[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]


 
   THE ROLE OF THE NUCLEAR REGULATORY COMMISSION IN AMERICA'S ENERGY 
                                 FUTURE

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

                                HEARING

                               BEFORE THE

              SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

                                AND THE

                    SUBCOMMITTEE ON ENERGY AND POWER

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 4, 2011

                               __________

                           Serial No. 112-43


      Printed for the use of the Committee on Energy and Commerce

                        energycommerce.house.gov



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                    COMMITTEE ON ENERGY AND COMMERCE

                          FRED UPTON, Michigan
                                 Chairman

JOE BARTON, Texas                    HENRY A. WAXMAN, California
  Chairman Emeritus                    Ranking Member
CLIFF STEARNS, Florida               JOHN D. DINGELL, Michigan
ED WHITFIELD, Kentucky                 Chairman Emeritus
JOHN SHIMKUS, Illinois               EDWARD J. MARKEY, Massachusetts
JOSEPH R. PITTS, Pennsylvania        EDOLPHUS TOWNS, New York
MARY BONO MACK, California           FRANK PALLONE, Jr., New Jersey
GREG WALDEN, Oregon                  BOBBY L. RUSH, Illinois
LEE TERRY, Nebraska                  ANNA G. ESHOO, California
MIKE ROGERS, Michigan                ELIOT L. ENGEL, New York
SUE WILKINS MYRICK, North Carolina   GENE GREEN, Texas
  Vice Chairman                      DIANA DeGETTE, Colorado
JOHN SULLIVAN, Oklahoma              LOIS CAPPS, California
TIM MURPHY, Pennsylvania             MICHAEL F. DOYLE, Pennsylvania
MICHAEL C. BURGESS, Texas            JANICE D. SCHAKOWSKY, Illinois
MARSHA BLACKBURN, Tennessee          CHARLES A. GONZALEZ, Texas
BRIAN P. BILBRAY, California         JAY INSLEE, Washington
CHARLES F. BASS, New Hampshire       TAMMY BALDWIN, Wisconsin
PHIL GINGREY, Georgia                MIKE ROSS, Arkansas
STEVE SCALISE, Louisiana             ANTHONY D. WEINER, New York
ROBERT E. LATTA, Ohio                JIM MATHESON, Utah
CATHY McMORRIS RODGERS, Washington   G.K. BUTTERFIELD, North Carolina
GREGG HARPER, Mississippi            JOHN BARROW, Georgia
LEONARD LANCE, New Jersey            DORIS O. MATSUI, California
BILL CASSIDY, Louisiana              DONNA M. CHRISTENSEN, Virgin 
BRETT GUTHRIE, Kentucky              Islands
PETE OLSON, Texas
DAVID B. McKINLEY, West Virginia
CORY GARDNER, Colorado
MIKE POMPEO, Kansas
ADAM KINZINGER, Illinois
H. MORGAN GRIFFITH, Virginia

                                  (ii)
              Subcommittee on Environment and the Economy

                         JOHN SHIMKUS, Illinois
                                 Chairman
TIM MURPHY, Pennsylvania             GENE GREEN, Texas
  Vice Chairman                        Ranking Member
ED WHITFIELD, Kentucky               TAMMY BALDWIN, Wisconsin
JOSEPH R. PITTS, Pennsylvania        G.K. BUTTERFIELD, North Carolina
MARY BONO MACK, California           JOHN BARROW, Georgia
JOHN SULLIVAN, Oklahoma              DORIS O. MATSUI, California
CHARLES F. BASS, New Hampshire       FRANK PALLONE, Jr., New Jersey
ROBERT E. LATTA, Ohio                DIANA DeGETTE, Colorado
CATHY McMORRIS RODGERS, Washington   LOIS CAPPS, California
GREGG HARPER, Mississippi            JOHN D. DINGELL, Michigan
BILL CASSIDY, Louisiana              HENRY A. WAXMAN, California (ex 
CORY GARDNER, Colorado                   officio)
JOE BARTON, Texas
FRED UPTON, Michigan (ex officio)
                                 ------                                

                    Subcommittee on Energy and Power

                         ED WHITFIELD, Kentucky
                                 Chairman
JOHN SULLIVAN, Oklahoma              BOBBY L. RUSH, Illinois
  Vice Chairman                        Ranking Member
JOHN SHIMKUS, Illinois               JAY INSLEE, Washington
GREG WALDEN, Oregon                  JIM MATHESON, Utah
LEE TERRY, Nebraska                  JOHN D. DINGELL, Michigan
MICHAEL C. BURGESS, Texas            EDWARD J. MARKEY, Massachusetts
BRIAN P. BILBRAY, California         ELIOT L. ENGEL, New York
STEVE SCALISE, Louisiana             GENE GREEN, Texas
CATHY McMORRIS RODGERS, Washington   LOIS CAPPS, California
PETE OLSON, Texas                    MICHAEL F. DOYLE, Pennsylvania
DAVID B. McKINLEY, West Virginia     CHARLES A. GONZALEZ, Texas
CORY GARDNER, Colorado               HENRY A. WAXMAN, California (ex 
MIKE POMPEO, Kansas                      officio)
H. MORGAN GRIFFITH, Virginia
JOE BARTON, Texas
FRED UPTON, Michigan (ex officio)


                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. John Shimkus, a Representative in Congress from the State of 
  Illinois, opening statement....................................     2
    Prepared statement...........................................     3
Hon. Ed Whitfield, a Representative in Congress from the 
  Commonwealth of Kentucky, opening statement....................     5
    Prepared statement...........................................     6
Hon. Bobby L. Rush, a Representative in Congress from the State 
  of Illinois, opening statement.................................     8
Hon. Fred Upton, a Representative in Congress from the State of 
  Michigan, opening statement....................................     9
    Prepared statement...........................................    11
Hon. Joe Barton, a Representative in Congress from the State of 
  Texas, opening statement.......................................    13
Hon. Henry A. Waxman, a Representative in Congress from the State 
  of California, opening statement...............................    13
Hon. Cory Gardner, a Representative in Congress from the State of 
  Colorado, prepared statement...................................   107
Hon. Gene Green, a Representative in Congress from the State of 
  Texas, prepared statement......................................   109

                               Witnesses

Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission.......    15
    Prepared statement...........................................    18
Kristine L. Svinicki, Commissioner, Nuclear Regulatory Commission    32
    Prepared statement \1\.......................................
William D. Magwood, Commissioner, Nuclear Regulatory Commission..    33
    Prepared statement \1\.......................................
William C. Ostendorff, Commissioner, Nuclear Regulatory 
  Commission.....................................................    35
    Prepared statement \1\.......................................

                           Submitted Material

Letter, dated April 27, 2011, from Drs. Jeanne Hardebeck and 
  Thomas Brochur, U.S. Geological Survey, to James D. Boyd, 
  Commissioner, California Energy Commission, submitted by Mrs. 
  Capps..........................................................    57
Nuclear Regulatory Commission memo, dated October 8, 2010, from 
  Commissioner Ostendorff to Chairman Jaczko and Commissioners 
  Svinicki, Apostolakis, and Magwood, submitted by Mr. Inslee....    67
Nuclear Regulatory Commission Internal Commission Procedures, 
  submitted by Mr. Griffth.......................................    75

----------
\1\ Ms. Svinicki, Mr. Magwood, and Mr. Ostendorff did not submit 
  prepared statements. Mr. Jaczko's statement was submited on 
  behalf of the Commission.


   THE ROLE OF THE NUCLEAR REGULATORY COMMISSION IN AMERICA'S ENERGY 
                                 FUTURE

                              ----------                              


                         WEDNESDAY, MAY 4, 2011

                  House of Representatives,
       Subcommittee on Environment and the Economy,
                                 Joint with
                  Subcommittee on Energy and Power,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittees met, pursuant to call, at 9:38 a.m., in 
room 2123 of the Rayburn House Office Building, Hon. John 
Shimkus (chairman of the Subcommittee on Environment and the 
Economy) presiding.
    Members present from Subcommittee on Environment and the 
Economy: Representatives Shimkus, Murphy, Pitts, Bass, Latta, 
McMorris Rodgers, Harper, Cassidy, Gardner, Barton, Upton (ex 
officio), Green, Barrow, DeGette, Capps, Dingell, and Waxman 
(ex officio).
    Members present from Subcommittee on Energy and Power: 
Representatives Whitfield, Walden, Terry, Burgess, Scalise, 
McKinley, Pompeo, Griffith, Rush, Inslee, Markey, and Engel.
    Other Members present: Frelinghuysen and Simpson.
    Staff present: Charlotte Baker, Press Secretary; Michael 
Beckerman, Deputy Staff Director; Sean Bonyun, Deputy 
Communications Director; Anita Bradley, Senior Policy Advisor 
to Chairman Emeritus; Maryam Brown, Chief Counsel, Energy and 
Power; Aaron Cutler, Deputy Policy Director; Andy Duberstein, 
Special Assistant to Chairman Upton; Garrett Golding, 
Professional Staff Member, Energy and Power; Dave McCarthy, 
Chief Counsel, Environment/Economy; Katie Novaria, Legislative 
Clerk; Chris Sarley, Policy Coordinator, Environment and 
Economy; Peter Spencer, Professional Staff Member, Oversight; 
Tiffany Benjamin, Democratic Investigative Counsel; Alison 
Cassady, Democratic Senior Professional Staff Member; Greg 
Dotson, Democratic Energy and Environment Staff Director; and 
Caitlin Haberman, Democratic Policy Analyst.
    Mr. Shimkus. I would like to call the hearing to order and 
try to move promptly as scheduled. Welcome to the 
Commissioners. I also, before I start with my opening 
statement, I would like to recognize and acknowledge 
Congressman Rodney Frelinghuysen from New Jersey who is the 
cardinal in the Appropriations Committee, Energy and Water. He 
is watching to see if we actually work, so we will show you 
that we do a lot of work here, Rodney. Welcome.

  OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF ILLINOIS

    And now I would like to recognize myself for my 5 minutes. 
Nuclear power is vital to our economy, particularly in my home 
State of Illinois, which boasts 11 operating nuclear reactors 
at six different locations. That is why the Nuclear Regulatory 
Commission plays a crucial role in ensuring that we meet our 
current and future energy needs without sacrificing safety or 
security. Licensings of new plants and new reactor designs, 
relicensing existing reactors and considering the Department of 
Energy's application for a license to develop and operate a 
repository or storage site for spent fuel and high-level waste 
that is away from reactor sites are all issues that the NRC 
Commissioners are called upon to weigh and decide using their 
best information, judgment, and expertise.
    No one wants the NRC to rubber stamp any of these license 
applications. We want the NRC instead to give each one the 
careful scrutiny that it deserves and only approve the 
applications that meet the rigorous safety and security 
standards that the Commission itself establishes. But that 
means we expect the NRC to consider the applications and not 
just sit on them.
    We also expect all Commissioners to be fully engaged in the 
policy decisions before the NRC, and right now, we are not 
convinced Chairman Jaczko is respecting the roles of his fellow 
Commissioners as he should. This is deeply concerning to this 
committee and should be to the nation as a whole. For any 
amateur mind readers out there on or off the Commission, I want 
to be clear: Do not read into any of my remarks or questions a 
preference for a particular thumbs-up or thumbs-down on any 
adjudicatory matter before the Commission.
    You Commissioners have the expertise. I only ask that the 
Commission follow its own established procedures, take up the 
work federal law assigns to you, and, when data are in, come to 
some explicit and timely resolution. I am not confident we are 
getting that today.
    With that, I want to welcome all the Commissioners here 
with us today and look forward to hearing more details on their 
individual roles and the process for decision making at the 
Commission. And I would like to yield my remaining time to my 
colleague, Mr. Whitfield from Kentucky.
    [The prepared statement of Mr. Shimkus follows:]

    [GRAPHIC] [TIFF OMITTED] T1667.001
    
    [GRAPHIC] [TIFF OMITTED] T1667.002
    
  OPENING STATEMENT OF HON. ED WHITFIELD, A REPRESENTATIVE IN 
           CONGRESS FROM THE COMMONWEALTH OF KENTUCKY

    Mr. Whitfield. Thank you very much, and I also want to 
welcome the Commissioners to be here with us today. We look 
forward to your testimony, and all of us are very much 
concerned about what has happened in Japan as it relates to 
nuclear power, and we recognize that you have a very important 
role to play in guaranteeing the safety as much as possible of 
the nuclear power plants in the U.S. so that the American 
public feels comfortable that we do have a safe system.
    We also recognize that with increasing electric demand in 
this country, increasing by 50 percent by the year 2035, 
nuclear power is going to have a vital role to play. And as a 
part of that, how we get rid of the waste is another important 
issue.
    And so I would like to reiterate what Chairman Shimkus 
said, and that is that it is important that some decision be 
made at the NRC in a way that all of us clearly understand 
because when we have spent billions of dollars on the Yucca 
Mountain Project, for example, and then we have contractual 
obligations with nuclear power plants that we will get rid of 
their waste, and they are filing lawsuits against the 
government and obtaining judgments against the government in 
the billions of dollars, this is an issue that needs to be 
resolved in some way.
    And so I look forward to hearing your testimony about the 
procedures used at the agency to deal with significant issues 
like this. And although it is not--well, I will yield. The 
gentleman from Texas had asked for some time. I yield the 
remaining time to you.
    [The prepared statement of Mr. Whitfield follows:]

    [GRAPHIC] [TIFF OMITTED] T1667.003
    
    [GRAPHIC] [TIFF OMITTED] T1667.004
    
    Mr. Burgess. Well, and I thank the chairman for yielding. 
Last week, I did join Chairman Shimkus on a trip to Yucca 
Mountain, and certainly it was instructive to see the facility 
where so much has been invested by the government and private 
industry. And as has been stated before, after the events in 
Japan, the pressing need for a sustainable, long-term answer to 
our nuclear fuel storage is critical.
    I recently introduced legislation to encourage ideas for 
long-term storage. The Nuclear Used Fuel Prize Act would 
incentive private industry to come up with ideas for long-term 
storage. I hope that this hearing will highlight the need for 
legislation similar to this and ideas that can and will be 
offered to solve the problem of nuclear waste storage so we can 
move forward to a more sustainable future with nuclear energy 
at the forefront of America's Energy Arm of Interium. Thank 
you, Mr. Chairman. I will yield back.
    Mr. Shimkus. Gentleman yields back his time. The chair now 
recognizes the chairman emeritus, if he is ready, Mr. Waxman. 
The chair recognizes Mr. Rush for 5 minutes.

 OPENING STATEMENT OF HON. BOBBY L. RUSH, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF ILLINOIS

    Mr. Rush. Well, I want to thank you, Mr. Chairman, and I 
want to thank the Commissioners for being here today. Although 
the devastating events that happened in Japan have been swept 
from the front pages in recent weeks, and I might add recent 
days, I can assure you that my constituents still have a very 
real concern regarding nuclear safety.
    In Illinois, we house more nuclear reactors than any state 
in the country, and my constituents want to be assured that the 
NRC have in place common sense protocols for mitigating risks 
of nuclear disasters, as well as for seniors to safeguard the 
public in the event that a disaster occurs.
    When I visited the Dresden generating station in northern 
Illinois back in March, I learned that there were some very 
important distinctions in our nuclear safety protocols as 
compared to Japan. But there also was some concerns raised that 
I look forward to addressing here today.
    I was pleased to learn that U.S. nuclear facilities have 
multiple backup systems in place including underground and off-
site locations. However, I do have some concerns regarding the 
placement of NRC resident inspectors and their closeness, I 
might add, in location in relationship to the facility managers 
that they are responsible for monitoring.
    While inspectors must have access to all key data and have 
the appropriate knowledge of the people running these 
facilities, I want to make sure that this familiarity does not 
lead to complacency or does not in any way cloud their 
judgment, their integrity, or their independence.
    Additionally, in Illinois, there are remote monitoring 
systems in place, both inside and outside the plants, that can 
quickly identify irregularities and alert officials in real 
time, which I believe needs to be replicated throughout the 
U.S.
    Another issue that will require a national solution is how 
and where we store the massive 72,000 tons of spent fuel rods 
that a recent AP report found are located at nuclear reactor 
facilities throughout the U.S. I am curious to get your expert 
opinion on whether storing these rods in wet pools or dry cast 
is the safer option for long-term storage. And should these 
rods be stored above ground or in secure underground casts to 
mitigate risks?
    And finally, I also believe we must develop a 
comprehensive, long-term solution for storing these spent fuel 
rods as well as a plan for secure transportation of these rods 
when a location is identified.
    While I believe nuclear power must be a vital part of our 
country's overall energy portfolio, we must ensure that we have 
the best systems and practices in place to safeguard against an 
unforeseen nuclear accident to prevent widespread disaster like 
that which is unfolding in Japan. My constituents in Illinois 
as well as the larger American public expects us to address 
these pressing issues. So I look forward to discussing these 
issues more in-depth with the Commissioners during the 
questioning session. And with that, Mr. Chairman, I yield back 
the balance of my time.
    Mr. Shimkus. Gentleman yields back his time. Chair 
recognizes the chairman of the full committee, Chairman Upton, 
for 5 minutes.

   OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Mr. Upton. Well, thank you, Mr. Chairman. I commend you and 
Chairman Whitfield for holding this joint hearing. I certainly 
welcome all the Commissioners who join us this morning and your 
able and highly dedicated staff who accompany you today. 
Despite your frustrations, you should know that the nation 
certainly appreciates your service.
    NRC must ensure nuclear power plants and other facilities 
under its watchful eye are built and operated safely and 
securely. At the same time, the NRC must ensure that the 
entities it regulates can provide the energy we rely on today 
and will need tomorrow. Safety, security, and economic success 
all depend upon each other.
    For more than 30 years, the NRC with its collegial 
commission structure has met that challenge fairly 
consistently. Commissioners have hailed from both political 
parties in a wide variety of professional backgrounds, and the 
staggered terms have ensured that there is always a good mix of 
veteran Commissioners and fresh, new perspectives to address 
the many challenging policies used that the Commission is 
charged with managing.
    These collegial structures has given us confidence that 
policy decisions made by the Commission, which often have 
safety and economic implications for decades or longer, are not 
subject to the passing political winds of a single 
administrator or even a single president.
    However, I am concerned that the deliberative process 
necessary for the NRC to develop its independence and technical 
judgments may be breaking down. And that has profound 
implications for the public trust in NRC's policy making.
    After a quarter of a century of active involvement in 
nuclear energy policy, both oversight and legislation, I have 
developed an appreciation for the NRC's independent judgment on 
important technical and safety matters. I have never asked a 
Commissioner to vote a particular way, and frankly I would 
never even suggest that I could or should influence how you 
vote on any matter because that is your job, and I respect your 
expertise. But as your authorizing committee chair, I want to 
know that the trains are running on time and all crew are on 
board.
    The NRC should appropriately serve as an independent, 
strong watchdog, actually a pit bull, to ensure safe nuclear 
power, should have all the tools necessary, even one, so that 
there is no chance of a Monday morning quarterbacking down the 
road. But it should not be so deliberative that it prevents any 
nuclear development due to unreasonable cost or delays. The 
industry needs to know the rules and when they comply, they are 
able to move forward.
    We also need to constructively deal with long-term nuclear 
waste. Simply shutting the doors on an already-spent $12 
billion for Yucca is not acceptable, especially with no other 
alternative. We will explore these and other concerns during 
today's hearings and beyond. We will not let up until our 
oversight duties are fulfilled and either the Commission 
convinces us that it is operating the way the Congress 
intended, or we change the law to ensure that it does. And I 
yield the balance of my time to Mr. Barton.
    [The prepared statement of Mr. Upton follows:]

    [GRAPHIC] [TIFF OMITTED] T1667.005
    
    [GRAPHIC] [TIFF OMITTED] T1667.006
    
   OPENING STATEMENT OF HON. JOE BARTON, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF TEXAS

    Mr. Barton. Thank you, Mr. Chairman. I want to thank our 
Commissioners and the chairman of the NRC for being here today. 
As you all know, the NRC has the responsibility to establish 
and enforce the safety and security standards for all civilian 
applications of nuclear technology. It is a congressionally-
mandated mission. It has to license and regulate the Nation's 
civilian use and byproducts, source, and special nuclear 
materials to ensure the adequate protection of the public 
health and safety, to promote the common defense and security 
of the environment.
    To quote some of you, your own Commissioner's statements, 
this is from Commissioner Peter Lyons. ``In my view, without 
the nuclear powers industry's continued perseverance toward 
adequate safety and security, nuclear energy will not play a 
future role, and our nation will have an immense energy 
shortfall.'' It is my understanding that all the Commissioners 
before us today share that view.
    Commissioner--is it Svinicki? Am I close? Svinicki. You 
quoted the Principles of Good Regulation that were issued by 
the Commission in 1991, and I quote. ``There are fundamental 
guideposts to ensuring the quality, correctness, and 
consistency of our regulatory activities.'' You went on to say 
that you believe the principles articulate the standards by 
which the regulated community and the broader public is asked 
to judge the NRC as a regulator and as an institution that is 
charged with ensuring the public trust.
    Back in 1982 when I was a White House fellow at the 
Department of Energy, I worked on a bill which became law 
called the Nuclear Waste Policy Act 29 years ago. It 
established procedures for establishing a permanent underground 
repository for high-level nuclear radioactive waste. 1987, as a 
young congressman, I helped to amend the NWPA to designate 
Yucca Mountain as the only site to be characterized as a 
permanent repository.
    As chairman of this committee back in 2005, I was told in 
no uncertain terms that the NRC would fulfill its mission, 
would look at that proposed license, and would make a decision 
in a timely fashion. Yet here we are today in 2011, and that 
license application is still pending at the NRC and has not 
been acted upon in a definitive way. In this member's opinion, 
that is simply unacceptable.
    I want to thank the Commissioners for being here today but 
point out to my friends on the minority side that we have four 
of the five here, so it is possible to get people to appear 
before this committee. With that, I yield back, Mr. Chairman.
    Mr. Shimkus. Gentleman yields back his time. The chair now 
recognizes Chairman Emeritus Waxman for 5 minutes.

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Waxman. Thank you very much, Mr. Chairman. The mission 
of the Nuclear Regulatory Commission is to license and regulate 
the Nation's civilian use of nuclear materials to ensure 
adequate protection of public health and safety, to promote the 
common defense and security, and to protect the environment. 
Today, we will have the opportunity to hear from four of the 
five NRC Commissioners about their efforts to carry out this 
mission.
    It is an important time for NRC and for America's nuclear 
energy industry. First, the Nation's fleet of reactors is 
proposed to grow. Utilities have submitted license applications 
to NRC to build 26 new nuclear reactors.
    Second, America's strategy for storing nuclear waste is at 
a crossroads. The president has determined that the Yucca 
Mountain Facility is not workable and has created a blue-ribbon 
commission to review alternatives for storing, processing, and 
disposing of spent nuclear fuel and nuclear waste, and that 
report is due out next summer. It will help guide us on how to 
use 21st century technology to safely store the country's 
nuclear waste.
    And third, the world is facing the most serious nuclear 
disaster in decades. NRC is continuing to review the safety of 
American nuclear reactors in light of what happened at the 
Fukushima Power Plant in Japan. It is too soon to say with 
certainty what caused the accident in Japan and what role, if 
any, lax regulatory oversight of the industry played in the 
catastrophe.
    Here in the United States, we are not immune to 
catastrophic events resulting from regulatory failures as we 
saw with the 2008 financial collapse and the BP oil spill. It 
is our duty to learn lessons from the Fukushima disaster and 
close any gaps in our oversight of America's nuclear fleet.
    Mr. Chairman, I thank you for holding this hearing. The 
committee needs to be performing regular oversight hearings 
such as this one, and I look forward to the testimony from 
today's witnesses. And I welcome them today at this hearing. 
Yield back the balance of my time.
    Mr. Shimkus. Gentleman yields back his time. Now again I 
would like to welcome the Commissioners. As Chairman Emeritus 
Waxman said, we have four of the five. One is traveling 
overseas, so that is why we don't have them all. And the 
history of many members of this committee, we probably haven't 
had the NRC Commissioners here for over a decade. It is timely 
that we do it, but we actually put this in place prior to the 
Japan event. We were planning to have you all here. We are glad 
that you are here.
    It is my understanding that one opening statement will be 
made by the Commissioner, and then we will then go into our 5-
minute questions.
    The comment is that the submitted statement for the record 
was a Commission-reported submission. Then everybody else will 
have a chance to make oral remarks. So with that, I would like 
to recognize Chairman Jaczko for 5 minutes.

 STATEMENTS OF GREGORY B. JACZKO, CHAIRMAN, NUCLEAR REGULATORY 
    COMMISSION; KRISTINE L. SVINICKI, COMMISSIONER, NUCLEAR 
 REGULATORY COMMISSION; WILLIAM D. MAGWOOD, IV, COMMISSIONER, 
   NUCLEAR REGULATORY COMMISSION; AND WILLIAM C. OSTENDORFF, 
          COMMISSIONER, NUCLEAR REGULATORY COMMISSION

                 STATEMENT OF GREGORY B. JACZKO

    Mr. Jaczko. Well, thank you, Mr. Chairman, Ranking Member 
Rush and members of the subcommittee.
    Mr. Shimkus. Chairman Jaczko, check the microphone again. 
Make sure it is pulled close.
    Mr. Jaczko. Is it on now?
    Mr. Shimkus. Yes, sir.
    Mr. Jaczko. I will start again. Mr. Chairman, Ranking 
Member Rush, members of the subcommittees, the chairman and 
ranking members of the full committee, my colleagues and I are 
honored to appear before you today on behalf of the U.S. 
Nuclear Regulatory Commission. As Chairman Shimkus indicated, 
Commissioner Apostolakis is unable to be here because of 
travel, and he asked me to convey his regrets that he was not 
able to attend today.
    For the first time since 2007, the Commission is operating 
with five members, and I am grateful for my colleagues for 
their experience and expertise that they have brought to our 
discussions and deliberations.
    Since I previously testified before you, I have traveled to 
Japan to convey a message of support and cooperation on behalf 
of the agency to our counterparts there. While meeting the 
demands of the Japan situation, our staff has also remained 
focused on our essential safety and security mission, and I 
want to recognize their tireless efforts and dedication. We are 
very proud of their work.
    The NRC continues to characterize the status of the 
Fukushima site as static. While we have not seen or predicted 
any new significant safety challenges, we have only seen 
incremental improvements towards stabilizing the reactors and 
spent fuel poles.
    Given the devastating conditions at the site due to the 
earthquake, tsunami, and hydrogen explosions, progress, while 
being made, is very challenging as important equipment and 
structures were either damaged or destroyed in the event or are 
not accessible due to high radiation fields. The government of 
Japan and the nuclear industry are providing significant 
resources and expertise to address the situation, and we will 
continue to provide support as needed.
    Our agency has a responsibility to the American people to 
undertake a systematic and methodical review of the safety of 
our domestic facilities in light of the natural disaster and 
the resulting nuclear situation in Japan. This review must be 
coupled with a sense of urgency, however, as there are likely 
lessons to be learned and changes we will need to make.
    On March 21, my colleagues on the Commission and I 
established a senior level agency task force to conduct a 
comprehensive review of our processes and regulations to 
determine whether the agency should make additional 
improvements to our regulatory system. This review will be 
conducted in both the short-term and the longer-term timeframe.
    NRC's primary responsibility is ultimately to ensure the 
adequate protection of the public health and safety of the 
American people. Review of the current Japan information 
combined with our ongoing inspection and licensing oversight 
gives us confidence that the U.S. plants continue to operate 
safely. In the meantime, there has been no reduction in the 
licensing or oversight function of the NRC as it relates to any 
of our U.S. licensees.
    I would like to turn briefly to the recent accomplishments 
and future challenges of the agency. As a relatively small, 
independent federal agency with approximately 4,000 staff, we 
play a critical role in protecting the American people and the 
environment. We currently license, inspect, and assess the 
performance of 104 operating power plants as well as many fuel 
cycle facilities and research and test reactors. Furthermore, 
nuclear materials are in use at thousands of hospitals, 
universities, and other locations around the country. In each 
of these, users present different challenges for the NRC and 
requires that the NRC develop and sustain a diverse array of 
regulatory capabilities.
    The past year has been a challenging time. In 2010, we saw 
an increase in the number of automatic SCRAMS for a second 
consecutive year. At the current time, three plants still 
remain in column three of the reactor oversight process action 
metric, which is our primary tool for providing oversight and 
information about oversight of the facilities.
    We have also seen challenges with human performance and 
material degradation, incidents that have been made more 
significant than we have seen in some time. Recent events serve 
as a vivid reminder that we cannot become complacent and that 
we have not encountered all the different types of natural 
occurrences, equipment failures, and human performance 
deficiencies that could impact safety.
    Over the past year, the agency has made significant 
progress on a number of long-standing issues. The Commission 
revised and finalized the waste confidence rule, providing a 
measure of certainty in an important and high visibility area. 
The NRC has also recently taken steps towards closing out long-
standing safety issues involving fire protection and 
containment sump issues known as GSI 191.
    At the same time, we have proceeded with a number of new 
reactor issues, including moving to public comment the ABWR and 
the AP1000 design certification amendments as well as making 
significant progress on the ASBWR design certification, also 
moving that to public comment, high tech maintenance and new 
reactor risk metrics. In other areas, our staff lead the inter-
agency radiation source protection and security task force. The 
agency completed a comprehensive review of its enforcement 
policy, and we have made substantial progress in evaluating and 
enhancing our alternative dispute resolution program.
    And in keeping with our historic commitment to openness and 
transparency, the NRC implemented the president's open 
government directive, adding new tools to strengthen and 
broaden public input and engagement.
    Currently the NRC is actively reviewing 12 combined license 
applications to construct and operate new nuclear power 
reactors. Five different designs are referenced in these 
applications, and the NRC is currently reviewing the design 
applications for certification or amendment.
    The NRC is also performing safety security and 
environmental reviews of facility applications of uranium 
deconversion facility application and applications for new 
uranium recovery facilities. And as early as late summer, the 
Commission may conduct the first mandatory hearing on new 
reactor licenses since the 1970s. As we all know, issues 
related to Yucca Mountain have garnered considerable attention 
in recent months. The 2011 appropriations bill has been signed 
into law, and it provides $10 million for the NRC staff to 
complete the effort, to thoroughly document the staff's 
technical review, and preserve as appropriate for publication 
and public use.
    Mr. Chairman, Ranking Members Rush and Green, and members 
of the subcommittees, this concludes my formal testimony today. 
On behalf of the Commission, thank you for the opportunity to 
appear before you, and we will be pleased, and I will certainly 
be pleased to answer any questions you may have. Thank you.
    [The prepared statement of Mr. Jaczko follows:]

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    Mr. Whitfield [presiding]. Well, Chairman Jaczko, thank you 
very much for your statement, and we certainly want to give the 
other Commissioners the opportunity to make any remarks that 
they may like. So, Commissioner Svinicki, I will recognize you 
for up to 5 minutes.

               STATEMENT OF KRISTINE L. SVINICKI

    Ms. Svinicki. Thank you, Chairman Whitfield, Ranking 
Members Green and Rush, and members of the subcommittees for 
the opportunity to appear before you today. I appreciate that 
you have granted me a few minutes to express some individual 
perspectives as a member of the Commission regarding NRC's role 
in the important energy issues before your subcommittees. 
Chairman Jaczko has addressed the breadth of the NRC's ongoing 
activities in the written statement he has submitted on behalf 
of the Commission.
    The events at Fukushima in Japan are a sober reminder that 
nuclear technology is unique, and, as I have heard so many of 
my colleagues say since these events, it requires a total, 
absolute, and unwavering commitment to nuclear safety and our 
professional conduct.
    The NRC has initiated a systematic review of these events 
while maintaining its focus on the safety and security of 
nuclear materials and facilities here in the U.S. The NRC staff 
continues its work as well on the many routine licensing, rule-
making and inspection activities before the agency.
    We appear before you today as a commission. In my 3 years 
of service as an NRC Commissioner, I have come to believe that 
the Congress was quite deliberate in creating a commission 
structure atop the NRC, given the complexity of the issues 
expected to be addressed by the agency, and that commissions 
are not created for the purpose of fostering unanimity of 
opinion. Rather, I believe that Congress intends that the push 
and pull of diverse views on any such small, deliberative body, 
such as ours, will hopefully result in outcomes that have been 
examined from different angles, tested through debate and 
argument, and are stronger as a result.
    One such issue before the Commission now and under review 
by this committee is Yucca Mountain. Since October of last 
year, I have been public in my disagreement with the chairman's 
direction to begin the closeout of the NRC's technical review 
of the Yucca Mountain licensing application under the terms of 
the continuing resolution, particularly while an adjudicatory 
appeal related to the secretary of energy's request to withdraw 
the application is pending unresolved before the Commission 
itself.
    I cast my vote in that adjudicatory appeal on August 25, 
2010. The vote I cast was based on thorough study and review of 
the underlying record, including the licensing's board decision 
as well as the substantial briefs filed before the Commission 
by parties to the proceeding. I have a strong conviction for 
the position I have taken, and I have not altered my judgment 
since that time. The Commission has failed to complete final 
agency action on this matter. Nevertheless, I stand ready to do 
my part at any time to bring this matter to conclusion.
    The Yucca Mountain issue is one of many currently before 
the NRC. As I anticipate this hearing will make clear, the NRC 
has an important and decisive role to play in America's energy 
future. The ability of NRC to perform this role is an 
appropriate area of scrutiny as your subcommittees debate the 
agency policies of the country now and into the future.
    In my personal experience, I have found the NRC to be an 
organization of extremely dedicates safety professionals who 
are ever mindful of their important obligations to the nation. 
My objective each day is to be the kind of Commissioner they 
deserve. Thank you again for this opportunity, and I look 
forward to answering your questions.
    Mr. Shimkus. Thank you. And now the chair would like to 
recognize Mr. Magwood for 5 minutes.

