Nuclear Waste Policy Amendments Act - H.R.3053
Long-Term & Interim Nuclear Waste Storage — HR 3053, Nuclear Waste Policy Amendments Act The largely bipartisan bill provides for the licensing and continued construction of the facility at Yucca Mountain in Nevada as the nation's permanent repository for nuclear waste, requiring the Nuclear Regulatory Commission to make a decision on licensing within 30 months, and it authorizes the Energy Department to establish and maintain interim storage facilities to hold nuclear waste from commercial power reactors until the Yucca repository is ready to receive nuclear waste shipments. It also increases the allowable storage capacity of the Yucca repository, and it establishes a new mechanism to finance operations of the Yucca nuclear waste repository and the government's disposal of civilian nuclear waste.
Summary
H.R. 3053 makes targeted reforms to the Nuclear Waste Policy Act (NWPA) to ensure the Federal government meets its nuclear waste management obligations. Specifically, the bill includes the following provisions:
Reform the Nuclear Waste Fund to Protect Ratepayers --The bill temporarily limits the Department of Energy’s (DOE) authority to collect fees charged to utilities with nuclear plants to fund spent nuclear fuel (SNF) disposal costs.
Provide for Consolidated Storage Options – The legislation authorizes DOE to contract with a nonfederal entity to store SNF on an interim basis or to develop its own centralized interim storage facility, known as monitored retrievable storage.
Assist Repository Licensing Process and Operation – The bill includes “land withdrawal” (describing legal uses of the federal land) for a permanent geologic repository at Yucca Mountain and clarifies certain regulatory and permitting requirements relating to repository development. These provisions remove potential impediments to license approval for the Yucca Mountain repository.
Fulfill Federal Government Responsibilities – The bill directs DOE to take ownership of commercial SNF once it is accepted for transport to an interim storage facility or repository. DOE taking ownership of fuel to send to storage will reduce ongoing taxpayer exposure to claims against the Judgment Fund because the Federal government’s inability to fulfill its legal obligations to dispose of spent nuclear fuel by the statutory January 31, 1998 deadline has resulted in a legal breach of contract.
Background
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.
In 1982, Congress enacted the NWPA to establish the statutory framework that continues to govern DOE’s nuclear waste management policy and the development of a permanent geologic nuclear waste repository. The NWPA established a scientifically based, multi-stage, statutory process for selecting the eventual site of the nation’s permanent geologic repository. In 1987, Congress amended NWPA to designate the Yucca Mountain, Nevada site as the sole candidate site for the first geologic repository for permanent disposal of the nation's spent nuclear fuel and high-level nuclear waste.
The NWPA also established a Nuclear Waste Fund (NWF) 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, or ownership, to the spent nuclear fuel. To date, ratepayers have paid, including interest, over $40 billion for the purposes of the NWF, approximately $15 billion has been spent on nuclear waste management activities to date, and the current balance of the NWF is nearly $40 billion due to continued interest accumulating on previous payments.
The NWPA established a statutory deadline of January 31, 1998 for the federal government to take title for disposal of commercial spent nuclear fuel. The federal government has not met its contractual obligation to begin accepting SNF by 1998, leading to litigation by utilities who generate nuclear energy for contract damages to cover the costs of on-site storage.
Nuclear utilities have generally been successful in recovering all reasonable and foreseeable expenses incurred in mitigation of DOE's breach. These damages typically consist of costs associated with developing, implementing, and maintaining on-site SNF storage. Damages are limited, however, to the costs incurred from the date at which the utility became aware of DOE's potential breach, a realization often occurring well before the January 31, 1998, deadline, to the date of trial. Nuclear utilities are free, however, to re-file future claims as new damages are incurred. The Judgment Fund[5] of the U.S. Treasury, not the NWF is the source of federal funds for the payment of eligible claims. In Fiscal Year 2017, the Judgment Fund paid over $700 million for damages and total estimated damages will cumulatively exceed $34 billion.
In 2002, following extensive scientific and technical analysis by DOE and its national laboratories, the Secretary of Energy determined Yucca Mountain was suitable to serve as a permanent repository and President Bush formally recommended the Yucca Mountain site. The State of Nevada exercised its authority under the NWPA to veto the site recommendation, which Congress subsequently overruled under procedures established in the NWPA by enacting a resolution formally designating the site for a repository. DOE subsequently prepared and submitted a license application to the Nuclear Regulatory Commission (NRC) for the Yucca Mountain facility in 2008. While the license is still pending before the Commission, independent NRC scientific review has found the site would meet all safety regulations for the required one-million-year timeframe.
