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115th Congress     }                                 {        Report
                        HOUSE OF REPRESENTATIVES
 2d Session        }                                 {        115-926

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



 
  TO REAUTHORIZE THE WEST VALLEY DEMONSTRATION PROJECT, AND FOR OTHER 
                                PURPOSES

                                _______
                                

 September 7, 2018.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

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

                              R E P O R T

                        [To accompany H.R. 2389]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 2389) to reauthorize the West Valley 
demonstration project, and for other purposes, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Committee Action.................................................     6
Committee Votes..................................................     6
Oversight Findings and Recommendations...........................     6
New Budget Authority, Entitlement Authority, and Tax Expenditures     6
Congressional Budget Office Estimate.............................     6
Federal Mandates Statement.......................................     8
Statement of General Performance Goals and Objectives............     8
Duplication of Federal Programs..................................     8
Committee Cost Estimate..........................................     8
Earmark, Limited Tax Benefits, and Limited Tariff Benefits.......     8
Disclosure of Directed Rule Makings..............................     9
Advisory Committee Statement.....................................     9
Applicability to Legislative Branch..............................     9
Section-by-Section Analysis of the Legislation...................     9
Changes in Existing Law Made by the Bill, as Reported............     9

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

SECTION 1. WEST VALLEY DEMONSTRATION PROJECT.

  (a) Reauthorization.--Section 3(a) of the West Valley Demonstration 
Project Act (Public Law 96-368; 42 U.S.C. 2021a note) is amended by 
striking ``$5,000,000 for the fiscal year ending September 30, 1981'' 
and inserting ``$75,000,000 for each of fiscal years 2019 through 
2028''.
  (b) Report.--Not later than 18 months after the date of enactment of 
this Act, the Comptroller General shall submit to Congress a report 
that describes--
          (1) the volumes, origins, and types of radioactive waste at 
        the Western New York Service Center in West Valley, New York;
          (2) what options have been identified for disposal of each 
        such type of radioactive waste;
          (3) what is known about the costs of, and timeframes for, 
        each such option;
          (4) the benefits and challenges of each such option, 
        according to the State of New York and the Department of 
        Energy; and
          (5) as of the date of enactment of this Act--
                  (A) how much has been spent on the disposal of 
                radioactive waste associated with the demonstration 
                project prescribed by section 2(a) of the West Valley 
                Demonstration Project Act; and
                  (B) what volumes and types of radioactive waste have 
                been disposed of from the Western New York Service 
                Center.

                          Purpose and Summary

    H.R. 2389, to reauthorize the West Valley Demonstration 
Project, and for other purposes, was introduced by Rep. Tom 
Reed (R-NY) on May 4, 2017, with Rep. Brian Higgins (D-NY), 
Rep. Nita Lowey (D-NY), Rep. Jerrold Nadler (D-NY), and Rep. 
Louise Slaughter (D-NY). The legislation reauthorizes the 
Department of Energy's (DOE) high-level liquid nuclear waste 
demonstration project at the Western New York Service Center 
(Center) in West Valley, New York. Key provisions of H.R. 2389 
include the following:
           The bill would authorize $75,000,000 for 
        each of the fiscal years from 2019 through 2028.
           The bill also would require the Comptroller 
        General to submit a report to Congress to identify 
        options to dispose of the site's radioactive waste, 
        including costs of and time frames for each option.

