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

       THE NRC INSPECTOR GENERAL REPORT ON THE NRC CHAIRMAN'S UNILATERAL
    DECISION TO TERMINATE NRC'S REVIEW OF THE DOE YUCCA MOUNTAIN REPOSITORY
                              LICENSE APPLICATION

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

                                    HEARING

                                   BEFORE THE

                  SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

                                     OF THE

                        COMMITTEE ON ENERGY AND COMMERCE
                            HOUSE OF REPRESENTATIVES

                          ONE HUNDRED TWELFTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 JUNE 14, 2011

                                   __________

                               Serial No. 112-61

          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 Chair                         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

                                     _____

                  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)

                                      (ii)

                                 C O N T E N T S

                                  ----------
                                                                       Page
    Hon. John Shimkus, a Representative in Congress from the State of
      Illinois, opening statement....................................     1
        Prepared statement...........................................     3
    Hon. Gene Green, a Representative in Congress from the State of
      Texas, opening statement.......................................     4
    Hon. Fred Upton, a Representative in Congress from the State of
      Michigan, opening statement....................................     4
    Prepared statement...............................................     6
    Hon. Ed Whitfield, a Representative in Congress from the
      Commonwealth of Kentucky, opening statement....................     8
    Hon. Henry A. Waxman, a Representative in Congress from the State
      of California, opening statement...............................     8

                                   Witnesses

    Hubert T. Bell, Inspector General, Nuclear Regulatory Commission.     9
        Prepared statement...........................................    12
        Answers to submitted questions...............................    51
    Joseph McMillan, Assistant Inspector General for Investigations,
      Nuclear Regulatory Commission \1\..............................
    Rossana Raspa, Senior Level Assistant for Investigative
      Operations, Nuclear Regulatory Commission \1\..................

                               Submitted Material

    ``Former NRC chairman Klein at odds with Jaczko decision,''
      article in December 2010 Nuclear News, submitted by Mr. Barton.    31
    Subcommittee exhibit binder......................................    55

    ----------
    \1\ Mr. McMillan and Ms. Raspa did not submit statements for the
      record.

       THE NRC INSPECTOR GENERAL REPORT ON THE NRC CHAIRMAN'S UNILATERAL
    DECISION TO TERMINATE NRC'S REVIEW OF THE DOE YUCCA MOUNTAIN REPOSITORY
                              LICENSE APPLICATION

                                  ----------

                             TUESDAY, JUNE 14, 2011

                      House of Representatives,
           Subcommittee on Environment and the Economy,
                              Committee on Energy and Commerce,
                                                        Washington, DC.
        The subcommittee met, pursuant to call, at 10:10 a.m., in
    room 2123 of the Rayburn House Office Building, Hon. John
    Shimkus (chairman of the subcommittee) presiding.
        Members present: Representatives Shimkus, Murphy,
    Whitfield, Pitts, Bass, Latta, McMorris Rodgers, Harper,
    Cassidy, Gardner, Barton, Upton (ex officio), Green, Barrow,
    DeGette, and Waxman (ex officio).
        Member attending: Representative Markey.
        Staff present: Carl Anderson, Counsel, Oversight; Gary
    Andres, Staff Director; Charlotte Baker, Press Secretary;
    Michael Beckerman; Deputy Staff Director; Sean Bonyun, Deputy
    Communications Director; Anita Bradley, Senior Policy Advisor
    to Chairman Emeritus; Andy Duberstein, Special Assistant to
    Chairman Upton; Todd Harrison, Chief Counsel, Oversight/
    Investigations; Heidi King, Chief Economist; Dave McCarthy,
    Chief Counsel, Environment/Economy; Carly McWilliams,
    Legislative Clerk; Andrew Powaleny, Press Assistant; Chris
    Sarley, Policy Coordinator, Environment and Economy; Peter
    Spencer, Professional Staff Member, Oversight; Phil Barnett,
    Minority Staff Director; Tiffany Benjamin, Minority
    Investigative Counsel; Alison Cassady, Minority Senior
    Professional Staff Member; Greg Dotson, Minority Energy and
    Environment Staff Director; and Caitlin Haberman, Minority
    Policy Analyst.
        Mr. Shimkus. The hearing will come to order. The chair
    recognizes himself for 5 minutes.

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

        Today, we take another step in understanding the management
    breakdown at the NRC. I welcome our witness, Mr. Bell, and I
    thank him for his professionalism. He started this review last
    October at the request of Chairman Upton and Mr. Whitfield. His
    work is both thorough and timely.
        Having read the entire report, I am struck by three
    problems at the NRC. First is the inefficiency. It is
    unbelievable that 1 week after the Nuclear Waste Policy Act
    says that the NRC must either approve or deny the license
    application or formally notify Congress as to why it needs more
    time, the Commission cannot even reach the question of whether
    the application is even alive. One year ago, the Atomic Safety
    and Licensing Board ruled that DOE has no authority to withdraw
    the application, and the NRC must continue to review it. Less
    than 2 months later, the question was put to a vote of the full
    Commission. On August 10, Commissioner Apostolakis abstained;
    on August 25 and 26 Commissioners Sviniki, Jaczko, and
    Ostendorf voted. Then, August 30, Chairman Jaczko retracted his
    vote. Then, September 15, Commissioner Magwood voted. Then,
    October 29, Chairman Jaczko voted again. But somehow 10 months
    after all that, the vote is still not over. You don't need
    Internal Commission Procedures to see that it has been a
    horribly inefficient process, and according to Mr. Bell's
    report, we have no one to blame except Chairman Jaczko.
        But there are Internal Commission Procedures. Commissioners
    are to vote within 10 business days; once a quorum has voted,
    permission to vote late may be granted by a majority of the
    Commission, and a delay in affirming the vote and promulgating
    the order may only be granted by a majority of the Commission.
    None of that has been followed. It is the Chairman's duty to
    make certain it is followed. Parties to the action rely on the
    Commission to follow its own rules and keep the trains running
    on time. The Chairman's neglect of this duty alone is shocking
    as it denies to the parties of interest a full, timely
    determination.
        But once you read further in the report, it becomes clear
    that the problems are worse than just inefficiency and even
    worse than neglect of duty. There is outright malfeasance. The
    report is replete with instances of Chairman Jaczko
    deliberately misleading both his fellow Commissioners and
    senior staff at the NRC. And he knowingly withheld crucial
    information from his fellow Commissioners even though the
    federal statute requires that all Commissioners have access to
    all information. In some instances, Chairman Jaczko manipulated
    the process through outright false statements to prevent his
    full Commissioners from understanding the implications of his
    actions and omissions. When confronted by one Commissioner
    about this, Chairman Jaczko merely insulted his colleague by
    sarcastically retorting, ``You should have asked.''
        I hope all members study Mr. Bell's June 6 report carefully
    and take time today to seek any clarifications. This situation
    warrants our attention and best judgment.
        The gentleman then yields back his time. The chair
    recognizes the ranking member, Mr. Green, for 5 minutes.
        [The prepared statement of Mr. Shimkus follows:]

       OPENING STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN
                    CONGRESS FROM THE STATE OF TEXAS

        Mr. Green. Thank you, Mr. Chairman, for holding this
    hearing today, and thank Mr. Bell for appearing before the
    committee to discuss your report entitled, ``NRC Chairman's
    Unilateral Decision to Terminate NRC's Review of the DOE Yucca
    Mountain Repository License Application.''
        There has been a lot of discussion in this committee on the
    decision by the administration not to proceed with Yucca
    Mountain, and I have stated several times before the U.S. alone
    produced 806 billion kilowatt hours of nuclear power in 2008
    making us the biggest producer of nuclear power in the world.
    Now, 25 years later, $15 billion in rate-payers fees and income
    taxes, we are closing our only long-term solution for nuclear
    waste. The President has said he supports investments in
    alternative forms of energy, and Secretary Chu has testified
    before this committee that we would be unable to meet the
    President's goals if we do not continue to invest in nuclear
    power.
        As we look forward and focus on investing more in nuclear
    power, we still have nuclear waste. Even if we have better
    short-term storage than we do now, we still need somewhere to
    put the waste 50 or 1,000 years from now.
        Today, we will be discussing the NRC's Inspector General's
    Report on the NRC chair's decision to terminate the NRC's
    review of Yucca Mountain. Many allegations have been made on
    the legality of the NRC chair's decision to terminate the NRC's
    review. This report evaluated two allegations that one, the
    chairman unilaterally improperly closed the NRC review of Yucca
    Mountain application while the government was still operating
    under a continuing resolution in fiscal year 2011; and two, the
    chairman is preventing the Commission from ruling on NRC
    licensing board's decision to deny the DOE's motion to withdraw
    the Yucca application.
        The Inspector General's report found that Chairman Jaczko
    had not been forthcoming with all the commissioners but that
    ultimately he acted within his authority as NRC chair and none
    of which suggests the NRC chair violated the law. The report
    does not review whether or not the actual decision to close
    Yucca was appropriate. The report does shed some light on the
    obvious internal issues within NRC that should be evaluated and
    addressed.
        And just on a personal note, it is frustrating, our country
    being the largest emitter of nuclear waste in the world and we
    are seeing us literally eclipsed by countries who do not have
    as much nuclear power as we do. And it is frustrating after all
    these years.
        With that, again, I want to thank Mr. Bell for appearing
    before the committee. I look forward to hearing your testimony.
    And again, thank you, Mr. Chairman. I yield back my time.
        Mr. Shimkus. The gentleman yields back his time. The chair
    now recognizes the chairman of the full committee, Mr. Upton,
    for 5 minutes.

