ML18288A542

Respondents' Motion to Dismiss

ML18288A542
Person / Time
Site:	06300001
Issue date:	10/15/2018
From:	Andrew Averbach, Julie Ezell, Mullins C NRC/OGC, State of NV, Office of the Attorney General
To:	US Federal Judiciary, US Court of Appeals for the District of Columbia Circuit
References
18-1232 1755212
Download: ML18288A542 (136)

Text

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT STATE OF NEVADA, ) Petitioner, ) ) v. ) No. 18-1232 ) UNITED STATES NUCLEAR REGULATORY

) COMMISSION and DAVID A. WRIGHT , ) ) Respondents.

) RESPONDENTS' MOTION TO DISMISS This case presents a challenge to a Nuclear Regulatory Commission (NRC) Commissioner's decision not to recuse himself from the licensing proceeding for a proposed nuclear waste repository at Yucca Mountain

, Nevada. This Court ploughed th e same ground in 2014 in Nye County v. NRC

. As in Nye County , the petitioner (here, the State of Nevada) asks this Court to overturn a Commissioner's recusal decision on the basis of the Commissioner's prior statements related to the proposed repository. As in Nye County, Nevada's arguments are before the Court on a petition for review under the Nuclear Waste Policy Act (NWPA). As in Nye County, the licensing proceeding is not complete. And as in Nye County, the petition for review warrants dismissal because "[t]he challenged order is neither final nor ripe for review." Nye County v. NRC, No. 13-1260 (D.C. Cir. Feb. 21

, 2014) (Document #1480968)

(per curiam)

(citation omitted). USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 1 of 24 (Page 1 of Total) 2 BACKGROUND I. The license application and legal challenges before the NRC The NWPA directs the NRC to consider an application submitted by the Department of Energy (DOE) for authorization to construct a repository for the disposal of high

-level waste and spent nuclear fuel.

42 U.S.C. § 10134(d). On June 3, 2008, DOE submitted an application for such a facility at Yucca Mountain , Nevada. See 73 Fed. Reg. 34,348 (June 17, 2008), corrected, 73 Fed. Reg. 40,883 (July 16, 2008).

In October 2008 , the NRC issued a notice of hearing, allowing persons with an interest to seek intervention in the proceeding. 73 Fed. Reg. 63,029 (Oct. 22, 2008). In Ma y 2009, the NRC's Atomic Safety and Licensing Board Panel admitted eight parties, including Nevada, to the proceeding and admitted for adjudicatory hearing approximately 300 contentions (i.e., legal or factual claims challenging issuance of the construction authorization). U.S. Department of Energy (High-Level Waste Repository), LBP 06, 69 N.R.C. 367 (2009).

Additional parties and contentions were subsequently admitted. See, e.g., U.S. Department of Energy (High-Level Waste Repository), LBP 29, 70 N.R.C. 1028 (2009).

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 2 of 24 (Page 2 of Total) 3 B. The DOE motion to withdraw On March 3, 2010, DOE filed a motion to withdraw its application with prejudice. Five groups sought intervention in the proceeding to oppose DOE's motion, including the National Association of Regulated Utility Commissioners (NARUC), based on their contention that "DOE lack[ed] the authority under the NWPA to withdraw the [a]pplication

."1 On June 29, 2010, the Board issued an order granting these groups

' petition to intervene and denying DOE's motion to withdraw. U.S. Department of Energy (High-Level Waste Repository), LBP-10-11, 71 N.R.C. 609 , 6 47-49 (2010). On September 9, 2011, the Commission issued a decision announcing that it found "itself evenly divided on whether to take the affirmative action of overturning or upholding the Board's decision." U.S. Department of Energy (High-Level Waste Repository), CLI 07, 74 N.R.C. 212 (2011). The Commission also directed the Board to "complete all necessary and appropriate case management activities, including disposal" of the matters before it.

Id. at 212. The Board subsequently issued a decision suspending the proceeding in

1 To demonstrate that it had representational standing to raise this contention before the NRC, NARUC submitted an affidavit signed by Respondent David A. Wright, who at the time was serving as one of NARUC's Member-Commissioners. See Recusal Request (Exh. 1 to this motion), Exh. 1. USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 3 of 24 (Page 3 of Total) 4 accordance with the Commission's direction. U.S. Department of Energy (High-Level Waste Repository), LBP 24, 74 N.R.C. 368 (2011).

C. Litigation and subsequent NRC actions On July 29, 2011, the parties that had opposed D OE's motion to withdraw its application before the agency filed a petition for mandamus in this Court seeking relief against the NRC

.2 The petitioners alleged that NRC had improperly withheld agency action required by the NWPA by refusing to continue the proceeding while it still had appropriated funds available. NRC responded that it did not have sufficient funds to make significant progress toward completi on. In August 2013 , the Court issued a writ of mandamus directing NRC to resume the licensing process "unless and until Congress [directs] otherwise or there are no appropriated funds remaining

." In re Aiken Cty., 725 F.3d 255, 26 7 (D.C. Cir. 2013) (Aiken II). Consistent with the Court's direction, the NRC Staff has completed its safety analysis concerning the proposed repository and has completed a supplemental environmental impact statement, and the agency continues to make use of the

2 This petition was the second one brought before th is Court related to the issue. The first case, filed in 2010, challenged "DOE's attempt to withdraw" its construction authorization application and DOE's "apparent decision to abandon development of" the repository. This Court dismissed the petition as unripe and no t justic iable. In re Aiken Cty., 645 F.3d 428, 43 1 (D.C. Cir. 2011) (Aiken I). USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 4 of 24 (Page 4 of Total) 5 limited funds remaining to it. The adjudicatory proceeding remains suspended pending future appropriation determinations.

D. Appointment of Commissioner Wright and Nevada's recus al request Respondent David A. Wright was sworn in as a Commissioner of the NRC on May 30, 2018. He is currently serving the remainder of a five

-year term ending June 30, 2020

. On June 7, 2018, Nevada filed a request seeking Commissioner Wright's recusal from the Yucca Mountain licensing process. See Exhibit 1. Nevada asserted, generally, that Commissioner Wright

's prior statements constitute evidence of bias and prevent him from serving as an objective decisionmaker with respect to the application. On July 2, 2018, Commissioner Wright denied the request, explaining that he had not pre

-judged, and that he could impartially consider, the application. See Exhibit 2. On August 29, 2018, Nevada filed a petition for review challenging this decision

. USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 5 of 24 (Page 5 of Total) 6 ARGUMENT I. Nevada's petition for review i s properly considered solely under 42 U.S.C. § 10139(a)(1)(A) and does not satisfy t hat provision's limited waiver o f sovereign immunity. A. Nevada's election not t o proceed via mandamus precludes review under 42 U.S.C. § 10139(a)(1)(C)

. Section 119(a)(1) of the NWPA grants the courts of appeals original and exclusive jurisdiction over any civil action

- (A) for review of any final decision or action of the Secretary, the President, or the Commission under this subtitle 3; [or] - (C) challenging the constitutionality of any decision made, or action taken, under any provision of this subtitle[.]"

42 U.S.C. § 10139(a)(1) (emphasis added).

Nevada apparently predicates its claim of jur isdiction on both of these provisions. The distinction between subsections (a)(1)(A) and (a)(1)(C) is consequential (although all roads eventually lead to the conclusion that dismissal is warranted

). Unlike petitions for "review" arising under subsection (a)(1)(A), "challeng[es]"

3 As enacted, the NWPA uses the word "subtitle." The U.S. Code Annotated uses the word "part." We have used the original statutory language. The term "this subtitle" refers to subtitle A ("Repositories for Disposal of High

-Level Radioactive Waste and Spent Nuclear Fuel")

of Title I ("Disposal and Storage of High

-Level Radioactive Waste, Spent Nuclear Fuel, and Low

-Level Radioactive Waste"). Subtitle A comprise s sections 111 through 125 of the NWPA, 42 U.S.C. §§ 10131-10145. USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 6 of 24 (Page 6 of Total) 7 based on the asserted unconstitutionality of NRC "actions" or "decisions" under subsection (a)(1)(C) are not expressly required by statute to be "final."4 Indeed, an action arising under subsection (C) is not, under the terms of the statute, a petition for "review" at all (unlike civil actions raised under subsections (A), (D), (E), and (F)). Rather, a constitutional "challenge" to a Commissioner's recusal decision brought under subsection (C) is properly raised as a petition for a writ of mandamus, which a federal court would have jurisdiction to consider (subject to Article III and nonstatutory justiciability requirements) as a freestanding constitutional claim. See. e.g., Amos Treat & Co. v. SEC, 306 F.2d 260, 267 & n.11 (D.C. Cir. 1962) (recognizing original federal question jurisdiction in district court , "not by way of review of the Commission's orders

," over due process claim challenging objectivity of agency commissioner concerning ongoing proceeding); Ass'n of Nat'l Advert

. v. FTC, 627 F.2d 1151, 1156

-57 & n.9 (D.C. Cir. 1979)

(holding that district court had federal question jurisdiction to entertain due process claim based on alleged bias of agency Commissioner in connection with pending

4 The same is true of civil actions arising under subsection (a)(1)(B), which provides for original jurisdiction in the courts of appeals for actions alleging a failure "to make any decision, or take any action, required under" subtitle A.

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 7 of 24 (Page 7 of Total) 8 rulemaking, and noting the "liberal trend toward use of mandamus to consider disqualification claims"

).5 This Court recognized the distinction between its mandamus authority and its jurisdiction to entertain petitions for review in the Nye County proceedings. In that case, petitioners filed both a claim for mandamus relief as well as an expedited petition for review challenging the decision of the NRC's former Chairman not to recuse herself from the Yucca Mountain licensing proceeding. The Court entertained the case first on mandamus and denied the petition on the ground that petitioners had not shown a clear and indisputable right to relief. Nye County v. NRC, No. 13-1260 (D.C. Cir. Oct. 22, 2013)

(Document #1462418)

(per curiam).

The same day, the Court order ed that the case proceed under the petitioners' alternate theory as a petition for review (i.e., under 42 U.S.C. § 10139(a)(1)(A)). Id. (D.C. Cir. Oct. 22, 2013) (Document #1462434), and the NRC moved to dismiss the petition on finality and ripeness grounds. The petitioners opposed the NRC's motion, asserting, inter alia, that "[a] petition for review of a Commissioner's action in violating constitutional rights during the licensing process does not require finality." I d., Response to Motion to Dismiss (D.C. Cir.

5 Given the existence of federal question jurisdiction over such matters, subsection (a)(1)(C) make s clear that constitutional challenges arising under the NWPA are properly raised in the courts of appeals, rather than in district court.

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 8 of 24 (Page 8 of Total) 9 Dec. 13, 2013)

(Document #1470354)

, at 7-9 (capitalization in original altered). But this Court rejected the petitioners' arguments and held that the petition was neither final nor ripe for review. Id. (D.C. Cir. Feb. 21. 2014) (Document #1480968) (per curiam).

By its own election in this case

, Nevada has not invoked the Court's mandamus authority. Rather, it has chosen to file a "petition for review" that challenges Commissioner Wright's decision not to recuse himself as arbitrary and capricious, an abuse of discretion, and contrary to law (including being "contrary to Constitutional right")

. Given that Nevada does not seek (and has not alleged a basis for) mandamus relief and seeks only "review" of the Commissioner's decision , its petition is cognizable solely under 42 U.S.C. § 10139(a)(1)(A). A s such (and as the Court determined in Nye County), it must comply with the statutory requirements, including finality, for claims brought under that provision. And as we demonstrate below (and as the Court determined in Nye County

), it cannot do so. B. Nevada's petition does not seek review o f a decision that i s either "final" or "o f the Commission

." Waivers of the Federal Government's sovereign immunity must be narrowly construed. E.g., Brown v. Secretary of the Army, 78 F.3d 645, 649 (D.C. Cir. 1996). In this case, no waiver exists because Commissioner Wright's decision not USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 9 of 24 (Page 9 of Total) 10 to recuse himself is neither "final" nor a decision "of the Commission

," as expressly required by 42 U.S.C.

§ 10139(a)(1)(A). 1. Commissioner Wright's decision i s not "final." 1. This Court has routinely rejected requests for interlocutory review of recusal decisions in administrative proceedings; instead, th e Court has consistently required those challenging a decision not to recuse to obtain a final agency action in the agency proceeding before seeking judicial review. As the district court of this Circuit explained in denying a challenge to an NRC Commissioner's decision not to recuse himself from a pending adjudication, This Circuit has repeatedly and specifically stated that, in all but rare cases, a motion challenging the action of an agency official is not cognizable prior to a final administrative decision or otherwise than pursuant to specific, applicable statutory procedures.

San Luis Obispo Mothers for Peace v. Hendrie, 502 F. Supp. 408, 41 0-11 (D.D.C. 1981) (denial of request to disqualify NRC Commissioner properly reviewed as part of review of final agency action); see also SEC v. R.A. Holman & Co, 323 F.2d 284, 28 8 (D.C. Cir. 1963)

("The bare contention of lack of due process does not operate to relieve the appellee from the requirement that he exhaust administrative remedies

."). In fact, nearly every decision from this Court reviewing requests to disqualify agency officials has been made during review of a final agency action.

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 10 of 24 (Page 10 of Total) 11 Nuclear Info. & Res. Ser. v. NRC, 509 F.3d 562 (D.C. Cir. 2007) (NRC Commissioner); Waterbury Hotel Mgmt. LLC v. NLRB, 314 F.3d 645 (D.C. Cir. 2003) (NLRB ALJ); Power v. FLRA, 146 F.3d 995 (D.C. Cir. 1998) (FLRA Board member); Metro. Council of NAACP Branches v. FCC, 46 F.3d 1154 (D.C. Cir. 1995) (FCC Chairman); Com. Broad.

of Boston, Inc. v. FCC, 546 F.2d 1022, 1026

-28 (D.C. Cir. 1976) (intervenor counsel).

And the seminal disqualification case in this Circuit

, Cinderella Career & Finishing Schools v. FTC, 425 F.2d 583 , 589-9 1 (D.C. Cir. 1970), involves review of a final agency action.

2. The requirement of a "final decision" before seeking review of the recusal decision in this case is consistent with the general finality requirement in agency cases.

As a general matter, two conditions must be satisfied for agency action to be "final": First, the action must mark the "consummation" of the agency

's decisionmaking process

-it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which "rights or obligations have been determined," or from which "legal consequences will flow."

Bennett v. Spear, 520 U.S. 154, 157 (1997); see , e.g., Blue Ridge Envt

l. Def. League v. NRC, 668 F.3d 747, 753-55 (D.C. Cir. 2012).

Here, Commissioner Wright's decision clearly does not mark the "consummation" of the agency's decisionmaking process. Moreover, the decision does not impose an "obligation" on any of the parties before it or determine any USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 11 of 24 (Page 11 of Total) 12 claims at issue in the proceeding. Nor does the decision require the parties to take any affirmative steps or impose any liability. Thus, no "rights or obligations have been determined

," and no "legal consequences will flow" from this interlocutory and procedural decision. Rather, the "final decision" in this proceeding will be the decision granting or denying DOE's application for a construction authorization , and Commissioner Wright's decision denying the motion seeking his recusal is but one determination issued along the path to a final decision. Section 119 of the Act should not be read to allow challenges to every such interlocutory decision issued during this process, and there is no reason to deviate from case law squarely holding that, for purposes of seeking appellate review of agency action, a denial of a motion to recuse is not a final decision. 3. Decisions of district court judges not to recuse themselves are not "final decisions" within the terms of the applicable jurisdictional statute, 28 U.S.C.

§ 1291. See , e.g., Rosen v. Sugarman, 357 F.2d 794, 796 (2d Cir. 1966)

see also 13D Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure , § 3553 , at 151 (3d ed. 2008) ("Obviously, though, refusal of a judge to recuse is not a final order and therefore is not appealable as of right."); 15B id., § 3914.22, at 119 (2d ed. 1991) ("The rule is well settled that denial of a motion to disqualify the trial judge is not final.").

Notably, this jurisdictional statute contains language that is materially identical to Section 119(a)(1)(A). Compare 42 U.S.C.

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 12 of 24 (Page 12 of Total) 13 § 10139(a)(1)(A) ("[T]he United States courts of appeals shall have original and exclusive jurisdiction over any civil action for review of any final decision or action of - the Commission[.]") (emphasis added) with 28 U.S.C. § 1291 ("The courts of appeals - shall have jurisdiction of appeals from all final decisions of the district courts of the United States[.]") (emphasis added).

This rule applies with full force to petitions for review filed under the NWPA. 4. To be sure, this Court has held that in "rare circumstances" involving recusal it will entertain "extraordinary prejudgment claims prior to final agency action." Ass'n of Nat

'l Advert., 627 F.2d at 1156. But jurisdiction in such cases derive s not from a statutory scheme for the review of final agency action, but , rather , pursuant to federal courts' mandamus authority. See Amos Treat, 306 F.2d at 267 & n.11; Ass'n of Nat'l Advert., 627 F.2d at 1157; see also Cobell v. Norton , 334 F.3d 1128, 1139 (D.C. Cir. 2003) (mandamus is an available remedy for denial of recusal motion "where the party seeking the writ demonstrates a clear and indisputable right to relief").

Moreover, even assuming arguendo that Nevada could argue in the context of a petition for review that this Court should consider non

-final decisions, Nevada does not assert in its petition for review that this case is a "rare" or "extraordinary" situation , as required by Association of National Advertisers

, or presents a "patent violation of agency authority" or a "manifest infringement of substantial rights USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 13 of 24 (Page 13 of Total) 14 irremediable by the statutorily

-prescribed method of review

," Nader v. Volpe, 466 F.2d 261, 266 (D.C. Cir. 1972). Nor could it. The risk faced in this case is n o different than the risk faced in any case when an adjudicatory officer (whether a judge or an agency Commissioner) denies a recusal request and a reviewing court might ultimately determine that that decision was in error. While the topic at issue here-the licensing of a high

-level nuclear waste repository

-may be considered high-profile, there is nothing "rare" or "extraordinary" about Nevada's claims. There is no reason to short-circuit the normal process for reviewing challenges to recusal decisions.

5. Finally

, the collateral order doctrine is not applicable to recusal cases. See, e.g., Rosen, 357 F.2d at 796. The "collateral order" doctrine allows courts to review administrative decisions that do not end the proceeding if the challenged decision (1) conclusively determines a disputed question; (2) resolves an important issue completely separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546

-47 (1949); Sierra Club v. U.S. Dep't. of Ag., 716 F.3d 653, 657-58 (D.C. Cir. 2013). But as we noted above, this Court routinely reviews denials of recusal claims when reviewing the final judicial decision or the final agency administrative action. Thus, Nevada has no basis to argue that USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 14 of 24 (Page 14 of Total) 15 Commissioner Wright's decision "is effectively unreviewable on appeal from the final judgment," i.e., a final decision on the construction authorization application

. 2. Nevada does not challenge a decision "o f the Commission

." Section 119(a)(1)(A) of the NWPA limits its application to decisions "of the Commission."

The statute thus applies only to a decision by the Commission as a complete body, not a decision by an individual Commissioner, such as a respon se to a recusal request.

6 Nevada itself has recognize d the distinction between a "decision of the Commission" and a decision by an individual Commissioner responding to a recusal request. Indeed, at the outset of its recusal request, Nevada acknowledge d the "long-standing Commission practice whereby recusal matters are addressed to and decided by the individual commissioner, not the Commission itself." Exh. 1 at 2 n.1 (emphasis added). Although a final decision of the Commission on the licensing of a repository would be reviewable under subsection (a)(1)(A) and would incorporate Commissioner Wright's interlocutory determination not to recuse himself, the decision that Nevada challenges is not a decision "of the Commission

" pursuant to its Subtitle A authority and is therefore not reviewable under that provision.

6 Section 2 of the NWPA likewise defines "Commission" as the "Nuclear Regulatory Commission," not an individual Commissioner. 42 U.S.C. § 10101(7); see also 10 C.F.R. § 1.1(b) (defining the "Commission

" as the "five members - or a quorum thereof").

