[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



 
  YUCCA MOUNTAIN PROJECT: HAVE FEDERAL EMPLOYEES FALSIFIED DOCUMENTS?

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

                                HEARING

                               before the

                 SUBCOMMITTEE ON THE FEDERAL WORKFORCE
                        AND AGENCY ORGANIZATION

                                 of the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 5, 2005

                               __________

                           Serial No. 109-60

                               __________

       Printed for the use of the Committee on Government Reform


  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
                      http://www.house.gov/reform













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                     COMMITTEE ON GOVERNMENT REFORM

                     TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut       HENRY A. WAXMAN, California
DAN BURTON, Indiana                  TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida         MAJOR R. OWENS, New York
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida                PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota             CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana              ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio           DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania    DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah                   WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee       DIANE E. WATSON, California
CANDICE S. MILLER, Michigan          STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio              CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California          LINDA T. SANCHEZ, California
GINNY BROWN-WAITE, Florida           C.A. DUTCH RUPPERSBERGER, Maryland
JON C. PORTER, Nevada                BRIAN HIGGINS, New York
KENNY MARCHANT, Texas                ELEANOR HOLMES NORTON, District of 
LYNN A. WESTMORELAND, Georgia            Columbia
PATRICK T. McHENRY, North Carolina               ------
CHARLES W. DENT, Pennsylvania        BERNARD SANDERS, Vermont 
VIRGINIA FOXX, North Carolina            (Independent)
------ ------

                    Melissa Wojciak, Staff Director
       David Marin, Deputy Staff Director/Communications Director
                      Rob Borden, Parliamentarian
                       Teresa Austin, Chief Clerk
          Phil Barnett, Minority Chief of Staff/Chief Counsel

     Subcommittee on the Federal Workforce and Agency Organization

                    JON C. PORTER, Nevada, Chairman
JOHN L. MICA, Florida                DANNY K. DAVIS, Illinois
TOM DAVIS, Virginia                  MAJOR R. OWENS, New York
DARRELL E. ISSA, California          ELEANOR HOLMES NORTON, District of 
KENNY MARCHANT, Texas                    Columbia
PATRICK T. McHENRY, North Carolina   ELIJAH E. CUMMINGS, Maryland
------ ------                        CHRIS VAN HOLLEN, Maryland

                               Ex Officio
                      HENRY A. WAXMAN, California

                     Ron Martinson, Staff Director
                Chris Barkley, Professional Staff Member
                            Reid Voss, Clerk
          Mark Stephenson, Minority Professional Staff Member


















                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on April 5, 2005....................................     1
Statement of:
    Groat, Charles G., Director, U.S. Geological Survey; Ted 
      Garrish, Acting Director, Office of Civilian Radioactive 
      Waste Management, U.S. Department of Energy; Earl E. 
      Devaney, Inspector General, U.S. Department of Interior; 
      Gregory H. Friedman, Inspector General, U.S. Department of 
      Energy; Judy Treichel, executive director, Nevada Nuclear 
      Waste Task Force; B. John Garrick, chairman, U.S. Nuclear 
      Waste Technical Review Board; Joseph Egan, Nevada Attorney 
      General's Office; Bob Loux, executive director, Nevada 
      Agency for Nuclear Projects; and John Mitchell, project 
      manager, Bechtel Corp......................................    38
        Devaney, Earl E..........................................    53
        Egan, Joseph.............................................    74
        Friedman, Gregory H......................................    59
        Garrick, B. John.........................................    63
        Garrish, Ted.............................................    44
        Groat, Charles G.........................................    38
        Loux, Bob................................................   128
        Mitchell, John...........................................   135
        Treichel, Judy...........................................    66
    Guinn, Kenny C., Governor of Nevada; and Brian Sandoval, 
      Attorney General of Nevada.................................    23
        Guinn, Kenny C...........................................    23
        Sandoval, Brian..........................................    30
    Reid, Hon. Harry, a U.S. Senator from the State of Nevada; 
      Hon. John Ensign, a U.S. Senator from the State of Nevada; 
      and Hon. Jim Gibbons, a Representative in Congress from the 
      State of Nevada............................................    11
        Ensign, Hon. John........................................    16
        Gibbons, Hon. Jim........................................    22
        Reid, Hon. Harry.........................................    11
Letters, statements, etc., submitted for the record by:
    Berkley, Hon. Shelly, a Representative in Congress from the 
      State of Nevada, prepared statement of.....................     6
    Devaney, Earl E., Inspector General, U.S. Department of 
      Interior, prepared statement of............................    55
    Egan, Joseph, Nevada Attorney General's Office, prepared 
      statement of...............................................    76
    Ensign, Hon. John, a U.S. Senator from the State of Nevada, 
      prepared statement of......................................    19
    Friedman, Gregory H., Inspector General, U.S. Department of 
      Energy, prepared statement of..............................    60
    Garrick, B. John, chairman, U.S. Nuclear Waste Technical 
      Review Board, prepared statement of........................    64
    Garrish, Ted, Acting Director, Office of Civilian Radioactive 
      Waste Management, U.S. Department of Energy, prepared 
      statement of...............................................    46
    Groat, Charles G., Director, U.S. Geological Survey, prepared 
      statement of...............................................    40
    Guinn, Kenny C., Governor of Nevada, prepared statement of...    27
    Loux, Bob, executive director, Nevada Agency for Nuclear 
      Projects, prepared statement of............................   130
    Mitchell, John, project manager, Bechtel Corp., prepared 
      statement of...............................................   136
    Reid, Hon. Harry, a U.S. Senator from the State of Nevada, 
      prepared statement of......................................    13
    Sandoval, Brian, Attorney General of Nevada, prepared 
      statement of...............................................    32
    Treichel, Judy, executive director, Nevada Nuclear Waste Task 
      Force, prepared statement of...............................    68





















  YUCCA MOUNTAIN PROJECT: HAVE FEDERAL EMPLOYEES FALSIFIED DOCUMENTS?

                              ----------                              


                         TUESDAY, APRIL 5, 2005

                  House of Representatives,
      Subcommittee on Federal Workforce and Agency 
                                      Organization,
                            Committee on Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10 a.m., in 
room 2247, Rayburn House Office Building, Hon. Jon Porter 
(chairman of the subcommittee) presiding.
    Present: Representatives Porter, Berkley, Tom Davis of 
Virginia, and Gibbons.
    Staff present: Ron Martinson, staff director; Chad Bungard, 
deputy staff director/chief counsel; Chris Barkley and Shannon 
Meade, professional staff members; Reid Voss, legislative 
assistant/clerk; Patrick Jennings, OPM detailee serving as 
senior counsel; Mark Stephenson and Tania Shand, minority 
professional staff members; and Teresa Coufal, minority 
assistant clerk.
    Mr. Porter. I'd like to bring the meeting to order. A 
quorum is present, the Subcommittee on the Federal Workforce 
and Agency Organization will come to order. Thank you all for 
being here this morning. We appreciate hearing from you and 
appreciate additional comments after the meeting.
    As you know, we just finished a 2-week work session, so 
many Members are still en route to D.C. This is the first of 
many hearings, we are going to plan on additional meetings, the 
first one being next Wednesday April 13th at 10 a.m., I believe 
is the correct time. And to remind Members that there are votes 
at 6:30 this evening, and for those that aren't able to attend 
today, those Members, there will be other opportunities to 
provide their statements.
    As a Member of this body, and a public servant for over 20 
years of my life and throughout this time, I have represented 
Nevada on countless issues, and I am honored to have done so. 
But as chairman of the subcommittee, I now have a much larger 
role. I must now work to ensure that the Federal Government, 
including its employees, is serving the taxpayers honestly, 
ethically and effectively.
    There is no secret that the greater Las Vegas Valley is the 
fastest growing community in the United States of America. I 
could go on and on with statistics that show that the Las Vegas 
community is not as far as it may seem to some, as it was in 
the early 1980's, when Yucca Mountain was first being 
considered as our Nation's first high level nuclear waste 
repository. With every day that Yucca Mountain is being 
considered, more people begin to call Las Vegas home and more 
visitors are beginning to explore the resources we have to 
offer.
    Though this issue is of paramount importance to the people 
of Nevada, this is also an issue of national concern. Many more 
people than the citizens of Nevada are affected by the decision 
to dispose of nuclear waste in Yucca Mountain. This decision 
affects the safety and welfare of the entire Nation.
    When I first heard the news that some of the scientific 
data by the U.S. Geological Survey may have been falsified, I 
was outraged and appalled. The citizenry of this country trusts 
Federal public officials and employees to do the right thing. 
The actions by the Federal employees at issue today worked to 
eviscerate that trust. These Federal employees were trusted 
with developing true and honest data relating to Yucca Mountain 
but chose the very opposite path. This type of action cannot be 
tolerated under any circumstances. This is nothing short of 
criminal behavior, and we as Members of Congress must not allow 
this sort of behavior to happen again.
    Just last month I testified before the House Energy and 
Commerce Committee where some of the same people who are here 
today spoke about how they believe that the Yucca Mountain 
project is the safest place to store our Nation's high level 
nuclear waste. Then just a few days later, e-mails between 
Federal employees emerged showing that vital scientific 
information gathered between 1998 and 2000 in relation to this 
project had been falsified.
    All of my colleagues and the President and former 
Presidents have made decisions on the project based on so-
called sound science. Unfortunately, it seems now that those 
decisions may have been made on nothing more than science 
fiction.
    The e-mails between Federal scientists at the project 
discussed the falsification of documents and records that go to 
the heart of the science or the science fiction that was used 
to justify the project. Let me just highlight a few disturbing 
exchanges between the employees involved. What's worse is that 
in the last 24 hours we have discovered that there are more 
documents that were not provided upon our initial request.
    First, if I may quote from an e-mail, ``Like you said all 
along, the Yucca Mountain project has now reached a point where 
they need to have certain items work no matter what. The 
infiltration maps are on that list.'' E-mail No. 2, ``Why can't 
they figure out that nothing I provided them is quality 
assured? If they really want the stuff they'll have to pay to 
do it right.'' The third: ``We're not sure how smoothly this is 
going to go, but this is the approach. Like you said all along, 
the YMP,'' which is Yucca Mountain project, ``has now reached 
the point where they need to have certain items work no matter 
what. And the infiltration maps are on that list.''
    A fourth example, ``The bottom line is forget about the 
money. We need a product or we're screwed, and we'll blank the 
blame.'' The fifth example, very telling: ``Science by peer 
pressure is dangerous, but sometimes it's necessary.'' The 
sixth example: ``Here's the weird news. To get this milestone 
through quality assurance, I must state that I arbitrarily 
selected the analog sites.'' And the seventh: ``Dealing with 
the QA,'' quality assurance, ``the QA is bull and is really 
starting to make me sick.''
    The eighth example, very telling: ``In the end, I keep 
track of two sets of files, the ones that will keep quality 
assurance happy and the ones that we've actually used.'' The 
ninth: ``There is of course no scientific notebook for this 
work.'' The tenth: ``I don't have a clue when these programs 
were installed, so I've made up the dates and the names.'' Let 
me repeat: ``I don't have a clue when these programs were 
installed, so I've made up the dates and the names. This is as 
good as it's going to get. If they need more proof, I'll be 
happy to make more stuff.''
    Ladies and gentlemen, this is unacceptable. The reason 
we're here today is to find out exactly what this means. We 
provided an internal document from DOE which seems to capture 
the Department's concerns with this project. If I can quote 
from the document, ``These e-mails may create a substantial 
vulnerability for the program.'' Although DOE clearly 
recognizes the vulnerability of the project, it understates the 
gravity of the misconduct. The legitimacy of the science 
surrounding the storage of nuclear waste at Yucca Mountain is 
indeed in question.
    Moreover, the e-mails convey a clear intent by Federal 
employees to falsify their work to advance a political project, 
a project that carries the potential of horrific and 
unnecessary dangers to Nevadans and our whole country. The e-
mails also seem to indicate there may have been pressure on the 
employees from the top of the food chain. As chairman of this 
committee, I must work to make sure that the Federal agencies 
and their employees are held accountable for their actions, 
especially those that have such a major impact on this country.
    Yes, there are many questions yet to be answered. And I do 
not plan on stopping here today, as I mentioned earlier. Today 
I will be sending out invitations to witnesses for our meeting 
on April 13th to additional Federal employees who have been 
involved in the e-mail exchanges to come testify before this 
subcommittee, next Wednesday at 10 a.m.
    I would like to thank all the witnesses who have traveled 
so far to be with us here today, of course, my good friend, 
Governor Kenny Guinn, Attorney General Brian Sandoval, we've 
been friends for many years and I have great respect for you 
and your perspective. I also have known Bob Loux and Joe Egan 
for some time, and they will be testifying and I appreciate 
their expertise. It has been helpful on this Yucca Mountain 
related issue, and certainly the information they provided to 
other Members of Congress for many years.
    Of course, I also recognized my distinguished colleague, 
Senator Harry Reid, who is with us here this morning, and 
Senator Ensign. I would like to thank them for taking time out 
of their busy schedules to help testify today, Senator Reid, 
for your assistance, and from your staff, who has also been 
most invaluable and we truly appreciate it.
    As I mentioned to my friends, Senator Reid and Senator 
Ensigns, they have been outspoken in their views on Yucca 
Mountain and have been champions to make sure that America 
remains safe, and their leadership and tenacity have been 
greatly appreciated.
    Congressman Jim Gibbons and Congresswoman Shelly Berkley 
have also been involved in Yucca Mountain for many, many years. 
Although they are not members of the Subcommittee on the 
Federal Workforce and Agency Organization, I have invited them 
to be here with me today during this hearing. I welcome their 
comments and their questions.
    To all other witnesses here today from the Department of 
Energy and the Department of Interior, I thank you for your 
attendance, and I do look forward to hearing your testimony 
this morning.
    I would like to at this point recognize my colleague and 
friend from Nevada, Congresswoman Shelly Berkley.
    Ms. Berkley. I want to thank you, Congressman Porter, for 
holding this important hearing and for allowing me to 
participate with you. I appreciate it very much.
    This hearing is of utmost concern to me and the people I 
represent, all those that call Nevada home. As with Congressman 
Porter, I am appalled, to say the least, at the Department of 
Energy's continued mismanagement of the Yucca Mountain project. 
In all of my years of fighting this project, I knew 
instinctively that it couldn't possibly be based on sound 
science. But I never thought the day would come when Federal 
employees would purposely falsify documents to accommodate the 
lack of basic science.
    These actions jeopardize the health and safety of all 
Americans, especially the people of Nevada. The documentation 
in question relates to computer modeling involving water 
infiltration and climate, two of the most fundamental factors 
involved in establishing whether or not the proposed repository 
can safely isolate radioactive waste and prevent groundwater 
contamination. In the e-mails, the suspected USGS employees 
fabricated dates and names of programs used in modeling for 
quality assurance, audits and deleted information that did not 
fit favorable conclusions. ``Don't look at the last four lines, 
those lines are a mystery. I deleted the lines from the 
official QA version of the files.''
    In the end, as Congressman Porter cited, this e-mail said, 
``I keep track of two sets of files, the ones that will keep 
the QA happy and the ones that were actually used.'' USGS 
employees made it clear that QA was not a priority of the 
project, but rather an obstacle, exactly the opposite of what 
they told us.
    ``At any rate,'' states another e-mail, ``it's a damned 
shame to be wasting time on this sort of thing.'' There can be 
no doubt to anyone reading these e-mails that the integrity of 
the project and the scientific research are compromised. The 
Yucca Mountain project has been continually plagued with 
problems, and more importantly, has failed to meet the 
necessary standard of science the administration promised not 
only Nevadans, but all Americans.
    In the past year, the Yucca Mountain project has faced a 
series of setbacks. Multiple lawsuits have been brought forth 
challenging the site. The U.S. Court of Appeals ruled that the 
radiation standards for the proposed repository did not follow 
the recommendations of the National Academy of Sciences and 
would not protect the health and safety of our Nation. The 
Nuclear Regulatory Commission has refused to certify an 
electronic data base required for licensing the repository.
    These latest allegations of falsification of the scientific 
documentation only compound existing deficiencies in the 
quality assurance program for the Yucca Mountain project. Last 
year, the Government Accountability Office found instances of 
mismanagement and incompetence which were outlined in an April 
2004 report entitled ``Yucca Mountain: Persistent Quality 
Assurance Problems Could Delay Repository Licensing and 
Operation.'' According to the audit, the GAO concluded that the 
DOE has failed to fix persistent problems with data, models and 
software.
    In addition, continuing weaknesses in management have led 
to a work environment at the Yucca Mountain project that does 
not allow for employees to raise concerns without fear of 
retaliation from the DOE. On their own, any one of these issues 
is significant enough to stop Yucca in its tracks. Together, 
they spell disaster. Common sense dictates that this project be 
halted immediately. An in-depth, comprehensive, independent 
investigation into the falsification allegations must be 
completed before we spend one more nickel of taxpayers' dollars 
on a project that should have been terminated years ago. DOE 
should not be permitted to proceed with further licensing 
activities.
    It is crucial for the safety of our citizens that we delve 
into these issues thoroughly and ensure that nothing is swept 
under the rug. It is also crucial to recognize that the 
immediate future of nuclear power in this country does not 
depend on Yucca Mountain. A project this dangerous and risky 
must be scientifically sound, period. And as appalled and angry 
as I am, the nuclear industry should be twice as outraged, 
because rather than looking for alternative methods of storage 
of nuclear waste, they have relied entirely on the 
misrepresentations of the DOE to continue the Yucca Mountain 
project.
    It is my belief that the DOE has known for some time that 
this project was fatally flawed, that corners were cut, that 
the science did not support the conclusion and that the data 
was doctored. How can anyone who knew what was going on, DOE 
officials, the contractors, the subs, the supervisors and the 
employees, how can they live with themselves knowing they were 
putting their fellow Americans, their friends, their neighbors, 
and their own families at risk? There is no possible excuse for 
this wanton behavior.
    Yucca Mountain is based on a lie. There is no believable 
scientific foundation upon which to build this project. When 
you have a weak foundation, your building collapses. That is 
why Yucca Mountain's project is collapsing before our very 
eyes. Those e-mails provide demonstrable evidence that the DOE 
is building Yucca Mountain on a weak foundation, based on lies, 
fraud, intimidation, deception, and non-existent science.
    The FBI has announced that it is launching its own 
investigation into Yucca. If ever there was a reason for the 
FBI to investigate, this is it. The people who knowingly 
falsified the scientific documentation potentially jeopardized 
the health and safety of millions of Americans and squandered 
billions of taxpayers' money. They should be prosecuted to the 
full extent of the law.
    Once again, thank you, Congressman Porter, for holding 
these important hearings. I look forward to the testimony of 
the panels. Thank you.
    [The prepared statement of Hon. Shelly Berkley follows:]


    


    
    Mr. Porter. Thank you very much for your testimony.
    There are three individuals here that are going to have to 
leave for other meetings: Senator Reid, Senator Ensign. But I 
would like to first recognize the chairman of our full 
committee, Tom Davis, who also has to leave shortly. So 
Chairman Davis, thank you for being here.
    Mr. Davis of Virginia. Well, thanks for taking the lead and 
holding a very important hearing on recent developments at the 
Yucca Mountain project. I am going to be brief, because I want 
to hear from our speakers and get them back to work.
    These are very serious allegations involving Federal 
employees working at the project that they falsified documents. 
It raises grave concerns about the sound science underpinnings 
of this project. This subcommittee has jurisdiction over the 
work force. We are here to examine the veracity of these 
allegations. I doubt this will be our only hearing, and we are 
going to continue our investigation to get to the bottom of 
this matter.
    If confirmed, this alleged behavior not only casts serious 
doubt about the safety of this extremely important project, but 
also negatively impacts the public's perception, which has been 
improving, on the Federal work force. That is of great concern, 
I think, to all of us. All the more reason why this 
subcommittee should use its investigative and oversight 
authority to confirm or dismiss the allegations, give the 
American people in general, the residents of Nevada in 
particular, reassurance that their interests are held at the 
highest priority in the forthcoming decisions and how to 
proceed on the Yucca Mountain project.
    I have, I think, been fairly neutral on this project as it 
has moved through the process through the years. I have 
expressed some skepticism, but I don't share the strong 
opposition of my colleagues here from Nevada. But these 
allegations are disturbing, and I just wanted to say, as 
chairman of the full committee, we want to work with you to get 
to the bottom of the matter. I appreciate your bringing this to 
our attention.
    Mr. Porter. Thank you, Mr. Chairman. We appreciate your 
comments.
    I would now like to call on Senator Harry Reid.

