site designation is permitted to take effect under
section 115, the Secretary shall submit to the Commission an
application for a construction authorization for a repository
at such site not later than 90 days after the date on which the
recommendation of the site designation is effective under such
section and shall provide to the Governor and legislature of
the State of Nevada a copy of such application.
(c) Status Report on Application.--Not later than 1 year
after the date on which an application for a construction
authorization is submitted under subsection (b), and annually
thereafter until [the date on which such authorization is
granted] the date on which the Commission issues a final
decision approving or disapproving such application, the
Commission shall submit a report to the Congress describing the
proceedings undertaken through the date of such report with
regard to such application, including a description of--
(1) any major unresolved safety issues, and the
explanation of the Secretary with respect to design and
operation plans for resolving such issues;
(2) any matters of contention regarding such
application; and
(3) any Commission actions regarding the granting or
denial of such authorization.
(d) Commission Action.--[The Commission shall consider]
(1) Applications for construction authorization._The
Commission shall consider an application for a
construction authorization for all or part of a
repository in accordance with the laws applicable to
such applications, except that the Commission shall
issue a final decision approving or disapproving the
issuance of a construction authorization not later than
[the expiration of 3 years after the date of the
submission of such application] 30 months after the
date of enactment of the Nuclear Waste Policy
Amendments Act of 2017, except that the Commission may
extend such deadline by not more than 12 months if, not
less than 30 days before such deadline, the Commission
complies with the reporting requirements established in
subsection (e)(2). The Commission decision approving
the first such application shall prohibit the
emplacement in the first repository of a quantity of
spent fuel containing in excess of [70,000 metric tons]
110,000 metric tons of heavy metal or a quantity of
solidified high-level radioactive waste resulting from
the reprocessing of such a quantity of spent fuel until
such time as a second repository is in operation. In
the event that a monitored retrievable storage
facility, approved pursuant to subtitle C of this Act,
shall be located, or is planned to be located, within
50 miles of the first repository, then the Commission
decision approving the first such application shall
prohibit the emplacement of a quantity of spent fuel
containing in excess of [70,000 metric tons] 110,000
metric tons of heavy metal or a quantity of solidified
high-level radioactive waste resulting from the
reprocessing of spent fuel in both the repository and
monitored retrievable storage facility until such time
as a second repository is in operation.
(2) Applications to amend.--If the Commission issues
a construction authorization for a repository pursuant
to paragraph (1) and the Secretary submits an
application to amend such authorization, the Commission
shall consider the application to amend using
expedited, informal procedures, including discovery
procedures that minimize the burden on the parties to
produce documents. The Commission shall issue a final
decision on such application to amend within 1 year
after the date of submission of such application,
except that the Commission may extend such deadline by
not more than 6 months if, not less than 30 days before
such deadline, the Commission complies with the
reporting requirements established in subsection
(e)(2).
(3) Infrastructure activities.--
(A) In general.--At any time before or after
the Commission issues a final decision
approving or disapproving the issuance of a
construction authorization for a repository
pursuant to paragraph (1), the Secretary may
undertake infrastructure activities that the
Secretary considers necessary or appropriate to
support construction or operation of a
repository at the Yucca Mountain site or
transportation to such site of spent nuclear
fuel and high-level radioactive waste.
Infrastructure activities include safety
upgrades, site preparation, the construction of
a rail line to connect the Yucca Mountain site
with the national rail network (including any
facilities to facilitate rail operations), and
construction, upgrade, acquisition, or
operation of electrical grids or facilities,
other utilities, communication facilities,
access roads, and nonnuclear support
facilities.
(B) Environmental analysis.--If the Secretary
determines that an environmental analysis is
required under the National Environmental
Policy Act of 1969 with respect to an
infrastructure activity undertaken under this
paragraph, the Secretary need not consider
alternative actions or a no-action alternative.
To the extent any other Federal agency must
consider the potential environmental impact of
such an infrastructure activity, the agency
shall adopt, to the extent practicable, any
environmental analysis prepared by the
Secretary under this subparagraph without
further action. Such adoption satisfies the
responsibilities of the adopting agency under
the National Environmental Policy Act of 1969,
and no further action is required by the
agency.
(C) No grounds for disapproval.--The
Commission may not disapprove, on the grounds
that the Secretary undertook an infrastructure
activity under this paragraph--
(i) the issuance of a construction
authorization for a repository pursuant
to paragraph (1);
(ii) a license to receive and possess
spent nuclear fuel and high-level
radioactive waste; or
(iii) any other action concerning the
repository.
(e) Project Decision Schedule.--(1) The Secretary shall
prepare and update, as appropriate, in cooperation with all
affected Federal agencies, a project decision schedule that
portrays the optimum way to attain the operation of the
repository, within the time periods specified in this subtitle.
Such schedule shall include a description of objectives and a
sequence of deadlines for all Federal agencies required to take
action, including an identification of the activities in which
a delay in the start, or completion, of such activities will
cause a delay in beginning repository operation.
(2) Any Federal agency that determines that it cannot comply
with any deadline in the project decision schedule, or fails to
so comply, shall submit to the Secretary and to the Congress a
written report explaining the reason for its failure or
expected failure to meet such deadline, the reason why such
agency could not reach an agreement with the Secretary, the
estimated time for completion of the activity or activities
involved, the associated effect on its other deadlines in the
project decision schedule, and any recommendations it may have
or actions it intends to take regarding any improvements in its
operation or organization, or changes to its statutory
directives or authority, so that it will be able to mitigate
the delay involved. The Secretary, within 30 days after
receiving any such report, shall file with the Congress his
response to such report, including the reasons why the
Secretary could not amend the project decision schedule to
accommodate the Federal agency involved.
(f) Environmental Impact Statement.--(1) Any recommendation
made by the Secretary under this section shall be considered a
major Federal action significantly affecting the quality of the
human environment for purposes of the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.). A final
environmental impact statement prepared by the Secretary under
such Act shall accompany any recommendation to the President to
approve a site for a repository.
(2) With respect to the requirements imposed by the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.),
compliance with the procedures and requirements of this Act
shall be deemed adequate consideration of the need for a
repository, the time of the initial availability of a
repository, and all alternatives to the isolation of high-level
radioactive waste and spent nuclear fuel in a repository.
(3) For purposes of complying with the requirements of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.) and this section, the Secretary need not consider
alternate sites to the Yucca Mountain site for the repository
to be developed under this subtitle.
(4) Any environmental impact statement prepared in connection
with a repository proposed to be constructed by the Secretary
under this subtitle shall, to the extent practicable, be
adopted by the Commission in connection with the issuance by
the Commission of a construction authorization and license for
such repository. To the extent such statement is adopted by the
Commission, such adoption shall be deemed to also satisfy the
responsibilities of the Commission under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
no further consideration shall be required, except that nothing
in this subsection shall affect any independent
responsibilities of the Commission to protect the public health
and safety under the Atomic Energy Act of 1954 (42 U.S.C. 2011
et seq.).
(5) Nothing in this Act shall be construed to amend or
otherwise detract from the licensing requirements of the
Nuclear Regulatory Commission established in title II of the
Energy Reorganization Act of 1974 (42 U.S.C. 5841 et seq.).
(6) In any such statement prepared with respect to the
repository to be constructed under this subtitle, the Nuclear
Regulatory Commission need not consider the need for a
repository, the time of initial availability of a repository,
alternate sites to the Yucca Mountain site, [or nongeologic
alternatives to such site] nongeologic alternatives to such
site, or an action connected or otherwise related to the
repository to the extent the action is undertaken outside the
geologic repository operations area and does not require a
license from the Commission.
* * * * * * *
consultation with states and affected indian tribes
Sec. 117. (a) Provision of Information.--(1) The Secretary,
the Commission, and other agencies involved in the
construction, operation, or regulation of any aspect of a
repository in a State shall provide to the Governor and
legislature of such State, and to the governing body of any
affected Indian tribe, timely and complete information
regarding determinations or plans made with respect to the site
characterization siting, development, design, licensing,
construction, operation, regulation, or decommissioning of such
repository.
(2) Upon written request for such information by the Governor
or legislature of such State, or by the governing body of any
affected Indian tribe, as the case may be, the Secretary shall
provide a written response to such request within 30 days of
the receipt of such request. Such response shall provide the
information requested or, in the alternative, the reasons why
the information cannot be so provided. If the Secretary fails
to so respond within such 30 days, the Governor or legislature
of such State, or the governing body of any affected Indian
tribe, as the case may be, may transmit a formal written
objection to such failure to respond to the President. If the
President or Secretary fails to respond to such written request
within 30 days of the receipt by the President of such formal
written objection, the Secretary shall immediately suspend all
activities in such State authorized by this subtitle, and shall
not renew such activities until the Governor or legislature of
such State, or the governing body of any affected Indian tribe,
as the case may be, has received the written response to such
written request required by this subsection.
(b) Consultation and Cooperation.--In performing any study of
an area within a State for the purpose of determining the
suitability of such area for a repository pursuant to section
112(c), and in subsequently developing and loading any
repository within such State, the Secretary shall consult and
cooperate with the Governor and legislature of such State and
the governing body of any affected Indian tribe in an effort to
resolve the concerns of such State and any affected Indian
tribe regarding the public health and safety, environmental,
and economic impacts of any such repository. In carrying out
his duties under this subtitle, the Secretary shall take such
concerns into account to the maximum extent feasible and as
specified in written agreements entered into under subsection
(c).
(c) Written Agreement.--Not later than 60 days after (1) the
approval of a site for site characterization for such a
repository under section 112(c), or (2) the written request of
the State or Indian tribe in any affected State notified under
section 116(a) to the Secretary, whichever, first occurs, the
Secretary shall seek to enter into a binding written agreement,
and shall begin negotiations, with such State and, where
appropriate, to enter into a separate binding agreement with
the governing body of any affected Indian tribe, setting forth
(but not limited to) the procedures under which the
requirements of subsections (a) and (b), and the provisions of
such written agreement, shall be carried out. Any such written
agreement shall not affect the authority of the Commission
under existing law. Each such written agreement shall, to the
maximum extent feasible, be completed not later than 6 months
after such notification. Such written agreement shall specify
procedures--
(1) by which such State or governing body of an
affected Indian tribe, as the case may be, may study,
determine, comment on, and make recommendations with
regard to the possible public health and safety,
environmental, social, and economic impacts of any such
repository;
(2) by which the Secretary shall consider and respond
to comments and recommendations made by such State or
governing body of an affected Indian tribe, including
the period in which the Secretary shall so respond;
(3) by which the Secretary and such State or
governing body of an affected Indian tribe may review
or modify the agreement periodically;
(4) by which such State or governing body of an
affected Indian tribe is to submit an impact report and
request for impact assistance under section 116(c) or
section 118(b), as the case may be;
(5) by which the Secretary shall assist such State,
and the units of general local government in the
vicinity of the repository site, in resolving the
offsite concerns of such State and units of general
local government, including, but not limited to,
questions of State liability arising from accidents,
necessary road upgrading and access to the site,
ongoing emergency preparedness and emergency response,
monitoring of transportation of high-level radioactive
waste and spent nuclear fuel through such State,
conduct of baseline health studies of inhabitants in
neighboring communities near the repository site and
reasonable periodic monitoring thereafter, and
monitoring of the repository site upon any
decommissioning and decontamination;
(6) by which the Secretary shall consult and
cooperate with such State on a regular, ongoing basis
and provide for an orderly process and timely schedule
for State review and evaluation, including
identification in the agreement of key events,
milestones, and decision points in the activities of
the Secretary at the potential repository site;
(7) by which the Secretary shall notify such State
prior to the transportation of any high-level
radioactive waste and spent nuclear fuel into such
State for disposal at the repository site;
(8) by which such State may conduct reasonable
independent monitoring and testing of activities on the
repository site, except that such monitoring and
testing shall not unreasonably interfere with or delay
onsite activities;
(9) for sharing, in accordance with applicable law,
of all technical and licensing information, the
utilization of available expertise, the facilitating of
permit procedures, joint project review, and the
formulation of joint surveillance and monitoring
arrangements to carry out applicable Federal and State
laws;
(10) for public notification of the procedures
specified under the preceding paragraphs; and
(11) for resolving objections of a State and affected
Indian tribes at any stage of the planning, siting,
development, construction, operation, or closure of
such a facility within such State through negotiation,
arbitration, or other appropriate mechanisms.