                STATEMENT OF WILLIAM D. MAGWOOD

    Mr. Magwood. Thank you, Chairman Shimkus, Chairman 
Whitfield, Ranking Members Rush and Green, and members of both 
subcommittees for providing us an opportunity to speak with you 
today. The timing of today's hearing is apt as there are many 
issues facing the Commission and facing the Nation as a whole.
    Clearly most of the attention in recent weeks has been 
focused on the events in Japan since the devastating earthquake 
and tsunami of March 11. These natural disasters have caused 
immense destruction, and in their wake, some 25,000 people are 
dead or missing and 300,000 have lost their homes. As a friend 
to Japan, I continue to share the sorrow of the Japanese 
people.
    For the NRC, the significant damage suffered by the 
Fukushima Daiichi Nuclear Plant has garnered our attention for 
nearly 2 months. This damage has had significant impacts on the 
lives of many people in Japan and on the environment around the 
planet. Watching these events unfold from far has been both 
very sad and very sobering.
    In my years as an NRC Commissioner, I have been continually 
impressed with the professionalism and commitment of the NRC 
staff. The staff's response to the events in Japan has provided 
just one more example. Within hours of hearing about the 
situation at the nuclear plant in Japan, the NRC staff again 
volunteered to travel to that country to provide whatever 
assistance might be possible. Within a few days, there were 11 
NRC experts on the ground in Japan. Many other staffed the 
agency's operations center around the clock, and others 
answered public call-in lines.
    Meanwhile, during all this activity, most of the staff 
remained focused on their primary mission of protecting the 
health and safety of the American people. This country should 
be proud to have people like that serving in their interests.
    While I believe the prospect of a truly catastrophic event 
has largely passed, Japan faces a long, difficult task to 
address the hazards presented by this damaged facility. Japan 
also faces a very tough challenge in fully absorbing the 
lessons learned from these events, just as we had to learn from 
Three Mile Island.
    I encourage my friends in Japan to examine every detail of 
the events associated with the Fukushima Daiichi Plant in a 
relentless, unblinking, and transparent manner, and to make any 
changes that such a review may prompt.
    I am convinced that U.S. nuclear plants continue to operate 
safely. I also believe that many physical and operational 
improvements, implemented over the years, including those made 
after the terrorist attacks of September 11, 2001 provide 
important capabilities that will help ensure the safety of U.S. 
plants under many adverse conditions. While I believe that most 
of the lessons learned must be learned by Japan, it is clear 
that this Commission would be remiss if it did not review the 
events of Fukushima to determine what lessons, if any, can be 
applied to their operations here in the United States.
    As you have already heard, the Commission has approved the 
formation of an expert task force to consider what lessons can 
be learned from the situation in Japan. In addition, I have 
been pleased to see that U.S. nuclear industry, which I should 
note has also provided substantial support to our colleagues in 
Japan, has also established a steering committee to coordinate 
their review of the events in Japan and consider what changes 
might be made.
    While it is important that we study the details of how 
events unfolded at Fukushima, it is my view that we must also 
assure that the safety forest is not obscured by technical 
trees. While many questions remain about what transpired at the 
Fukushima Daiichi plant, some lessons are being learned right 
now by simply concerning probing questions about current 
practices in the U.S. that are prompted by those events.
    Perhaps the largest lesson I have learned from this event 
has been that nature will often present us with challenges that 
exceed even our most conservative expectations. Given that, we 
must place as much attention on how we recover and mitigate 
disasters as we place on how to resist them in the first place.
    As the United States assesses the events of Fukushima, I 
believe that America's independent regulators are well suited 
to evaluate and respond to the lessons we will learn. I also 
believe that our Commission structure will serve us well as it 
has for many years. The Commission structure both reflects a 
broad policy direction of the elected government and preserves 
the vital independence and credibility of the technical work 
for the agency.
    Our structure also has the development of a highly 
professional technical staff and very stable long-term 
planning, both of which are much more difficult to achieve in 
the standard agency government's model. I have noted in the 
past the other federal agencies might benefit from such a 
structure.
    Therefore, we need responsible individuals in government, 
including members of this agency's congressional oversight 
committees, to protect the NRC's independence and guard against 
any erosion. Given the fluid future, it may be appropriate to 
seek ways to bolster NRC's independent status. Congress, if it 
wishes to maintain an independent NRC, may consider an update 
to our organic legislation and Energy Reorganization Act.
    Congress may also find that it is time to provide 
additional clarity regarding the operation of the Commission 
itself. While I believe that Congress's expectations associated 
with the Commission's roles and responsibilities are well-
documented in the legislation, I think it could be enhanced 
further.
    I also think it would enhance the organization if Congress 
would provide additional guidance regarding the 
responsibilities and authorities of various elements of senior 
staff, independent of the Commission.
    Finally I would like to thank the subcommittee for the long 
and effective oversight of the NRC. You supported the agency's 
growth in recent years as we prepared for the development of 
new nuclear technologies and projects. You have also supported 
our efforts to encourage nuclear technology education.
    As my tenure as Commissioner continues, I look forward to 
working with you to further enhance the working of the NRC as 
we continue our singular mission to protect the health, safety, 
and security of the American people. Thank you.
    Mr. Shimkus. Thank you. The chair now recognizes 
Commissioner Ostendorff for 5 minutes.