STATEMENTS OF HON. HARRY REID, A U.S. SENATOR FROM THE STATE OF 
  NEVADA; HON. JOHN ENSIGN, A U.S. SENATOR FROM THE STATE OF 
NEVADA; AND HON. JIM GIBBONS, A REPRESENTATIVE IN CONGRESS FROM 
                      THE STATE OF NEVADA

                  STATEMENT OF HON. HARRY REID

    Senator Reid. Thank you very much.
    Mr. Chairman, members of the subcommittee, since September 
11th, every indication that they are going to try to haul 
nuclear waste has been a target of opportunity for terrorists, 
every train load or truck load of nuclear waste. The taxpayers 
and ratepayers have spent about $10 billion on Yucca Mountain 
so far. It is a flawed project. It should be brought to a 
stunning halt. We should stop as of now.
    There will be excuses, I've seen them already coming from 
the DOE, well, this stuff doesn't really matter. This matters. 
It shows clearly what has gone on, that there has been false 
science.
    The situation should be that the legislation that has been 
introduced by Senator Ensign and me to leave the nuclear waste 
where it is, store it onsite, in drycast storage containers, it 
would be safe for 100 years, and it would save the country 
billions of dollars. Billions of dollars. And we would have a 
safer society, and maybe in the future there would be some 
nuclear power that could be generated, new nuclear power in 
this country.
    I think that what has transpired here makes, as Congressman 
Davis indicated, makes the Federal Government look bad. I think 
it's important that this subcommittee gets to the bottom of 
this. I think, as Congressman Berkley said, that people should 
be prosecuted. You can't take science and have malpractice 
committed there. People are making fun of their own science. 
And this is leading to the wasting of money.
    We have known they rushed through that, as they cut through 
that mountain, they wouldn't even bother to wet down the 
drilling areas, knowing that people would get sick from 
mesothelioma. This whole project is a lesson in what's bad 
about Government. That is too bad.
    I would ask that my full statement be made a part of the 
record. I would ask that I be excused, please, Mr. Chairman.
    [The prepared statement of Hon. Harry Reid follows:]



    
    
    Mr. Porter. Absolutely, thank you, Senator. We appreciate 
your testimony this morning.
    Senator Ensign.

                 STATEMENT OF HON. JOHN ENSIGN

    Senator Ensign. Thank you, Mr. Chairman. I want to thank 
you for holding this hearing on Yucca Mountain. I know that you 
share my outrage and the outrage of the people of the State of 
Nevada that a USGS scientist apparently falsified documents 
regarding the Yucca Mountain quality assurance program.
    At this time, we have more questions than answers. What we 
do know is that Nevadans were promised that decisions 
concerning Yucca Mountain would be based on sound science. It 
now appears that the science may have been falsified. These e-
mails have finally blown the lid off this fraudulent and ill-
conceived project.
    According to the Washington Post, ``E-mails by a Government 
scientist on the Yucca Mountain nuclear waste dump project 
suggests the worker was planning to fabricate records and 
manipulate results to ensure outcomes that would help move the 
project forward.'' Mr. Chairman, I am dismayed to find that 
quality assurance documents are fraudulent, but frankly, I am 
not surprised. The DOE has regularly cut corners in the very 
program which has been set up to verify that all scientific 
data and engineering designs submitted to support a license for 
Yucca Mountain are accurate and reliable.
    In 2004, the GAO completed a report that Senator Reid and I 
requested on this very subject. The report was entitled, 
``Yucca Mountain: Persistent Quality Assurance Problems Could 
Delay Repository Licensing and Operations.'' I would like the 
entirety of this report to be submitted for the record. It 
makes for extraordinary reading.
    Mr. Porter. I ask unanimous consent. Hearing no objection, 
so moved.
    [Note.--The GAO report entitled, ``Yucca Mountain, 
Persistent Quality Assurance Problems Could Delay Repository 
Licensing and Operation,'' may be found in subcommittee files.]
    Senator Ensign. It shows that the DOE has been unable or 
unwilling to correct quality problems with data, models, 
software, and management since 1998. It indicates that some 
data sets could not be traced back to their sources, model and 
validation procedures were not followed. It also shows the 
DOE's arrogance. The DOE rejected the GAO findings and 
recommendations, while the NRC agreed with the conclusion but 
suggested flexibility in the ways to achieve and measure 
performance.
    It is my hope that the DOE will be more willing to look at 
recommendations now that its quality assurance program has been 
revealed for what it is: a fraud. I am stunned by the number of 
references to deleting and destroying e-mails, fudging 
information and not telling anyone how something was done. From 
``I will be happy to make up more stuff'' to ``science by peer 
pressure is dangerous but sometimes it is necessary'' the e-
mails are proof that the only thing necessary at this point is 
that we get to the truth.
    It seems that Yucca Mountain's destiny is that of a 
mountain of lies and nothing else. As this matter continues to 
be investigated, it is highly possible that more falsified 
documents will come to light. Lawyers working for Nevada 
recently uncovered an Energy Department audit from 2000 that 
reviewed Yucca documents from 1997 to 1998. The audits showed 
problems with USGS documentation, including that USGS officials 
claimed that they had calibrated instruments that did not exist 
at Yucca. This is emblematic of the shoddy work and perhaps 
criminal acts that have plagued this program.
    Mr. Chairman, the quality assurance program was put in 
place as part of the NRC licensing process to verify the 
accuracy and credibility of work that has been completed to 
protect public health and safety. The fact that the alleged 
fraud deals with the issue of water infiltration is critical, 
because it impacts the corrosion of casks and the containment 
of radioactivity.
    We are not talking about how realistic this scenario would 
be for a science fiction novel or movie script. The corrosion 
of casks and the containment of radioactivity are frightening 
realities that Nevadans and all Americans face should this 
project proceed based on fraudulent science.
    Mr. Chairman, I want to underscore, this is only the last 
in a series of setbacks for the Yucca Mountain project. A 
Federal appeals court last July ruled that new radiation safety 
standards must be established before the Department could file 
the licensing application with the Nuclear Regulatory 
Commission. The standards must be at the point when the waste 
will be at its peak radiation. That could be 300,000 years from 
the time the waste is sent to Yucca Mountain, instead of the 
arbitrary EPA standards of 10,000 years. The EPA has yet to set 
that new standard.
    The 1982 Nuclear Waste Policy Act gave the Department of 
Energy until 1998 to open a permanent, underground geologic 
repository for high level nuclear waste. Up until recently, 
Yucca Mountain was scheduled to open in 2010. That date has 
slipped indefinitely.
    Mr. Chairman, we are beyond the point where we need to 
abandon this ill-conceived and problem-riddled project, and 
focus on safer, smarter and more reasonable alternatives. I 
think we need to amend the Nuclear Waste Policy Act of 1982 to 
require the title to all spent nuclear fuel stored in dry casks 
to be passed on to the DOE upon the site transfer from storage 
pools to casks.
    Senator Reid and I, as he mentioned, are planning to 
introduce legislation to allow the DOE to assume liability of 
the waste onsite before it is transferred to Yucca Mountain. 
Conveying the title means that DOE will have full 
responsibility for the possession, stewardship, maintenance, 
and monitoring of all spent nuclear fuel. Through the act, the 
DOE would also be made responsible for various maintenance and 
oversight that would be associated with implementation.
    Furthermore, we need to invest in new technologies at our 
national labs to recycle the waste without producing weapons 
grade plutonium as a byproduct. Recycling has advantages over 
burying high level waste. The residual activity and radio 
toxicity of the waste in the repository following the recycling 
process would be dramatically less than for a non-assisted 
repository. The volume would be substantially lower as well.
    In conclusion, Mr. Chairman, I want to thank you for 
holding this hearing on possibly fraudulent quality assurance 
documents. I have no confidence in the Department and the 
Department of Interior to get to the bottom of this fraud and 
to make sure that the science underpinning Yucca Mountain 
program is truly sound. I have 8 years worth of evidence to 
back up my position: these agencies have nothing but empty 
promises.
    Senator Reid and I have asked the Department of Justice and 
the FBI to protect and preserve any and all records associated 
with the Yucca Mountain project. We have also asked for an 
independent investigation of the document review and DOE's 
license application. I hope this committee will join us in 
these efforts. There needs to be an independent review of the 
science behind Yucca Mountain. By independent, I mean the 
scientists who are experts in the field and have never been on 
the DOE payroll.
    I am tired of hearing comments by DOE officials that the 
fraud isn't scientifically important, because the computer 
models work. This is the kind of attitude that caused these 
kinds of problems in the first place and the kind of approach 
which reveals that DOE is not up to the job of fixing it.
    Mr. Chairman, I conclude my testimony at this point and ask 
that the rest of my testimony be made part of the record. I ask 
to be excused.
    [The prepared statement of Hon. John Ensign follows:]


    

    
    Mr. Porter. Thank you, Senator Ensign. I appreciate your 
comments, and welcome back to the House. It's always good to 
see you.
    Thanks again to our Minority Leader, Senator Reid, for his 
comments.
    I would like to now bring it back to the panel and 
introduce Congressman Jim Gibbons from Nevada.

                 STATEMENT OF HON. JIM GIBBONS

    Mr. Gibbons. Thank you very much, Chairman Porter. And to 
my friend and colleague who just left, Chairman Davis, I also 
want to thank you for inviting us to be part of this panel for 
this very important hearing.
    Ladies and gentlemen, this is no small matter. This is no 
trivial issue. I would ask that the panels following the 
Governor and my friends out here that are out here today that 
testify from DOE and the USGS, that they do not attempt to 
trivialize the wrong that was done under their watch. This is 
significant. There are significant safety issues involved, 
there are significant sums of money involved. This will not go 
away by a mere statement of saying, they are small, 
unimportant, trivial mistakes. I implore you, don't come to the 
table and make that statement.
    I commend Chairman Porter for his prompt action in 
undertaking this hearing today. This is a significant and 
important issue before not just Nevadans, but before every 
American. Again, I want to welcome my friends that are here, 
the Governor of Nevada, Kenny Guinn, and the Attorney General, 
Brian Sandoval, along with our two Senators who had to leave 
earlier, and my other colleague, Congresswoman Shelly Berkley, 
who are here as well, feeling that this is so important, so 
significant that we have to make sure that the American public 
understands what's going on.
    And let me say that I as a geologist, as a scientist, have 
long had many questions and grave concerns about the scientific 
integrity of Yucca Mountain over the years, from what I have 
seen be reported by their scientists. I have never been 
convinced that the Department of Energy could soundly stand on 
science as the basis for making Yucca Mountain a nuclear 
repository.
    Like many Nevadans, like everyone on this panel, I was 
shocked and dismayed to learn that Government scientists and 
their superiors had falsified testimony and science relating to 
the possible water infiltration problems at Yucca Mountain. 
These are serious allegations, ladies and gentlemen. As I said, 
these are allegations that are not going to go away until they 
are resolved.
    This administration, President Bush's administration has 
prided itself on Government accountability. I have applauded 
their effort in that accountability. Now it is time for 
Congress, even if it is just this committee, it is time for 
Congress to hold the feet to the fire, hold the line on 
integrity and get to the bottom of what really is happening at 
Yucca Mountain.
    As I said, it's time for everyone to measure up to what the 
standards of Yucca Mountain are today and whether or not, for 
100,000 years, they will meet the needs and the safety of the 
American public. I daresay to each one of you at DOE, you come 
to Nevada and you explain to the people out there why your 
callous disregard of safety allowed for the waters of the 
western part of the United States to be contaminated with 
nuclear radioactive materials. Something, ladies and gentlemen, 
has to be accounted for. You are the ones whose feet are going 
to be held to the fire.
    Mr. Chairman, I have a tremendous amount of information in 
my statement that I would like to have entered into the record. 
Right now I simply would like to close by saying that please, 
when you come to this table, when you come to testify before 
this committee, do not trivialize. This goes beyond the 
veracity of the framing science for the basis of the decision 
for moving forward with Yucca Mountain. This goes to the basis 
of believability of the U.S. Government. Those people on the 
next several panels are going to have the responsibility to 
answer the American public's questions about what went on and 
why it went on and importantly, what you are doing to correct 
it.
    With that, Mr. Chairman, I would like to offer my complete 
written statement for the record and yield back the balance of 
my time.
    Mr. Porter. Thank you, Congressman.
    At this time, I would like to ask unanimous consent that 
all Members have 5 legislative days to submit written 
statements and questions for the record and any answers to 
written questions provided by the witnesses also be included in 
the record. Without objection, so ordered.
    I ask unanimous consent that all exhibits, documents and 
other materials referred to by Members and the witnesses may be 
included in the hearing record, that all Members be permitted 
to revise and extend their remarks. Without objection, it is so 
ordered.
    It is a practice of this committee to make sure that we 
administer the oath to all witnesses. Would you please all 
stand with me and also, I believe Mr. Ziegler is here, if he 
would stand also.
    [Witnesses sworn.]
    Mr. Porter. Let the record reflect that all witnesses have 
answered in the affirmative, and please be seated. Thank you.
    As I mentioned earlier, we had an adjustment in the 
schedule to make sure the Senators could go back to their house 
and take care of business, also our Chairman Davis. So now I 
would like to move into our first panel, and we would like to 
hear from the Governor of Nevada, the Honorable Kenny Guinn. 
Governor.

  STATEMENTS OF KENNY C. GUINN, GOVERNOR OF NEVADA; AND BRIAN 
              SANDOVAL, ATTORNEY GENERAL OF NEVADA

                  STATEMENT OF KENNY C. GUINN

    Governor Guinn. Mr. Chairman and members of the committee, 
for the record, I am Kenny Guinn, Governor of the State of 
Nevada. I would like to begin by thanking you, Mr. Chairman, 
for taking the initiative and arranging for this very important 
hearing today.
    I also want to thank all of you as members of the 
subcommittee for devoting your time and effort to address a 
matter of critical importance not only to my State, but also to 
the entire country. The recent disclosure by Secretary of 
Energy Bodman that scientists working on the Yucca Mountain 
project may have falsified data is nothing short of criminal 
behavior. While it is certainly possible for there to be honest 
differences of opinion among scientists and technical experts, 
in a project as complex and controversial as a nuclear waste 
repository, the fact that data may have been intentionally 
fabricated in service of shoring up predetermined and 
politically driven conclusions, calls into question the very 
legitimacy of the entire program.
    I am shocked by this development and I join our Attorney 
General and congressional delegation that you have heard from 
here today in calling for an immediate and thorough 
investigation. For too long in this project, we have watched 
politics trump science over and over again.
    In 1987, when Congress decided to arbitrarily abandon the 
step by step scientifically based approach to repository site 
selection embodied in the original Nuclear Waste Policy Act of 
1982, and singled out Nevada's Yucca Mountain as the only site 
to be considered, it did so for purely political reasons. 
Frankly, it has all been downhill from there. What began as a 
noble effort to blend science and policy into a sound approach 
for solving a difficult and controversial technical problem has 
deteriorated into a quagmire of politics where the laws of 
expediency prevail over the laws of science.
    Mr. Chairman, less than a month after my election as 
Governor to the State of Nevada, but before I was sworn into 
office, I co-authored a letter with then-Governor Bob Miller to 
Energy Secretary Bill Richardson urging that Yucca Mountain be 
immediately disqualified as a repository site, citing strong 
and compelling scientific evidence indicating the site was 
incapable of safely isolating deadly radioactive waste.
    One of the main points raised in that letter was ironically 
the existence of very rapid groundwater pathways and evidence 
showing that rapid water movement through the site would 
expedite the corrosion of waste disposal containers underground 
at Yucca Mountain and very quickly transport radioactive 
materials to the aquifer and from there to water sources used 
by the people in the various communities.
    Little did we know then that the very information the 
Secretary of Energy relied on in subsequently denying my 
request was very likely based on fabricated data, given the 
fact that from published reports, at least, the data believed 
to have been compromised involved U.S. Geological Survey 
studies of groundwater movement at Yucca Mountain. It is 
certainly suspicious, if not outright incriminating, that those 
USGS studies were ordered by DOE in an attempt to contradict 
earlier DOE and State of Nevada research findings that were not 
to DOE's liking.
    In 2002, when President Bush, acting on Secretary Abrams' 
advice, recommended that Congress endorse continuing the Yucca 
Mountain project, he was likely also acting on information that 
was grounded in falsified data. The President, in a personal 
meeting with me, eye to eye, face to face, told me that he 
would base his decision on sound science.
    I wonder how many of you in Congress would have voted in 
the summer of 2002 to override my veto on the project would 
have done so if you had known that a fundamental underpinning 
of the Yucca Mountain project was based on fraudulent and 
intentionally falsified data? It is a sad day for my State and 
for America when we can no longer trust Government scientists 
to report their findings honestly and not mislead, misrepresent 
or falsify the facts, especially when we are dealing with such 
a critical, important, and risky technical issue as nuclear 
waste disposal.
    It would be far worse for the country, however, if such 
fraudulent science would be allowed to be swept under the rug. 
To quote Thomas Jefferson, ``It is more honorable to repair a 
wrong than to persist in it.'' That, Mr. Chairman, is the task 
before this subcommittee today. Already, DOE officials are 
seeking to minimize the importance of Secretary Bodman's 
disclosure. The wagons are being circled, and without swift and 
decisive action to get to the whole truth in this matter, I am 
very concerned that the true extent of any wrongdoing in the 
Yucca Mountain program will never be known.
    Despite calls from the Nevada Attorney General, Nevada's 
congressional delegation, others and me, for DOE to release the 
e-mails and other materials that prompted Secretary Bodman's 
disclosure of likely data falsification, DOE has refused to 
make the materials available. Instead, DOE representatives have 
been seeking to downplay evidence as merely paperwork problems, 
or as minor quality of assurance matters.
    If that is in fact the case, Mr. Chairman, why has DOE not 
made the evidence available to the State of Nevada and other 
entities charged by the Nuclear Waste Policy Act with 
overseeing DOE-Yucca Mountain activities? Before becoming 
Nevada's Governor, I was the CEO of the largest utility company 
in Nevada, and one of the largest ones in the State of Arizona 
and a part of California. For more than a year, I was the 
acting president of the University of Nevada and Las Vegas. Let 
me tell you, if any scientists or engineers working for me were 
found to have fabricated or otherwise misrepresented 
information regarding academic work at the University or any 
Southwest Gas project, they would have been dealt with swiftly 
and harshly.
    Yet here we sit today, 3 weeks, 3 weeks since Secretary 
Bodman disclosed the existence of falsified Yucca Mountain 
date, and no one has been permitted to see the e-mails in 
question or interview the scientists in totality. What we get 
from DOE is simply obfuscating and damage control. During the 
past year, the country has seen CEOs of major industries 
dragged before the courts for cooking the books and fabricating 
information to make corporate profits appear better than they 
were in reality. I see no difference between those scandals and 
what appears to have occurred in DOE's Yucca Mountain program.
    In the case of ENRON, WorldCom, or other corporate 
wrongdoing, the motive was a maximizing of profits and avoiding 
losses, while the fraudulent actions involved falsifying 
embarrassing and incriminating accounting and reports, all for 
money. In the case of Yucca Mountain, the motive was covering 
up and countering incriminating and embarrassing information 
that could have meant disqualifying the entire project. And the 
questionable actions involved, doctoring scientific findings 
and quality assurance records.
    If we treat corporate fraud, which after all hardly 
compares to the seriousness of fraud involving the safe 
disposal of some of the most deadly and long-lived substances 
known to man, as such a serious matter, how can we not demand 
equally intense scrutiny of apparent fraud in a public sector 
program that has the potential to impact many generations of 
people and do irascible damage to the credibility of agencies 
and institutions whose sole role it is to address some of the 
most pressing and scientific and technical issues of our day?
    The foot-dragging and game-playing must stop, and a real, 
legitimate investigation must be immediately initiated.
    Let me conclude, Mr. Chairman, by reminding this 
subcommittee and other Members of Congress that from the very 
beginning of the Government's high level nuclear waste 
repository program, we in Nevada have asked just one thing of 
the Department of Energy. Be honest with us and carry out a 
scientifically sound and credible screening program that has as 
its goal the identification of a site capable of isolating 
deadly radioactive waste from the human waste and the 
environment for the extraordinarily long time that it would 
require. DOE has never lived up to that expectation and now, 
with these revelations about falsified scientific data, the 
curtain has been pulled back to reveal just how bankrupt and 
fraudulent the Yucca Mountain program may have been all along.
    The evidence is becoming overwhelming that the Yucca 
Mountain program is broken beyond repair. It is hemorrhaging 
money and cannot meet appropriate health and safety standards. 
It is falling farther and farther behind schedule. Even its 
most ardent supporters are beginning to question its wisdom and 
now the project has lost whatever scientific credibility that 
might have been remaining.
    Let us, Mr. Chairman, find a way to make this fraudulent, 
bankrupt, and unnecessary project stop, not only for the sake 
of the people and environment in my State, but in the best 
interests of America's people and its environment. I want to 
thank you again for the opportunity to address you here today 
on this very important issue, and we will be happy to cooperate 
with you in any way that we possibly can. But we are demanding 
that we also see public records from the e-mails so that we can 
defend our case against this project.
    Thank you very much.
    [The prepared statement of Governor Guinn follows:]