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 15 of 24 (Page 15 of Total) 16 II. Nevada has not identified a basis for its constitutional claim that would support mandamus relief and that it raised below

. We understand Nevada also to challenge Commissioner Wright's decision under 42 U.S.C. § 10139(a)(1)(C), which grants to the courts of appeals jurisdiction to consider challenges to the "constitutionality of any decision made . . . under any provision of this subtitle." As we noted earlier, such claims are not properly raised as petition s for review and must instead be raised pursuant to the Court's mandamus authority. But even had its claims been so framed, dismissal would still be warranted.

1. To obtain a writ of mandamus, Nevada must show that it has a "clear and indisputable right" to such relief. Gulfstream Aerospace Corp. v. Mayacamas Corp., 48 5 U.S. 271, 289 (1988). Moreover, mandamus is available only if there is no other adequate remedy available to a petitioner. Nat'l Min. Ass'n v. Mine Safety & Health Admin., 599 F.3d 662, 673 (D.C. Cir. 2010) (citations omitted).

Nevada's petition is devoid of any allegation that Commissioner Wright has committed a violation of the Constitution that would support a "clear and indisputable right" to extraordinary mandamus relief. Moreover, Nevada cannot credibly assert that a petition for review at the end of the adjudicatory proceeding would not be an adequate remedy for the injury that it might suffer if Commissioner Wright remains active in the proceeding. See Nye County v. NRC , USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 16 of 24 (Page 16 of Total) 17 No. 13-1260 (D.C. Cir. Oct. 22, 2013) (per curiam) (Document #1462418)

(explaining, as one of two bases for denying the petitioners' request, that mandamus relief is only available if there is no other adequate remedy available).

2. Even if Nevada had sought and alleged a basis for mandamus relief and an adequate remedy were not already available to it , Nevada's claim would still warrant dismissal because it did not identify in its request for recusal to Commissioner Wright any provision of the U.S. Constitution that it contends was violated. Although Nevada cited to "due process of law" as a "general principle" supporting recusal and referred to case law supporting the "fundamental requirements of fairness," Exh. 1 at 3, 7, it premised its argument on its assertion that the standards to be employed by Commissioner Wright are the statutory standards governing disqualification of federal judges, as set forth at 28 U.S.C.

§ 455 , Exh. 1 at 3. And while Nevada cited to a Supreme Court case suggesting that there might be an "unconstitutional risk of actual bias" in a criminal case in which the judge had made a decision relating to the prosecution's decision to seek the death penalty, it did so to support its assertion that the result in that case "is in accord with [its] discussion of 28 U.S.C. § 455.

" Exh. 1 at 7.

It is axiomatic that "no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted."

Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50

-51 (1938). Exhaustion, in USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 17 of 24 (Page 17 of Total) 18 other words, is the default process. It is presumptively required, whether an underlying statute provides for exhaustion or not. See , e.g., Ass'n of Flight Attendants

v. Chao , 493 F.3d 155 , 1 58 (D.C. Cir. 2007); Boivin v. U.S. Airways , 446 F.3d 148, 153-54 (D.C. Cir. 2006). And NRC regulations require hearing participants not only to exhaust agency remedies before seeking judicial review, 10 C.F.R. § 2.341(b)(1), but also to demonstrate that the issues either were raised at the proceeding or that they could not have been raised

, 10 C.F.R. § 2.341(b)(2).

Where, as here, "an agency's regulations . . . require issue exhaustion in administrative appeals," the Supreme Court has noted that courts generally "ensure against the bypassing of that requirement by refusing to consider unexhausted issues." Sims v. Apfel, 530 U.S. 103, 108 (2000).

The requirement to exhaust administrative remedies is a matter of "simple fairness." Cape Cod Hosp. v. Sebelius, 630 F.3d 203, 211 (D.C. Cir. 2011)

see also United States. v. L.A. Tucker Truck Lines, 344 U.S. 33, 37 (1952) (stating the "general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice"). This requirement gives agencies and other interested parties an opportunity to address particular claims before they are presented in court and is sound judicial policy. Requiring "review within the [agency] gives the [agency] the opportunity to correct its own errors, and thereby USCA Case #18-1232 Document #1755212 Filed

10/15/2018 Page 18 of 24 (Page 18 of Total) 19 avoid unnecessary litigation." Benoit v. U.S. Dep't. of Ag., 608 F.3d 17, 23 (D.C. Cir. 2010)

(citation and quotation marks omitted

). Here, Nevada, at best, has vaguely asserted that the Commissioner's decision violates the U.S. Constitution. But Nevada cannot simply identify "due process" as a "general principle

," with no case law or analysis indicating that the conduct ascribed to Commissioner Wright rises to the level of a constitutional violation.

Having failed to exhaust its remedies as to its constitutional claim , Nevada is barred from raising that issue here.

7 III. Regardless o f whether i t i s presented a s a petition for review or for a writ o f mandamus, Nevada's claim i s not ripe for review. The ripeness requirement is "drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction." Reno v. Catholic Soc. Servs., 509 U.S. 43, 57 n.18 (1993). When a dispute is not ripe, it is not justiciable and should not be considered by a court. Toca Producers v. FERC, 411 F.3d 262, 265-67 (D.C. Cir. 2005).

Ripeness has particular significance in the context of challenges to federal agency decisions. The Supreme Court has explained that the ripeness doctrine protects both courts and agencies:

7 And to the extent that Nevada is deemed to have raised its constitutional arguments below, its arguments before this Court must necessarily be confined to the same "general principles" it raised before Commissioner Wright.

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 19 of 24 (Page 19 of Total) 20 Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.

Abbott Labs.

v. Gardner, 387 U.S. 136, 148

-49 (1967) (footnote omitted).

As this Court has stated, "[w]hen [it] appl[ies] the ripeness doctrine to review of agency actions, '[it] balance[s] the interests of the court and the agency in delaying review against the petitioner

's interest in prompt consideration of allegedly unlawful agency action.'" In re Aiken County , 645 F.3d 428, 434 (D.C. Cir. 2011) (Aiken I) (quoting Toca Producers, 411 F.3d at 265

). "[W]hen an agency decision may never have its effects felt in a concrete way by the challenging parties, the prospect of [the Court] entangling [itself] in a challenge to such a decision is an element of the fitness determination as well."

Devia v. NRC , 492 F.3d 421, 424 (D.C. Cir. 2007) (citation and quotation marks omitted). "Hence, a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all."

Id. at 425 (quotation marks omitted). The Court applied these principles in Aiken I. There, the Court deemed unripe a challenge brought under the NWPA to DOE's attempt to withdraw its application to construct the Yucca Mountain repository. The Court noted that the USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 20 of 24 (Page 20 of Total) 21 entire controversy could be mooted if the Commission were to decline to review or affirm a prior decision of the NRC's Licensing Board denying the motion to withdraw. 645 F.3d at 435. Moreover, the Court emphasized that the Board had not completed its review of the license application and that the possibility remained that the repository might not be licensed (and that such a determination could eventually be challenged in court). Id. And the Court ultimately determined that any delays associated with having to await a final outcome of the licensing process would not substantially prejudice the petitioners' rights. Id. So too here. Even assuming that jurisdiction exists, there are compelling reasons not to take review of this case now. Nevada has challenged the license application and may ultimately prevail in the proceeding, eliminating the need for subsequent review. Indeed, that is one reason that

-absent some "rare" or "extraordinary" event demonstrating that parties clearly cannot receive a fair hearing-courts do not review recusal decisions before a final decision has been issued. Moreover, it is the principal reason underlying the Congressional mandate that appellate review of agency action be limited to "final orders." As th is Court determined when confronted with the identical scenario in Nye County, Nevada's challenge here is not ripe for review in light of the pendency of the construction authorization application. Nye County v. NRC, No. 13-1260 (D.C. Cir. Feb. 21, 2014) (per curiam) (Document #1462418).

Thus, regardless of whether Nevada's USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 21 of 24 (Page 21 of Total) 22 petition arises under 42 U.S.C.

§ 10139(a)(1)(A) or (a)(1)(C), dismissal is warranted for this reason alone.

CONCLUSION For the foregoing reasons, this Court should dismiss the petition for review.

Respectfully submitted, /s/ Andrew P. Averbach

_ ANDREW P. AVERBACH Solicitor (301) 415-1956 andrew.averbach@nrc.gov

/s/ Charles E. Mullins

__ CHARLES E. MULLINS Senior Attorney

/s/ Julie G. Ezell____ JULIE G. EZELL Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852 October 15, 2018 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 22 of 24 (Page 22 of Total)

CERTIFICATE OF COMPLIANCE Pursuant to Rule 32(g)(1) of the Federal Rules of Appellate Procedure and Circuit Rule 32(e)(2)(C), I hereby certify:

This document complies with the type

-volume limit of Fed. R. App. P. 32(a)(7)(B) and Circuit Rule 32(e) because, excluding the caption , signature block, and certificates, it contains 4 , 7 83 words, as calculated by Microsoft Word 2013. This document complies with the typeface and type style requirements of Fed. R. App. P. 32(a)(5) and 32(a)(6) because it was prepared 14

-point Times New Roman font.

/s/ Andrew P. Averbach Andrew P. Averbach Solicitor U.S. Nuclear Regulatory Commission USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 23 of 24 (Page 23 of Total)

CERTIFICATE OF SERVICE I certify under penalty of perjury that on October 15, 2018, I filed Respondents' Motion to Dismiss with the U.S. Court of Appeals for the District of Columbia Circuit by filing it with the Court's CM/ECF system.

That method is calculated to serve:

Martin G. Malsch Egan, Fitzpatrick, Malsch & Lawrence, PLLC 1776 K Street, N.W., Suite 200 Washington, DC 20006 /s/ Andrew P. Averbach Andrew P. Averbach Solicitor U.S. Nuclear Regulatory Commission USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 24 of 24 (Page 24 of Total)

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES A. Parties and Amici The Parties are the State of Nevada, the United States Nuclear Regulatory Commission, and, in his official capacity, Commissioner David A. Wright. B. Ruling Under Review The ruling under review is the Decision on the Motion of the State of Nevada for Recusal of Commissioner David A. Wight, dated July 2, 2018. It is attached a s Exhibit 2 to this motion.

C. Related Cases There are no related cases.

/s/ Andrew P. Averbach Andrew P. Averbach Solicitor U.S. Nuclear Regulatory Commission USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 1 of 1 (Page 25 of Total)

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See e.g., Commonwealth Edison Co. (Zion Station Units 1 and 2)See

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See e.g., Arnett v. Kennedy, Dr. Bonham's Casesee e.g.,

Houston Lighting & Power Company (South Texas Project, Units 1 and 2)Public Service Electric & Gas Company (Hope Creek Generating Station, Unit 1)

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See U.S. Department of Energy (High-Level Waste Repository)

See see also USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 4 of 89 (Page 29 of Total)

Seesee alsoSee SeeUSCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 5 of 89 (Page 30 of Total)

Public Service Electric & Gas Company (Hope Creek Generating Station, Unit 1)See Public Service Electric & Gas Company (Hope Creek Generating Station, Unit 1),

supra Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site)

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Williams v. Pennsylvania Williams,TWA v. CABSee Entergy Nuclear Operations (Pilgrim Nuclear Power Station),TWA v. CAB Am. Cyanamid Co. v. FTC American General Ins. Co. v. FTC Amos Treat & Co. v. SEC USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 7 of 89 (Page 32 of Total)

SeeSeeSee USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 8 of 89 (Page 33 of Total)

SeeSee

SeeSee NEI v. EPA U.S. Department of Energy (High-Level Waste Repository)

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SeeSee See See E.g.,Nuclear Information and Re source Service v. NRC SeeSee USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 10 of 89 (Page 35 of Total)

Id.See See supra

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signed electronically

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The State of Nevada's Request that Commissioner Wright be Recused

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(signed electronically)USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 19 of 89 (Page 44 of Total)

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 20 of 89 (Page 45 of Total) 2 compiled by me in the course of a regularly conducted business activity of Egan Fitzpatrick Maisch & Lawrence PLLC. The excerpts are true and correct copies and were made by me in the course of a regularly conducted activity of Egan Fitzpatrick Maisch & Lawrence PLLC. I did not redact or otherwise alter any of the extracts or the orig i nal exhibits from which the extracts were created. 5. I declare under penalty of perjury that the foregoing statements are true and correct. Further, Affiant says not. LAURIE BORSKI STATE OF TEXAS ) ) COUNTY OF GUADALUPE ) SWORN TO, and SUBSCRIBED before me by LAURIE BORSKI on the 3CJ day of May, 2018. DEANNA WAITE Notary Public State of Texas My Comm. Exp. 01-23-2019 OJ ruulf11Ll£uJa otary Public, State of Texas oll23}1oJCJ My Commission Exp ires: USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 21 of 89 (Page 46 of Total)

Exhibit 1 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 22 of 89 (Page 47 of Total)

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of: Docket No. 63-001-HLW U.S. DEPARTMENT OF ENERGY ASLBP NO. 09-892-HLW-CAB04 (High Level Waste Repository) March 15, 2010

NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS PETITION TO INTERVENE

James Bradford Ramsay G ENERAL COUNSEL Robin J. Lunt

A SSISTANT G ENERAL COUNSEL 1101 Vermont Avenue, Suite 200 Washington, DC 20005 Telephone: 202-898-2200 Attorneys for Proposed Intervenor, National Association of Regulatory Utility Commissioners USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 23 of 89 (Page 48 of Total)

NARUC PETITION TO I NTERVENE 1 Attachment 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of: Docket No. 63-001-HLW U.S. DEPARTMENT OF

ENERGY ASLBP NO. 09-892-HLW-CAB04 (High Level Waste Repository) March 15, 2010 AFFIDAVIT OF THE HONORABLE DAVID WRIGHT, NARUC MEMBER COMMISSIONER, IN SUPPORT OF THE STANDING OF THE NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS David Wright, being duly sworn, states as follows:

1. My name is David Wright. I have been a Commissioner on the South Carolina Public Service Commission and a voting member of the National Association of Regulatory Utility Commissioners (NARUC) since March 3, 2004. I am also currently the Chairman of the NARUC's Nuclear Issues-Waste Manage ment Disposal Subcommittee, as well as, NARUC's Washington Action and Electricity Committees. In 2005, I became a National Co-Chairman of the Yucca Mountain Task Force, a national group of commissioners, businesses, and independent organizations focused on promoting the expeditious opening of the Yucca Mountain repository in Nevada. In December 2006, I became National Chairman of the Nuclear Waste Strategy Coalition (NWSC). I have served as a representative and board member of NWSC since becoming a commissioner. I have also served as the President of the Southeastern Association of Regulatory Utility Commissioners. I receive official mail at: South Carolina Public Service Commission, 101 Executive Center Drive, Columbia, SC 29210.

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NARUC PETITION TO I NTERVENE 22. NARUC, founded in 1889, includes as members commissioners at regulatory agencies in the fifty States, the District of Columbia, Puerto Rico, and the Virgin Islands. These State employees are charged with regulating the rates and conditions of service associated with the intrastate operations of electric, natural gas, water, and phone utilities.

3. In February 2010, at its recent winter meetings held in Washington, D.C., NARUC passed a "Resolution on National Policy for Management and Disposal of Spent Fuel from

Commercial Nuclear Power Plants." A copy of the resolution is attached. That resolution [1]

instructs NARUC to "call upon the Secretary of Energy not to withdraw the Yucca Mountain license application from the review process underway at the NRC," [2] points out that " NARUC and State utility commissions as stakeholders in the disposal policy on behalf of ratepayers-who continue to bear the ultimate cost of the fee payments to the Fund-should play an active role in representing their views to the Blue Ribbon Commission, drawing upon the multiple NARUC nuclear waste policy resolu tions adopted over the past 25 years, and [3] specifically instructs NARUC to "convey to the (Nuclear Regulatory) Commission that any alternative that leaves the spent nuclear fuel at present storage sites indefinitely, whether managed by the owners or by the government, is inconsistent with the NWPA findings of 1982 and would break faith with the communities which host those reactors with the understanding that the spent fuel would be removed by the government."

4. Like almost all of my fellow NARUC State Commissioners, I am charged by State statute with overseeing the operations of electric utilities operating in my State. For example, this past February, my Commission unanimously approved a request by our State's largest utility, South USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 25 of 89 (Page 50 of Total)

NARUC PETITION TO I NTERVENE 3Carolina Electric & Gas (SCE&G), to join with a State-owned utility to build two new nuclear reactors. We approved rate increases to finance SCE&G's $5.4 billion dollar investment in the new nuclear plant, which will be located just 30 miles north of our State's capital in Columbia.

Order No. 2009-104(A) (March 2, 2009) (Docket No. 2008-196-E) Like many of my NARUC colleagues, limiting both the expense and the risks 1 of on-site storage of spent nuclear fuel is a part of my broader regulatory responsibilities under the laws of my State.

5. The Nuclear Waste Policy Act (NWPA), enacted in 1982, made the federal government responsible for safe and final disposal of such wast

e. Under the Act, utilitie s pay fees for disposal through the Nuclear Waste Fund (NWF).

Those fees are passed through to ratepayers.

Although 1 Safe operation of electric facilities, including nuclear plants, is a key focus of my Commission's oversight.

See, e.g., CHAPTER 103 South Carolina Code of Regulations, ARTICLE 3. ELECTRIC SYSTEMS:

26 S.C. Code Ann. Regs. 103-312(2)(D)(e). "The electrical utility shall advise the commission . . . of the name, address and telephone number of the . . . persons, to be contacted in connection with . . . c. Engineering and/or Operations. . . . e. Emergencies during non-office hours."; 26 S.C. Code Ann. Regs. 103-313. "Inspection of Utility Plant. - A. Each utility shall . . . provide . . . a statement regarding the condition and adequacy of its plant, equipment, facilities and service . . . [and] . . . keep sufficient records to give evidence of compliance with its inspection programs."; 26 S.C. Code Ann. Regs.

103-315. "

A. Each electrical utility shall . . . report . . . each material incident [to] the operation of the electrical utility's property, facilities, or service including, but not limited to: (a) serious injury or death of any person; (b) evacuation; and (c) damage to a customer's or third party's property . . . Such first report shall later be supplemented . . . by a statement of the cause . . . and the measures, if any . . . taken to reduce the risk of similar incidents . . . B. Each electrical utility shall establish . . . procedures for analyzing, reporting, and minimizing the possibilities of any future incidents." 26 S.C. Code Ann. Regs. 103-347. "Each electrical utility . . . shall operate and maintain in a safe, efficient and proper condition all of the facilities and equipment." 26 S.C. Code Ann. Regs. 103-360. "The electric plant . . . shall be constructed, installed, maintained and operated in accordance with good engineering practice to assure, as far as reasonably possible, continuity of service . . . and the safety of persons and property. SubArticle 8 "SAFETY 26 S.C. Code Ann. Regs. 103-390. "As criteria of accepted good safety practice of the electrical utility, the commission shall use the applicable provisions of the standards listed in regulation 103-361." 26 S.C. Code Ann. Regs. 103-391. "A. Each electrical utility shall exercise reasonable care to reduce the hazards to which its employees, its customers and the general public may be subjected. B. Th e electrical utility shall give reasonable assistance to the ORS in the investigation of the cause of incidents and shall give reasonable assistance to the commission . . . in the determination of suitable means of preventing incidents. C. Each electrical utility shall maintain a summary of all reportable incidents." 26 S.C. Code Ann. Regs. 103-392. "Safety Program. Each electrical utility shall adopt and execute a safety program, fitted to the size and type of its operations. As a minimum, the safety program should: a. Require employees to use suitable . . . equipment in order that they may perform their work in a safe manner. b. Instruct employees in safe methods of performing their work. . . . d.