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

        Mr. Upton. Thank you, Mr. Chairman.
        Developing a safe, permanent storage site for spent nuclear
    fuel is indeed essential to energy security as well as our
    national security, and that is not and should not be treated as
    a partisan issue. So I commend and thank our witnesses for
    their efforts to provide an objective look at the inner
    workings of this key agency. The more we learn about NRC's
    current leadership, the greater our concern about the apparent
    breakdown in the Agency's operations, departure from
    nonpartisan tradition, and disregard for the decades of
    technical expertise and billions of dollars invested.
        Justice delayed is justice denied. And it has been a year
    since states and other affected parties went to court seeking a
    ruling on the license application for the repository at Yucca.
    The Atomic Safety and Licensing Board ruled that the NRC must
    consider and vote on DOE's application. Yet the Commission
    still has not yet taken final action. And after a year in
    limbo, it now appears that the NRC Chair Jaczko devised a
    complex, calculated strategy to kill the license application
    without consideration by the Commission.
        Consumers have been paying into the Nuclear Waste Fund
    since 1983 with a promise of something in return: a permanent
    place to send the spent fuel away from the reactor sites. When
    the license application was finally filed 3 years ago, we grew
    more confident. The Act said that in 3 years the NRC would
    grant the license or explain to Congress why they needed more
    time. Instead, NRC won't even give a straight answer about
    whether the application is still alive.
        And it is not just nuclear power consumers who are cheated.
    It is taxpayers in every State including Nevada who are paying
    out judgments to plant operators because the DOE is late
    accepting the waste. GAO reports that the taxpayers are on the
    hook for an additional $15.4 billion--on top of the nearly $15
    billion already spent on the project--and that is the liability
    if DOE opens Yucca by 2020. If not, it rises another half-
    billion dollars every year.
        The circumstances surrounding this administration's rush to
    pull the plug on Yucca are alarming as much as they are
    disappointing. We have an administration that apparently wants
    to erase the visionary effort launched by President Reagan,
    casting aside 3 decades of scientific research, bipartisan
    collaboration, and a fortune invested to start from scratch no
    matter what the cost or consequences to our national security.
        Despite this moment of dysfunction at the top, the NRC's
    intrinsic value to the U.S. lies in the expertise and
    extraordinary dedication of its highly professional staff,
    including our witnesses today. To them we repeat: We will do
    what we can to rescue the Agency from the ditch that some have
    driven you into. And to consumers and taxpayers across America:
    We will get the NRC to focus once again on its statutory
    mission to serve all the people instead of, perhaps, the
    chairman's political patrons.
        And I yield to Mr. Whitfield.
        [The prepared statement of Mr. Upton follows:]

      OPENING STATEMENT OF HON. ED WHITFIELD, A REPRESENTATIVE IN
               CONGRESS FROM THE COMMONWEALTH OF KENTUCKY

        Mr. Whitfield. Thank you very much.
        In January 2009, President Obama made this statement: ``Let
    me say as simply as I can, transparency and the rule of law
    will be the touchstone of this Presidency.'' And yet when you
    read the Inspector General's report of Chairman Jaczko's
    actions, you see words like ``misleading,'' ``withholding
    information,'' ``false statements.'' That is not the type of
    transparency that we need in America today.
        And I would like to reiterate what Chairman Upton said.
    This is more than just about Chairman Jaczko. This is about the
    American people and the American taxpayer who have already
    spent over $10 billion preparing Yucca Mountain who now have
    been sued by utility companies and owe them an additional $15
    billion. And that is increasing every year because the
    government cannot meet its obligations, primarily because of
    one person at the Nuclear Regulatory Commission whose personal
    objective is to close this project at Yucca Mountain. And so I
    think it is an abuse of his authority and I look forward to the
    testimony of all the witnesses today.
        I yield back.
        Mr. Shimkus. The gentleman yields back his time. The chair
    recognizes the chairman emeritus, Mr. Waxman, for 5 minutes.

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

        Mr. Waxman. Well, thank you, Mr. Chairman. This is the
    third hearing this subcommittee has held on the closure of the
    Yucca Mountain Waste Repository. Today, we will hear from the
    Nuclear Regulatory Commission's Inspector General, who has
    recently issued a report on allegations that the NRC chairman's
    actions relating to the closure were improper.
        The primary finding of the Inspector General's report was
    that Chairman Jaczko's ambitions have been consistent with
    established law, OMB guidance, and his authority as chairman.
    This finding is very different from what Chairman Shimkus has
    been saying for months. In the press and in this hearing room
    he has repeatedly stated that Chairman Jaczko has been acting
    illegally. This is, of course, the problem with prejudging and
    announcing the outcome of an investigation before it has
    started.
        Despite the rhetoric we have heard over the past months,
    today we won't be presented with evidence of law-breaking.
    Instead, we will hear about internal procedures of the NRC. We
    will examine the consultation requirements and functions of the
    chairman of the NRC versus the functions of the other
    commissioners. The IG will tell us that some commissioners felt
    misled by Chairman Jaczko, did not like his interpersonal
    style, and expressed concern about the NRC chairman's
    unilateral actions.
        Now, these are legitimate issues for our subcommittee to
    examine. We should be exercising our oversight to look at the
    Commission to ensure that it operates as smoothly,
    professionally, and fairly as possible. The chairman of the
    Commission, like the chairman of a congressional subcommittee
    or committee has an obligation to conduct proceedings fairly
    and impartially.
        Chairman Shimkus is concerned that Chairman Jaczko withheld
    information from his fellow Commissioners. That is a legitimate
    concern and one we should examine today. Ironically, however,
    we should look at this in the context of how our committee has
    operated. Over our objections, the staff of our subcommittee
    has been conducting interviews of fact witnesses without
    including Democratic members or our staff. The chairman says
    that the IG report ``reveals a calculating and political NRC
    chairman who has abused his authority and withheld information
    from fellow Commissioners.'' Well, that is how some of us feel
    when we are being treated in this investigation by denying us
    access to witness interviews. Let us make sure that our
    committee operates as a model if we are going to criticize the
    Commission for not operating as we would hope they would.
        I look forward to hearing from the IG today and want to
    reiterate that I support a thorough investigation into the
    Yucca Mountain and the actions of the NRC, but any such
    investigation should be fair and nonpartisan and I would hope
    our committee will meet this standard.
        I yield back my time.
        Mr. Shimkus. The gentleman yields back his time. The chair
    now calls for today's witness, the Honorable Hubert T. Bell,
    Inspector General of the Nuclear Regulatory Commission. He is
    accompanied by Mr. Joseph McMillan, Assistant Inspector General
    for Investigations at the NRC, and Ms. Rossana Raspa, Senior
    Level Assistant for Investigative Operations in the Office of
    Inspector General.
        As you know, the testimony that you are about to give is
    subject to Title XVIII, Section 1001, of the United States
    Code. When holding an investigative hearing, this committee has
    a practice of taking testimony under oath. Do you have any
    objection to testifying under oath? And both shake their head
    ``no.''
        The chair then advises you that under the rules of the
    House and the rules of the committee, you are entitled to be
    advised by counsel. Do you desire to be advised by counsel
    during your testimony today? And the chair recognizes that all
    shake their head, ``no.''
        In that case, if you would please rise and raise your right
    hand and I will swear you in.
        [Witnesses sworn.]
        Mr. Shimkus. Thank you very much. And now you may give your
    5-minute summary of your written statement. Welcome.