    
    
    Mr. Porter. Thank you, Governor. We appreciate your 
testimony.
    Now our Attorney General of Nevada, Mr. Brian Sandoval.
    Ms. Berkley. Mr. Chairman, if we have questions of the 
witnesses, shall we wait until the panel has finished?
    Mr. Porter. Yes.
    Ms. Berkley. All right, thank you.

                  STATEMENT OF BRIAN SANDOVAL

    Mr. Sandoval. Good morning, Mr. Chairman, members of the 
committee. My name is Brian Sandoval, Attorney General for the 
State of Nevada.
    First, Mr. Chairman, I would like to compliment you and 
thank you in your leadership in scheduling this meeting. I 
would also like to thank Congressman Gibbons and Congresswoman 
Berkley for your leadership on the Yucca Mountain issue and for 
exposing the science fiction associated with the Yucca Mountain 
project.
    The recent disclosure by the U.S. Department of Energy that 
key Yucca Mountain scientific studies concerning water 
infiltration were falsified undermines the credibility of the 
Yucca Mountain project, a multi-billion dollar project that is 
increasingly confronted with potentially insurmountable 
problems. The question of falsification of critical data goes 
directly to the suitability or unsuitability of Yucca Mountain 
to safely house this country's first permanent high level 
nuclear waste repository.
    The question of falsification also calls into question the 
health and safety of Nevadans and all Americans. The studies 
that are now circumspect form the basis of the Department of 
Energy's site recommendation to the President of the United 
States and the President's recommendation of the Yucca Mountain 
site to Congress. Such falsification irreparably damages the 
legality of the project, its scientific integrity, and public 
confidence in the project. Of course, all these are and must be 
fundamental prerequisites to the viability and safety of the 
project.
    Some of my colleagues will attest to other fraudulent 
conduct at Yucca Mountain that further undermines the 
suitability of the site. Such fraudulent conduct by DOE and its 
contractors could actually result in a rejection by the Nuclear 
Regulatory Commission of DOE as a qualified applicant for an 
NRC license to construct the project, assuming DOE ever files a 
license application.
    In a March 17, 2005 letter to Attorney General Alberto 
Gonzales, I requested that all relevant e-mails be made 
available to my office, that the Yucca Mountain data base be 
immediately frozen as to prevent damage to other vital 
evidence, and most importantly, that an independent 
investigation into the potential criminal activity be 
conducted.
    To date, although I am aware through media reports that the 
FBI is conducting a criminal investigation, I have not heard 
from the Department of Justice. I am also trying to schedule 
with the Attorney General, schedule a meeting with the Attorney 
General of the United States to personally discuss my concerns 
with him.
    Finally, as Nevada's Attorney General, I am responsible for 
protecting the health and safety and welfare of Nevada's 
citizens. To that end, I will pursue all appropriate legal 
remedies available under Nevada law to protect the people of 
Nevada and the millions of visitors that travel there every 
year.
    Mr. Chairman, in closing, I urge this committee to demand 
immediate action. I ask that you request an independent 
investigation of all the issues that we have heard discussion 
about today, that an independent commission be formed to 
conduct this investigation of all the science associated with 
the Yucca Mountain project, someone without bias, to give 
credibility to the investigation, and that the entire data 
base, not a portion, but the entire data base, be looked at. 
Because it all may be affected.
    No. 2, I ask that an absolute provision of all the 
information be allowed to be given to the State of Nevada 
unfettered and without a request of privilege. Third, I 
encourage an aggressive continuation of a criminal 
investigation into potential wrongdoing associated with the 
science at Yucca Mountain.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Sandoval follows:]



    


    
    Mr. Porter. Thank you, Mr. Sandoval.
    We are now going to move into the question and answer 
segment of the hearing. I do have a question for you, Mr. 
Sandoval.
    I know there has been numerous lawsuits that have been 
initiated by the State of Nevada and other individuals. Based 
on the information that has been provided in the last few 
hours, 48 hours, 72 hours, regarding the e-mails and internal 
documents, if you knew then what we know now, how would this 
have impacted some of our lawsuits that either have closed or 
are currently pending?
    Mr. Sandoval. Thank you, Mr. Chairman. Certainly I think it 
would have changed our approach by 180 degrees. Although I 
think we may have never have gotten to litigation, because 
there may never have been a recommendation to the President of 
the United States by the Secretary of Energy who would not have 
been able to make that recommendation because of the falsified 
data associated with the presentation to him, who in turn made 
the recommendation to this Congress.
    But certainly I believe that it would have strengthened, if 
we would have had this information, strengthened our lawsuits 
and we would have been even more successful than we have 
already been.
    Mr. Porter. I think we may hear testimony this morning, 
just having read some of the backup, that the agencies may 
declare that this is a success, because they in fact discovered 
these documents, brought them forward to the public for review. 
Could you comment on that approach by the Department of Energy 
and the Department of Interior and the USGS?
    Mr. Sandoval. Thank you, Mr. Chairman. My only comment is 
this, that it's our belief that this disclosure was not 
voluntary, that it was a result of our aggressive prosecution 
of this case and a demand that these types of documents be 
turned over. Had it not been for Nevada's aggressive approach 
in terms of requiring the presentation of these documents, we 
may never have heard about this.
    Mr. Porter. Thank you. And I would concur, again, reading 
our testimony and seeing some of the press statements, that 
they are good citizens by releasing this information, the facts 
remain, this information would not be before this committee 
today if it wasn't for the State of Nevada and your office and 
those involved, of calling for this information to be released. 
So I appreciate that. Thank you.
    Mr. Sandoval. Thank you, Mr. Chairman.
    Mr. Porter. Congresswoman Berkley.
    Ms. Berkley. Thank you, Mr. Chairman.
    Governor Guinn, there is no doubt in my mind that you were 
eye to eye with the President, pleading Nevada's case and doing 
a very good job, at that. There is no doubt that the President 
believed at the time that he was basing his decision on sound 
science.
    My concern now is, how are we going to communicate these 
latest findings to the President? According to the Associated 
Press today, there is a memo, a section is entitled, ``Key 
Points for Your Discussion with the Secretary,'' and among 
those points, this is the Department of Energy officials, ``we 
do not believe that the questionable data has any meaningful 
effect on the results supporting the site recommendation.''
    Now, the Secretary of Energy is relatively new. He hasn't 
been dealing with this the last 20 years, as the rest of us 
have. He is getting that type of guidance from the people below 
him. He is going to take the information they give him and take 
it to the President of the United States. And if he follows the 
recommendations that are cited in this memo, he is going to be 
telling the President that these falsified scientific documents 
are not relevant to the future of Yucca Mountain.
    What are you planning to do to take our message to the 
President, so that he gets an unfiltered and correct version of 
what's going on?
    Governor Guinn. Well, of course, Congressman Berkley, we 
would be at a definite disadvantage if we are not able, 
hopefully through this subcommittee's actions, to be able to 
get the entire data that we need. Because we are only getting 
various e-mails that are leaked out or coming through. I 
haven't seen anything other than what I've seen on national 
television and read a couple of them in the paper.
    So through the Attorney General, we are asking for this 
data so that we can prepare our case. We would not like to have 
to do it halfway. I think it's important for us to have the 
data that we need to go to the White House, just like we did 
once before. We got the opportunity to meet with President Bush 
on the basis that there is a law that requires that he has to 
make a decision off of supposedly the data that is presented to 
him. Then I had the right to veto that, and it could only be 
overridden by congressional action by both the Senate and the 
House.
    So in my meeting with him, he was very firm. I know him 
from our Governor days, I know him to be a man that is fair and 
certainly convinced to do things in his mind from a scientific 
basis. He told me that he would only make his decision on 
scientific data and sound science. I think this shows that 
there are a lot of questions to the data that he had to make 
that decision.
    We will certainly do everything we can to get this data, 
working with you, working through our own process. If we can't, 
then we would have to go there just on what we know. But I 
assure you that we will be working to get another sit-down, 
face to face discussion with the President of the United 
States. Because the facts have changed, there is no doubt about 
that.
    Ms. Berkley. And I would urge you to do that sooner than 
later, because I have no confidence in the Department of 
Energy, that they are going to be forthcoming. And 6 months 
from now, no mater how hard we're trying, they could still be 
dragging their feet. And I don't think we have the luxury of 
waiting 6 months to get this information before the President, 
even if we don't have the full, all the documentation, we are 
going to need to give him another point of view, because I 
guarantee, with or without the documentation, they are going to 
be all over him.
    Governor Guinn. I would just like to say in conclusion to 
your question, this is not the only issue that we have 
difficulty getting information on. I have written my second 
letter asking for permission to see some of the data they have 
that is not related to the e-mails. The only way I can get that 
is to sign a joint agreement with them that it would never, any 
of it, be made public.
    This is not like it's national security. This is a problem 
inside our own borders and an issue that has been discussed 
over the last 20 years. So we have difficulty getting that, 
because if we sign an agreement like that, and it's the only 
way we can get this information, which should be shared with 
us, we would share with them anything that we have, then it 
means that if we sign that agreement and then we have 
litigation, we are not able to disclose it. That's just not a 
fair playing field.
    So we have trouble getting that data anyway. But this is 
one that's even more serious, and we will go directly, in my 
opinion, to the White House for another sit-down discussion.
    Ms. Berkley. I would urge you to do that, as I said, sooner 
than later.
    General Sandoval, I appreciate the step by step approach 
that you are taking. Could you give us some idea, as Nevada's 
attorney, what you think the next appropriate legal move should 
be in this issue?
    Mr. Sandoval. Thank you, Mr. Chairman and to Congresswoman 
Berkley. I think the next step should be a legal one in terms 
of seeking the documents, so that we can get to the bottom of 
this and then take the appropriate action thereafter. We have 
tried to do it the kind way and the polite way. If that way 
doesn't work, then we have to do it the legal way.
    Ms. Berkley. Thank you.
    Mr. Porter. Congressman Gibbons, do you have any questions?
    Mr. Gibbons. Yes, I do, Mr. Chairman, thank you very much. 
And to the Governor and the Attorney General, thank you again 
for your time and your testimony here today. It has been very 
helpful to us to understand this issue a little better.
    On March 24th of this year, I sent a letter both to the 
Department of Energy, the Secretary of Energy, as well as to 
the President of the United States, asking for an immediate 
shut-down of the Yucca Mountain project, pending the outcome of 
this investigation. I would just like to ask, Mr. Attorney 
General, have you seen the redacted documents that were 
supplied to Congress regarding the e-mails at this point in 
time? Have you seen those?
    Mr. Sandoval. Mr. Chairman and Congressman Gibbons, no.
    Mr. Gibbons. So these documents were never part of your 
litigation as to the veracity or the suitability of Yucca 
Mountain during its pending course in court?
    Mr. Sandoval. No, they were not.
    Mr. Gibbons. On March 29th, there was a secondary list of 
original documents, I believe, that were sent to us, and I'm 
holding them up here. I don't presume you have seen these. This 
is the first time I have seen these. I would like to have your 
thoughts, when you get a moment, when you go over these e-
mails, to see whether or not this would have any pending change 
in your strategy, both you, the Governor and the Attorney 
General, to look at these documents when you have a moment, to 
determine whether that would change the strategy of the State 
of Nevada with regard to its approach to Yucca Mountain when 
you have that moment.
    One analogy that I'm sure will bring a smile to your face. 
If I were to design an airplane that you were to fly in to risk 
your life, and I were to tell you that the quality assurance 
was something I didn't care about and that I took steps to 
avoid and that I intentionally fabricated the science and 
engineering related to that airplane, would you fly on that 
airplane? I would hope your answer is no.
    Governor Guinn. If you're asking me, no. [Laughter.]
    Mr. Sandoval. I wouldn't fly it either, and I would ask you 
to fly it.
    Mr. Gibbons. I wouldn't fly it myself. That's what the 
Department of Energy and the U.S. Geological Survey is asking 
the people of the State of Nevada, in fact, the people of 
America, to do by accepting their science and their engineering 
regarding the security of the Nation's most toxic, deadly 
material and the security of their water supplies for hundreds 
of thousands of years thereafter.
    So with that, I want to, Mr. Chairman, thank you again for 
allowing me to ask those questions, and again, thanks to our 
witnesses here as well today.
    Mr. Porter. Thank you, Congressman.
    I would like to move into our next panel. To help expedite 
the process this morning, I'm actually going to combine the 
second and third panels. So I would now like to invite our 
second and third panels of witnesses to please come forward.
    First, we will bring in Dr. Charles Groat, Director of the 
U.S. Geological Survey at the Department of Interior. Following 
him will be Mr. Ted Garrish, Deputy Director of the Office of 
Civilian Radioactive Waste Management at the Department of 
Energy. Then we will hear from Mr. Earl Devaney, the Inspector 
General at the Department of Interior.
    After Mr. Devaney, we will hear from Gregory Friedman, 
Inspector General at DOE. Then we will hear testimony from Mr. 
John Garrick, chairman of the Nuclear Waste Technical Review 
Board. After Mr. Garrick, we will hear from Judy Treichel, the 
executive director of the Nevada Nuclear Waste Task Force. Then 
we will hear from Mr. Egan, attorney for the Nevada Office of 
the Attorney General. Following that will be Mr. Loux, 
executive director of the Nevada Agency of Nuclear Projects, 
followed by Mr. John Mitchell, the Yucca Mountain Project 
Manager for Bechtel. I will allow you all a moment to get 
situated.
    Thank you for your patience. I would now like to open with 
Mr. Charles Groat, Director of U.S. Geological Survey at the 
U.S. Department of Interior. Welcome.

   STATEMENTS OF CHARLES G. GROAT, DIRECTOR, U.S. GEOLOGICAL 
   SURVEY; TED GARRISH, ACTING DIRECTOR, OFFICE OF CIVILIAN 
 RADIOACTIVE WASTE MANAGEMENT, U.S. DEPARTMENT OF ENERGY; EARL 
  E. DEVANEY, INSPECTOR GENERAL, U.S. DEPARTMENT OF INTERIOR; 
  GREGORY H. FRIEDMAN, INSPECTOR GENERAL, U.S. DEPARTMENT OF 
ENERGY; JUDY TREICHEL, EXECUTIVE DIRECTOR, NEVADA NUCLEAR WASTE 
   TASK FORCE; B. JOHN GARRICK, CHAIRMAN, U.S. NUCLEAR WASTE 
TECHNICAL REVIEW BOARD; JOSEPH EGAN, NEVADA ATTORNEY GENERAL'S 
OFFICE; BOB LOUX, EXECUTIVE DIRECTOR, NEVADA AGENCY FOR NUCLEAR 
  PROJECTS; AND JOHN MITCHELL, PROJECT MANAGER, BECHTEL CORP.

                 STATEMENT OF CHARLES G. GROAT

    Mr. Groat. Thank you, Mr. Chairman.
    Good morning to you and to members of the subcommittee, and 
thank you for the opportunity to speak with you on behalf of 
the U.S. Geological Survey on the Department of Energy's Yucca 
Mountain Project.
    On March 14, 2005, we learned from the Department of Energy 
that improprieties in studies and the quality assurance process 
were allegedly committed 6 years ago by USGS scientists working 
on the Yucca Mountain waste repository project. I referred the 
matter to the Department of Interior's inspector general for 
action. We take these charges very seriously, Mr. Chairman, and 
we will do everything we can to ensure that the scientific 
information the USGS provides the Nation meets the highest 
standards of accuracy and credibility.
    Throughout the entire history of the Yucca Mountain 
project, USGS scientists have been major participants in the 
earth science research that has been conducted on behalf of the 
Department of Energy. My written testimony provides the history 
of our involvement and has been submitted for the record. I 
will limit my comments to the present situation.
    E-mails that are the subject of the current investigation 
were sent between 1998 and 2000. And as you have mentioned, 
referred to an analysis and model reports concerning water 
infiltration and climate. I have seen these e-mails, and I 
agree with you that they raise serious concerns.
    Inasmuch as this matter is under investigation by the 
inspector general, we are unable to pursue our own assessment 
or discuss the matter until that investigation is complete. 
When these steps are concluded, we would be happy to provide a 
briefing or meet with members to discuss the situation further.
    The objectivity and credibility of our scientists and their 
work is of supreme importance to us, and has been throughout 
our 125 year history. Misrepresentation and falsification of 
data or of the documentation of scientific processes is 
contrary to the very essences of the scientific process and 
must be dealt with firmly. Once we determine the extent of 
these acts and their severity, we will take the appropriate 
personnel actions.
    The significance of what has happened for the Yucca 
Mountain waste repository project needs to be determined. This 
will require an open, objective review of the extent of the 
wrongful acts, their consequences for the specific projects 
they affected, and for the overall assessment of the 
suitability of Yucca Mountain for the storage of nuclear waste. 
Then we can deal with what needs to be done: redoing certain 
projects, additional scientific investigations, or other 
actions appropriate for this stage of the site approval 
process.
    Designing the objective review, as many of you have 
mentioned, is the next critical step and will require input 
from many parties. We are eager to begin this phase of the 
inquiry.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Groat follows:]




    



    
    Mr. Porter. Thank you. We will now have Mr. Garrish, Acting 
Director, Department of Energy.