                  Background and Need for Legislation

    From the initial development of the United States' 
commercial nuclear industry in the 1950s through the eventual 
maturation and large-scale deployment of large light-water 
reactor technologies in use today, a variety of nuclear 
enrichment, fuel forms, and reactor technologies have been 
examined to identify the most viable and sustainable supply 
chain and reactor deployment options. The Atomic Energy 
Commission (AEC) led the Federal government's efforts to 
develop and advance nuclear technologies, as well as regulate 
the safe use of such technologies.
    Extracting and enriching uranium by reprocessing spent 
nuclear fuel was one option the AEC and the emerging commercial 
nuclear industry considered.
    To test the economic and technological feasibility of 
reprocessing nuclear fuel, and with the support and involvement 
of the AEC, the State of New York partnered with Nuclear Fuel 
Services (NFS) to construct and operate a facility at the West 
Valley Service Center. NFS operated the facility on State-owned 
land leased to NFS from 1966 to 1972 and was provided nuclear 
fuel from a variety of sources, the majority of which was from 
AEC reactors due to the lack of sufficient quantities of spent 
fuel from commercial reactors to support fully NFS' activities. 
During this time, about 642 tons of nuclear fuel was 
reprocessed, 60 percent or 380 tons of which was provided from 
the N-Reactor at the Federal government's Hanford facility in 
Washington State.
    In 1976, NFS opted to cease operation after increased costs 
associated with a pending modification required by federal 
regulations altered the site's economic viability. In doing so, 
the company also took advantage of the ability to shift waste 
management responsibilities to New York. NFS' lease with New 
York expired in 1980 and responsibility to operate and 
remediate the site fully reverted to the State.

West Valley Demonstration Project Act and subsequent legislation

    In 1980, Congress recognized that the Federal government 
shared responsibility to remediate the site as a result of the 
overlapping interests facilitated by the AEC and the nation's 
atomic energy development program. During the Committee on 
Interstate and Foreign Commerce's hearing on proposed 
legislation, New York Governor Hugh Carey stated, New York 
``cannot carry this [remediation project] alone. It was never 
contemplated by any of the parties, including the United 
States, that the State alone would bear the cost and burdens of 
the failure of this risky venture.''\1\
---------------------------------------------------------------------------
    \1\Committee on Interstate and Foreign Commerce report accompanying 
H.R. 6865, the West Valley Demonstration Project Act, September 15, 
1980.
---------------------------------------------------------------------------
    On October 1, 1980, the West Valley Demonstration Project 
Act\2\ (WVDP Act) was enacted to direct DOE to partner with New 
York State to decontaminate and decommission the West Valley 
site. The WVDP Act established a partnership between DOE and 
New York and provided for a cost share arrangement to manage 
the facilities and remediate the site, with 90 percent of the 
project costs coming from the Federal government.
---------------------------------------------------------------------------
    \2\West Valley Demonstration Project Act, P.L. 96-368.
---------------------------------------------------------------------------
    The Committee Report accompanying the WVDP Act states:

          [T]he Committee recognizes that a substantial 
        quantity of this waste was produced in the course of 
        fulfilling contracts with the [AEC] and that most of 
        such contracts were related to the military program. 
        Because of the extensive past Federal involvement, the 
        Committee is willing to have the government pay 90 
        percent of the cost of the project. In view of the 
        unique circumstances regarding the Federal government's 
        past extensive involvement at the West Valley site, the 
        Committee believes that it is a special situation, and 
        does not intend that the share provided by the Federal 
        government constitute precedent for any subsequent 
        remedial actions which may be performed by the Federal 
        government.\3\
---------------------------------------------------------------------------
    \3\WVDP Act Committee Report.

    The WVDP Act authorized $5 million for DOE in 1981 with 
estimated costs expected to total between $250 to $500 million 
over the course of the project.
    While Congress agreed to provide cleanup funding, the WVDP 
Act did not commit the Federal government to supporting 
disposal costs. The Committee report accompanying WVDP Act 
stated that ``the transfer of the title to the high-level 
radioactive wastes (HLW) will be governed by such conditions as 
may be established in subsequent legislation, including the 
payment of a disposal fee'' and the cost share program did not 
apply to ultimate disposal costs.\4\
---------------------------------------------------------------------------
    \4\WVDP Act Committee Report.
---------------------------------------------------------------------------
    Section 5(b) of the WVDP Act notes that the Federal 
government is not authorized ``to acquire title to any high 
level radioactive waste at the Center or to the Center or any 
portion thereof.'' The Committee report states the intent 
behind this provision:

          [T]he Federal government is not authorized under this 
        Act to acquire title to any [HLW] at the Center or to 
        the Center or any portion thereof. This subsection then 
        clarifies that nothing in this Act authorizes the 
        Federal government to acquire title to either the [HLW] 
        at the Center or the Center itself or any portion 
        thereof. This Committee recognizes that the Federal 
        government will acquire title to the [HLW], in that 
        disposal of such waste is a Federal responsibility. 
        However, resolution of the issue as to when title to 
        [HLW] transfers to the Federal government has not yet 
        been addressed in legislation, and the Committee does 
        not believe it appropriate to resolve this issue in the 
        context of this legislation and defers resolution of 
        this question until such time as the issue is addressed 
        on a generic basis in a more comprehensive bill.\5\
---------------------------------------------------------------------------
    \5\WVDP Act Committee Report.