(d) On-Site Representative.--The Secretary shall offer to any
State, Indian tribe or unit of local government within whose
jurisdiction a site for a repository or monitored retrievable
storage facility is located under this title an opportunity to
designate a representative to conduct on-site oversight
activities at such site. Reasonable expenses of such
representatives designated with respect to a repository shall
be paid out of the Waste Fund.
* * * * * * *
disposal of spent nuclear fuel
Sec. 122. Notwithstanding any other provision of this
subtitle, any repository constructed on a site approved under
this subtitle shall be designed and constructed to permit the
retrieval of any spent nuclear fuel placed in such repository,
during an appropriate period of operation of the facility, for
any reason pertaining to the public health and safety, or the
environment, or for the purpose of permitting the recovery of
the economically valuable contents of such spent fuel. The
Secretary shall specify the appropriate period of
retrievability with respect to any repository at the time of
design of such repository, and such aspect of such repository
shall be subject to approval or disapproval by the Commission
as part of the construction authorization process under
subsections (b) through (d) of section 114. Any economic
benefits derived from the retrieval of spent nuclear fuel
pursuant to this section shall be shared with the State in
which the repository is located, affected units of local
government, and affected Indian tribes.
title to material
Sec. 123. [Delivery] (a) In General._Delivery , and
acceptance by the Secretary, of any high-level radioactive
waste or spent nuclear fuel for a [repository constructed under
this subtitle] repository or monitored retrievable storage
facility shall constitute a transfer to the Secretary of title
to such waste or spent fuel.
(b) Contract Modification.--The Secretary may enter into new
contracts or negotiate modifications to existing contracts,
with any person who generates or holds title to high-level
radioactive waste or spent nuclear fuel of domestic origin, for
acceptance of title, subsequent transportation, and storage of
such high-level radioactive waste or spent nuclear fuel
(including to expedite such acceptance of title,
transportation, and storage of such waste or fuel from
facilities that have ceased commercial operation) at a
monitored retrievable storage facility authorized under
subtitle C.
* * * * * * *
Subtitle B--Interim Storage Program
* * * * * * *
storage of spent nuclear fuel
Sec. 135. (a) Storage Capacity.--(1) Subject to section 8,
the Secretary shall provide, in accordance with paragraph (5),
not more than 1,900 metric tons of capacity for the storage of
spent nuclear fuel from civilian nuclear power reactors. Such
storage capacity shall be provided through any one or more of
the following methods, used in any combination determined by
the Secretary to be appropriate:
(A) use of available capacity at one or more
facilities owned by the Federal Government on the date
of the enactment of this Act, including the
modification and expansion of any such facilities, if
the Commission determines that such use will adequately
protect the public health and safety, except that such
use shall not--
(i) render such facilities subject to
licensing under the Atomic Energy Act of 1954
(42 U.S.C. 2011 et seq.) or the Energy
Reorganization Act of 1974 (42 U.S.C. 5801 et
seq.); or
(ii) except as provided in subsection (c)
require the preparation of an environmental
impact statement under section 102(2)(C) of the
National Environmental Policy Act of 1969 (42
U.S.C. 4332(2)(C)), such facility is already
being used, or has previously been used, for
such storage or for any similar purpose.
(B) acquisition of any modular or mobile spent
nuclear fuel storage equipment, including spent nuclear
fuel storage casks, and provision of such equipment, to
any person generating or holding title to spent nuclear
fuel, at the site of any civilian nuclear power reactor
operated by such person or at any site owned by the
Federal Government on the date of enactment of this
Act;
(C) construction of storage capacity at any site of a
civilian nuclear power reactor.
(2) Storage capacity authorized by paragraph (1) shall not be
provided at any Federal or non-Federal site within which there
is a candidate site for a repository. The restriction in the
preceding sentence shall only apply until such time as the
Secretary decides that such candidate site is no longer a
candidate site under consideration for development as a
repository.
(3) In selecting methods of providing storage capacity under
paragraph (1), the Secretary shall consider the timeliness of
the availability of each such method and shall seek to minimize
the transportation of spent nuclear fuel, the public health and
safety impacts, and the costs of providing such storage
capacity.
(4) In providing storage capacity through any method
described in paragraph (1), the Secretary shall comply with any
applicable requirements for licensing or authorization of such
method, except as provided in paragraph (1)(A)(i).
(5) The Secretary shall ensure that storage capacity is made
available under paragraph (1) when needed, as determined on the
basis of the storage needs specified in contracts entered into
under section 136(a), and shall accept upon request any spent
nuclear fuel as covered under such contracts.
(6) For purposes of paragraph (1)(A), the term ``facility''
means any building or structure.
(b) Contracts.--(1) Subject to the capacity limitation
established in subsections (a) (1) and (d) the Secretary shall
offer to enter into, and may enter into, contracts under
section 136(a) with any person generating or owning spent
nuclear fuel for purposes of providing storage capacity for
such spent fuel under this section only if the Commission
determines that--
(A) adequate storage capacity to ensure the continued
orderly operation of the civilian nuclear power reactor
at which such spent nuclear fuel is generated cannot
reasonably be provided by the person owning and
operating such reactor at such site, or at the site of
any other civilian nuclear power reactor operated by
such person, and such capacity cannot be made available
in a timely manner through any method described in
subparagraph (B); and
(B) such person is diligently pursuing licensed
alternatives to the use of Federal storage capacity for
the storage of spent nuclear fuel expected to be
generated by such person in the future, including--
(i) expansion of storage facilities at the
site of any civilian nuclear power reactor
operated by such person;
(ii) construction of new or additional
storage facilities at the site of any civilian
nuclear power reactor operated by such person;
(iii) acquisition of modular or mobile spent
nuclear fuel storage equipment, including spent
nuclear fuel storage casks, for use at the site
of any civilian nuclear power reactor operated
by such person; and
(iv) transshipment to another civilian
nuclear power reactor owned by such person.
(2) In making the determination described in paragraph
(1)(A), the Commission shall ensure maintenance of a full core
reserve storage capability at the site of the civilian nuclear
power reactor involved unless the Commission determines that
maintenance of such capability is not necessary for the
continued orderly operation of such reactor.
(3) The Commission shall complete the determinations required
in paragraph (1) with respect to any request for storage
capacity not later than 6 months after receipt of such request
by the Commission.
(c) Environmental Review.--(1) The provision of 300 or more
metric tons of storage capacity at any one Federal site under
subsection (a)(1)(A) shall be considered to be a major Federal
action requiring preparation of an environmental impact
statement under section 102(2)(C) of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332(2)(C)).
(2)(A) The Secretary shall prepare, and make available to the
public, an environmental assessment of the probable impacts of
any provision of less than 300 metric tons of storage capacity
at any one Federal site under subsection (a)(1)(A) that
requires the modification or expansion of any facility at the
site, and a discussion of alternative activities that may be
undertaken to avoid such impacts. Such environmental assessment
shall include--
(i) an estimate of the amount of storage capacity to
be made available at such site;
(ii) an evaluation as to whether the facilities to be
used at such site are suitable for the provision of
such storage capacity;
(iii) a description of activities planned by the
Secretary with respect to the modification or expansion
of the facilities to be used at such site;
(iv) an evaluation of the effects of the provision of
such storage capacity at such site on the public health
and safety, and the environment;
(v) a reasonable comparative evaluation of current
information with respect to such site and facilities
and other sites and facilities available for the
provision of such storage capacity;
(vi) a description of any other sites and facilities
that have been considered by the Secretary for the
provision of such storage capacity; and
(vii) an assessment of the regional and local impacts
of providing such storage capacity at such site,
including the impacts on transportation.
(B) The issuance of any environmental assessment under this
paragraph shall be considered to be a final agency action
subject to judicial review in accordance with the provisions of
chapter 7 of title 5, United States Code. Such judicial review
shall be limited to the sufficiency of such assessment with
respect to the items described in clauses (i) through (vii) of
subparagraph (A).
(3) Judicial review of any environmental impact statement or
environmental assessment prepared pursuant to this subsection
shall be conducted in accordance with the provisions of section
119.
(d) Review of Sites and State Participation.--(1) In carrying
out the provisions of this subtitle with regard to any interim
storage of spent fuel from civilian nuclear power reactors
which the Secretary is authorized by section 135 to provide,
the Secretary shall, as soon as practicable, notify, in
writing, the Governor and the State legislature of any State
and the Tribal Council of any affected Indian tribe in such
State in which is located a potentially acceptable site or
facility for such interim storage of spent fuel of his
intention to investigate that site or facility.
(2) During the course of investigation of such site or
facility, the Secretary shall keep the Governor, State
legislature, and affected Tribal Council currently informed of
the progress of the work, and results of the investigation. At
the time of selection by the Secretary of any site or existing
facility, but prior to undertaking any site-specific work or
alterations, the Secretary shall promptly notify the Governor,
the legislature, and any affected Tribal Council in writing of
such selection, and subject to the provisions of paragraph (6)
of this subsection, shall promptly enter into negotiations with
such State and affected Tribal Council to establish a
cooperative agreement under which such State and Council shall
have the right to participate in a process of consultation and
cooperation, based on public health and safety and
environmental concerns, in all stages of the planning,
development, modification, expansion, operation, and closure of
storage capacity at a site or facility within such State for
the interim storage of spent fuel from civilian nuclear power
reactors. Public participation in the negotiation of such an
agreement shall be provided for and encouraged by the
Secretary, the State, and the affected Tribal Council. The
Secretary, in cooperation with the States and Indian tribes,
shall develop and publish minimum guidelines for public
participation in such negotiations, but the adequacy of such
guidelines or any failure to comply with such guidelines shall
not be a basis for judicial review.
(3) The cooperative agreement shall include, but need not be
limited to, the sharing in accordance with applicable law of
all technical and licensing information, the utilization of
available expertise, the facilitating of permitting procedures,
joint project review, and the formulation of joint surveillance
and monitoring arrangements to carry out applicable Federal and
State laws. The cooperative agreement also shall include a
detailed plan or schedule of milestones, decision points and
opportunities for State or eligible Tribal Council review and
objection. Such cooperative agreement shall provide procedures
for negotiating and resolving objections of the State and
affected Tribal Council in any stage of planning, development,
modification, expansion, operation, or closure of storage
capacity at a site or facility within such State. The terms of
any cooperative agreement shall not affect the authority of the
Nuclear Regulatory Commission under existing law.
(4) For the purpose of this subsection, ``process of
consultation and cooperation'' means a methodology by which the
Secretary (A) keeps the State and eligible Tribal Council fully
and currently informed about the aspects of the project related
to any potential impact on the public health and safety and
environment; (B) solicits, receives, and evaluates concerns and
objections of such State and Council with regard to such
aspects of the project on an ongoing basis; and (C) works
diligently and cooperatively to resolve, through arbitration or
other appropriate mechanisms, such concerns and objections. The
process of consultation and cooperation shall not include the
grant of a right to any State or Tribal Council to exercise an
absolute veto of any aspect of the planning, development,
modification, expansion, or operation of the project.
(5) The Secretary and the State and affected Tribal Council
shall seek to conclude the agreement required by paragraph (2)
as soon as practicable, but not later than 180 days following
the date of notification of the selection under paragraph (2).
The Secretary shall periodically report to the Congress
thereafter on the status of the agreements approved under
paragraph (3). Any report to the Congress on the status of
negotiations of such agreement by the Secretary shall be
accompanied by comments solicited by the Secretary from the
State and eligible Tribal Council.
