Free Response to Motion - District Court of Federal Claims - federal

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DOE Is Reviewing

Because of the uncertainty of achieving the 2010 goal for opening the
Yucca Mountain repository, DOE is examining alternative approaches that

Alternative Ways to Accept
Wastes in 2010

would permit it to meet the goaL In May 200 1, DOE released a report o~ potential options for constructing and operating the repository_iI; It is also
sponsoring a National Research Councii study on possible approaches to'

developing a repository in stages over donger duration.
DOE' s M~y rewrt evaluates a range of approaches ' to' developing and

operating the rePository system and strategies for implementing these approaches. For example, to reduce'the un~rtainties of receiving substantially higher.appropriations needed' toopen the repository as might pennit it to begin planned, DOE examined approaches accepting Wssws at the reposit~ry site in 20 10 while spreading out the constmction of repository faciliUes over a longer tin1e period. The study re(;ommended deve10ping the repository on a ~odular basis, separating , the rate of accepting wastes at the repository site from the rate of waste emplacement in the \mderground disposal areas by relying on the surface storage of received wastes until the capacity to move wastes into the
repository has been increased. For. example, relatively modest-sized

surface facilities to handle wastes could be expanded later to handle larger volumes of waste. Such a modular approach , according to the study results, would pennit partial construction arid lini.ited waste en\placem.ent in the repository, at lower than earlier estimated annual costs, in adv;mc~ of the more costly coOstru~tion of the facility as originally planned. Also,
by implementing a modular approach, DOE would be capable of acceptiJ\g

wastes at the repository earlier than ifit cOnstructed the repository described in documents, sucl1as the Science and Engineering Report that the Secretary would use to support a site recommendation.
In addition, DOE has contracted with the National Research Council to provide recommendations on design and operating strategies for developing a geologic repository in stages , whiCh. is t.o include reviewing
DOE' s modular approach. The Council is addressing such issues as the
. technical,

, reposito~
I~ Se-e

policy, and societal objectives and risks for developing a staged

CRWMS Modular De:dgn/Co1t.',tnu:tio-n aud Operation Opticttls Report (DOElOCRWM. TDR-CRW-MD-OOOOO2 , Rev. 0.3 , May 2001).

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. , effects of

developing a staged repository on the safety and security of the facility and the effects on the cost and public acceptance of such a facility;

and
strategies .for developing a staged system including the design, construction, operation, and closing of such a facility.

, The Co~cil exj)e.ctS to publish interim and final reports on the study in
about March '200? and December 2002, respectively. ' In. part, DOE's desire to meet the 2010 goal is linked to th~ court decisio~

~1)

that DOE mU$t pay t~ holders of spenUuel disposal contracts. Estimates of potential damages for the estimated 12-year delay fl:om 1998 to 2010 range wideiy frOIu the Department's esthuate of $2 billion to $3 billion to

that tbeNucl~ Waste Policy Act; as implemented b~ DOE' s contracts with owners of commercial spent (tIel, obligated DOE to begin acc~p~ spent fuel from contract holderS not later than January 31, 1998. or be held liable for damages. Courf;s are Currently assessing the aJI\oUlit of damages

the nuclear industry's estimate of at least $50 billion. The damage

fuel
Conclusions

estimates are based in part on tl,le expectati~l\ ,that DoE would begin accepting spent fuel. from contract ' holders in 2010. The actual damages could be higher or lower, dependi~g on when DOE begins accepting spent