                    STATEMENT OF TED GARRISH

    Mr. Garrish. Thank you, Mr. Chairman. I appreciate being 
here to tell you our side of this story. I am accompanied today 
by Joe Ziegler, our licensing manager from the Yucca Mountain 
project.
    The program has undergone considerable criticism today, but 
I would like to make a couple of points and then respond to 
your questions. First, any falsification is unacceptable and 
inexcusable, but that does not condemn the work of thousands of 
responsible scientists on this project. The reason that we are 
here today is because we brought this issue forward. As soon as 
we knew the facts, we came out forthrightly and freely. We 
notified congressional committees, the State of Nevada issued a 
press statement.
    However, our first call was to the Nuclear Regulatory 
Commission. This is consistent with our commitment to being 
responsible and informing the public. My point is, we found the 
problem, we identified it, and we will do what is required to 
rectify it.
    We initiated investigations on this specific issue but 
ultimately it will be the responsibility of the Nuclear 
Regulatory Commission to adjudicate this case and to decide 
whether or not we have met our burden of proof that the 
repository is safe. The NRC process lies before us. Once we 
file our license application for the next 3 to 4 years, every 
imaginable allegation is likely to come to light. These include 
such things as differences of professional opinion, mistakes 
and the like. I expect that we will adjudicate all of these 
points. Everything will be on trial--all of these e-mails, all 
of the calibrations, all of the conflicting scientific 
opinions. It will be up to the NRC to decide is the repository 
safe.
    We will undergo a rigorous multi-year proceeding with 
thorough NRC expert review and legal adjudication, with the 
opportunity for participation by the NRC staff, the State of 
Nevada and other interested parties. But that process has not 
started yet. When we discovered these e-mails, they were part 
of our pre-licensing activities, and these activities are still 
ongoing. The impact of this issue has yet to be determined.
    And yes, we are concerned about the integrity of the data. 
What was done is inexcusable. But let me tell you what we are 
doing about it. We are doing three things. First, we are 
requesting the DOE Inspector General to investigate the non-
technical implications of what was done. The Department of 
Interior, as you have heard, has also requested a similar 
investigation by their IG.
    Second, we are reviewing the impact that this may have on 
the science involved and how it could affect the technical 
work. We have identified two analyses and model reports and how 
they are potentially affected.
    Third, we are conducting a review of the overall quality 
assurance and management culture. DOE will be the organization 
doing these last two actions. These steps will be done 
methodically and as expeditiously as possible.
    As we move into the transition of becoming a licensee, it 
is important to note NRC not only licenses the repository, but 
it also licenses the people that run it. And our people must 
have the qualifications and values that are essential to a 
nuclear safe culture. We believe that we have demonstrated 
these values by bringing this issue forward. Let me outline and 
explain the importance of these values to us.
    They are, first, openness. As I said, we are the ones that 
brought this issue forward. The issue arose while we were 
evaluating millions of documents and e-mails. The model reports 
in question have been on the Internet for years. They have been 
subject to the key technical issue agreements with the NRC. All 
of these e-mails are destined to be fully public and searchable 
on the LSN.
    Second, the second value of importance is self-
identification. To let you know this is an important value for 
us to maintain. We found this problem ourselves and we 
encourage our employees to have a questioning attitude.
    Third is self-correction. We need not only self-identify 
problems, but we need to also correct them. Systematic quality 
assurance improvements have been undertaken over a number of 
years, and we are doing a formal review to see whether or not 
they are sufficient.
    Fourth, we need to promote a safety conscious work 
environment. This is an extremely important element of our 
culture. Everyone has the ability and obligation to raise 
issues without fear or retribution. Over the last 3 years, 
employees have raised over 400 concerns to our employee 
concerns program of differing professional opinions, internal 
audits and some directly to the NRC. We will followup on every 
one of these.
    Employees are encouraged to come forward, are not harassed 
or intimidated, and in our 2004 safety conscious work 
environment survey, 80 to 90 percent of our workers responded 
that they have confidence in a retaliation-free work place.
    Finally, we need commitment to data integrity. The e-mail 
suggests that one or more employees have deliberately 
circumvented our procedures. But they also feel that we have 
well defined standards for data integrity and a QA program that 
they were well aware of.
    We need to maintain this data integrity. These are the 
values that we are bringing to the nuclear culture and to this 
project. When we find one of these issues, which has been the 
subject of this hearing, they will be appropriately dealt with.
    So Mr. Chairman, that is what we are doing. So now our next 
step is to proceed and complete our license application and in 
doing so, I stand with the thousands of scientists associated 
with this project who are doing it right. It is truly 
unfortunate that the good work of so many scientists has been 
impugned by this conduct.
    I am accompanied here by Mr. Ziegler, and he and I are 
pleased to respond to your questions at the appropriate time. 
Thank you.
    [The prepared statement of Mr. Garrish follows:]




    
    
    Mr. Porter. Thank you, Mr. Garrish.
    Now I'll call on Mr. Earl Devaney, the Inspector General at 
the Department of Interior. Welcome.

                  STATEMENT OF EARL E. DEVANEY

    Mr. Devaney. Mr. Chairman and members of the subcommittee, 
thank you for the opportunity to address the subcommittee this 
morning concerning the investigation being conducted by my 
office, Mr. Friedman's office, and the FBI into allegations of 
falsification of documents and records relating to the proposed 
Yucca Mountain project.
    Because this investigation is ongoing, I can't discuss any 
of the details here today. What I can do is talk briefly about 
the authorities of my office, the investigative process, and 
how the results of an investigation such as this might be put 
to use.
    As I'm sure you know, my office is a statutorily 
independent organization which, among other things, conducts 
investigations relating to alleged wrongdoing on the part of 
Department of Interior employees. The IG Act gives me the 
authority to obtain access to all employees and records of the 
Department. In my view, this independence and authority is 
particularly important when we conduct criminal investigations. 
Criminal investigators in my office have full Federal law 
enforcement authority. This includes the authority to carry 
weapons, make arrests, and refer potential criminal violations 
to the Department of Justice for prosecution.
    The majority of our investigations begin with criminal 
prosecution in mind. As a result, we typically work in close 
cooperation with the Department of Justice. In this case, we're 
working with the U.S. Attorney's office in Las Vegas.
    Our investigations arise from any number of sources: 
credible allegations by DOI employees, public citizens or 
anonymous sources, requests from Congress or from the 
Department itself. Regardless of the source, we conduct our 
investigations the same way--prudently, thoroughly, and 
completely. We always attempt to proceed as quickly as 
possible, but we will not compromise accuracy for speed. 
Although we are often pressured to do so, we will never rush an 
investigation to meet the specific needs of any source. Most of 
our high profile investigations involve issues that stir up 
strong emotions and opinions, and the Yucca Mountain project is 
no exception.
    The protections that my office enjoys under the IG Act 
gives us the luxury to proceed with an investigation having no 
preconceived notions and no preordained outcomes. The integrity 
of my office is at stake each time we conduct an investigation, 
and I fully expect that my investigators will always 
demonstrate the utmost professionalism, independence, and 
objectivity.
    I believe the content of our previously issued 
investigative reports reveals these very qualities. When 
appropriate, I will condemn the Department for wrongdoing. On 
the other hand, I will publicly exonerate the Department when 
the allegations prove unfounded. My office generally conducts 
investigations from the lowest level to the highest, starting 
with individuals who appear to be the least culpable and making 
our way to those who are most to blame.
    Our investigators travel throughout the country to 
interview witnesses, obtain documents, and gather physical 
evidence. When we are faced with a highly technical issue, we 
routinely seek the assistance of independent subject matter 
experts. Or we may partner with other law enforcement 
organizations, like in this case.
    We report the results of our investigations in any number 
of formats. If we are referring a case for criminal 
prosecution, we will present it to the U.S. Attorney's office 
in a formal report of investigation. This report will typically 
contain all witness interviews, evidentiary documents and 
investigative activity reports. If we are referring a matter to 
the Department for an administrative action, we will attempt to 
tailor our reports to address the conduct of individual 
employees so that we can provide the Department with the facts 
it needs to take disciplinary action.
    In preparing a report for release to the public, we will 
often write the report in a narrative form which excludes 
confidential personal privacy and privileged information. 
Whether investigation results in a prosecution or a conviction 
of a criminal defendant or a disciplinary action against the 
employees who engage in misconduct, I am most pleased when the 
results of one of our investigations also gives the Department 
insight on how to prevent the problem from happening again.
    I will conclude my remarks by giving you my assurance that 
all the investigators are working diligently to bring this 
investigation to closure. I will keep you updated on our 
progress and I will also provide you with the results of our 
investigation as soon as we are able to do so.
    Mr. Chairman and members of the subcommittee, this 
concludes my oral remarks. I will be pleased to answer any 
questions.
    [The prepared statement of Mr. Devaney follows:]



    
    
    Mr. Porter. Thank you, Mr. Devaney.
    Now we will hear from Mr. Gregory Friedman, the Inspector 
General at the Department of Energy.

                STATEMENT OF GREGORY H. FRIEDMAN

    Mr. Friedman. Mr. Chairman and members of the subcommittee, 
I am pleased to be here today to testify regarding allegations 
of misconduct involving documents associated with the U.S. 
Department of Energy's Yucca Mountain project.
    Disposal of the Nation's high-level nuclear waste and spent 
nuclear fuel is one of the most sensitive and complex 
challenges facing the U.S. Government. Under the Nuclear Waste 
Policy Act, as amended in 1987, the Yucca Mountain site in the 
State of Nevada is the only site in the United States to be 
evaluated for this purpose. The act established a formal, step 
by step methodology for making this evaluation.
    For the State of Nevada and all other interested parties, 
the process to evaluate Yucca Mountain as the potential 
repository has enormous implications. Paramount among concerns 
expressed is that the consideration and evaluation be objective 
and that it be based on sound scientific analysis. Public 
confidence in the evaluation and licensing process must also be 
assured.
    On March 14, 2005, we became aware of allegations 
concerning possible falsification of records relating to 
aspects of the scientific assessment of Yucca Mountain. We 
assembled a team of highly qualified special agents and 
commenced a criminal investigation to gather the relevant 
facts.
    As Mr. Devaney mentioned, we have been working jointly with 
his office, the Department of Interior's Office of Inspector 
General, and the Federal Bureau of Investigation. Since this is 
a criminal case, we are in regular consultation with the U.S. 
attorney's office in Nevada. Our plan is to conduct 
comprehensive interviews of Federal and contractor personnel 
and analyze the extensive documentary records surrounding this 
matter.
    We have dedicated the resources necessary to ensure an 
independent, objective, and thorough investigation. We will 
follow the facts wherever they may lead. Because of the nature 
of the allegations and the importance of the Yucca Mountain 
project, we will proceed as expeditiously as possible.
    Mr. Chairman and members of the subcommittee, this 
concludes my statement. I will be pleased to answer any 
questions that you may have.
    [The prepared statement of Mr. Friedman follows:]



    


    
    Mr. Porter. Thank you, Mr. Friedman. Now we will hear from 
Mr. John Garrick, chairman of the Nuclear Waste Technical 
Review Board.

                  STATEMENT OF B. JOHN GARRICK

    Mr. Garrick. Good morning, Mr. Chairman and members of the 
subcommittee.
    I am John Garrick, chairman of the Nuclear Waste Technical 
Review Board. All 11 members of the Board are appointed by the 
President and serve on a part-time basis. In my case, I'm a 
private consultant specializing in the application of the risk 
sciences to complex technological systems in the space, 
defense, chemical, marine and nuclear fields.
    As you know, Mr. Chairman, the board was created by 
Congress in 1987 to perform an ongoing, independent, technical 
and scientific evaluation of the DOE's implementation of the 
nuclear Waste Policy Act. I am pleased to represent the board 
at this hearing. With your permission, Mr. Chairman, I will now 
briefly summarize my comments and ask that the full text of my 
written statement be entered into the hearing record.
    According to the letter inviting the board to participate, 
today's hearing has two purposes: to address whether Federal 
employees falsified documents related to work at the Yucca 
Mountain; and to examine whether sound science exists for the 
proposed Yucca Mountain project.
    Mr. Chairman, it would be inappropriate for the board to 
draw any conclusions at this time about the impact on the DOE's 
technical work at Yucca Mountain from the group of redacted e-
mails that were posted on the subcommittee's web site last 
Friday. As disturbing as it is to see such loosely framed 
discussions among scientists, the answers to important 
questions that might be raised by or about the e-mails or 
related documents should await the completion of comprehensive 
investigations already underway at the Departments of Energy 
and Interior.
    The board will follow the progress of these investigations 
and when they are concluded, the board will evaluate the 
significance of the results to the DOE's technical and 
scientific work. We will then report our findings to Congress 
and the Secretary of Energy.
    In the meantime, the board will continue its ongoing peer 
review of DOE activities. The Nuclear Regulatory Commission is 
the appropriate agency to address questions about the effects 
on the regulatory process of possible infractions of QA 
procedures.
    Mr. Chairman, let me close by saying that the board looks 
forward to continuing its congressionally established role of 
unbiased and independent technical and scientific information 
to Congress and the Secretary. As I mentioned earlier, we will 
be able to comment better on the significance of the activities 
that are the topic of this hearing when the full results of the 
DOE and Interior investigations are known.
    Thank you for the opportunity to present the board's views. 
I will be happy to respond to questions.
    [The prepared statement of Mr. Garrick follows:]


    


    
    Mr. Porter. Thank you, Mr. Garrick.
    We would like to hear now from Judy Treichel, executive 
director of the Nevada Nuclear Waste Task Force. Welcome.

                   STATEMENT OF JUDY TREICHEL

    Ms. Treichel. Thank you very much for the invitation to be 
here. My name is Judy Treichel, I am the executive director of 
the Nevada Nuclear Waste Task Force.
    The task force is a public advocacy organization focused on 
the Yucca Mountain and nuclear waste issues. We attend and 
bring a public voice to technical meetings, and we provide 
information to the public.
    The falsification of data by the Department of Energy or 
its contractors did not come as a surprise to us. The seeds for 
this situation were sown nearly 20 years ago. I have submitted 
my written statement which explains the long and sordid story 
that Nevada has had with this and previous Government atomic 
programs.
    Since it began, the Yucca Mountain project has only 
survived because it has never been held accountable. The DOE 
began their scientific studies promising to follow all of the 
rules and passed the tests necessary to show that Yucca 
Mountain was a safe site for the mostly high radioactive waste. 
None of the rules could be met, so they were all changed, and 
they are still being changed. Now we know that when science was 
analyzed, since you can't change the laws of physics, the data 
was simply falsified.
    The public, including Nevadans, understands the need to 
safely manage and ultimately permanently isolate nuclear waste. 
We have fought the Yucca Mountain project for over 20 years. 
But not because we just wanted somebody else to have the 
problem. This is not a case of not in my backyard, or NIMBY. We 
are not trying to simply have the Department of Energy stick a 
pin in another part of the U.S. map and try to make that work.
    This is a futile project. Yucca Mountain cannot isolate 
waste. The only reason to create and carry out a nuclear waste 
disposal program is to improve the protection of public health 
and safety. How can any thinking person believe that people's 
communities and the environment are safer by handling the waste 
multiple times, shipping it by highway, rail and barge through 
nearly every State in the United States, and then dump it in a 
repository that was only able to built by changing the rules 
and falsifying the data?
    This is a program that's been driven to meet deadlines and 
create the illusion that Yucca Mountain is on track. Now we 
know that in order to paint that picture, scientific 
credibility was sacrificed, as were ethic and accountability. 
The DOE's myopic goal is to obtain a license from the Nuclear 
Regulatory Commission and to get Yucca Mountain built and 
receiving waste. The first step in the licensing process is to 
open up the record. But huge numbers of those records, we are 
now finding, are being marked privileged. Therefore, one 
wonders how many will be found to have been falsified.
    Now, there must be an end to congressional fixes and 
tolerance for dishonesty that has propped up this program for 
more than 20 years. The political divisiveness surrounding this 
program is not due to parochialism or selfishness. It is 
because the public recognizes that Yucca Mountain is a failed 
and dangerous project and it must be ended once and for all.
    Thank you very much.
    [The prepared statement of Ms. Treichel follows:]



    


    
    Mr. Porter. Thank you for your testimony.
    Next we will have Mr. Joe Egan, attorney from the Nevada 
Office of the Attorney General.

                    STATEMENT OF JOSEPH EGAN

    Mr. Egan. Thank you, Mr. Chairman and members of the 
subcommittee. My name is Joe Egan, I'm a nuclear lawyer and 
nuclear engineer. My firm, Egan, Fitzpatrick, Malsch and Cyncar 
was hired by the Attorney General in 2001 to represent Nevada's 
lead outside counsel on all the nuclear litigation taking place 
now and to be taking place at the Nuclear Regulatory 
Commission.
    With the help of Bob Loux, the director of the Agency for 
Nuclear Projects, we have assembled a world class team of 
scientific experts to assist us with the review of the 
documents at Yucca, and we have put together a world class team 
of attorneys. I have five brief points I would like to make to 
supplement what my esteemed colleagues from Nevada have already 
testified to. I would also like to offer my extended testimony 
and prepared statement into the record, Mr. Chairman.
    The first is that the issue of falsification at Yucca 
Mountain is nothing new to us. The most recent manifestation 
prior to these e-mails occurred only this January, when DOE 
disclosed that its workers at Yucca Mountain that were drilling 
the tunnels over the years had been unlawfully over-exposed to 
toxic silica dust without respiratory protection. We have 
industrial hygienists who have provided testimony under oath 
that documents there were falsified pertaining to the toxicity 
of the air in the tunnels, that they were falsified on nearly a 
daily basis. So falsification is not a new thing and we don't 
think it's limited to one USGS enclave.
    The second thing is that this was not a voluntary 
disclosure by DOE. In April of last year, the inspector general 
of DOE disclosed in a public report to Senator Reid and Senator 
Ensign that there were 4 million archival e-mails that DOE was 
not planning to produce on the public docket available for 
licensing. We immediately went to the Licensing Board of 
Nuclear Regulatory Commissions and petitioned to have DOE's 
document certification struck on grounds that they had done an 
incomplete certification and one that was not conducted in good 
faith.
    The Licensing Board agreed with us and struck the 
certification on three independent grounds, and ordered DOE to 
have human beings and not machines go through these archival e-
mails and produce them on the electronic docket, which the DOE 
was planning to do in a couple of months. So DOE, having now 
been put in a position of having to disclose these e-mails, was 
faced with the decision of, do they let Nevada disclose or do 
they disclose. I think they did the honorable thing.
    The third is that DOE is now apparently planning to 
withhold tens of thousands of additional documents from this 
electronic data base that we believe are vital to assessing the 
safety of the repository. They are doing this on grounds of 
privilege that seem to be ever-broadening as we go; privileges 
such as the delivered and processed privilege or the work 
product privilege applicable to attorneys. Our view is that 
this is a public process, public project involving the safety 
of Nevadans and other Americans, and there should be nothing 
here to hide. We are very troubled by the extensive claims of 
privilege that DOE is planning to make.
    Just to give you one example, we have asked in a formal 
request sent by the Governor to DOE that they produce a copy to 
us of the draft license application. We have yet to receive it. 
That request was turned down to the Governor.
    Finally, the last point I'd like to make is that quality 
assurance and sound science are inextricably intertwined. There 
is no such thing as sound science without sound quality 
assurance. So the notion that DOE is advocating in testimony 
here today that we shouldn't be troubled because they can go to 
the NRC and demonstrate that the science is sound, that's only 
true if you believe that science can be separated from quality 
assurance. And as any professional in our field can tell you, 
it just cannot.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Mr. Egan follows:]


    
    
    Mr. Porter. Thank you, Mr. Egan.
    We will now hear from Mr. Bob Loux, executive director of 
the Nevada Agency for Nuclear Projects.