(6)(A) Upon deciding to provide an aggregate of 300 or more
metric tons of storage capacity under subsection (a)(1) at any
one site, the Secretary shall notify the Governor and
legislature of the State where such site is located, or the
governing body of the Indian tribe in whose reservation such
site is located, as the case may be, of such decision. During
the 60-day period following receipt of notification by the
Secretary of his decision to provide an aggregate of 300 or
more metric tons of storage capacity at any one site, the
Governor or legislature of the State in which such site is
located, or the governing body of the affected Indian tribe
where such site is located, as the case may be, may disapprove
the provision of 300 or more metric tons of storage capacity at
the site involved and submit to the Congress a notice of such
disapproval. A notice of disapproval shall be considered to be
submitted to the Congress on the date of the transmittal of
such notice of disapproval to the Speaker of the House and the
President pro tempore of the Senate. Such notice of disapproval
shall be accompanied by a statement of reasons explaining why
the provision of such storage capacity at such site was
disapproved by such Governor or legislature or the governing
body of such Indian tribe.
(B) Unless otherwise provided by State law, the Governor or
legislature of each State shall have authority to submit a
notice of disapproval to the Congress under subparagraph (A).
In any case in which State law provides for submission of any
such notice of disapproval by any other person or entity, any
reference in this subtitle to the Governor or legislature of
such State shall be considered to refer instead to such other
person or entity.
(C) The authority of the Governor and legislature of each
State under this paragraph shall not be applicable with respect
to any site located on a reservation.
(D) If any notice of disapproval is submitted to the Congress
under subparagraph (A), the proposed provision of 300 or more
metric tons of storage capacity at the site involved shall be
disapproved unless, during the first period of 90 calendar days
of continuous session of the Congress following the date of the
receipt by the Congress of such notice of disapproval, the
Congress passes a resolution approving such proposed provision
of storage capacity in accordance with the procedures
established in this paragraph and subsections (d) through (f)
of section 115 and such resolution thereafter becomes law. For
purposes of this paragraph, the term ``resolution'' means a
joint resolution of either House of the Congress, the matter
after the resolving clause of which is as follows: ``That there
hereby is approved the provision of 300 or more metric tons of
spent nuclear fuel storage capacity at the site located at
________, with respect to which a notice of disapproval was
submitted by ________ on ________.''. The first blank space in
such resolution shall be filled with the geographic location of
the site involved; the second blank space in such resolution
shall be filled with the designation of the State Governor and
legislature or affected Indian tribe governing body submitting
the notice of disapproval involved; and the last blank space in
such resolution shall be filled with the date of submission of
such notice of disapproval.
(E) For purposes of the consideration of any resolution
described in subparagraph (D), each reference in subsections
(d) and (e) of section 115 to a resolution of repository siting
approval shall be considered to refer to the resolution
described in such subparagraph.
(7) As used in this section, the term ``affected Tribal
Council'' means the governing body of any Indian tribe within
whose reservation boundaries there is located a potentially
acceptable site for interim storage capacity of spent nuclear
fuel from civilian nuclear power reactors, or within whose
boundaries a site for such capacity is selected by the
Secretary, or whose federally defined possessory or usage
rights to other lands outside of the reservation's boundaries
arising out of congressionally ratified treaties, as determined
by the Secretary of the Interior pursuant to a petition filed
with him by the appropriate governmental officials of such
tribe, may be substantially and adversely affected by the
establishment of any such storage capacity.
(e) Limitations.--Any spent nuclear fuel stored under this
section shall be removed from the storage site or facility
involved as soon as practicable, but in any event not later
than 3 years following the date on which a repository or
monitored retrievable storage facility developed under this Act
is available for disposal of such spent nuclear fuel.
(f) Report.--The Secretary shall annually prepare and submit
to the Congress a report on any plans of the Secretary for
providing storage capacity under this section. Such report
shall include a description of the specific manner of providing
such storage selected by the Secretary, if any. The Secretary
shall prepare and submit the first such report not later than 1
year after the date of the enactment of this Act.
(g) Criteria for Determining Adequacy of Available Storage
Capacity.--Not later than 90 days after the date of the
enactment of this Act, the Commission pursuant to section 553
of the Administrative Procedures Act, shall propose, by rule,
procedures and criteria for making the determination required
by subsection (b) that a person owning and operating a civilian
nuclear power reactor cannot reasonably provide adequate spent
nuclear fuel storage capacity at the civilian nuclear power
reactor site when needed to ensure the continued orderly
operation of such reactor. Such criteria shall ensure the
maintenance of a full core reserve storage capability at the
site of such reactor unless the Commission determines that
maintenance of such capability is not necessary for the
continued orderly operation of such reactor. Such criteria
shall identify the feasibility of reasonably providing such
adequate spent nuclear fuel storage capacity, taking into
account economic, technical, regulatory, and public health and
safety factors, through the use of high-density fuel storage
racks, fuel rod compaction, transshipment of spent nuclear fuel
to another civilian nuclear power reactor within the same
utility system, construction of additional spent nuclear fuel
pool capacity, or such other technologies as may be approved by
the Commission.
[(h) Application.--Notwithstanding any other provision of
law, nothing in this Act shall be construed to encourage,
authorize, or require the private or Federal use, purchase,
lease, or other acquisition of any storage facility located
away from the site of any civilian nuclear power reactor and
not owned by the Federal Government on the date of the
enactment of this Act.]
[(i)] (h) Coordination With Research and Development
Program.--To the extent available, and consistent with the
provisions of this section, the Secretary shall provide spent
nuclear fuel for the research and development program
authorized in section 217 from spent nuclear fuel received by
the Secretary for storage under this section. Such spent
nuclear fuel shall not be subject to the provisions of
subsection (e).
* * * * * * *
Subtitle C--Monitored Retrievable Storage
monitored retrievable storage
Sec. 141. (a) Findings.--The Congress finds that--
(1) long-term storage of high-level radioactive waste
or spent nuclear fuel in monitored retrievable storage
facilities is an option for providing safe and reliable
management of such waste or spent fuel;
(2) the executive branch and the Congress should
proceed as expeditiously as possible to consider fully
a proposal for construction of one or more monitored
retrievable storage facilities to provide such long-
term storage;
(3) the Federal Government has the responsibility to
ensure that site-specific designs for such facilities
are available as provided in this section;
(4) the generators and owners of the high-level
radioactive waste and spent nuclear fuel to be stored
in such facilities have the responsibility to pay the
costs of the long-term storage of such waste and spent
fuel; and
(5) disposal of high-level radioactive waste and
spent nuclear fuel in a repository developed under this
Act should proceed regardless of any construction of a
monitored retrievable storage facility pursuant to this
section.
(b) Submission of Proposal by Secretary.--(1) On or before
June 1, [1985] 2019, the Secretary shall complete a detailed
study of the need for and feasibility of, and shall submit to
the Congress a proposal for, [the construction of] one or more
monitored retrievable storage facilities for high-level
radioactive waste and spent nuclear fuel. Each such facility
shall be designed--
(A) to accommodate spent nuclear fuel and high-level
radioactive waste resulting from civilian nuclear
activities;
(B) to permit continuous monitoring, management, and
maintenance of such spent fuel and waste for the
foreseeable future;
(C) to provide for the ready retrieval of such spent
fuel and waste for further processing or disposal; and
(D) to safely store such spent fuel and waste as long
as may be necessary by maintaining such facility
through appropriate means, including any required
replacement of such facility.
(2) Such proposal shall include--
(A) the establishment of a Federal program for the
siting, development, construction, and operation of
facilities capable of safely storing high-level
radioactive waste and spent nuclear fuel, which
facilities are to be licensed by the Commission;
(B) a plan for the funding of the construction and
operation of such facilities, which plan shall provide
that the costs of such activities shall be borne by the
generators and owners of the high-level radioactive
waste and spent nuclear fuel to be stored in such
facilities;
[(C) site-specific designs, specifications, and cost
estimates sufficient to (i) solicit bids for the
construction of the first such facility; (ii) support
congressional authorization of the construction of such
facility; and (iii) enable completion and operation of
such facility as soon as practicable following
congressional authorization of such facility; and]
(C) designs, specifications, and cost estimates
sufficient to--
(i) solicit bids for the construction of one
or more such facilities; and
(ii) enable completion and operation of such
a facility as soon as practicable;
(D) a plan for integrating facilities constructed
pursuant to this section with other storage and
disposal facilities authorized in [this Act.] this Act;
and
(E) options to enter into MRS agreements with respect
to one or more monitored retrievable storage
facilities.
(3) In formulating such proposal, the Secretary shall consult
with the Commission and the Administrator, and shall submit
their comments on such proposal to the Congress at the time
such proposal is submitted.
[(4) The proposal shall include, for the first such facility,
at least 3 alternative sites and at least 5 alternative
combinations of such proposed sites and facility designs
consistent with the criteria of paragraph (b)(1). The Secretary
shall recommend the combination among the alternatives that the
Secretary deems preferable. The environmental assessment under
subsection (c) shall include a full analysis of the relative
advantages and disadvantages of all 5 such alternative
combinations of proposed sites and proposed facility designs.]
(4) The Secretary shall, not later than 90 days after the
date of enactment of the Nuclear Waste Policy Amendments Act of
2017, publish a request for information to help the Secretary
evaluate options for the Secretary to enter into MRS agreements
with respect to one or more monitored retrievable storage
facilities.
(c) Environmental Impact Statements.--(1) Preparation and
submission to the Congress of the proposal required in this
section shall not require the preparation of an environmental
impact statement under section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The
Secretary shall prepare, in accordance with regulations issued
by the Secretary implementing such Act, an environmental
assessment with respect to such proposal. Such environmental
assessment shall be based upon available information regarding
alternative technologies for the storage of spent nuclear fuel
and high-level radioactive waste. The Secretary shall submit
such environmental assessment to the Congress at the time such
proposal is submitted.
(2) [If the Congress by law, after review of the proposal
submitted by the Secretary under subsection (b), specifically
authorizes construction of a monitored retrievable storage
facility, the] The requirements of the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall apply with
respect to [construction of such facility] construction of a
monitored retrievable storage facility, except that any
environmental impact statement prepared with respect to such
facility shall not be required to consider the need for such
facility or any alternative to the design criteria for such
facility set forth in subsection (b)(1).
[(d) Licensing.--Any facility authorized pursuant to this
section shall be subject to licensing under section 202(3) of
the Energy Reorganization Act of 1974 (42 U.S.C. 5842(3)). In
reviewing the application filed by the Secretary for licensing
of the first such facility, the Commission may not consider the
need for such facility or any alternative to the design
criteria for such facility set forth in subsection (b)(1).
[(e) Clarification.--Nothing in this section limits the
consideration of alternative facility designs consistent with
the criteria of paragraph (b)(1) in any environmental impact
statement, or in any licensing procedure of the Commission,
with respect to any monitored, retrievable facility authorized
pursuant to this section.
[(f) Impact Assistance.--(1) Upon receipt by the Secretary of
congressional authorization to construct a facility described
in subsection (b), the Secretary shall commence making annual
impact aid payments to appropriate units of general local
government in order to mitigate any social or economic impacts
resulting from the construction and subsequent operation of any
such facility within the jurisdictional boundaries of any such
unit.
[(2) Payments made available to units of general local
government under this subsection shall be--
[(A) allocated in a fair and equitable manner, with
priority given to units of general local government
determined by the Secretary to be most severely
affected; and
[(B) utilized by units of general local government
only for planning, construction, maintenance, and
provision of public services related to the siting of
such facility.
[(3) Such payments shall be subject to such terms and
conditions as the Secretary determines are necessary to ensure
achievement of the purposes of this subsection. The Secretary
shall issue such regulations as may be necessary to carry out
the provisions of this subsection.
[(4) Such payments shall be made available entirely from
funds held in the Nuclear Waste Fund established in section
302(c) and shall be available only to the extent provided in
advance in appropriation Acts.
[(5) The Secretary may consult with appropriate units of
general local government in advance of commencement of
construction of any such facility in an effort to determine the
level of payments each such unit is eligible to receive under
this subsection.
