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Rethinking Spent Fuel

Fortnightly Magazine - February 2011

can be accomplished within the next Congress.

I don’t think it will have the same attributes as climate legislation, because climate legislation reaches more broadly across impacts on non-nuclear fuels, while clearly what’s done here is irrelevant to jurisdictions that have no nuclear operations. It doesn’t impact them and in fact may be beneficial because it would reduce the ultimate liability of the general taxpayer—if [the government’s spent fuel obligation] is managed better than it has been so far.


Fortnightly: One legal snag could arise if passing this bill would trigger the Pay-Go rule in Congress, which says that if Treasury loses revenues by switching income from the NWPA fees to the new corporation, the lost income of about $700 million per year has to be offset by cost reductions in the federal budget. Do you agree creating this new corporation would trigger Pay-Go?

Barron: Whether it triggers Pay-Go is a technical, legal question that I’m not in a position to comment on. But I am willing to say these are user fees that were collected with the explicit purpose of supporting the ultimate disposal of nuclear waste. They aren’t and shouldn’t be considered general taxpayer revenues, so the notion that Pay-Go should apply to it is very arguable.

From a technical, legal standpoint, whether it would require some kind of exemption I’m not in a position to say. But clearly under the law these fees are not general revenues to the U.S. government. That’s been upheld in court a number of times.


Fortnightly: What about the Fed Corp approach? Some people worry about corporations; they get created and then have a life of their own. Should there be some requirement for an automatic termination or extension of the corporation in the Voinovich bill, so Congress has some long-term role in monitoring its progress?

Barron: If it’s a federally owned corporation, there should be no restriction on Congress requiring periodic reports on its performance. If through that process Congress collectively became dissatisfied with its performance, Congress could legislate changes to it. We want to avoid having any particular minority interest in Congress unduly or inappropriately influence the performance of the corporation. But where there’s collective agreement across both chambers and the executive branch that things aren’t going properly and changes are needed, then they’d fully have the Constitutional authority to make those changes.


Fortnightly: While the Voinovich bill provides for the management structure of the project, it doesn’t directly address many of the difficulties in the process for selecting waste storage sites, such as the intense opposition we’ve seen in Nevada and Utah. Some suggest large financial incentives would motivate local communities that have the appropriate geography to compete for a project. For example, such incentives generate local support for the Waste Isolation Pilot Project (WIPP) near Carlsbad, N.M. It seems like a different siting approach is called for, different from the current one at Yucca Mountain that has failed. How would the Fed Corp approach address the siting process?

Barron: I think an entity like this, which wouldn’t