    The subsequent, comprehensive bill came two years later 
during Congressional consideration of the Nuclear Waste Policy 
Act of 1982 (NWPA). The NWPA provides that ``costs resulting 
from permanent disposal of high-level radioactive waste from 
atomic energy defense activities shall be paid by the Federal 
Government.'' The NWPA also defines ``atomic energy defense 
activity'' as ``any activity of the Secretary performed in 
whole or in part'' in carrying out, among other things, 
``defense nuclear materials production, defense nuclear waste 
and materials by-products management, and defense research and 
development.'' Because of disputes concerning the applicability 
of this definition to the West Valley waste, an analysis by GAO 
of the origins of and disposal pathways for the waste is 
required in H.R. 2389.
    In the NWPA, Congress did not address the prohibition on 
taking title to West Valley nuclear waste in the NWPA, nor did 
Congress include any particular site's material as part of the 
definition of HLW from atomic energy defense activities. 
Further, Congress had another opportunity to address a disposal 
path when Congress passed the Waste Isolation Pilot Plant 
(WIPP) Land Withdrawal Act in 1992. Congress authorized WIPP to 
accept transuranic waste generated from atomic energy defense 
activities, but did not specifically reference waste generated 
at the West Valley site, leaving the disposition path open to 
question.
    The Center's low-level waste (LLW) is subject to disposal 
requirements established by the Low-Level Radioactive Waste 
Policy Act, which was enacted on December 22, 1980 or less than 
90 days after the WVDP Act. Under the LLW policy, the Center's 
waste can be sent to a commercially available LLW disposal 
facility. According to the State of New York, LLW disposal 
costs have been covered under the program's 90 percent cost-
share agreement with DOE.

Legislative issues

    H.R. 2389 reauthorizes DOE's activities at the West Valley 
site for the first time since 1981. The level of funding 
reflects the level of funding provided in fiscal year 2018 
appropriations legislation and is aligned with the projected 
funding needs to meet DOE's schedule to fully remediate the 
site by the mid-2040's.
    As introduced, H.R. 2389 directed that all nuclear waste at 
the Center would be considered generated from atomic energy 
defense activities. This would shift undefined costs from the 
non-defense budget accounts to the account that funds national 
defense programs.
    In testimony before the Committee, the State of New York 
identified two primary issues associated with the disposal 
pathway for the Center's nuclear waste. First, costs associated 
with disposal of HLW are currently the responsibility of New 
York State, as established in the WVDP Act. The NWPA required 
that generators of commercial HLW pay a fee to dispose of the 
waste in a Federal repository. Under current requirements, when 
the repository is available, the State of New York would pay 
into the Nuclear Waste Fund an amount commensurate with the 
share of the total repository costs of the site's HLW. In 1986, 
the DOE Inspector General estimated New York's contribution to 
the Waste Fund to be $68.7 million, and no further estimate has 
been provided despite New York State's requests.
    New York is also seeking a disposal pathway for nuclear 
waste that would be categorized as ``Greater-Than-Class-C'' 
(GTCC). GTCC waste contains higher concentrations of 
radioactivity than current regulatory limits established by the 
Nuclear Regulatory Commission (NRC) for low-level waste. NRC's 
LLW classification includes three classes: Class A, B, and C. 
Material that has radioactive characteristics above Class C but 
does not meet the statutory definition of HLW is considered 
GTCC or transuranic waste at West Valley, the only site where 
such wastes exist that is designated by DOE as ``commercial.''
    The Committee recognizes that there has been considerable 
evolution in costs, schedule, technology, and waste disposal 
locations since the WVDP Act was enacted in 1980. However, to 
make a fully informed decision, the report required by section 
2 of H.R. 2389 is necessary. This Committee recognizes the need 
for a disposal pathway for the non-HLW, non-LLW at West Valley.
    In December 2017, DOE submitted a report to Congress, 
pursuant to section 631 of the Energy Policy Act of 2005, 
describing GTCC disposal alternatives. DOE's inventory of GTCC 
for the section 631 report included the West Valley material, 
which would be subject to future Congressional action. As 
Congress advances a GTCC disposal policy, the Committee expects 
the Center's GTCC waste to be included in a designated 
permanent disposal facility.
    The disposal pathway for the Center's HLW remains subject 
to the nation's nuclear waste management program pursuant to 
the Nuclear Waste Policy Act, as amended. The Committee's 
ongoing work to reconstitute the Federal government's HLW and 
spent nuclear fuel disposal program will benefit New York 
State's interest to move the Center's HLW to a repository for 
disposal. DOE's projection to complete remediation at the site 
is in the mid-2040's. It is the Committee's expectation that 
the repository will be operating by such date and enable 
removal of the material.
    The Government Accountability Office report required by 
H.R. 2389 also recognizes that the various disposal options may 
impact New York State and surrounding communities. Documenting 
the information will allow Congress to have a robust 
understanding of how amending the WVDP Act could affect state 
and local stakeholders.