[(g) Limitation.--No monitored retrievable storage facility
developed pursuant to this section may be constructed in any
State in which there is located any site approved for site
characterization under section 112. The restriction in the
preceding sentence shall only apply until such time as the
Secretary decides that such candidate site is no longer a
candidate site under consideration for development as a
repository. Such restriction shall continue to apply to any
site selected for construction as a repository.
[(h) Participation of States and Indian Tribes.--Any facility
authorized pursuant to this section shall be subject to the
provisions of sections 115, 116(a), 116(b), 116(d), 117, and
118. For purposes of carrying out the provisions of this
subsection, any reference in sections 115 through 118 to a
repository shall be considered to refer to a monitored
retrievable storage facility.]
AUTHORIZATION OF MONITORED RETRIEVABLE STORAGE
Sec. 142. (a) Nullification of Oak Ridge Siting Proposal.--
The proposal of the Secretary (EC-1022, 100th Congress) to
locate a monitored retrievable storage facility at a site on
the Clinch River in the Roane County portion of Oak Ridge,
Tennessee, with alternative sites on the Oak Ridge Reservation
of the Department of Energy and on the former site of a
proposed nuclear powerplant in Hartsville, Tennessee, is
annulled and revoked. In carrying out the provisions of
sections 144 and 145, the Secretary shall make no presumption
or preference to such sites by reason of their previous
selection.
[(b) Authorization.--The Secretary is authorized to site,
construct, and operate one monitored retrievable storage
facility subject to the conditions described in sections 143
through 149.]
(b) Authorization.--Subject to the requirements of this
subtitle, the Secretary is authorized to--
(1) site, construct, and operate one or more
monitored retrievable storage facilities; and
(2) store, pursuant to an MRS agreement, Department-
owned civilian waste at a monitored retrievable storage
facility for which a non-Federal entity holds a license
described in section 143(1).
(c) Priority.--
(1) In general.--Except as provided in paragraph (2),
the Secretary shall prioritize storage of Department-
owned civilian waste at a monitored retrievable storage
facility authorized under subsection (b)(2).
(2) Exception.--
(A) Determination.--Paragraph (1) shall not
apply if the Secretary determines that it will
be faster and less expensive to site,
construct, and operate a facility authorized
under subsection (b)(1), in comparison to a
facility authorized under subsection (b)(2).
(B) Notification.--Not later than 30 days
after the Secretary makes a determination
described in subparagraph (A), the Secretary
shall submit to Congress written notification
of such determination.
[MONITORED RETRIEVABLE STORAGE COMMISSION
[Sec. 143. (a) Establishment.--(1)(A) There is established a
Monitored Retrievable Storage Review Commission (hereinafter in
this section referred to as the ``MRS Commission''), that shall
consist of 3 members who shall be appointed by and serve at the
pleasure of the President pro tempore of the Senate and the
Speaker of the House of Representatives.
[(B) Members of the MRS Commission shall be appointed not
later than 30 days after the date of the enactment of the
Nuclear Waste Policy Amendments Act of 1987 from among persons
who as a result of training, experience and attainments are
exceptionally well qualified to evaluate the need for a
monitored retrievable storage facility as a part of the
Nation's nuclear waste management system.
[(C) The MRS Commission shall prepare a report on the need
for a monitored retrievable storage facility as a part of a
national nuclear waste management system that achieves the
purposes of this Act. In preparing the report under this
subparagraph, the MRS Commission shall--
[(i) review the status and adequacy of the
Secretary's evaluation of the systems advantages and
disadvantages of bringing such a facility into the
national nuclear waste disposal system;
[(ii) obtain comment and available data on monitored
retrievable storage from affected parties, including
States containing potentially acceptable sites;
[(iii) evaluate the utility of a monitored
retrievable storage facility from a technical
perspective; and
[(iv) make a recommendation to Congress as to whether
such a facility should be included in the national
nuclear waste management system in order to achieve the
purposes of this Act, including meeting needs for
packaging and handling of spent nuclear fuel, improving
the flexibility of the repository development schedule,
and providing temporary storage of spent nuclear fuel
accepted for disposal.
[(2) In preparing the report and making its recommendation
under paragraph (1) the MRS Commission shall compare such a
facility to the alternative of at-reactor storage of spent
nuclear fuel prior to disposal of such fuel in a repository
under this Act. Such comparison shall take into consideration
the impact on--
[(A) repository design and construction;
[(B) waste package design, fabrication and
standardization;
[(C) waste preparation;
[(D) waste transportation systems;
[(E) the reliability of the national system for the
disposal of radioactive waste;
[(F) the ability of the Secretary to fulfill
contractual commitments of the Department under this
Act to accept spent nuclear fuel for disposal; and
[(G) economic factors, including the impact on the
costs likely to be imposed on ratepayers of the
Nation's electric utilities for temporary at-reactor
storage of spent nuclear fuel prior to final disposal
in a repository, as the costs likely to be imposed on
ratepayers of the Nation's electric utilities in
building and operating such a facility.
[(3) The report under this subsection, together with the
recommendation of the MRS Commission, shall be transmitted to
Congress on November 1, 1989.
[(4)(A)(i) Each member of the MRS Commission shall be paid at
the rate provided for level III of the Executive Schedule for
each day (including travel time) such member is engaged in the
work of the MRS Commission, and shall receive travel expenses,
including per diem in lieu of subsistence in the same manner as
is permitted under sections 5702 and 5703 of title 5, United
States Code.
[(ii) The MRS Commission may appoint and fix compensation,
not to exceed the rate of basic pay payable for GS-18 of the
General Schedule, for such staff as may be necessary to carry
out its functions.
[(B)(i) The MRS Commission may hold hearings, sit and act at
such times and places, take such testimony and receive such
evidence as the MRS Commission considers appropriate. Any
member of the MRS Commission may administer oaths or
affirmations to witnesses appearing before the MRS Commission.
[(ii) The MRS Commission may request any Executive agency,
including the Department, to furnish such assistance or
information, including records, data, files, or documents, as
the Commission considers necessary to carry out its functions.
Unless prohibited by law, such agency shall promptly furnish
such assistance or information.
[(iii) To the extent permitted by law, the Administrator of
the General Services Administration shall, upon request of the
MRS Commission, provide the MRS Commission with necessary
administrative services, facilities, and support on a
reimbursable basis.
[(iv) The MRS Commission may procure temporary and
intermittent services from experts and consultants to the same
extent as is authorized by section 3109(b) of title 5, United
States Code, at rates and under such rules as the MRS
Commission considers reasonable.
[(C) The MRS Commission shall cease to exist 60 days after
the submission to Congress of the report required under this
subsection.]
SEC. 143. CONDITIONS FOR MRS AGREEMENTS.
(a) In General.--The Secretary may not enter into an MRS
agreement under section 142(b)(2) unless--
(1) the monitored retrievable storage facility with
respect to which the MRS agreement applies has been
licensed by the Commission under the Atomic Energy Act
of 1954 (42 U.S.C. 2011 et seq.);
(2) the non-Federal entity that is a party to the MRS
agreement has approval to store Department-owned
civilian waste at such facility from each of--
(A) the Governor of the State in which the
facility is located;
(B) any unit of general local government with
jurisdiction over the area in which the
facility is located; and
(C) any affected Indian tribe;
(3) except as provided in subsection (b), the
Commission has issued a final repository decision; and
(4) the MRS agreement provides that the quantity of
high-level radioactive waste and spent nuclear fuel at
the site of the facility at any one time will not
exceed the limits described in section 148(d)(3) and
(4).
(b) Initial Agreement.--
(1) Authorization.--The Secretary may enter into one
MRS agreement under section 142(b)(2) before the
Commission has issued a final repository decision.
(2) Funding.--There are authorized to be appropriated
to carry out this subsection--
(A) for each of fiscal years 2020 through
2022, the greater of--
(i) $50,000,000; or
(ii) the amount that is equal to 10
percent of the amounts appropriated
from the Waste Fund in that fiscal
year; and
(B) for each of fiscal years 2023 through
2025, the amount that is equal to 10 percent of
the amounts appropriated from the Waste Fund in
that fiscal year.
(3) Priority.--
(A) In general.--An MRS agreement entered
into pursuant to paragraph (1) shall, to the
extent allowable under this Act (including
under the terms of the standard contract
established in section 691.11 of title 10, Code
of Federal Regulations), provide for
prioritization of the storage of Department-
owned civilian waste that originated from
facilities that have ceased commercial
operation.
(B) No effect on standard contract.--Nothing
in subparagraph (A) shall be construed to amend
or otherwise alter the standard contract
established in section 691.11 of title 10, Code
of Federal Regulations.
(4) Conditions.--
(A) No storage.--Except as provided in
subparagraph (B), the Secretary may not store
any Department-owned civilian waste at the
initial MRS facility until the Commission has
issued a final repository decision.
(B) Exception.--
(i) Finding.--The Secretary, in
consultation with the Chairman of the
Commission, may make a finding that a
final repository decision is imminent,
which finding shall be updated not less
often than quarterly until the date on
which the Commission issues a final
repository decision.
(ii) Storage.--If the Secretary makes
a finding under clause (i), the
Secretary may store Department-owned
civilian waste at the initial MRS
facility in accordance with this
section.
(iii) Notice.--Not later than seven
days after the Secretary makes or
updates a finding under clause (i), the
Secretary shall submit to Congress
written notification of such finding.
(iv) Reporting.--In addition to the
requirements of section 114(c), if the
Secretary makes a finding under clause
(i), the Secretary shall submit to
Congress the report described in such
section 114(c) not later than 1 month
after the Secretary makes such finding
and monthly thereafter until the date
on which the Commission issues a final
repository decision.
(C) No effect on federal disposal policy.--
Nothing in this subsection affects the Federal
responsibility for the disposal of high-level
radioactive waste and spent nuclear fuel, or
the definite Federal policy with regard to the
disposal of such waste and spent fuel,
established under subtitle A, as described in
section 111(b).
(c) Definitions.--For purposes of this section:
(1) Final repository decision.--The term ``final
repository decision'' means a final decision approving
or disapproving the issuance of a construction
authorization for a repository under section 114(d)(1).
(2) Initial mrs facility.--The term ``initial MRS
facility'' means the monitored retrievable storage
facility with respect to which an MRS agreement is
entered into pursuant to subsection (b)(1).
SURVEY
Sec. 144. [After the MRS Commission submits its report to the
Congress under section 143, the] (a) In General._The Secretary
may conduct a survey and evaluation of potentially suitable
sites [for a monitored retrievable storage facility] for any
monitored retrievable storage facility authorized under section
142. In conducting such survey and evaluation, the Secretary
shall consider the extent to which siting a monitored
retrievable storage facility at each site surveyed would--
(1) enhance the reliability and flexibility of the
system for the disposal of spent nuclear fuel and high-
level radioactive waste established under this Act;
(2) minimize the impacts of transportation and
handling of such fuel and waste;
(3) provide for public confidence in the ability of
such system to safely dispose of the fuel and waste;
(4) impose minimal adverse effects on the local
community and the local environment;
(5) provide a high probability that the facility will
meet applicable environmental, health, and safety
requirements in a timely fashion;
(6) provide such other benefits to the system for the
disposal of spent nuclear fuel and high-level
radioactive waste as the Secretary deems appropriate[;
and];
(7) unduly burden a State in which significant
volumes of high-level radioactive waste resulting from
atomic energy defense activities are stored[.]; and
(8) be acceptable to State authorities, affected
units of local government, and affected Indian tribes.
(b) Request for Proposals.--The Secretary shall issue a
request for proposals for an MRS agreement authorized under
section 142(b)(2) before conducting a survey and evaluation
under subsection (a), and shall consider any proposals received
in response to such request in making the evaluation.
Site Selection
Sec. 145. (a) In General.--The Secretary may [select the site
evaluated] select a site evaluated under section 144 that the
Secretary determines on the basis of available information to
be [the most] suitable for a monitored retrievable storage
facility authorized under section 142(b)(1) that is an integral
part of the system for the disposal of spent nuclear fuel and
high-level radioactive waste established under this Act.
(b) Limitation.--The Secretary may not select a site under
subsection (a) until the Secretary recommends to the President
the approval of a site for development as a repository under
section 114(a).