In addition to studying the Yucca Mountainsite, DOE is taking the other

steps, such 8$ public hearings and obtaining NRC' s sufficiency comments that are required for the Secre~ to ~nake a site recommendation in the
near futUre. M.3king a

guidelines, a site recommendation and a licel1$e application will need to be based on essentiallythe$3I11e data. Furthennore, the act lays out a process with specific, time frames that requires DOE to submit a license application to NRC within about 5 to 8 months after the President makes a site reconmlendation to the Congress. DOE' s contractorestimatestbat it,
will not have all of the additional information that NRC has said, will needed for an acceptable license application for another 4 years. Waiting until DOE is closer to submitting a license application for the adqitional infonnation would put DOE in a position to be able to submit a license application that is acceptable to NRC within the time frames set out in ,the law, and to be ablet~ better respond to questioris and challenges tbat may emanate from the statutory review process subsequent to the President's

prentatt\re. Under the Nuclear WaSte Policy Act and DOE' s siting

site recommendation at this time, however, may '

recominendation.
0029

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Another benefit of waiting

for

the additional technical infonnation is that

the repository's design and development schedule described in the documents that support a site recommendation may not describe the

facilities that DOE would actually develop. TheSe documents generally

. d~cribe

~ce and underground facilities that DOE wouid design and

build on a schedule permitti~g it to open the repository in 2010. schedule, however, . is unrealistic if one assumes that DOE' s existing prelicensing ~d constructiQn time frames continue to oo' valid ,This
uncerf;ainty is compounded by questions ~out whether WE can obtain: the increases in annual, nmding required to meet its schedule. On the other , a COlUpelling incentive exists to open the repository, in 2010 because DOE is liable for dan13n~ , in amounts not yet detenmned by the courts,

for not beginning to accept utilities' spent fuel by 1998. The damage amounts will in part be based on when D9E Can begin to accept and , deliver spent fuei to the repository. For these 'reasons, DOE is exploring alternative approaches to deVeloping a reP9sitory, such as initially storing spent fuel at the repositorr site before constructing Imderground disposal
'facilities that could still enable it to accept spent fuel by 2010. ThUs

defening a site recommendation until DOE has substantially completed
the remaining technical. work needed for an acceptable license application.

. would also enable DOE to complete its consideration of alternative
approaches to developing a repository at Yucca Mountain. , DOE could then

~nsure that the site recommendation is based on the approach that the Department intends to foliow. This wouid enable DOE to develop the

, estim~d schedule to design and build the preferred approach and
estimate its cost, iricludiilg the annual fundfug requiren\ents , as part of the

, infoimation on which to make a site recommendation.

POE needs to re~tablisha' baseline for the nuclear waste program that accounts for all of the Olltstanding technical work neededto prepare an
acceptable license application and the estimated schedule and cost to

achieve this milestone. In coI\iunction with reestablishing' a baseline for the program, DOE needs to resume using the baseline as a tool for managing the program, iri. accordance with the Department' s policies and procedures for managing major projects.

Recommendations for Executive Action

To ensure that DOE will be prepared to submit an acceptable license. appJ,icationwithin the timeframes setout in the Nuclear Waste Policy Act, the Secretary of Energy should consider (1) deferring a site

reconm1endation \ffitil it can meet the express statutory time framesthat are triggered by a site recommendation by the PresIdent to the C-ongress and (2) including the results of DOE' s ongoing technical work for NRC and

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the results of analyses of alternative approaches to the proposed repository in the Se~et.ary's comprehensive statement of the basis for a

site recommendation.
To improve the management of the nuclear
the Congress and the public with aCcurate "

info~on on the repository

w~ program and t~ provide

program, we t'Qrther l"e(;ommerid that the Secretary of Energy

,reestablish the baselin:e for the nuclear waste program through th~ . . submission of a license application, including incorporating the remaining
technical work required to submit the application and the estimated cost and schedule to' compiete this work, , follow the Department's requirements for managing IW\ior programs and proj~,:including afornw change control prOCedure.