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. The Obama Administration's budget proposals eliminated all funding for the project. President Obama also established a Blue Ribbon Commission on America’s Nuclear Future (BRC) to consider alternative solutions to the nation's nuclear waste challenges. In response to the BRC recommendations, the previous Administration’s DOE sought to design a consent-based siting process. DOE attempted to terminate the NRC's Yucca Mountain licensing proceeding by seeking to withdraw its 2008 license application.
Although DOE's motion to withdraw the application was denied by the NRC's Atomic Safety and Licensing Board, the NRC suspended the Yucca Mountain licensing proceeding in 2011, claiming budgetary limitations. In 2013, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued a writ of mandamus directing the NRC to resume its review of DOE's license application, as required by the NWPA, using what remained of previously appropriated funds, although it acknowledged that such funds were insufficient for the NRC to complete the review.
The Trump Administration requested funding for DOE and NRC to resume the Yucca Mountain licensing process and initiate an interim storage program.
According to the bill sponsor, “At the end of the day this bill is good for taxpayers, communities, and ratepayers…It’s now time for the federal government to fulfill its obligation and permanently dispose of the spent nuclear fuel sitting in our states, alongside our lakes, rivers and roadways. The time for action is now and we intend to roll up our sleeves to get this done.”
Cost
The Congressional Budget Office (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. A revised CBO cost estimate is expected.
The Energy and Commerce Committee reported the bill with additional and dissenting views by a 49-4 vote (H Rept 115-355, Part I). The Natural Resources and Armed Services committees did not act on the measure.
Nuclear power reactors in the United States generate almost 20% of the nation's electricity while producing an average of 2,200 metric tons of spent nuclear fuel every year. The inventory of spent nuclear fuel in the United States is now over 72,000 metric tons and is expected to grow to more than 139,000 metric tons in the next 50 years.
Most of the current inventory is stored onsite where it was generated, in wet pools or dry casks. 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. However, capacity for storage in wet pools has been exhausted, requiring more fuel to be transferred to dry casks.
Nuclear Waste Repository & Yucca Mountain
Under the 1982 Nuclear Waste Policy Act, the Energy Department was required to remove spent nuclear fuel from commercial nuclear power plants, in exchange for a fee, and transport it to a permanent geologic repository beginning Jan. 31, 1998. Defense-related high-level waste also was to go into the same repository. In an effort to mitigate the political difficulties of imposing a federal nuclear waste facility on a single community, Congress attempted to establish a scientifically based, multi-stage statutory process for selecting the eventual site of the nation's new permanent geologic repository.
In 1987, however, Congress designated Yucca Mountain, Nev., as the sole candidate site for the repository by terminating site-specific activities at all other sites. And in 2002 Congress enacted legislation approving Yucca as the national nuclear repository after the Energy Department determined it was a suitable location for that purpose.
Development of the Yucca Mountain repository continued until the Obama administration began a series of steps to terminate the project, with funding for project construction being terminated in 2011. The Obama administration also created a Blue Ribbon Commission to consider alternative solutions to the nation's nuclear waste challenges, and it attempted to terminate the Nuclear Regulatory Commission's Yucca Mountain licensing proceeding by seeking to withdraw its 2008 license application.
While that attempt was denied, the NRC did suspend the Yucca Mountain licensing proceeding in 2011 because of budgetary limitations. In 2013, the U.S. Court of Appeals for the District of Columbia Circuit directed the NRC to resume its review of the Energy Department's license application using what remained of previously appropriated funds, although it acknowledged that such funds were insufficient for the NRC to complete the review.
Yucca Mountain Licensing
In response to the court order, the NRC in 2015 completed a Safety Evaluation Report that concluded the department's Yucca Mountain repository design would comply with safety and environmental standards after being permanently sealed. The report also recommended that NRC should not authorize further construction of the repository until all land and water rights requirements were met and a supplement to the Energy Department's environmental impact statement was completed.