Establish liaison with appropriate public officials . . . in anticipation of a potential emergency. e. Establish an educational program to enable customers and the general public to recognize and report an electrical emergency."(emphasis added) These regulations are available online at: http://www.scstatehouse.gov/coderegs/c103.htm#103-305

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NARUC PETITION TO I NTERVENE 4utilities and their ratepayers continue to pay these charges, the United States Department of Energy (DOE), which manages the disposal program, failed to meet its statutory and contractual obligation to begin waste acceptance in 1998. To date, South Carolina's ratepayers have paid about $1.2 billion dollars in fees levied pursuant to the NWPA to develop a permanent storage site and effectively bear both the increased costs and risks of onsite storage. Cumulatively, ratepayers across the country, protected by my fellow NARUC Commissioners in other States, have contributed about $17 billion in fees.

6. Nuclear power supplies electricity to one out of every two homes a nd businesses in South Carolina. It accounts for 51.2 percent of the State's electricity according to the U.S. Energy Information Administration. There are seven nucl ear power plants in South Carolina along with a DOE site near Aiken, South Carolina that houses foreign spent fuel as well as defense high level nuclear waste.

2

7. Because nuclear power fuels about 20 percen t of the nation's electr icity supply, it raises both cost and safety issues for NARUC member State Commissioners across the country, especially for those where nuclear plants are located, i.e., in Arizona, Arkansas, California, Connecticut, Florida, Georgia, Illinois, Iowa, Kansas, Louisiana, Maryland, Minnesota, Mississippi, Missouri, Nebraska, New Hampshir e, New Jersey, New York, North Carolina, Tennessee, Texas, Vermont, Virginia, Washington, and Wisconsin. See, U.S. Energy 2 See, State Profiles, U.S. Energy Information Administration (Independent Statistics and Analysis) at:

<http://www.eia.doe.gov/cneaf/nuclear/page/at_a_glance/reactors/states.html> (last accessed March 15, 2010) (Lists 31 states that have commercial nuclear reactors, the generation and capacity trends, general locations, and State emissions levels. Profiles updated with 2007 emissions data on November 6, 2009.)

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NARUC PETITION TO I NTERVENE 5Information Administration, Independent Statistics and Analysis, States with Commercial Nuclear Industries, available online at:

http://www.eia.doe.gov/cneaf/nuclear/page/at_a_glance/reactors/states.html (Accessed March 12, 2010).

8. DOE's Final Environmental Impact Statement for the Yucca Mountain Geological

Repository concludes that not bui lding the repository could result in "widespread contamination of the seventy-two commercial and five DOE sites across the United States, with resulting human health impacts." (DOE/EIS-0250, Section 2.12).

3

9. Continued operation of existing nuclear plants requires some safe and secure method of disposing of the high level ra dioactive waste and spent nuclear fuel generated. Effective management and permanent disposal of nuclear waste is essential to minimize the life cycle costs of these facilities. The rising expenses of expanding on-site storage while simultaneously funding reactor decommissioning accounts and the long promised DOE centralized waste repository continues to increase the costs of nuclear energy.

10. Many of NARUC's State commission members scrutinize these costs of electric utilities to ensure ratepayers pay only for expenses that are reasonable and prudent. Utility plans for interim on-site storage involve large sums and raise significant financial issues.

3 See, generally, Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-342, 4 NRC 98, 105-6 (1976) (Zone of interests created by the AEA is avoidance of a threat to health and safety of the public). Cf. footnote 1 supra. USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 28 of 89 (Page 53 of Total)

NARUC PETITION TO I NTERVENE 611. Spent fuel continues to pile up at 73 locations in 35 States at sites that were never intended for long-term storage, and State-regulated utilities (along with numerous State commissions) expend significant resources on related protracted litigation over DOE's non-performance.

Ratepayers ultimately bear not only the cost of utility payments to DOE intended to cover the cost of the disposal program and the costs of the additional on-site storage required by DOE's refusal to take that waste, but also the costs of the associated protracted litigation over DOE's refusal to take the waste, as well as litigation to block new plants exacerbated by DOE's delay in approving a repository.

12. Delays in the repository program, such as the Department of Energy's (DOE) recent motion to scrap the application for the Yucca Mountain facility that sparked the need for this NARUC intervention, necessarily results in the owners and operators of nuclear power plants having to store greater quantities of used nuclear fuel for longer periods of time, increasing both costs and risks associated with interim storage and also providing additional reasons to delay construction of new plants. Ratepayers in my State (and many other NARUC member States) continue to pay for a national storage "solution", enhanced litigation costs, and the increased costs of interim storage. History suggests if the DOE withdrawal motion is successful, it will effectively set the date the Federal government can finally begin to accept waste back at least 25 years. As State Commissioners, my NARUC colleagues across the country and I have an obvious interest in this proceeding - protecting ratepayers - an intere st no other party will adequately represent. There is no question that our respective statutory duties to protect ratepayers are impacted by whatever action the NRC takes on the motion to withdraw.

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NARUC PETITION TO I NTERVENE 7 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 30 of 89 (Page 55 of Total)

NARUC PETITION TO I NTERVENE 8Resolution on National Policy for Management and Disposal of Spent Fuel from Commercial Nuclear Power Plants WHEREAS, The Nuclear Waste Policy Act (NWPA) of 1982 sets national policy that the federal government is responsible for safe, permanent disposal of all government and commercial high-level radioactive waste, including spent nuclear fuel, in a geologic repository beginning in 1998; and WHEREAS, Those who have benefitted from nuclear-generated electricity-reactor owners and ratepayers-under the NWPA were to pay for the commercial share of di sposal costs through fees paid to the Nuclear Waste Fund; and WHEREAS, Reactor owners and ratepayers made fee payments since 1983 totaling over $16 billion to the Fund, which earned another $13.5 billion in interest, to more than meet the needs of the repository development program, which encountered numerous managerial, financial, legal and political difficulties resulting in failure to meet the 1998 date set in statute and contracts with the reactor owners; and WHEREAS, When the Department of Energy, as disposal program manager, failed to begin waste acceptance in 1998, the reactor owners sued for partial breach of contract for which the Federal Court of Appeals found the government liable; and WHEREAS, DOE and the Justice Department estimate the liability for court-awarded damages and settlements could be as much as $12.3 billion-if the waste were to be accepted for disposal by 2020; and WHEREAS, The Obama Administration declared its intent to terminate the Yucca Mountain repository development program and instead has appointed the Blue Ribbon Commission on America's Nuclear Future to evaluate alternative disposal strategies and recommend a new direction that does not involve Yucca Mountain; and WHEREAS, NARUC believes current law regarding Yucca Mountain development must be followed, however the Association must prepare itself for the possibility that the Administration may succeed in canceling the repository project; now, therefore be it

RESOLVED, That the Board of Directors of the Nati onal Association of Regulatory Utility Commissioners, convened at its 2010 Winter Committee Meetings in Washington, D.C., expresses its disappointment at having the federal government take 25 years and expend over

$10 billion on Yucca Mountain as the repository site only to have the repository project be proposed to be cancelled before the Nuclear Regulatory Commission made a safety and technical decision on the license application submitted in 2008; and be it further RESOLVED, That NARUC call upon the Secretary of Energy not to withdraw the Yucca Mountain license application from the review process underway at the NRC; and be it further USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 31 of 89 (Page 56 of Total)

NARUC PETITION TO I NTERVENE 9RESOLVED, That NARUC and State utility commissions as stakeholders in the disposal policy on behalf of ratepayers-who continue to bear the ultimate cost of the fee payments to the Fund-should play an active role in representing their views to the Blue Ribbon Commission, drawing upon the multiple NARUC nuclear waste policy resolutions adopted over the past 25 years; and be it further RESOLVED, That NARUC convey to the Commission that any alternative that leaves the spent nuclear fuel at present storage sites indefinitely, whether managed by the owners or by the government, is inconsistent with the NWPA findings of 1982 and would break faith with the communities which host those reactors with the understanding that the spent fuel would be removed by the government; and be it further RESOLVED, That the Commission should seek to determine if there is something about a geological repository generally or Yucca Mountain specifically that makes either a poor choice, suggesting a search should be gin for a new repository site; and be it further

RESOLVED, That if a new repository program is to be recommended, then a new, more transparent site selection process should be considered, a new organization might be better suited for managing it and a reformed financing means be established that more reliably supports the new disposal strategy instead of subsidizing unrelated government activities; and be it further

RESOLVED, That NARUC pro-actively inform the Commission, DOE and the Congress that there are benefits in taking an initial near-term action to provide government or industry-run central interim storage of used nuclear fuel from the nine shutdown reactor sites, since it seems that whatever new disposal or reprocessing st rategy is pursued, it will be unlikely to be in operation for another twenty or more years; and be it further

RESOLVED, That the federal government and owners of spent nuclear fuel should be encouraged to simplify and make equitable settlements over the ongoing litigation that provides payment for past expenses that the owners shoul d not have to have incurred had DOE provided the "disposal services" agreed in the Standard Co ntracts; and to develop a regime for forecasting future payments without court-ordered judgments including suspension of Nuclear Waste Fund fee payments unless and until a revised program is agreed upon or the Yucca Mountain Project is fully restarted.

_____________________________________________ Sponsored by the Committees on Electricity and Energy Resources and the Environment Adopted by the NARUC Board of Directors February 17, 2010 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 32 of 89 (Page 57 of Total)

Exhibit 2 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 33 of 89 (Page 58 of Total)

Statement by David A. Wright Commissioner South Carolina Public Service Commission

& Chairman Yucca Mountain Task Force We are announcing today the formation of The Yucca Mountain Task Force. The Task Force is a joint bipartisan national grassroots initiative of the Nuclear Waste Strategy Coalition, U.S. Transport Council, Nuclear Energy Institute, Prairie Island Community Council, Decommissioning Plant Coalition and other organizations that collectively represent state regulatory authorities, U.S. nuclear utilities and hundreds of businesses with principal operations throughout the United States. The overriding objective of the Task Force is to accomplish the construction and operation of a safe Federal facility for spent nuclear fuel and high-level radioactive waste at Yucca Mountain, Nevada, within the shortest time frame possible--

consistent with public health and safety. Our principal goals are to galvanize national grassroots support for: 1. Obtaining a comprehensive funding solution for Yucca Mountain licensing and development that ensures both necessary funding and full appropriation of the more than $750M collected annually from nuclear energy consumers.

2. Facilitating timely development of a final Yucca Mountain radiation standard either administratively or legislatively.

3. Encouraging the DOE to submit a high-quality licensing application to the Nuclear Regulatory Commission in a timely manner. 4. Fostering and encouraging exemplary standards of quality assurance, accountability and integrity in the activities of the Yucca Mountain program. 5. Facilitating a national Yucca Mountain transportation and waste acceptance system. The key activities of the Task Force will include:

• Re-energizing the national coalition that successfully achieved overwhelming approval in the U.S. House of Representatives and U.S. Senate to proceed with licensing and development of Yucca Mountain consistent with the Nuclear Waste Policy Act, amended.

• Recruiting Task Force Chairs in 41 states whose ratepayers pay into the Nuclear Waste Fund.

• Resolving the longstanding impasse between U.S. House and Senate leaders over fundamental funding and programmatic Yucca Mountain project issues.

• Serving as a national clearinghouse for other like-minded national and state organizations and elected officials.

• Providing a fresh new voice to the critical importance of expeditious implementation of the Yucca Mountain program given vital economic, energy and national security considerations

--as well as the importance of progress on Yucca Mountain to new nuclear energy plant operation.

I am pleased to chair the Task Force, along with Chairman LeRoy Koppendrayer, of the USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 34 of 89 (Page 59 of Total)

Minnesota Public Utilities Commission, and Commissioner Robert Garvin of the Wisconsin Public Utility Commission as our vice-chairmen.

It is clear that there are compelling national security, energy security and economic considerations that strongly warrant expeditious completion of the Yucca Mountain project as mandated by the Nuclear Waste Policy Act. Electric utility consumers have invested billions of dollars to this end. Time and time again -in 1982, 1987, 1992 and in 2002 -the Congress has overwhelming reafl"Irmed its commitment to a national federal facility for spent fuel and high-level radioactive waste. I am optimistic about the future of the Yucca Mountain project. I believe there is both the collective will and the leadership at the White House, the Department and Energy and the Congress for the enactment of a comprehensive funding fix, promulgation of a final radiation protection standard and successful implementation oflicensing and development requirements for this Project. I am confident that the National interest is larger than one state's myopic resistance to moving this project forward-and I look forward to bringing this project closer to the goal line in the days and weeks to come. USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 35 of 89 (Page 60 of Total)

Exhibit 3 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 36 of 89 (Page 61 of Total)

YMTF Yucca Mountain Task Force 1666 Connecticut Ave., N.W. Suite 201 Washington, D.C. 20009 Tel: (202) 332-8155 Fax:(202)332-8845 The Honorable Joe Barton Chairman House Energy and Commerce Committee U.S. House ofRepresentatives 2125 Rayburn House Office Building Washington, DC 20515

Dear Mr. Chairman:

June 10, 2005 On behalf of the Yucca Mountain Task Force, we are writing to strongly urge expeditious action by the House Committee on Energy and Commerce to pass legislation to provide a comprehensive funding solution for Yucca Mountain licensing and development that ensures both necessary funding and full appropriation of the more than $750M collected annually from nuclear energy consumers.

The Task Force is a joint initiative of the Nuclear Waste Strategy Coalition, U.S. Transport Council, U.S. Chamber of Commerce , Prairie Island Community Council, Decommissioning Plant Coalition and other organizations that collectively represent state regulatory authorities, hundreds of businesses, and nuclear utilities in the United States. While the Yucca Mountain program faces complex challenges, there is no more compelling need for the program than long overdue action to provide a fundamental "funding fix" for the program. Chronic funding of Executive Branch requests, which characterized the program until recently , have led to more than a billion dollars in under-fpnding for the program, unnecessarily protracting key licensing and infrastructure development activities.

With the program facing significant funding demands in the near future for licensing and construction activities , failure to provide for full appropriation of the more than $750M collected annually for the Nuclear Waste Fund from nuclear energy consumers, as well as necessary funding from the Defense Nuclear Waste Fund, the program will continue facing multi-year delays , resulting in continued escalating costs for taxpayers.

These considerations are all the more important in light of the House Energy and Water Appropriations report passed by the House on May 24, which directs the Secretary to begin accepting commercial spent fuel for interim storage in fiscal year 2006. While we welcome the focus on the concept of early receipt of spent fuel at a government site given growing national security, energy security and economic considerations, we believe the best candidate for an interim storage or early receipt facility is Yucca Mountain.

Clearly thi s highlights the importance of moving on with tangible progress on the licensing front and with construction of the surface facilities at Yucca Mountain.

It also confiitlls the importance of initiatives and investment furthering accelerated transportation and waste acceptance initiatives.

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 37 of 89 (Page 62 of Total)

As a longtime advocate of a national solution for spent fuel and high-level waste disposition, we know you share and understand the urgent need for program funding reform. We greatly appreciate the Committee's support in the past Congress for H.R. 3971 to reclassify fees paid into the Nuclear Waste Fund as offsetting collections and your continuing focus in the current Congress on the need to address this critical national energy security priority, which is pivotal to any new generation of nuclear energy plants. It is our hope that your committee will mark-up legislation to address comprehensive funding reform for the program and seek full House consideration of this measure prior to the August recess. We look forward to working with you to address this important initiative to provide funding surety for the Congressionally directed, national repository program in the Yucca Mountain program. Sincerely, Charles P. Pray Co-Chairman, YMTF State of Main, Nuclear Safety Advisor Cc: The Honorable Ralph Hall Chairman House Subcommittee on Energy and Power The Honorable David Hobson Chairman David A. Wright Co-Chairman, YMTF Commissioner, South Carolina Public Service Committee House Appropriations Subcommittee on Energy and Water Development USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 38 of 89 (Page 63 of Total)

Exhibit 4 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 39 of 89 (Page 64 of Total)

YUCCA MOUNTAIN TASK FORCE Joint Statement by Hon. David Wright Commissioner, South Carolina Public Service Commission and Hon. Charles Pray Nuclear Safety Advisor, State of Maine & Co-Chairman, Yucca Mountain Task Force May 25,2005 Regarding May 12 House Subcommittee on Energy & Water Appropriations action allocating

$661 million for the Yucca Mountain program in FY06, including

$10 million for transporting of spent fuel to an "interim DOE storage facility" and for development of a recycling (reprocessing) "initiative." We are encouraged that Chairman Hobson and his Committee have appropriated the full funding for Yucca Mountain requested by the President and shown their continuing confidence in a national solution for spent fuel and high-level waste disposition.

Nonetheless, this funding level --which is well short of the approximately

$770 million collected annually by the federal government from electricity consumers

--also underscores the urgent need for program funding reform, particularly with billion dollar outlays contemplated in the near future. We also welcome the Committee's focus on the concept of early receipt of spent fuel at a government site given growing national security, energy security and economic considerations.

We believe the best candidate for an interim storage or early receipt facility is Yucca Mountain.

Clearly, this highlights the importance of moving on with tangible progress on the licensing front and with construction of the surface facilities at Yucca Mountain.

It also confirms the importance of initiatives and investment furthering accelerated transportation and waste acceptance readiness.

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 40 of 89 (Page 65 of Total)

Exhibit 5 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 41 of 89 (Page 66 of Total)

(

)+

(

(

0 (1+

45

(

5$

(7 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 42 of 89 (Page 67 of Total)

Exhibit 6 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 43 of 89 (Page 68 of Total)

FROM JIM & MARTEZ NORRIS FAX NO. 910 295 0344 Dec. 06 2005 06:34PM P1 r,.: Jte,.zo llocl<loma, Vice Cludr

• Dlremr of Fedora I Alfaln, DTE Encrw b:&vlol Wrizhl, M""'benldp Commissioner.

SC Publlc CoanDIWon Robcrr Capslick, F1aaace Director o1 Coverument Aft.alrs, Yankee Atomlc:ICoiiJiecrlcul r a11kee J. T .rry .,..,.on.

Commaalcaliollll . ! Ccuruaissiooer, FL Public Servloe c .. mmlulon i BEFORE THE U.Si NUCLEAR REGULATORY COMMISSION i WASmNGTON, D.C. ! INmEMATTEROF i ) l ) IMPLEMENTATION OF A DOSE ) AFTER 10,000 YEARS. I ) RIN 31SO .. AH68 USNRC December 7, 2005 (7:28am) OFFICE OF SECRETARY

' RULEMAKINGS AND ADJUDICATIONS STAFF REPLY TO OF THE NUCLEAR WASTE STRATEGY COALITION I ABOUT THE NWSC ' The Nuclear Waste Strategy Coalitioh (NWSC) is an ad hoc group of state utility regulators, state attorneys general, electric utilities and associate

members representing 46 member organizations in 26 states. The NWS_C was formed in 1993 out of frustratiop at the lack of progress the Department of Energy (DOE) had made m developing a permanent repositocy for

. spent nuclear fuel and high .. level radioactive waste, as well as Congress's failure to sufficiently fund. the nuclear waste disposal program (Program).

The mission and purpose of the NWSC is to seek on behalf of the of the United States: 1) The removal of commercial spent nuclear fuel from temporary dry cask storage facilities scattered across the nation. i 2) 'fhe authorization of a temporary, commercial spent nuclear fuel storage facility.

3) The of the annual f,imds paid by the nation's ratepayers into the Nuclear Waste Fund (NWF) as offsetting coJiections so that the DOE fulfills its statutory and contractual obligations.

4) The augmentation planning andregulations to facilitate transportation systems. S) The capping of the NWF payment' at the present one-tenth of a cent per kilowatt-hour by the U.S. Congress.

6) The operation of the permanent repository as soon as feasibly possible .

• I DISCUSSION Yucca Mountain (YM) is probably most scientifically studied piece of real estate in history. The DOE's efforts to evaluate other sites over the years and the process leading to a decision supporting YM, as the desired site has been painstaking.