and

Agency Co;mm~nts
and Our Evaluation

We provided DOE with a draft of this report for review and .comment DOE
dis;lgfeed with our report, contending that we did not understand the relevant statutory and regUlatory requirements related to a recommendation. Bechtel , DOE' s m~ementcontractot, also provided unspecified factual and legal inaccuracies in our us with a letter draft report; however, the company added that it would provide specific comments through DOE. Wbile it was not clear from DOE's commentS

si~

~rting

which ones had come from Bechtel , weare responding to all comments received on the following pageS. . According to DOE, oW- misUllderstanding of the requirements resulted in a contention in the draft report that it is premature for DOE to make a site reconimendatio~ because all the technical work for license application is not complete. (DOE's comments
are in app. IT;) We agree that the Secretary has the discretion to make such a recommendation at this time; however, We question the prudence and practicality of making 'such a recommendation at this time, given the

express statutory time frames for license applidltion and the significant amount of work I:em~gto be done for NRC t~ accept a license . applicatjon from pOE. Our concluSion is based on the relationship between a site recomnlendation and -DOErs readiness to submit a:cceptable license application t~ NRC, as set out in DOE' s siting guidelines and the Nuclear Waste Policy Act. The prean1ble to DOE's siting
guidelines states that DOE expects to use essentially the same data for a

site reconmlEmdation and a license application. Also, the Nuclear Waste
Policy Act states that a presidential site recommendation is to be made if the President considers the site qualified for a license application and sets

out a time frame that could be as short as 5' to8 months from a presidential site recommendation to a license application. This includes

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the requirement that the Secretary of Energy submit a license application
not later than 90 days following congressional approval of the site. Thus,

the statutory time frame is decidedly shorter than the 4-year estimate between site ~ommen9ation and license application thatwas recently
proposed by DOE's inanagement conQ:actor.

dete~g whether a potential site is IiCerisabI~and the licensing by

DOE also pointed out the difference between the decision at hand-

NRC of a repository facility at the site. The latter d~isioli would come at the end of a 3- to 4-year licensing proCeeding. , In contrast, our report addresses the relationsJUp between a site recommendation and the submisSion of the license application.

DOE said that our draft report inCQn-ectly st3t~ that DOE's siting guidelines require the Secre~,.m making a site, recommendation, to determine if the site currently complies with NRC's, licensing requirements ratberthan' detemuningifthesite is "likely" to meetNRC' s radiation protection standards. W e agree that the standard in DOE' s guidelines is likely" and have added thislariguage t~ the report. The report accurately . states the relationship between a site reconmlendation and a liCense

,application Under the Nuclear Waste Policy Act and the siting guidelines.
In addition, DOE stated that the Nuclear Waste Policy Act charges the Secretary with establishing criteria for detem\i.riing the suitability of a site for a repository and that tile Department'sstand;u:ds (siting guidelines) are the most important legally relevant guidance on the question of whether

the Department is ready to make a site recon;unendation~ Our report, DOE
Said, ignores these standards and instead asserts a standard of oUr own devising. Contrary to DOE' s assertion; we did not evaluate DOE' perfonnance against a standard we devised. We used the Nuclear Waste Policy Act and DOE's standards-that the site is likely to meet NRC' radiation protection standards-for a site suitability recommendation.

Moreover, a presidential site recommendation triggers statutory time frames that requiie DOE to submit a license application to NRC within
about 5to 8 months. Thus, our conclUSion regarding

whether DQE should

make a site recommendation relies on both the relationship between the
standards for site reconmlendation and license application and the statutory time frames. While recommending to the President that the

Yucca Mountain site is suitable for a repository is within the discretion of
the Secretary of Energy; such a recommendation may be premature because of the large number of technical issues remaining to be resolved before an acceptable license application can be filed with NRC.

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DOE also stated that NRC's licensing process is an iterative and

continuous process; even the license application is not eXpected to be "set in concrete." We agree with DOE' s statement. The ~portant point,
however, is that DOE and NRChave made 293 specific agreements on techniCal work that DOE, will need to complete and incotpOrate into a license appliCation that would be acc~iable to NRC. This also assun\es

that no new issues surface that would neoo t~ be addresset

DoE said that our draft report emphasized the, inventory of issues between
DOE and' NRC but completely ignored the technical work that h3s been

done over the past 2 decades and the technical groups who have said that DOE' s ~ata are sufficiep.t for a-siterecommendation. We have added infonnaUon to the report recognizing the body of work that J:)OE has
completed to date and the views of other teChnical parties mentioned by DOE. As discussed above, however, the central issue is not Whether