        TESTIMONY OF HUBERT T. BELL, INSPECTOR GENERAL, NUCLEAR
        REGULATORY COMMISSION, ACCOMPANIED BY JOSEPH MCMILLAN,
      ASSISTANT INSPECTOR GENERAL FOR INVESTIGATIONS, AND ROSSANA
       RASPA, SENIOR LEVEL ASSISTANT FOR INVESTIGATIVE OPERATIONS

        Mr. Bell. Good morning again. Mr. Chairman, members of the
    subcommittee, it is my pleasure to appear before you today.
    With me are Mr. Joseph McMillan, Assistant Inspector General
    for Investigations, and Ms. Rossana Raspa, Senior Level
    Assistant for Investigative Operations.
        The mission of the Office of Inspector General at the
    Nuclear Regulatory Commission is to assist NRC by ensuring
    integrity, efficiency, and accountability in the Agency's
    programs. My office carries out this mission by independently
    and objectively conducting and supervising audits and
    investigations related to NRC's programs and operations;
    preventing and detecting fraud, waste, and abuse; and promoting
    economy, efficiency, and effectiveness in NRC programs and
    operations. Our operating budget is $10.860 million with 58
    full-time employees.
        Last week, my office issued a report conveying the results
    of an investigation into an allegation that the NRC Chairman
    unilaterally and improperly closed out NRC's review of the
    Department of Energy's Yucca Mountain repository application
    while the government was operating under a continuing
    resolution during fiscal year 2011 and was purposely preventing
    the Commission from completing its ruling on the Atomic Safety
    Licensing Board's decision to deny DOE's motion to withdraw its
    Yucca Mountain repository license application from NRC.
        OIG also looked into concerns raised about the chairman's
    management style and whether his control of information
    prevents the other commissioners from effectively fulfilling
    their statutory responsibility to address policy matters.
        The Nuclear Waste Policy Act of 1982, as amended, names
    Yucca Mountain as the single-candidate site for geological
    high-level radioactive waste repository. Next, the Act states
    that NRC will consider an application for construction of a
    repository and issue a final decision within 3 years of
    application's submission.
        NRC accepted DOE's Yucca Mountain license application in
    September 2008 and planned, at the end of the technical review,
    to issue a safety evaluation report (SER) containing its
    findings on the repository design. In February 2010, the Energy
    Secretary noted during a Senate hearing that the Administration
    would seek to suspend licensing for the Yucca Mountain
    repository because it was not a workable option. In March 2010,
    DOE submitted to the ASLB a motion to withdraw its Yucca
    Mountain License Application, which the ASLB denied. The
    Commission chose to review the ASLB decision and in August 2010
    began consideration of this adjudicatory matter.
        On September 30, Congress issued a continued resolution
    directing federal agencies generally to spend money at 2010
    levels to continue 2010 projects and activities. On October 4,
    2010, NRC senior officials issued a memorandum directing staff
    to continue its activities on Yucca Mountain license
    application during the CR period in accordance with the
    Commission's fiscal year 2011 congressional budget
    justification. That document directed ``work related to the
    orderly closure of the Agency's Yucca Mountain licensing
    support activities.'' Soon after, the chairman directed staff
    to stop working on SER and proceed to orderly closure of the
    program.
        OIG learned that the CR budget memorandum's language
    directing staff to follow fiscal year 2011 budget guidance for
    High-Level Waste Program activities was based on instruction
    from the chairman's office. OIG found that the chairman used
    the memorandum to initiate NRC's fiscal year 2011 plans to
    close out its Yucca Mountain license application review,
    although the budget had not been passed. The chairman's
    decision was supported by the NRC General Counsel and
    consistent with the discretion within the chairman's budget
    execution authority under the Reorganization Plan Number 1 of
    1980, OMB budget guidance for CR spending. The administration's
    decision to terminate the Yucca Mountain repository project and
    the chairman's interpretation of the Commission's fiscal year
    2011 budget policy decisions.
        OIG also found that while the chairman had the authority to
    direct staff to follow the fiscal year 2011 budget guidance, he
    was not forthcoming with the other commissioners about his
    intent to stop work on the SER as part of implementing close-
    out activities. Although he told executive director of
    operations that all commissioners were informed of the support
    issuance of the CR budget guidance memorandum, a majority
    disagreed with the outcome of the memorandum, which was the
    chairman's direction to stop work on the SER. Also, a majority
    of the commissioners did not think the conditions to proceed to
    closure had been met.
        Although one commissioner wrote a commission action
    memorandum, or COM, to the other commissioners on October 6
    proposing to direct staff to continue working on SER, two
    commissioners elected not to vote on the matter. Without a
    majority, the Commission could not move the matter to policy
    space within the Commission's purview.
        OIG found that various factors are preventing NRC from
    fulfilling its statutory obligation to review DOE's Yucca
    Mountain Repository License Application and issue a final
    decision concerning issuance of a construction authorization.
    Factors include the administration's decision to terminate the
    Yucca Mountain repository project, decreasing appropriations to
    NRC for the High-Level Waste Program, and the chairman's
    direction to stop work on an SER.
        OIG found that the Commission's adjudicatory voting
    procedures are not consistently enforced and they do not
    provide details on the process that occurred between completion
    of a notation vote on an adjudicatory matter and the conduct of
    an affirmation vote. The lack of enforcement of and specificity
    in the Commission's procedures--coupled with the Commission's
    practice not to move to affirmation until all commissioners
    agree to the affirmation notice and order--allows matters to
    sit in abeyance without final Commission action.
        OIG also found that the chairman controls the information
    provided to the other commissioners based on his interpretation
    of his statutory authority as chairman versus the authority
    given to the Commission. Because the chairman manages and
    controls information available to the other commissioners, they
    are uncertain as to whether they are adequately informed of
    policy matters that should be brought to their attention.
    Ultimately, however, all commissioners have the ability to
    bring any issue they perceive as a policy matter before the
    Commission by writing a Commission action memorandum gaining a
    majority of the Commission's support.
        Mr. Chairman and members of the subcommittee, we would be
    pleased now to answer questions.
        [The prepared statement of Mr. Bell follows:]