Nine sites:in six states were studied as potential repository sites: Vacherie Dome, LA; Cypress Creek Dome, MS; Dome, MS; Yucca Mountain, NV; Deaf Smith County, TX; Swisher County, TX; Davis Canyon, UT; Lavender Canyon. UT; and the Hanford Site, W A. In 1986, DOE chose five sites for further study. Yucca was named as the first choice. In 1987, Congress amended the Nuclear j P.O. Box 5233

• Pinehurst, NC 28374-6718

• Tel: 910.295.6658

• Fax: 910.293.0344

• 'Email: tbenwsc@nc.rr.com

• ! www.thenMc.org USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 44 of 89 (Page 69 of Total)

FROM : J 1M 8. MARTEZ HORR 1 S NWSC Reply Comments to the l Page Two -December 7, 2005 . . ! FAX HO. 910 295 0344 Dec. 06 2005 06:35PM P2 Waste Policy Act of 1982 (NWP A) Jd directed the DOE to focus on Yucca Mountain.

In the Energy Policy Act of 1992 (EnP A). Congress rein;forced its intent that YM remain the exclusive focus of the nation's repository program. This Act also directed the U.S. Environmental Protection Agency (EPA) to issue new public health and safety standards for: the protection of the public from releases of radioactive materials stored or disposed of in a repository at the .YM site. The Nuclear Regulatory Commission (NRC) was directed to modify its technical requirements to consistent with the EPA's new standard and the National Academy of Sciences (NAS) findings and recornrnendations.

The EPA issued radiation standards in 2001 to protect the public health from hazardous material:for 10,000 years. I Responding to legal challenges by tile State of Nevada, environmental and public groups, the U.S. Court of Appeals for the D.C. Circuit, ruled the EPAts original standard did not conform to those recommendations made by the NAS as Congress mandated in the EnP A. In July 2004, the Court upheld most of the challenges to the EPA's Part 197 rules, but the Court found that the 10,000-ycar compliance period selected by the EPA Violated Section 801 of the EnP A, becauSe it was not "based upon and consistent with" the 1995 recommendations made by the NAS ih its report, "Technical Bases for Yucca Mountain Standards. " The NAS recommended that compliance with standard be measured at the peak risk, "within the limits imposed by the long-term stability of the geologic enwonm.ent, which is on the order of one miiJion years." The Academy also noted, calculations for YM show that "peak risks might occur tens-to-hundreds-of-thousands of years or even farther into the future." Consequently, on August 9, 2005, the EPA proposed a draft rule, 40 CFR Part 197, to amend it's public health and envirorubental radiation protection standard for YM, Nevada, extending protection to one million-years for the permanept repository at YM. Under the new one million years standard people living close to the facility would not feceive total radiation higher than natural levels people live with routinely in other areas of the country. 1 I Fnr the first 10,000

.. the Jttandard:

Retain the original IS millirem radiation exposure per year individual protection standard.

I

• Ensure that people living near YM are protected to the same level as those living near the-Waste Isolation Pilot Project, New Mexico, the only facility that stores materials that are toxic forever. I Retains the 4-millirem ground wa;ter protection standard to be consistent with the Agency's national policy. I From 10,000 years up to one million *ears, the.proposed standard:

I Set the indiVidual protection stanCjlard at a dose limit of350 millirems per year. !

• Limit the maximum radiation from the permanent facility so that people living close to YM for a lifetime during the one million year time frame will not receive total radiation any higher than natural levels people currently receive in other areas of the country. \ The EPA radiation stap.dard for the permanent repository requires the DOE to conduct analyses covermg one million years to assess;the potential effects of natural processes or disruptive events that could affect the YM operations.

Some of these include: l I

• Earthquake that could affect the facility tunnels and breakdown of the waste containers.

• activity that could affept the waste containers directly or cause releases of radionuclides to the env.tronment. . USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 45 of 89 (Page 70 of Total)

FROM : JIM & MARTEZ NORRIS FAX NO. 910 295 0344 . I NWSC Reply Comments to the NRC l Page Three -December 7, 2005 Climate change that could cause iPcreased water flow through the facility.

Corrosion process that could breakdown of the waste containers.

IMPACTOFFURTHERDELAY i Dec. 06 2005 06:35PM P3 Based on a site-suitability criteria to YM. in a final environmental impact statement, the Secretary of Energy concluded that the YM facilitf is, "likely to meet radiation standards." Based on these findings, the Secretary recommended the Yucca Mountam s1te to the Pres1dent for the development of the nation's deep geological repository.

6n February 15, 2002, President Bush made a reCommendation to the U.S. Congress to develop the Yucca site as the nation's geologic repositoi)'

for high-level radioactive waste and spent nuclear fuel. In July 2002, Congress overwhelmingly passed a joint Resolution that overrode the State ofNevada's objections and *pproved the YM site. . I The YM permanent repository has s"4-ccessfully met numerous challenges in the Courts by the State of Nevada and environmental groups to delay Program. These delays are annually costing the nation's ratepayers tens of millions of dollars in their electridbill.

Since 1983, the nation's electric consumers have paid more than $25 bilUon, including interest, into the N]NF, that now contains an unused balance ofrnore than $17 billion for the DOE to license, construct, operate monitor a repository for spent nuclear fuel and high-level nuclear waste from commercial nuclear power across the nation. The nation's ratepayers pay annually $750 million into the NWF and only a portion of the annual funding is allocated to the Program. A DOE contractor has estimated that continued delays wouM escalate costs by approximately

$1 billion per year for the civilian and defen.se nuclear waste disposal proFJrams.

Consequently, the prompt establishment of a reasonable and safe radiation protection standard is extremely important to members of the NWSC. CONCLUSION As the EPA stated in its July ruling, it is difficult to accurately predict what conditions will be like beyond 10,000 years. The structure of YM, as the DOE studies have shown, provides more than adequate protection for storage of nuclear fuel and high-level radioactive waste. We believe more than 20 years of in-depth scientific research covered every facet of Yucca Mountain.

from hydrology to geology to seismology.

The one million-year EPA proposed rule is unprecedented since other hazardous disposal facilities such as the Waste Isolation Pilot Project and other sites, are regulated to a lO,OOO.;year radiation standard.

The NWSC believes the revised EPi radiation standard has adequately met the Court's ruling and protects the public health and safety. Therefore, iwe encourage the Nuclear Regulatory Commission to expeditiously amend its rule to 10 CFR Part 63 to co de with the EPA's proposed radiation standard for doses that could occur after the 10,000 years but within the period of geologic stability.

LeRoy Koppcndrayer, Chainnan, Minnesota Public Utilities Commission, and Chairman, Nuclear Waste Strategy Coalition December 7, 2005 f USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 46 of 89 (Page 71 of Total)

Exhibit 7 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 47 of 89 (Page 72 of Total)

• * ;,lhecutl\-e Comaurtn Ollken O.nd Wn&ht. nwrman (.ommWJoner, SC Pubbc Stn1ce f'omm1111011 Henze Hoeksema, Va l."h11rman Dll'n:lar of llcdtnl Afl'an ... DTI. Eneru l.voy Kopptlldn)'er, Member*p Cha1nnan, \f'i' PubliC 1'bllhn l OIDIDIDIOR Roblorr Capshck. fmaDCe-Du'fCtot of Covt'rdment Afl'a1n, \o an-A.IOmiCIC'ORDtCIICIII

\'aalrft h.atnaa Me\'lurnan.

CHI*IIIIICIIIHml

(.omm .. *oner, FL Public Mna:e Comm11110n Apnl 16, 2008 The Secretary Surtilce Transportation Board 395 E Street, S W Washmgton, DC. 20423-0001 Re Fmance Docket No 35106 Dear Madam or S1r \ ' \

"'R .la \ \ The members of the Nuclear Waste Strategy Coaht1on (NWSC) thank the Surface Transportation Board (Board) for the opportumty to prov1de comments on the above referenced docket regardmg the Department of Energy's (DOE) apphcauon for a Certificate of Pubhc Convemence and Ncccss1ty to construct and operate approxunately 300 m1les of new ratl hne connectmg existing rail line near Caliente, Nevada, to a proposed geologic repository at Yucca Mountain, Nevada The NWSC believes the extens1vc documentation and analyses that DOE provtded m tis application will allow the Board to conduct a thorough rcv1ew and make a tnnely deciSIOn, and we encourage the Board to grant DOE the Certificate ofPubhc Convemcnce and Necesstty In October 2007, the DOE, wtth the Board as a cooperatmg agency, prepared the Draft Supplemental Envmmmentallmpacl Statement for a Geologrc Repo.wory.for the Drsposal of Spent Nuclear Fuel and Hrgh Level Radroac11ve Waste at Yucca Mountam, Nye County, Nevada -Nevada Rarl Transportatwn Comdor, DOEIEIS-0250F-S2D

("Draft Nevada Ratl Comdor SEIS"') and Draft Envrronmentallmpact Statement for a Rarl Alignment fur the Construct ron and Opera/ron of a Ra1lroad m Nevada to a Geologrc Repasrtory at Yucca Moun/am, Nye County. Nevada, DOEIEIS-0369D

(Draft Ratl Ahgnment EIS") Thts two-part document assess1.-d the environmental tmpacts of the proposed nul lme m accordance wtth DOE's obligations under the National Environmental Pohcy Act regardmg the transportation of spent nuclear fuel (SNF) and htgh-lcvcl radtoactive waste (HLR W) m Nevada 'lbe DOE also analyzed a number of opt1ons conccmmg the transport of SNF and HLRW to the proposed reposttory at Yucca Mountam, one ofwh1ch IS the Shared-Used Option that allows commcrctal sh1ppers the use of the rail hne to shtp general frctght P 0. Bo* 5233

• Pmebunt, NC 28374

• Tel: 918.295.6658

• F .. 910 295 0344

• Em11l thenwsc@nc rr com www.thenwsc.org USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 48 of 89 (Page 73 of Total)

NWSC Letter to the Surface Transportation Board Page Two -Apnl 16, 2008 The NWSC does not object to the Shared-Use Opt1on, smce commercial l'llllcars would be hauled With trams that are separate from trams carrymg SNF and HLRW, but could be hauled With trams carrymg other repos1tory-related matenals such as constructiOn materials, water and fuel Based on a study of potenual commercial users, DOE cstunates that approximately e1ght one-way commerc1al trams could run per week along the Cal1ente 1'1111 ahgnment.

Further, trams carrymg SNF and HLRW would have pnonty over trams carrymg commercJal matenal dunng the operations phase. A Shared-Use Opt10n could also prov1de economic benefits to the commumty and surroundmg area. Other countnes such as France successfully use the shared-use system' without any incidents DOE also considered several suggestions to new alternative segments, added some alternative segments and adjusted or ehmmated some alternative segments to the proposed ra1l line due to comments receiVed dunng Its scopmg penod between Apnl and June 2004. Some commcnters expressed concern over the environment, land use issues, a1r quality, socioeconomics, health and safety Consequently, extensive analyses were conducted to encompass these issues Some commenters expressed support. while others expressed oppositiOn, for pubhc or commercJal usc of the proposed ralllme DOE therefore analyzed a Shared-Use Opt1on Vanous commenters suggested best management practices and m1t1gat*on of 1mpacts associated w1th the construction and operation of the railroad on livestock, waterways and washes, and mmmg, for example Consequently.

DOE developed a senes of m*t*gauon measures to avmd, mm1m1ze, rectify, reduce and/or compensate for potential impacts. such as hmltlng fencmg on public lands to those areas where grazmg permittees m1ght It for hvestock safety, temporary p1pehnes, local mmmg and other aspects dunng the construction penod. The DOE analyses further mdicated that there would be no disproportionately h1gh and adverse human health or environmental impacts to minonty or low-mcome populations from ra1lroad constructiOn and operations along the Cahente rail alignment The Oral\ Ra1l Ahgnment EIS also took mto consideratiOn other scenanos such as Impacts to the environment m case of acc1dents rangmg from small to large m scale, land use and ownersh1p, a1r quahty and chmate, groundwater resources, socJoeconomJcs m relation to population, housmg, employment and mcome, and sabotage m case of tcrronst attacks. Inc Department has an exemplary safety record m the sh1ppmg of commercial and naval nuclear fuel, and It has proven that It can safely transport SNF and HLRW from DOE research facll1t1es and nuclear plant sites across the nat1on For instance, more than 3,000 sh1pments of SNF from nuclear power plants. government research facilities, universities and industnal facilities have crossed the Umted States, "Without a smglc death or mjury due to the rad10act1ve nature of the cargo " 1 Shipments mcludc 719 contamers from the Naval Nuclear PropulsiOn program between 1957 and 1999, and 2,426 h1ghway shipments and 301 l'llllway sh1pments from the US nuclear industry between 1964 and 1997 Smce 1996, ofSNF have been safely transported to the United States from 41 countnes to the DOE facJhtJes; agam, w1thout a smgle death or injury. Furthermore, the DOE has safely and successfully rcce1ved 6,432 transuran1c waste sh1pments at the Waste Isolation P1lot Plant m New Mexico as of Apnl 14,2008 3 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 49 of 89 (Page 74 of Total)

• '\ ' NWSC Letter to the Surface Transportation Board Page Three -Apnl 16, 2008 Takmg mto account DOE's transportatiOn safety record and Its extensive analyses and cons1deratmn of safety factors dunng the studies of the proposed Cahente railroad, the NWSC encourages the Board to grant DOE the Certificate of Public Convenience and Necessity The NWSC IS compnsed of state regulators, state attorneys general, nuclear electric utiht1es and assoc1atc members working together to hold the Federal government accountable for ns statutory and contractual obhgatlon to move spent nuclear fuel and high-level rad1o radioactive waste from active and decomm1ss1oned nuclear power plants across the nation to a permanent repository.

The NWSC has part1c1pants from 46 orgamzatlons m 26 states. Respectfully submitted,

• _

Dav1d Wnght CommiSSIOner, South Carohna Public Serv1ce Comm1ss1on, and Cha1rman, Nuclear Waste Strategy Coaht1on C Mr Ward Sproat, D1rcctor, DOEIOCRWM Mr Gary Lanthrum, D1rector, DOE/Office ofLog1st1cs Management Bradley Lcvme, Esq., Ass1stant General Counsel for Civilian Nuclear Program, DOE 1 National ConfL'I'ence of State Lcg1slatures' Report, January 2000 ' U S Department of Energy Report to the Committees on Appropr1at1ons, January 200 I ' U S Isolation Pilot Plant Sh1pment F1gures, March 2007 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 50 of 89 (Page 75 of Total)

Exhibit 8 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 51 of 89 (Page 76 of Total)

U.S. GOVERNMENT PRINTING OFFICE WASHINGTON

For sale by the Superintendent of Documents, U.S. Government Printing OfficeInternet: bookstore.gpo.govPhone: toll free (866) 512-1800; DC area (202) 512-1800Fax: (202) 512-2104Mail: Stop IDCC, Washington, DC 20402-0001 57-736 PDF 2010 BUDGET IMPLICATIONS OF CLOSINGYUCCAMOUNTAIN HEARING BEFORETHE COMMITTEE ON THE BUDGET HOUSE OF REPRESENTATIVES ONE HUNDRED ELEVENTH CONGRESS SECOND SESSION HEARING HELD IN WASHINGTON, DC, JULY 27, 2010 Serial No. 111-30 Printed for the use of the Committee on the Budget ( Available on the Internet:

http://www.gpoaccess.gov/congress/house/budget/index.html USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 52 of 89 (Page 77 of Total)

(II) COMMITTEE ON THE BUDGET JOHN M. SPRATT, J R., South Carolina, Chairman ALLYSON Y. SCHWARTZ, Pennsylvania MARCY KAPTUR, Ohio

XAVIER BECERRA, California

LLOYD DOGGETT, Texas

EARL BLUMENAUER, Oregon

MARION BERRY, Arkansas

ALLEN BOYD, Florida

JAMES P. M C GOVERN, Massachusetts NIKI TSONGAS, Massachusetts

BOB ETHERIDGE, North Carolina

BETTY M C COLLUM, Minnesota JOHN A. YARMUTH, Kentucky

ROBERT E. ANDREWS, New Jersey

ROSA L. D E LAURO, Connecticut, CHET EDWARDS, Texas

ROBERT C. BOBBY SCOTT, Virginia

JAMES R. LANGEVIN, Rhode Island

RICK LARSEN, Washington

TIMOTHY H. BISHOP, New York

GWEN MOORE, Wisconsin

GERALD E. CONNOLLY, Virginia

KURT SCHRADER, Oregon

DENNIS MOORE, Kansas PAUL RYAN, Wisconsin, Ranking Minority Member JEB HENSARLING, Texas

SCOTT GARRETT, New Jersey

MARIO DIAZ-BALART, Florida

MICHAEL K. SIMPSON, Idaho

PATRICK T. M C HENRY, North Carolina CONNIE MACK, Florida

JOHN CAMPBELL, California

JIM JORDAN, Ohio

CYNTHIA M. LUMMIS, Wyoming

STEVE AUSTRIA, Ohio

ROBERT B. ADERHOLT, Alabama

DEVIN NUNES, California

GREGG HARPER, Mississippi

CHARLES K. DJOU, Hawaii P ROFESSIONAL S TAFF T HOMAS S. K AHN , Staff Director and Chief Counsel A USTIN S MYTHE , Minority Staff Director USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 53 of 89 (Page 78 of Total)

(III) C O N T E N T S Page Hearing held in Washington, DC, July 27, 2010 ..................................................1 Hon. John M. Spratt, Jr., Chairman, Committee on the Budget .................1 Prepared statement of ...............................................................................6 Additional submission:

Kim Cawley, Chief, Natural and Physical Resources, Cost Esti-mates Unit, Congressional Budget Office, prepared statement of ......................................................................................................3 Hon. Paul Ryan, Ranking Minority Member, Committee on the Budget ....7

Dr. Kristina M. Johnson, Under Secretary of Energy, U.S. Department of Energy .......................................................................................................8 Prepared statement of ...............................................................................9 Michael F. Hertz, Deputy Assistant Attorney General, Civil Division, U.S. Department of Justice ..........................................................................11 Prepared statement of ...............................................................................13 Hon. Rick Larsen, a Representative in Congress from the State of Wash-ington, submission for the record:

Congressional letter dated July 6, 2010, to Hon. Steven Chu, Sec-retary, U.S. Department of Energy ......................................................33 David Wright, South Carolina Public Service Commissioner .......................43 Prepared statement of ...............................................................................46 Hon. Gerald E. Connolly, a Representative in Congress from the State of Virginia, prepared statement of ..............................................................53 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 54 of 89 (Page 79 of Total) 42 Ms. J OHNSON. Stepping back again, you know, I understand what you are saying about, well, forty years from now we have a different view of what is going on. You know, let me see if I can

put it in the way that there has been extraordinary progress over

the last thirty years with regard to computation. With regard to

our knowledge about the basic materials, and with regard to trans-

uranic waste, high level waste, low level waste. And I think given

that right now, when we are considering restarting, and we are re-

starting, and this administration has signaled its strong interest in

restarting the civilian nuclear energy program, that it gives us a

chance to take a year and six months from now to step back and

say, Let us find a better solution with broad support.

Mr. S IMPSON. That will end up in a geological repository?

Ms. J OHNSON. Again, I do not want to preclude what the Blue Ribbon Commission might recommend.

Mr. S IMPSON. Well, if they can find something else, that would be wonderful. But nobody believes they will, and nobody believes

that is possible. That ultimately there is going to be a pile of gunk

that has to go somewhere.

Chairman S PRATT. Mr. Scott has a further question.

Mr. S COTT. Just to follow up on the time table for the Blue Rib-bon Commission, you said in a year to year and a half you would

get a recommendation. And then I guess at that point we will, they

are not a siting committee, so at that point we will start looking

for a site? As the gentleman from Idaho just mentioned. It has

taken us, what, twenty or thirty years to get to this point with

Yucca Mountain. Once we start, why would we not expect it to take

twenty or thirty years with whatever site is picked, fighting tooth

and nail against it, delaying, and doing everything they can, filing

suit? Why should we think it would not take another thirty years

to get to where we are now?

Ms. J OHNSON. Right. Thank you very much for the question. In the charter 3-E, the Blue Ribbon Commission is being asked to rec-

ommend not only methods and ways to manage the back end of the

fuel cycle but also for options for decision making processes and

management of disposal. So, there is also a process they will be

recommending as well as recommendations for how to manage the

back end of the fuel cycle. And I have full confidence in the Blue

Ribbon Commission to recommend processes and procedures that

can be accomplished in a reasonable period of time.