technical partieS are of the opinion that DOE haS enough infom\ation for a site recommendation but the r~ationship, in statute, and regUlation
between the site recommendation and the submission of an acceptable 'license application.
DOE also said our report gives short shrift to NRC's recent "S\1i'ijciency letter" that, according to DOE, memorializes NRC' s conclusion that the
data and ' analyses

existing and under way likely will be sufficient for a license aPplication. Instead, DOE added, our report over-relies on the
views of an NIlC adviSOIj7committee. Our ,characterization of NRC'
sUfficiency comments is acCurate. NRC did state that the agreements between DOE's and NRC's st.3ffs regarding the collection of additional information provide the basis for cOncluding that the development of an acceptable license application is achievable; however, NRC co~ditioned, this comment on DOE's successful completion of "significant" additional

work prior to a license application. Also, the Nuclear Waste Policy Act does not refer t~ work " underway, " but uses the phrase "seem to be sufficient." Finally, we included the views of NRC' s advisory committee
because NRC' s letter incb~ded U1ese views.

;In addition , DOE stated that our report prominently emphasizes the views of the Board as reqtUrlng the Departm,ent to acconm\odate them before a site deternunation is made. DOE added that the report does not

emphasize that the substanceofthe

Board's

criticisms is directed to

licensing~not site reconm1endation. Contrary t~ DOE's assertion, we did not. assertthat DOE is "required" t~ accommodate the Board. We discussed the Board' s continuing concerns as outlined in its October 2001 letter to DOE. In that letter, the Board noted that gaps in data and

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analy~es make the evaluation of DOE' s technkal bases on whether recommend the site-not app)y for a license-more diffiCUlt. Also, we' gave the Board' s current ooncerns about DOE's site characterization work as summarized in its OCto~r letter, prominent mention in our report to independently evaluate the because of the Board' s 'statUtory missipn
technical and scientific validity of DOE' sinvestigatlon of Yucca Mountain.
Fina11Y~ DoE

said that our statement that d~g. a site recommendation

decision Will have no effect on the iiming of the ultimate opening of a to all common sense an~ exp~rience. , We have repository' is contrary removed that statement from the report. However, we note that the key factors that bear on opening a repository culTent1y lie iO. the licensing ' One such faCtor is the 4 more years of licensing-related work that Bechtel, in its September 2001 detailed reassessment that proposed a new

to submit' a 1ice~ cost and schedule baseline, estimates wQwd be needed NRO. ' In addition, other licens~-i."elated application that is acceptable to conditions could continue to affect the timetable for developing a

repository. For example; Bechtel

charact~d its reassessment l~ading

to the submission of a license application in January 2006 as a high-risk

schedule that does not include any contingency or reserve-'-in effect, .an optimistic schedule. Also, NRC , in its preliminary comments on the sufficiency of site characterization, Stated that if DOE adopts ' low.,.temperature repository, operating approach, such as described in a

recent technical document, then additional infonnation would be needed

for a potential license application.
to

Although we have clarified our discussion of the statutory ~d r-egulatory requirements for site recommendation, approval, and licensing, we
continue

believe that the SecretarY of Energy should consider the
to

timing of thiS statutory process as
recommendation

he decides when to make a site the President. Therefore, while we have modified the language, we have not changed the intent of our reconunendation on this matter. DOE did not comment on our findings conclusions, and teconmlendationS ~out (1) potential delays on, and alternatives to, its ' proposed reposit~ry design and (2) its management of the nuclear waste program.
We perfonned our review at DoE' s headquarters in Washington, D. , and its project office in Las Vegas, Nevada. We also met with officials of NRC in Rockville, Maryland; the Nudear Waste Technical Review Board in Clarendon , VIrginia; and the state pfNev3da s Agency for Nuclear Projects ' in Carson City, Nevada. We conducted our review from April through

Scope and Methodology
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