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111th Congress                                            Rept. 111-348
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

======================================================================



 
                   RADIOACTIVE IMPORT DETERRENCE ACT

                                _______
                                

December 2, 2009.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Waxman, from the Committee on Energy and Commerce, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 515]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 515) to prohibit the importation of certain low-
level radioactive waste into the United States, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Amendment........................................................     2
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Legislative History..............................................     4
Committee Consideration..........................................     5
Committee Votes..................................................     5
Statement of Committee Oversight Findings and Recommendations....     8
New Budget Authority, Entitlement Authority, and Tax Expenditures     8
Statement of General Performance Goals and Objectives............     8
Constitutional Authority Statement...............................     8
Earmarks and Tax and Tariff Benefits.............................     8
Federal Advisory Committee Statement.............................     8
Applicability of Law to Legislative Branch.......................     8
Federal Mandates Statement.......................................     8
Committee Cost Estimate..........................................     8
Congressional Budget Office Cost Estimate........................     9
Section-by-Section Analysis of the Legislation...................     9
Changes in Existing Law Made by the Bill, as Reported............    10
Exchange of Letters..............................................    12
Dissenting Views.................................................    15

                               Amendment

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Radioactive Import Deterrence Act''.

SEC. 2. PROHIBITION OF IMPORTATION.

  (a) Amendment.--Chapter 19 of the Atomic Energy Act of 1954 (42 
U.S.C. 2015 et seq.) is amended by inserting after section 276 the 
following new section:
  ``Sec. 277. Importation of Low-Level Radioactive Waste.--
  ``a. Except as provided in subsection b. or c., the Commission shall 
not issue a license authorizing the importation into the United States 
of--
          ``(1) low-level radioactive waste (as defined in section 2 of 
        the Low-Level Radioactive Waste Policy Act (42 U.S.C. 2021b)); 
        or
          ``(2) specific radioactive waste streams exempted from 
        regulation by the Commission under section 10 of the Low-Level 
        Radioactive Waste Policy Act (42 U.S.C. 2021j).
  ``b. Subsection a. shall not apply to--
          ``(1) low-level radioactive waste being returned to a United 
        States Government or military facility which is authorized to 
        possess the material; or
          ``(2) low-level radioactive waste resulting from the use in a 
        foreign country of nuclear material obtained by the foreign 
        user from an entity in the United States that is being returned 
        to the United States for management and disposal.
  ``c. The President may waive the prohibition under this section and 
authorize the grant of a specific license to import materials 
prohibited under subsection a., under the rules of the Commission, only 
after a finding that such importation would meet an important national 
or international policy goal, such as the use of waste for research 
purposes. Such a waiver must specify the policy goal to be achieved, 
how it is to be achieved, and the amount of material to be imported.
  ``d. A license not permitted under this section that was issued 
before the date of enactment of this section may continue in effect 
according to its terms, but may not be extended or amended with respect 
to the amount of material permitted to be imported.''.
  (b) Table of Contents Amendment.--The table of contents for the 
Atomic Energy Act of 1954 is amended by inserting after the item 
relating to section 276 the following new item:

``Sec. 277. Importation of low-level radioactive waste.''.

                          Purpose and Summary

    H.R. 515, the ``Radioactive Import Deterrence Act'', was 
introduced by Reps. Bart Gordon, Lee Terry, and Jim Matheson on 
January 14, 2009. The purpose of H.R. 515 is to prohibit the 
importation of certain low-level radioactive waste into the 
United States.