               STATEMENT OF WILLIAM C. OSTENDORFF

    Mr. Ostendorff. Thank you, Chairman Shimkus, Chairman 
Whitfield, and Ranking Members Rush and Green. I appreciate the 
opportunity to be before you today. I also appreciate this 
committee's and the subcommittee's interest in the role of 
nuclear energy in our country's energy future.
    I have been a Commissioner for just over 1 year. In that 
time, I have gained a deeper understanding of the NRC's 
licensing and oversight programs and their importance to 
protection of public health and safety in our Nation.
    As a Commissioner, I firmly believe in the NRC's principles 
of good regulation. Independence, openness, efficiency, 
clarity, and reliability. These principles are absolutely vital 
to the proper functioning of our agency. Joining the comments 
of my fellow Commissioner colleagues, I agree with them 
completely that the NRC staff we work with are professional, 
enthusiastic, and committed to ensure that we carry out our 
mission effectively. It is an honor to be part of that NRC 
team.
    Last year, I spent considerable time talking to members of 
the public, anti-nuclear groups, pro-nuclear groups, visiting 
nuclear power plants, facilities, et cetera. And I found 
getting out and about around the country is absolutely 
essential to my performance as a Commissioner. The events that 
have unfolded in Japan at Fukushima Daiichi are significant. On 
the one hand, I firmly believe that our existing 104 commercial 
nuclear power plants in this country are indeed safe.
    The past few weeks we have seen natural events with 
tornados. With the Surry Nuclear Power Plant in Virginia, the 
Browns Ferry Plant in Alabama were both plants that have 
demonstrated their capabilities to safely shut down due to a 
loss of offsite power caused by severe weather conditions.
    On the other hand, I know that the NRC must and will 
conduct a thoughtful and rational examination of our regulatory 
framework as informed by the Japanese lessons learned. Toward 
that end, I am confident that the task force that we have 
chartered will perform a systematic and methodical review of 
our regulatory framework to ensure protection of public health 
and safety. If there are changes to be made, I am sure we will 
make them.
    In closing, I want to thank the subcommittees for their 
interest. I look forward to your questions. Thank you.
    Mr. Shimkus. Thank you. Now the chair would like to 
recognize himself for 5 minutes for questions. Chairman Jaczko, 
this is for the other Commissioners. You have had a chance to 
visit with us already. To the Commissioners, I had an 
interesting discussion of your voting process when the chairman 
appeared before the hearing on March 16. I asked him about the 
licensing board decision denying the DOE's motion to withdraw 
its Yucca Mountain application. I asked if all Commissioners 
had filed votes on the matter. Chairman Jaczko answered, and we 
have the transcript, ``we have filed what I consider to be 
preliminary views that we exchange among colleagues.''
    So I asked Mr. Jaczko, ``Is it your position that you have 
not filed final votes?'' He replied, ``I would consider votes 
more akin almost to prepared statements and remarks of members 
of the Commission. The practice of the Commission is to 
circulate these prepared remarks on any of the things that we 
do, and then based upon those circulated views, we work to see 
if there is a majority position.''
    Now to the Commissioners: Is that the way you describe 
those written votes you file, that they were merely prepared 
remarks? And we start with Commission Svinicki.
    Ms. Svinicki. As I indicated in my prepared remarks, when I 
cast my vote in the high level waste matter in August, it was 
based on a very thorough review of the underlying record, and I 
consider that I took my position at the time that I cast that 
vote in August of 2010. I have not revisited the judgment I 
made at that time or altered the position I took in August.
    Mr. Shimkus. Commissioner Magwood?
    Mr. Magwood. I spent a great deal of time thinking about 
how to evaluate the very interesting and unique issues that 
were presented by the DOE motion. And my conclusion was 
something that I took very seriously and spent a lot of time 
developing. And after working with my staff for quite some 
time, I wrote a very, very lengthy and, I think, quite 
eloquent, if I say myself, vote on the matter. And I really 
have not even considered changing from that. So, no, I consider 
that to be my final personal statement on the matter.
    Mr. Shimkus. So you consider it a vote?
    Mr. Magwood. I consider it a vote.
    Mr. Shimkus. Commissioner Ostendorff?
    Mr. Ostendorff. Chairman Shimkus, I cast my vote on the 
Yucca Mountain legal motion to withdraw decision August 26, 
2010. I did not view that vote as a preliminary set of views or 
initial remarks. I viewed it as a final, concrete, legal 
decision from my own Commissioner office perspective.
    Mr. Shimkus. So they are not prepared remarks. They are in 
essence votes? And I see nodding from the three----
    Mr. Ostendorff. Yes, correct.
    Mr. Shimkus [continuing]. Commissioners that are here. 
Thank you. Chairman Jaczko said that based upon those 
circulated views, you work until you have a majority position. 
Does the NRC have to wait for a majority position?
    Ms. Svinicki. I--if I may, and I apologize for this answer 
in advance, but the Commission's decision is issued in the form 
of an order, and it would be affirmed at a public affirmation 
session. So I would characterize that the--what the Commission 
has been looking at is what form that order would take 
regarding the decision.
    So though all--though I cast my vote and took a position 
that I have not revisited, the votes are not what we issue so 
that the outcome can become publically known. It takes the form 
of a Commission order. And so that is what has been under 
development in the intervening time. But to your question of 
whether a majority is required, I interpret the Commission's 
procedures to permit for an outcome of a Commission that would 
be divided, and that is the instance in which there would be no 
majority. If there were four participating members, a 
Commission could be evenly divided.
    If your question is is that provided for in our procedures, 
the answer is yes.
    Mr. Shimkus. Commissioner Magwood?
    Mr. Magwood. I don't think I can add anything to what 
Commissioner Svinicki said. I agree with her interpretation.
    Mr. Shimkus. That is fine. I think--let me go to my last 
question because I am running out of time myself. Is issuing a 
final decision on DOE's motion to withdrawal a license 
application an NRC priority, yes or no?
    Ms. Svinicki. I can speak only to my personal priority.
    Mr. Shimkus. That is what I am asking.
    Ms. Svinicki. It is a personal priority for me. Yes, sir.
    Mr. Shimkus. Commissioner Magwood?
    Mr. Magwood. I see it as a priority just as many such 
issues are, but, you know, I think it is an issue we will 
continue to work on.
    Mr. Shimkus. Commissioner Ostendorff?
    Mr. Ostendorff. Yes, and I will also add that I have taken 
steps since I cast my original vote to try to get the 
Commission to achieve majority position in order to reach an 
order.
    Mr. Shimkus. Chairman Jaczko?
    Mr. Jaczko. It certainly is a priority, and, I think, as 
Commissioner Ostendorff indicated, we are working to achieve 
the majority position, as he indicated, we do not yet have.
    Mr. Shimkus. But as the previous question identified in our 
comments in March, they are assuming votes have been cast, and 
they can make a decision. It doesn't have to be a majority 
view. And I yield now to Mr. Green for 5 minutes.
    Mr. Waxman. Mr. Chairman, I am going to----
    Mr. Shimkus. I am sorry. Chairman Emeritus.
    Mr. Waxman. With the courtesy of the two ranking members on 
the subcommittee, they allowed to go ahead of them because of a 
conflict issue.
    Chairman Jaczko, our subcommittee chairman, Chairman 
Shimkus, has alleged that your decisions about Yucca Mountain 
are ``illegal'' and ``politics at the highest level.'' So I 
want to ask you about these assertions. The Commission has 
provided thousands of pages of documents to our committee 
relating to the NRC's review of the Yucca Mountain license 
application.
    We have examined these documents, and by and large, I don't 
believe they support Chairman Shimkus's allegations. The 
documents show that you closely consulted with the NRC General 
Counsel before making any decisions, but it does appear that at 
least one individual on the NRC staff had concerns regarding 
the Yucca Mountain license application withdrawal. On October 
18, 2010, Dan Grazer, the administrator for the licensing 
support network, sent an email to Judge Roy Hawkins, the chief 
administrative judge of Atomic Safety and Licensing Board 
Panel. Mr. Grazer is in charge of the data management system 
for the Yucca licensing proceeding.
    In this email, Mr. Grazer states ``I believe that the 
action directed by the CFO, executive director of operations, 
and chairman, to begin shutdown of the high level waste 
program, in addition to being inconsistent with the last public 
agency decision on the matter and inconsistent with 
authorization, language and appropriations, language for both 
fiscal year 2010 and 2011 is a violation of the Nuclear Waste 
Policy Act and illegal.''
    Chairman Jaczko, Mr. Grazer is claiming that you violated 
federal law by directing staff to close down review of the 
Yucca Mountain license application. Are you aware of Mr. 
Grazer's allegations?
    Mr. Jaczko. I have seen the email that you are referencing.
    Mr. Waxman. Do you agree with this assessment that it was 
illegal to stop the review of the Yucca Mountain?
    Mr. Jaczko. No, I do not.
    Mr. Waxman. The NRC has produced other emails from Mr. 
Grazer. Chairman Jaczko, I would like to ask you about another 
one. On September 7, 2010, Mr. Grazer sent an email to another 
NRC employee stating that a Yucca Mountain report called SER 
Volume 3 ``may not get out the door before election day. 
Chairman stonewalling on the decision may be effective as there 
is means by which read gets no bad news before election day.'' 
Mr. Grazer appears to be alleging that you delayed action on 
the Yucca Mountain report for political purposes. And again 
this is a serious allegation. Chairman Jaczko, what is your 
response to Mr. Grazer's application?
    Mr. Jaczko. I made a decision to have the staff stick to 
the timing that they had previously indicated for the release 
of any of the documents related. It was in no way a political 
action or intended to reference any other political figure or 
direction from any other political figure.
    Mr. Waxman. Your fellow Commissioners with you today say 
that they already voted on this matter, as I understand their 
testimony. Mr. Grazer's assertions are similar to those of 
Chairman Shimkus. Do you believe they substantiate his claim 
that you acted illegally or for political reasons?
    Mr. Jaczko. No, I do not.
    Mr. Waxman. Do you want to give us an explanation? Do you 
want to talk further about this matter?
    Mr. Jaczko. Well, as I said and what I indicated previously 
to the committee, the way the Commission's voting process works 
is we circulate these votes. The votes are then for all of us 
to consider, as you have heard from some of my colleagues. Some 
of them do not intend to perhaps change their positions. That 
then makes it difficult to come to a resolution on the matter 
if Commissioners are not willing to work to come to compromise 
and move forward in a way that we can have an order for the 
Commission.
    So that continues to be the effort that we are engaged in, 
is to bring that matter to conclusion. But it is not uncommon 
for the Commission to have matters in front of it that take 
time to resolve because the process that the Commission uses is 
a written notation voting process. It is not a formal voting 
session where we come to conclusion at a specific time.
    So all the actions that we have taken, I believe, are fully 
consistent with the procedures and policies of the Commission. 
And Yucca Mountain is a complicated issue. There are 
complicated legal questions in front of us, and we are taking 
the time to thoroughly review those and make sure we make a 
good decision.
    Mr. Waxman. As I understand the Yucca Mountain issue, it is 
not a question of voting on Yucca Mountain's application as 
submitted by the DOE. DOE has withdrawn that application. Is 
that----
    Mr. Jaczko. That is correct.
    Mr. Waxman. So the question is whether they have the 
ability to withdrawal the application?
    Mr. Jaczko. The question in front of the Commission is, 
one, whether or not we would review a decision made by a 
licensing board at the Commission, and then, if we did decide 
to review that, whether, in fact, we would agree or disagree 
with that decision to allow DOE to withdraw the motion?
    Mr. Waxman. And you feel you are following the proper legal 
procedures.
    Mr. Jaczko. Correct, and on a separate track, we are--
because of the budget situation, we are working to close down 
our review of the application. And that was based on a decision 
that I made in early October, which was fully consistent with 
appropriations law, with GAO guidance, with circulary 11 and 
all the relevant guidance for dealing with a continuing 
resolution and the way we process our budget in that regard.
    Mr. Waxman. Thank you very much.
    Mr. Shimkus. And I thank you. Yields back his time. Chair 
now recognizes the chairman of full committee, Mr. Upton, for 5 
minutes.
    Mr. Upton. Well, thank you, Mr. Chairman. I just want to 
say a couple of things before I get to our questions. There is 
a lot of interest on Yucca Mountain, as you know. We have had 
some private discussions, and we are beginning an 
investigation. And this is--today's hearing is not going to be 
the end of this.
    We are going to pursue this with both of our subcommittees, 
Energy and Power as well as the Environment and the Economy, as 
well as the Oversight and Investigations Subcommittee. We have 
asked for a whole series of documents from both DOE as well as 
the NRC, and we are just starting to scratch the surface in 
terms of where we are. And we look forward to pursuing that. We 
look forward to your cooperation as we begin to ask questions, 
and this will not--this is not ending today. That is for sure.
    I have a couple questions. Chairman Jaczko, as you know, 
Secretary Chu has made it a very high priority for DOE to 
support deployment of a small modular reactor by 2020, perhaps 
even earlier than that. These SMRs offer improved financing to 
the rate payers but also offer the most advanced safety 
features. I understand that the TVA is working to build as many 
as six of these lightwater SMRs. I would like to get your 
perspective on these in terms of their safety benefits, the 
licensing path forward, as well as what is your plan to carry 
on the Fukushima lessons learned activities to continue the 
licensing activities on these promising reactors?
    Mr. Jaczko. Well, currently we have been in close contact 
with the Department of Energy as they develop their plans for 
supporting small modular reactors. We are anticipating the TVA 
submitting a construction authorization next year, probably 
sometime the middle of next year. We are budgeted and prepared 
to review that application. That would be for a small modular 
reactor.
    At the same time, we are preparing as well to review other 
designs that are also small modular reactors. And we are 
prepared to do that. And we have the resources, again, subject 
to congressional approval in the fiscal year 2012 year.
    So I think we are in the good place to review those. The 
Commission recently held a meeting. Unfortunately I was in 
Japan at the time, but at that meeting, we discussed several 
policy issues that are related to the small modular reactors. 
And I believe we are on target to address those issues and be 
prepared to process those applications.
    Mr. Upton. So is it your expectation that, in fact, the 
TVA--or the desire to have these in place and done by the end 
of this decade is an achievable goal?
    Mr. Jaczko. Well, I certainly think the agency is in the 
position to do our part. Anytime you are dealing with the 
review of an application, it is an activity that involves many 
parties including the applicants. So assuming that they are 
able to provide a good, high-quality application, that they are 
able to provide the budgets to support that application, we 
believe we have the resources to review it.
    I would add--I think you mentioned interest in Japan--we 
are moving forward with two reviews to look at the situation in 
Japan. And if we do get information that comes out of it that 
tells us we need to make changes, we will make whatever changes 
are necessary, whether it is an existing facility or an 
application under review, such as a small modular reactor.
    Mr. Upton. For the Commissioners, are you confident that 
all of you are receiving the information that you need to do 
your job from the staff? Is there an equal sharing of 
information that all of you are able to have to make a 
decision?
    Ms. Svinicki. To the extent that the question raises the 
do-you-know-what-you-don't-know aspect, it is a little bit hard 
to answer. But post Three Mile Island when the Congress 
rejected a single administrator structure, it did emphasize the 
importance of all Commissioners having access to information in 
existence at NRC at the same time. So it is a very important, I 
think, objective and goal of a Commission's structure. It is 
difficult to discern if I have access to everything when I am 
not sure what might or might not be in existence.
    But it is something that I am fairly strident on asserting 
my right to see information in existence at the agency.
    Mr. Upton. So, you do feel that you get the proper 
information and--I mean have you been denied information?
    Ms. Svinicki. Information can be in different states of 
finalization, and so--I think there has been a back-and-forth 
between my office and the agency staff occasionally on when it 
is most appropriate for them to share their work product with 
me. So I don't want to say it is a straightforward every single 
time I ask for something. It may be that there is a little bit 
of push-back in terms of the work product not being ready for 
me to look at it.
    Mr. Magwood. Like I said, I would say as a general matter, 
I am able to receive information I need to make decisions. I 
mean I think, as Commissioner Svinicki indicated, there have 
been occasions where, for one reason or another, information 
hasn't been forthcoming, but I think the majority of times, if 
I ask for something, I get it immediately. So as a general 
matter, I think I am able to get information required to do 
what I need to do.
    Mr. Ostendorff. I would add that by and large, I do receive 
the information I feel like I need. There have been some 
problem areas that I have pointed out, either through my staff, 
our staff, or the chairman's office. I have had a couple of 
issues with how policy matters are brought before the 
Commission from the staff, and I have communicated those to the 
chairman in his office.
    Mr. Upton. Thank you. I know my time has expired.
    Mr. Shimkus. The chair now recognizes Ranking Member Green 
for 5 minutes.
    Mr. Green. Thank you, Mr. Chairman. I ask unanimous consent 
that my statement be placed in the record. Mr. Chairman.
    Mr. Shimkus. Without objection, so ordered.
    Mr. Green. Let me just touch on the Yucca Mountain issue in 
the budget. There are some of us who are concerned that the 
decision made to shut down, you know, after we spent $14 
billion, and ultimately our country is going to need some type 
of long-term waste disposal facility for high-level nuclear 
waste.
    Mr. Chairman, let me ask you though. The continuing 
resolution that this house passed just recently last month on a 
bipartisan basis, the budget to avert the government shutdown, 
the budget zeroed out funding for Yucca Mountain and Department 
of Energy and appropriated $10 million to the NRC to close out 
the license review. Is that correct?
    Mr. Jaczko. Yes.
    Mr. Green. OK, now whatever happened before that or last 
fall or anything like that is actually moot because it is our 
job, if we have a difference of opinion, to provide 
appropriations to make sure we continue that. And, you know, we 
have a really nice hole in a mountain out there that somewhere 
along the way we are going to need to have a facility for our 
country for those rods because we continue to expand. And I 
know there is--we have had some success in keeping them on 
site, but that is not going to be a permanent solution. So we 
will need to deal with that, and it sounds like Congress needs 
to work at that.
    Let me get to another issue. Our subcommittee in 
Environment and Economy has chemical safety or CFATS 
legislation. Yesterday, five men were arrested outside a 
nuclear waste processing plant in England and detained under 
the UK's terrorism act. While we are still learning more about 
the facts surrounding their arrests, incidents like those 
reinforce our need for safety and secure nuclear security 
infrastructure.
    Chairman Jaczko, what mechanisms does the NRC currently 
have in place to handle terrorism threats at U.S. nuclear 
facilities?
    Mr. Jaczko. Well, we have a very, I think, comprehensive 
and sophisticated program to deal with security. It starts with 
our requirements on the nuclear power reactors. They are 
required to have very robust security programs. We test those 
security programs with actual simulated attacks on the 
facility, and that is done for every facility once every 3 
years.
    As part of our normal inspection activities, we inspect all 
the security systems on a periodic basis to ensure the cameras, 
the detection systems work.
    Mr. Green. Does that include unannounced visits?
    Mr. Jaczko. That is part of our normal inspection process, 
and generally some of that work is carried out by our resident 
inspectors who are at the site. And they will pick and choose 
some aspects of their review to look at certain areas. And they 
do that often on an unannounced basis.
    Mr. Green. Since I only have a couple minutes, in the last 
few days, has NRC increased its focus on nuclear security?
    Mr. Jaczko. We have kept a vigilant look at nuclear 
security, and as we get additional threat information, we will 
periodically communicate that as appropriate. But at this 
point, there is nothing immediately that has caused a 
significant change in the security posture for our facilities.
    Mr. Green. Under our current system, NRC facilities are 
exempt from Homeland Security chemical facilities anti-
terrorism standard or CFATS regulations, which establish high-
risk based performance standards for security of high-risk 
chemical facilities. It is my understanding that the NRC and 
Homeland Security has entered into a memorandum of 
understanding regarding security of high-risk chemical 
facilities and high-risk chemicals at NRC-regulated facilities.
    Can you explain what the memorandum of understanding says 
between NRC and Homeland Security?
    Mr. Jaczko. Well, what that memorandum of understanding is 
for is that some facilities where there is dual authority, 
namely facilities that may have nuclear material and chemical 
hazards, that those facilities would be regulated under the 
NRC's program. We are constantly working to make sure that that 
is capturing the spirit of the law that currently exists, which 
provided an exemption for facilities that have nuclear 
material. So that memorandum of understanding is to make sure 
that we don't have a loophole in coverage and protection for 
those facilities that have both nuclear and radiological 
material--I am sorry, chemical and radiological material.
    Mr. Green. OK, I have some concern the MOE goes beyond the 
authority and still allow CFATS exemptions for the entire 
facility. A good example is if a facility has a nuclear 
reaction and a high-risk chemical storage tank under the same 
site, under the current scheme, NRC is only required to 
regulate the reactor. Nevertheless, the entire facility 
including the storage tank is exempt from CFATS, leaving that 
high-risk chemical storage tank exposed to potential terrorism. 
The exemption issue is significant, and I hope we can close 
that gap to make sure the regulation--the issues with the 
chemical security markup. We have one this afternoon on 
extending that, but that is something that we need to consider 
in any information the NRC could get to us to make sure it is 
seamless on those facilities that are covered under CFATS even 
though there is an exemption would be appreciated.
    Mr. Jaczko. We will certainly provide that, and we have 
been in discussion, I think, with the committees drafting that 
legislation to make sure that we achieve the same goal that you 
are looking at, which is to make sure there is no gap in 
coverage between facilities like that.
    Mr. Green. OK. Thank you, Mr. Chair.
    Mr. Shimkus. Gentleman yields back his time. Chair now 
recognizes the gentleman from Kentucky, Mr. Whitfield.
    Mr. Whitfield. Thank you very much. I also would like to 
revisit the Yucca Mountain issue simply because of the money 
that has been involved in it and the ramifications that 
decision or nondecision has on our country. From the testimony 
that I heard from the three Commissioners, all of you indicated 
that you, in your own mind, felt that you had issued a vote on 
whether or not to uphold the construction authorization's 
board's decision.
    And it was also said that in order to have a final order at 
the agency, there had to be a Commission order. So if the three 
of you, in your mind, voted on this issue, we know that one 
Commissioner recused himself. So my question is if people have 
voted, who makes the decision that there be a Commission order 
issued? Any of you can answer.
    Mr. Jaczko. Well, Mr. Whitfield, that is generally the 
process that we usually follow. We have what is called an 
affirmation notice, which is an official notice that goes out 
indicating that we are ready to move to a session, to actually 
weigh in on this order. That is done by the Commission itself, 
and when we have an approval of that affirmation, that is 
usually when we proceed to go forward. And so that serves as 
the proxy to indicate that the Commission itself has come to 
resolution and come to an agreement on an order and that we are 
willing to go forward.
    But it is ultimately the Commission that makes the decision 
about the order.
    Mr. Whitfield. But from Mr. Shimkus's reading your 
testimony earlier, it would indicate that they feel like they 
voted on this issue, and from your perspective, they did not 
vote on this issue. Is that correct?
    Mr. Jaczko. Again, I think as I tried to explain at the 
time, votes have been cast. Those votes are not the final 
action. Some of my colleagues have circulated compromise 
positions as part of the post-voting action to work to bring us 
to resolution. So I appreciate the views that my Commissioners 
have expressed. However, it does not mean that because we have 
all the votes cast that we are ready to move to an order, and 
at this point, we are not.
    Mr. Whitfield. So are you the one that makes that decision?
    Mr. Jaczko. I am not. The Commission as a whole makes that 
decision.
    Mr. Whitfield. But they said that they voted already.
    Mr. Jaczko. That is correct, and that is different from the 
order that is the final action when it comes to these 
adjudicatory matters, which is what I explained to Mr. Shimkus. 
And I think as you hear Commissioner Ostendorff say, we are 
working to get a majority on that particular order.
    Mr. Whitfield. During the events in Japan, Chairman Jaczko 
enunciated a policy that people living within 50 miles of the 
damaged reactors in Japan should evacuate. Now, that really 
created an uproar, I might say, not only in Japan and 
elsewhere, but also in the U.S. because I think we have a 10-
mile evaluation area in the U.S.
    So my question would be on an issue like that, did the 
Commission vote on that, or was that just a unilateral decision 
that you made yourself?
    Mr. Jaczko. That was a decision that was made based on a 
staff recommendation at a time when we were responding to an 