        Mr. Shimkus. Thank you very much, Mr. Bell. I ask unanimous
    consent that the contents of the document binder be introduced
    into the record and to authorize staff to make any appropriate
    redactions. Without objection, the document will be entered
    into the record with any redactions that staff determines are
    appropriate.
        [The information appears at the conclusion of the hearing.]
        Mr. Shimkus. I now recognize myself for the first 5
    minutes.
        Again, Mr. Bell, thank you. Mr. Bell, how many interviews
    did you conduct for this investigation?
        Mr. Bell. Thirty-nine total, sir.
        Mr. Shimkus. Thirty-nine total. And they were transcribed
    interviews under oath, is that correct?
        Mr. Bell. The majority were. I think maybe one or two were
    not transcribed. They were all under oath.
        Mr. Shimkus. They were all under oath?
        Mr. Bell. Yes. But I think all but two were transcribed.
        Mr. Shimkus. And did you review documents as well?
        Mr. Bell. Yes, we did.
        Mr. Shimkus. So your report is based on documentary
    evidence and sworn testimony both in its narrative and its
    findings, is that correct?
        Mr. Bell. That is correct, sir.
        Mr. Shimkus. And this evaluation was conducted
    independently without any direction or interference from
    outside of the Office of the Inspector General?
        Mr. Bell. That is correct, sir.
        Mr. Shimkus. Mr. Bell, you investigated the chairman's
    decision to close down the staff safety evaluation of the Yucca
    license during a continuing resolution last October, correct?
        Mr. Bell. Yes, sir.
        Mr. Shimkus. And you determined the senior NRC staff
    expressed concerns that the whole Commission needed to be
    onboard with guidance to this effect?
        Mr. Bell. Yes, sir.
        Mr. Shimkus. And the chairman told senior staff he would
    inform the Commission and later said the commissioners were in
    agreement with the direction and implications of the direction.
    Is that the case?
        Mr. Bell. That is the case. Yes, sir.
        Mr. Shimkus. But the chairman did not ensure the other
    commissioners understood the implications of this guidance, did
    he?
        Mr. Bell. The inference that the chairman had told the
    Commission was that before he issued any memorandum that all
    the commissioners would be informed. And this was done to
    either be himself having conversations with the commissioners
    or his chief of staff talking to the Commission officers that
    he had not personally spoken with or discussed it with.
        Mr. Shimkus. But on your report, let me ask this again,
    Chairman Jaczko did not ensure that each commissioner
    understood the implications of the guidance?
        Mr. Bell. No.
        Mr. Shimkus. In fact, according to your investigation, the
    chairman was not forthcoming with the commissioners. He did not
    even talk to one of them and he did not explicitly explain his
    plans to direct the shutdown of the Yucca review. Is that what
    you found?
        Mr. Bell. That is correct, sir.
        Mr. Shimkus. Is the Reorganization Plan of 1980 as amended
    the statutory guidance under which the NRC operates?
        Mr. Bell. Yes.
        Mr. Shimkus. According to the NRC statutory requirements in
    this plan, the chairman ``shall be responsible for ensuring
    that the Commission is fully and currently informed about
    matters within its functions.'' Isn't that correct?
        Mr. Bell. That is what the Reorganization Plan states, yes,
    sir.
        Mr. Shimkus. That is an essential responsibility of the
    chairman as laid out in the law, correct?
        Mr. Bell. Correct.
        Mr. Shimkus. According to your investigation, the chairman
    ``strategically provided three of the four commissioners with
    varying amounts of information about his intention to not
    complete the safety evaluation report.'' That is what you
    determined, correct?
        Mr. Bell. That is what the investigation showed, yes, sir.
        Mr. Shimkus. And that is what you determined as the author.
    Now, is strategically withholding information from different
    commissioners consistent with ``ensuring that the Commission is
    fully and currently informed?''
        Mr. Bell. It doesn't appear to be. No, sir.
        Mr. Shimkus. From your investigation, it became clear that
    many staff, including senior staff and the majority of the
    commissioners considered the Yucca-related guidance and
    directives imposed by the chairman to be a policy matter. Isn't
    that correct?
        Mr. Bell. A policy matter is correct.
        Mr. Shimkus. At page 42 you write that ``the chairman
    himself knew the Commission did not support the budget guidance
    for the High-Level Waste Program and that he wanted to be
    prepared for battle.'' So even the chairman recognized this
    would be a policy fight, not an administrative matter, correct?
        Mr. Bell. Correct.
        Mr. Shimkus. Would you agree that the decisions surrounding
    the Yucca Mountain application review have profound national
    policy implications? Wouldn't you agree that it is a policy
    matter?
        Mr. Bell. It is a policy matter, sir.
        Mr. Shimkus. What we see here, in fact, was a matter of
    national policy which the chairman tried to manipulate into a
    mere administrative matter solely within his control. Is this
    consistent with the statutory obligations for how to formulate
    policy?
        Mr. Bell. No, sir.
        Mr. Shimkus. Thank you very much. And I would like to yield
    5 minutes to the ranking member, Mr. Green, for 5 minutes.
        Mr. Green. Thank you, Mr. Chairman.
        Your investigation evaluated two allegations that Chairman
    Jaczko unilaterally and improperly closed out the NRC review of
    the Yucca Mountain application while the government was
    operating under a continuing resolution in fiscal year 2011,
    and two, that the chair was preventing the Commission from
    ruling on NRC Licensing Board decision to deny the DOE's motion
    to withdraw Yucca. You found that the chairman had not been
    forthcoming with all commissioners but ultimately he acted
    within his authority. Did your office evaluate whether it was
    appropriate to close the Yucca Mountain facility generally?
        Mr. Bell. No, sir.
        Mr. Green. OK. Does your report say it was wrong to close
    the Yucca Mountain facility?
        Mr. Bell. No, it does not. No, sir.
        Mr. Green. And I didn't see it in your report but this is
    the second time I have noticed an administration taking leave
    under a continuing resolution. I would say did your
    investigation discuss anything about an administration using, I
    guess, very liberally interpreting a continuing resolution that
    may not have been successful in Congress?
        Mr. Bell. No. No, sir.
        Mr. Green. Some of my colleagues have charged the chair
    decided to close out the Yucca Mountain licensing review
    process for some nefarious purpose and some have alleged this
    was done directly at the behest of the President for political
    purposes. In your investigation, did you find any indication
    that the President reached out to the chairman and personally
    asked him or contacted him to stop reviewing the Yucca Mountain
    application?
        Mr. Bell. No, sir.
        Mr. Green. This report identified some serious
    communication issues within the Commission and I think we need
    to take those seriously. The report does not, however, find
    illegal conduct, nor does it make any assertions more generally
    about whether the administration's decision to close Yucca was
    proper. I do think, Mr. Chairman, our committee needs to look
    at what the NRC--and frankly, I think it is general government,
    not just our committee. There has been a case--and I watched
    what happened with NASA last year. Some decisions were made
    based on the President's budget that did not pass the House of
    Representatives or the Senate and yet they made these
    administrative decisions to change programs. I think that might
    be the problem we have. And I think whether it be NRC or even
    other agencies, I think they need to come back to Congress
    before they make these decisions, particularly after $15
    billion in ratepayers' and taxpayers' money has been put into
    it and after 25 years of work, all of a sudden a year ago say,
    well, we are not going to accept that. So that is our problem.
    I think Congress needs to take away that authority that they
    are using.
        Mr. Shimkus. Will the gentleman yield for one second?
        Mr. Green. I would be glad to.
        Mr. Shimkus. Kind of follow up on that. In this case, if
    there is a policy decision that should be made, it should be
    made by the commissioners collectively. Wouldn't you say that
    is correct, Mr. Bell, a policy decision?
        Mr. Bell. A policy decision should be the Commission.
        Mr. Shimkus. And that is another way--this is a Commission,
    so the Commission should all have a say when there is a change
    in policy. And it is our contention, and I think the report
    defends it, that the policy decisions were made by the
    chairman.
        Mr. Green. And I agree. It should be the Commission. But
    ultimately on something this major, I think we ought to have
    the opportunity as elected officials to make that decision
    because, again, Appropriations for $15 billion for the last 25
    years at least. And I yield back my time.
        Mr. Shimkus. The gentleman yields back his time. The chair
    recognizes the chairman of the full committee, Mr. Upton, for 5
    minutes.
        Mr. Upton. Well, thank you, Mr. Chairman. And I want to
    thank you, too, Mr. Bell for the report.
        President Reagan, as we know, signed the Nuclear Waste
    Policy Act back in 1982, almost 30 years ago. And in reading
    again the Commercial Nuclear Waste GAO report from this last
    April, I want to read to you one long paragraph. ``Prolonging
    onsite storage would add to the taxpayer burden by increasing
    the substantial liabilities that DOE has already incurred due
    to onsite storage at commercial nuclear reactors. For DOE to
    open Yucca in 2020 as it had planned, it began taking custody
    of spent nuclear fuel, it would still have taken decades to
    take custody of the entire inventory of spent nuclear fuel.
    Assuming that 2020 opening of Yucca, the DOE estimated that the
    total taxpayer liabilities for the backlog as of 2020 would be
    about $15.4 billion. It would increase by half a billion for
    each year of delay thereafter. It is important to recognize
    that these liabilities are outside of the nearly 15 billion
    already spent on developing a repository and the estimated 41
    to 67 billion still to be spent if Yucca Mountain repository
    were to be constructed and become operational, most of the cost
    of which is borne by the Nuclear Waste Fund.'' So nearly $100
    billion at the end of the day.
        In reading the report this weekend, I want to read just a
    couple comments on three commissioners. The first is Commission
    Magwood, who, on page 17, you write, ``Magwood also told the