Mr. S COTT. Thank you.

Chairman S PRATT. Thank you. And to our panel, Dr. Johnson, Mr. Harris, Mr. Hertz, thank you very much for your patience, your forbearance, and for your forthright answers to our questions.

We appreciate your coming here to participate in this hearing.

Ms. J OHNSON. Thank you.

Chairman S PRATT. Thank you very much indeed.

Mr. H ERTZ. Thank you, Mr. Chairman.

Chairman S PRATT. Our next witness is Mr. David A. Wright, who is the Vice Chairman of the Public Service Commission of South

Carolina. Mr. Wright, welcome indeed. Thank you very much for

your participation in this hearing. As you may have noted, we have

made your statement and the other statements part of the record

so that you can summarize them as you see fit. But you may also USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 55 of 89 (Page 80 of Total) 43 take your time and review thoroughly what you have presented for us. And we very much appreciate your coming. The floor is yours.

STATEMENT OF DAVID A. WRIGHT, VICE CHAIRMAN, PUBLIC SERVICE COMMISSION OF SOUTH CAROLINA Mr. W RIGHT. Good morning, Mr. Chairman. I guess it is still morning. And members of the Committee, my name is David Wright, and I am Vice Chairman of the South Carolina Public

Service Commission. In addition to that, I am past Chairman and

current member of the Subcommittee on Nuclear Issues and Waste

Disposal, and a member of the Full Electricity Committee of the

National Association of Regulatory Utility Commissioners. And I

also serve as Chairman of the Nuclear Waste Strategy Coalition.

The issues that you are addressing today are very important to South Carolina and any state that is home to commercial spent nu-

clear fuel or the nation's defense waste. I am grateful to have this

opportunity to represent and share our views concerning the dis-

position of spent nuclear fuel, currently stored at nuclear power

plant sites that is intended for ultimate disposal at the Yucca

Mountain Geological Repository.

By way of the Nuclear Waste Policy Act of 1982, the federal gov-ernment became responsible for disposal of high level radioactive

waste, including spent or used nuclear fuel from commercial reac-

tors. Utilities, ratepayers, and regulators had the expectation from

the NWPA that the Department of Energy would begin initial

waste acceptance and disposal in the properly licensed and con-

structed repository by January 31, 1998. Utility ratepayers have

paid and continue to pay for the disposal cost of the material. To

date, ratepayers in states that receive power from commercial nu-

clear utilities have paid over $17 billion into the Nuclear Waste

Fund. Including allocated interest, the Nuclear Waste Fund today

totals almost $35 billion, but only a fraction of the money collected

from ratepayers has actually been spent on the developing of the

Yucca Mountain repository. The ratepayers in South Carolina, Mr.

Chairman, have paid nearly $1.3 billion into the Nuclear Waste

Fund, or more than $2.3 billion when interest is included.

State public utility commissions, like mine, are one of the stake-holders on the disposition of used nuclear fuel from commercial re-

actors because the fees paid to the Nuclear Waste Fund by the cur-

rent caretakers of the used fuel, that would be electric utilities, are

passed onto ratepayers who are supplied with electricity from nu-

clear power generation.

When the Director of the Office of Civilian Radioactive Waste Management within the Department of Energy submitted the

Yucca Mountain repository license application in June of 2008, it

was a comprehensive document. The eight thousand page docu-

ment was the culmination of over twenty-five years of exhaustive

investigation of the site. Like others, I expected the NRC to con-

duct a rigorous review and conduct an open, fair, and inclusive ad-

judicatory process. The filing of the license application was an im-

portant step, because it appeared to take the application out of the

political arena and put it under a full blown court review that

would be based on science, not politics.

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 56 of 89 (Page 81 of Total) 44 Since 1998, when DOE failed to meet its obligation to begin waste acceptance for disposal, organizations that I and my state are a part of have simply asked that the government fulfill its part

of the bargain and remove the spent fuel per the standard contract, since the utilities and ratepayers continue to pay for services not

performed. That remains our position, as we believe that the li-

cense application shows that Yucca Mountain will meet the re-

quirements of the NWPA and regulations. If Yucca Mountain can-

not be licensed through the NRC process, or is licensed but not

built, we interpret NWPA as still requiring DOE to develop and

dispose of spent nuclear fuel in a geologic repository. Therefore, un-

less the law is repealed or amended to direct otherwise, Congress

is the only body that can authorize DOE to conduct a site search

for another suitable repository site.

This is particularly costly, and most locations where the fuel pool cooling storage capacity at the reactor sites has long since been

filled. In addition, the older fuel in the spent fuel pools is being re-

moved and placed in concrete and steel containers called dry cask

that are stored outside in concrete vaults. More than 62,000 metric

tons of uranium is currently stored in pools or dry cask storage at

nuclear plant sites in the United States. This amount increases

with each refueling cycle, which generally occurs about every eight-

een months. License applications for at least twenty-four new nu-

clear units have been submitted to the Nuclear Regulatory Com-

mission. The amount of spent nuclear fuel to be stored will increase

as new units are constructed and old units are relicensed, usually

for an additional twenty years, as is happening with numerous re-

actors. Nearly 3,800 metric tons of uranium is stored at four nuclear plant sites in South Carolina, Mr. Chairman, which are home to

seven reactors as you know. Two nuclear units at the V.C. Summer

Nuclear Station in Jenkinsville, South Carolina, have been ap-

proved by the South Carolina Public Service Commission and are

awaiting license approval by the NRC. License applications for an-

other two units near Gaffney, South Carolina, have been submitted

to the NRC but not to the South Carolina Public Service Commis-

sion. This nation will need more base load electric generation as the population grows and the economy recovers. Some areas, such as

the Southeast in general, and South Carolina in particular, need

for base load generation is needed in the near future. Renewable

energy, conservation, and efficiency help to lessen the amount of

base load generation needed but cannot entirely eliminate that

need. The climate and health impacts of burning coal have forced

utilities to depend upon gas fired and nuclear plants to meet the

need for new base load generation. Without a solution to the stor-

age of spent nuclear fuel, meaning a permanent repository, state

regulators may be hesitant to approve the construction of new nu-

clear units, and utilities may be hesitant to construct new nuclear

units, even if the NRC approves the license applications. Such cir-

cumstances could result in reduced electric reliability, brown outs, and increased costs of electricity as gas fired generation would be

the only option, and its price would increase as the demand for nat-

ural gas increases, all else being equal.

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 57 of 89 (Page 82 of Total) 45 Federal courts have already ruled that the federal government is liable for the added storage costs past the dates agreed in original contracts with spent fuel utilities. The Department of Energy al-

ready faces at least $1.5 billion in court judgments and legal ex-

penses resulting from failure to meet the government's obligations.

In 2009, when DOE had a plan to begin waste acceptance and dis-

posal at Yucca Mountain by 2017, DOE officials estimated that the

liability for sixty-five cases could reach $12.3 billion, growing fur-

ther by at least $500 million for each additional year of delay. DOE

pays these court determined liabilities from the Judgment Fund.

What is really happening is this: because of the federal govern-ment's failure to construct a permanent repository, ratepayers are

paying up to four times for ongoing spent fuel storage and future

disposal. And that does not include decommissioning funds. First

ratepayers are paying into the Nuclear Waste Fund for storage at

the deep geologic repository at Yucca Mountain. Second, because of

the initial delay, ratepayers have to pay through rates to expand

and rerack their existing cooling pools in order to accommodate

more waste. Third, ratepayers are continuing to pay through rates

to keep the waste stored at the existing plant sites in dry cask stor-

age. And finally, all taxpayers, not just ratepayers, are paying

through taxes for judgments and settlements through the Judg-

ment Fund.

Congress should suspend collection of the nuclear waste fees until further notice and refund the Nuclear Waste Fund money to

ratepayers if Yucca is not built. Not counting defense waste, over

62,000 metric tons of spent fuel is stored in seventy-two operating

and shut down reactor sites in thirty-four states. Individuals and

organizations opposed to nuclear power will raise questions or even

voice fears over safety and security at some of these storage facili-

ties. Although the utilities and NRC contend that storage is safe

and secure, it still costs ratepayers big money to implement indi-

vidualized security programs for each of these locations around the

country. How can this be more efficient, safe, secure, or cost effec-

tive than having all spent nuclear fuel and defense waste at one

secure deep geologic location?

Recently, there has been great interest in reprocessing, or recy-cling as some call it, of spent nuclear fuel. The organizations that

I am a member of, including NARUC, have supported research into

reprocessing and recycling and share the views that, if there will

be substantial global nuclear power expansion, there will probably

become a time when uranium becomes more scarce and expensive, and closing the fuel cycle will become necessary. But no matter the

future course of this country, whether we reprocess, or recycle, or

maintain the status quo, a geologic repository is still needed for de-

fense related, high level radioactive waste that has already been

reprocessed, or cannot be reprocessed, and the residue from any fu-

ture reprocessing program.

Finally, the states of Idaho and South Carolina, and maybe Washington as was mentioned a while ago, all have agreements with the federal government with a date certain to move defense

waste out of their respective states. There are penalties, they are

substantial, for the government's failure to comply. And that is just USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 58 of 89 (Page 83 of Total) 46 another way that the taxpayer, all taxpayers not just ratepayers, are going to pay for the government's failure.

Thank you for the time today, and I appreciate being here. And I will answer any questions that you may have.

[The prepared statement of David A. Wright follows:]

P REPARED STATEMENTOF D AVID W RIGHT , S OUTH C AROLINA P UBLIC S ERVICE C OMMISSIONER Good Morning, Mr. Chairman and Members of the Committee.

My name is David Wright and I am a legislatively elected commissioner and cur-rent Vice-Chairman of the South Carolina Public Service Commission. In addition

to that, I am the past Chairman and current member of the Subcommittee on Nu-

clear Issues and Waste Disposal, and a member of the full Electricity Committee

of the National Association of Regulatory Utility Commissioners, most often referred

to as NARUC. I also serve as Chairman of the Nuclear Waste Strategy Coalition (NWSC). The issues that you are addressing in this hearing are very important to South Carolina and any other state that is the home to commercial spent nuclear fuel, or

the nation's defense waste. I am grateful to have this opportunity to represent and

share our views concerning the disposition of spent nuclear fuel currently stored at

nuclear power plant sites that is intended for ultimate disposal at the Yucca Moun-

tain geologic repository.

I believe it's important to know how we got to where we are today, because it has led to the positions the organizations I represent currently hold.

By way of the Nuclear Waste Policy Act of 1982 (NWPA), the federal government became responsible for disposal of high-level radioactive waste-including spent or

used nuclear fuel from commercial reactors. Utilities, ratepayers and regulators had

the expectation from the NWPA that the Department of Energy (DOE) would begin

initial waste acceptance and disposal in the properly licensed and constructed repos-

itory by January 31, 1998, as the law and contracts signed with owners of spent

fuel required.

Utility ratepayers have paid, and continue to pay, for the disposal costs of the ma-terial. To date, ratepayers in states that receive power from commercial nuclear util-

ities have paid over $17 billion dollars into the Nuclear Waste Fund (NWF). Includ-

ing allocated interest, the NWF today totals almost $35 billion, but only a fraction

of the money collected from ratepayers has actually been spent on developing the

Yucca Mountain repository. The ratepayers in South Carolina have paid nearly $1.3

billion into the NWF, or more than $2.3 billion when interest is included.

State public utilities commissions, like mine, are one of the stakeholders on the disposition of used nuclear fuel from commercial reactors because the fees paid to

the Nuclear Waste Fund by the current caretakers of the used fuel, the electric utili-

ties, are passed on to the ratepayers who are supplied with electricity from nuclear

power generation.

When the Director of the Office of Civilian Radioactive Waste Management (OCRWM) within the Department of Energy (DOE) submitted the Yucca Mountain

repository license application (LA) in June 2008 it was a comprehensive document.

The 8,000-page document was the culmination of over 25 years of exhaustive inves-

tigation of the site.

Like others, I expected the NRC to conduct a rigorous review and conduct an open, fair and inclusive adjudicatory process. The filing of the license application

was an important step, because it appeared to take the application out of the polit-

ical arena and put it under a full-blown court review that would be based on science, not politics.

Since 1998, when DOE failed to meet its statutory and contractual obligation to begin waste acceptance for disposal, organizations that I and my state are a part

of have simply asked that the government fulfill its part of the NWPA disposal bar-

gain and remove the spent fuel per the Standard Contract since the utilities and

ratepayers continue to pay for services not performed. That remains our position, as we believe that the license application shows that Yucca Mountain will meet the

requirements of the NWPA and regulations.

If Yucca Mountain cannot be licensed through the NRC process, or is licensed but not built, we interpret NWPA as still requiring DOE to develop and dispose of spent

nuclear fuel in a geologic repository. Therefore, unless the law is repealed or amend-

ed to direct otherwise, Congress is the only body that can authorize DOE to conduct

a site search for another suitable repository site.

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 59 of 89 (Page 84 of Total) 47 This is particularly costly in most locations where the fuel pool cooling storage capacity at the reactor sites has long since been filled. In addition, the older fuel in the spent fuel pools is being removed and placed in concrete and steel con-

tainers-called dry casks-that are stored outside in concrete vaults.

More than 62,000 metric tons of uranium is currently stored in pools or dry cask storage at nuclear plant sites in the United States. This amount increases with each

refueling cycle, which generally occurs about every 18 months. License applications

for at least 24 new nuclear units have been submitted to the Nuclear Regulatory

Commission (NRC). The amount of spent nuclear fuel to be stored will increase as

new units are constructed and old units are re-licensed, usually for an additional

20 years, as is happening with numerous reactors.

Nearly 3,800 metric tons of Uranium is stored at four nuclear plant sites in South Carolina, which are home to seven reactors. Two new nuclear units at the VC Sum-

mer Nuclear Station in Jenkinsville, SC have been approved by the South Carolina

Public Service Commission and are awaiting license approval by the NRC. License

applications for another two nuclear units near Gaffney, SC have been submitted

to the NRC, but not to the South Carolina Public Service Commission.

This nation will need more base load electric generation as the population grows and the economy recovers. Some areas, such as the southeast in general and South

Carolina in particular, need more base load generation in the near future. Renew-

able energy, conservation, and efficiency help to lessen the amount of base load gen-

eration needed, but cannot entirely eliminate that need. The climate and health im-

pacts of burning coal have forced utilities to depend upon gas-fired and nuclear

plants to meet the need for new base load generation. Without a solution to the stor-

age of spent nuclear fuel, meaning a permanent repository, state regulators may be

hesitant to approve the construction of new nuclear units and utilities may be hesi-

tant to construct new nuclear units even if the NRC approves the license applica-

tions. Such circumstances could result in reduced electric reliability, brown outs, and increased cost of electricity as gas-fired generation would be the only option and

its price would increase as the demand for natural gas increases, all else being

equal. Federal courts have already ruled that the federal government is liable for the added storage costs past the dates agreed in original contracts with spent fuel utili-

ties. The Department of Energy already faces at least $1.5 billion in court judg-

ments and legal expenses resulting from failure to meet the government's obliga-

tions. In 2009-when DOE had a plan to begin waste acceptance and disposal at

Yucca Mountain by 2017-DOE officials estimated that the liability for 65 cases

could reach $12.3 billion, growing further by at least $500 million for each addi-

tional year of delay. DOE pays these court-determined liabilities from the Judgment

Fund. What is really happening is this-Because of the federal government's failure to construct a permanent repository, ratepayers are paying up to four times for ongo-ing spent fuel storage and future disposal-and that does not include decommis-

sioning funds. First, ratepayers are paying into the NWF for storage at the deep

geologic repository at Yucca Mountain; second, because of the initial delay, rate-

payers have to pay through rates to expand and re-rack their existing cooling pools

in order to accommodate more waste; third, ratepayers are continuing to pay

through rates to keep the waste stored at the existing plant sites in dry cast stor-

age; and finally, all taxpayers-not just ratepayers-are paying through taxes for

judgments and settlements through the Judgment Fund.

Not counting defense waste, over 62 thousand metric tones of spent fuel is stored in 72 operating and shutdown reactor sites in 34 States. Individuals or organiza-

tions opposed to nuclear power will raise questions, or even voice fears, over safety

and security at some of these storage facilities. Although the utilities and the NRC

contend that storage is safe and secure, it still costs ratepayers big money to imple-

ment individualized security programs for each of these locations around the coun-

try. As the Office of Homeland Security increases security requirements, the cost

for security programs at the plant sites will increase.

How can this be more efficient, safe, secure or cost effective than having all spent nuclear fuel and defense waste at one secure, deep, geologic location?

Recently, there has been great interest in the reprocessing, or recycling as some call it, of spent nuclear fuel. The organizations I am a member of, including

NARUC, have supported research into reprocessing and recycling and shares the

view that, if there will be substantial global nuclear power expansion, there will

probably come a time when uranium becomes more scarce and expensive and closing

the fuel cycle will become necessary.

No matter the future course of this country-whether we reprocess, recycle, or maintain the status quo-a geologic repository is still going to be needed for de-USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 60 of 89 (Page 85 of Total) 48 fense-related high-level radioactive waste that has already been reprocessed or can-not be reprocessed, and, the residue from any future reprocessing program for com-

mercial spent nuclear fuel.

Finally, the states of Idaho and South Carolina, and maybe Washington, as well, have agreements with the federal government with a date certain to move defense

waste out of their respective states. There are significant financial penalties to the

federal government in the agreements for failure to comply-which is yet another

way that all taxpayers, not just ratepayers, will have to pay compensation for the

government's failure to build the site at Yucca Mountain.

Thank you for the opportunity to testify before you today. I look forward to your questions. I will also be happy to provide written answers to further questions, should you have any I am unable to answer today or for which you would like me

to provide answers at a later date.

Chairman S PRATT. South Carolina has a particular interest in this because we have defense waste generated at the Savannah River Site as well as bomb grade materials that are being brought

onto site to be processed into a fuel that can be burned in commer-

cial reactors.

Mr. W RIGHT. Yes, sir.

Chairman S PRATT. Are you comfortable with the, would you ex-plain to the Committee the liquidated damages which we have in

law in the event that the waste accepted in South Carolina is not

timely processed and removed from the site?

Mr. W RIGHT. Are you talking about from Savannah River Site?

Chairman S PRATT. Yes, sir.

Mr. W RIGHT. Well, the South Carolina Commission, Mr. Chair-man, does not regulate or control SRS. So, I am not really, I guess, confident or comfortable answering the question because I do not

know exactly how much that would be. But I would be more than

happy to go home and get that answer for you, and get that written

and submit that.

Chairman S PRATT. If you do that, submit it for the record. Before we agreed to accept the bomb grade material in particular for re-

processing into fuel we stipulated with the Department of Energy

that if they failed to perform this in a reasonable period of time, and we provided more than what was anticipated, then there would

be damages payable to the State of South Carolina for the delay.

Rather than having to prove the actual damages, we would be enti-

tled to liquidated damages in a very substantial amount.

Mr. W RIGHT. Yes, sir.

Chairman S PRATT. The purpose being to encourage the Depart-ment of Energy to do what it was telling us it was going to do.

Mr. W RIGHT. Yes, sir. And my understanding, just from the pe-riphery of things where the defense waste in those states are con-cerned, I believe that Idaho's date is the closest date. And using

that as a model, I know that, I believe they are substantial, almost

per day costs.

Chairman S PRATT. Does the State have concerns that the dry cask storage and the alternative expedients that are being consid-

ered are adequate from a safety standpoint?

Mr. W RIGHT. Mr. Chairman, it is my understanding and belief, because we are told and nobody really has disputed it in pro-

ceedings, that in order to get a license for a nuclear reactor you

have got to prove that the fuel can be safely stored on site. But

having said that, the deal that was cut with the federal govern-

ment, and the utilities, and the ratepayers of this country were, we USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 61 of 89 (Page 86 of Total) 49 are going to charge you one-tenth of a cent per kilowatt hour, and we are going to dispose of your waste in return for that. And it has

been twenty-eight years, and that has not happened yet.