emergency situation in Japan. That action was fully consistent 
with existing U.S. standards for how we would deal with 
comparable situations. I moved forward with that decision and 
made that recommendation to the ambassador ultimately in Japan.
    Mr. Whitfield. OK, so that was your decision based on staff 
recommendation?
    Mr. Jaczko. Absolutely.
    Mr. Whitfield. OK, now it is my understanding that the 
Energy Reorganization Act gives the chairman certain emergency 
powers at certain times. And it is also my understanding that 
that has never been--that that has been put into operation only 
once, and that was 9/11/2001.
    Did you exercise emergency authority in the Japanese issue?
    Mr. Jaczko. From the day that I became chairman, I have 
emergency authorities for all events that--all emergency 
situations that could occur that fall within the NRC's 
responsibility.
    Mr. Whitfield. So there is not any mechanism that you have 
to go through to exercise that?
    Mr. Jaczko. That is correct. We don't make a formal 
declaration. Now, the only time where there is an actual, I 
guess, some type of declaration is when I transfer those 
authorities to another Commissioner. That is always done in a 
memo. Or to a member of the staff, whoever is receiving the 
authority. So we transfer that in a memo so that there is a 
clear indication of who has the authority. But the intent of 
the Energy Reorganization Plan was to ensure that the 
Commission or the agency would make prompt decisions. And so 
all of those authorities of the Commission were vested in the 
chairman in an emergency situation so that you would not be 
taking time to try and determine is this an emergency situation 
or not, and what authorities, and who has what particular 
authorities.
    Mr. Whitfield. And at the operation centers, do all of the 
Commissioners have access to the operation center in the event 
of an emergency?
    Mr. Jaczko. It depends on the situation, and ultimately the 
operation center is under the control of the chairman. And so 
ultimately I decide who has access to the center and what is 
appropriate for the situation.
    Mr. Shimkus. Gentleman's time has expired. Chair now 
recognizes the gentleman from Illinois, Mr. Rush, for 5 
minutes.
    Mr. Rush. Want to thank you, Mr. Chairman. Chairman Jaczko, 
during my tour of Dresden, I became concerned that there was a 
real possibility that the resident inspector who was really the 
local cop on the beat at these nuclear facilities, that they 
could very easily lose their ability to remain objective due to 
what I perceived as a certain coziness with their facility 
managers and the facility teams that they were responsible for 
overseeing.
    What are the protocols for deploying resident inspectors? 
Where and how are they assigned geographically and 
logistically, and how often do they rotate?
    Mr. Jaczko. Nominally, our resident inspectors serve for 
about 7 years. Seven years is the max amount of time they are 
allowed to stay at any one site. We go through a competitive 
selection process. This is often a very competitive position 
within the agency, and some of our best and brightest 
individuals go on and become resident inspectors. And actually 
it is really a stepping stone to becoming one of the senior 
managers at the agency. We have many former resident inspectors 
who are ultimately some of the top managers at the agency. So 
we are very mindful of the concern that you are looking at.
    Mr. Rush. So they are there for 7 years?
    Mr. Jaczko. Seven years is the maximum.
    Mr. Rush. So they move family and friends to the particular 
geographic location for the most part?
    Mr. Jaczko. That is correct.
    Mr. Rush. So they are going to church together, shop 
together, children play on the same team together. Do you have 
any fear that this kind of coziness over this long period of 
time might cloud their objectivity and their reliability and 
their integrity, you might add?
    Mr. Jaczko. From what I have seen of the individuals that 
carry out this work, I have very little concern. They are 
incredibly dedicated professionals, and they are, for lack of a 
better word, kind of a thorn in the side of the utilities. They 
investigate what they need to investigate. They don't take any 
direction from the plant employees, other than information that 
might be helpful in an investigation or an inspection. They are 
very objective, but we do keep an eye on it to make sure. It is 
something we want to make sure doesn't ever become a problem, 
and that is part of why we have that 7-year maximum, but we 
have had very little problems with our resident inspectors.
    Mr. Rush. In that 7-year max, isn't 7 years quite a length 
of time though? What is your rationale for the 7 years?
    Mr. Jaczko. You know, it is a timeframe that has changed 
over time. Originally we had a much shorter timeframe, but it 
turned out that it was not actually terribly easy to rotate and 
replace these people on a shorter timeframe. So it is actually 
something that the GAO looked at many years ago.
    And in fact, one of the things that the GAO recommended in 
a report was that we didn't even need a timeframe, that what we 
needed was periodic visits of these resident inspectors back to 
the regional headquarters. So that is something that we 
actually implement. They get together for a brief period of 
time every year at the regional headquarters so it takes them 
out of the plant so we have an opportunity just to kind of 
reinforce to them their responsibilities and their function.
    So right now, the cap is there. It has developed over the 
years, and it has been lifted and gotten longer over time 
because we found that the objectivity is not a problem. But it 
is something we continue to look at, and we will make sure that 
it doesn't become a problem.
    Mr. Rush. Does the NRC have independent sensors or 
monitoring equipment at all of the U.S. facility--nuclear 
facilities, independent sensors? Do we have them at all the 
locations?
    Mr. Jaczko. We do not have any particular sensors. Where we 
get our information is from the licensees. But we have 
unfettered access to any of the licensee information, and so we 
periodically audit and review information that they are 
providing about the status of the plants and material at the 
sites.
    Mr. Rush. Yield back.
    Mr. Whitfield. [Presiding] Gentleman from Texas, Mr. 
Barton, is recognized for 5 minutes.
    Mr. Barton. Thank you, Mr. Chairman. I am confused. I am a 
simple guy. I try to read things black and white, but I 
listened to the chairman's explanation to both Chairman Shimkus 
and Chairman Whitfield, and I don't understand it. So I want to 
try to clarify a few things.
    I want to ask you, Commissioner Ostendorff, is it true that 
in March of last year, the DOE did file a motion with the NRC 
Construction Authorization Board to withdrawal the license 
application? Is that a true statement?
    Mr. Ostendorff. Yes.
    Mr. Barton. OK, and is it also true that the Commission 
directed the board to decide that motion by June of 2010, and 
on June the 29th, 2010, the board denied the DOE motion to 
withdrawal the application. Is that true?
    Mr. Ostendorff. That is correct.
    Mr. Barton. So, by law, the Commission directed the board 
to decide on the motion to withdraw, and on June the 29th, the 
board denied the Department of Energy's motion to withdraw? The 
full Commission has or has not had a vote on that motion to 
deny?
    Mr. Ostendorff. Four or the five Commissioners have voted 
on the ASLB, the Atomic Safety and Licensing Board decision. 
Commission Apostolakis was recused.
    Mr. Barton. OK, so there was a vote, one Commissioner 
recused. The vote was two to two. Is that correct?
    Mr. Ostendorff. Congressman, it would be inappropriate for 
me to comment on the outcome of the votes. I can tell you 
that----
    Mr. Barton. I don't want to know how anybody voted, but--
well, let me ask you this. Was there a definite majority in 
this vote?
    Mr. Ostendorff. There was an outcome of those four votes--
--
    Mr. Barton. Well, it is either four-zero, three-one, two-
two, one-three, or zero-four.
    Mr. Ostendorff. Believe me, Congressman. I understand the 
frustration you are having in asking me this question. I am 
trying to stay consistent with our principles to not comment on 
matters that are subject of ongoing adjudications.
    Mr. Barton. We are not asking how any Commissioner voted. 
We know that the motion to withdraw was denied. Apparently we 
know that the Commission voted on that board recommendation. 
What we don't know is the outcome. Is that----
    Mr. Ostendorff. That is correct.
    Mr. Barton. The chairman, who is an honorable, decent man, 
who has been in my office a number of time and I have great 
admiration for, appears to me to be playing some sort of a 
foot-dragging game--that is my characterization--because he 
thinks on June the 30th, he is going to apparently get a new 
Commissioner that apparently agrees with his position and can 
then issue this order. Now, he is smiling as I say that, but, 
you know, I am a simple guy. But I wasn't born yesterday, Mr. 
Chairman, and that is what it appears to me.
    So my question to you, Commissioner Ostendorff, how do we 
resolve this? I mean it appears to me that we are just playing 
a shell game. My understanding to issue an order is a 
mechanical exercise. You just direct the clerk to put some 
words on paper, and that is it. It is not a policy exercise. Am 
I wrong on that?
    Mr. Ostendorff. Let me approach this, Congressman, if I may 
via a hypothetical. May I approach that might explain an 
analogous situation. As I mentioned earlier when I was 
questioned by your colleagues here, I voted August 26 on the 
DOE motion withdraw issue. My other colleagues at various 
times, they have indicated, have also voted on this matter. So 
four Commissioners at this table have cast votes on this 
matter.
    In order to get to--and the chairman was talking about 
this--in order to get to an order out of the Commission, so we 
have our individual one, two, three, four votes. To get to an 
order that represents the Commission's decision, it requires 
three out of the four of us at this table to agree to common 
language that would go out on an order. That has not occurred 
as of yet.
    I will tell you that my own personal perspective, I have 
advanced drafts of orders that I thought could appropriately 
bring this to closure back on November 5, again on January 18 
of this year. I have not been successful in----
    Mr. Barton. Well, how can you have a vote and it not be 
publically known what the vote is? When we vote, it is up on a 
big board, and then it is put into the Congressional Record. 
And, I mean, we don't have the luxury of voting and then 
waiting two or three months or a year or 2 years before people 
know how we vote. I mean, I don't understand that. Is there 
some secret protocol at the NRC that gives you all the 
authority to vote and not admit to the public how you vote?
    Mr. Ostendorff. The Internal Commission Procedures, which 
are our guidebook analogous to the House rules and procedures 
that you operate with and your specific committee rules, those 
Internal Commission Procedures govern how we conduct ourselves 
during adjudications and a whole host of other procedural 
matters.
    And according to those procedures, it is a matter of 
getting an order out that represents the majority view of the 
Commission.
    Mr. Barton. Well, my time has expired, and my chairman is a 
stickler for regular order. But this isn't going to go away. 
Chairman Upton said it. Mr. Shimkus is concerned. Mr. 
Whitfield, myself. I hope some of my friends on the Democratic 
side. Yucca Mountain is controversial, but it is not 
impossible.
    Mr. Whitfield. Mr. Dingell, you are recognized for--the 
gentleman from Michigan, Mr. Dingell, is recognized for 5 
minutes.
    Mr. Dingell. Sir, I thank you for your courtesy. Members of 
the Commission, welcome to the committee. We need to learn from 
events in Japan. That said, hysteria is both unwise and 
premature. Compare an ancient Japanese reactor built several 
decades ago to reactors to be built in the United States in the 
next decade is like comparing apples to oranges.
    Nuclear power is 20 percent of our baseline and 7 percent 
of our local--rather, of our low-carbon power. If we are 
addressing climate change, we must move forward to a low-carbon 
future. And we need, above all, to take the approach that 
includes clean coal, CCS, nuclear, natural gas, and renewables.
    I remain troubled about the standstill over long-term 
repository for spent nuclear fuel. I am not here to blame you 
for this event. Other circumstances have brought that about. 
After more than 20 years or more, when we have collected $17 
billion from rate payers for long-term storage of nuclear 
waste, DOE has requested that NRC withdraw its application for 
Yucca Mountain, and no funding has been requested this year for 
Yucca Mountain. This is, in my mind, extraordinarily 
irresponsible.
    Now, my questions. Chairman Jaczko, do you intend to 
schedule a vote on DOE's request to withdraw its pending 
application to construct a repository at Yucca Mountain? Yes or 
no.
    Mr. Jaczko. As soon as the Commission has an order that it 
can move forward in, we will move forward with the order.
    Mr. Dingell. Now if so, when will you do that?
    Mr. Jaczko. As soon as we achieve the necessary conditions 
to have an order. I think as Commissioner Ostendorff indicated 
generally what those are, but again I don't want to go too much 
into the detail to preserve these adjudicatory processes being 
like a quasi-judicial process. We don't discuss publically what 
negotiations and discussions are.
    Mr. Dingell. Thank you, Mr. Chairman. Also, Mr. Chairman, 
it is my understanding that last June, the Atomic Safety and 
Licensing Board ruled that DOE did not have the authority to 
withdraw its license application. Is this true?
    Mr. Jaczko. Yes.
    Mr. Dingell. Why did they--why was that ruling made?
    Mr. Jaczko. I can't really comment on that specifically 
because that question is in front of the Commission, and that 
is why we are looking to try and resolve.
    Mr. Dingell. Thank you. Now, members of the Commission, 
welcome to all. These questions to all of the Commissioners. As 
I have mentioned, we have a lot to learn from events in Japan. 
It is important to review existing processes and procedures to 
identify lessons learned and to implement necessary 
improvement.
    That said, the NRC staff has made significant progress on 
many of the combined license and design certification 
applications submitted to date. It appears that several 
applications are now in the final stages of review and could 
soon become a reality. Indicative of this progress is the 
recent final design approval of the ESBWR, the technology 
referenced in DTE Energy's combined license application for 
FERMI 3 in Monroe, Michigan in my district.
    In the past, NRC has projected the general intent to 
complete the combined license and design certification process 
under part 52 in approximately 42 months. Is that so? Starting 
with you, Mr. Chairman, and then other members of the 
Commission.
    Mr. Jaczko. Yes.
    Mr. Dingell. Yes? Our reporter doesn't have a nod button, 
so we got to cooperate with him.
    Mr. Jaczko. Yes.
    Mr. Dingell. Ma'am?
    Ms. Svinicki. Yes, that is correct.
    Mr. Dingell. Sir?
    Mr. Magwood. Yes, that is correct.
    Mr. Dingell. Sir?
    Mr. Ostendorff. Yes.
    Mr. Dingell. Now, is there any reason to assume that that 
timetable might change, chairman?
    Mr. Jaczko. Well, we certainly will continue to move 
forward with the activities on all of the new reactor 
licensing, but if we get additional information from Japan that 
requires us to make a change or to modify our process, we 
will--in my view, I believe we should do that. Certainly leave 
it up to the rest of the Commission to answer for themselves.
    Mr. Dingell. Thank you, Mr. Chairman.
    Ms. Svinicki. I agree with Chairman Jaczko's answer.
    Mr. Dingell. Sir?
    Mr. Magwood. I generally agree with that answer as well. I 
guess I would also indicate that, you know, we are also 
evaluating a petition that has been filed by a variety of 
public groups that have asked the Commission to consider 
delaying some of these applications. But, you know, we are 
still looking at that. We haven't made any decisions on it, but 
we have instructed the staff in the interim to continue moving 
forward with the work to that purpose.
    Mr. Dingell. Thank you, Commissioner. Last Commissioner 
please.
    Mr. Ostendorff. Actually I have nothing to add to my 
colleagues. I agree with their comments.
    Mr. Dingell. Thank you, ladies and gentlemen of the 
Commission. I appreciate your courtesy. Thank you, Mr. 
Chairman.
    Mr. Whitfield. Gentleman from Pennsylvania, Mr. Pitts, is 
recognized for 5 minutes.
    Mr. Pitts. Thank you, Mr. Chairman. I would like to start 
out by thanking each of you for your testimony today. These are 
challenging times, and the work you are doing will play an 
important role in shaping our Nation's energy future.
    There is no doubt that the incident in Japan has brought 
into sharp focus the need for continuous assessment of our 
nation's nuclear power regulations. It would be unacceptable to 
have anything less than the highest standards for our nuclear 
power plants.
    We also need regulations that work. Nuclear power supplies 
20 percent of our nation's electricity needs. If we are going 
to get serious about clean energy and cutting off our 
dependence on foreign oil, we will need to maintain or increase 
this level of production over the next 20 years. So I implore 
you to work together to promote nuclear energy by making sure 
we have the best and safest nuclear plants, the most advanced 
nuclear technology and the safest and most effective way of 
storing spent fuel.
    Now to my questions. Mr. Chairman Jaczko, while the public 
awaits NRC's important resolution of the DOE motion to withdraw 
the Yucca Mountain application, I understand that you directed 
the NRC staff to discontinue review work on the application and 
commence with an orderly close-down of the program. Is this 
correct?
    Mr. Jaczko. It is correct.
    Mr. Pitts. What does the orderly close-out entail?
    Mr. Jaczko. The primary product of that will be what we 
refer to as a technical evaluation report, which is a document 
that will capture a significant portion of the staff's 
technical review and the work that they have done on the 
application. It also involves activities to do knowledge 
capture, knowledge management, to ensure that we retain the 
expertise and the information from the staff who have worked on 
this project and make sure we have a good record of their 
efforts and their activities.
    Mr. Pitts. I would like the other Commissioners to respond. 
Do the other Commissioners agree with the chairman's decision 
to close down the program? Commissioner Svinicki?
    Ms. Svinicki. No, I publically disagreed with the decision 
and the direction issued by the chairman in October of last 
year to begin the orderly shutdown under the continuing 
resolution. I disagree with that position.
    Mr. Pitts. Commissioner Magwood?
    Mr. Magwood. I agree with the chairman's general position 
to begin planning to close out the program because of budgetary 
reasons. We simply didn't have the resources to continue going 
forward. However, I did not agree with all the details about 
what close-out meant, and that is still something, I think, is 
under some discussion.
    Mr. Pitts. Commissioner Ostendorff?
    Mr. Ostendorff. Congressman, I strongly disagree with this 
direction. I took actions in accordance with our procedures to 
issue what is called a COM, a Commission memorandum document, 
on October 6 of 2010. That document requested my colleagues on 
the Commission to take a different direction here, to allow the 
staff to continue to work on the licensing activities until 
there has been a final determination and a legal decision to 
terminate Yucca Mountain. So I disagreed then. I still disagree 
today.
    Mr. Pitts. Has the Commission voted on this issue, Mr. 
Chairman----
    Mr. Jaczko. On the question of--
    Mr. Pitts [continuing.] On the closedown?
    Mr. Jaczko. Yes, it was in reference to Commissioner 
Ostendorff's communication. It was not approved by the 
Commission.
    Mr. Pitts. I would like to ask the other Commissioners to 
respond.
    Ms. Svinicki. I voted to approve Commissioner Ostendorff's 
proposal to reverse the chairman's direction to shut down the 
program.
    Mr. Pitts. Commissioner Magwood?
    Mr. Magwood. I decided not to participate in that 
particular vote.
    Mr. Pitts. Did you vote? Did you say you voted?
    Mr. Magwood. I did not participate in that vote.
    Mr. Jaczko. I don't want you to get too bogged down in the 
procedural niceties here, but from a practical matter, the 
Commission on their vote sheets, they have four options. They 
can approve, they can disapprove, they can not participate, or 
they can abstain.
    So each of those is the options that the Commissioners 
have. This particular vote, there were two--there was 
Commissioner Ostendorff's approval, Commissioner Svinicki's 
support of that, and then the remaining three Commissioners did 
not participate. The end effect was then a notice to 
Commissioner Ostendorff indicating that his proposal was not 
approved by the Commission.
    Mr. Ostendorff. I would like to add, Congressman, a comment 
there just one. My own interpretation is that--and I think the 
chairman has the various options--but not participating, from 
my standpoint, in the vote is not the same thing as saying you 
disagree with the decision that I was advancing in my document. 
So this is just my personal viewpoint that I wanted to add to 
your--to clarify.
    Mr. Pitts. Now, Mr. Ostendorff, you released a memorandum 
in October in which you disagreed with the chairman's budget 
guidance. What was the main point of the disagreement?
    Mr. Ostendorff. Congressman, I strongly disagree with the 
guidance, and I told the chairman that up front. I have worked 
here in the House of Representative as a staff, subcommittee 
staff director and counsel dealing with continuing resolution 
matters. I have been a senior official at the Department of 
Energy where I ran the budget process at the security 
administration. So I have had significant experience dealing 
with CRs for many years in different jobs I have had.
    My experience with the CR is that, unless the new language 
clearly calls out for some special treatment of a program, that 
the prior year appropriation upon which the CR is based 
provides the guidance to agencies as to how to move forward. 
The fiscal year 2010 budget for the NRC had the high-level 
waste program conducting licensing activities. In the absence 
of some congressional direction to change that, I do not 
believe that that needed to be or should be changed.
    I also believe that the conditions that were put forth 
officially to Congress in the fiscal year 2011 budget 
submittal--the budget had not been approved at that time--the 
budget submittal that came from our agency through ONB to 
Congress for fiscal year 2011 said that upon suspension or 
withdrawal of the Yucca Mountain license application, then the 
NRC would commence to shut down operations. Neither of those 
two conditions was met.
    Mr. Pitts. Thank you. My time has expired.
    Mr. Whitfield. The gentlelady from California, Ms. Capps, 
is recognized for 5 minutes.
    Mrs. Capps. Thank you, Mr. Chairman. Chairman Jaczko, thank 
you to you and to all the Commissioners for appearing for this 
hearing today. Chairman, it has been over a month since I 
requested the NRC to stay the license renewal application for 
Diablo Canyon and to work with California oversight experts to 
review new seismic information and mapping. Can you explain why 
the NRC has not answered my request?
    Mr. Jaczko. We currently have in front of the Commission a 
broad request in these formal licensing hearings for the 
Commission to take an action similar to the action that you 
have requested. The Commission is working on----
    Mrs. Capps. When--excuse me. When could I and my 
constituents expect an answer to my letter?
    Mr. Jaczko. The Commission is working to try and get this 
issue resolved, but I would expect it is going to be at least a 
month before we will have some resolution on that broader 
question of the hearing process. But we certainly have it in 
front of us, and we are working to give you a good answer--
    Mrs. Capps. Thank you.
    Mr. Jaczko [continuing]. As soon as we have it.
    Mrs. Capps. I wanted to ask you about the current 
relicensing process. It is focused entirely, it is my 
understanding, on identifying and managing the detrimental 
effects of aging plants and facilities, not on reevaluating the 
threats that form the basis of the plant's original design. Am 
I correct?
    Mr. Jaczko. That is correct.
    Mrs. Capps. Now, our understanding of seismic threats has 
improved dramatically since most nuclear power plants were 
originally designed and licensed 30 or more years ago. And on 
top of that, we are now tragically learning lessons from Japan. 
The one thing we have learned loud and clear is that seismic 
issues must be thoroughly examined and incorporated in all 
design, construction, and operating phases of nuclear power.
    I appreciate that the NRC continuously reviews threats, 
but, as you know, in California, researchers have found new 
flaws close to Diablo Canyon. And it would follow that based on 
what--that plus what happened in Japan, that this information 
should be considered in the relicensing process just as it 
would be in the licensing of a new nuclear power plant. And I 
remind you of the history of the nuclear plant at Diablo Canyon 
when, as they originally were building it, they discovered the 
Hosgri Fault offshore. Had to stop, redesign it to the cost of 
billions of dollars to rate payers, and adjust it based on that 
new discovery.
    So my question, does the NRC have plans to examine seismic 
hazards of nuclear power plants design basis within the scope 
of their relicensing process?
    Mr. Jaczko. Well, the--currently, as you indicated, the 
relicensing process is focused on the aging management 
programs. If there ever were to develop information about new 
seismic information, much as has occurred with Diablo Canyon 
with the shoreline fault, we take that information and we 
process that immediately. And we are currently reviewing the 
analysis that has been done by P. Genie with regard to the 
shoreline fault.
    So we don't wait for the relicensing for that action to be 
taken.
    Mrs. Capps. Well, for example, last month, the NRC's region 
four staff was asked by the California legislature if they 
would withhold releasing their environmental impact report for 
license renewal at Diablo Canyon, and the answer was no. The 
fact is that my constituents want the NRC to immediately stay 
the license renewal application for Diablo Canyon. They want 
you to work with experts within my state to update seismic data 
and mapping for a reactor site that lies within 5 kilometers of 
four active earthquake faults.
    We have time. This relicensing is not due until 2025, and I 
want it entered into the record, if I may ask, the response of 
the USGS to the California Energy Commission when they inquired 
as to the state of seismic research. And I want to quote one 
sentence here. ``Given our current''--this is USGS. ``Given our 
current state of knowledge, we cannot rule out the possibility 
of a rupture on the shoreline fault, triggering a rupture on 
the Hosgri Fault or vice versa.''
    In my opinion, this begs for the use of 3D high-resolution 
studies to be done. And even though P. Genie says they are 
doing them, they are not asking for a stay in the process. They 
want this to continue.
    The bottom line is for the confidence of my constituents, 
and I believe for the American people, and the fact that we do 
want clean energy that nuclear power can give us--I am not 
asking for a shutdown of the facility. But these questions 
could be answered before the relicensing is proceeding any 
further because the situation in Japan looms so large on my 
conscience. And that we have a responsibility in the federal 
government to make sure that there is confidence, that the kind 
of energy we are seeking from nuclear facilities can be done so 