                    STATEMENT OF ROBERT LOUX

    Mr. Loux. Good morning, Mr. Chairman. Thank you for the 
hearing and thank you for your patience.
    I am Bob Loux, executive director of the Nevada Agency for 
Nuclear Projects. The agency was established by the legislature 
in 1985 to carry out oversight duties under the act. I have 
been the director since then.
    Mr. Chairman, it's difficult to imagine a situation more 
damaging than Secretary Bodman's recent disclosure of 
scientific information may have been fabricated to support the 
DOE's determination that Yucca Mountain is suitable for 
development as the Nation's high-level nuclear waste depository 
site. It is imperative that steps be taken immediately to 
answer critical questions before we have any further advances 
in this suspect program.
    But first we, the American people, especially the people in 
Nevada, must have the opportunity to examine all of the 
documents that led Secretary Bodman and the USGS to announce 
its crucial falsification regarding water infiltration and 
future climate at Yucca Mountain. These parameters are at the 
very core of any safety determination that can be made about 
the Yucca Mountain repository.
    Through the history----
    Ms. Berkley. Could you go a little slower, please, so we 
could hear every word you are saying?
    Mr. Loux. My apologies.
    Given the history of the repository program for more than 
20 years, and our direct experience with it over that entire 
time, without all the documents at hand we have no basis for 
any assumptions of the credibility and integrity of the outcome 
of any internal investigation of this program. Here we 
frequently investigate this with almost no results. The 
question that must be answered include: What other documents 
may be inspected by these tainted sources? Are there similar 
documentations of fraud in the balance of the DOE's purported 
science program at Yucca Mountain? How does this fraudulent 
activity affect the analysis that led the Secretary of Energy, 
the President and the Congress to find Yucca Mountain suitable 
and safe for repository development?
    The looming question that must be at the forefront of any 
inquiry: How pervasive has the falsification and manipulation 
of information been in the Department of Energy's relentless 
zeal to meet mission expectation? Since the current example 
seems to be discovering something through a random check, 
further investigation by truly independent commission of 
program data and documentation, once integrity has been 
appropriately protected, would be warranted.
    Mr. Chairman, I also want to indicate that this is not an 
isolated incident. We heard just yesterday in a similar 
situation that the press has reported that DOE has attempting 
to steal water, allegedly steal water from the State of Nevada 
in direct violation of a Federal district court order. We don't 
know the bottom of this yet, it was just revealed to us 
yesterday. I'm certain that the Nevada officials will be 
investigating, including the water engineer, as well as the 
Attorney General.
    But these are hardly isolated incidents going on in the 
entire program.
    I would like to also call the Department of Energy to 
release all of its employee concerns program documentation so 
that we could actually look at what the employees' concerns 
really are, and what other aspects of the program they are 
calling into question. It is time for a full, independent 
review of the whole policy, and this is not the first time 
Congress has seen the program off-track. But now more than 
ever, careful scrutiny of the track itself is in order.
    Mr. Chairman, the e-mails provide us an interesting 
observation. They certainly provide an insight into the 
Department of Energy's information program that they try to 
pass off as good science. It also reveals a climate, it 
appears, of trying to find the right answer and not scientific 
truth. DOE management set unreasonable politically motivated 
deadlines and goals, created pressure to get the right answer, 
and they are also responsible for any outcome of this.
    Mr. Chairman, this issue is far more serious than what has 
been revealed today. We believe that much of the information is 
yet to be discovered. We call on DOE to release the entire full 
data base for us to review, not only those things that are 
currently on the LSN, but all of the 4 million to 5 million e-
mails that are out there for us to take a look at as well.
    I hope that your subcommittee can be instrumental in 
helping us to receive that information. With that, I thank you 
and look forward to questions.
    [The prepared statement of Mr. Loux follows:]



    


    
    Mr. Porter. Thank you, Mr. Loux.
    Now I would like to call on Mr. John Mitchell, project 
manager with Bechtel.

                   STATEMENT OF JOHN MITCHELL

    Mr. Mitchell. Mr. Chairman, members of the subcommittee and 
members of the Nevada Delegation, my name is John Mitchell, and 
I am the president and general manager of Bechtel SAIC.
    In 2001, we had the management and operating contract for 
the Yucca Mountain project for the DOE. Our contract scope 
included maintenance and operation of the site itself, 
preparation of the license application and planning for the 
design and execution of the repository.
    Since our full testimony has already been accepted for your 
record, I will paraphrase my summary. The work that has been 
performed over the past 20 years has been performed by many 
individuals and many organizations. The willful actions of the 
individuals in question is an insult to the integrity of those 
who created this scientific understanding and applied it to the 
specific use of the definition and description of the geologic 
repository and rigorously adhered to the highest standards of 
quality.
    The license application that will be provided would not 
only provide the scientific base but will meet all the quality 
standards demanded by the NRC.
    In the interest of time, I will stop at that point and 
await your questions.
    [The prepared statement of Mr. Mitchell follows:]


    