    chairman that he would not support a precipitous termination of
    the High-Level Waste Program. According to Commissioner
    Magwood, the chairman assured him that this was not the
    expectation.'' ``According to Commissioner Magwood, the
    chairman became very agitated and said that he would never have
    taken these actions had both Commissioners Apostolakis and
    Magwood not agreed to support the guidance. Commissioner
    Magwood said that he objected to this statement quite strongly
    and that the chairman never told him his plan had been to shut
    down the High-Level Waste Program and withhold publication of
    SER Volume III.''
        Then on Commissioner Ostendorff, you write on page 18,
    ``Commissioner Ostendorff stated that on October 1, 2010,
    Chairman Jaczko told him that the CR budget guidance memo would
    have the staff commence orderly closure of Yucca license
    application review. Ostendorff told the chairman that he
    disagreed with his direction. The direction was wrong and you
    should not issue it.''
        As it relates to the third commissioner, Commissioner
    Svinicki, you write on page 19, ``On October 5, her staff
    informed Chairman Jaczko's office that she objected to the CR
    guidance. She stated that she did not have any direct
    communication with Chairman Jaczko's review regarding the
    matter before the CR budget guidance memo was issued on October
    4, 2010.'' So can one come to a different conclusion than there
    were at least three votes in opposition of where they
    ultimately were? And it is a pretty damning report as it
    relates to his control of these three commissioners who in fact
    said on the record that they didn't agree. Can one come to a
    different conclusion?
        Mr. Bell. I will let Mr. McMillan answer.
        Mr. McMillan. Clearly, each of those commissioners, sir,
    thought that the budget guidance memorandum that was being
    circulated would not stop the SER from progressing. While the
    Commission might very well be moving towards closure of the
    program itself, in each of those cases when the individuals
    were interviewed, it was their impression that the SER would,
    in fact, be continued.
        Mr. Upton. But was it not the fact that the staff review of
    the SER plan was going to be expedited and it was Chairman
    Jaczko who said slow down?
        Mr. McMillan. That is correct. There was a meeting in the
    June time frame of 2010 when the staff went to the chairman and
    indicated a desire to advance SER's related to numbers I and
    III, the issues related to Volumes I and III. The chairman did
    indicate to the staff that he wanted to maintain the published
    schedule that was in the record at that time. That was their
    understanding that they would maintain the public schedule of
    timing.
        Mr. Upton. What did the commissioners feel when they
    learned that the SER III decision had been withheld from them,
    their reaction?
        Mr. McMillan. And again, staying within the context of the
    report, through the interviews, clearly the commissioners that
    we spoke to that had no understanding of this SER being
    stopped, OK, were somewhat agitated by that fact and they did
    in fact raise the issues back with the chairman regarding their
    discussions that he had had and the indications that at no time
    did they understand that the SER and the findings in the SER
    would be stopped.
        Mr. Shimkus. The chairman's time has expired. The chair now
    recognizes the chairman emeritus, Mr. Waxman, for 5 minutes.
        Mr. Waxman. Thank you, Mr. Chairman.
        Mr. Bell, over the last few months, the chairman of this
    subcommittee has told us that the NRC chairman acted illegally
    with regard to its handling of Yucca Mountain. Mr. Bell, you
    have conducted a 7-month investigation of this matter. Did you
    find that the chairman of the NRC acted illegally?
        Mr. Bell. No, we didn't, sir.
        Mr. Waxman. OK. Your report describes concerns raised by
    some Commission staff that Chairman Jaczko controls and
    restricts the information provided to his fellow commissioners.
    Some of this appears to be due to a change in management style.
    For example, Chairman Jaczko has taken a more hands-on role in
    the budget process. As your report describes, the chairman
    meets with division directors to provide direction on the
    Agency's priorities, and then each division formulates a budget
    document and submits it to the chairman and the chairman sees
    the budget as his responsibility and it says that he is
    entitled to develop the budget as he sees fit. Mr. Bell,
    although some staff and commissioners may not like this
    approach, does it mean it was illegal?
        Mr. Bell. It is not illegal and it is the prerogative of
    the chairman to the direction of the budget. And this chairman
    has elected to have the budget filter through him and his
    office and then he disseminates it back to the Commission.
        Mr. Waxman. Now, Chairman Jaczko made a decision that there
    should be an orderly shutdown of Yucca Mountain because he did
    not think that the NRC was going to have enough funds to pursue
    the matter. Wasn't that decision vindicated by the continuing
    resolution passed overwhelmingly by the House and the Senate
    and signed by the President where $10 million was provided to
    close out Yucca Mountain's consideration?
        Mr. Bell. Well, obviously, yes, sir. And a decrease in the
    budget for the High-Level Waste Program was one of the
    contributing factors to moving toward a closeout because it
    eventually was a zero budget for High-Level Waste.
        Mr. Waxman. So the chairman made a decision about the
    budget and others might not have agreed with it, but he made
    that decision and it looked like it was vindicated by the
    actions of the Congress.
        Similarly, the chairman has taken a more active role in the
    planning of the Commission's agenda. At times he has directed
    staff to not develop an issue paper for the review of the whole
    Commission. At other times he has determined that an issue
    paper is an administrative matter, not a policy matter worthy
    of consideration by the Commission. The IG report states that
    the chairman wants to control the flow of policy issues to the
    Commission to allow them to be more efficient. Of course, some
    disagree and see this as a means to limit the information
    available to other commissioners. Mr. Bell, although some staff
    and commissioners may not like this chairman's approach, does
    that mean it is illegal?
        Mr. Bell. It is not illegal because remember I said that
    any commissioner has an opportunity to write a COM and get a
    majority vote on the COM and then it moves from a policy space
    to Commission space. But you have to have majority Commission
    agree with the COM. So he has not done anything illegal, but
    each commissioner knows if they want to move an issue from the
    chairman's purview to the Commission's purview, then they have
    to get a majority vote by writing a COM and having the
    commissioners vote on it. To date that hasn't been done.
        Mr. Waxman. What is a COM?
        Mr. Bell. A communication memorandum of an issue that they
    want to bring forward.
        Mr. Waxman. I see. So they could have acted to take this
    issue away from the chairman but they did not.
        Mr. Bell. They can take any issue that they get a consensus
    on, a majority vote on and move it from the chairman's purview
    to the Commission agenda.
        Mr. Waxman. OK. It seems to me that the chairman's
    interpretation of his role and responsibilities differs from
    how other commissioners see his role and responsibilities. And
    this seems to appear to be the root cause of the conflict. Your
    report, Mr. Bell, also notes that Chairman Jaczko has a ``bad
    temper'' and created what some employees describe as an
    ``intimidating work environment.'' And that Chairman Jaczko
    admits in the report to having a short fuse, especially with
    his fellow commissioners. Mr. Bell, he obviously should work on
    his interpersonal skills at the office, but does this mean his
    behavior is illegal?
        Mr. Bell. No.
        Mr. Waxman. And I could just say from my own experience, I
    serve on this committee, I know my colleagues in a professional
    way. I am surprised when I hear that some of them have a huge
    temper and they are rude to their staffs. I am shocked when I
    hear that some of the colleagues that I serve with on the
    committee might Twitter things to people. I just don't have any
    knowledge of it but I guess the members of this Commission and
    the staff noticed his poor interpersonal skills. Not admirable,
    is it? That is, I guess, a rhetorical question, Mr. Bell.
        Mr. Green said that the report does not find illegal
    conduct, nor does it make any assertion more generally about
    whether the administration's decision to close Yucca Mountain
    repository was proper. Is that an accurate statement? Should I
    repeat it?
        Mr. Bell. Yes, repeat it again, sir.
        Mr. Waxman. He said that the report does not find illegal
    conduct, nor does it make any assertion more generally about
    whether the administration's decision to close Yucca Mountain
    was proper.
        Mr. Bell. Yes, that is accurate.
        Mr. Waxman. And then Mr. Green went on to say I do think
    Congress needs to address the issue. But Congress did address
    the issue in the continuing resolution.
        Mr. Shimkus. The gentleman's time has expired.
        Mr. Waxman. Is that a correct statement?
        Mr. Shimkus. You can answer him, Mr. Bell.
        Mr. Bell. Yes.
        Mr. Waxman. Thank you, Mr. Chairman.
        Mr. Shimkus. The gentleman's time has expired. The chair
    now recognizes the chairman emeritus of the full committee, Mr.
    Barton, for 5 minutes.
        Mr. Barton. Thank you, Mr. Chairman.
        I don't know where these rumors come from that Members have
    tempers. That must be on the minority side. We are all peace
    and light and sunshine on the majority side, you know, so----
        Mr. Waxman. I read a Twitter about it.
        Mr. Barton. You read a Twitter about it? Well, we will
    investigate those rumors, Chairman Waxman, get to the bottom of
    it.
        I want to put into the record, Mr. Chairman, an article
    from the December 2010 periodical called ``Waste Management.''
    It is part of the Nuclear News magazine and it refers to former
    Chairman Dale Klein's comments. He wrote an open letter to the
    Commission and to several journalists about this issue that we
    are debating today or investigating today. And I will put the
    entire article in the record but part of his open letter
    states--this is former NRC chairman Dale Klein--that ``there
    was no intention by the Commission''--by that he means the
    NRC--``to approve or even contemplate a preemptive termination
    of the High-Level Waste Program.'' I would ask that this be put
    into the record.
        Mr. Shimkus. Is there objection? Hearing none, so ordered.
        [The information follows:]