(c) Site Specific Activities.--The Secretary may conduct such
site specific activities at each site surveyed under section
144 as he determines may be necessary to support an application
to the Commission for a license to construct a monitored
retrievable storage facility at such site.
(d) Environmental Assessment.--Site specific activities and
selection of a site under this section shall not require the
preparation of an environmental impact statement under section
102(2)(C) of the National Environmental Policy Act of 1969 (42
U.S.C. 4332(2)(C)). The Secretary shall prepare an
environmental assessment with respect to such selection in
accordance with regulations issued by the Secretary
implementing such Act. Such environmental assessment shall be
based upon available information regarding alternative
technologies for the storage of spent nuclear fuel and high-
level radioactive waste. The Secretary shall submit such
environmental assessment to the Congress at the time such site
is selected.
(e) Notification Before Selection.--(1) At least 6 months
before selecting a site under subsection (a), the Secretary
shall notify the Governor and legislature of the State in which
such site is located, or the governing body of the affected
Indian tribe where such site is located, as the case may be, of
such potential selection and the basis for such selection.
(2) Before selecting any site under subsection (a), the
Secretary shall hold at least one public hearing in the
vicinity of such site to solicit any recommendations of
interested parties with respect to issues raised by the
selection of such site.
(f) Notification of Selection.--The Secretary shall promptly
notify Congress and the appropriate State or Indian tribe of
the selection under subsection (a).
[(g) Limitation.--No monitored retrievable storage facility
authorized pursuant to section 142(b) may be constructed in the
State of Nevada.]
NOTICE OF DISAPPROVAL
Sec. 146. (a) In General.--The selection of a site under
section 145 shall be effective at the end of the period of 60
calendar days beginning on the date of notification under [such
subsection] subsection (f) of such section, unless the
governing body of the Indian tribe on whose reservation such
site is located, or, if the site is not on a reservation, the
Governor and the legislature of the State in which the site is
located, has submitted to Congress a notice of disapproval with
respect to such site. If any such notice of disapproval has
been submitted under this subsection, the selection of the site
under section 145 shall not be effective except as provided
under section 115(c).
(b) References.--For purposes of carrying out the provisions
of [this subsection] this section, references in section 115(c)
to a repository shall be considered to refer to a monitored
retrievable storage facility and references to a notice of
disapproval of a repository site designation under section
116(b) or 118(a) shall be considered to refer to a notice of
disapproval under this section.
benefits agreement
Sec. 147. Once selection of a site for a monitored
retrievable storage facility the Secretary intends to construct
and operate under section 142(b)(1) is made by the Secretary
under section 145, or once a non-Federal entity enters into an
MRS agreement under section 142(b)(2), the Indian tribes on
whose reservation the site is located, or, in the case that the
site is not located on a reservation, the State in which the
site is located, shall be eligible to enter into a benefits
agreement with the Secretary under section 170.
construction authorization
Sec. 148. (a) Environmental Impact Statement.--(1) Once the
selection of a site is effective under section 146, the
requirements of the National Environmental Policy Act of 1969
(42 U.S.C 4321 et seq.) shall apply with respect to
construction of a monitored retrievable storage facility,
except that any environmental impact statement prepared with
respect to such facility shall not be required to consider the
need for such facility or any alternative to the design
criteria for such facility set forth in section 141(b)(1).
(2) Nothing in this section shall be construed to limit the
consideration of alternative facility designs consistent with
the criteria described in section 141(b)(1) in any
environmental impact statement, or in any licensing procedure
of the Commission, with respect to any monitored retrievable
storage facility authorized under section 142(b).
(b) Application for Construction License.--Once the selection
of a site for a monitored retrievable storage facility is
effective under section 146, the Secretary may submit an
application to the Commission for a license to construct such a
facility as part of an integrated nuclear waste management
system and in accordance with the provisions of this section
and applicable agreements under this Act affecting such
facility.
(c) Licensing.--Any monitored retrievable storage facility
authorized pursuant to [section 142(b)] section 142(b)(1) shall
be subject to licensing under section 202(3) of the Energy
Reorganization Act of 1974 (42 U.S.C. 5842(3)). In reviewing
the application filed by the Secretary for licensing of such
facility, the Commission may not consider the need for such
facility or any alternative to the design criteria for such
facility set forth in section 141(b)(1).
(d) Licensing Conditions.--Any license issued by the
Commission for a monitored retrievable storage facility under
this section shall provide that--
(1) construction of such facility may not begin until
the Commission [has issued a license for the
construction of a repository under section 115(d)] has
issued a final decision approving or disapproving the
issuance of a construction authorization for a
repository under section 114(d)(1);
(2) construction of such facility or acceptance of
spent nuclear fuel or high-level radioactive waste
shall be prohibited during such time as the repository
license is revoked by the Commission [or construction
of the repository ceases];
(3) the quantity of spent nuclear fuel or high-level
radioactive waste at the site of such facility at any
one time may not exceed 10,000 metric tons of heavy
metal until a repository under this Act first accepts
spent nuclear fuel or solidified high-level radioactive
waste; and
(4) the quantity of spent nuclear fuel or high-level
radioactive waste at the site of such facility at any
one time may not exceed 15,000 metric tons of heavy
metal.
financial assistance
Sec. 149. The provisions of section 116(c) or 118(b) with
respect to grants, technical assistance, and other financial
assistance shall apply to the State, to affected Indian tribes
and to affected units of local government in the case of a
monitored retrievable storage facility authorized under section
142(b)(1) in the same manner as for a repository.
* * * * * * *
Subtitle F--Benefits
BENEFITS AGREEMENTS
Sec. 170. (a) In General.--(1) The Secretary may enter into a
benefits agreement with the State of Nevada concerning a
repository or with a State or an Indian tribe concerning a
monitored retrievable storage facility for the acceptance of
high-level radioactive waste or spent nuclear fuel in that
State or on the reservation of that tribe, as appropriate.
(2) The State or Indian tribe may enter into such an
agreement only if the State Attorney General or the appropriate
governing authority of the Indian tribe or the Secretary of the
Interior, in the absence of an appropriate governing authority,
as appropriate, certifies to the satisfaction of the Secretary
that the laws of the State or Indian tribe provide adequate
authority for that entity to enter into the benefits agreement.
(3) Any benefits agreement with a State under this section
shall be negotiated in consultation with affected units of
local government in such State.
(4) Benefits and payments under this subtitle made available
pursuant to a benefits agreement under this section may be made
available only in accordance [with a benefits agreement under
this section] with such benefits agreement.
(b) Amendment.--A benefits agreement entered into under
subsection (a) may be amended only by the mutual consent of the
parties to the agreement and terminated only in accordance with
section 173.
(c) Agreement With Nevada.--The Secretary [shall offer] may
offer to enter into a benefits agreement with the Governor of
Nevada. Any benefits agreement with a State under this
subsection shall be negotiated in consultation with any
affected units of local government in such State.
(d) Monitored Retrievable Storage.--The Secretary [shall] may
offer to enter into a benefits agreement relating to a
monitored retrievable storage facility with the governing body
of the Indian tribe on whose reservation the site for such
facility is located, or, if the site is not located on a
reservation, with the Governor of the State in which the site
is located and in consultation with affected units of local
government in such State.
(e) Limitation.--Only one benefits agreement for a
repository, and only one benefits agreement for a monitored
retrievable storage facility per State, may be in effect under
this section at any one time.
(f) Judicial Review.--Decisions of the Secretary under this
section are not subject to judicial review.
(g) Consent.--The acceptance or use of any of the benefits
provided under a benefits agreement under this section by the
State of Nevada shall not be considered to be an expression of
consent, express or implied, to the siting of a repository in
such State.
CONTENT OF AGREEMENTS
Sec. 171. (a) In General.--(1) In addition to the benefits to
which a State, an affected unit of local government or Indian
tribe is entitled under title I, the Secretary shall make
payments to a State or Indian tribe that is a party to a
benefits agreement under section 170 in accordance with the
following schedule:
[BENEFITS SCHEDULE
[Amounts in millions]
------------------------------------------------------------------------
Event MRS Repository
------------------------------------------------------------------------
[(A) Annual payments prior to first spent fuel $5 $10
receipt.........................................
(B) Upon first spent fuel receipt................ 10 20
(C) Annual payments after first spent fuel 10 20]
receipt until closure of the facility...........
------------------------------------------------------------------------
BENEFITS SCHEDULE
----------------------------------------------------------------------------------------------------------------
Event MRS Repository
----------------------------------------------------------------------------------------------------------------
(A) Annual payments prior to first spent fuel receipt......... $5,000,000 $15,000,000
(B) Upon first spent fuel receipt............................. $10,000,000 The amount described in
section 302(f)(1)(B)
(C) Annual payments after first spent fuel receipt until $10,000,000 The amounts described
closure of the facility...................................... in section 302(f)(1)(C)
----------------------------------------------------------------------------------------------------------------
(2) For purposes of this section, the term--
(A) ``MRS'' means a monitored retrievable storage
facility,
(B) ``spent fuel'' means high-level radioactive waste
or spent nuclear fuel, and
(C) ``first spent fuel receipt'' does not include
receipt of spent fuel or high-level radioactive waste
for purposes of testing or operational demonstration.
(3) Annual payments prior to first spent fuel receipt under
paragraph (1)(A) shall be made on the date of execution of the
benefits agreement and thereafter on the anniversary date of
such execution. Annual payments after the first spent fuel
receipt until closure of the facility under paragraph (1)(C)
shall be made on the anniversary date of such first spent fuel
receipt.
(4) If the first spent fuel payment under paragraph (1)(B) is
made within six months after the last annual payment prior to
the receipt of spent fuel under paragraph (1)(A), such first
spent fuel payment under paragraph (1)(B) shall be reduced by
an amount equal to one-twelfth of such annual payment under
paragraph (1)(A) for each full month less than six that has not
elapsed since the last annual payment under paragraph (1)(A).
(5) Notwithstanding paragraph (1), (2), or (3), no payment
under this section may be made before January 1, 1989, and any
payment due under this title before January 1, 1989, shall be
made on or after such date.
(6) Except as provided in [paragraph (7)] paragraphs (7) and
(8), the Secretary may not restrict the purposes for which the
payments under this section may be used.
(7)(A) Any State receiving a payment under this section shall
transfer an amount equal to not less than one-third of the
amount of such payment to affected units of local government of
such State.
(B) A plan for this transfer and appropriate allocation of
such portion among such governments shall be included in the
benefits agreement under section 170 covering such payments.
(C) In the event of a dispute concerning such plan, the
Secretary shall resolve such dispute, consistent with this Act
and applicable State law.
(8) None of the payments under this section may be used--
(A) directly or indirectly to influence legislative
action on any matter pending before Congress or a State
legislature or for any lobbying activity as provided in
section 1913 of title 18, United States Code;
(B) for litigation purposes; or
(C) to support multistate efforts or other coalition-
building activities inconsistent with the siting,
construction, or operation of the monitored retrievable
storage facility or repository concerned.
(b) Contents.--A benefits agreement under section 170 shall
provide that--
(1) a Review Panel be established in accordance with
section 172;
[(2) the State or Indian tribe that is party to such
agreement waive its rights under title I to disapprove
the recommendation of a site for a repository;]
[(3)] (2) the parties to the agreement shall share
with one another information relevant to the licensing
process for the repository or monitored retrievable
storage facility, as it becomes available;
[(4)] (3) the State or Indian tribe that is party to
such agreement participate [in the design of the
repository or monitored retrievable storage facility
and] in the preparation of documents required under law
or regulations governing the effects of the facility on
the public health and safety; and
[(5)] (4) the State or Indian tribe waive its rights,
if any, to impact assistance under sections
116(c)(1)(B)(ii), 116(c)(2), 118(b)(2)(A)(ii), and
118(b)(3).