    
    Mr. Porter. Thank you, Mr. Mitchell. We appreciate that.
    I'd like to note for the record that there will be numerous 
questions that we will not be able to ask today because of our 
time constraints. But we will ask that once these questions are 
presented to each of you, following the meeting, we would like 
to have them returned to the committee as soon as possible, no 
later than Monday of next week if at all possible.
    I would like to begin with a few questions myself, I think, 
for Mr. Garrish. Are there any of the employees in question who 
are still working at Yucca Mountain?
    Mr. Garrish. Are any of the employees with these e-mails, 
is that what you're asking?
    Mr. Porter. That's correct.
    Mr. Garrish. The individuals, I think there are principally 
10 individuals that are involved in those initial e-mails, and 
I'm not sure if any of those are fully--yes, there are some, 
but not the ones, I think, that are subject to this inquiry. 
They went off the project, I think, in the year 2000. So in 
other words, I think there are two individuals that most of 
these e-mails were involving. They left the project in the year 
2000. There are other USGS personnel still on the project, if 
that's your question.
    Mr. Porter. My question is, if you have any of those 
individuals that were employed or are currently employed or are 
on leave at this point because of any of the allegations.
    Mr. Garrish. That's really a subject for USGS to respond 
to.
    Mr. Porter. Thank you. And absolutely, that will be my next 
question. Mr. Groat.
    Mr. Groat. Mr. Garrish is correct, Mr. Chairman, in that 
the individuals involved in this are no longer working on the 
Yucca Mountain project. In answer to your question, no one has 
current been suspended or terminated as a result of the ongoing 
investigation.
    Mr. Porter. Is that an outrage? We have documents that 
state there is falsification. I pull up your Web site and I see 
that they are still employed, a number of the individuals that 
have admitted, as have internal documents admitted, from the 
Department of Energy, that in fact there are falsified 
documents. I can't believe that these folks are still on the 
payroll.
    Mr. Groat. Mr. Chairman, I can assure you that the 
appropriate action will be taken, all the way from 
administrative actions to dismissal. Our position has been that 
because the investigation is ongoing, the extent and number of 
individuals that have been involved, their involvement in 
particular parts of this needs to be ascertained by the 
Inspector General and by ourselves, so that we do take the 
appropriate action, and in fact, we take action on all those 
that were involved, both laterally and vertically in the 
management chain, which may or may not be disclosed through the 
e-mails.
    So we are not putting off taking action because we don't 
plan to take it, we definitely do. We want to be sure we have 
the best case and best information so we take appropriate 
action.
    Mr. Porter. So what you're saying today is, these same 
individuals that have admitted to falsifying documents, they 
are currently still on, or are working on other projects that 
could impact major projects around the country?
    Mr. Groat. They are working on other projects, yes, sir.
    Mr. Porter. Have you met with these individuals?
    Mr. Groat. I have not.
    Mr. Porter. Has anyone met with these individuals?
    Mr. Groat. Only their immediate supervisors, Mr. Chairman.
    Mr. Porter. If I may interrupt, how seriously do you take 
these allegations?
    Mr. Groat. We take them very seriously. We are----
    Mr. Porter. Obviously you don't.
    Mr. Groat. I don't understand that point, Mr. Chairman. We, 
as I said in my testimony, we initially, when we heard of these 
allegations, both asked our Inspector General to participate 
and then began our own internal investigation, so that we could 
determine for ourselves the extent of what was done and the 
impact of what was done. We were advised by the Inspector 
General that our own internal management review, both of these 
individuals and the import of what they had done, needed to 
wait until the Inspector General had finished his criminal 
investigation.
    So we do not have our own internally derived information 
available to us upon which to base the actions that you 
mentioned. I assure you that when we do have that information, 
we will take the appropriate action.
    Mr. Porter. Again, I'm not only appalled about the e-mails, 
but the fact that you have this cavalier attitude that, well, 
some other agency is going to take care of this problem. This 
is a very, very serious and in fact, internal documents have 
stated from the Department of Energy that in fact these are 
falsified documents. Do you feel confident that you are turning 
the full responsibility to some other agency, that you don't 
feel you have responsibility for these employees?
    Mr. Groat. No, I feel we do, Mr. Chairman, have 
responsibility. Our Inspector General is currently manifesting 
responsibility that the Department of Interior and U.S. 
Geological Survey has, to understand exactly what was done and 
what the impact of what has done, and our own Bureau's, USGS 
responsibly, will depend on our own management review of their 
actions and the impact of their actions. Once we determine the 
outcome of both of those investigations, we will take 
appropriate action. We do take this very seriously, and can 
assure Mr. Gibbons and others that this is not a trivial 
matter.
    Mr. Porter. If I may interrupt, please, I of course don't 
have in front of me your policy and personnel manual as far as 
falsification, unethical behavior. I would assume that 
somewhere in your documents and your personnel manuals you have 
a process in place to handle this type of activity. Is laying 
people off or reducing their salary or putting them on leave a 
part of your documents when it comes to personnel and unethical 
falsification of documents?
    Mr. Groat. Yes, sir, it is.
    Mr. Porter. It is currently a part of that? And have you 
followed the procedures within your own personnel manuals of 
these individuals?
    Mr. Groat. We have not followed the procedures based on our 
own investigation, because we have not investigated it 
ourselves. We are waiting for the Inspector General.
    Mr. Porter. Mr. Groat, I think you summarized the whole 
problem this morning, in that you have not investigated this 
yourself. Of course, we are going to be asking for additional 
information, and one of those items is going to be the names of 
the supervisors. We will get that to you.
    I would also like to ask you another question. As I 
mentioned numerous times, in the internal documents from the 
Department of Energy, they state that they feel that this could 
create substantial, based on these e-mails, that it could 
create substantial vulnerability to the project. Do you think 
that these e-mails could create a substantial vulnerability to 
this project?
    Mr. Groat. We are deeply concerned by the e-mails. We are 
deeply concerned about the integrity of the scientific 
investigations toward the Yucca Mountain project. We are very 
much interested and anxious to have a thorough, objective 
review of what these actions mean in terms of the projects our 
scientists have been working on, the results of those projects, 
and the impact those results have on the Yucca Mountain 
project.
    If they were seriously affected, both infiltration and 
climate effects on the Yucca Mountain repository are extremely 
significant. If they are materially affected by our actions, 
then they could have a significant impact on the total project. 
We don't know the answer to that yet.
    Mr. Porter. And you haven't asked the questions yet, 
because you haven't talked to these people?
    Mr. Groat. We have not been given the opportunity to do 
that, sir. We have been asked not to participate or conduct any 
internal investigation of those consequences until the----
    Mr. Porter. So you have been asked not to use your own 
personnel manuals when it comes to this particular case? Who 
were you asked by to not follow your own procedures?
    Mr. Groat. We were not asked not to take administrative 
actions. That was our own position. We were asked not to 
conduct our own internal review of either the actions the 
employees took or the implications for the project until such 
time as the Inspector General has concluded his investigation.
    Mr. Porter. Mr. Garrish, I would like to ask you the same 
question. Based on your internal documents, it says that it 
will create, these e-mails could create substantial 
vulnerability to the project. Do you believe that's the case?
    Mr. Garrish. Well, that is going to be investigated as to 
phase two, that I mentioned in my oral testimony. One of the 
elements that we are going to look at is the extent to which 
the science has been impacted on this. If I could, I would like 
to have Mr. Ziegler, our licensing manager, respond to that and 
explain to the committee exactly what is going to be undertaken 
in that review.
    Mr. Ziegler. Yes, the vulnerability is a vulnerability that 
exists, and how the technical information was created and is 
used in the modeling and safety analysis for the repository. 
What we are focusing on right now concurrent with the Inspector 
General's reviews is the two-part review that looked at the 
direct implications in these e-mails of the statement of the 
apparent actions by these individuals and how that would 
directly affect the safety analysis of the repository and the 
specific implications of these actions on the records and how 
they might actually affect scientific and technical 
information. Once that is determined, an appropriate action 
would be taken to make sure that only fully quality assurance 
information is used in the safety analysis.
    Beyond that, however, we are not going to limit our reviews 
to just what these individuals apparently have done. We are 
going to look further than that to re-look at what we have 
already done on models data and software going backward in 
time, to make sure that all the information we use in our 
safety analysis is fully valid.
    Mr. Porter. We're going to move on to my colleague on the 
left to followup on this. So would you support what we are 
hearing from the USGS, that they shouldn't follow their own 
personnel procedures at this time?
    Mr. Garrish. Maybe I can respond to that. I just want to 
maybe put this in the context of a nuclear culture. If this 
were a nuclear plant, and there were employees that had 
falsified data that related to a quality protocol, they would 
not be employed very long in that culture. They would be moved 
from those jobs, and that would be the kind of culture that we 
would attempt to foster in the future on this program. The 
nuclear culture is very strict on quality assurance, and those 
are the sorts of values we want to bring to this project. It 
will be required, under the regulations by the Nuclear 
Regulatory Commission, because as I said, they not only worry 
about the repository, they worry about the people that run the 
repository and they want to make sure that they have the right 
values and culture to go forward and operate this.
    Mr. Porter. Thank you, Mr. Garrish.
    Congresswoman Berkley.
    Ms. Berkley. Thank you, Mr. Chairman.
    Mr. Egan, can you explain to me very briefly what the 
courts ruled about the radiation standards that the DOE was 
using for this project?
    Mr. Egan. Yes, I can. Last summer the Court of Appeals 
ruled that DOE had been using a standard promulgated by the EPA 
that had unabashedly rejected the findings and recommendations 
of the National Academy of Sciences concerning the duration of 
the regulatory compliance period for Yucca Mountain. And what 
the Academy had recommended is that Yucca Mountain had to be 
regulated through the duration of the peak dose or the peak 
hazard, whenever that was.
    The EPA arbitrarily limited that time period to 10,000 
years. That was the basis upon which DOE did its performance 
analysis for Yucca Mountain.
    Ms. Berkley. And the court's rule, or the National Academy 
of Sciences finding was that the radiation reached its peak 
levels at 300,000 years?
    Mr. Egan. No, Congresswoman, they didn't make any finding 
that way. What they said is, based on DOE's models, they saw a 
peak dose occurring at 300,000 years. But that was based on a 
waste container that would last for an exceptionally long 
period of time. If the waste containers fail at Yucca Mountain, 
the peak hazard could occur at 2,000 years.
    Ms. Berkley. Does any such container currently exist that 
could store the nuclear waste safely for 300,000 years?
    Mr. Egan. No, ma'am.
    Ms. Berkley. We have information that the DOE has 
improperly held at least 6 million documents, including roughly 
4 million e-mails, that it has misleadingly called archival e-
mails. Can you tell me again and reiterate your concerns about 
the DOE being forthcoming with information that it should be 
disclosing to the public, since Mr. Garrish spoke glowingly of 
the openness of the DOE in this process?
    Mr. Egan. Well, Congresswoman, based on the Inspector 
General's finding at DOE, we had asked to see all of these so-
called archival e-mails posted on the licensing support 
network. DOE took the position in litigation before the 
licensing board that they were not relevant. The standard is 
relevant documentary material. DOE claimed they were not 
relevant. They claimed they were not relevant because they were 
too old.
    In cross-examination by the hearing officers, it was 
discovered that these e-mails go all the way up to the year 
2003 and covered people like Leif Barrett, who used to run the 
programs, his e-mails were among that package. So the licensing 
board ordered that they all be produced, and it was that order 
that----
    Ms. Berkley. Have they been produced?
    Mr. Egan. No, because they wouldn't be produced until the 
time at which DOE attempts to recertify its documents.
    Ms. Berkley. I see. We also understand that the DOE tried 
to steal water for the Yucca Mountain project. There are 
allegations, obviously, that they didn't provide the 
information for their employees that are silicosis related. 
Could you comment on that?
    Mr. Egan. Well, our view is that DOE will have a very 
difficult time proving one requirement of the Atomic Energy Act 
that all NRC licensees must demonstrate character and fitness 
required to be a licensee. We think that there is a pattern of 
mismanagement and a pattern of malpractice at Yucca Mountain, 
principally extending from 1996 onward, that really suggests 
DOE can't meet that test.
    The silica document falsification is one of them. The water 
theft, if indeed it occurred, would be even a more serious 
infraction, because it would violate a State engineer's ruling 
and a court order. And we will be looking into that. The 
Attorney General has the full power of Nevada law in that case 
as well.
    Ms. Berkley. What has been Nevada's role in discovering the 
falsified materials submitted to the licensing support network?
    Mr. Egan. It was our petition to strike the certification 
on grounds that these e-mails were not there that precipitated 
the board's order that they be produced.
    Ms. Berkley. So the DOE didn't voluntarily come forth with 
this information?
    Mr. Egan. Well, that leads to a mystery, Congresswoman. 
Because DOE says that it was only in their review of these e-
mails that they discovered this problem and that only occurred 
in December 2004. But as you can see by exhibits 8 and 11, 
attached to my prepared statement, we have documents that we 
found ourselves, e-mails from DOE's own quality assurance 
inspectors in the year 2000 that point to various document 
falsification and extraordinary inaccuracies and errors in 
quality assurance.
    Ms. Berkley. Thank you, Mr. Egan.
    Mr. Loux, listening to the DOE's testimony today, one would 
believe that there are a few bad apples that wrote these, a few 
bad employees that wrote these e-mails and they are really not 
demonstrative of the thousands of employees that work for the 
Department of Energy on this project. It's my understanding 
that there has been a pattern here, and this is just the tip of 
the iceberg. What has been your experience with this?
    Mr. Loux. Well, I guess my assumption is that No. 1, that 
these fellows didn't do this on their own, that these people 
didn't voluntarily try to create these, that there was pressure 
from management at the top to actually produce the right 
answer. I think some of the e-mails are very explicit about the 
pressure from management to find the ``right answer.''
    Moreover, what about the USGS employees that saw, knew and 
watched what was going on and actually said nothing over the 
years to management about a problem, if it is just one or two 
isolated individuals? Frankly, in the last several years, our 
office has received hundreds of phone calls of various 
employees at Yucca Mountain wanting to voice various concerns 
about what's going on in the program, their concerns about the 
very issues we're talking about today in terms of fabrication 
of data.
    Moreover, we have learned that some of the people that are 
making allegations about the theft of water, that they were 
directed by management, in this case Bechtel, to actually 
construct devices that would bypass the meter that had been 
placed to monitor how much water was available to them under 
the court order.
    So far from being an isolated incident, we see this as 
endemic in the entire project. Again, if in fact DOE is to be 
believed about forthrightness, then we would like to see what 
the Governor has been asking for, the draft license 
application, the current TSPA and related documents. We would 
also like to see the employees' concerns program, albeit with 
names deleted, so we can actually see the extent of what's 
being reported inside DOE by employees having concerns with the 
program.
    Ms. Berkley. Thank you, Mr. Loux.
    Mr. Groat, I think what the chairman was getting at is that 
you have employees, we know there were at least 10 employees 
that wrote those e-mails. According to what you were telling 
us, most of them are no longer with the project. But the fact 
is that they are still under our employ in some project or 
another.
    Now, it would occur to me if they were so bad, such 
blatantly, wantonly bad employees on the Yucca Mountain project 
and that they were falsifying scientific documentation on this 
project, what would ever lead you to believe that they would 
behave any differently on another project? That is why you need 
to speak with them and you need to relieve them of their 
responsibilities. If they are willing to do this with a project 
that is so sensitive as Yucca Mountain, what would be in your 
mind, what would you think for a minute, they wouldn't do this 
someplace else?
    Mr. Groat. Congresswoman, referring to Mr. Garrish's 
comment about 10 people being involved, on the e-mail list 
there were only two that were principally involved in the 
communications. Others received a copy.
    Ms. Berkley. Have you spoken to those two?
    Mr. Groat. No, ma'am, we have not been able to speak to 
those yet.
    Ms. Berkley. Don't you think it is in the best interest of 
the people of this country that whatever project they are 
working on now, perhaps they are fudging the same scientific 
types of documentation that they have done according to their 
e-mails for Yucca Mountain? Why would we want those people in 
our employ? I would not want them in my congressional office.
    Mr. Groat. If we discover that their actions were of such 
severity or involvement was so deep that they understood a 
situation this critical and did not react properly, then they 
will be----
    Ms. Berkley. And how will you find that out if you're not 
speaking to them?
    Mr. Groat. Well, we're not able to speak to them, as I 
mentioned earlier, we're not able to conduct our own internal 
investigation until such time as the Inspector General frees us 
to do that. We will do that, I can assure you, Congresswoman.
    Ms. Berkley. And when will that take place? Do we have a 
timetable? Six months, a year, 10 years from now? Will I still 
be in Congress when this takes place? Will you still be 
employed?
    Mr. Groat. We certainly hope it takes place very soon. We 
hope sooner than later, Congresswoman, and we will depend on 
the Inspector General's decision as to what point it is 
appropriate for us to take those actions.
    Ms. Berkley. There is another concern I have. Even though 
those employees are no longer working for the Yucca Mountain 
project, their data, their information, their falsified 
scientific findings are still part of the general scientific 
findings of the Yucca Mountain project. So their successors are 
operating with their information that they left behind. Doesn't 
that somewhat disturb you?
    Mr. Groat. It's not clear from the e-mails, and that's all 
we have to go on, that there was any falsification of 
scientific data.
    Ms. Berkley. There's e-mails that say that they made up the 
dates, that they made up the information, that they weren't, 
that quality assurance was a damned pain in the neck.
    Mr. Groat. The parts that they have alleged that they made 
up related to parts of the quality assurance program. I'm not 
minimizing the significance of that, it is significant. So I 
can't answer your question about scientific data themselves and 
their continued involvement in the program until we determine, 
which we have not yet, if those data were significantly 
affected and to the extent that impacts the program, we don't 
know what data to pull out and what work needs to be redone. We 
are as a scientific organization very anxious to understand 
that, so we can take the appropriate action.
    Ms. Berkley. Why would we not put a halt to the Yucca 
Mountain project instead of continuing on what may be very, 
very faulty science? I mean, we are just spending more time and 
more taxpayers' money on a project that may be some compromised 
scientifically that it is unredeemable.
    Mr. Groat. I think that judgment as to whether it is 
compromised scientifically to that point is beyond our scope. 
That's a judgment that DOE has to make.
    Ms. Berkley. All right. Mr. Garrish, I'll be in touch.
    Mr. Porter. Congressman Gibbons.
    Mr. Gibbons. Thank you very much, Mr. Chairman. And to our 
witnesses here on both panels, thank you very much for taking 
the time out of your busy days to be here to help us better 
understand this very troubling issue. I hope to be very 
respectful to each of you for your time as well as your 
presence and your position that you hold within your respective 
entities.
    I did want to say to Mr. Groat and Mr. Garrish that this is 
not a condemnation, nor is it ever intended to be a 
condemnation of all the good, hard-working people, both at the 
USGS and the Department of Energy. What it is is a scathing 
rebuke of a few scientists and a culture of management within 
the USGS and the Department of Energy which has gone forward 
from day 1 with the idea that you could pound a square peg into 
a round hole at any cost.
    We are seeing that today. The e-mails that we have before 
us, gentlemen, are not isolated incidents, but show what I feel 
is pressure from above to get a product out, let me quote. In 
one of the e-mails dated on, I believe it is December 17, 1998, 
it says, ``We only win if we get this final product out,'' 
meaning Yucca Mountain project.
    And you look at the response to that, and this is probably 
from 1 of these 10 scientists that are here, we're talking 
about today. On December 18, 1998, it's responded, it says, 
``YMP,'' Yucca Mountain Project. Presumably, in my view, when I 
read YMP, that's the management of Yucca Mountain. ``YMP is 
looking for the fall guys.'' Obviously they felt that pressure. 
They knew there was something going on. They knew you were 
still trying to pound that square peg in the round hole.
    The memo goes on to further state, ``And we are high on the 
list.'' That's not the errant scientist giving bad data. That 
stems from a cultural problem of management. So far, what I've 
heard from you today is that you're only looking at the errant 
scientist, not the management philosophy and the culture within 
the agency. We need to broaden our minds and go a little bit 
further than just looking at 10 little people and finding the 
falls guys that you want to find today.
    So this is not a condemnation of every worker. But it is a 
scathing rebuke of those scientists and the management culture 
within your two organizations.
    Mr. Friedman, let me jump over to you real quick and ask a 
question. Because as we talked about earlier, what's your 
estimation of how long the IG investigation is going to take? 
And also tell me why in your answer. Why it is that you're 
doing a non-technical investigation and where do we go to get a 
technical review, a technical investigation of this? And is 
your investigation, the non-technical side, doing fraud from 
mismanagement, fraud from misappropriation?
    Because as I see it, when we look through some of these 
memos here, people are talking about dollars. It says in that 
same memo on December 17, 1998, the bottom line is forget about 
the money. Obviously, somebody is concerned about money going 
some place there. So answer my question if you could, Mr. 
Friedman. I didn't structure it very well, but I think you get 
the intent.
    Mr. Friedman. I think there are three parts to your 
question, and if I don't answer them all, please refresh my 
memory. No. 1, what is the timeframe. As I sit here today, we 
have been involved in this, Mr. Gibbons, for about 2 weeks. It 
was brought to our attention on March 14th.
    We are faced with interviews of numerous individuals, both 
DOE individuals, contractor individuals, USGS individuals and 
people who have left the site over the years. After all, the 
most offensive memos that have been published were written in 
1998 and 1999.
    So we face, in addition, we face the task of reviewing 
literally thousands of documents, thousands of e-mails and 
thousands of other documents. So it would be almost 
irresponsible of me to try to sit here today and try to give 
you a timeframe. What I can assure you of is, we are committed, 
we have placed the people on the task to get this done as 
expeditiously as we possibly can in a thorough and objective 
way. We are working closely with Mr. Devaney and with the FBI 
and with the U.S. Attorney's Office to make sure that happens.
    Help me out.
    Mr. Gibbons. The other two were whether it was going to 
undertake fraud, mismanagement----
    Mr. Friedman. Yes. The answer is, this is a criminal 
investigation. We will follow the facts where they take us. And 
the financial aspect certainly will be part of our 
investigation.
    Help me out one more time.
    Mr. Gibbons. Well, the following part would be the 
technical side of the study versus the non-technical.
    Mr. Friedman. Right. We are initiating this as a criminal 
investigation, looking at primarily questions of false 
statements made by individuals up and down the line, both 
vertically and horizontally in the management structure as 
well. That's the floor of our review. It may expand as this 
thing evolves. So I would say, we'll have to wait and see where 
this takes us.
    Mr. Gibbons. Mr. Chairman, may I engage in just one more 
line of questioning? I know my time is up, but I do want to 
follow on with this line of questioning just for one brief 
moment.
    I want to go back to Mr. Groat and to Mr. Garrish over here 
with DOE. If you are not taking any action against these 
individuals, as what I heard and as you just now acknowledged, 
that is the case, are you still moving forward with the 
project?
    Mr. Groat. Mr. Chairman, as mentioned earlier, or Mr. 
Gibbons, these employees are no longer involved, so they 
themselves are not moving forward with the project. We do have 
other USGS scientists who are still involved with the project.
    Mr. Gibbons. And I presume, Mr. Garrish, that's the same 
for DOE?
    Mr. Garrish. Well, we are proceeding to put the license 
application together currently. We are doing this broader 
review, we're trying to see these USGS scientists, these 
particular individuals, we are going to pull their work, we are 
going to do an evaluation of everything that they touched. We 
are going to evaluate what they did.
    Now, that's not going to be the end of it. But once we get 
our evaluation in, we are also going to look at our QA culture 