        Mr. Barton. OK. I have read the executive summary, Mr.
    Bell, of your investigatory report and I listened as you
    answered some questions from Chairman Waxman. It is my
    understanding that one of your conclusions is that while
    Chairman Jaczko didn't act appropriately, it is your opinion
    that he did not violate any law. Is that correct?
        Mr. Bell. That is correct, sir.
        Mr. Barton. Now, I have a different opinion and I am not an
    inspector general so my opinion is just that. I think it is an
    informed opinion. But I have read the statute that applies to
    the Nuclear Regulatory Commission and it has language that says
    the chairman ``must fully inform other commissioners of all
    pending actions.'' You yourself in your report say that
    Chairman Jaczko I believe said misled but he certainly didn't
    fully inform all the other commissioners. If that is a true
    statement, how can he not have violated federal law?
        Mr. McMillan. Sir, what we are attempting to convey in the
    report was the fact that if the commissioner on the Commission
    wanted to move his decision from budget space to policy space,
    there was a mechanism by which to do that. And clearly,
    Commissioner Ostendorff attempted to do that with his COM in
    October shortly after the CR memorandum guidance.
        Mr. Barton. How can you put the burden on a commissioner if
    the chairman has the information and the chairman doesn't fully
    inform the other commissioners? I mean how can you then put the
    burden of proof so to speak on an uninformed unaware
    commissioner?
        Mr. McMillan. It was the responsibility to ensure all the
    commissioners understood the purpose of the budget guidance
    memorandum. That clearly was a responsibility of the chairman.
        Mr. Barton. If I understand your report correctly, he
    failed that responsibility. Is that not correct?
        Mr. McMillan. The report reflects the fact that the
    commissioners that were involved in that process went to the
    chairman and indicated that had they known that the SER was
    going to be stopped that they would not have even given tacit
    approval towards moving that document----
        Mr. Barton. So that would appear to me to factually prove
    that he violated the law. I mean I don't know how you can have
    it any other way. He has got an obligation under law to fully
    inform the commissioners. Your own report indicates that he
    didn't fully inform. The commissioners said that had they
    known, they would have taken preemptive action to prevent what
    he did. He violated the law. He did not uphold his
    responsibility under the statute. That is clear layman common
    sense. My time has expired. I have two more things I want to
    state.
        Before you issued this report about him not violating the
    law, did you check with outside legal counsel on that issue?
        Mr. Bell. No, we didn't, sir.
        Mr. Barton. Did not. So this is an internal decision. What
    is your opinion, Mr. Inspector General, as of right now the
    licensing application for Yucca Mountain? Is it active? Has it
    been terminated? Should it still be acted upon? What is the
    legal standing given that the Construction Authorization Board
    refused to allow the Department of Energy to withdraw that
    application?
        Mr. Bell. Well, the ASLB denied the appeal. So the
    application is still before the Commission. And until----
        Mr. Barton. So it is active? It should be acted upon. The
    Commission should make a decision on it. Is that not correct?
        Mr. Bell. Correct.
        Mr. Barton. Thank you, Mr. Chairman.
        Mr. Shimkus. Thank you. The chair now recognizes the
    gentlelady from Colorado, Ms. DeGette, for 5 minutes.
        Ms. DeGette. Thank you very much, Mr. Chairman.
        Mr. Bell, in the beginning of your report, you provide some
    historical background for the structure of the NRC and more
    specifically for the chairman's authority. I think this is
    important based on the last questioning. I understand that when
    the Commission was established, much of the power was evenly
    distributed among the commissioners, is that correct?
        Mr. Bell. Under the Reorganization Act?
        Ms. DeGette. Under the original structure of the
    Commission, much of it was evenly distributed, right?
        Mr. Bell. Yes.
        Ms. DeGette. And then it was changed and it was changed
    because of Three-Mile Island, is that right?
        Mr. Bell. Correct.
        Ms. DeGette. And after Three-Mile Island, both the
    Presidential Commission and an NRC-commissioned review
    identified issues with that structure I described with the
    equal power, and so they completely overhauled the Commission's
    structure. Is that right?
        Mr. Bell. Correct.
        Ms. DeGette. Now, can you talk to me for a minute about
    some of the expanded duties and responsibilities of the
    chairman under that Reorganization Plan in 1980?
        Mr. McMillan. Specifically, ma'am----
        Ms. DeGette. Mr. McMillan?
        Mr. McMillan [continuing]. Under Section 2 of the
    Reorganizaiton Plan, it assigns the chairman responsibility for
    all functions, serving as the Commission's spokesman, serving
    as the Commission's principle executive officer responsible for
    developing policy planning and guidance for consideration by
    the Commission. It also assigns him the responsibility of the
    administrative functions of the Commission, distribution of
    business among the offices of the Commission and preparation of
    the budget estimates, and then proposed the distribution of
    appropriated funds. The Reorg. Plan states that the chairman
    determines the use in expenditure funds of the Commission in
    accordance with the distribution of appropriated funds. So
    clearly, he has got some unique responsibilities and duties----
        Ms. DeGette. Right.
        Mr. McMillan [continuing]. That are different than those of
    other commissioners.
        Ms. DeGette. He has got additional responsibilities and
    duties?
        Mr. McMillan. Yes, ma'am.
        Ms. DeGette. Is that right?
        Mr. McMillan. Yes, ma'am.
        Ms. DeGette. And that plan was approved by Congress as I
    understand it.
        Mr. Bell. 1980.
        Ms. DeGette. And it was approved in 1980? Thank you.
        Mr. Bell. Reorganization.
        Ms. DeGette. And so really to say what may or may not have
    happened in this situation with Chairman Jaczko is illegal is
    probably inaccurate, and I think you have answered that about
    10 times. Is that correct, Mr. Bell?
        Mr. Bell. Yes.
        Ms. DeGette. So, Mr. Chairman, I would like to make a
    suggestion. And Mr. Murphy will tell you we had a very, very
    informative trip last week where we looked at nuclear disposal,
    studies for permanent and also reprocessing and interim
    disposal. And I have been interested in this issue for many,
    many years ever since I went to Yucca Mountain with Chairman
    Emeritus Barton and I have been thinking, irrespective of what
    you think about the issue of nuclear energy for this country as
    a policy, the fact is that we have to grapple with this, and we
    have to grapple with it in a way that is science-based, not in
    a way that is based on politics.
        And the concern I have is that in this country, much of
    what we have done--and you can argue on either side of the
    aisle who is more at fault--is we base our issues on how we
    should dispose of the current and future nuclear waste,
    politics and not on science where it will work.
        And so I guess my suggestion would be, look, we are in a
    situation right now where we had looked at Yucca Mountain, they
    were undergoing their scientific studies. The last
    administration tried to expedite the certifications even though
    the studies weren't over, and now this administration has shut
    it down. And we can argue back and forth whether what the
    chairman did was illegal or just wrong or maybe not wrong at
    all or maybe just a miscommunication. We can argue about all of
    that, but the truth is we now don't have a permanent facility
    that is either certified or under certification process. And it
    seems to me that that would be a very fertile area for us to
    look at in this committee because at some point, irrespective
    of how we decide to take our nuclear energy policy in the
    future, we are going to have to grapple with this.
        And so that would be my suggestion. We can waste a lot of
    time arguing about these details or we can move forward and say
    what are we going to do now coming from where we come?
        Thank you and I yield back.
        Mr. Shimkus. The gentlelady yields back her time. And I
    would just say that the delay of the SER report is a delay of
    science-based information for Yucca. That is part of this whole
    debate is the SER report, which has been delayed. And I yield 5
    minutes to the vice chairman of the committee, Mr. Murphy, for
    5 minutes.
        Mr. Murphy. Thank you, Mr. Chairman.
        It certainly is important from my friend from Colorado that
    it is important to adhere to scientific information because the
    implication is not only what happens to Yucca Mountain, but
    this impacts the credibility of the NRC on many issues of
    licensing.
        So Mr. Bell, last week, Chairman Jaczko issued a press
    release claiming your office has exonerated him of any
    wrongdoing. I am not certain that the report really supports
    that interpretation so let me ask this: first of all, on the
    matter of the continuing resolution budget guidance issued
    unilaterally by the chairman, your report makes it clear that
    the senior career NRC managers and other commissioners and even
    the chairman himself believed it to be a policy matter. Is that
    correct?
        Mr. Bell. Yes.
        Mr. Murphy. Now, in fact, on page 22 of your report you say
    that the chairman told the executive director of operations,
    ``There may be commissioners who don't agree with this and will
    try to make it a policy issue.'' Your report states that the
    EDO had already advised the chairman that this was a policy
    matter--on page 15--and therefore, it should have been brought
    before the Commission, is that correct?
        Mr. Bell. Yes.
        Mr. Murphy. I believe the quote on page 15 is that, ``He
    believed that if the commissioners decide the matter was a
    policy issue, they could vote on it.'' He said, ``he expressed
    his concerns''--the chairman--``that the Commission needed to
    see the memorandum.'' And your report also details the efforts
    of the chairman and his staff made to mislead the
    commissioners, deny them the information they needed to make an
    informed decision, and prevent other commissioner views on this
    matter being considered. Is that correct?
        Mr. Bell. Yes.
        Mr. Murphy. Now, is it a crime to mislead?
        Mr. Bell. It is not a crime but it certainly is not an up-
    front way to do business. And also the exoneration--the
    chairman's statement was the chairman's statement. We had no
    input or anything into the chairman's statements just for the
    record.
        Mr. Murphy. And is it against the law to overturn a statute
    that Congress has passed and signed into law?
        Mr. Bell. No.
        Mr. Murphy. It is not a crime--not illegal to do that?
        Mr. Bell. I mean if Congress overturns it?
        Mr. Murphy. No. If there was a statement that says that the
    chairman and executive director of operations to the chairman
    shall be responsible for ensuring that the Commission is fully
    and currently informed about matters within its functions. And
    that was signed into law and that is specifically,
    categorically an order. Is that illegal?
        Mr. Bell. It is wrong.
        Mr. Murphy. OK. Is the chairman of the NRC statutorily
    required, then, under the Reorganization Plan of 1980, as
    amended, to keep its commissioners fully and currently
    informed?
        Mr. Bell. Yes.
        Mr. Murphy. OK. So the chairman and executive director of
    the NRC are required under law, as you said, to keep the
    Commission fully and currently informed of Agency activities.
    Do you conclude from your investigation that this is currently
    happening that it is fully and currently informed? Is that your