The commission in 2015 testified that it would need $330 million in additional appropriations to complete the licensing process, including adjudicatory hearings on as many as 300 issues that have been raised by the state of Nevada. The Trump administration requested $30 million in Fiscal 2018 for NRC licensing activities for Yucca Mountain, plus $110 million for DOE to defend its license application for the repository.
The bill (HR 3053) represents a bipartisan agreement on storage of nuclear waste. However, some members have expressed concerns about the measure, saying Congress should not intervene legislatively in the debate over Yucca Mountain at this time. They say the 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.
ADDITIONAL INFORMATION
The Rules Committee is expected to make in order a modified version of the bill. Following is a summary of the bill as it is expected to be considered.
This bill provides for the licensing and continued construction of the facility at Yucca Mountain in Nevada as the nation's permanent repository for nuclear waste, and it authorizes the Energy Department to establish and maintain interim storage facilities to hold nuclear waste until the Yucca repository is ready to receive nuclear waste shipments.
It also increases the allowable storage capacity of the Yucca repository, and it establishes a new mechanism to finance operations of the Yucca nuclear waste repository and the government's disposal of civilian nuclear waste.
Permanent Repository / Yucca Mountain
The bill requires the Nuclear Regulatory Commission to make a decision within 30 months of enactment on final licensing for construction of the Yucca Mountain nuclear waste repository, which would enable the Energy Department to complete construction of the repository. The commission could also instead modify a previously approved construction authorization license using expedited, informal procedures, but if it pursues this choice it must do so within one year (although Congress could extend the deadline if needed).
The Energy Department would be permitted to immediately begin work on associated infrastructure at Yucca, such as safety upgrades, site preparation, and the construction of a rail line to connect the Yucca site with the national rail network. The department may also build, upgrade, acquire or operate electrical grids or facilities, as well as other utilities, communication facilities, and access roads that are considered necessary or appropriate to support construction or operation of the repository, or transportation to the site. The bill expresses the sense of Congress that the department should consider transportation routes to Yucca that avoid Las Vegas.
The measure also increases the amount of spent nuclear fuel that by law could be stored at the Yucca repository from 70,000 metric tons to 110,000 metric tons, and it eliminates the ability of the state of Nevada to disapprove of the Yucca Mountain site.
The department would be prohibited from planning, developing or building a separate defense waste repository until the Nuclear Regulatory Commission issues its decision regarding further construction at Yucca.
Land Withdrawal
The bill provides for the permanent withdrawal of lands for the Yucca repository from other currently authorized uses, reserving the land for Energy Department construction and operation of the nuclear waste repository and setting conditions for other activities that would be allowed.
It assigns management responsibilities for lands withdrawn and requires the development of a management plan. While prioritizing land uses related to the nuclear waste repository, it also allows Air Force overflights and other non-repository uses, such as mining, grazing, and hunting and trapping. It also provides for limited public access to continue the Nye County Early Warning Drilling Program, utility corridors and other uses the department considers consistent with the purposes of the withdrawal. The department may close a portion of withdrawn lands, including airspace above the lands.
Under the measure, the federal government would be held harmless and could not be held liable for any damages to persons or property that result from mining, mineral leasing or geothermal leasing activities that are conducted on the lands.
Compensation to Nevada
The bill increases the compensation that the federal government can provide to Nevada for hosting the national nuclear waste repository.
Specifically, it increases from $10 million to $15 million the amount that can provided to Nevada each year prior to the Yucca site accepting its first shipment of nuclear waste, and it increases from $20 million to $40 million the annual amount provided once shipments begin. It also increases from $20 million to $400 million the amount provided when the first shipment arrives.
Interim Storage
The bill provides for the Energy Department to build and operate interim storage sites where nuclear waste from commercial power reactors could be stored until the Yucca national repository opens.
Specifically, the department could build and operate above-ground "monitored retrievable storage" (MRS) sites for civilian nuclear waste (also known as consolidated interim storage) — on both federal or nonfederal property. A priority is provided to non-federal locations unless the department determines it would be faster and less expensive for the department to operate a federal interim storage site.
Interim storage sites at non-federal locations would have to be licensed by the Nuclear Regulatory Commission and be subject to an MRS agreement and approval from the state's governor and local government.