across the entire operation, across the entire project.
    Mr. Gibbons. If I may interrupt, because I think it's 
important, what we're doing here. You felt it was so compelling 
that you not talk to, not intervene in the status of these 
individuals until the Inspector General has completed his task. 
But yet, you've already formulated an opinion in your own mind 
that it's irrelevant what they did because you're going forward 
with the project. How do you balance the two out?
    Mr. Garrish. I didn't say it was irrelevant. We are going 
to evaluate it. But we're----
    Mr. Gibbons. If it's not irrelevant, then you should shut 
down the project until you have the evaluation done and the 
science completed until you know that you can, if you're 
building a bridge, that the footings on either side or sound. 
It doesn't matter how well you build the structure if the 
footing isn't sound.
    Mr. Garrish. I understand your position, Congressman.
    Mr. Gibbons. I think you get where we're going.
    Mr. Garrish. I understand.
    Mr. Gibbons. And I understand your answer is you're still 
going to go forward. I would have expected that from you.
    We will have, hopefully, another round of questions, Mr. 
Chairman.
    Mr. Porter. Thank you, Congressman.
    Mr. Mitchell, again, thank you for being here today. Is 
Bechtel aware of any additional falsified documents, and when 
and if, when were you made aware of these particular documents 
that are in question today?
    Mr. Mitchell. I'm not aware of any others, of course. I 
personally became aware on either March 9th or 10th, a Thursday 
or Friday of the week just immediately before the announcement.
    Mr. Porter. Have you asked any internal, or any of your 
employees as to when your company discovered the falsified 
documents and when they were brought to light to your staff?
    Mr. Mitchell. Yes. At that time I was also aware that the 
documents originally had surfaced as early as December, and 
that as a result, how that was carried out. They had not been 
forwarded to management until a later time. I could discuss 
that if you would like.
    Mr. Porter. So you're telling me that someone in Bechtel 
was aware of this in December?
    Mr. Mitchell. Yes.
    Mr. Porter. Would you please explain?
    Mr. Mitchell. Certainly. The way the documents came to 
light, as part of this process of reviewing the various e-
mails, several thousand e-mails we're talking about, we have 
people going through a systematic review of all those e-mails, 
people in that process identified these e-mails as being in 
question, because of not only what they said, but how they were 
marked. Our instructions to them were to bring them forward to 
legal counsel, that whole process involves making legal matters 
relevant, that sort of thing.
    When those matters were brought forward, they were 
discussed with legal counsel. Unfortunately, the way that 
conversation went, it was less clear than it might have been as 
to what actions should be immediately taken. No action was 
immediately taking until some time later.
    Mr. Porter. So if I understand correctly, your company, 
Bechtel was aware in December but prior to March 9th, is that 
the date you mentioned, then you heard from who on March 9th?
    Mr. Mitchell. I actually heard it from my employees 
concerns program manager. That was the first time it actually 
came to me.
    Mr. Porter. So once you found out on March 9th, what steps 
did you take in your role with Bechtel to take care of these 
problems?
    Mr. Mitchell. Several. Noting the discrepancy of the 
timing, of course, I asked my internal audit manager to conduct 
a series of interviews with the people that had been involved 
to establish as factually as we could and as quickly as we 
could who knew what when. That was done. We turned our 
attention immediately also to the technical issues of the 
implications of this, in our case, since we have the 
responsibility for coordinating the license application. We 
started making the decisions one would make about what were 
then possible implications, how would we proceed, we started to 
put together the various things that Mr. Garrish was talking 
about, various lines of inquires to establish the technical 
basis on how it was done, what was the quality basis and how we 
could proceed on that basis.
    Mr. Porter. So when did Bechtel notify the Department of 
Energy of their findings?
    Mr. Mitchell. The notification that went from our employee 
concerns, the DOE was informed on our department ECC, employee 
concerns organization informed the DOE employee concerns 
organization, I believe on the 11th or 12th. I think on the 
11th.
    Mr. Porter. Of March.
    Mr. Mitchell. Same timeframe, yes, sir.
    Mr. Porter. So you found out, someone in your company found 
out in December and there wasn't correspondence until after or 
shortly before the release of the documents?
    Mr. Mitchell. It was before the release. Individuals in the 
organization were aware of the e-mails. They did not take 
action to bring them to our employee concerns program or 
others. As soon as that was done in March, we notified the 
Department of Energy.
    Mr. Porter. What is your protocol when dealing with USGS 
individuals? Did your management discuss it with the 
individuals or discuss it with management of USGS? What happens 
internally when this is discovered?
    Mr. Mitchell. We are a contractor with DOE. Our 
relationship with USGS is to provide casting through the 
Department of Energy back to the USGS, provide data for the 
license application. We have no direct management relationship 
with them.
    Mr. Porter. Your understanding is that Bechtel Corp. is not 
aware of any additional falsified documents regarding the Yucca 
Mountain project?
    Mr. Mitchell. I assure you if we actually knew they were 
falsified, we would have notified DOE before this time.
    Mr. Porter. Or any allegations of such?
    Mr. Mitchell. Allegations in the employee concerns program 
that arise, there are a variety of things to handle those 
processes. If some of those had been led to a point where there 
is some reason to believe there is a falsification, we would 
present that.
    Mr. Porter. Thank you so much.
    Mr. Garrish, and Mr. Groat, I have a question regarding 
independent investigation. Something that has come up numerous 
times, and I think you're going to hear about it in my closing. 
But would you support and accept an independent investigation?
    Mr. Garrish. Well, one of the things that we are doing now 
is not only internally to try to determine exactly what 
happened with these particular e-mails, and how it impacted the 
science, which is an undertaking that we are doing. But the 
second part, which is the QA analysis and evaluation, we are 
going to bring in outside people that are not currently 
associated with the project and have their evaluation made to 
us and their recommendations to us on that, on the entire 
quality assurance program. So that's what we're intending to 
do, is ask a lot of outsiders for their assistance and 
evaluation as to whether or not this program is doing the job.
    Mr. Porter. So you're saying yes to an independent 
investigation? Would you support an independent investigation?
    Mr. Garrish. I have a hard time understanding what is 
different from bringing in outside individuals like we're doing 
now. These are independent of us. They are coming in to take a 
look at the quality assurance program.
    Mr. Porter. Well, possibly I could help. The problem is, it 
was under your watch when this happened before. That's the 
problem with bringing in another individual under your watch. 
The question is, there are employees that have falsified 
documents. So would you support an independent investigation?
    Mr. Garrish. I'm not certain I understand how this is under 
my watch.
    Mr. Porter. Would you answer my question? Would you support 
an independent investigation?
    Mr. Garrish. Well, I'd like to know exactly what is being 
proposed, and I'm certain the Department would have a position 
as to whether or not it would support it.
    Mr. Porter. So that's a no at this point?
    Mr. Garrish. No, it's that we would like to know what it is 
that you propose, and we would be happy to respond in the 
appropriate way and at the appropriate time.
    Mr. Porter. Mr. Groat, would you support an independent 
investigation?
    Mr. Groat. We would welcome an independent investigation.
    Mr. Porter. Thank you very much. I appreciate that.
    Also, Mr. Garrish, you had mentioned on numerous times that 
it's going to be up to the NRC to make these determinations. It 
appears to me, and maybe I'll ask you to clarify your 
testimony, that it doesn't matter if there is a significant 
lapse in quality assurance, it's going to be up to the NRC to 
make this decision. Is that what I heard you say?
    Mr. Garrish. Well, the NRC, as one of the things that they 
will evaluate, is our QA program. So as part of their process, 
all of these allegations will be litigated and adjudicated 
before the Atomic Safety Licensing Board. At that time, they 
will make their determination relative to not only the data but 
the quality assurance program.
    Mr. Ziegler. Before it gets to NRC, unless we can assure 
ourselves that the technical basis for the safety analysis is 
fully valid, we will not submit the licensing application. It's 
our job first to make sure that the technical basis is valid, 
and NRC has the job to make sure, in their independent reviews, 
before they actually grant a license, that everything is as it 
should be.
    Mr. Porter. Thank you.
    Ms. Berkley. Thank you, Mr. Chairman.
    Mr. Mitchell, there was an AP report yesterday that, and 
I'll read a piece of it to you, ``Pipefitters at Yucca Mountain 
say they were instructed to damage the tunnel's main water line 
and install a pipe to bypass the State water meter at the 
Federal nuclear waste repository. Ron Dolan of Terrum said he 
was harassed before Yucca Mountain project contract Bechtel-
SAIC fired him in May 2003 for reporting what he called were 
violations of worker safety and EPA laws, including the Clean 
Air Act and Clean Water Act. Dolan said pipefitters made a pipe 
in 2003 to reroute groundwater pumped from a nearby well around 
the State water meter.''
    Is that the type of business as usual that Bechtel is, is 
that the type of product we are expecting from Bechtel?
    Mr. Mitchell. Congressman, Mr. Dolan has made a series of 
accusations. There was a lawsuit. They are being handled in the 
courts at this time. Obviously that matter has to resolve 
itself legally.
    In the meantime, I will state unequivocally, that is not 
the way we do business nor have we done business.
    Ms. Berkley. And what if it's adjudicated true?
    Mr. Mitchell. Then I'll be wrong.
    Ms. Berkley. I can't hear you.
    Mr. Mitchell. Then I will be wrong.
    Ms. Berkley. And what will you do about that?
    Mr. Mitchell. I suspect there will be lots of things in 
that case. If it turns out, first of all, I'm not going to 
prejudge what was done.
    Mr. Berkley. Mr. Garrish, after I had been in office for 
about a year, I was invited to a meeting of former Nevada test 
site workers who had worked at the test site for the Atomic 
Energy Commission, which is of course the precursor of the 
Department of Energy. There were about 200 men, mostly men 
there, a few women, but mostly men. And at a certain point in 
the discussion with these 200 former Nevada test site workers, 
a question was posed to them and it went something like this. 
Everybody here that is suffering from some form of cancer 
please stand up. Every 1 of the 200 plus former employees of 
the Nevada test site stood up. They were all dying of some form 
of cancer.
    Now, the Atomic Energy Commission told these workers that 
all they had to do was go home and take a shower and wash their 
clothes and there would be no danger of radiation poisoning. 
That turned out not to be the case. So you will forgive me if 
I'm not particularly high on the trust level that I have for 
the Department of Energy. It is not exactly the best track 
record that I can imagine. And the very idea that you are 
investigating yourself is a joke to me. Because it's been 
proven in the past that it doesn't work.
    Now, you have said, and these are the five things that you 
thought were very important, that the DOE believes in openness. 
Well, we've got whistleblowers coming out of the wazoo telling 
us that there is no such thing as openness with the DOE. We 
know that the revelations of the e-mails were actually known in 
December and they weren't disclosed until March. We know that 
you're hiding information now.
    And according to the testimony of the Governor of the great 
State of Nevada, its Attorney General, and our outside counsel, 
Joe Egan, you're still not forthcoming with the information 
that they've requested, which is a slap in the face not only to 
the Governor of the State and the Attorney General, but to all 
the people of the State of Nevada, who are only interested in 
this information in order to protect the health and well-being 
of their families.
    You talk about self-identification. We know that is 
impossible to be able to do. You did not come forward with the 
information until you absolutely had to. Self-correction, I 
don't know if that's possible, because you still have a mind 
set that this is just an aberration and you're going forward 
with the licensing when we don't know that the basis of the 
licensing isn't based on faulty documentation and scientific 
documentation.
    You talk about employees and how valued they are. We have 
e-mails that demonstrate otherwise. There was not a culture of 
valuing the employees. There was quite a culture of 
intimidation and having them fudge the data. And I can't 
understand what the use of having standards are, if they are 
systematically ignored by the supervisors and employees that 
work for you.
    So I cannot understand for the life of me why the DOE is 
going forward with this licensing procedure when we do not know 
whether or not the scientific documentation upon which you are 
basing your decisions is in fact flawed. And until this 
investigation, which I believe should be an independent 
investigation, is conducted and completed, it makes absolutely 
no sense to me that you're going forward with your licensing 
procedures.
    Why? Why would you possibly be going forward with this and 
not calling a halt to it until we know for sure what's going on 
at Yucca Mountain?
    Mr. Garrish. Congresswoman, you had a number of issues 
there, but let me just try and deal with a couple if I could. 
And I would ask that you please judge us by how we respond and 
what we do. Let us do our investigation. Undoubtedly you will 
see those results very soon. And we will be able to tell you 
what the impact is. And then eventually we will have, we 
believe, an independent reviewer on this entire project. That's 
the Nuclear Regulatory Commission.
    Ms. Berkley. Why would you let it go to that point and 
continue to spend time and millions of dollars of taxpayers' 
money when you don't know what the investigation is going to 
disclose?
    Mr. Garrish. Well, I would ask first that you let us finish 
our investigation, determine what action is appropriate, and 
then you can judge us at that time.
    Ms. Berkley. For the life of me, I can't understand why you 
think we would trust your investigation of yourself, when we 
have a series, over the last 20 years, of debacles and cover-
ups that I didn't trust you then and I certainly don't trust 
you now and the information you are going to provide for us 
after your own investigation, rather than an independent, 
outside investigation. In my mind, it's suspect from the 
beginning.
    Mr. Garrish. I understand your point of view.
    Ms. Berkley. And what do you say about that point of view? 
I'm glad you feel my pain, but I'd like to get some information 
from the Department of Energy.
    Mr. Garrish. Well, my point is that we believe that we 
should go through our investigation----
    Ms. Berkley. Why do you think you should be doing the 
investigation and not an outside, independent body?
    Mr. Garrish. I don't know what body you're suggesting would 
review us. We are going to have, individuals from the Inspector 
General are going to look at the facts in this case. We are 
going to have individuals outside the Department to help us 
with our QA system. The scientists that are responsible for 
presenting this case to the Nuclear Regulatory Commission are 
the ones that are going to take a look at exactly what happened 
to the science and whether or not we can go forward with it or 
not.
    And we will have those results and then please judge us at 
that time as to whether or not you think it's sufficient.
    Ms. Berkley. According to your oral testimony, and I just 
want to clear this up, you stated that you don't believe for a 
minute that sound science is separate and distinct from quality 
assurance, do you? I mean, they are interconnected in your 
mind, I believe, I would hope. Can you delineate the two, that 
there is no quality assurance but this project is based on 
sound science?
    Mr. Garrish. The quality assurance aspects of what we do 
relates to the Nuclear Regulatory Commission presentation of 
our case. There is a lot of science that goes on in the world 
that does not follow the Nuclear Regulatory Commission 
requirements. And there can be science that does not go through 
quality assurance. And that science can be good.
    However, what we have to do is not only do sound science, 
we have to present that sound science to the Nuclear Regulatory 
Commission, using quality assurance protections.
    Ms. Berkley. Do you intend to repeat the models on water 
infiltration and climate, or are you just going to go on the 
same information?
    Mr. Garrish. I don't know the answer to that until we are 
done with our evaluation.
    Ms. Berkley. Don't you think that would be a fundamental 
scientific issue regarding Yucca Mountain and whether or not it 
can support storage of 77,000 tons of toxic nuclear waste?
    Mr. Garrish. We are going to look at that exact issue when 
we do our evaluation.
    Ms. Berkley. How can you do an evaluation if we know for a 
fact that the e-mails are documenting that they fudged on the 
model that is the very essence of probably the most fundamental 
science with the Yucca Mountain project?
    Mr. Garrish. If I may ask Mr. Ziegler to respond to this. 
There are ways in which we scrutinize the data in other ways. I 
would like to have him explain some of the techniques, if I 
could.
    Mr. Ziegler. Yes, first off, the direct implications in the 
e-mail are regarding the timing of the documentation, the 
dates. There are some other words in there that may lead to 
other implications. But until there is a----
    Ms. Berkley. Yes, but they made up the dates. ``I have no 
clue what the dates are, so I made them up. And if they need 
any more information, I'll make that up, too.''
    Mr. Ziegler. Right now, the direct implications of the 
processes, as far as the scientific information, I think we 
need to look further to know the implications on that. We 
certainly take it very seriously. We want to make sure that the 
data and information used in the safety analysis is fully 
valid.
    Ms. Berkley. What worries me is that data and information 
is still in place and that's what you're using to go forward 
with the licensing. It hasn't been disproved, you haven't 
redone the modeling. You haven't redone the science. So we are 
going forward on the licensing process with the faulty 
information, with the faulty scientific findings on the very 
fundamentally most important aspects of the Yucca Mountain 
Project, whether to not it's going to pollute our groundwater.
    Mr. Ziegler. Actually, as I think I said earlier when I 
spoke, unless we can show that the technical basis for the 
safety analysis is valid, we are not able to go forward, we 
would choose not to go forward.
    Ms. Berkley. So have you halted the Yucca Mountain project? 
Or are you continuing to go forward with your licensing 
process?
    Mr. Ziegler. We have not made an application, license 
application, to the Nuclear Regulatory Commission yet. There 
are many aspects of the project that are not in question here. 
So those aspects are continuing.
    Until we are able to show that the scientific basis is 
valid, we will not go forward with that information.
    Ms. Berkley. OK. One more question. OK, I guess we're 
having a third round.
    Mr. Porter. Mr. Gibbons.
    Mr. Gibbons. Thank you very much, Mr. Chairman.
    Mr. Ziegler, thank you for bringing your testimony here 
before us as well. I am amazed when I hear you say that, 
because I want to read to you, when I hear your statement 
saying, well, and maybe Mr. Garrish saying, that you know, all 
these memos had to deal mostly with time, when we were going to 
submit the data and that.
    I want to read something to you. And I want your opinion. 
It's a memo, one of these e-mails, dated April 3, 1998, written 
at 4 hours, 19 minutes, 40 seconds p.m., to be very specific, 
by somebody I don't know, but it's titled, subject is, 
infiltration and UZ, capital words, UZ flow. Let me read it to 
you.
    It says, ``I have some maybe bad and maybe good news that 
you should be aware of. Blank called me 2 weeks ago and said 
that he had tested the first sample of core from blank at 
blank, and it had a concentration of 39 micrograms per liter of 
chloride. This means that the flux is at most 2 or 3 
millimeters per year in this high infiltration zone. Blank is 
at the crest of Yucca Mountain. There are some implications,'' 
and this is what I want you to pay attention to. ``There are 
some implications that I did not realize until I talked them 
over with blank yesterday. Basically, either our infiltration 
model is wrong or our flow blank or UZ flow model is wrong.''
    Now, does that sound like time to you, or does that sound 
like science and technology?
    Mr. Ziegler. It sounds like a discussion by these 
individuals, I don't know them either, but I have seen the e-
mails, of information and how they may or may not have used 
that information. I think until we go back and see what was 
actually done and then evaluate the scientific validity of what 
was done independent of these individuals who have implicated 
themselves, then I think we don't know.
    Mr. Gibbons. Mr. Ziegler, are you a scientist?
    Mr. Ziegler. I'm a nuclear engineer.
    Mr. Gibbons. OK, pretty close to one, anyway. Something 
that says, ``our model is wrong'' or ``our blank flow is 
wrong'' tells me that's science. That's not just merely a 
discussion. Here is an opinion of somebody who is a scientist 
writing this memo, and you are sitting here before us saying, 
well, it's just a discussion and I want to look at it and make 
sure I know what's going on.
    I can appreciate that opinion. But I wanted to tell you, 
not all of these e-mails have to deal with time or when the 
information was submitted. Because in this one, we're talking 
about some very specific information.
    Now, not to leave people unattended to in this discussion. 
Mr. Garrick, in your testimony, you said that these e-mails 
were rather loosely framed statements, and I think you were 
trying to put a happy face on them. If I read you that same 
statement that I just read Mr. Ziegler, the e-mail of April 3, 
1998, would you say that the statement of that individual is a 
loosely framed statement?
    Mr. Garrick. What I was trying to say was that----
    Mr. Gibbons. Well, I mean, I'm only asking if you would 
apply your standard to that e-mail. Do you think that's a 
loosely framed standard?
    Mr. Garrick. I think that particular statement was probably 
pretty specific. And I think also that statement could be a 
concern by the scientists that there was a possibility that the 
infiltration rates that were being used were not as low as they 
should be.
    Mr. Gibbons. Well, in his word, out of this statement, 
wrong.
    Mr. Garrick. Well, sure, they're wrong. But I'm just 
pointing out that the wrong could be in the direction of 
opposite from doing damage, but in the direction that the 
infiltration rates are too conservative.
    Mr. Gibbons. Builds our point.
    Mr. Garrick. Yes.
    Mr. Gibbons. You don't know what the science is at this 
point in time. You don't know whether it's conservative or 
wrong. You don't know whether it's good or bad. You don't know.
    Let me jump over on Mr. Friedman, I didn't get a chance to 
talk to you, a little bit more. You said there were about 2 
weeks worth of studies to go on in all these e-mails. The e-
mails were from 1998 to 2000, I believe, that's part of your IG 
investigation. Is that correct?
    Mr. Friedman. In trying to describe to you, Mr. Gibbons, 
why I can't tell you how long this is going to take, I was 
trying to indicate that some of the e-mails go back to 1998, 6 
or 7 years ago. And there is a huge body of information that we 
are going to have to look at.
    Mr. Gibbons. Are there potentially e-mails outside of the 
timeframe from today back to 1998 that would be relevant, that 
would be pertinent, would be applicable to your investigation?
    Mr. Friedman. There are not only e-mails that would fit 
your characterization, but there are other documents that would 
fall into the same category.
    Mr. Gibbons. OK, thank you. Mr. Egan, I appreciate your 
legal skills and the fact that you are also a nuclear engineer 
as well. There is such a thing in the legal doctrine of 
privilege, is there not? A doctor has a privilege with his 
patient, a lawyer has it with his client, a priest has it with 
a penitent. That is an accepted doctrine in courts in the law 
today.
    I'm wondering, in your jurisprudence experience, have you 
ever seen an exception or a privilege granted between a 
scientist and his supervisor or a scientist and his management?
    Mr. Egan. No, sir, in fact, the scientific method, which 
really is the foundation of quality assurance, in fact, but the 
scientific method is really predicated on full disclosure of 
everything. So if a scientist publishes his findings in a peer 
reviewed journal, the peer review team can look at his work 
papers, his notes, he's not entitled to shield anything from 
that peer review. The whole idea is, let's get to the bottom of 
this, let's find the truth.
    In law, there are privileges, and there are appropriate 
privileges to apply to litigation that might not necessarily be 
in the public interest on a project like this. But at any rate, 
my concern is with the effort by DOE to claim broad categories 
of privilege. Let me just give you one example that I fear 
could happen. We had the court case, we have the EPA setting a 
new standard. We know we're going to have DOE opining about 
what that standard should be and we know when that standard is 
set, we know we're going to have DOE evaluating whether Yucca 
can meet that new standard.
    Well, we think that analysis and that round of opinion 
ought to be public knowledge, especially on an issue of this 
importance that they got wrong the first time. We are concerned 
that DOE would have its lawyers instruct the entire 
organization, please do the following, please evaluate the new 
EPA standard, please evaluate whether Yucca Mountain meets that 
standard. And oh, by the way, this is all attorney work 
product.
    Arguably, there is a technical way to do that a technician 
in a court room could say meets the attorney work product 
standard. But we think that certainly goes against the grain of 
what Mr. Garrish has testified to about full disclosure. And we 
don't think it's appropriate, and hopefully the NRC will agree 
with us that it's not appropriate, if that's done. Right now 
it's a fear that it will be done based on some discussions we 
have had.
    Mr. Gibbons. Thank you, Mr. Egan, and I know that 
privileges do have a sound public policy purpose why they are 
enacted and certainly let's hope that we see a sound, 
reasonable decision made by the NRC.
    Thank you, Mr. Chairman.
    Mr. Porter. Thank you, Congressman.
    This is for Mr. Devaney and Mr. Friedman. What I have heard 
from Mr. Garrish and Mr. Groat are really two different answers 
to a similar question. That is, Mr. Groat is saying that he's 
been told he can't investigate, he can't interview, can't talk 
to his employees regarding the possible falsification of 
documents. I hear Mr. Garrish saying that he is going to do his 
own investigation and he is going to get to the bottom of it, 
he's going to take care of the science and take care of the 
employees.