Chairman S PRATT. I have a few more questions, but let me turn to the members who are here now and let me give them an oppor-

tunity. Mr. Simpson?

Mr. S IMPSON. Thank you, Mr. Chairman. And thank you, Mr.

Wright, for being here. Do not hold me to this, but it seems like

Idaho's agreement with the federal government, the penalty is like

$60,000 a day.

Mr. W RIGHT. That is the number that comes to mind.

Mr. S IMPSON. And I think we were fairly cheap. I think South Carolina did a lot better job of negotiating. I think they were up-

wards of a million bucks a day or something for--

Mr. W RIGHT. It very well could be. But I would like to research that for the Chairman to be accurate.

Mr. S IMPSON. Yeah. But you mentioned waste confidence. In order to build a new reactor, we have to have waste confidence.

They have to show that there is going to be a path forward to dis-

posal of the waste. How are we going to do that? How are we going

to license any new reactors, or power plants, nuclear power plants, if we cannot meet that waste confidence rule of where the waste

is going to go?

Mr. W RIGHT. Well, I do believe it is going to become issues in proceedings. Because the proceedings that have gone forward so far

have been with the understanding that there was going to be a re-

pository built. You know, that change has just been a recent an-

nouncement, as things go, especially in the Yucca Mountain proc-

ess. Mr. S IMPSON. Yeah. As I understand, it may fall on Congress to have to legislate waste confidence. Which I do not think was the

original intent, but that is what they are talking about now.

Mr. W RIGHT. Well, and that is my understanding, that Congress.

I think under any scenario Congress has to take the lead and has

to act on this.

Mr. S IMPSON. Right. Should we suspend the taxes being paid by the ratepayers that use nuclear power? The tenth of a cent per kil-

owatt hour that they are paying? I was looking at the amounts.

Most people look at that and say, What is a tenth of a cent? I

think in New York it was, like, $81 million a year the ratepayers

pay there that could stay in their economy. And at least suspend

it until we decide where we are headed with this? Because we have

got $24 billion, I think it is, sitting in that fund right now.

Mr. W RIGHT. Well, there is, quite honestly, and my personal opinion is I think it ought to be considered and done, yes, sir. But

there is litigation that is going forward now where that very issue

is concerned. And NARUC is involved in that.

Mr. S IMPSON. Could you tell me in general, what are the, what is the status of the storage pools, the capacity that currently exists

at nuclear power plants around the country? Are they getting full, or-- Mr. W RIGHT. Yes, sir. And I believe, and I have that document I think with me. But the Nuclear Energy Institute does have a doc-

ument that I can supply to the Committee that does show the reac-USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 62 of 89 (Page 87 of Total) 50 tors, and who is, whose pools are full and are now in dry cask, and those that are nearing being full and considering dry cask storage.

Mr. S IMPSON. Okay. I thank you for being here. This is a di-lemma that we are going to have to face somehow.

Mr. W RIGHT. Yes, sir.

Mr. S IMPSON. But it is a problem we need to address and solve.

Mr. W RIGHT. Yes, sir.

Mr. S IMPSON. I appreciate it. Thank you.

Chairman S PRATT. Mr. Scott, do you have questions?

Mr. S COTT. Yes? Chairman S PRATT. Do you have questions?

Mr. S COTT. Thank you, Mr. Chairman. Mr. Wright, the federal government has made a motion to withdraw its application for

Yucca Mountain. What do public service commissioners outside of

Nevada think of that?

Mr. W RIGHT. Well, they are not real happy about it, I can tell you that. I mean, a lot of us, and I can speak specifically to my

committee, the Subcommittee on Nuclear Issues and Waste Dis-

posal, which is made up of commissioners. And then, you know, not

just my committee, but those that have defense waste in the states

around the country, or even get power from across state lines. They

may not have a reactor but they do pay into the fund. They do not

understand the with prejudice thing at all. And one, we feel, com-

missioners do feel, especially the ones that have been involved in

this issue, feel like there was a knife taken to us. Because we were

encouraging working alongside the Department of Energy and

pushing forward trying to get a license application submitted so

that we could move forward and get the process started, and con-

sider the science of Yucca Mountain. If science proves it is not

workable, then it is not, and then the Congress can do what they

want. But the commissioners, we were supportive of that and we

were all working toward encouraging Congress to move forward

with funding to make sure the license app could be defended, and

then it is like they turned on us.

Mr. S COTT. Have the commissioners expressed an opinion as to whether or not the federal government has the legal authority to

withdraw the application?

Mr. W RIGHT. We do not believe that they do. And I can tell you, you know, in South Carolina we are part of that lawsuit process.

You know, the bottom line is, you know, we have your waste, and

you have our money.

Mr. S COTT. Now, there is a concept of total life cycle costs, when you try to charge for electricity, for example, charge for power, that

you want to charge the total life cycle costs, not just the annual lit-

tle costs. Because if there is a balloon, like disposal costs at the

end, you want to have collected that going through. If you do not

know what you are going to do for disposal, how do you set a rea-

sonable cost for consumers for their electricity?

Mr. W RIGHT. Well, I mean, one-tenth of a cent is one-tenth of a cent. That is what we are, that is what we are--

Mr. S COTT. That is what you--

Mr. W RIGHT. The utilities are obligated to charge that to the ratepayer.

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 63 of 89 (Page 88 of Total) 51 Mr. S COTT. And the federal government is obligated to take the disposed waste, so that is your end cost?

Mr. W RIGHT. That is what you would think, yes.

Mr. S COTT. Okay. Now, if they--

Mr. W RIGHT. But, but, taxpayers are having to pay, and rate-payers, through the Judgment Fund to settle these suits, too.

Mr. S COTT. And if they are paying to settle these lawsuits and have this ongoing expense of litigation, is that cost of litigation, is that cost passed on to the ratepayers in South Carolina? I mean, somebody has got to pay the cost of the litigation, if--

Mr. W RIGHT. Well, and in our State it is the State of South Caro-lina, the City of Aiken, that are involved in the litigation, so rate-

payers would not be involved in that. There is not a utility in my

state that is suing. Now, they are suing for the Judgment Fund for

failure, and there have been settlements, I believe with Duke and

with SCE&G. So, there have been settlements out of the Judgment

Fund, but that does not come from the Nuclear Waste Fund.

Mr. S COTT. If we are not going to use Yucca Mountain, if Yucca Mountain is as we heard off the table, when would you expect us

to have a site designated, open, and working?

Mr. W RIGHT. Well, it is my position personally, and others too, but I am going to speak for myself right now. The Nuclear Waste

Policy Act is pretty clear on that. Congress selected the site and

went through a long process, and Yucca was selected at the end.

And that is the law of the land.

Mr. S COTT. And if we start--

Mr. W RIGHT. And Congress has to change that.

Mr. S COTT. If we start from scratch, and start looking all over from scratch, how long do you think it would take to get to where

we are now?

Mr. W RIGHT. I would probably, my son would probably have great-grandchildren. I really have no idea.

Mr. S COTT. Thank you, Mr. Chairman.

Chairman S PRATT. Mr. Etheridge?

Mr. E THERIDGE. Thank you, Mr. Chairman. Thank you, Commis-sioner Wright, for being here today. I guess just like our southern

neighbor, North Carolina taxpayers are, they have invested signifi-

cantly in nuclear plants, are in the process of adding to that.

Mr. W RIGHT. Yes, sir.

Mr. E THERIDGE. Or in the process of trying to do that. And we have been paying, trying to move toward building a more sustain-

able energy future, as I said earlier. And we rank, I think, probably

fifth, or certainly in the top five, in the money invested in the Nu-

clear Waste Fund, somewhere in the neighborhood of, short of $900

million. You stated in your testimony that ratepayers pay four

times-- Mr. W RIGHT. Yes, sir.

Mr. E THERIDGE[continuing]. For waste--

Mr. W RIGHT. Not counting decommissioning funds.

Mr. E THERIDGE[continuing]. Yeah, for waste disposal. I would be interested in you expanding for the record how that affects the av-erage homeowner's bill each month, or a business consumer each

month. USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 64 of 89 (Page 89 of Total) 52 Mr. W RIGHT. Well, every utility, nuclear utility, has to come be-fore commissioners for a rate proceeding, especially when they are looking at raising rates. Not too many of them will come to reduce

rates, but you know, we welcome that when they do. But people are

becoming more and more aware about the cost that they are having

to pay for, whether it is to store the waste on site, the Nuclear

Waste Fund fee, the security for the location where the waste is

stored. And so, they see the multiple hits and they are starting to

catch onto it, okay? For a long time they did not catch onto it. A

lot of times even the staff of members of Congress did not know

about it. But they are becoming more educated about it. And so, the more that it is talked about and they see it, I think, and espe-

cially in tough economic times. And it is more aggravated now be-

cause the cost of commodities, coal, natural gas, all those things

that we are looking for, base load needs, are going up. And so at

some point, along with taxes. So, at some point the customer and

the consumer, ratepayer, taxpayer, they are all at some point a

ratepayer and a taxpayer for sure, enough is enough. And they

will, you know, it is going to get more difficult.

Mr. E THERIDGE. So, but what are the four times they pay?

Mr. W RIGHT. The four times they pay?

Mr. E THERIDGE. Yes. Mr. W RIGHT. They pay to the Nuclear Waste Fund.

Mr. E THERIDGE. Right. Mr. W RIGHT. Okay? The one-tenth of a cent. Then they are pay-ing into the fund, or through rates they are paying to enlarge their

cooling pools to rerack, to expand to keep more waste. Then they

are taking the waste that has filled the pool, okay? And they have

got it, and it has been there for five years or longer. They are tak-

ing it out of the pool so they can put other waste in there to cool

it. And then they are putting that in dry cask storage, and they

are having to pay to store that on site. And then the fourth time

that they are paying is, again is not just a ratepayer but a tax-

payer, through the Judgment Fund to settle these lawsuits.

Mr. E THERIDGE. Thank you, Mr. Chairman. I yield back.

Chairman S PRATT. And for all of these additional steps, the re-racking and so forth, is that cost being sought and recovered in the

litigation against the Department of Energy?

Mr. W RIGHT. I am not exactly sure how that is all, I heard Mr.

Harris try to explain that. Or maybe it was the gentleman over

here, Mr. Hertz, and I was a little bit confused about that. But I

do know that when the expansions are made at the nuclear facili-

ties, that the ratepayer is paying that recovery cost there. I know

that. Chairman S PRATT. And if this issue is not resolved within, say, the next ten years, will it be necessary for the nuclear plants in

South Carolina to expand their pools for the placement of the casks

with nuclear waste?

Mr. W RIGHT. That is a good question, Mr. Chairman. I know that if they are full, they just continue to put it in dry cask storage. I

do not know that they would enlarge the pools anywhere. But the

new, you know, you have got the new plants that are going to be

coming on line, two of them for sure, in, I think in 2016 and 2017, something like that, at the--

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 65 of 89 (Page 90 of Total) 53 Chairman S PRATT. That is my next question. Despite this issue, Duke, Progress Energy, and SCANA, three of Carolina's utilities, are still pushing forward with plans for new reactors.

Mr. W RIGHT. Well, the only two that have been through a rate proceeding, have been approved, are the two at V.C. Summer that

are through SCANA, through SCE&G. The other plants have not

come before us, but there has been paperwork filed at the NRC.

But there has not been a proceeding before the State. So what they

are going to do, I could not tell you what the utilities' future for

Duke or Progress are. But SCANA moved forward. But when

SCANA moved forward, Yucca was still the end site, the geologic

repository.

Chairman S PRATT. We have several different engineering groups that have kind of merged efforts for several different providers, several different power companies. In order not to reinvent the

wheel, they are working together on technology and design of new

facilities. And in addition, of course, we have others in the State

working on the creation of MOX fuel out of bomb grade materials.

Mr. W RIGHT. Yes, sir.

Chairman S PRATT. Have we had any layoffs or significant job losses as a result of the decisions by DOE to close Yucca Mountain?

Mr. W RIGHT. I believe there has been some impact at SRS. I am not, I can get that for you. But I believe there has been some im-

pact, but how much I do not have knowledge of that.

Chairman S PRATT. It was my information that one group in par-ticular in the Fort Mill area of the State, near Charlotte, closed

down an office due to the fact that this decision--

Mr. W RIGHT. Yes, sir. I am sure that has happened. But to quan-tify it, I could not tell you how many people or, you know, what

the economic impact is. Although I can certainly get that, because

the City of Aiken would give me that information.

Chairman S PRATT. If you get it and submit it for the record, we would appreciate it.

Mr. W RIGHT. Yes, sir. I would be glad to do that.

Chairman S PRATT. Any other questions of the witness? Thank you very much, Mr. Wright, for coming today. And I would ask unanimous consent that members who did not have the oppor-

tunity to ask questions be given seven days in order to submit

questions for the record. Thank you very much, Mr. Wright, and

the hearing is adjourned.

[The prepared statement of Mr. Connolly follows:]

P REPARED STATEMENTOF H ON. G ERALD E. C ONNOLLY , A REPRESENTATIVEIN C ONGRESS FROMTHE STATEOF V IRGINIA Mr. Chairman, thank you for holding this hearing on the budgetary implications of the plan to close Yucca Mountain as a nuclear waste repository. I look forward

to a discussion of the financial issues surrounding the storage of our nation's grow-

ing stock of spent nuclear fuel and other radioactive waste.

Nuclear and radioactive waste is an unfortunate byproduct of our nation's 104 nu-clear reactors and power plants, hospital waste, industrial waste, federal nuclear

weapons programs, and other domestic sources. Nuclear power currently generates

roughly 20 percent of the nation's electricity. Most of the waste from these reactors

is stored on the individual sites at this time. There is more than 56,000 metric tons

of waste stored around the country at 121 different sites. In my own state of Vir-

ginia, more than 30 percent of our electricity is generated by two plants at North

Ana and Surry. More than 2,000 metric tons of waste from the four reactors at those

plants is stored on site in the Commonwealth.

USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 66 of 89 (Page 91 of Total)

Exhibit 9 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 67 of 89 (Page 92 of Total)

U.S. GOVERNMENT PRINTING OFFICE WASHINGTON

For sale by the Superintendent of Documents, U.S. Government Printing OfficeInternet: bookstore.gpo.govPhone: toll free (866) 512-1800; DC area (202) 512-1800Fax: (202) 512-2104Mail: Stop IDCC, Washington, DC 20402-0001 76-685 PDF 2013 S. H RG. 112-598 THE NUCLEAR WASTE ADMINISTRATION ACT HEARING BEFORETHE COMMITTEE ON ENERGY AND NATURAL RESOURCES UNITED STATES SENATE ONE HUNDRED TWELFTH CONGRESS SECOND SESSION TO RECEIVE TESTIMONY ON S. 3469, THE NUCLEAR WASTE ADMINISTRATION ACT OF 2012 SEPTEMBER 12, 2012 ( Printed for the use of the Committee on Energy and Natural Resources USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 68 of 89 (Page 93 of Total)

(II) COMMITTEE ON ENERGY AND NATURAL RESOURCES JEFF BINGAMAN, New Mexico, Chairman RON WYDEN, Oregon TIM JOHNSON, South Dakota

MARY L. LANDRIEU, Louisiana

MARIA CANTWELL, Washington

BERNARD SANDERS, Vermont

DEBBIE STABENOW, Michigan

MARK UDALL, Colorado

JEANNE SHAHEEN, New Hampshire

AL FRANKEN, Minnesota

JOE MANCHIN, III, West Virginia

CHRISTOPHER A. COONS, Delaware LISA MURKOWSKI, Alaska

JOHN BARRASSO, Wyoming

JAMES E. RISCH, Idaho

MIKE LEE, Utah

RAND PAUL, Kentucky

DANIEL COATS, Indiana

ROB PORTMAN, Ohio

JOHN HOEVEN, North Dakota

DEAN HELLER, Nevada

BOB CORKER, Tennessee R OBERT M. S IMON , Staff Director S AM E. F OWLER , Chief Counsel M C K IE C AMPBELL , Republican Staff Director K AREN K. B ILLUPS , Republican Chief Counsel USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 69 of 89 (Page 94 of Total)

(III) C O N T E N T S STATEMENTS Page Barron, Henry B., President and Chief Executive Officer, Constellation En-ergy Nuclear Group, LLC, Baltimore, MD .........................................................27 Bingaman, Hon. Jeff, U.S. Senator From New Mexico ........................................1 Fettus, Geoffrey H., Senior Attorney, Nuclear Program, Natural Resources Defense Council ....................................................................................................33 Heller, Hon. Dean, U.S. Senator From Nevada ....................................................2

Lyons, Peter B., Assistant Secretary for Nuclear Energy, Department of En-ergy ........................................................................................................................10 Meserve, Richard A., President, Carnegie Institution for Science ......................7 Murkowski, Hon. Lisa, U.S. Senator From Alaska ...............................................2

Scowcroft, General Brent, Co-Chairman, Blue Ribbon Commission on Amer-ica's Nuclear Future .............................................................................................4 APPENDIXES A PPENDIX I Responses to additional questions ..........................................................................47 A PPENDIX II Additional material submitted for the record ........................................................63 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 70 of 89 (Page 95 of Total)

(63) A PPENDIX II Additional Material Submitted for the Record N ATIONAL ASSOCIATIONOF R EGULATORY U TILITY C OMMISSIONERS , September 10, 2012.

Hon. J EFF B INGAMAN , Chair, Committee on Energy and Natural Resources, U.S. Senate, Washington, DC.

Hon. L ISA M URKOWSKI , Ranking Member, Committee on Energy and Natural Resources, U.S. Senate, Wash-ington, DC.

D EAR C HAIRMAN BINGAMANAND R ANKING M EMBER M URKOWSKI: The National Association of Regulatory Utility Commissioners (NARUC) would like to submit the following comments regarding the proposed Nuclear Waste Ad-ministration Act of 2012, S. 3469.

NARUC and our member State public utility commissioners have been actively engaged in the issue of nuclear waste disposal since the Nuclear Waste Policy Act

was enacted in 1983. We followed closely and participated in the work of the Blue

Ribbon Commission on America's Nuclear Future and we want to contribute to im-

plementing its recommendations so that the troubled program can get on track.

Our interest in this issue centers around the consumers of nuclear utilities who have been bearing the ultimate cost of fees paid by their utilities for the electricity

that is produced from the Nation's 104 nuclear reactors. Those fee payments rep-

resent the grand bargain set in the Nuclear Waste Policy Act. Under the Act, the

federal government is responsible for the safe disposal of both government and com-

mercial nuclear waste, and those who have benefit (i.e. consumers of nuclear power) shall pay for the cost of disposal of waste products. Unfortunately, history has prov-

en that the collection of fees has been the only aspect of the nuclear waste program

that began on time and has functioned as designed.

We should note for the record that NARUC is a party to litigation before the Court of Appeals District of Columbia Circuit seeking to require that the Nuclear

Regulatory Commission resume the Yucca Mountain license application review and

come to a final determination of whether a repository at Yucca Mountain meets reg-

ulatory requirements or not.

The Blue Ribbon Commission on America's Nuclear Future in its January Report to the Secretary of Energy said all of its recommendations can and should be imple-

mented regardless of what happens to Yucca Mountain. We had expected that the

Administration would have provided some indication of whether and how it will im-

plement those recommendations or how it intends to fulfill the Federal Govern-

ment's obligations for managing and ultimately disposing of spent nuclear fuel and

high-level radioactive waste as it pledged in 2009.

We commend the leadership of this Committee for your collaborative efforts with members of the Energy and Water Appropriations Subcommittee to produce the pro-

posed Nuclear Waste Administration Act of 2012, S. 3469, as a legislative vehicle

to incorporate key provisions of the BRC Report into a modified Nuclear Waste Pol-

icy Act. We have some comments from the standpoint of ratepayers and in some in-

stances in comparison with the BRC recommendations.