(c) [The Secretary shall make payments to the States or
affected Indian tribes under a benefits agreement under this
section from the Waste Fund.] The Secretary shall make payments
to the State of Nevada under a benefits agreement concerning a
repository under section 170 from the Waste Fund. The signature
of the Secretary on a valid benefits agreement under section
170 shall constitute a commitment by the United States to make
payments in accordance with such agreement.
* * * * * * *
SEC. 172A. COVERED UNITS OF LOCAL GOVERNMENT.
(a) Benefits Agreement.--Not earlier than 1 year after the
date of enactment of this section, the Secretary may enter into
a benefits agreement with any covered unit of local government
concerning a repository for the acceptance of high-level
radioactive waste or spent nuclear fuel in the State of Nevada.
(b) Content of Agreements.--In addition to any benefits to
which a covered unit of local government is entitled under this
Act, the Secretary shall make payments to such covered unit of
local government that is a party to a benefits agreement under
subsection (a) to mitigate impacts described in section 175(b).
(c) Payments From Waste Fund.--The Secretary shall make
payments to a covered unit of local government under a benefits
agreement under this section from the Waste Fund.
(d) Restriction on Use.--None of the payments made pursuant
to a benefits agreement under this section may be used--
(1) directly or indirectly to influence legislative
action on any matter pending before Congress or a State
legislature or for any lobbying activity as provided in
section 1913 of title 18, United States Code;
(2) for litigation purposes; or
(3) to support multistate efforts or other coalition-
building activities inconsistent with the siting,
construction, or operation of the repository.
(e) Consent.--The acceptance or use of any of the benefits
provided under a benefits agreement under this section by any
covered unit of local government shall not be considered to be
an expression of consent, express or implied, to the siting of
a repository in the State of Nevada.
(f) Covered Unit of Local Government Defined.--In this
section, the term ``covered unit of local government'' means--
(1) any affected unit of local government with
respect to a repository; and
(2) any unit of general local government in the State
of Nevada.
termination
Sec. 173. (a) In General.--The Secretary may terminate a
benefits agreement [under this title if] under this title--
(1) concerning a repository or a monitored
retrievable storage facility, if the site under
consideration is disqualified for its failure to comply
with guidelines and technical requirements established
by the Secretary in accordance with this Act; or
(2) [the Secretary determines that the Commission
cannot license the facility within a reasonable time]
concerning a repository, if the Commission issues a
final decision disapproving the issuance of a
construction authorization for a repository under
section 114(d)(1).
[(b) Termination by State or Indian Tribe.--A State or Indian
tribe may terminate a benefits agreement under this title only
if the Secretary disqualifies the site under consideration for
its failure to comply with technical requirements established
by the Secretary in accordance with this Act or the Secretary
determines that the Commission cannot license the facility
within a reasonable time.]
(b) Termination by State or Indian Tribe.--A State, covered
unit of local government (as defined in section 172A), or
Indian tribe may only terminate a benefits agreement under this
title--
(1) concerning a repository or a monitored
retrievable storage facility, if the Secretary
disqualifies the site under consideration for its
failure to comply with technical requirements
established by the Secretary in accordance with this
Act; or
(2) concerning a repository, if the Commission issues
a final decision disapproving the issuance of a
construction authorization for a repository under
section 114(d)(1).
(c) Decisions of the Secretary.--Decisions of the Secretary
under this section shall be in writing, shall be available to
Congress and the public, and are not subject to judicial
review.
Subtitle G--Other Benefits
* * * * * * *
report
Sec. 175. (a) In General.--Within one year of the date of the
enactment of the [Nuclear Waste Policy Amendments Act of 1987]
Nuclear Waste Policy Amendments Act of 2017, the Secretary
shall report to Congress on the potential impacts of locating a
repository at the Yucca Mountain site, including the
recommendations of the Secretary for mitigation of such impacts
and a statement of which impacts should be dealt with by the
Federal Government, which should be dealt with by the State
with State resources, including the benefits payments under
section 171, and which should be a joint Federal-State
responsibility. The report under this subsection shall include
the analysis of the Secretary of the authorities available to
mitigate these impacts and the appropriate sources of funds for
such mitigation.
(b) Impacts To Be Considered.--Potential impacts to be
addressed in the report under this subsection (a) shall include
impacts on--
(1) education, including facilities and personnel for
elementary and secondary schools, community colleges,
vocational and technical schools and universities;
(2) public health, including the facilities and
personnel for treatment and distribution of water, the
treatment of sewage, the control of pests and the
disposal of solid waste;
(3) law enforcement, including facilities and
personnel for the courts, police and sheriff's
departments, district attorneys and public defenders
and prisons;
(4) fire protection, including personnel, the
construction of fire stations, and the acquisition of
equipment;
(5) medical care, including emergency services and
hospitals;
(6) cultural and recreational needs, including
facilities and personnel for libraries and museums and
the acquisition and expansion of parks;
(7) distribution of public lands to allow for the
timely expansion of existing, or creation of new,
communities and the construction of necessary
residential and commercial facilities;
(8) vocational training and employment services;
(9) social services, including public assistance
programs, vocational and physical rehabilitation
programs, mental health services, and programs relating
to the abuse of alcohol and controlled substances;
(10) transportation, including any roads, terminals,
airports, bridges, or railways associated with the
facility and the repair and maintenance of roads,
terminals, airports, bridges, or railways damaged as a
result of the construction, operation, and closure of
the facility;
(11) equipment and training for State and local
personnel in the management of accidents involving
high-level radioactive waste;
(12) availability of energy;
(13) tourism and economic development, including the
potential loss of revenue and future economic growth;
and
(14) other needs of the State and local governments
that would not have arisen but for the characterization
of the site and the constructions operation, and
eventual closure of the repository facility.
SEC. 176. PRIORITY FUNDING FOR CERTAIN INSTITUTIONS OF HIGHER
EDUCATION.
(a) In General.--In providing any funding to institutions of
higher education from the Waste Fund, the Secretary shall
prioritize institutions of higher education that are located in
the State of Nevada.
(b) Definition.--In this section, the term ``institution of
higher education'' has the meaning given that term in section
101 of the Higher Education Act of 1965 (20 U.S.C. 1001).
Subtitle H--Transportation
transportation
Sec. 180. (a) No spent nuclear fuel or high-level radioactive
waste may be transported by or for the Secretary under subtitle
A or under subtitle C except in packages that have been
certified for such purposes by the Commission.
(b) The Secretary shall abide by regulations of the
Commission regarding advance notification of State and local
governments prior to transportation of spent nuclear fuel or
high-level radioactive waste under subtitle A or under subtitle
C.
(c) Training and Assistance.--
(1) Training.--The Secretary shall provide technical
assistance and funds to States for training for public
safety officials of appropriate units of local
government and Indian tribes through whose jurisdiction
the Secretary plans to transport spent nuclear fuel or
high-level radioactive waste under subtitle A or under
subtitle C. Training shall cover procedures required
for safe routine transportation of these materials, as
well as procedures for dealing with emergency response
situations. [The Waste Fund]
(2) Assistance.--The Secretary shall, subject to the
availability of appropriations, provide in-kind,
financial, technical, and other appropriate assistance,
for safety activities related to the transportation of
high-level radioactive waste or spent nuclear fuel, to
any entity receiving technical assistance or funds
under paragraph (1).
(3) Source of funding.--The Waste Fund shall be the
source of funds for work carried out under this
subsection.
TITLE II--RESEARCH, DEVELOPMENT, AND DEMONSTRATION REGARDING DISPOSAL
OF HIGH-LEVEL RADIOACTIVE WASTE AND SPENT NUCLEAR FUEL
* * * * * * *
[subseabed disposal
[Sec. 224.
[(b) Office of Subseabed Disposal Research.--(1) There is
hereby established an Office of Subseabed Disposal Research
within the Office of Science of the Department of Energy. The
Office shall be headed by the Director, who shall be member of
the Senior Executive Service appointed by the Director of the
Office of Science, and compensated at a rate determined by
applicable law.
[(2) The Director of the Office of Subseabed Disposal
Research shall be responsible for carrying out research,
development, and demonstration activities on all aspects of
subseabed disposal of high-level radioactive waste and spent
nuclear fuel, subject to the general supervision of the
Secretary. The Director of the Office shall be directly
responsible to the Director of the Office of Science, and the
first such Director shall be appointed within 30 days of the
date of enactment of the Nuclear Waste Policy Amendments Act of
1987.
[(3) In carrying out his responsibilities under this Act, the
Secretary may make grants to, or enter into contracts with, the
Subseabed Consortium described in subsection (d) of this
section, and other persons.
[(4)(A) Within 60 days of the date of enactment of the
Nuclear Waste Policy Amendments Act of 1987, the Secretary
shall establish a university-based Subseabed Consortium
involving leading oceanographic universities and institutions,
national laboratories, and other organizations to investigate
the technical and institutional feasibility of subseabed
disposal.
[(B) The Subseabed Consortium shall develop a research plan
and budget to achieve the following objectives by 1995:
[(i) demonstrate the capacity to identify and
characterize potential subseabed disposal sites;
[(ii) develop conceptual designs for a subseabed
disposal system, including estimated costs and
institutional requirements; and
[(iii) identify and assess the potential impacts of
subseabed disposal on the human and marine environment.
[(C) In 1990, and again in 1995, the Subseabed Consortium
shall report to Congress on the progress being made in
achieving the objectives of paragraph (2).]
TITLE III--OTHER PROVISIONS RELATING TO RADIOACTIVE WASTE
* * * * * * *
nuclear waste fund
Sec. 302. (a) Contracts.--(1) In the performance of his
functions under this Act, the Secretary is authorized to enter
into contracts with any person who generates or holds title to
high-level radioactive waste, or spent nuclear fuel, of
domestic origin for the acceptance of title, subsequent
transportation, and disposal of such waste or spent fuel. Such
contracts shall provide for payment to the Secretary of fees
pursuant to [paragraphs (2) and (3)] paragraphs (2), (3), and
(4) sufficient to offset expenditures described in subsection
(d).
(2) For electricity generated by a civilian nuclear power
reactor and sold on or after the date 90 days after the date of
enactment of this Act, the fee under paragraph (1) shall be
equal to 1.0 mil per kilowatt-hour.
(3) For spent nuclear fuel, or solidified high-level
radioactive waste derived from spent nuclear fuel, which fuel
was used to generate electricity in a civilian nuclear power
reactor prior to the application of the fee under paragraph (2)
to such reactor, the Secretary shall, not later than 90 days
after the date of enactment of this Act, establish a 1 time fee
per kilogram of heavy metal in spent nuclear fuel, or in
solidified high-level radioactive waste. Such fee shall be in
an amount equivalent to an average charge of 1.0 mil per
kilowatt-hour for electricity generated by such spent nuclear
fuel, or such solidified high-level waste derived therefrom, to
be collected from any person delivering such spent nuclear fuel
or high-level waste, pursuant to section 123, to the Federal
Government. Such fee shall be paid to the Treasury of the
United States and shall be deposited in the separate fund
established by subsection (c) [126(b)]. In paying such a fee,
the person delivering spent fuel, or solidified high-level
radioactive wastes derived therefrom, to the Federal Government
shall have no further financial obligation to the Federal
Government for the long-term storage and permanent disposal of
such spent fuel, or the solidified high-level radioactive waste
derived therefrom.
[(4) Not later than]
(4) Assessment, collection, and payment of fees._
(A) Assessment of fees._Not later than 180 days
after [the date of enactment of this Act] the date of
enactment of the Nuclear Waste Policy Amendments Act of
2017, the Secretary shall establish procedures for the
[collection and payment] assessment of the fees
established by paragraph (2) and paragraph (3). The
Secretary shall annually review the amount of the fees
established by paragraphs (2) and (3) above to evaluate
whether [collection of the fee] such amount will
provide sufficient revenues to offset the costs as
defined in subsection (d) herein. In the event the
Secretary determines that either insufficient or excess
revenues [are being collected] will result from such
amounts, in order to recover the costs incurred by the
Federal Government that are specified in subsection
(d), the Secretary shall propose an adjustment to the
fee to [insure] ensure full cost recovery. The
Secretary shall immediately transmit this proposal for
such an adjustment to Congress. The adjusted fee
proposed by the Secretary shall be effective after [a
period of 90 days of continuous session have elapsed
following the receipt of such transmittal unless during
such 90-day period either House of Congress adopts a
resolution disapproving the Secretary's proposed
adjustment in accordance with the procedures set forth
for congressional review of an energy action under
section 551 of the Energy Policy and Conservation Act.]
the date that is 180 days after the date of such
transmittal.