    conclusion that it is fully happening or it is not happening?
        Mr. Bell. It is not being fully informed, correct.
        Mr. Murphy. OK.
        Mr. Bell. Now, I think the chairman has given them just
    enough information to proceed in the manner that he wanted to
    proceed with the----
        Mr. Murphy. But that isn't the matter that the chairman
    wanted to----
        Mr. Bell. But that----
        Mr. Murphy. From what you have said so far on a couple of
    occasions now that that runs contrary to what the statute says
    was passed by Congress and signed into law by the President. So
    how does failure to follow statutory obligations exonerate the
    chairman's actions?
        Ms. Raspa. I am sorry. What was the question?
        Mr. Murphy. My point is, given the statements made by Mr.
    Bell here in reference to this statute, my question then how
    does failure to follow statutory obligations exonerate the
    chairman's actions? You have to put the microphone up close,
    ma'am.
        Ms. Raspa. The reorganization plan was premised on keeping
    the commissioners informed of matters within their purview. And
    so they were aware of the chairman's actions. They didn't fully
    understand the implications of that CR budget memorandum.
        Mr. Murphy. But I challenge that. As Commissioner Magwood
    stated, ``The chairman never told him his plan had been to shut
    down the High-Level Waste Program and withhold publication of
    SER Volume III. The chairman responded to him, you should have
    asked.'' So is intent to mislead by withholding information to
    effect behavior an actual policy matter, isn't this a violation
    of the statute?
        Mr. McMillan. What we attempted, again, sir, to do was to
    lay out what transpired during the course of these sequence of
    events and leave the interpretations whether it be regarding
    legality, OK, to others.
        Mr. Murphy. I understand.
        Mr. McMillan. Clearly, when you have----
        Mr. Murphy. I am not asking whether this is criminal or
    not. I think this is a whole other legal issue. The question is
    is it a violation of the statute? Is it a violation of the
    statute in terms of what they actually did, what was actually
    going on?
        Mr. McMillan. One could draw that conclusion that it is
    opposite the intent of that statute, yes.
        Mr. Murphy. Thank you. I yield back.
        Mr. Shimkus. The gentleman's time has expired. The chair
    now recognizes the gentleman from Kentucky, Mr. Whitfield, for
    5 minutes.
        Mr. Whitfield. Thank you very much. And, Mr. Bell, thanks
    for being with us today. We appreciate it.
        I want to touch on, initially, the Department of Energy's
    motion to withdraw the application, which was denied by the
    Appeal Board. And then after that and the subject of a lot of
    this is the fact that there has not been a final vote by the
    Commission on whether or not to uphold the Appeal Board.
        And Chairman Ostendorff said--and I want to know if your
    investigation affirmed this--but he said that he went to
    Chairman Jaczko on September the 9th, September the 14th,
    October the 5th, October the 19th, October the 27th wanting to
    know when they were going to vote on this. Did your
    investigation affirm that?
        Mr. Bell. Yes.
        Mr. Whitfield. He did talk to him on those occasions? OK.
    And Chairman Jaczko told him that he was delaying it because he
    was concerned that a 2-2 vote would leave the Appeal Board
    decision in limbo, is that correct?
        Mr. Bell. That is correct.
        Mr. Whitfield. And some of the Commission members felt like
    a 2-2 vote would actually uphold the Appeal Board decision, is
    that correct?
        Mr. Bell. In most instances, a 2-2 vote does uphold.
        Mr. Whitfield. So what did your investigation find out that
    Jaczko was thinking about when he said it would leave the Board
    in limbo--the decision in limbo?
        Ms. Raspa. Regarding the adjudicatory matter, we could only
    look into the process of their votes. We could not look at
    their thinking and what was behind their thinking in casting
    those votes.
        Mr. Whitfield. OK. But a 2-2 vote upholds the Board and at
    least some people are saying that Jaczko is saying well, I
    didn't want to vote because I am afraid a 2-2 vote would leave
    this in confusion. OK.
        In addition to that, I just read through some of this
    testimony and your report and it says that Chairman Jaczko
    controls and restricts information available to his fellow
    commissioners. Did you have people say that?
        Mr. Bell. Yes, we had.
        Mr. Whitfield. They view him as unprofessional and
    manipulative. Did you find that?
        Mr. Bell. That was things that have been said also, yes.
        Mr. Whitfield. They find that he suppresses papers and
    manipulates the agenda planning process because he wants to
    control the sequence of papers to be presented to the
    Commission.
        Ms. Raspa. The chairman has also indicated that he is
    trying to prioritize those matters that----
        Mr. Whitfield. I am not asking what he is trying to do. I
    am just asking was this told to you. It says here that you were
    told that the chairman withholds information to the Commission
    by either suppressing papers or manipulating the agenda.
        Mr. Bell. Yes, we were told that.
        Mr. Whitfield. You were told that? OK. You were also told
    that the distinction between policy issues and administrative
    actions is a subject of contention within the Commission, is
    that correct?
        Mr. McMillan. Yes.
        Mr. Bell. That is correct. Yes, sir.
        Mr. Whitfield. And, of course, the chairman would like if
    he wants it to be administrative, then it is not a policy
    matter so he would have more control over that, is that
    correct?
        Mr. Bell. That is correct. Anything that is not policy he
    would have.
        Mr. Whitfield. OK. And it says that some people have said
    that he acts in an unprofessional way, that he uses
    intimidation, that there is a work environment of intimidation,
    he yells at people, his tactics have a negative impact on the
    camaraderie in the office or in the Agency. He rules by
    intimidation. His behavior creates an environment in which it
    is difficult for people to work with him. He even said that
    himself. And the thing that disturbs me about this here you
    have a chairman of a Nuclear Regulatory Commission that has
    such a dramatic impact on this country that is now resulting in
    legal judgments against the Federal Government paid for by
    taxpayers, and the clear impression is that we have one
    chairman over there who is unprofessional, who intimidates, who
    manipulates, and this has all been testified to by people that
    you have interviewed. Is that correct?
        Mr. Bell. That is correct.
        Mr. Whitfield. And would you say that the tenure of that
    would be a violation of the Energy Reorganization Act of 1974
    if you are trying to have a collegial atmosphere and provide
    transparency and information, what has been testified to by
    these people, his actions would be violating that Act, wouldn't
    it?
        Mr. Bell. I don't think it violates the Act. I mean the
    judgment and the personality and everything that goes with his
    demeanor at times people consider it unprofessional.
        Mr. Whitfield. All right. I see my time has expired.
        Mr. Shimkus. The gentleman's time has expired. The chair
    recognizes the gentleman from Pennsylvania, Mr. Pitts, for 5
    minutes.
        Mr. Pitts. Thank you, Mr. Chairman.
        Mr. Bell, in your report you asked the chairman to respond
    to your office on what, if any, action he intends to take in
    response to your investigation. To your knowledge, does the
    press release last week by Chairman Jaczko that he was
    exonerated represent the views of the Commission?
        Mr. Bell. No, that is the chairman's press statement. That
    is his press release to the report.
        Mr. Pitts. Do you consider his press release an adequate
    response to your report?
        Mr. Bell. That is not a response to me at all. That is just
    a press release that he issues publicly. So we have not had any
    correspondence with the chairman about the report yet.
        Mr. Pitts. What do you intend to do if the chairman fails
    to respond formally to your report?
        Mr. Bell. I mean the report stands on its own and the
    report will stay open until we get some response. If we don't
    get a response, then the actual report itself will be closed
    until we get some notice from the chairman. Then it would be an
    open report.
        Mr. Pitts. All right. Regarding the issuance of the CR
    guidance, the executive director for operations on page 15
    said, ``expressed his concerns to the chairman that the
    Commission needed to see the memorandum.'' And the chairman
    told him ``the memorandum would not be issued until the other
    commissioners were on board with the memorandum language.'' The
    EDO went on to testify that ``the Chairman told him that all
    four commissioners were in agreement with the language.'' Is
    that correct?
        Mr. Bell. That is what we were told, yes.
        Mr. Pitts. Now, you conclude that the chairman selectively
    mislead three commissioners and to one commissioner he revealed
    nothing at all about the CR guidance to close out the Yucca
    review, is that correct?
        Mr. Bell. That is correct.
        Mr. Pitts. So someone's testimony appears to be false here.
    Either the EDO is misstating that he received this assurance
    from the chairman or the chairman did not tell the truth to the
    EDO about having the agreement of the other commissioners. How
    do you reconcile this testimony?
        Ms. Raspa. The chairman did not recall when asked if he had
    communicated to the EDO and exactly what he had communicated in
    terms of giving him the green light to issue this CR
    memorandum. However, the EDO, as you have indicated, does say
    or did tell us that the chairman told him the memorandum could
    be issued, all were on board, he had spoken to all the
    commissioners. And therefore, based on that, he signed the CR
    memorandum.
        Mr. Pitts. Well, I think a question raised by this report
    here is that somebody is not telling the truth in this process.
    Your report lays out what people say, but you do not connect
    the dots. What are the next steps?
        Ms. Raspa. We cannot say that the chairman lied to us. He
    said he did not recall what he told the EDO quite frankly. That
    is in our report. There is a conflict and sometimes you can't
    resolve that conflict.
        Mr. Pitts. Is this investigation continuing? Are there
    other facts and issues that you believe warrant investigation?
        Mr. McMillan. At this juncture this is still an open
    investigation. If something were to be presented to us that
    necessitated us looking at a particular issue related to the
    allegations themselves, then clearly we would take it under
    that context, you know, to assess. But as Ms. Raspa said,
    occasionally in an investigation, as you are cognizant of, you
    can't always reconcile the testimonies between people. There
    was no anecdotal documentary evidence to line up specifically
    what the chairman recalled or did not recall in relationship to
    the EDO's testimony that it was, in fact, told to him. So this
    was a point that we just could not resolve regarding that
    communication.
        Mr. Pitts. So it appears that Chairman Jaczko has let
    politics trump science here, that he has manipulated the
    process. He has misled some of the fellow commissioners about
    the consequences of the actions they were taking. And I think
    the credibility of the NRC has been damaged. Its reputation has
    been damaged. There are some real serious questions about the
    Agency's independence and scientific integrity, and I thank you
    for your testimony.
        Mr. Shimkus. The gentleman's time has expired. The chair
    recognizes the gentleman, Mr. Bass, for 5 minutes.
        Mr. Bass. Thank you, Mr. Chairman. I just want to follow up
    very quickly on a line of questioning that Mr. Pitts brought up
    at the beginning of his time.