You will not be surprised that our primary interest is on fixing the Nuclear Waste Fund. The BRC said it believed that the success of a revitalized waste management

program will depend on making the revenues by the nuclear waste fee and the bal-

ance in the NWF available when needed and in the amounts needed to implement

the program. The Commission called for reform in two stages:

• Near Term, within existing administrative authority: Modifying existing con-tracts with utilities such that total fees paid to the Treasury would match the

amount appropriated from the NWF in the same year. The balance would be

placed in irrevocable trust accounts (escrow) for future payments. The fee rev-USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 71 of 89 (Page 96 of Total) 64 enue would be reclassified as offsetting receipts, subject to concurrence by the Congressional Budget Office and the Budget Committees.

• Congressional action required: The BRC recommended budget autonomy for the new nuclear waste management organization that would require legislation (such as S. 3469) to establish. Specifically, the BRC recommended the legisla-

tion include a defined schedule of payments to transfer the balance of the Fund (the corpus) to the new organization over a reasonable future time period start-

ing 10 years after the organization is established.

We are deeply disappointed that the Administration chose not to move ahead on the near-term action which was so carefully researched by the Blue Ribbon Commis-

sion and placed in their hands. We are not experts in federal fiscal rules, but given

the importance of resolving this issue, we expected a better effort. This lack of ac-

tion reminds us of a baseball saying-You will never get a hit if you don't take

a swing.

Thankfully, as it relates to the actions requiring congressional action, , S. 3469 steps up to the plate. The legislation creates an independent agency called the Nu-

clear Waste Administration that would be given most of the duties and authorities

under the NWPA that are presently assigned to the Secretary of Energy. Still, we

are concerned about how the program will be managed before legislation is enacted

and how transition to the NWA is implemented. For the past two years, about $770

million in fees have been paid into the Nuclear Waste Fund annually and no money

was appropriated for waste disposal. It appears, however, that the money was spent

for other purposes and more IOU's were added to the Fund. We are anxious to

see if FY 2014 is any different.

Regarding the organizational form and function, we thought the federal corpora-tion proposed by the BRC was well considered. We found the various oversight

mechanisms ample, including a role for State utility commissioners to serve in the

review of fee adequacy determination.

Having seen extended vacancies in the senior DOE waste program manager's po-sition caused by lengthy confirmation delays in the Senate during the Yucca period, we find the BRC federal corporation a well suited approach. This is because having

presidentially appointed directors select the CEO better protects the position and

provides greater program stability than the politically-appointed Administrator/Dep-

uty Administrator positions the NWA legislation would.

Moreover, the bill does not heed the clear call for financial reform made by the BRC and it may impede the startup of the new organization. The Administration (so far) chooses to avoid a rejection of the near-term fee reclassification, so let us

express some apprehension over how a Nuclear Waste Administration might be dif-

ficult to form if it cannot attract top-tier talent because of concerns over its financial

stability. Potential applicants for the NWA Administrator position do want to see

a secure financial foundation underlying the NWA or other organization.

Additionally, we are puzzled by the appearance of different degrees of financial autonomy for the new Administration:

• In Sec. 301 the NWA is given authority for the collection, adjustment, deposi-tion and use of fees to accomplish waste functions, yet

• Sec. 401 (c) says funds deposited in the Working Capital Account shall be im-mediately be available. to carry out the functions of the Administrator, except

to the extent limited in annual authorization or appropriation Acts.

The Working Capital Fund seems to offer improved access to the fee revenue, which should be an improvement over the present arrangement. An even better

strengthening of the NWA financial support, though, would have the interest earned

on the balance in the Nuclear Waste Fund deposited in the Working Capital Fund.

In recent years, that interest has been over $1 billion a year.

The bill gives no indication on any disposition schedule like the BRC suggested; leaving some doubt about when and under what conditions the corpus, reportedly

over $26 billion now, will be made available for the purpose it was collected. No one

is saying there is a need to use that money now, but every calculation of the suffi-

ciency of the fees rests on the assumption that 100 percent of past fees paid is avail-

able to the waste activities program, including interest. It seems ironic, then, that

Section 403 provides direction that the NWA is to assume that sufficient funds will

be appropriated to the NWA to cover the cost of defense waste disposal, yet there

is no counterpart assurance that past fee revenue collected and supposedly held in

the Nuclear Waste Fund will also be appropriated.

We agree with the shift to a more co-equal consent-based approach to siting nu-clear waste facilities. We hope that the implementing organization is given latitude

to be adaptive to the circumstances of the States and localities involved. There are USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 72 of 89 (Page 97 of Total) 65 opportunities to employ the principles recommended by the BRC in pursuit of a con-solidated interim storage facility for spent nuclear fuel from the decommissioned re-

actor storage sites. Successful development of such a facility-whether by DOE or

a new organization-would demonstrate that the government can safely transport

and store spent nuclear fuel while pursuing a geologic repository. There are a num-

ber of cost estimates for building such a facility. One done by DOE in 2007 indicated

a facility for the decommissioned sites could be built and operated for 15 years for

the same amount of fees paid by all reactors in a single year.

The bill includes many other important elements that we are not addressing here.

Importantly, we want to continue to work with DOE until a new organization is

formed and functional. We must be realistic about just how quickly we can move

forward, even if Congress passes a bill. Issues such as the radiation standards, siting guidelines and development of a mission plan within a year, will take time.

Indeed, just building a nucleus staff and creating a new organization will take time.

As we stand at the threshold of dramatic sequestration reductions in federal agen-cy budgets, there may be resistance to creating a new federal agency for any pur-

pose. We considered it unfortunate that the Administration took credit in the FY

2010 Budget for termination of the Yucca Mountain program, rather than recog-

nizing that the Administration-we believe-meant to cancel the Yucca Mountain

project and to reset the development of the program at a different site or sites. We

regret the disbanding of a residual staff within the Department of Energy that could

tend to disposal affairs during the BRC deliberation and to aid in the establishment

of a new waste management organization.

In conclusion, NARUC appreciates the leadership in creating this bill-a positive step-although we remain apprehensive about limits on annual fees and worried

over the corpus.

The best media summation comes from July 4 New York Times: If nuclear power is to have a future in this country, politicians, scientists, and industry leaders need

to commit to finding a solution instead of just hoping everything will somehow work

out.The BRC expressed much the same appeal in its Report, as its members be-

lieve it is long past time for the government to make good on its commitments to

the American people to provide for the safe disposal of nuclear waste.

Sincerely, D AVID A. W RIGHT , NARUC President, Vice Chairman, South Carolina Public Service Commission.

STATEMENTOFTHE E NERGY C OMMUNITIES A LLIANCE Chairman Bingaman, Ranking Member Murkowski and Members of the Com-mittee, we thank you for accepting our written testimony on S.3469, a bill to estab-

lish a new organization to manage nuclear waste, provide a consensual process for

siting nuclear waste facilities, ensure adequate funding for managing nuclear waste, and for other purposes. We would also like to thank the sponsor of this bill: Senator

Jeff Bingaman (D-NM). The Energy Communities Alliance (ECA) is the association

of local governments that are adjacent to or impacted by Department of Energy (DOE) nuclear activities. Our members are either neighbors or hosts of DOE and

National Nuclear Security Administration (NNSA) sites that currently produce or

formerly produced defense nuclear waste, sites that store and process defense nu-

clear waste, and the sites that may potentially host a future interim storage facility, reprocessing facility or geologic repository.

Founded in 1992, ECA is the only association to bring together and provide a cen-tral voice for local elected and appointed officials on DOE issues. Our sites are the

sender and receiver sites for nuclear waste, and potential hosts for nuclear waste

interim storage, recycling and disposal facilities. We believe that local governments

have a critical role to play in any waste discussion, and we have stated this position

many times in our testimony before the Blue Ribbon Commission on America's Nu-

clear Future (BRC). We applaud the efforts of this legislation to ensure that local

governments are involved in waste decisions from the beginning.

Our communities are most interested in the disposal of defense waste currently stored at many of our sites. As you consider this legislation, we ask you to take into

account the impact these decisions will have on our communities. We would like to

offer the following recommendations and comments on S.3469:

• Congress and the Administration Need to Re-Engage Communities on HLW Issues *ECA Supports the Inclusion of Local Governments in the Decision-Making Proc-ess USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 73 of 89 (Page 98 of Total) 70 ation. Many states may opt not to view storage as any sort of burden due to incen-tives, road payments and job creation opportunities. If the determination of burden

vs. benefit is strictly left up to the individual state, such language could be produc-

tive. However, opponents of a specific storage site may interpret such language to mean that states that currently have nuclear waste facilities would not be eligible

for storage because they have already done their share when it comes to the na-tion's nuclear waste needs. This is again a determination that should be made by

each individual state rather than having the federal government decide. An incen-

tive-based interim storage plan could be quite lucrative for an interested state-the

federal government should avoid any language that might be somehow used, through misinterpretation, to punish states already involved in the nuclear waste

process by making them less eligible for a desired facility.

Furthermore, many of the states with existing nuclear waste facilities (including transuranic) are likely to be some of the nation's best locations for future storage

due to geographic and geologic considerations, existing trained workforce avail-

ability, and regional socio-political understanding of nuclear waste issues. A mis-

interpretation of the unduly burden line could be used to eliminate many of the

nation's best possible locations for interim storage.

Senators, we ask that you look to our nation's recent past at some of the mistakes made during the formation of the Nuclear Waste Policy Act (and amendments).

There were unique provisions, for example, placed in the NWPA forbidding certain

types of future study of specific types of geology. Those type of misplaced, self-serv-

ing laws are still causing our nation legal difficulties today. When in doubt, we be-

lieve the best path forward in any legislation aiming to capture the spirit of the

BRC's recommendations is to leave interpretations up to individual states and to

avoid any federal language that might obstruct this process.

In summary, our recommendations to the proposed bill, as it currently stands, are as follows:

1. Delink interim storage from repository development.

2. Establish language allowing for defense high level waste to be stored in an interim storage facility.

3. Remove the bill's unduly burden language as it applies to states with TRU waste or defense waste to avoid probable misinterpretation.

We remain inspired by the bi-partisan, sincere efforts the four of you have dis-played in putting together our nation's nuclear plan. We believe this bill, once com-

plete, may well create a responsible national stewardship plan that will withstand

the test of time. Our organization thanks you all again for your contributions to

solving our nation's nuclear waste crisis and your decades of service to this great

nation. STATEMENTOF D AVID A. W RIGHT , C HAIRMAN , S OUTH C AROLINA P UBLIC S ERVICE C OMMISSION , N UCLEAR W ASTE S TRATEGY C OALITION

Dear Chairman Bingaman & Ranking Member Murkowski:

The Nuclear Waste Strategy Coalition (NWSC) thanks the Senate Energy & Nat-ural Resources Committee for convening a hearing on important issues pertaining

to nuclear waste disposal and submits the following comments regarding S. 3469, the Nuclear Waste Administration Act of 2012. Described by its sponsor as a bill

to implement the recommendations of the Blue Ribbon Commission on America's

Nuclear Future (BRC), S. 3469 and the related September 12th hearing provide an

opportunity to begin building a record for future Congressional action on the BRC

and other approaches to best meet the needs of our country with respect to nuclear

waste policy reform.

The BRC report contained many recommendations that our members have long supported, including funding reform to protect consumers' continuing fee payments

and the Nuclear Waste Fund (NWF) balance; prompt development of consolidated

interim storage and geologic disposal; and an independent waste management orga-

nization with the authority and resources to succeed.

Although not addressed by the BRC, the proposed Yucca Mountain repository re-mains the nation's best hope for promptly developing geologic disposal. The De-

partment of Energy (DOE) and the Nuclear Regulatory Commission (NRC) should

resume the Yucca Mountain licensing process both as a requirement of law and as

a matter of respect to taxpayers and electricity customers who have invested billions

of dollars in the license application. The NWSC supports Yucca Mountain and the

BRC recommendations, and we emphasize these are not mutually exclusive posi-USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 74 of 89 (Page 99 of Total) 71 tions. Nothing in the BRC report precludes resumption of work on Yucca Mountain.

In fact, the BRC recommendations may be viewed as complementary steps to ad-

dress needs in the interim and over the longer-term. Specifically, consolidated in-

terim storage is needed until a repository is opened, and an additional repository-

perhaps sited using a consent-based process-will be needed under existing law.

With that context, the NWSC provides feedback regarding certain provisions of S. 3469: Independent Waste Management Organization Following years of budget cuts, management turnover, and missed deadlines, our members wholeheartedly support the BRC recommendation for a new, single-pur-pose organization to develop and implement a focused, integrated program for the

transportation, storage, and disposal of nuclear waste. Such an organization could

be structured numerous ways. We prefer models that ensure accountability but rea-

sonably insulate the organization from political interference and excessive turnover

in key positions. Additionally, stakeholders should serve in some type of oversight

or advisory capacity. The proposed Nuclear Waste Administration in S. 3469 is lack-

ing with respect to some of the key elements noted here. While not endorsing any

one model at this point, we prefer the government-owned corporation model as rec-

ommended by the BRC over models that set up government agencies with both po-

litically-appointed leadership and oversight boards that tend to change with every

administration. Finally, regardless of the model chosen for transferring nuclear waste management functions out of DOE, guidance to facilitate a smooth transition

would be helpful.

Funding Reform Consistent with the BRC recommendations, the Administration, with Congres-sional support, needs to fix the funding for the nuclear waste program. The BRC eloquently stated the importance of reforming the existing funding mechanism as

follows: The success of a revitalized nuclear waste management program will de-pend on making the revenues generated by the nuclear waste fee and the

balance in the NWF available when needed and in the amounts needed to

implement the program.

In a letter to the President over a month before their report was issued, the BRC Co-Chairs delineated near-term steps for timely actions that the current

unsustainable situation warrants. Unfortunately, those recommendations have not

been followed. As for S. 3469's creation of a new Working Capital Fund, we com-

mend the effort to stop future raiding of consumer payments intended for the pro-

gram. However, access to the Working Capital Fund would be subject to appropria-

tions, potentially limiting the Administrator's ability to carry out necessary program

activities. Also, we support NARUC's suggestion to strengthen financial support of

the new organization by transferring the interest earned on the NWF balance to the

new Working Capital Fund. Finally, we would like assurance that the balance in

the NWF will be made available when program needs dictate.

Consolidated Interim Storage Consolidated interim storage (CIS) should be authorized and funded as a safe, cost-effective option for managing spent nuclear fuel and high-level radioactive waste from decommissioned and operating plants. While a permanent facility is

being licensed and constructed, one or more CIS facilities would permit the federal

government to begin meeting its obligations and reduce taxpayer liabilities associ-

ated with the government's delay. As such, we support the BRC call for prompt ef-

forts to develop CIS with used nuclear fuel from the decommissioned reactor sites

first in line for transfer. We were delighted to see that approach in the Senate

appropriations language introduced earlier this year, and we suggest that com-

prehensive reform proposals such as S. 3469 expressly include language to ensure

that CIS is authorized.

Although well-intentioned, the linkage between CIS and progress on a permanent disposal facility in S. 3469 prevents site-specific flexibility and does not need to be

legislatively mandated. Recognizing a need for disposal under any scenario, the

country must promptly site and construct a permanent disposal facility, and we urge

Congressional efforts to properly fund the repository program accordingly. That

would best ensure that current dry cask storage and future CIS facilities do not be-

come de facto permanent disposal facilities. At the same time, we need authoriza-

tion and appropriations for CIS that affords as much flexibility as possible. In a con-

sent-based siting scenario, potential CIS facility host communities would be empow-USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 75 of 89 (Page 100 of Total) 72 ered to assess and manage the risks of becoming de facto permanent facilities, and they will undoubtedly do so.

Additionally, the bill's requirement that utilities settle their lawsuits against the federal government in order to be permitted to use a CIS facility would seem to per-

petuate the untenable situation of prolonged on-site dry cask storage and mounting

federal government liability. We need not remind Congress about which entity has

not met its obligations under the law and per its contracts with utilities. The federal

government still has a roadmap for avoiding future liability via performance.

Consent-Based Siting With respect to consent-based siting processes, the NWSC emphasizes the need for flexibility so as not to limit creative and effective solutions that may be proposed by potential host communities. With that in mind, we agree that is important to have an enforceable agreement at some point.

While many of the BRC recommendations require legislative solutions, DOE should take action immediately to advance BRC near-term recommendations under

existing authority. Until that happens, DOE should be held accountable to deliver

a plan that reflects a sense of urgency, outlines specific actions, and takes owner-

ship for the country's high level radioactive waste. Therefore, we urge you to remind

DOE of the Senate's interest in receiving the implementation plan.

In addition, it appears likely that the court will soon order the NRC and DOE to resume the Yucca Mountain licensing process. DOE and NRC should have execut-

able plans in place to do so. We urge you to request a specific plan, including the

resources required for completing the licensing process, from DOE and NRC.

Thank you for your leadership in initiating the dialogue pertaining to certain BRC recommendations. The NWSC stands ready to work with you and your Congres-

sional colleagues, the Administration, and DOE to advance meaningful nuclear

waste policy reform. Please let us know if you would like to discuss further.

N ATIONAL CONFERENCEOF S TATE L EGISLATURES , Washington, DC, September 14, 2012.

Hon. J EFF B INGAMAN , Chairman, Committee on Energy and Natural Resources, U.S. Senate, 304 Dirksen Senate Building, Washington, DC.

Hon. L ISA M URKOWSKI , Ranking Member, Committee on Energy and Natural Resources, U.S. Senate, 304 Dirksen Senate Building, Washington, DC.

Re: Nuclear Waste Administration Act of 2012 (S. 3469)

D EAR C HAIRMAN BINGAMANAND R ANKING M EMBER M URKOWSKI , On behalf of the National Conference of State Legislatures (NCSL), I applaud this committee for moving the debate concerning America's nuclear energy issues for-

ward by building on the recommendations for a new national radioactive waste

management strategy made by the Blue Ribbon Commission on America's Nuclear

Future (BRC) in its final report issued on January 26, 2012.

NCSL is the bi-partisan national organization representing the 50 state legisla-tures and the legislatures of our nation's commonwealths, territories and the Dis-

trict of Columbia. NCSL has a long history of working on nuclear energy issues.

Specifically, NCSL's Nuclear Legislative Working Group, of which I am the chair, is comprised of state legislators from across the country who discuss issues sur-

rounding nuclear energy including the safe handling, storage and transportation of

waste. This long-standing group meets twice a year and also helps to form NCSL

policy directives on this and other topics. I am also a member of NCSL's Executive

Committee and serve on NCSL's Energy Supply Task Force. The task force explores

current energy policies in the United States and makes recommendations for

changes to current NCSL policy related to energy issues.