(B) Collection and payment of fees.--
(i) In general.--Not later than 180 days
after the date of enactment of Nuclear Waste
Policy Amendments Act of 2017, the Secretary
shall establish procedures for the collection
and payment of the fees established by
paragraph (2) and paragraph (3), or adjusted
pursuant to subparagraph (A).
(ii) Limitation on collection.--The Secretary
may not collect a fee established under
paragraph (2), including a fee established
under paragraph (2) and adjusted pursuant to
subparagraph (A)--
(I) until the date on which the
Commission issues a final decision
approving or disapproving the issuance
of a construction authorization for a
repository under section 114(d)(1); and
(II) after such date, in an amount
that will cause the total amount of
fees collected under this subsection in
any fiscal year to exceed 90 percent of
the amounts appropriated for that
fiscal year for purposes described in
subsection (d).
(iii) Payment of full amounts.--
Notwithstanding the noncollection of a fee by
the Secretary pursuant to clause (ii) in any
fiscal year, a person who has entered into a
contract with the Secretary under this
subsection shall pay any uncollected amounts
when determined necessary by the Secretary,
subject to clause (ii), for purposes described
in subsection (d).
(5) Contracts entered into under this section shall provide
that--
(A) following commencement of operation of a
repository, the Secretary shall take title to the high-
level radioactive waste or spent nuclear fuel involved
as expeditiously as practicable upon the request of the
generator or owner of such waste or spent fuel; and
(B) in return for the payment of fees established by
this section, the Secretary, beginning not later than
January 31, 1998, will dispose of the high-level
radioactive waste or spent nuclear fuel involved as
provided in this subtitle.
(6) The Secretary shall establish in writing criteria setting
forth the terms and conditions under which such disposal
services shall be made available.
(b) Advance Contracting Requirement.--(1)(A) The Commission
shall not issue or renew a license to any person to use a
utilization or production facility under the authority of
section 103 or 104 of the Atomic Energy Act of 1954 (42 U.S.C.
2133, 2134) unless--
(i) such person has entered into a contract with the
Secretary under this section; or
(ii) the Secretary affirms in writing that such
person is actively and in good faith negotiating with
the Secretary for a contract under this section.
(B) The Commission, as it deems necessary or appropriate, may
require as a precondition to the issuance or renewal of a
license under section 103 or 104 of the Atomic Energy Act of
1954 (42 U.S.C. 2133, 2134) that the applicant for such license
shall have entered into an agreement with the Secretary for the
disposal of high-level radioactive waste and spent nuclear fuel
that may result from the use of such license.
(2) Except as provided in paragraph (1), no spent nuclear
fuel or high-level radioactive waste generated or owned by any
person (other than a department of the United States referred
to in section 101 or 102 of title 5, United States Code) may be
disposed of by the Secretary in any repository constructed
under this Act unless the generator or owner of such spent fuel
or waste has entered into a contract with the Secretary under
this section by not later than--
(A) June 30, 1983; or
(B) the date on which such generator or owner
commences generation of, or takes title to, such spent
fuel or waste;
whichever occurs later.
(3) The rights and duties of a party to a contract entered
into under this section may be assignable with transfer of
title to the spent nuclear fuel or high-level radioactive waste
involved.
(4) No high-level radioactive waste or spent nuclear fuel
generated or owned by any department of the United States
referred to in section 101 or 102 of title 5, United States
Code, may be disposed of by the Secretary in any repository
constructed under this Act unless such department transfers to
the Secretary, for deposit in the Nuclear Waste Fund, amounts
equivalent to the fees that would be paid to the Secretary
under the contracts referred to in this section if such waste
or spent fuel were generated by any other person.
(c) Establishment of Nuclear Waste Fund.--There hereby is
established in the Treasury of the United States a separate
fund, to be known as the Nuclear Waste Fund. The Waste Fund
shall consist of--
(1) all receipts, proceeds, and recoveries realized
by the Secretary under subsections (a), (b), and (e),
which shall be deposited in the Waste Fund immediately
upon their realization;
(2) any appropriations made by the Congress to the
Waste Fund; and
(3) any unexpended balances available on the date of
the enactment of this Act for functions or activities
necessary or incident to the disposal of civilian high-
level radioactive waste or civilian spent nuclear fuel,
which shall automatically be transferred to the Waste
Fund on such date.
(d) Use of Waste Fund.--The Secretary may make expenditures
from the Waste Fund, subject to subsection (e), only for
purposes of radioactive waste disposal activities under titles
I and II, including--
(1) the identification, development, licensing,
construction, operation, decommissioning, and post-
decommissioning [maintenance and monitoring of any
repository, monitored, retrievable storage facility or
test and evaluation facility constructed under this
Act;] maintenance and monitoring of any repository or
test and evaluation facility constructed under this
Act;
(2) the conducting of nongeneric research,
development, and demonstration activities under this
Act;
(3) the administrative cost of the radioactive waste
disposal program;
(4) any costs that may be incurred by the Secretary
in connection with the transportation, treating, or
packaging of spent nuclear fuel or high-level
radioactive waste [to be disposed of in a repository,
to be stored in a monitored, retrievable storage site
or to be used in a test and evaluation facility;] to be
disposed of in a repository or to be used in a test and
evaluation facility;
(5) the costs associated with acquisition, design,
modification, replacement, operation, and construction
of facilities [at a repository site, a monitored,
retrievable storage site or a test and evaluation
facility site and necessary or incident to such
repository, monitored, retrievable storage facility or
test and evaluation facility; and] at a repository site
or a test and evaluation facility site and necessary or
incident to such repository or test and evaluation
facility;
(6) the provision of assistance to States, units of
general local government, and Indian tribes under
sections 116, 118, and 219[.]; and
(7) payments under benefits agreements for a
repository entered into under section 170 or 172A.
No amount may be expended by the Secretary under this subtitle
for the construction or expansion of any facility unless such
construction or expansion is expressly authorized by this or
subsequent legislation. The Secretary hereby is authorized to
construct one repository and one test and evaluation facility.
(e) Administration of Waste Fund.--(1) The Secretary of the
Treasury shall hold the Waste Fund and, after consultation with
the Secretary, annually report to the Congress on the financial
condition and operations of the Waste Fund during the preceding
fiscal year.
(2) The Secretary shall submit the budget of the Waste Fund
to the Office of Management and Budget [triennially] annually
along with the budget of the Department of Energy submitted at
such time in accordance with chapter 11 of title 31, United
States Code. The budget of the Waste Fund shall consist of the
estimates made by the Secretary of expenditures from the Waste
Fund and other relevant financial matters for the succeeding 3
fiscal years, and shall be included in the Budget of the United
States Government. The Secretary may make expenditures from the
Waste Fund, subject to appropriations which shall remain
available until expended. Appropriations shall be subject to
triennial authorization.
(3) If the Secretary determines that the Waste Fund contains
at any time amounts in excess of current needs, the Secretary
may request the Secretary of the Treasury to invest such
amounts, or any portion of such amounts as the Secretary
determines to be appropriate, in obligations of the United
States--
(A) having maturities determined by the Secretary of
the Treasury to be appropriate to the needs of the
Waste Fund; and
(B) bearing interest at rates determined to be
appropriate by the Secretary of the Treasury, taking
into consideration the current average market yield on
outstanding marketable obligations of the United States
with remaining periods to maturity comparable to the
maturities of such investments, except that the
interest rate on such investments shall not exceed the
average interest rate applicable to existing
borrowings.
(4) Receipts, proceeds, and recoveries realized by the
Secretary under this section, and expenditures of amounts from
the Waste Fund, shall be exempt from annual apportionment under
the provisions of subchapter II of chapter 15 of title 31,
United States Code.
(5) If at any time the moneys available in the Waste Fund are
insufficient to enable the Secretary to discharge his
responsibilities under this subtitle, the Secretary shall issue
to the Secretary of the Treasury obligations in such forms and
denominations, bearing such maturities, and subject to such
terms and conditions as may be agreed to by the Secretary and
the Secretary of the Treasury. The total of such obligations
shall not exceed amounts provided in appropriation Acts.
Redemption of such obligations shall be made by the Secretary
from moneys available in the Waste Fund. Such obligations shall
bear interest at a rate determined by the Secretary of the
Treasury, which shall be not less than a rate determined by
taking into consideration the average market yield on
outstanding marketable obligations of the United States of
comparable maturities during the month preceding the issuance
of the obligations under this paragraph. The Secretary of the
Treasury shall purchase any issued obligations, and for such
purpose the Secretary of the Treasury is authorized to use as a
public debt transaction the proceeds from the sale of any
securities issued under chapter 31 of title 31, United States
Code, and the purposes for which securities may be issued under
such Act are extended to include any purchase of such
obligations. The Secretary of the Treasury may at any time sell
any of the obligations acquired by him under this paragraph.
All redemptions, purchases, and sales by the Secretary of the
Treasury of obligations under this paragraph shall be treated
as public debt transactions of the United States.
(6) Any appropriations made available to the Waste Fund for
any purpose described in subsection (d) shall be repaid into
the general fund of the Treasury, together with interest from
the date of availability of the appropriations until the date
of repayment. Such interest shall be paid on the cumulative
amount of appropriations available to the Waste Fund, less the
average undisbursed cash balance in the Waste Fund account
during the fiscal year involved. The rate of such interest
shall be determined by the Secretary of the Treasury taking
into consideration the average market yield during the month
preceding each fiscal year on outstanding marketable
obligations of the United States of comparable maturity.
Interest payments may be deferred with the approval of the
Secretary of the Treasury, but any interest payments so
deferred shall themselves bear interest.
(f) Availability of Certain Amounts.--
(1) In general.--Notwithstanding any other provision
of this section, for the purposes described in
subsection (d) that are specified in subparagraphs (A)
through (E) of this paragraph, the following amounts
from the Waste Fund shall be available to the Secretary
without further appropriation:
(A) An amount equal to 1 percent of 2017
Waste Fund amounts, on the date on which high-
level radioactive waste or spent nuclear fuel
is received at the Yucca Mountain site, and in
each of the 25 years thereafter, for costs
associated with construction and operation of a
repository or facilities at the Yucca Mountain
site.
(B) An amount equal to 1 percent of 2017
Waste Fund amounts, on the date on which high-
level radioactive waste or spent nuclear fuel
is received at the Yucca Mountain site, to make
payments under a benefits agreement entered
into under section 170 with the State of Nevada
concerning a repository.
(C) An amount equal to 0.1 percent of 2017
Waste Fund amounts, on the date that is one
year after the date on which high-level
radioactive waste or spent nuclear fuel is
received at the Yucca Mountain site, and in
each year thereafter until closure of the
repository, to make payments under a benefits
agreement entered into under section 170 with
the State of Nevada concerning a repository.
(D) An amount equal to 20 percent of 2017
Waste Fund amounts, on the date on which
monitoring of the repository during the
decommissioning period commences, for waste
package and drip shield fabrication activities.
(E) An amount equal to the amount of any fee
collected pursuant to subsection (a)(3) after
the date of enactment of the Nuclear Waste
Policy Amendments Act of 2017, on the date on
which such fee is collected, for costs
associated with construction and operation of a
repository or facilities at the Yucca Mountain
site.
(2) 2017 waste fund amounts.--For purposes of this
subsection, the term ``2017 Waste Fund amounts'' means
the amounts in the Waste Fund on the date of enactment
of the Nuclear Waste Policy Amendments Act of 2017.