                  Background and Need for Legislation

    Under the Low-Level Radioactive Waste Policy Act of 1980 
(P.L. 96-573), ``low-level radioactive waste'' is defined as 
radioactive material that is not high-level radioactive waste, 
spent nuclear fuel, or byproduct material. It is classified 
according to its potential hazard as either A, B, or C under 
regulations issued by the Nuclear Regulatory Commission (NRC). 
Class A waste generally contains lower concentrations of long 
half-lived radioactive material than Class B, and Class B waste 
contains lower concentrations than Class C waste. The NRC 
indicates that Class A waste accounts for about 90% of the 
total volume of low-level waste.
    Low-level waste is generated from a variety of sources, 
including commercial activities at nuclear reactors, 
manufacturing, and other industrial uses, as well as government 
sources, academic users, and medical facilities.
    The Low-Level Radioactive Waste Policy Amendments Act of 
1985 established the policy that each state is responsible for 
disposing of low-level radioactive waste generated within its 
borders. The Act encouraged states to enter into interstate 
compacts under which a group of states would agree to develop a 
common site to dispose of their waste. In return, the Act 
authorizes a compact to exclude waste produced outside the 
member states from its regional disposal facilities (an action 
which otherwise would be prohibited by the interstate commerce 
clause). Ten regional compacts have been formed and received 
the required approval of Congress. Eight states, Puerto Rico, 
and the District of Columbia remain unaffiliated.
    Progress toward siting and opening new facilities to serve 
the various compacts has been slow. At present, there are only 
three active licensed facilities: Barnwell, South Carolina, 
which accepts waste only from the Atlantic Compact states of 
Connecticut, New Jersey, and South Carolina; Richland, 
Washington, which accepts waste only from the eight members of 
the Northwest Compact (and, by special agreement, the Rocky 
Mountain Compact); and a commercial facility located in Clive, 
Utah (a member state of the Northwest Compact) and operated by 
EnergySolutions, a company based in Salt Lake City, Utah.
    The Clive facility is licensed by the State of Utah for 
safety purposes in the state's capacity as an NRC agreement 
state, and is permitted to accept Class A low-level radioactive 
waste from all regions of the United States. According to the 
Government Accountability Office (GAO), based on projected 
Class A disposal volumes, this facility is expected to reach 
its capacity in approximately 32 years.\1\ A company called 
Waste Control Specialists has obtained a license from the State 
of Texas to dispose of low-level radioactive waste at a fourth 
facility in Andrews County, Texas. Construction of the new 
disposal facility is expected to take about a year, with 
disposal operations scheduled to begin in late 2010.
---------------------------------------------------------------------------
    \1\Subcommittee on Energy and Air Quality hearing, Testimony of 
Gene Aloise, Government Accountability Office (May 20, 2008).
---------------------------------------------------------------------------
    EnergySolutions has filed a license application with the 
NRC to import up to approximately 20,000 tons of various types 
of materials from decommissioned nuclear facilities in Italy 
(including metals, wood, paper, plastic, liquids and certain 
resins). According to the NRC,\2\ EnergySolutions proposes to 
process and recycle the material in facilities it operates at 
its Bear Creek facility in Tennessee in accordance with 
licenses issued by that state. After treatment, the company 
proposes to send the remaining waste to its facility in Clive, 
Utah for disposal and states that the volume would be reduced 
so the ultimate amount of material disposed at Clive would be a 
small fraction of what is disposed of annually at the facility. 
The company has also applied for an export license to return 
any waste that does not qualify for disposal at its Utah 
facility to Italy.
---------------------------------------------------------------------------
    \2\U.S. Nuclear Regulatory Commission Fact Sheet, ``Energy 
Solutions' Proposal to Import Low-Level Radioactive Waste from Italy.''
---------------------------------------------------------------------------
    NRC regulations require any company wishing to import low-
level radioactive waste to apply for a license from the 
Commission to import material to a specified destination in 
accordance with all existing domestic laws and regulations 
applicable to the material. NRC has said that it ``will not 
grant an import license for waste intended for disposal unless 
it is clear from these consultations [with the relevant state 
and compact] that the waste will be accepted by the applicable 
host Agreement State and where applicable, Low-Level 
Radioactive Waste Compact.''\3\ On June 23, 2009, NRC proposed 
to amend its regulations governing the export and import of 
radioactive waste to include this consultation concept in the 
import licensing criteria.\4\
---------------------------------------------------------------------------
    \3\Subcommittee on Energy and Air Quality (House Committee on 
Energy and Commerce) hearing, Testimony of Margaret M. Doane, U.S. 
Nuclear Regulatory Commission (May 20, 2008).
    \4\Federal Register 29614 (June 23, 2009).
---------------------------------------------------------------------------
    On May 12, 2008, the Northwest Compact took the position 
that EnergySolutions does not have a necessary ``arrangement'' 
with the compact to import the Italian waste into Utah; that 
the Compact Committee has never considered or reviewed the 
issue of adopting an arrangement that would provide low-level 
radioactive wastes generated in foreign countries access to the 
region for disposal at the EnergySolutions facility in Clive, 
Utah; and that such an arrangement would need to be adopted by 
the compact prior to such waste being afforded access to the 
region for disposal. On May 15, 2008, Mike Garner, the 
Executive Director of the Northwest Compact, notified the NRC 
that ``should it choose to issue the import license (IW023) it 
is doing so with the understanding there is no facility within 
the Northwest Compact region that is authorized to legally 
accept this waste for disposal.''
    Since October 6, 2008, NRC has held the EnergySolutions 
license application in abeyance pending resolution of a lawsuit 
by EnergySolutions challenging the Northwest Compact's 
authority to block the proposed import. On May 15, 2009, the 
federal district court found in a declaratory judgment that the 
compact lacks authority to restrict the flow of waste from 
outside the region to the Clive facility. An appeal of this 
decision is currently pending before the Tenth Circuit Court of 
Appeals.