in an extremely safe manner.
    I don't want us to look back on some, God forbid, horrific 
situation at either San Onofre or Diablo Canyon and say we had 
time. I can only imagine what the Japanese people are saying 
now following that tragedy, and we have an opportunity to use 
the latest--I am sorry you are having to hear my strong 
feelings here--that the desire of my constituents and, I 
believe, the American people, to have the latest of technology, 
3D studies, done by an independent third party has every right 
to be fully examined before the licensing process is pushed any 
further.
    That was the substance of my letter to you, and I am using 
this time now to underscore the importance of that for, I 
believe, for our energy policy in this country, but certainly 
for my constituents. And I yield back.
    Mr. Shimkus. Gentlelady yields back, but I want to get 
confirmation. Do you want that letter submitted? Can we look at 
it? I am sure we will, but we want to make sure. We haven't 
seen it yet, so we will take a look at it, and then we will--
and now the chair recognizes Mr. Terry for 5 minutes.
    Mr. Terry. Thank you, Mr. Chairman. Before I get to my 
question, I just want to express an observation here in that--
or a conclusion that I am very disturbed at this Commission. I 
think we have now found the most secretive agency or Commission 
on Capitol Hill. I used to think it was the Federal Reserve, 
but I think you guys take it.
    The level of noninformation from this panel is frustrating. 
Circular discussion and just, in normal human nature, when 
there is a void of information, it is filled with some 
information, which leads to conclusions, maybe true or 
misplaced, that perhaps this is a politically-run organization 
now.
    And certainly when we hear of whether or not there is votes 
or no votes or statements and state of approval or nonapproval, 
and you get to say I don't vote, but yet that counts for a vote 
in the chairman's mind is very disturbing. And so one of the 
recommendations I would make, Mr. Chairman, is that perhaps we 
need to legislate transparency into this organization.
    And I am disturbed or concerned that some of my colleagues 
on the other side of the aisle here seems to want to just ask 
non-related questions to the apparent dysfunction of this 
Commission and its Commissioner, or its chairman. But help me 
clarify because I think this is a key component here. On the 
high-level waste program, I want to know when was the policy to 
begin the closeout of the high-level waste program established 
at the NRC.
    And, Ms. Svinicki, when was that established?
    Ms. Svinicki. I do note that the Commission established a 
policy of shutting down the Yucca Mountain program. This gets 
to the interpretation of nonparticipating as an affirmative 
act, meaning that it establishes--it establishes an outcome 
certainly, but I don't believe that having a majority of the 
Commission not participate in a policy proposal results in 
establishing a new----
    Mr. Terry. Which is an interesting procedure that, whether 
it is a tie or three to one or one to three, we will never 
know. Then somehow gives carte blanche power to the chairman to 
proceed as he or she wants to. Mr. Magwood, would you agree 
with Ms. Svinicki's statement that there was no establishment 
of a close-down policy?
    Mr. Magwood. I don't think that the Commission has taken an 
active decision to close down the program. I do think----
    Mr. Terry. But the chairman has.
    Mr. Magwood. The chairman clearly set a direction towards 
close down, and as I indicated----
    Mr. Terry. Mr. Ostendorff--I am sorry to cut you off, Mr. 
Magwood. I just looked up and saw I only have a minute, 14 left 
and two other questions. Mr. Ostendorff, do you feel that this 
policy of close down has been established?
    Mr. Ostendorff. I was informed verbally by the chairman on 
October 1 of the intent to provide the direction that he has 
described, to shut down the licensing activities. My document 
here I am reading from is my COM issued October 6, which I 
tried to convince my colleagues during the pendency of the 
contending resolution, the staff should continue to follow the 
schedule to complete safety evaluation documents for Yucca 
Mountain.
    Mr. Terry. All right, my 40 seconds left, Chairman Jaczko. 
When was the policy to begin closeout of the high-level waste 
program established, how was it communicated to your fellow 
Commissioners and to the public, what are the documents, are 
there transcripts of the votes, and what lead you to this 
decision to close out? And you have 8 seconds.
    Mr. Jaczko. Did I use them up? I--the decision ultimately 
was in a memo. Well, really the first indication was when DOE 
indicated their withdrawal of the application, I believe, which 
is in March of--I am going to get my years wrong--2010, I 
believe. There was a memo that was circulated to the Commission 
indicating that based on the fact that the application was 
being withdrawn, that the staff would be moving into closeout. 
At the beginning of the fiscal year, 2011 fiscal year, a memo 
was issued from our executive director of operations, who is 
essentially the chief operating officer, and the CFO, 
indicating that the staff should effectively begin close-down 
of the program.
    As Commissioner Ostendorff indicated, he then--and I was 
comfortable with that decision in my executive authority as 
chairman of the agency. I was comfortable in that decision and 
moving forward in that way. Commissioner Ostendorff then, as is 
his right, made an argument that that was, in fact, a policy 
issue that should have been considered by the Commission. The 
Commission did not support that. So the policy decision 
ultimately was made with the memo that had my concurrence 
issued in early October. I think you have a copy of that. We 
can get you a copy of that exact memo.
    Mr. Terry. Yield back.
    Mr. Shimkus. We are policymakers. We don't make decisions 
based upon memos. I would like to recognize Diana DeGette for 5 
minutes.
    Ms. DeGette. Thank you very much, Mr. Chairman. Chairman 
Jaczko, I wanted to talk to you for a minute about a concern 
that you know that I have, which is what are we going to do 
with the nuclear waste that we have sitting around at all of 
the sites around the country? Spent fuel was an issue at 
Fukushima when they were trying to control the emissions. And I 
am wondering about what our long-term plans are in this country 
for it.
    As I understand it, we have about 63,000 metric tons of 
spent fuel, including both dry cask storage and the spent fuel 
pulls. Is that correct to your knowledge?
    Mr. Jaczko. About that number, yes.
    Ms. DeGette. And how many years has that built up over?
    Mr. Jaczko. Well, we have some facilities that have been 
operating for over 40 years. So some of that fuel goes back 
that far.
    Ms. DeGette. So it is built up over the period of about 40 
years. And as I understand it, even if we did certify Yucca 
Mountain, that facility, at least according to the original 
plan, was statutorily limited to 70,000 metric tons, correct?
    Mr. Jaczko. I believe that is the correct sum.
    Ms. DeGette. So with 63,000 metric tons sitting around 
right now and 70,000 tons, even if we did certify Yucca, that 
really wouldn't address the long-term problem if we are going 
to develop more nuclear power in this country about what do we 
do about the waste problem, correct?
    Mr. Jaczko. Yes, there certainly would be a shortage of 
storage capacity even with that.
    Ms. DeGette. Right, so my question is, I guess, what is the 
Commission doing, as we think about developing nuclear power in 
the future, aside from all the safety issues and the 
certification and all of that? I mean whether or not you assume 
that we are going to reopen the whole discussion about Yucca, 
what is the Commission doing about planning for long-term 
storage issues around spent fuel?
    Mr. Jaczko. Well, first and foremost, our focus is to make 
sure that the fuel can be stored safely and securely, and right 
now, we believe that it can be. The Commission recently made a 
policy decision about our belief that certainly for at least 60 
years beyond the licensed operation of a facility, that the 
spent fuel can be made, stored safely and securely in a 
combination of wet or dry storage.
    In addition to that, we have asked the staff of the agency 
to look at a longer term timeframe, maybe 200, 300, 400 years 
to make sure that there are no real substantive problems with 
the safety and security of that fuel over that period of time.
    And in addition then, there are efforts ongoing. There is a 
blue-ribbon commission that the Commission is not directly 
involved in, that the secretary of energy convened, to really 
answer that much, much longer timeframe question about what are 
the best ways to deal with this fuel? Whether it needs to be 
reprocessed, whether it can be put into a geologic repository, 
or other some type of other approach for reprocessing or 
recycling.
    Ms. DeGette. So I guess my view would be that I think it is 
important, if we are really going to look at development of 
nuclear energy, not just to say well, we think that we can 
safely store the spent fuel on site the way we are now. We can 
just kick that can down the road for 60 or 100 or 200 years.
    My view would be, as we start to think about whether 
nuclear power really is a viable, either a bridge fuel or a 
long-term fuel, that we are really going to have to have some 
clear idea of what we are going to do. And if that would 
require some appropriations or efforts from Congress, I think 
that is something to do. I think just saying well, you know, 
would it be safe for us to leave all this spent fuel sitting on 
site for 200 years? I don't think that is the discussion we 
should be having. I think we really need to grapple with what 
we are going to do. And, Mr. Chairman, I guess that is all I 
have to say, and I yield back.
    Mr. Shimkus. Gentlelady yields back. For my colleague from 
California, we looked at the letter, and we will accept it 
under unanimous consent. So ordered.
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    Mr. Shimkus. Now the chair recognizes my colleague from 
Ohio, Mr. Latta, for 5 minutes.
    Mr. Latta. I thank the chairman, and I thank the 
Commissioners for being with us today. And I too have got some 
questions as to how things proceed at the Commission. Can I ask 
you right off the bat, when you are voting, is that something 
under regulations or under statute as to how you proceed? Ms. 
Svinicki? I am sorry.
    Ms. Svinicki. Yes, the statute, I believe, references that 
the Commission will develop policies and procedures for how it 
conducts its business.
    Mr. Latta. OK, thank you. And Commissioner Ostendorff, can 
I ask you how would you define collegial voting process?
    Mr. Ostendorff. I would say that that describes an 
environment where each individual can study an issue, can 
engage their colleagues. We typically meet one on one with each 
other every week governed by the government in the Sunshine Act 
requirements, and we can exchange our views and positions in 
informal meetings, and then proceed to cast a vote. This is a 
formal written notation vote under our procedures. And that 
becomes our position on a matter. Then those votes are used to 
hopefully come to a majority position. The Commission can 
announce, in the case of an adjudication, as the results of an 
order.
    Mr. Latta. OK, if I could ask Commissioner Magwood. You had 
said a little bit earlier, and I hope I got this correct. You 
said on some occasions you are not getting the information, but 
the majority of the time you are. And you just heard from your 
fellow Commissioner that you get time to study the issue and 
exchange views and get the information. But if you are not 
getting the information, how can you exchange views properly 
and make a proper decision?
    Mr. Magwood. Well, in the case of matters where we have a 
vote, I don't think there has ever been a case where I have 
been unable to get information to support my ability to render 
a judgment.
    Mr. Latta. OK, and, Commissioner Svinicki, you said that 
there has been times, if I wrote this down properly, you said 
that there have been--it has been pushed back and not being 
ready. Could you explain that a little bit when you are 
getting, like you are getting all the information before you 
have to make a decision? You say you are getting some push 
back?
    Ms. Svinicki. Yes, policy matters come before the 
Commission for its deliberation and voting as a number of ways. 
As we have heard, Commissioners can themselves propose a policy 
matter to be voted on, but the agency staff can also develop 
policy issues and bring them forward to the Commission. When I 
indicated that there is occasionally issues of ripeness or when 
an issue is ready to be brought to the Commission, that was the 
push back that I referred to is if it is an issue arising from 
the agency staff being brought to the Commission for the 
deliberation, it may occasionally be--there may be timing 
issues.
    Mr. Latta. OK, and I wanted to make sure I understood this. 
Commissioner Magwood, when Mr. Pitts was asking some questions, 
you said that dealing with what the word closeout meant, and 
you had a problem with that. Could you explain that, something 
in regards to what closeout meant?
    Mr. Magwood. When the issue of closing out the program 
first came up in the context of the convening resolution, it 
was clear that the language of the previous year's 
appropriation did not clearly authorize closeout of the 
program. But it seemed to me at the time that the fact that we 
had such limited resources, that it was a--as a person who has 
managed government programs, it was in my view a reasonable 
choice to begin planning to go towards a position where the 
program would be out of money by the end of the fiscal year, 
and then we would have to be ready for that.
    Mr. Latta. OK, and then again this is for all 
Commissioners, Svinicki, Magwood, and Ostendorff. On page 12 of 
the chairman's testimony today notes that the 2011 
appropriations bill provides $10 million for the NRC staff to 
complete the effort to thoroughly document the staff's 
technical review and preserve it as appropriate for publication 
and public use.
    Are we to interpret that statement from the chairman to 
mean that the Appropriation Committee earmarked the $10 million 
to mothball the Yucca license review? Commissioner Ostendorff?
    Ms. Svinicki. I do not interpret the Congress's action on 
the funding bill to have directed the NRC to shut down the 
program.
    Mr. Latta. Commissioner Magwood?
    Mr. Magwood. I think that the process to decide exactly 
what we mean by shutdown is a decision the Commission has to 
make, and I have offered a COM to the Commission to try to move 
towards deciding that, but we haven't resolved that.
    Mr. Latta. Thank you. Commissioner Ostendorff?
    Mr. Ostendorff. I agree with Commissioner Svinicki's 
comment.
    Mr. Latta. Thank you very much. Mr. Chairman, I yield back.
    Mr. Shimkus. Gentleman yields back his time. Chair now 
recognizes my colleague from Georgia right next to me, Mr. 
Barrow, for 5 minutes.
    Mr. Barrow. I thank the chairman. Members of the 
Commission, I represent Georgia's 12th District, which is the 
home of Plan Vogtle. Vogtle was, as you may know, the last 
nuclear power plant to be commissioned in this country over a 
quarter of a century ago, and it just happens to be the site of 
the next nuclear power plants to be commissioned in this 
country as a result of many, many things going on right as we 
speak.
    Policy makers at both the state and the federal level had a 
huge role to play in this. At the state level, legislators 
given the owner/operator the permission to start charging rate 
payers long in advance without getting any return on their 
investment. So Georgia rate payers are already paying for the 
construction cost in order to lower the amount of borrowing 
that has to be done to build the thing.
    At the federal level, the last administration signed into 
law and this administration is implementing for the first time 
loan guarantees to reduce the cost of the borrowing that does 
have to take place. So at the both the state and the federal 
level, the rate payers, the policy makers at both levels doing 
everything they can to re-inaugurate or re-jump start the 
nuclear renaissance in this country that is going on right now. 
And we have gotten just about as far down the road as you can 
with preparation before we have to start building the thing 
itself.
    And I want to commend you all, commend you and your staff 
for the role that you all have been playing in this because it 
is a major development. I think the folks I represent recognize 
that Vogtle is a unique and really valuable asset, and they are 
proud about its prospects. And I want to commend you all for 
what has happened thus far.
    What I want to ask about is--and I know we are concerned 
about learning the lessons from the events in Japan. The 
question I have for you all is what can the folks who are 
developing the new sales at Vogtle expect as a result of the 
review of the events in Japan? Mr. Chairman, can you elaborate 
on that?
    Mr. Jaczko. Well, we have--there are really two stages to 
the review. The first stage is a 90-day review. That is about a 
month into that review. So in about another 60 days, we will 
have some preliminary information about possible changes we 
would need to make to our regulations. If there were changes 
that were necessary, those would fall into really one of two 
categories. Changes that are fundamental to safety and changes 
that are really more enhancements to safety.
    If they are fundamental change to safety, then all plants 
would really have to look at those without regard to cost or 
other considerations. If they are factors that involve kind of 
enhancements to safety, then they would fall under our 
provisions that require us to do essentially a cost/benefit 
justification for making those changes.
    So a perspective license application would potentially fall 
under one of those two categories, but the goal is to try and 
get all the work done before we have to make any final 
decisions on these new licenses. But certainly that will be--it 
will be a challenge to get there, but I think we have some good 
people working on it. And I think they understand the 
importance of identifying what the lessons are, identifying 
them early, and then laying out what the changes are that might 
be necessary.
    So we will continue to communicate very well, I think, with 
all of our applicants about possible changes and keep them 
informed as we go forward.
    Mr. Barrow. Anybody else on the Commission wish to 
elaborate? All I will add is--thank for the explanation--is 
just to understand that they are actually building the thing. 
Huge investments have been made. Commitments have been made. 
The rate payers are already paying for something. They haven't 
got a return on their investment yet, and the state and the 
federal governments have both combined and cooperated to try 
and make this possible. So I urge you all to approach this 
review in the most constructive manner possible.
    You decide what is best, and I understand that is where we 
are. And I want to again commend you all and your staff for the 
work that you all have done thus far. And with that, Mr. 
Chairman, I yield back.
    Mr. Shimkus. Gentleman yields back his time. Chair now 
recognizes the gentleman from Texas, Dr. Burgess, for 5 
minutes.
    Mr. Burgess. And I thank the chairman for the recognition. 
My apologies for being out of the room on some of these 
questions. So if I am covering ground that has already been 
covered, bear with me. That is what the committee process is 
all about.
    Chairman Jaczko and any of the other Commissioners who 
wishes to answer, on the budget approved by the Commission, the 
2011 budget approved by the Commission in February 2010 
appeared to set conditions for ending review of the Yucca 
application. Is that an accurate read of the budgetary 
document?
    Mr. Jaczko. The 2012 budget has zero funding for the Yucca 
Mountain review.
    Mr. Burgess. But what about for the year 2011?
    Mr. Jaczko. For 2011, the appropriation approved by 
Congress was for $10 million, which is for closeout of the 
review.
    Mr. Burgess. And the Department of Energy has made a motion 
to withdrawal the license, but that motion was denied by the 
Nuclear Regulatory Commission. Is that correct?
    Mr. Jaczko. A licensing board at the NRC denied that 
motion. The Commission as a whole has not rendered a final 
action, but I would note that those actions are separate from 
the budgetary decisions. The budgetary decision goes to our 
review and ultimately our general activities. So it is possible 
for the agency to close out the review with the legal question 
of withdrawal still outstanding.
    In essence, it would be mothballed and all the documents 
would be frozen in time, as they are. That legal question would 
be frozen in time, but from a practical matter, there really 
isn't that much of a difference, I think, because the 
Department of Energy has no funding. The program has been 
terminated at the Department of Energy at this time, and it has 
been terminated now for over a year.
    Mr. Burgess. Yes, and I will just share with you, having 
been there with Chairman Shimkus last week, I mean I was 
shocked by the lack of activity, the inactivity after such a 
sizable investment. As Mr. Barrow has indicated, the rate 
payers have invested this money. And again I was shocked by 
what I saw. But at this point, the application has not been 
withdrawn. Is that correct?
    Mr. Jaczko. It is still--the application is still in front 
of the Commission, and the question of withdrawal is in front 
of the Commission. But again from a budgetary perspective, we 
are closing out our review and intend to close out by the end 
of this year.
    Mr. Burgess. Well, have the policy conditions been met to 
begin the termination?
    Mr. Jaczko. We have received a congressional appropriation 
for $10 million which is to close out the program. The issues 
about the policy conditions again, we--I have perhaps answered 
this question many times in front of this committee. We have 
reviewed all of the questions and all of the issues that have 
been raised by my colleagues here, and those were ultimately 
reviewed by the Commission in Commissioner Ostendorff's 
communication about whether or not this was the appropriate 
action for the Commission to take.
    And I would note that Commissioner Ostendorff, in a meeting 
that we had in October in front of the entire NRC staff, 
indicated that he had disagreed with the decision. That 
decision was looked at by the Commission, and he ultimately 
respected that the majority of his colleagues did not agree 
with his interpretation. So that issue was put to rest in 
October of that year.
    Mr. Burgess. Well, just so I am clear on this, the budget 
guidance issued by the Nuclear Regulatory Commission in 
February 2010 says ``upon withdrawal or suspension of the 
licensing review, the NRC would begin an orderly closure of the 
technical review and adjudicatory activities.''
    Now, Ms. Svinicki, if I could ask you, you were on the 
Commission when this budget language was debated. Is that 
correct?
    Ms. Svinicki. Yes, I was part of the three-member 
Commission at that time that voted on the budget request that 
you have just quoted.
    Mr. Burgess. And why was that language included in the 
budget document?
    Ms. Svinicki. If I am remembering events correctly, there 
might have been language in the draft budget request that I was 
voting on that had said something about assuming the withdrawal 
of the application. I had in my vote on that budget request 
language revised--proposed to revise that language to upon the 
withdrawal or suspension instead of assuming the withdrawal or 
suspension. And that garnered majority support, and that is why 
it reads as you have just quoted it.
    Mr. Burgess. So the language then is not an accident. It 
was actually voted on by the Nuclear Regulatory Commission?
    Ms. Svinicki. Yes.
    Mr. Burgess. Commissioner Ostendorff, the question I 
previously posed to Chairman Jaczko on the guidance issue in 
February 2010, do you have--and you were a dissenting opinion 
on that?
    Mr. Ostendorff. I was not--Congressman, I was not on the 
Commission in February 2010. I assumed duties April 1, 2010, so 
I was not involved in the decision process that Commissioner 
Svinicki nor Chairman Jaczko were at that time.
    Mr. Burgess. Right, but Chairman Jaczko referenced a debate 
that was voted in October.
    Mr. Ostendorff. Yes, the chairman has accurately stated the 
situation from October of last year where an all-hands meeting 
in Rockville with NRC staff. There was probably 1,500 people 
there. We had acknowledged that--I disagreed with the 
chairman's approach in this, but we had--I respected also that 
my colleagues on the Commission had made a different decision.
    Mr. Shimkus. Gentleman's time has expired. Chair recognizes 
the gentleman from Washington State, Mr. Inslee, for 5 minutes.
    Mr. Inslee. Thank you. We have great concern in the state 
of Washington. We are spending millions plus vitrifying waste 
that has been left over from us winning the Cold War and 
helping the country in that regard. And now we are vitrifying 
this waste, and it is all dressed up with no place to go.
    And it is accumulating, and we are ready to go. And we are 
doing our job in the state of Washington, but we are stuck in 
this situation where Uncle Sam is not fulfilling its statutory 
obligation to open up this repository, and it causes us great 
concern in the state of Washington, both from the standpoint of 
efficiency that we are doing this great work vitrifying the 
waste, and from the standpoint that we have these hundreds, 
over 100 now what are supposed to be temporary sites. This is 
of great concern to us.
    So I just want to ask the chairman my understanding is that 
the NRC staff was reviewing the Yucca Mountain application 
using 2010 funds. It was heading in that direction, and then 
without contrary direction from Congress, when the stop-gap CR 
came in to the 2011, it basically reversed course without 
statutory authority. Is that, in fact, what happened here?
    Mr. Jaczko. No, I don't believe that it what happened.
    Mr. Inslee. And why do you think it was a different 
situation?
    Mr. Jaczko. At the beginning of the 2011 fiscal year, we 
were operating under a continuing resolution. We had had an 
application for the Yucca Mountain project that had been 
withdrawn. At the beginning of that fiscal year as well, the 
program had been terminated by the Department of Energy so 
there is no longer a Yucca Mountain program.
    So at that time, what I did was look at general practices 
for appropriations law for dealing with a continuing resolution 
and made a decision to move to close down of the program. That 
was based on the fact that partially at that time, the Senate 
had approved a reduction in the budget for the NRC and the 
House as well.
    There had been, at I believe a subcommittee level, there 
had been a mark to indicate a reduction in the budget for close 
out. And based on guidance from circulary 11 from the OMB as 
well as GAO guidance, the appropriate and prudent action at 
that point was for us to move to close down activities to 
preserve that option for Congress, which ultimately is what 
Congress wound up approving, which was a dramatic reduction in 
our budget to $10 million while zeroing out the program at the 
Department of Energy.
    So based on all of that, I am confident we took the right 
steps so that we are prepared to complete our action for 
closing out the program by the end of this fiscal year.
    Mr. Inslee. So I would like to put in the record a 
memorandum dated October 8 from Commissioner Ostendorff, which 
basically says, ``I believe that it is inconsistent with the 
intent of the continuing resolution to direct the staff to 
follow direction in the budget request for fiscal year 2011. My 
conclusion comes not only from a plain reading of the 
continuing resolution and applicable guidance, but also from my 
past experience as Principle Deputy Administrator at NNSA and 
as counsel for the House Armed Services Committee.''
    [The information follows:]