The Energy Department would be allowed to enter into one MRS agreement to create an interim storage site prior to the Nuclear Regulatory Commission issuing a decision on licensing the Yucca national repository, although nuclear waste couldn't be stored at that site until the commission has approved the Yucca license (or if such a decision is imminent, in which case the department must notify Congress and provide monthly updates).
At the first interim storage site that is created, the department must prioritize the storage of civilian nuclear waste from facilities that have ceased commercial operation. The department may also modify any existing interim storage contracts to move that nuclear waste to the new interim storage sites.
Interim Storage Funding
For fiscal years 2020 through 2022, the bill authorizes the greater of $50 million or 10% of amounts appropriated from the Waste Fund that fiscal year for the operation of interim storage sites. For fiscal years 2023 through 2025, it authorizes a straight 10% of amounts appropriated from the Waste Fund for interim sites.
(In addition, under current law, states that agree to host an interim site are also eligible for a federal "hosting benefit" of $5 million a year after an agreement to host is reached until the first waste shipment arrives, at which point they may receive $10 million a year plus an additional $10 million for that first year.)
Waste Disposal Financing
The bill establishes a new mechanism to finance operations of the Yucca nuclear waste repository and the disposal of civilian nuclear waste. It would effectively replace the existing funding mechanism created by the 1982 Nuclear Waste Policy Act, which all parties agree has failed.
That 1982 law created a Nuclear Waste Fund in the U.S. Treasury to collect fees imposed upon commercial nuclear power plants that generate electricity, with those collected fees to be used for the sole purpose of covering the cost of disposing of civilian nuclear waste. Congress set the initial fee at one tenth of one cent, per kilowatt hour of electricity generated from a commercial nuclear power plant, with the Energy Department to annually review the level of funding and if necessary adjust the fee to ensure it covered the cost of the repository program. The fee, however, was never modified while the government never used the collected funds for their intended purpose, and as a result the Waste Fund has accumulated a balance of more than $34 billion (including accrued interest).
In 2013, the U.S. Court of Appeals for the District of Columbia determined that there was no longer a rational basis to collect the fee, and in 2014 the Energy Department suspended collection. The Blue Ribbon Commission on America's Nuclear Future in its 2012 report noted that numerous executive and congressional actions involving budget rules that were intended to help reduce the deficit had made the fund "effectively inaccessible" for its intended purpose, and called for establishment of a new system.
New Dedicated Funding Mechanism
The measure requires the Energy Department to establish new fees to finance the collection and storage of civilian nuclear waste — although those fees could not be collected until the Nuclear Regulatory Commission approves further construction of the Yucca repository, after which they could be used for certain specified activities, including maintenance and monitoring activities, test and evaluation facilities, and certain transportation costs. Collected fees could not be used for the costs of operating the Yucca repository until after the site first receives nuclear waste.
(It is expected the new fees, like the currently suspended fees, would be imposed on commercial nuclear power plants that generate electricity.)
Unlike the current system, where fees were collected regardless of the fact they were never spent on nuclear waste storage, the Energy Department would be required to set the fee at a level sufficient to cover just 90% of the amount expected to be appropriated that year for the federal government's civilian nuclear waste disposal program — to ensure that what is collected is actually spent.
And to address the current budgetary rules that make it nearly impossible to spend balances from the Waste Fund, the bill provides that collected fees will be credited as "offsetting collections" that directly offset discretionary spending made by appropriations for the nuclear waste program.
The measure requires the Energy Department to annually submit multiyear budget proposals on the financial condition and operations of the Waste Fund, rather than every three years as is currently required.
Other Provisions
The measure requires the Environmental Protection Agency to determine whether it should update regulations regarding the protection of the general environment from offsite releases of radioactive material in waste repositories.
It permits the director of the Energy Department's Office of Civilian Radioactive Waste Management to serve up to two five-year terms, and requires the director to be appointed from persons who have extensive expertise and experience in organizational and project management. The director may serve up to one additional year following the expiration of his or her term, or until a new director is confirmed. The office is responsible for disposing of the nation's civilian and military nuclear waste and spent nuclear fuel.
It also prohibits the disposal of nuclear waste in ocean waters or in the seabed below, and it expresses the sense of Congress that the United States and Canada should not allow permanent or long-term storage of radioactive waste near the Great Lakes.