                          Legislative History

    H.R. 515, the ``Radioactive Import Deterrence Act'', was 
introduced by Reps. Bart Gordon, Lee Terry, and Jim Matheson on 
January 14, 2009, and referred to the Committee on Energy and 
Commerce, and also to the Committee on Ways and Means. H.R. 515 
was subsequently referred to the Subcommittee on Energy and 
Environment on January 15, 2009.
    On October 16, 2009, the Subcommittee on Energy and 
Environment held a legislative hearing on H.R. 515. Testimony 
was received from the following witnesses: Margaret M. Doane, 
Director, Office of International Programs, U.S. Nuclear 
Regulatory Commission; Leonard C. Slosky, Executive Director, 
Rocky Mountain Low Level Waste Board; and Val Christensen, 
President, EnergySolutions.

                        Committee Consideration

    On November 3, 2009, the Subcommittee on Energy and 
Environment met in open markup to consider H.R. 515. The 
Subcommittee agreed to favorably forward H.R. 515 to the full 
Committee, amended, by a voice vote. On November 19, 2009, the 
Committee on Energy and Commerce met in open markup session to 
consider H.R. 515, as amended by the Subcommittee on November 
3, 2009. The full Committee ordered H.R. 515 favorably reported 
to the House, as amended, by a roll call vote of 34 to 12.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the record votes 
on the motion to report legislation and amendments thereto. A 
motion by Mr. Waxman to order H.R. 515 favorably reported to 
the House, as amended, was agreed to by a roll call vote of 34 
yeas and 12 nays. The following is a record of the recorded 
vote taken, including the names of those Members voting for and 
against:


     Statement of Committee Oversight Findings and Recommendations

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the findings and 
recommendations of the Committee are reflected in the 
descriptive portions of this report.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    Pursuant to clause 3(c)(2) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that H.R. 515 
would result in no new budget authority, entitlement authority, 
or tax expenditures or revenues.

         Statement of General Performance Goals and Objectives

    Clause 3(c)(4) of rule XIII of the Rules of the House of 
Representatives does not apply to H.R. 515 as the bill does not 
authorize funding.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that the 
constitutional authority for H.R. 515 is provided in Article I, 
section 8, clauses 3 and 18.

                  Earmarks and Tax and Tariff Benefits

    H.R. 515 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI of the Rules of the House of 
Representatives.

                  Federal Advisory Committee Statement

    No advisory committees were created by H.R. 515 within the 
meaning of section 5 U.S.C. App., 5(b) of the Federal Advisory 
Committee Act.

              Application of Law to the Legislative Branch

    The Committee finds that H.R. 515 does not relate to the 
terms and conditions of employment or access to public services 
or accommodations within the meaning of section 102(b)(3) of 
the Congressional Accountability Act of 1985.

                       Federal Mandates Statement

    The Committee adopts as its own the estimates of federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandate Reform 
Act.

                        Committee Cost Estimate

    Pursuant to clause 3(d) of rule XIII of the Rules of the 
House of Representatives, the Committee adopts as its own the 
cost estimate on H.R. 515 prepared by the Director of the 
Congressional Budget Office pursuant to section 402 of the 
Congressional Budget Act.

               Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, the following is the cost estimate 
for H.R. 515 provided by the Congressional Budget Office 
pursuant to section 402 of the Congressional Budget Act of 
1974:

                                                  December 1, 2009.
Hon. Henry A. Waxman,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 515, the 
Radioactive Import Deterrence Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Megan 
Carroll.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 515--Radioactive Import Deterrence Act

    H.R. 515 would prohibit the Nuclear Regulatory Commission 
(NRC), with certain exceptions specified by the bill, from 
issuing licenses to import certain types of low-level 
radioactive waste. Based on information from the NRC, CBO 
estimates that the proposed prohibition would not significantly 
affect net spending by the agency; any such spending would be 
subject to appropriation and largely offset by certain fees 
that the NRC is authorized to collect from regulated entities. 
Enacting the bill would not affect direct spending or revenues.
    H.R. 515 contains no intergovernmental mandates as defined 
in the Unfunded Mandates Reform Act (UMRA) and would impose no 
cost on state, local, or tribal governments.
    The prohibition on issuing, extending, or amending licenses 
would be a private-sector mandate, as defined in UMRA, on 
importers of certain types of low-level radioactive waste. The 
cost of the mandate would be the loss in net income to 
importers. Information from industry sources suggests that the 
growth in gross revenues from the future import of low-level 
radioactive waste could be significant. However, those revenues 
would depend on the amount of waste authorized for import in 
licenses issued or amended by the NRC in the absence of the 
bill. Consequently, CBO cannot determine whether the cost of 
the mandate would exceed the annual threshold established in 
UMRA for private-sector mandates ($139 million in 2009, 
adjusted annually for inflation).
    The CBO staff contacts for this estimate are Megan Carroll 
(for federal costs) and Amy Petz (for the private-sector 
impact). This estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

             Section-by-Section Analysis of the Legislation


Section 1: Short title

    This section provides that the short title of the bill is 
the ``Radioactive Import Deterrence Act''.

Section 2: Prohibition of importation

    This section amends the Atomic Energy Act by creating a new 
section 277. Subsection a. of the new section 277 provides that 
the Nuclear Regulatory Commission shall not issue licenses 
authorizing the importation into the United States of low-level 
radioactive waste and radioactive waste below regulatory 
concern.
    Subsection b. provides exceptions to the prohibition in 
subsection a. for federal government or military use and for 
the return to the United States for management and disposal of 
low-level radioactive waste resulting from the use in a foreign 
country of certain United States origin nuclear material.
    Subsection c. authorizes the President to waive the 
prohibition in subsection a. for a specific license application 
upon a finding that the importation would meet an important 
national or international policy goal. The subsection includes 
an illustrative example of such a policy goal: the use of waste 
for research purposes by private, non-profit, or government 
entities. Such a waiver must specify the policy goal to be 
achieved, how it is to be achieved, and the amount of material 
to be imported.
    Subsection d. provides that licenses issued before the date 
of enactment of this section may continue in effect on their 
original terms, but may not be extended or amended with respect 
to the amount of material permitted to be imported.

         Changes in Existing Law Made by the Bill, as Reported

 In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

                       ATOMIC ENERGY ACT OF 1954


TITLE I--ATOMIC ENERGY

           *       *       *       *       *       *       *


                        Chapter 19. Miscellaneous

     * * * * * * *
Sec. 277. Importation of low-level radioactive waste.

           *       *       *       *       *       *       *


CHAPTER 19--MISCELLANEOUS

           *       *       *       *       *       *       *


Sec. 277. Importation of Low-Level Radioactive Waste.--
  a. Except as provided in subsection b. or c., the Commission 
shall not issue a license authorizing the importation into the 
United States of--
          (1) low-level radioactive waste (as defined in 
        section 2 of the Low-Level Radioactive Waste Policy Act 
        (42 U.S.C. 2021b)); or
          (2) specific radioactive waste streams exempted from 
        regulation by the Commission under section 10 of the 
        Low-Level Radioactive Waste Policy Act (42 U.S.C. 
        2021j).
  b. Subsection a. shall not apply to--
          (1) low-level radioactive waste being returned to a 
        United States Government or military facility which is 
        authorized to possess the material; or
          (2) low-level radioactive waste resulting from the 
        use in a foreign country of nuclear material obtained 
        by the foreign user from an entity in the United States 
        that is being returned to the United States for 
        management and disposal.
  c. The President may waive the prohibition under this section 
and authorize the grant of a specific license to import 
materials prohibited under subsection a., under the rules of 
the Commission, only after a finding that such importation 
would meet an important national or international policy goal, 
such as the use of waste for research purposes. Such a waiver 
must specify the policy goal to be achieved, how it is to be 
achieved, and the amount of material to be imported.
  d. A license not permitted under this section that was issued 
before the date of enactment of this section may continue in 
effect according to its terms, but may not be extended or 
amended with respect to the amount of material permitted to be 
imported.