* * * * * * *
office of civilian radioactive waste management
Sec. 304. (a) Establishment.--There hereby is established
within the Department of Energy an Office of Civilian
Radioactive Waste Management. The Office shall be headed by a
Director, who shall be appointed by the President, by and with
the advice and consent of the Senate, and who shall be
compensated at the rate payable for level IV of the Executive
Schedule under section 5315 of title 5, United States Code.
[(b) Functions of Director.--The Director of the Office shall
be responsible for carrying out the functions of the Secretary
under this Act, subject to the general supervision of the
Secretary. The Director of the Office shall be directly
responsible to the Secretary.]
(b) Director.--
(1) Functions.--The Director of the Office shall be
responsible for carrying out the functions of the
Secretary under this Act. The Director of the Office
shall report directly to the Secretary.
(2) Qualifications.--The Director of the Office shall
be appointed from among persons who have extensive
expertise and experience in organizational and project
management.
(3) Tenure.--The Director of the Office may serve not
more than two 5-year terms.
(4) Service during interim period.--Upon expiration
of the Director's term, the Director may continue to
serve until the earlier of--
(A) the date on which a new Director is
confirmed; or
(B) the date that is one year after the date
of such expiration.
(5) Removal.--The President may remove the Director
only for inefficiency, neglect of duty, or malfeasance
in office. If the President removes the Director, the
President shall submit to Congress a statement
explaining the reason for such removal.
(c) Annual Report to Congress.--The Director of the Office
shall annually prepare and submit to the Congress a
comprehensive report on the activities and expenditures of the
Office.
(d) Audit by GAO.--If requested by either House of the
Congress (or any committee thereof) or if considered necessary
by the Comptroller General, the General Accounting Office shall
conduct an audit of the Office, in accord with such regulations
as the Comptroller General may prescribe. The Comptroller
General shall have access to such books, records, accounts, and
other materials of the Office as the Comptroller General
determines to be necessary for the preparation of such audit.
The Comptroller General shall submit a report on the results of
each audit conducted under this section.
* * * * * * *
----------
DEPARTMENT OF ENERGY ORGANIZATION ACT
* * * * * * *
TITLE II--ESTABLISHMENT OF THE DEPARTMENT
* * * * * * *
assistant secretaries
Sec. 203. (a) There shall be in the Department 8 Assistant
Secretaries, each of whom shall be appointed by the President,
by and with the advice and consent of the Senate; who shall be
compensated at the rate provided for at level IV of the
Executive Schedule under section 5315 of title 5, United States
Code; and who shall perform, in accordance with applicable law,
such of the functions transferred or delegated to, or vested
in, the Secretary as he shall prescribe in accordance with the
provisions of this Act. The functions which the Secretary shall
assign to the Assistant Secretaries include, but are not
limited to, the following:
(1) Energy resource applications, including functions
dealing with management of all forms of energy
production and utilization, including fuel supply,
electric power supply, enriched uranium production,
energy technology programs, and the management of
energy resource leasing procedures on Federal lands.
(2) Energy research and development functions,
including the responsibility for policy and management
of research and development for all aspects of--
(A) solar energy resources;
(B) geothermal energy resources;
(C) recycling energy resources;
(D) the fuel cycle for fossil energy
resources; and
(E) the fuel cycle for nuclear energy
resources.
(3) Environmental responsibilities and functions,
including advising the Secretary with respect to the
conformance of the Department's activities to
environmental protection laws and principles, and
conducting a comprehensive program of research and
development on the environmental effects of energy
technologies and programs.
(4) International programs and international policy
functions, including those functions which assist in
carrying out the international energy purposes
described in section 102 of this Act.
(6) Intergovernmental policies and relations
including responsibilities for assuring that national
energy policies are reflective of and responsible to
the needs of State and local governments, and for
assuring that other components of the Department
coordinate their activities with State and local
governments, where appropriate, and develop
intergovernmental communications with State and local
governments.
(7) Competition and consumer affairs, including
responsibilities for the promotion of competition in
the energy industry and for the protection of the
consuming public in the energy policymaking processes,
and assisting the Secretary in the formulation and
analysis of policies, rules, and regulations relating
to competition and consumer affairs.
[(8) Nuclear waste management responsibilities,
including--
[(A) the establishment of control over
existing Government facilities for the
treatment and storage of nuclear wastes,
including all containers, casks, buildings,
vehicles, equipment, and all other materials
associated with such facilities;
[(B) the establishment of control over all
existing nuclear waste in the possession or
control of the Government and all commercial
nuclear waste presently stored on other than
the site of a licensed nuclear power electric
generating facility, except that nothing in
this paragraph shall alter or effect title to
such waste;
[(C) the establishment of temporary and
permanent facilities for storage, management,
and ultimate disposal of nuclear wastes;
[(D) the establishment of facilities for the
treatment of nuclear wastes;
[(E) the establishment of programs for the
treatment, management, storage, and disposal of
nuclear wastes;
[(F) the establishment of fees or user
charges for nuclear waste treatment or storage
facilities, including fees to be charged
Government agencies; and
[(G) the promulgation of such rules and
regulations to implement the authority
described in this paragraph,
except that nothing in this section shall be construed
as granting to the Department regulatory functions
presently within the Nuclear Regulatory Commission, or
any additional functions than those already conferred
by law.]
(9) Energy conservation functions, including the
development of comprehensive energy conservation
strategies for the Nation, the planning and
implementation of major research and demonstration
programs for the development of technologies and
processes to reduce total energy consumption, the
administration of voluntary and mandatory energy
conservation programs, and the dissemination to the
public of all available information on energy
conservation programs and measures.
(10) Power marketing functions, including
responsibility for marketing and transmission of
Federal power.
(11) Public and congressional relations functions,
including responsibilities for providing a continuing
liaison between the Department and the Congress and the
Department and the public.
(b) At the time the name of any individual is submitted for
confirmation to the position of Assistant Secretary, the
President shall identify with particularity the function or
functions described in subsection (a) (or any portion thereof)
for which such individual will be responsible.
* * * * * * *
ADDITIONAL VIEWS
At the April 26, 2017 Environment Subcommittee legislative
hearing and June 15, 2017 Subcommittee markup, numerous
Democratic members discussed the importance of developing a
solution to store spent nuclear fuel that is currently being
stored at shutdown--or soon-to-be shutdown--reactors across the
country. To that end, the manager's amendment agreed to at the
Full Committee markup contained a provision, based upon a
proposal developed by Rep. Doris Matsui (D-CA), to allow the
Secretary of Energy to enter into interim storage ``pilot
program'' agreements for storing spent nuclear fuel from
shutdown reactors across the country. The issue of waste at
shutdown plants has become one of great concern to communities
across the nation, particularly in light of the changing
economics that have resulted in the early closure of many
nuclear power facilities. This pilot program can move forward
directly after enactment and is not linked to whether the
Nuclear Regulatory Commission (NRC) has issued a decision on a
permanent repository (e.g. the pending license application for
the Yucca Mountain site).
Unfortunately, the bill leaves in place a restriction
against licensing subsequent interim storage facilities (after
the initial ``pilot'' facility) until the NRC decides whether
to license a permanent repository. This limits the ability of
the Department of Energy (DOE) to pursue a second interim
storage facility to store spent nuclear fuel if licensing on a
permanent repository is stalled.
The bill further leaves in place the current statutory cap
(10,000 metric tons) on the amount of spent nuclear fuel that
may be placed in the interim storage facility, which could
provide an arbitrary limit on a facility that might otherwise
be able to handle more spent nuclear fuel. The inventory of
spent nuclear fuel in the United States is now over 72,000
metric tons and is expected to grow to 139,000 metric tons by
2067.\1\ Most of the current inventory is stored onsite, where
it was generated, in wet pools or dry casks.\2\ Spent fuel is
generally stored in pools for five years, and then transferred
to dry casks after it has cooled to within the heat limits of
the casks.\3\ However, at many facilities capacity for storage
in wet pools has been exhausted, requiring more fuel to be
transferred to dry casks and exacerbating the need for near-
term solutions such as interim storage sites to store spent
nuclear fuel.
---------------------------------------------------------------------------
\1\Government Accountability Office, Outreach Needed to Help Gain
Public Acceptance for Federal Activities that Address Liability, at 11
(Oct. 2014) (GAO-15-141).
\2\Id. at 14.
\3\Id. at 7.
---------------------------------------------------------------------------
The legislation was greatly improved by an amendment agreed
to during the Full Committee markup that removed several
troubling Nevada-related policies from the introduced bill. The
amendment struck section 202 of the introduced bill, which
declared the use of water at the Yucca Mountain site to be
beneficial and not detrimental to the public interest. In 2002,
the Nevada State Engineer denied DOE's request for water rights
at the Yucca Mountain site on the basis that the use was not
beneficial and was detrimental to the public interest.\4\ The
amendment also removed language from the introduced bill that
would have severely limited Nevada's Clean Air Act authority at
the site.
---------------------------------------------------------------------------
\4\Congressional Research Service, Legal Developments Relating to
Nuclear Waste Storage and Disposal (Aug. 2016) (R44151).
---------------------------------------------------------------------------
Section 202 of the reported bill allows for amendments to
an approved constmction authorization license to be considered
using expedited and informal procedures at NRC. Expedited and
informal procedures at NRC place limits on challenges and
adjudication of contentions, which could limit the ability of
interveners to raise issues with amended applications. This
section also requires any other federal agency considering the
environmental impact of infrastructure activities at the Yucca
Mountain site to adopt, to the extent practicable, the
environmental impact statement prepared by DOE.
We continue to question the need for Congress to intervene
legislatively in the debate over Yucca Mountain at this point
in time. The Trump Administration, which has already announced
its intention to revive the stalled project, already holds
sufficient authority under current law to move forward on a
license for a repository at that location. Without passing
judgement on the merits or final disposition of the Yucca
Mountain project, we remain concerned that any provisions
addressing Yucca Mountain greatly narrow the legislation's path
to enactment, thus hindering efforts to address more immediate
and pressing needs for interim storage.
Nonetheless, while there are a few concerning provisions
remaining in H.R. 3053, as highlighted above, we believe that,
overall, the legislation is a balanced step in the right
direction that will benefit ratepayers, taxpayers and those
living near nuclear facilities housing nuclear waste.
Frank Pallone, Jr.,
Rank Member.
Paul Tonko,
Ranking Member, Subcommittee
on Environment.
DISSENTING VIEWS
I oppose the Nuclear Waste Policy Amendments Act of 2017,
which unfortunately makes it more likely that a future interim
storage site becomes a permanent home for nuclear waste. As
former Senator and chairman of the Senate Energy & Natural
Resources Committee Jeff Bingaman once put it,'' interim
storage can play an important role in a comprehensive waste
management program, but only as an integral part of the
repository program and not as an alternative to, or de facto
substitute for, permanent disposal.''
There is no doubt that these issues are complicated and I
believe that we have a responsibility to address the waste
issues that result from our country entering the atomic age.
But I do not believe that addressing nuclear waste is our only
responsibility. Seventy years ago, rural New Mexico became
ground zero for the detonation of the first nuclear bomb. While
it would usher in the start of the atomic age, it also marked
the beginning of sickness and suffering for generations of
people who lived and grew up in the Tularosa Basin.
To help those Americans who sacrificed so much for our
national security, Congress passed the Radiation Exposure
Compensation Act (RECA) in 1990 and later broadened the scope
of the Act's coverage in 2000. However, we have since learned
that many additional individuals who are sick or dying from
radiation exposure are unable to receive the compensation they
deserve.
To address this failure, I have repeatedly introduced the
Radiation Exposure Compensation Act Amendments, which expands
compensation for those exposed to radiation while working in
uranium mines or living downwind from atomic weapons tests.
And, I have committed to my constituents that I will take every
opportunity I can to educate my colleagues in the House on the
critical need to compensate all those who played a key role in
our national security during the Cold War and have suffered as
a result of their efforts.
Thoughtful nuclear waste policy is incredibly important but
so is fairly compensating those who were exposed to radiation
as they worked to ensure our nation's security. We need to act.
It is the right thing to do and is a vital part of addressing
our nation's nuclear legacy.
Sincerely,
Ben Ray Lujan,
Member of Congress.
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