    I'm confused. Can one of you gentlemen help me with this?
    Mr. Devaney. Mr. Chairman, I think we have to talk about 
which investigation we're talking about. The FBI and Mr. 
Friedman's office and my office are conducting a criminal 
investigation. When we do that, it is not helpful to have the 
agency doing the same thing at the same time.
    We are working with the U.S. Attorney, we have an 
investigative strategy. I'm talking about any criminal 
investigation, not just this one. We have an investigative 
strategy that is developed in part with the U.S. Attorney. We 
are doing the interviews in an informed way in the order in 
which we want to do them.
    With all due respect to Mr. Groat, lying to Mr. Groat is 
not a crime, lying to Federal agents is a separate crime. So 
there are a lot of nuances in conducting a criminal 
investigation that would be interfered with if Mr. Groat was 
conducting a similar, internal investigation about the 
falsification of records and documents.
    Now, maybe Mr. Groat might need to have a chat after the 
meeting, because I wouldn't be opposed to Mr. Groat reassigning 
these employees to some other--I understand they're not on this 
project right now. But how he reassigns them is his business. 
He could also put them on administrative leave without pay if 
he wanted to.
    Taking an adverse action against the employee without the 
facts would be premature. So he needs to get the facts from us. 
But first we have to present the facts to the U.S. attorney. 
Because the goal of any criminal investigation is seeing if we 
can put somebody in jail. Before I was an IG, I spent 30 years 
in Federal law enforcement trying to do that. I might add I was 
at one point the special agent in charge of the Secret Service 
in Las Vegas. So even then, I was familiar with this issue. And 
that's the goal of our criminal investigation, is to see if 
anybody has committed a crime, and if they have, to bring them 
to justice.
    Mr. Porter. Well, then hypothetically, Mr. Devaney, we have 
an agency that has at least serious indications that there have 
been falsified documents. What I hear you saying is that you 
would not discourage them from reassigning or taking them off 
of these projects and putting them into another role.
    Mr. Devaney. I am in a fact-gathering mode. What happens to 
those employees is Mr. Groat's concern right now. He has to 
make those decisions. I can't help him make those decisions. At 
some point, I will present him with a fact-based report where 
he might want to consider taking adverse action against these 
employees, but we're not there yet.
    Mr. Porter. Mr. Friedman, the testimony by Mr. Garrish was 
such that they were going to perform all these investigations, 
that they feel confident that they have the systems in place. 
So what is your advice to this panel as to those comments from 
Mr. Garrish?
    Mr. Friedman. Well, first let me say, Mr. Chairman, in 
response to your earlier question, that my position parallels 
that of Mr. Devaney. Mr. Garrish and I have had this 
discussion, or have had a discussion. It's clear to me that he 
is not doing a criminal investigation. He understands the 
firewall that exists, and that's my responsibility.
    Mr. Porter. If I understand that, Mr. Groat does not 
understand the firewall, is that what we hear?
    Mr. Friedman. I haven't discussed--Mr. Groat is not within 
my purview, and his activities. So I have not had a discussion 
with Mr. Groat on this issue.
    I think we have to wait. We intend to take a look at the 
study that the Department does, and I'm pleased to hear that 
the technical review board will be looking at it as well. We 
may have to proceed independently once we take a look at the 
work that they've done to confirm their findings to our 
satisfaction.
    Mr. Porter. Thank you very much.
    Mr. Garrish, the report from GAO, which was initiated by 
Senator Reid and Senator Ensign last year, the summary of April 
30, 2004, so it wasn't that long ago, has to do with persistent 
quality assurance problems which could delay repository 
licensing and operations. You comment consistently how you have 
this quality assurance program that is one of the best, 
correct? At least that's my understanding in summarizing what I 
hear you saying.
    But throughout this report, the GAO is consistent in 
stating that you are not. But yet, quality assurance, although 
I believe that is a wrong term, that would be about public 
health and safety and welfare, it's not about quality assurance 
of apples, it has to do with life, I still question that you 
are in a position to do research when the GAO has been, just 
last year, stating that you haven't followed through with, over 
a 3-year study of quality assurance problems and challenges. I 
don't understand. Here's the report.
    And of course, on page 31 in this report, and as you know, 
GAO is probably as fine an organization as any in getting to 
the bottom of problems. But on page 31 it states, a list of 
concerns by employees, it shows management problems, it claims 
mismanagement, 26 substantiated concerns, human resource 
problems, 8 substantiated concerns, harassment, intimidation, 
retaliation, discrimination, 4 substantiated concerns, quality, 
fraud, waste, we can go on and on.
    Again, Mr. Garrish, what are your plans to comply with the 
GAO's request before you start looking at your own back yard? 
You need to fix your back yard.
    Mr. Garrish. Mr. Chairman, quality assurance is one of the 
cornerstones of a nuclear culture. This, the way I would refer 
to it, has been a long and improving process. When GAO did 
their initial investigation, they took it at a slice in time. 
We took seriously what they have said and by the time they 
issued the report, many of those things that were included in 
the report had already been improved.
    And we are continuing to want to improve this program, and 
in fact, that is one of the things that we are going to be 
looking at at our independent investigation.
    So I understand your concern, I agree that we need to 
continue, have a continuing program of improvement on QA. And 
we have a ways to go. But I believe we are making progress.
    I would like, if I could, to just make a comment relative 
to our earlier comments to the inspectors general, relative to 
what we are doing or not doing. I do want to set the record 
straight that we are not conducting any criminal investigation 
and we are not investigating the falsehoods. But what we are 
doing is evaluating separately from what the inspectors 
generals are doing, is the science, what the people have 
touched, and evaluating the science to see how it is impacted. 
We are separately evaluating the QA.
    Mr. Porter. Thank you, Mr. Garrish.
    Unfortunately, the GAO's comments are contrary to yours, 
consistently stating that corrective actions have not yet been 
successful in correcting the weaknesses of DOE regarding 
quality assurance. We have a definite disagreement between DOE 
and GAO.
    Actually, that will conclude my questions.
    Ms. Berkley. Thank you, Mr. Chairman.
    Mr. Mitchell, in the same report that the chairman just 
cited, it says in its audit of Yucca Mountain, the GAO found 
consistent quality assurance problems. Could you give us some 
idea of how many times it has been necessary for the DOE or 
Yucca Mountain contractors like Bechtel to revise their quality 
assurance programs?
    Mr. Mitchell. I certainly couldn't give a realistic 
estimate of the number of times all of the processes and 
procedures, of which there are hundreds, have been revised over 
the last 5 to 6 or 8 years. It would be an extremely large 
number. Those processes and procedures are revised both as the 
program phase changes, both as we gain additional information, 
as we amplify and clarify them. So there is a revision state 
that goes on.
    The standards to which those processes and procedures apply 
are in fact not revised. The quality assurance procedures that 
apply to us through the contract are changed only at infrequent 
intervals, sometimes it's because of a change of a standard, 
sometimes an interpretation. The implementation of those 
through our processes and procedures is a process of continuous 
improvement.
    Ms. Berkley. Could you tell me if an employee voices his or 
her concerns what's the procedure that they follow to get those 
concerns heard?
    Mr. Mitchell. There are a number of processes and 
procedures available to them. First and foremost, we would 
assume they would go to their supervisor, if they chose to do 
so. That's the one we encourage. In addition to that, we 
encourage them to take advantage of any other process they use. 
There are employee concerns programs both in the company and in 
the Department of Energy. And they have access to the employee 
concerns process of the NRC.
    Ms. Berkley. Why do you think there is such a large number 
of employees that are complaining that they are intimidated, 
and that once they bring a problem forward that they are either 
fired or punished in some way? Are all of these disgruntled 
employees?
    Mr. Mitchell. I have no idea which data base you reported 
those numbers from. Our information shows right now that at 
least over the last couple of years, the surveys we have 
conducted, that there is in fact no climate of intimidation.
    Ms. Berkley. Well, that's unfortunately contrary to the 
words we're getting from the employees.
    Given what you know now regarding various problems with the 
project, the moving of pipes, possible destruction of water 
pipes, the misappropriation of Nevada's water, do you think 
Bechtel is entitled to any portion of the pending bonuses for 
the Yucca Mountain project?
    Mr. Mitchell. First of all, as I believe we stated, we do 
not believe those allegations are in fact correct.
    Ms. Berkley. If they are?
    Mr. Mitchell. If they are, that's a decision for the 
Department of Energy to make. Our fee structure is governed by 
the instant contract we have with the Department of Energy, and 
that is in fact their decision to make.
    Ms. Berkley. Do you think it would be appropriate if these 
charges are proven true that Bechtel accept that bonus money? 
Have you earned that bonus money?
    Mr. Mitchell. The fee terms of any contract are a mutual 
deal between the Department and ourselves. They are documented, 
they are clearly available. We would expect to comply with 
them.
    Ms. Berkley. Let me ask one more question. Mr. Garrish, I'm 
not sure I heard your answer when I asked you whether or not 
you were going to release the information and documentation 
that the Governor of the State of Nevada and the Attorney 
General have requested. Is it your plan to release that 
information to them?
    Mr. Garrish. Ultimately, all of this information goes 
before the Nuclear Regulatory Commission. He has asked----
    Ms. Berkley. That's not my question. The question is, are 
you going to comply with the request of the Governor and 
Attorney General of the State of Nevada?
    Mr. Garrish. That's under consideration as we speak.
    Ms. Berkley. What would possess you not to?
    Mr. Garrish. As I said, all of this information will be 
available on our licensing support network. That's the way the 
Nuclear Regulatory Commission intended us to provide it. And 
the final license application, not a draft, will be presented 
to the Nuclear Regulatory Commission. So instead of having non-
policy information as to preliminary information, that it will 
not go forward, we believe that it is more appropriate to 
provide the actual copy of the license application and provide 
the certification and all the information in the manner in 
which the Nuclear Regulatory Commission has set forth.
    Ms. Berkley. So you expect the Governor and the Attorney 
General to wait until the licensing procedure is completed to 
get the information?
    Mr. Garrish. No. They will get that at least 6 months in 
advance of the filing of the license application.
    Ms. Berkley. And what if the licensing application is not 
filed for the next 10 years? Don't you think that the Governor 
of the State of Nevada and the Attorney General are entitled to 
this information? You said in your testimony that one of the 
things you pride yourself on the most is your openness. Don't 
you think that this is not a demonstration of openness?
    Mr. Garrish. No, they will get this information. I'm 
telling you that, and we----
    Ms. Berkley. You're saying that they will get this 
information?
    Mr. Garrish. They will get the information. We will do the 
licensing support network, we will file that information we 
believe this summer. That information, much of the information 
they are currently requesting is on the license support 
network. The only issue is really the question as to whether or 
not a non-policy draft of the license application will be made 
available to the State. That question is under consideration 
now at the Department.
    Ms. Berkley. I should think it would be.
    Let me ask you one final question. In your Department's 
press release on this matter, you stated that the safe handling 
and disposal of nuclear waste and the sound scientific basis 
for the repository safety analysis are priorities for the 
administration and the DOE. All related decisions have been and 
will continue to be based on sound science.
    Now, how can you possibly state that all related decisions 
have been based on sound science before you have completed or 
begun your investigation into the scientific data, analyses or 
documentation related to the program that you suspect were 
falsified? What sound science are you talking about?
    Mr. Garrish. It is our commitment to the people of the 
State of Nevada and others around the country that we will not 
move forward with any decisions on nuclear waste that are not 
based on sound science. That is our commitment to you. We are 
in the process of evaluating this information, and we will not 
go forward if we cannot demonstrate that this is based on----
    Ms. Berkley. You are going forward as we speak, are you 
not?
    Mr. Garrish. We are preparing a license application, we are 
evaluating----
    Ms. Berkley. So you are going forward even though there is 
a very strong possibility that this entire project is not based 
on sound science, yes or no?
    Mr. Garrish. We are preparing the documents to move forward 
with this. But we have not made a final decision yet as to when 
and whether to file those documents. Some of that evaluation 
will be dependent on what we find in this investigation, or 
excuse me, this evaluation that we're doing now. And that is a 
process that will occur over the next several months. But I can 
assure you we will not go forward unless we can have the 
feeling ourselves first that this repository will be safe and 
would, and only a safe repository would be included in a 
license application.
    Ms. Berkley. It is my opinion that you have misled the 
people of the State of Nevada. You have misled the people of 
the United States. You are misleading the U.S. Congress. And 
you have misled the President of the United States. I would 
like to see someone in the DOE with the guts or common decency 
to stand up and halt this project. It is not based on sound 
science and quite frankly, Mr. Garrish, you ought to be 
ashamed.
    Mr. Porter. Congressman Gibbons.
    Mr. Gibbons. Thank you very much, Mr. Chairman.
    And to our witnesses, as we wind down this very eventful 
and sometimes painful day for each of you, I again want to 
thank you for the time you've spent before us today. As I 
started off saying, I hoped that you would not come before us 
and trivialize this matter. I think you can understand from the 
frustrations and the sense of what we heard today that this is 
not a trivial matter. This is no small matter for the people of 
Nevada or the American people in general.
    This goes not only to the veracity of the science that was 
forming the basis of your decisions to move forward with Yucca 
Mountain, but this goes to the trust, goes to the confidence, 
goes to the believability of our Federal Government, and 
therefore has a significantly important and weighty 
responsibility on the shoulders of each and every one of you 
here today.
    I only want to close with a statement from one of these e-
mails, because I think it senses the frustration of individuals 
who are working on the project and the management culture that 
we've talked about this whole time. This e-mail is what I will 
close with. And I apologize to the audience and to all of you 
because it contains swear words. But it was dated February 23, 
1998, written at 1:28 a.m. This is an individual sitting at his 
computer in the wee hours of the morning, probably after a very 
long and frustrating day. Sitting there typing this e-mail to 
someone. It's redacted, so I can't tell you who or who received 
it.
    And it quotes, ``Blank, you are just starting to wake up to 
what the hell is going on in the Yucca Mountain project. I 
can't teach it to you. I've learned, and that's why I'm in 
blank.'' I don't know, is that Timbuktu? ``I would have liked 
to bring more people with me, but nobody ever figured it out, 
as much as I tried to tell you, I couldn't do it directly 
because you have to learn by experience. Once you learn, you 
learn. There is more to it than you think, that's why I'm still 
on the project. They won't get rid of me. You are on the verge 
of figuring this shit out. Good luck. Blank.''
    A sense of what was being felt on that project by this 
individual at 1:30 a.m. Obviously not something that he was 
happy about. Obviously something that troubled him greatly. 
Obviously when it came out, it reflected what he has sensed 
about the management of what was going on at the project.
    Now, what this applies to, we will only find out later on 
when this investigation is finally finished. But I will say to 
each and every one of you here today that it is troubling to 
have people who are working with you with the dedication that 
many of these people have that resulted in this type of an 
attitude and this type of a feeling at 1:30 a.m., wrote an e-
mail expressing himself about his thoughts about the Yucca 
Mountain project. This is the same type of frustration that we 
have known and felt for a long time in the State of Nevada. We 
are just now seeing that people in the Yucca Mountain project 
are more responsible for what we find are troubling us today 
than we had ever imagined.
    Ladies and gentlemen, thank you for being here today. I 
look forward to working with Chairman Porter as we move forward 
in this process. I believe strongly that we will find the 
answer. But until that day, I believe strongly that it is up to 
you, the obligation is yours, for the USGS and the Department 
of Energy, to stop working on Yucca Mountain until the answers 
are done.
    Thank you, Mr. Chairman.
    Mr. Porter. Thank you, Congressman Gibbons, and 
Congresswoman Shelly Berkley. I think we need to stress it one 
more time, that there are many hard-working, honest, truly 
professional individuals working for the Department of Energy, 
working for the USGS. But also make note that the comments 
today, although seeming very specific to Yucca Mountain, it 
shows a systematic problem in the Department of Energy around 
the country.
    To my colleagues that would think that Yucca Mountain is 
truly a parochial issue, what we're hearing today is continual 
management challenges that have been put forth by the 
Department of Energy, an agency that has oversight over nuclear 
power plants, energy, terrorist activity and law enforcement in 
protecting our facilities.
    So today wasn't just about Yucca Mountain. It's about the 
Department of Energy.
    The important thing about these recently discovered e-
mails, aside from the evidence of corruption and fraud, is that 
they demonstrate that Yucca Mountain truly did flunk the test 
of science. That's why it's so important to view them in the 
context of what's happening at Yucca Mountain at this time.
    In 1996, DOE had just completed its first major site 
characterization study in the exploratory tunnel it had dug. 
The first of many tests it believed necessary to properly 
assess Yucca. The results of that test were spectacularly bad. 
They showed that rainfall would infiltrate the Yucca Mountain 
rock and get into the repository cavity far more quickly than 
would have been thought, 50 years instead of the thousands of 
years predicted by DOE's geologists.
    That is critically important, since water can corrode the 
waste containers and it leaks into the regional water supply. 
It appears we need to protect the waste from the mountain, 
based upon the studies that have been brought forward.
    Over the next 3 years, DOE and USGS geologists scrambled to 
regroup. This is the time period during which, under severe 
budget crunch and pressure by DOE to produce, they produced an 
array of deeply troubling e-mails. Those e-mails were not 
simply the ones produced to the subcommittee. Nevada has 
chronicled dozens of additional e-mails during this same time 
period from DOE's public records and has posted them on the 
Nevada Agency for Nuclear Projects Web site.
    Plus, I discovered numerous e-mails in the newspaper that 
were not provided to us. Together they show that DOE's own 
scientists knew Yucca had flunked the site suitability rules 
then on the books at DOE. They show a quick and dirty effort by 
DOE to change the rules, so DOE could disregard the mountain 
and rely for containment almost completely on man-made waste 
containers.
    They show the wholesale abandonment by DOE of any 
additional site characterizations. But most troubling, they 
show data being fabricated, instruments being calibrated that 
were not even in their possession, dates and names changed, two 
sets of books, one for inspectors, one for representing the 
real data. They show a complete programmatic breakdown of 
quality assurance. Consistently even the GAO has reported 
troubles of quality assurance.
    Equally troubling, e-mails Nevada discovered suggest that 
DOE's quality assurance inspectors knew about the 
falsifications. They knew about the bogus data as early as the 
year 2000, not 2004, and you will find it in the backup 
testimony.
    They appear to show knowledge by DOE of gross improprieties 
long before recommending the Yucca site to the President and 
the Congress. They show an utter disregard for sound science in 
the performance models for the repository.
    This is not a mere housekeeping matter. The issue of the 
precipitation of rain and its infiltration in the repository 
has become the key issue in whether or not Yucca can even be 
licensed. DOE says water will not get into the repository. 
Nevada's experts say it will. Now we know that DOE's models 
that will show very infiltration rates are bogus. Can we rely 
on anything DOE now says about the safety for our citizens?
    What are we left with? Dr. Garrick suggests in his prepared 
statement that we don't yet know whether the falsifications are 
technically significant for the project. But even if that were 
true, it seems to beg the question. The question is, how can 
conduct like this occur on one of the most potentially 
dangerous waste projects in the history of the world, in a 
project we spent $9 billion studying? And we haven't even got 
to nuclear waste yet. This is about water tests.
    If they didn't know at the time, where were the quality 
assurance managers? Where were the managers, if they did know 
at that time, why wasn't prompt action taken? What does this 
say about the character and fitness of the DOE to be an NRC 
licensee?
    The Atomic Energy Act requires NRC to assess the character 
and fitness of all license applicants to be an NRC licensee. I 
submit that DOE has not demonstrated such character and 
fitness. It cannot pass the test. Consider what we have seen: 
e-mails showing fraud and apparently criminal falsifications; 
silica, class action cases where industrial hygienists allege 
document falsification of health and safety records for tunnel 
records; theft of Nevada's precious water at a time when a 
Federal judge and the State engineer have put legal 
restrictions on what DOE may use; horrible quality assurance, 
raising issues of whether the safety of the repository can ever 
really be demonstrated; agency changing the rules every time a 
test fails, and agency hiding documents from Nevada and the 
public.
    Ladies and gentlemen, it seems to me that we have had to 
search far and wide to find an organization such as this that 
could build the Yucca Mountain project. I don't think we could 
find a worse organization at this time. It's not the men and 
women that are working every day. It is the management. There 
is something rotten here and it's rotten to the core.
    That's why I am going to be calling, and I believe the 
support of our committee, and I will bring it back for the full 
committee, that I am going to call for an independent 
commission to analyze the impacts of document falsification, 
the lack of quality assurance and the ability of DOE to 
demonstrate the safety of Yucca Mountain. We cannot move 
forward on this project until we have answers to the question 
of whether this mountain flunks the test of science or whether 
it just needs a few studies redone. It is necessary but not 
sufficient for the Inspector Generals of Interior and Energy to 
investigate. They will not make a determination as to the 
impact of such conduct on the ultimate science of the 
repository.
    After the Three Mile Island nuclear accident in 1979, the 
President appointed John Kemeney, then-president of Dartmouth 
College, to chair a commission to investigate what went wrong. 
This may be something that we need to do in a manner that the 
public can embrace and that will be unbiased.
    The President recognized that a matter like this could not 
be investigated by lawyers at that time, the public relations 
specialists and the NRC bureaucrats. The commission at that 
time had subpoena power and they had a few additional 
privileges. It got to the truth about Three Mile Island and 
mismanagement that occurred and suggested appropriate change. 
The commission report, when finished, was a great success, 
leading to a very significant retooling of the nuclear 
regulatory regime governing nuclear power plants and ultimately 
greatly increasing the safety.
    The same sort of vehicle is needed here, ladies and 
gentlemen. The public and Nevadans in particular have lost 
faith and confidence in DOE as its Yucca contractor. We no 
longer can believe sound science that truly may well be science 
fiction. There are many unanswered questions and it certainly 
begs additional questions, but it means that we must pause this 
project so we have time to get to the bottom of the fraudulent 
acts to the gross mismanagement that has been occurring. It was 
haste and mismanagement that got DOE into this problem. It 
would be tragic if haste and mismanagement again shuffled it 
under the rug.
    So I am going to be asking specific things. We are going to 
be asking for a copy of the draft application with a chain of 
command, an employment flow chart, so we know who has been 
working on the projects. And we will get you these formal 
requests. Employee lists, we've had numerous people call my 
office, as I know my colleagues have, so we would also like to 
have a copy of the whistleblower files so we'll have them 
available.
    Under the independent investigation, we will be working in 
concert with our delegation. But it must not be a Federal 
agency. It must be totally independent. We also call upon DOE, 
as has been mentioned numerous times today, for DOE to halt the 
project as we know it today. We will be passing a letter that 
will be coming from members of the delegation. And on April 
13th, as I mentioned, we are going to be inviting, for a 
meeting on April 13th, we are inviting employees to come in 
that are directly impacted and have information.
    Again, I applaud those individuals who have come forward. I 
thank this committee. I would also like to thank Chairman Don 
Young for allowing us to use this facility of the 
Transportation Committee and his staff. And if Members have 
additional questions for our witnesses today, they can submit 
them for the record.
    I would like to again thank all of our witnesses for being 
here today.
    The hearing is now adjourned. Thank you.
    [Whereupon, at 1:17 p.m., the hearing was adjourned.]
    [Additional information submitted for the hearing record 
follows:]




    

                                 
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