           *       *       *       *       *       *       *




                            DISSENTING VIEWS

    We, the undersigned Members of the Committee on Energy and 
Commerce, oppose the passage of H.R. 515 and submit the 
following comments to express our concerns with this 
legislation.
    H.R. 515 would prohibit the importation of low-level 
radioactive waste into the United States subject to limited 
exceptions for federal or military facilities, or for U.S.-
origin material that has been shipped abroad for use in a 
foreign country and is being returned to the United States for 
management and disposal. This legislative proposal is both 
unnecessary and could prevent U.S. companies from competing 
internationally in the global market for nuclear services.
    The Nuclear Regulatory Commission (NRC) currently has a 
well-established legal and regulatory framework for importing 
waste and it is not apparent that the existing regime needs to 
be changed. As the record before the Committee reflects, under 
that regime NRC reviews all import and export license 
applications against specific criteria, conducts full health 
and safety and national security evaluations of these 
applications, and coordinates with agencies within the 
Executive Branch and with the host State where the waste would 
be processed and/or disposed. The Commission also takes steps 
to ensure that no radioactive waste imported into the United 
States will become orphaned waste. The NRC will not grant an 
import license for waste intended for disposal unless it is 
clear that the waste will be accepted by the applicable host 
Agreement State and, where applicable, the Low-Level 
Radioactive Waste Compact.
    While proponents of H.R. 515 have contended that there is 
insufficient disposal capacity in the U.S. for the low-level 
waste that is the subject of the bill, in fact the importation 
of limited amounts of foreign low-level radioactive waste does 
not and will not in the coming decades raise significant 
disposal capacity issues in the United States. An amendment 
offered by Reps. Whitfield and Pitts that would have required 
the Commission to take into consideration domestic capacity 
before allowing importation of low-level radioactive waste and 
provide additional oversight authority by the Commission was 
rejected. As a practical matter, the low-level radioactive 
waste addressed in this bill is Class A waste. Based on the 
record before the Committee, there is currently more than 
sufficient capacity in the U.S. to accept limited quantities of 
imported Class A waste, consistent with existing strict NRC 
regulations and requirements.
    At the same time, the record before the Committee also 
reflects that H.R. 515, if enacted, would undermine the ability 
of U.S. nuclear companies to participate in the global nuclear 
services market. To compete in that market, it is currently 
important for U.S. companies to be able to manage and, as 
appropriate, dispose of low-level radioactive waste incidental 
to their provision of services. This proposed legislation would 
effectively prevent U.S. companies from competing for certain 
foreign contracts that could create jobs in the U.S. and result 
in substantial revenues for the U.S. economy. In an era of 
record high unemployment and a struggling economy, we strongly 
oppose legislation that erects new trade barriers that put our 
own companies at a competitive disadvantage in the 
international nuclear arena. We believe the U.S. can and should 
seek to be a leader in the construction, operation, and 
ultimate decommissioning of new nuclear plants around the 
world.
    Further, at a time when the Majority and the Administration 
are supporting climate change legislation that assumes a 
significant expansion of nuclear power in the U.S., enacting 
legislation that places yet additional burdens on the U.S. 
nuclear industry may further discourage new nuclear development 
in the United States. This legislative proposal constitutes an 
unnecessary restriction and it appears will only make it more, 
not less difficult to promote the expansion of the nuclear 
industry in the United States.

                                   Joe Barton.
                                   Fred Upton.
                                   Roy Blunt.
                                   Ralph M. Hall.
                                   Cliff Stearns.
                                   Ed Whitfield.
                                   John Shadegg.
                                   John Shimkus.
                                   Joseph R. Pitts.
                                   George Radanovich.
                                   Sue Myrick.
                                   John Sullivan.
                                   Marsha Blackburn.
                                   Tim Murphy.
                                   Phil Gingrey.