NCSL has adopted two applicable policies on these topics, Radioactive Waste Management Policy Directive and National Energy Policy Directive, which have

been submitted as attachments to these written remarks. These two policies serve

as the foundation for these remarks and our support of congressional efforts to find

a solution to nuclear waste management in the U.S. including:

• development and licensing of a high-level waste/used nuclear fuel permanent disposal facility;

• establishment of consolidated interim storage facilities at technically and sci-entifically suitable sites; USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 76 of 89 (Page 101 of Total)

Exhibit 10 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 77 of 89 (Page 102 of Total)

U.S. GOVERNMENT PRINTING OFFICE WASHINGTON

For sale by the Superintendent of Documents, U.S. Government Printing OfficeInternet: bookstore.gpo.govPhone: toll free (866) 512-1800; DC area (202) 512-1800Fax: (202) 512-2104Mail: Stop IDCC, Washington, DC 20402-0001 75-441 PDF 2012 RECOMMENDATIONS OF THE BLUE RIBBON COMMISSION ON AMERICA'S NUCLEAR FUTURE HEARING BEFORETHE SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY OFTHE COMMITTEE ON ENERGY AND COMMERCE HOUSE OF REPRESENTATIVES ONE HUNDRED TWELFTH CONGRESS SECOND SESSION FEBRUARY 1, 2012 Serial No. 112-109 ( Printed for the use of the Committee on Energy and Commerce energycommerce.house.gov VerDate Aug 31 2005 14:12 Aug 20, 2012Jkt 037690PO 00000Frm 00001Fmt 5011Sfmt 5011F:\112-00~1\112-10~2\112-10~1WAYNE USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 78 of 89 (Page 103 of Total)

COMMITTEE ON ENERGY AND COMMERCE FRED UPTON, Michigan Chairman JOE BARTON, Texas Chairman Emeritus CLIFF STEARNS, Florida ED WHITFIELD, Kentucky

JOHN SHIMKUS, Illinois

JOSEPH R. PITTS, Pennsylvania

MARY BONO MACK, California

GREG WALDEN, Oregon

LEE TERRY, Nebraska

MIKE ROGERS, Michigan

SUE WILKINS MYRICK, North Carolina Vice Chairman JOHN SULLIVAN, Oklahoma

TIM MURPHY, Pennsylvania

MICHAEL C. BURGESS, Texas

MARSHA BLACKBURN, Tennessee

BRIAN P. BILBRAY, California

CHARLES F. BASS, New Hampshire

PHIL GINGREY, Georgia

STEVE SCALISE, Louisiana

ROBERT E. LATTA, Ohio

CATHY M C MORRIS RODGERS, Washington GREGG HARPER, Mississippi

LEONARD LANCE, New Jersey

BILL CASSIDY, Louisiana

BRETT GUTHRIE, Kentucky

PETE OLSON, Texas

DAVID B. M C KINLEY, West Virginia CORY GARDNER, Colorado

MIKE POMPEO, Kansas

ADAM KINZINGER, Illinois

H. MORGAN GRIFFITH, Virginia HENRY A. WAXMAN, California Ranking Member JOHN D. DINGELL, Michigan Chairman Emeritus EDWARD J. MARKEY, Massachusetts

EDOLPHUS TOWNS, New York

FRANK PALLONE, J R., New Jersey BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

ELIOT L. ENGEL, New York

GENE GREEN, Texas

DIANA D E GETTE, Colorado LOIS CAPPS, California

MICHAEL F. DOYLE, Pennsylvania

JANICE D. SCHAKOWSKY, Illinois

CHARLES A. GONZALEZ, Texas

JAY INSLEE, Washington

TAMMY BALDWIN, Wisconsin

MIKE ROSS, Arkansas

JIM MATHESON, Utah

G.K. BUTTERFIELD, North Carolina

JOHN BARROW, Georgia

DORIS O. MATSUI, California

DONNA M. CHRISTENSEN, Virgin Islands

KATHY CASTOR, Florida SUBCOMMITTEEON ENVIRONMENTANDTHE E CONOMY JOHN SHIMKUS, Illinois Chairman TIM MURPHY, Pennsylvania Vice Chairman ED WHITFIELD, Kentucky

JOSEPH R. PITTS, Pennsylvania

MARY BONO MACK, California

JOHN SULLIVAN, Oklahoma

CHARLES F. BASS, New Hampshire

ROBERT E. LATTA, Ohio

CATHY M C MORRIS RODGERS, Washington GREGG HARPER, Mississippi

BILL CASSIDY, Louisiana

CORY GARDNER, Colorado

JOE BARTON, Texas

FRED UPTON, Michigan (ex officio)

GENE GREEN, Texas Ranking Member TAMMY BALDWIN, Wisconsin

G.K. BUTTERFIELD, North Carolina

JOHN BARROW, Georgia

DORIS O. MATSUI, California

FRANK PALLONE, J R., New Jersey DIANA D E GETTE, Colorado LOIS CAPPS, California

JOHN D. DINGELL, Michigan

HENRY A. WAXMAN, California (ex officio)

(II) VerDate Aug 31 2005 14:12 Aug 20, 2012Jkt 037690PO 00000Frm 00002Fmt 0486Sfmt 5904F:\112-00~1\112-10~2\112-10~1WAYNE USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 79 of 89 (Page 104 of Total)

(III) CONTENTS Page Hon. John Shimkus, a Representative in Congress from the State of Illinois, opening statement ................................................................................................1 Prepared statement ..........................................................................................4 Hon. Gene Green, a Representative in Congress from the State of Texas, opening statement ................................................................................................6 Hon. Joe Barton, a Representative in Congress from the State of Texas, opening statement ................................................................................................7 Hon. Henry A. Waxman, a Representative in Congress from the State of California, opening statement .............................................................................8 W ITNESSES Lee Hamilton, Co-Chair, Blue Ribbon Commission on America's Nuclear Fu-ture ........................................................................................................................10 Brent Scowcroft, Co-Chair, Blue Ribbon Commission on America's Nuclear Future ...................................................................................................................12 Prepared statement of Mr. Hamilton and Mr. Scowcroft ..............................16 Lake H. Barrett, President, L. Barrett Consulting ...............................................65 Prepared statement ..........................................................................................68 D. Warner North, President and Principal Scientist, NorthWorks, Inc. .............73 Prepared statement ..........................................................................................75 Martin G. Malsch, Partner, Egan, Fitzpatrick, Malsch & Lawrence, PLLC ......99 Prepared statement ..........................................................................................101 Edwin Lyman, Senior Scientist, Global Security Program, Union of Concerned Scientists ...............................................................................................................113 Prepared statement ..........................................................................................115 Thomas A. Schatz, President, Citizens Against Government Waste ..................126 Prepared statement ..........................................................................................128 David A. Wright, President, National Association of Regulatory Utility Com-missioners .............................................................................................................136 Prepared statement ..........................................................................................138 VerDate Aug 31 2005 14:12 Aug 20, 2012Jkt 037690PO 00000Frm 00003Fmt 5904Sfmt 5904F:\112-00~1\112-10~2\112-10~1WAYNE USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 80 of 89 (Page 105 of Total) 136 Mr. S HIMKUS. And now I would like to recognize Mr. Wright for 5 minutes, sir.

STATEMENT OF DAVID A. WRIGHT Mr. W RIGHT. Thank you. Good afternoon, Chairman, Ranking Member Green.

Mr. S HIMKUS. Your microphone.

Mr. W RIGHT. It is on, I believe, I will pull it closer. My name is David Wright, and I am a commissioner with the South Carolina Public Service Commission, and I serve as president of the Na-

tional Association of Regulatory Utility Commissioners on whose

behalf I am speaking today. NARUC and State utility commissions

in 40 States served by nuclear generated electricity have been in-

volved in the troubled history of nuclear waste disposal since 1983.

That is when the utilities, which own the fuel, were required by the

Nuclear Waste Policy Act, to enter into contracts with DOE. Those

contracts called for payments of fees for nuclear-generated elec-

tricity to the Treasury for deposit into the nuclear waste fund to

pay for the cost of disposal of used fuel beginning in 1998.

Disposal has not happened, but the fee payments continue to be made. Or as a former Florida utility commissioner summarized the

status in 1991, the government has our money, we have their

waste. It is now 20-plus years later, and we still have the govern-

ment's waste.

Utilities passed the cost of the fees to their customers through their electric bill. In addition, and because of the government's fail-

ure to open Yucca, customers, through their rates, have had to pay

additional amounts to cover the cost of reracking utility spent fuel

pools to accommodate more spent fuel. And have had to pay for on-

site dry cask storage as well as the increased security required

there. Moreover, all taxpayers, through the judgment fund, have had to pay damages for the lawsuits brought to date as well as those to

come. In 2009, the administration pronounced Yucca Mountain not

a workable option, and that it intended to terminate the repository

development there, a position contrary to the law of the land. In

March 2010, DOE asked the NRC's Atomic Safety Licensing Board

for permission to withdraw the application with prejudice. In June, the ASLB rejected the request. The decision was appealed to the

NRC. While the NRC was disposing of the license matter the Presi-

dent directed that the Secretary of Energy appoint the Blue Ribbon

Commission on America's nuclear future to consider and rec-

ommended a new strategy, a strategy that soon became evident

would be a post-Yucca strategy.

In 2010, NARUC and several other parties petitioned the Court of Appeals under the NWPA, to challenge DOE's authority to with-

draw the Yucca Mountain license application, but the case dis-

missed because there had been no final agency action by the NRC

on the appeal of the board's decision rejecting DOE's request. The

NWPA mandates that once the Yucca Mountain license was sub-

mitted. The NRC had only 3 years to complete the review pro-

ceedings, those 3 years have expired. Currently, the NRC faces a

mandamus action to force it to complete the required review in the

U.S. Court of Appeals for the District of Columbia circuit. NARUC VerDate Aug 31 2005 14:12 Aug 20, 2012Jkt 037690PO 00000Frm 00140Fmt 6633Sfmt 6633F:\112-00~1\112-10~2\112-10~1WAYNE USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 81 of 89 (Page 106 of Total) 137 is one of several petitioners in that suit. Our reply briefs were filed last Friday.

Notwithstanding, our pro Yucca position, NARUC was closely in-volved in the work of the BRC, we wrote letters, gave testimony, provided comments to the subcommittee and attended the public

meetings. As for the recommendations, we have the following

points: 1, reform with nuclear waste fund is, essential; 2, regard-

less of Yucca Mountain, we will need another new repository. The

lessons of Yucca and others suggest the consent-based siting ap-

proach may get better reports but will require patients; 3, we have

long favored consolidated and home storage on a parallel track

with Yucca, but find the report vague as to quantity, duration and

cost as well as what the effect will be on the fee if the nuclear

waste fund is to be used to pay for storage; 4, we agree with the

concept and benefits of a new Federal corporation that can focus

solely on the waste management mission; 5, transportation plan-

ning and coordination with States and others cannot begin soon

enough. There are two areas where we disagree with the Commission re-port. A, the report says, Overall we are confident that our waste

management recommendations can be implemented using revenue

streams already dedicated for this purpose. There are no cost esti-

mates to substantiate that belief, which likely also assumes the

$26.7 billion under the nuclear waste fund is assured; B, the report

further says, We know what we have to do, we know we have to

do it, and we even know how to do it. While we may wish that

were true, our assessment is that there were too many people who

are content to pass the problem along to future generations and

leave the waste where it is. Continuing to kick the dry cask down

the road should not be an option.

So yet another study calls for prompt action, yet despite on paper a financing plan, implementation relies on leadership from the ad-

ministration and the Congress. NARUC stands ready to assist on

behalf of ratepayers who may not even realize it, but they are al-

ready paying for safe waste disposition. Thank you for listening.

[The prepared statement of Mr. Wright follows:] VerDate Aug 31 2005 14:12 Aug 20, 2012Jkt 037690PO 00000Frm 00141Fmt 6633Sfmt 6633F:\112-00~1\112-10~2\112-10~1WAYNE USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 82 of 89 (Page 107 of Total) 138 VerDate Aug 31 2005 14:12 Aug 20, 2012Jkt 037690PO 00000Frm 00142Fmt 6633Sfmt 6633F:\112-00~1\112-10~2\112-10~1WAYNE 75441.072 BEFORE THE UNITED STATES HOUSE OF REPRESENT A TJVES COMMITTEE ON ENERGY AND COMMERCE, SUBCOMMITTEE ON ENERGY AND THE ENVIRONMENT TESTIMONY OF THE HONORABLE DAVID A. WRIGHT PRESIDENT, NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS COMMISSIONER, SOUTH CAROLINA PUBLIC SERVICE COMMISSION ON BEHALF OF THE NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS ON "Recommendations of the Blue Ribbon Commission on America's Nuclear Future" February 1, 2012 National Association of Regulatory Utility Commissioners 1101 Vermont Ave, N.W., Suite 200 Washington, D.C. 20005 Telephone (202) 898-2200, Facsimile (202) 898-2213 Internet Home Page http://www.naruc.org USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 83 of 89 (Page 108 of Total) 139 VerDate Aug 31 2005 14:12 Aug 20, 2012Jkt 037690PO 00000Frm 00143Fmt 6633Sfmt 6633F:\112-00~1\112-10~2\112-10~1WAYNE 75441.073 Summary for Testimony of the Honorable David A. Wright On Behalf of The National Association of Regulatory Utility Commissioners

• The NRC has stopped the review of the Yucca Mountain license application.

We are currently in litigation challenging the basis for not letting the process run to a conclusive result.

• NARUC welcomes the Blue Ribbon Commission Report.

• We support all of the recommendations.

• We place highest priority on fixing the Nuclear Waste Fund so that fees collected are available for purposes intended-disposing of used nuclear fuel.

• The Commission reaffirmed that we still need a new repository regardless of what happens with Yucca.

• We support consolidated interim storage but find the Report vague as to quantity, duration and cost. We encourage seeking volunteer sites.

• Implementation requires leadership from the Administration and Congress.

NARUC stands ready to help and represent ratepayers.

2 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 84 of 89 (Page 109 of Total) 140 VerDate Aug 31 2005 14:12 Aug 20, 2012Jkt 037690PO 00000Frm 00144Fmt 6633Sfmt 6633F:\112-00~1\112-10~2\112-10~1WAYNE 75441.074 Good Morning, Chairman Shimkus, Ranking Member Green, and Subcommittee Members. Thank you for the opportunity to appear before you today. My name is David Wright. I am a commissioner with the South Carolina Public Service Commission and I serve as president of the National Association of Regulatory Utility Commissioners (NARUC), on whose behalf I am speaking this morning. I appreciate the opportunity to present NARUC's views on the subject of disposition of spent or used nuclear fuel from commercial nuclear power plants. NARUC is a quasi-governmental, non-profit organization founded in 1889. Our membership includes the public utility commissions serving all States and territories.

NARUC's mission is to serve the public interest by improving the quality and effectiveness of public utility regulation.

Our members regulate the retail rates and services of electric, gas. water, and telephone utilities.

We are obligated under the laws of our respective States to assure the establishment and maintenance of such utility services as may be required by the public convenience and necessity and to assure that such services are provided under rates and subject to terms and conditions of service that are just. reasonable, and non-discriminatory.

NARUC and State utility commissions in forty States served by nuclear-generated electricity have been involved in the troubled history of nuclear waste disposal since 1983. That is when the utilities, which own the used fuel, were required by the Nuclear Waste Policy Act to enter into contracts with DOE. Those contracts called for payments of fees for nuclear-generated electricity to the Treasury for deposit into the Nuclear Waste Fund to pay for the cost of disposal USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 85 of 89 (Page 110 of Total) 141 VerDate Aug 31 2005 14:12 Aug 20, 2012Jkt 037690PO 00000Frm 00145Fmt 6633Sfmt 6633F:\112-00~1\112-10~2\112-10~1WAYNE 75441.075 of the used fuel beginning in 1998. As you know, that disposal has not happened, but the fee payments continue to be made. Or, as a former Florida utility commissioner summarized the status in 1991, "The government has our money-we have their waste." lt is now 20-plus years later and we still have the governmenrs waste. Utility commissioners care because the utilities pass the cost of the fees to their customers through their electric bill. In and because of the government's failure to open Yucca, customers, through their rates, have had to pay additional amounts to cover the cost of re-racking of the utility spent fuel pools to accommodate more spent fuel, and have had to pay for on-site dry cask storage as well as the increased security required there. Moreover, all taxpayers, through the Judgment Fund, have had to pay damages for the lawsuits brought to date as well as those to come. We followed the slow progress of the civilian radioactive waste management program as it met a variety of setbacks and advances, exacerbated by chronic budget cuts even as the illusion of a multi-billion dollar corpus grew in the Nuclear Waste Fund. A significant milestone was met in 2002 when Congress passed the joint resolution approving Yucca Mountain as the site for the geologic repository, subject to the Department of Energy obtaining a construction license from the Nuclear Regulatory Commission.

The next setback was the court remand to the Environmental Protection Agency to revise the regulation setting the radiation standard for the facility.

Finally, DOE submitted the license application in June 2008. The NRC began its review of the 8,000-page application for the first-of-a-kind facility which was expected to take three to four years. 4 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 86 of 89 (Page 111 of Total) 142 VerDate Aug 31 2005 14:12 Aug 20, 2012Jkt 037690PO 00000Frm 00146Fmt 6633Sfmt 6633F:\112-00~1\112-10~2\112-10~1WAYNE 75441.076 In 2009, the Administration pronounced Yucca Mountain not to be a "workable option" and that it intended to terminate the repository development there. In March 2010, DOE asked the NRC's Atomic Safety Licensing Board for permission to withdraw the application with prejudice.

In June, the ASLB rejected the request, ruling that once a valid license application was submitted under the NWPA, the NRC was required to review and act upon the application.

The decision was appealed to the NRC. While the NRC was disposing of the license matter, the President directed that the Secretary of Energy appoint the Blue Ribbon Commission on America's Nuclear Future (BRC) to consider and recommend a new strategy; a strategy that soon became evident would be a "post-Yucca., strategy.

In 2010, NARUC, and several other parties, petitioned the Court of Appeals under the NWPA to challenge DOE's authority to withdraw the Yucca Mountain license application, but the case was dismissed because there had been no final agency action by the NRC on the appeal of the Board's decision rejecting DOE's request. After lengthy and unnecessary delays. the NRC Chairman ultimately released a decision.

The NWPA mandates that once the Yucca Mountain license was submitted the NRC only had three years to complete the review proceedings.

Those three years have expired. Currently, the NRC faces a mandamus action to force it to complete the required review in the United States Court of Appeals for the District of Columbia Circuit. NARUC is one of several petitioners in that suit. Our reply briefs were just filed last Friday. USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 87 of 89 (Page 112 of Total) 143 VerDate Aug 31 2005 14:12 Aug 20, 2012Jkt 037690PO 00000Frm 00147Fmt 6633Sfmt 6633F:\112-00~1\112-10~2\112-10~1WAYNE 75441.077 Notwithstanding our position on Yucca, NARUC was closely involved in the work of the BRC, We wrote letters, gave testimony, provided comments on the Subcommittee, and attended most of the public meetings.

We were impressed with the distinguished members, their approach to the task, the talented professional staff, and the sincere interest in public input We have asked DOE to preserve and maintain access to the Commission website. As for the recommendations, while we welcome them all, we have the following points: L Reform of the Nuclear Waste Fund is essential for most of the others to occur, 2. Regardless of Yucca Mountain, we need another repository.

The lessons of Yucca and the better lessons of Finland, Sweden and WIPP suggest the "consent-based" siting approach may get better results, but will require patience.

3. We have long favored consolidated interim storage, but find the Report vague as to quantity, duration, and cost We are not sure what the effect will be on the fee if the Nuclear Waste Fund is to be used to pay for storage. 4. W c agree with the concept and benefits of a new federal corporation that can focus solely on the waste management mission, hopefully with a fresh partnership attitude for encouraging the consent-based approach.

We look forward to refining the concept in enabling legislation.

5. Transportation planning and coordination with States and others cannot begin soon enough. 6 USCA Case #18-1232 Document #1755212 Filed: 10/15/2018 Page 88 of 89 (Page 113 of Total) 144 VerDate Aug 31 2005 14:12 Aug 20, 2012Jkt 037690PO 00000Frm 00148Fmt 6633Sfmt 6633F:\112-00~1\112-10~2\112-10~1WAYNE 75441.078 We would add that the time is not right to commit to a reprocessing strategy, although R&D should continue, as the BRC recommends.

Also, we encourage DOE to take steps to seek volunteer host communities to step forward in storage siting without waiting to form the new management organization.

There are two areas where we disagree with the Commission Report: l. The Report says: "Overall, we arc confident that our waste management recommendations can be implemented using revenue streams already dedicated for this purpose." There are no cost estimates to substantiate that belief, which likely also assumes the $26.7 billion in the Nuclear Waste Fund is assured. 2. The Report further says: "We know what we have to do; we know we have to do it. and we even know how to do it." While we may wish that were true, our assessment is that there are too many people who are content to pass the problem along to future generations and "leave the waste where it is." It is fitting for the Commission to call for prompt action developing both consolidated interim storage and beginning the search for a new repository, but we may need public education and outreach to help persuade some who seem to favor the "no action" alternative.

Continuing to "kick the dry cask down the road should not be an option. So, yet another study calls for prompt action, yet despite (on paper) a financing plan, implementation relies on leadership from the Administration and Congress .. NARUC stands ready to assist on behalf of the ratepayers who may not realize that they are paying for safe waste disposition.

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