                            Committee Action

    The Subcommittee on Environment and held a hearing on H.R. 
2389 on May 18, 2018. The Subcommittee received testimony from:
           Tom Reed (NY-23), Member, U.S. House of 
        Representatives;
           Mark Gilbertson, Associate Principal Deputy 
        Assistant Secretary for Regulatory and Policy Affairs, 
        Office of Environmental Management, Department of 
        Energy; and,
           Noah Shaw, General Counsel and Secretary, 
        New York State Energy Research and Development 
        Authority.
    On June 27, 2018, the Subcommittee on Environment met in 
open markup session and forwarded H.R. 2389, as amended, to the 
full Committee by a voice vote. On July 12, 2018, the full 
Committee on Energy and Commerce met in open markup session and 
ordered H.R. 2389, as amended, reported to the House by a voice 
vote.

                            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. 
There were no record votes taken in connection with ordering 
H.R. 2389 reported.

                 Oversight Findings and Recommendations

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee held a hearing and made 
findings that are reflected in this report.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee finds that H.R. 
2389 would result in no new or increased budget authority, 
entitlement authority, or tax expenditures or revenues.

                  Congressional Budget Office Estimate

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

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, August 29, 2018.
Hon. Greg Walden,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2389, a bill to 
reauthorize the West Valley Demonstration Project, and for 
other purposes.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Megan 
Carroll.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 2389--A bill to reauthorize the West Valley Demonstration Project, 
        and for other purposes

    Summary: The Department of Energy (DOE) is responsible for 
remediating sites contaminated with radioactive waste and other 
environmental hazards stemming from federal activities related 
to the production of nuclear weapons and nuclear energy 
research. H.R. 2389 would authorize appropriations for ongoing 
cleanup activities at the West Valley Demonstration Project, a 
nuclear waste remediation site in New York. The bill also would 
require the Government Accountability Office (GAO) to report to 
the Congress on options for disposing of the site's radioactive 
waste.
    Assuming appropriation of the specified amounts, CBO 
estimates that implementing H.R. 2389 would cost $345 million 
over the 2019-2023 period.
    Enacting the bill would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting H.R. 2389 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    H.R. 2389 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
    Estimated cost to the Federal Government: The estimated 
budgetary effect of H.R. 2389 is shown in the following table. 
The costs of the legislation fall within budget function 270 
(energy).