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    Mr. Inslee. Now, to me, the only reading I can have of this 
scenario is that there was a decision made here politically 
without statutory guidance. And that is most concerning. 
Commissioner, would you like to comment on this?
    Mr. Ostendorff. Congressman, you have my memo there. We 
have already discussed in the hearing, but just to summarize, I 
had, at that point in time, very strong beliefs that the 
position that I had advocated in my memo was the correct 
position that the Commission should take. I disagreed with the 
direction provided to the staff and used the COM vehicle, this 
memorandum, as hopefully the advocacy document to get my 
colleagues on the Commission to agree with my position, which 
is that the staff should continue high-level waste licensing 
activities until there has been a withdrawal of the license 
application decision or until there has been a decision to 
suspend those activities.
    I was unsuccessful in getting a majority of my colleagues 
to agree to that position.
    Mr. Inslee. Now, the situation is that the Atomic Safety 
and Licensing Board is an independent, trial-level, 
adjudicatory body. They have issued a ruling that the DOE 
cannot withdraw the application. On what grounds can your 
organization ignore that clear adjudicatory ruling that stands 
as of this moment? I just--it just boggles my mind to think 
that they can just be ignored in this regard.
    Mr. Jaczko. Congressman, the Commission has not yet acted 
on that particular matter. The budget issues are a separate 
matter. We will be done with close out by the end of this 
fiscal year. At that time, if those legal questions are 
unresolved, they are unresolved.
    But I would just remind you there is no program at the 
Department of Energy anymore for high-level waste. That program 
and that office were terminated almost two years ago now. There 
is no longer any Yucca Mountain program. So, you know, I think 
that this is the best analogy is a developer wanting to build a 
shopping mall and the fire marshal conducting inspections and 
reviewing fire safety for that particular shopping mall and the 
developer deciding, after two years, to stop work and stop 
developing the project. The fire marshal doesn't still go out 
and tell the developer to keep building so they can conduct 
their licensing inspections. That is the scenario that we have.
    We are not in charge of the Yucca Mountain program. That is 
a Department of Energy program. It has been terminated. It 
ultimately would be a tremendous waste of taxpayer dollars to 
continue to review an application for which there is no 
applicant, and that is the situation we find ourselves in from 
a budgetary standpoint.
    Mr. Inslee. I would just point out that I don't think it is 
the private citizen's right to tell the fire marshal what they 
are doing. That is the metaphor I would suggest. Thank you.
    Mr. Shimkus. Gentleman's time has expired. Chair recognizes 
the gentleman from Louisiana, Mr. Cassidy, for 5 minutes.
    Mr. Cassidy. Thank you. Ms. Svinicki, I am sorry if I 
mispronounce your name. Won't be the first time, I am sure, for 
you. I have been here 3 years, and when you said something 
earlier, way earlier, I asked a question--it is like you were 
asked how much you know, and you replied somehow that no, you 
are really being asked what you don't know that you know. It 
suggested a lack of forthrightness on behalf of the staff. If 
you ask a question, they answer you directly, but they are not 
necessarily generous and contextual with the answer. Is that--
was that a fair characterization of what you said?
    Ms. Svinicki. I would characterize the NRC staff has an 
inclination to be forthcoming to every member of the 
Commission. I think that what they have to do is adjudicate 
issues of rightness and when it is that they would bring 
matters before the Commission. If they desire to do additional 
work, they may suggest to me as an individual member of the 
Commission that the matter is not ripe for me, for my review at 
that time.
    Mr. Cassidy. When you say desire to do individual work, 
what do you mean by a desire to do individual work? Like this 
is an interest that is a personal interest on their part or an 
interest of the Commission or of the chairman? Or do you follow 
what I am saying? I am not quite sure I know what you mean by a 
desire.
    Ms. Svinicki. Desire on my part would be an issue in which 
I have developed some interest as an individual member of the 
Commission. It is not perhaps before the Commission as a body 
but in pursuing oversight of the staff's work, I may develop a 
personal interest in some area that they are working on.
    Mr. Cassidy. I am sorry. You mentioned their desire though. 
How would their desire impact your activities?
    Ms. Svinicki. Perhaps desire is a poor choice of words. It 
may be their evaluation that they should do additional work on 
a matter before it comes to the Commission. It may be their 
expert judgment that there is additional work that they need to 
do prior to the Commission considering it.
    Mr. Cassidy. So you have no problem with how the staff 
deals with your issues?
    Ms. Svinicki. My experience is that the staff is almost 
uniformly inclined to keep the Commission fully and currently 
informed.
    Mr. Cassidy. OK, that is wonderful. Now, there is also a 
letter that, I gather, that when Chairman Issa and another 
committee requested the Volume 3 of the draft Safety Evaluation 
Report of the Yucca Mountain license application. Four of you 
signed a letter, and it is a little cryptic. But I am told that 
reading between the lines, it suggests that the chairman had 
not sent the full report. Or, put it this way, that you wished 
to weigh in that there may be a problem with the report as 
sent. I think this is already in the record. I can give it to 
you if you wish.
    Mr. Shimkus. If you are asking for it, we will look at it 
as we do all----
    Mr. Cassidy. No, I am just----
    Mr. Shimkus. Let me just say that as a factual matter, I 
transmitted that report to Congressman Issa. The particular----
    Mr. Cassidy. Can I ask the other--excuse me, Mr. Chairman, 
but can I ask the folks that signed this what was the purpose 
of the letter? Mr. Magwood, I just don't--I don't understand 
it.
    Mr. Magwood. The Commissioner has a process to formally 
approve correspondence to Congress and the correspondence 
generally. And the Commission had come to some agreement on 
what the transmitting letter would say, and the letter that was 
purposed to be sent was different from what we had agreed to.
    Mr. Cassidy. So the Commission decided upon the content of 
a letter, but the chairman sent a different letter?
    Mr. Magwood. That is correct.
    Mr. Cassidy. Wow, now--wow.
    Mr. Jaczko. Congressman, if I could just add, the----
    Mr. Cassidy. Yes, let me finish with these folks because 
you are very opaque when you speak, Mr. Chairman. But frankly, 
I am getting the sense of a group of folks who don't find a 
collegial atmosphere, but rather find--in fact, I noticed that 
you quoted earlier, you used the personal pronoun ``I decided'' 
regarding the budget. And then ``we issued''----
    Mr. Jaczko. That is correct, as well as other colleagues 
indicated that.
    Mr. Cassidy. You said ``I decided.'' Then you said the 
collective ``we'' as if the ``we'' then signed on.
    Mr. Jaczko. Congressman, I can just provide you a copy of--
--
    Mr. Cassidy. Mr. Ostendorff, what was your feelings about 
the fact that a different letter was sent aside from the one 
that the Commission approved?
    Mr. Ostendorff. I had strong issues, and I, basically 
through my staff, told the chairman's office that we did not 
agree with the version that he had. Four of the Commissioners 
had agreed to a particular version, and a different letter went 
out. And I did not agree with the tone or some of the context 
of what the chairmen sent. So I joined my other colleagues to 
send the letter that you got in your hand.
    Mr. Cassidy. I really get a sense that there is a lot that 
is unspoken here, but in a sense that oftentimes the Commission 
as a whole does not sign on to that which the Commissioner, the 
chairman, decides is going to be the course of the Commission 
as a whole. That the chairman, if you will, informs you after 
the fact and then uses the collective ``we'' when initially it 
was ``I,'' he that made the initial decision. Is that an unfair 
characterization?
    Mr. Ostendorff. I would like to comment if I could on that. 
I think the chairman and his office, I would say, were 
transparent and clear with our office that they disagree with 
the letter we had, the majority had viewed on, that he was 
going to proceed differently. But his staff was, I would say, 
up front, Congressman, in telling us that he had a different 
approach to it.
    Mr. Cassidy. Was that after his initial letter had been 
sent or----
    Mr. Ostendorff. It was final to the final version going 
from the chairman's office.
    Mr. Shimkus. Gentleman's time has expired. Chair recognizes 
the gentleman from Massachusetts, Mr. Markey.
    Mr. Markey. Thank you, Mr. Chairman. First of all, Chairman 
Jaczko, I want to commend you for your commitment to following 
the science and the requirements of law as you have dealt with 
Yucca Mountain and Fukushima and other important matters before 
the Commission. I want to commend you for following the law and 
the science. And I would also like to give you 15 seconds to 
respond to the discussion that was just taking place here so 
you can explain the role of the chairman at the Nuclear 
Regulatory Commission.
    Mr. Jaczko. Well, Congressman, I appreciate that. I think--
I mean ultimately it is my job as chairman to serve as the 
chief spokesperson and also as the chief congressional liaison 
for the agency. So, you know, this is an internal matter in the 
Commission. I think it is unfortunate that we are distracted by 
something like this, with all due respect to the committee 
here. My focus as chairman has been to focus on safety and 
nuclear safety.
    With any collegial body, there are always going to be 
differences, and in regard to the particular letter, the letter 
that I sent expressed my views which are different from the 
Commission on the transmittal of this particular document. I 
offered all of my colleagues an opportunity to send whatever 
additional documents they would like as part of that 
transmittal. None of my colleagues took me up on that 
opportunity, and then after the fact, they decided to send a 
different letter.
    So, you know, I think it is unfortunate that this is where 
we are, but what I care about is nuclear safety. And I will 
continue to do what I think is right in the interest of nuclear 
safety.
    Mr. Markey. Mr. Chairman, it sounds like you made a fair 
offer to the other Commissioners that they rejected. So I 
commend you on giving that opportunity, and perhaps they could 
explain why they didn't take you up on that offer. Seems like 
that was the regular protocol that they should have followed, 
to be honest with you. And I don't know why they are off as, 
you know, independent operators here rather than working with 
in a framework that, it seems to me, is long established at the 
NRC.
    Chairman, Jaczko, on March 21, you proposed a review of 
U.S. nuclear power plant safety in the wake of the Japanese 
meltdown and said that its results would be released 
publically. But Commissioner Magwood then counterproposed that 
it only be released publically after the NRC Commissioners 
voted to approve its release.
    I understand why the Commission should vote on the 
regulatory steps needed, but other safety documents, routinely 
released publically without a Commission vote to enable the 
release of those documents. Do you think it was a better 
procedure for you just to be able to release those safety 
documents so that the public could know what was taking place?
    Mr. Jaczko. I did. I thought this was such a high profile 
and important issue. It was important that the task force that 
we developed have its report provided publically and to the 
Commission for the Commission then to weigh in on. And I am 
pleased to say that in the end the Commission did wind up 
supporting that particular proposal, and I think it is the 
right decision.
    Mr. Markey. Yes, and I strongly disagree with the position 
which Commissioner Magwood took, and I just want to put that 
out on the record. Now, I have also learned from an NRC 
employee that inspectors were told not to investigate whether 
vulnerabilities like the ones that lead to the meltdown in 
Japan existed at U.S. reactors.
    When inspectors complained, that they were then granted 
permission to examine these vulnerabilities but were told to 
keep all of their findings secret and out of the NRC's public 
report. That is unacceptable, and I am asking each one of you 
to commit to me that these inspections will include an 
assessment of all vulnerabilities exposed in U.S. reactors and 
that all the results, except for those that are truly security 
sensitive, will be made part of the public record. Yes or no, 
Mr. Chairman.
    Mr. Jaczko. Yes.
    Mr. Markey. Yes. Commissioner Svinicki, yes or no?
    Ms. Svinicki. The inspections are to our regulations, and 
aside from security findings, will be made public. That is my 
understanding, sir.
    Mr. Markey. OK, yes. Commissioner Magwood, yes or no?
    Mr. Magwood. The inspections are meant to compare plant 
conditions with the requirements as per----
    Mr. Markey. Is that a yes, Commissioner?
    Mr. Magwood. Yes, will be made public.
    Mr. Markey. OK, yes. Thank you. Commissioner Ostendorff, 
yes or no?
    Mr. Ostendorff. I would like to explain. I don't think a 
yes or no answer here is appropriate, Congressman, to be 
responsive. I think there has been a lot of confusion on 
matters that are either safeguards material or related to what 
is called the B5B inspections----
    Mr. Markey. Anything that is security sensitive can be kept 
out. Everything else should be made public. Do you agree with 
that?
    Mr. Ostendorff. I agree with that.
    Mr. Markey. OK, thank you. As you know, the loss of 
electricity was the ultimate cause of the meltdowns in Japan. 
Will the post-Fukushima task force, Mr. Chairman, be looking at 
the question of whether emergency generators should be 
available for spent fuel pools even when there is no fuel in 
the reactor core?
    Mr. Jaczko. Yes, I think that is something we should be 
looking at. And the Commission, in fact, had a meeting on this 
issue of what we call station blackout, which is when all the 
electricity is lost, and that issue came up there as well, the 
need to ensure that spent fuel pools are covered.
    Mr. Markey. OK, thank you. Thank you, Mr. Chairman, very 
much.
    Mr. Shimkus. Thank you. Chair now recognizes the gentleman 
from Virginia, Mr. Griffith, for 5 minutes.
    Mr. Griffith. Thank you, Mr. Chairman. I have to tell you, 
I am just really perplexed. I don't understand your processes, 
and I don't follow it. It doesn't seem to me to be in the 
principles of little D democracy and little R republicanism, 
and I just don't get it. So what I would like to know is I am 
not as concerned about the underlying policy at this moment as 
I am the fact that it doesn't look like we can get policy.
    So where exactly are your rules, and how did you come up 
with if we don't vote, it is a no vote? I mean, I understand 
there may be some procedural mechanism where that is, but how 
do you not participate, but it is equated as a no vote? That 
may be in your rules. Do you have a set of rules, Mr. Chairman?
    Mr. Jaczko. We do, and one of the options is for 
nonparticipation.
    Mr. Griffith. And can you provide those rules to us please?
    Mr. Jaczko. Absolutely, they are publically available on 
our Web site, but we can provide them.
    Mr. Griffith. All right, I will get my staff to get them 
for me as well, but I would like to have those rules entered as 
part of the record because I think it may clarify some of the 
answers we have heard here today, which are hard to believe.
    Mr. Shimkus. Without objection, so ordered.
    [The information follows:]