----------------------------------------------------------------------------------------------------------------
                                                          By fiscal year, in millions of dollars--
                                          ----------------------------------------------------------------------
                                             2018      2019      2020      2021      2022      2023    2019-2023
----------------------------------------------------------------------------------------------------------------
                                 INCREASES IN SPENDING SUBJECT TO APPROPRIATION
 
Authorization Level......................         0        75        75        75        75        75        375
Estimated Outlays........................         0        49        71        75        75        75        345
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that H.R. 
2389 will be enacted near the start of fiscal year 2019.
    Under current law and the terms of an agreement with the 
state of New York, DOE is responsible for paying 90 percent of 
the costs to dispose of radioactive waste, decontaminate 
facilities, and remove nonessential structures from the site of 
the West Valley Demonstration Project. H.R. 2389 would 
authorize the appropriation of $75 million annually over the 
2019-2028 period for those purposes. (In 2018, funding for 
cleanup activities at that site totals $75 million.) Assuming 
appropriation of the authorized amounts, CBO estimates that 
implementing H.R. 2389 would cost $345 million over the 2019-
2023 period (and $405 million after 2023). Estimated outlays 
are based on historical spending patterns for DOE's 
environmental management programs.
    CBO estimates that requiring GAO to prepare a report on 
options for disposing of the site's radioactive waste would not 
significantly affect that agency's costs, which are subject to 
appropriation.
    Pay-As-You-Go considerations: None.
    Increase in long-term direct spending and deficits: CBO 
estimates that enacting H.R. 2389 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2029.
    Mandates: H.R. 2389 contains no intergovernmental or 
private-sector mandates as defined in UMRA.
    Estimate prepared by: Federal costs: Megan Carroll, 
Mandates: Jon Sperl.
    Estimate reviewed by: Kim P. Cawley, Chief, Natural and 
Physical Resources Cost Estimates Unit; H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

         Statement of General Performance Goals and Objectives

    The goal and objective of H.R. 2389 is to reauthorize DOE's 
activities at the Western New York Service Center in West 
Valley, New York, and to gather additional information 
regarding the project's nuclear waste disposal costs, time, and 
pathways.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of rule XIII, no provision of 
H.R. 2389 is known to be duplicative of another Federal 
program, including any program that was included in a report to 
Congress pursuant to section 21 of Public Law 111-139 or the 
most recent Catalog of Federal Domestic Assistance.

                        Committee Cost Estimate

    The Committee adopts as its own the cost estimate prepared 
by the Director of the Congressional Budget Office pursuant to 
section 402 of the Congressional Budget Act of 1974.

       Earmark, Limited Tax Benefits, and Limited Tariff Benefits

    In compliance with clause 9(e), 9(f), and 9(g) of rule XXI 
of the Rules of the House of Representatives, the Committee 
finds that H.R. 2389 contains no earmarks, limited tax 
benefits, or limited tariff benefits.

                  Disclosure of Directed Rule Makings

    Pursuant to section 3(i) of H. Res. 5, the Committee finds 
that H.R. 2389 contains no directed rule makings.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  Applicability to Legislative Branch

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

             Section-by-Section Analysis of the Legislation


Section 1. West Valley Demonstration Project

    This section amends section 3(a) of the West Valley 
Demonstration Project Act to authorize $75,000,000 for each of 
the fiscal years 2019 through 2028.
    This section also requires the Comptroller General submit 
to Congress a report that describes volumes, origins, and types 
of radioactive waste at the Western New York Service Center in 
West Valley, New York; options identified for disposal of 
radioactive waste; costs of and timeframes for each such 
options; benefits and challenges of each such option; and how 
much has been spent on disposal of radioactive waste and 
volumes and what types of radioactive waste have been disposed 
of from the Western New York Service Center.

         Changes in Existing Law Made by the Bill, as Reported

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

WEST VALLEY DEMONSTRATION PROJECT ACT

           *       *       *       *       *       *       *


  Sec. 3. (a) There are authorized to be appropriated to the 
Secretary for the project not more than [$5,000,000 for the 
fiscal year ending September 30, 1981] $75,000,000 for each of 
fiscal years 2019 through 2028.
  (b) The total amount obligated for the project by the 
Secretary shall be 90 per centum of the costs of the project.
  (c) The authority of the Secretary to enter into contracts 
under this Act shall be effective for any fiscal year only to 
such extent or in such amounts as are provided in advance by 
appropriation Acts.

           *       *       *       *       *       *       *


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