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    Mr. Jaczko. I think what you will find is that our 
procedures are overly complex. One of the things that I----
    Mr. Griffith. Hang on. I only get so much time. And who 
promulgates these rules? Did you all do that at prior 
commission?
    Mr. Jaczko. Prior commission.
    Mr. Griffith. So you all could fix it?
    Mr. Jaczko. We could.
    Mr. Griffith. Well, why don't you? That would be a nice 
thing to do. And I am disturbed that you would say, Mr. 
Chairman, it is a shame we were being distracted by this 
because the way I heard that, and I am sure what it is not what 
you really meant was, it sure is a distraction to have to come 
talk to the elected officials of the United States of America. 
I am going to give you an opportunity to say that is not what 
you really meant.
    Mr. Jaczko. Of course that is not what I meant, and----
    Mr. Griffith. That is what I thought.
    Mr. Jaczko [continuing]. I have met with many of the 
members of this committee in one-on-one meetings and am always 
available to any members of the committee who would like to 
meet with me or any other members of the Commission.
    Mr. Griffith. And do your rules not allow, like the Supreme 
Court does? Because you have got to make these decisions, and 
apparently a vote was taken. And now you all are arguing over, 
you know, commas and ands and buts. And so what I am trying to 
figure out is why can't you have an opinion that says I agree 
with the majority, a concurring opinion that is somewhat 
different, or a dissenting opinion, and get this decision out 
there because it does appear from the outside that the foot 
dragging is an attempt to try to wait until somebody comes 
along that agrees with you more than apparently whatever votes 
you got behind the scenes. And I am guessing it wasn't a two-
two vote because if it was a two-two vote, you could have 
gotten an order that said we couldn't reach an agreement.
    Mr. Jaczko. Well, again, and I think I can't remember who 
is was mentioned that when you don't have information, there 
gets to be a lot of speculation about motives and other issues. 
And again I can't comment on the particular issue, but as you 
indicated, the Supreme Court is a good analogy here. This 
particular issue is done like a judicial issue where we do not 
deliberate in public. The results are only released with the 
final decision when the Commission comes to that final 
decision. We don't yet have that final decision.
    In all other regards, we strive to make----
    Mr. Griffith. But wouldn't you agree, based on what I have 
heard here today, that you have made a decision. The argument 
is over what to put in the order. So it is not--you are not 
using your rules or you are not allowing--or you are not using 
the analogy of the Supreme Court there because they come out 
with a 5-4 decision, and maybe it is 3 and 2, three thought 
this way and 2 thought that way, but they reached the final 
decision.
    It sounds like to me what I am hearing is you got a 
majority, but then you--because you can't get a majority to 
agree on the specific reason why they reached that conclusion, 
you are not able to issue an order. And so wouldn't it be 
better to go ahead and issue the order with concurring opinions 
as opposed to having us--I mean you all are the people 
responsible for making these decisions.
    This took place--and I am new to this, so I am not somebody 
that has a long history with this. But a decision was made in 
August. It is May, and you all are still arguing over commas 
and jots and tittles. Not acceptable.
    Mr. Jaczko. I appreciate your concerns, and I can assure 
that, from my perspective, the Commission is not arguing over 
the trivial matters that you have discussed. The----
    Mr. Griffith. I don't consider jots and tittles or commas 
and ands and ors to be trivial, but I do think that if a 
decision was made, you all need to get a decision out there so 
the people can start operating based on that decision instead 
of being in the dark as to what you all think should be done.
    Mr. Jaczko. And in my understanding and my view, the 
decision has not yet been made. That is what we are working 
towards.
    Mr. Griffith. Well, I understand that, but a majority of 
the folks here seem to think a decision was made and you are 
just arguing over the language. That is what I have heard here 
today. I thank you, Mr. Chairman, and yield back my time.
    Mr. Shimkus. Gentleman yields back his time. I am concerned 
that I might have to figure out what a tittle is, but that will 
be for another hearing. The chair recognizes Mr. Engel for 5 
minutes.
    Mr. Engel. Thank you very much, Mr. Chairman, for holding 
this hearing today. Chairman Jaczko, I understand that you are 
in the process of working out details for a visit next week to 
the Indian Point Energy Center, which is just outside my 
district. I would like to start by discussing the procedures 
used to relicense our nuclear reactors. I am very concerned 
about Indian Point, and I have called for its closure many, 
many years ago.
    I am not against nuclear power, but I think that is an 
antiquated plant located near New York City. If it was being 
built today, it would never been sited there in Buchanan, New 
York. It is on two fault lines. One of the planes that hit the 
World Trade Center went directly above Indian Point.
    And when you talk about all our nuclear reactors in the 
country, there are 104, and all of their reactors were granted 
initial operating licenses for 40 years. And therefore, many of 
those licenses are up for renewal. So far, every reactor in 
this country that has requested a license renewal has been 
approved. The NRC never denied a single application for license 
renewal, and one of the reasons for that is a rule change in 
the early 1990s that limits the factors the NRC evaluates when 
considering a relicensing application.
    It concerns me, and I hope it concerns you because 
obviously there needs to be a focus on protecting the health 
and safety of our citizens. And I believe the current process 
fails to do that. It doesn't take into account certain serious 
safety issues including proximity to population centers, 
inability to evacuate in case of emergency, and I certainly 
believe that is the case with Indian Point. A risk of seismic 
activity. We have just recently learned that Indian Point is on 
two fault lines. And threat of terror attack, and New York City 
unfortunately is the number one threat for terrorist attack.
    There are 25 million people living within a 50-mile radius 
of Indian Point. In Japan, they wanted to get everybody out of 
the 50-mile radius. You actually have New York City in it. I am 
told it is the power plant that is closest to any major 
metropolitan area in the country, and yet it is the most 
populated metropolitan area. So it makes no sense to me.
    The NRC released a report, which said that among U.S. 
nuclear plants, Indian Point's reactor number three has the 
highest risk of core damage from an earthquake of any nuclear 
power plant in the country. Now, it said it was one in 10,000, 
but, you know, one in 10,000, it is still number one on the 
list. And researchers at Columbia University have determined 
that Indian Point, and I quote them, ``is clearly one of the 
least favorable sites in our area from an earthquake hazard and 
risk perspective.''
    Now, none of these factors can be considered in the 
decision to relicense the reactors at Indian Point. They 
applied to react them. My colleague, who also has a district 
very close, Nita Lowey, and I have introduced a nuclear power 
licensing reformat, which is H.R. 1268. Our bill is simple. It 
would require the NRC to evaluate relicensing applications for 
nuclear reactors with the same stringent criteria used to 
license new plants.
    Right now, it is a much less stringent criteria, so I don't 
understand why that should be the factor. Whether you are 
approving a new power plant or relicensing a new power plant, 
safety concerns are safety concerns. It doesn't matter whether 
it is new or old or relicensing or not. So I would, you know, 
like to ask you about that and see if we could change the law. 
Obviously we could, but it would be a lot easier to do it if 
the Commissioners understood and agreed with me and my 
colleague Congresswoman Lowey that we need to make sure that no 
matter whether you are building a new plant or relicensing a 
plant, the same stringent rules would be followed.
    Mr. Jaczko. Well, as you indicated, our license renewal 
process is really focused on the aging of the systems and the 
components that are important for safety. So, in effect, what 
it does is it puts additional requirements on a plant that is 
having its lifetime extended. Every plant, regardless of 
whether it is 1 year old or 45 years old is required to meet 
and follow all of our regulations.
    So if we get new information, for instance, as we are 
looking at with the seismic issues related to Indian Point, we 
don't wait for license renewal to address those. We require 
utilities to take that information and promptly address that to 
make sure that the plant is safe regardless of what its age is.
    So what we found is the way the license renewal approach 
would work best is to have this focus really just on these 
additional programs that are necessary to ensure that there are 
no effects from the aging of the equipment as it gets older 
with the extended life of the plant.
    But, of course, if Congress were to give us additional 
direction, of course, we would follow whatever additional 
direction would be provided. But we have gone through--over 66 
units now have used the existing rules for their relicensing. 
So it is unlikely, I think, that we would be looking at 
particular changes in the near future.
    Mr. Engel. Well, just let me say--and I know my time is 
up--I look forward to your coming to the plant, and I really 
believe that this plant should be shut down. I really do, and 
so most of the members of Congress that have districts right 
across from the plant. Thank you, Mr. Chairman.
    Mr. Shimkus. Gentleman's time has expired. Chair recognizes 
the gentleman from Mississippi, Mr. Harper, for 5 minutes.
    Mr. Harper. Thank you, Mr. Chairman, and appreciate each of 
you being here today, and with what has happened recently in 
Japan, the concern I have on what I have been able to hear 
today is if ever there was any agency that we cannot afford for 
it to have any even the hint of internal issues, it would be 
the NRC.
    So we want to certainly give you the tools to do what you 
need to do, but when you look at the safety issues that you 
have the responsibility for, we can't afford to have any 
infighting. And it greatly concerns me on what Mr. Cassidy was 
asking earlier about these, the letters that went out to 
Chairman Issa. And I will ask this, Mr. Chairman, if I may. In 
your letter that went, when it was sent, you knew at that 
point, the other four Commissioners were not in favor of that 
letter? Is that true?
    Mr. Jaczko. No, I did not.
    Mr. Harper. OK, did you make any--did you consult with them 
before that letter went out?
    Mr. Jaczko. I did. I circulated the draft of the letter 
that I intended to send, and I offered them an opportunity to 
include their views with that letter as well as separate views 
or in any way that they would like.
    Mr. Harper. OK, and I will ask each of the Commissioners 
your recollections of how that went down.
    Ms. Svinicki. I would testify today that we have a process 
for voting on correspondence that goes to Members of Congress. 
It all goes under the chairman's signature, but certain of it 
is voted as a voting matter by the entire Commission. There 
were four votes, in my recollection, in alignment for the 
letter that is--was subsequently transmitted.
    The chairman's office notified my staff that the chairman 
intended to send a different letter. We were solicited for 
whether or not individual Commissioners would append views to 
that. I interpreted that to be an offer to provide dissenting 
views when I was in a majority, and therefore I reinstated 
through my staff to the chairman's staff that I stuck by my 
vote for the other letter and that is my recollection.
    Mr. Harper. OK, Mr. Magwood?
    Mr. Magwood. When we were informed that the chairman's 
office intended to proceed with the letter that was ultimately 
sent, we indicate that we stood by the original letter and saw 
no reason to change our vote at that time. And when the letter 
was sent, we signed on to the subsequent letter, which you have 
before you.
    Mr. Harper. OK, Mr. Ostendorff?
    Mr. Ostendorff. My recollection is the same as Commissioner 
Magwood's and Svinicki's. Four Commissioners had voted for 
identical language prior to the chairman sending the letter 
that he sent to us for comment, and under our Commission 
correspondence procedures, where a majority had ruled that--or 
voted on a matter with a certain outcome, I thought that 
original letter the four of us had supported should be issued.
    Mr. Harper. All right, and I would like to kind of back up 
to the Japan incident that occurred, and I will ask each of the 
Commissioners. If you were--or when were you notified that the 
chairman was planning to exercise emergency powers under the 
Emergency Reorganization Act?
    Ms. Svinicki. I have never been notified that the chairman 
is invoking his emergency power under the Energy Reorg Plan.
    Mr. Harper. OK, aren't you--isn't that something, part of 
the collegial atmosphere? Is that something you would have 
expected you would have been notified of that before it took 
place?
    Ms. Svinicki. Yes, that would have been my expectation, but 
I cannot testify that I am aware that there is a specific 
requirement for that. I would need to look that up.
    Mr. Harper. OK, but that would come under the general 
collegial thought that you would have as a commission?
    Ms. Svinicki. Yes.
    Mr. Harper. Mr. Magwood?
    Mr. Magwood. Yes, I have never been notified.
    Mr. Harper. Have or have not?
    Mr. Magwood. Have not.
    Mr. Harper. OK, Mr. Ostendorff?
    Mr. Ostendorff. I have not had full notification. However, 
I did discuss questions and concerns I had on this topic with 
the chairman in a meeting I had with him on March 31.
    Mr. Harper. OK, now you know how sometimes talk starts, and 
you hear things. And so I just would like to know, there was 
some talk that the chairman told perhaps the other 
Commissioners, maybe other staff involved, to stay out of the 
emergency operations center during the Fukushima crisis. And I 
am even told that there was demand of perhaps placing a guard 
at the entrance to the center to let only designated staff into 
the center. Is this true or not true or just one of those, you 
know, stories that get started?
    Ms. Svinicki. Chairman Jaczko requested that members of the 
Commission not visit the emergency operations center so as not 
to distract the staff from their important responsibilities.
    Mr. Magwood. Same answer as Commissioner Svinicki. We were 
on a phone conference call, and the chairman made that request.
    Mr. Harper. OK.
    Mr. Ostendorff. I agree, and that call was actually on 
March 17.
    Mr. Harper. Now, I understand that you have--the president 
designates somebody to be the chairman. I understand that, and 
the chairman has certainly the administrative responsibility. 
But when it comes to something like this, did you have any 
reaction to the fact that you were told to stay out?
    Ms. Svinicki. I did not interpret the presence of a 
Commissioner would necessarily be a distraction, but I 
understood, of course, that staff needed to focus on their 
important responsibilities.
    Mr. Harper. Sure, but if you were in the room, do you 
consider yourself to have been a distraction or would be 
disturbing?
    Ms. Svinicki. I would attempt not to be a distraction.
    Mr. Harper. OK, and my time is up, so I yield back, Mr. 
Chair.
    Mr. Shimkus. Gentleman yields back his time. Chair 
recognizes gentleman from Pennsylvania. Mr. Murphy has no 
questions. Is any other member here seeking to ask questions of 
the Commissioners? If not, I have to make a couple 
announcements. First of all, the record will be open for 30 
days for submission of additional questions to the Commission. 
If you would respond as you--if you figure out how to do that 
in collegial manner, we would appreciate that.
    Also, an announcement for my colleagues that we will clear 
the room to prepare the room for the markup of the bill. Maybe 
get through opening statements before they deal with votes on 
the floor, and then I would like to end. In closing, I would 
just like to reiterate that we are continuing our investigation 
into the many issues that have been touched on today. And I 
would just like to get an assurance from each of the 
Commissioners that you would be responsive to our requests in 
an open, forthright, and expedited manner, and that we won't 
encounter any undue delays in receiving documents or 
information from the Commission.
    I would also like to stress that, of course, no undue 
influence or suggestion should be made to the NRC staff or 
anyone else regarding responses to this committee's 
investigation. Chairman Jaczko, can you please give me that 
assurance?
    Mr. Jaczko. We certainly will be as responsive as we can to 
the committee.
    Mr. Shimkus. Commissioner Svinicki?
    Ms. Svinicki. Yes, I give that assurance.
    Mr. Shimkus. Commissioner Magwood?
    Mr. Magwood. Absolutely.
    Mr. Shimkus. And Commissioner Ostendorff?
    Mr. Ostendorff. Yes.
    Mr. Shimkus. Thank you very much, and the hearing is 
adjourned.
    [Whereupon, at 12:18 p.m., the subcommittees proceeded to 
other business.]
    [Material submitted for inclusion in the record follows:]

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