        It is my understanding that the chairman of the NRC sent
    out a press release after this report was published exonerating
    himself. Is that the only response that he is required to make
    to your report?
        Mr. Bell. The press release is not a response to my report.
    His response to my report has to be directed to me.
        Mr. Bass. And he hasn't done that, right?
        Mr. Bell. No, he hasn't done that. I mean we normally----
        Mr. Bass. He has no obligation to either, right?
        Mr. Bell. Well, no, we give him an opportunity to respond,
    and normally we give 120 days.
        Mr. Bass. So if nothing happens in 120 days, it is the end
    as far as you are concerned?
        Mr. Bell. Well, it is the end of what we looked at.
        Mr. Bass. Yes. All right. Fair enough. I have a couple of
    questions regarding control of Commission information.
        Mr. Bell, is it your experience that under former
    chairmen's staff could bring policy matters directly to the
    full Commission?
        Mr. Bell. Under previous chairmen?
        Mr. Bass. Yes. Is it your experience that under previous
    chairmen it was the standard that staff could bring policy
    matters directly to the full Commission?
        Mr. Bell. I don't know firsthand but it has never come to
    us in a manner that was disputed like this.
        Mr. Bass. All right. Fair enough. Yet your report under
    Chairman Jaczko the staff was not able to bring policy matters
    directly to Commission, were they?
        Mr. McMillan. I can help clarify that to some degree.
        Mr. Bass. Yes, certainly.
        Mr. McMillan. The staff has periodic meetings, OK, with all
    of the commissioners, including the chairman. And during the
    course of those meetings, a variety of issues are serviced
    which is coming from the staff in and of itself. It is just the
    manner by which the current chairman handles the agenda if you
    would is where there has been some disconnects from previous
    chairmen in the Commission itself.
        Mr. Bass. Well, do you think it is fair to say that the
    staff were constrained from communicating policy matters to the
    full commission or on matters that the chairman may have had a
    disagreement with staff?
        Ms. Raspa. I think that as Mr. McMillan indicated, the
    staff does communicate with each of the commissioners. They
    generally know what the staff may be working on. What becomes
    more difficult is when the staff is looking for guidance and
    wants to, for example, get a paper up to the commissioners that
    that process has to go through the EDO who in turn has to go
    through the chairman. And it is at that point where even though
    the commissioners know, they may not know always real time as
    items are coming up they have to be prioritized.
        Mr. Bass. Let me reconstruct the sentence. Do you think
    that the staff was constrained from communicating policy
    matters to commissioners at any time?
        Mr. Bell. I would say yes.
        Mr. Bass. OK. Fair enough. According to your report on page
    29, the executive director of operations, EDO, said the
    chairman did not want any differences between his budget and
    staff's budget and sought as his budget proposal. The chairman
    also wanted the opportunity to review and change any of the
    staff's responses to the commissioners' questions. Do you
    believe unilaterally editing staff information supplied to the
    Commission is an appropriate way to manage Agency information
    sharing?
        Mr. Bell. Well, again, this chairman has operated
    differently than previous chairmen. And previous chairmen it
    was a more open and collaborative discussion of the budget.
    This chairman has sought to take the budget as his
    responsibility and has taken full responsibility for it. I mean
    if commissioner officers seek any information from any office,
    then all this information has to be filtered back through the
    chairman's office for a response.
        Mr. Bass. So in your opinion, unilaterally editing staff
    information supplied to the Commission is an appropriate way,
    then, to manage Agency information?
        Mr. Bell. No.
        Mr. Bass. OK. Fair enough. Your report on page 37 that the
    chairman's budget estimate was submitted to the Commission
    without fundamental supporting documents presented by the
    staff, is that correct?
        Mr. Bell. Correct. But I think that has subsequently,
    though the general counsel, has advised the chairman's office
    that when he submits budget information to any of the offices
    that there has to be supporting documentation to support the
    budget or the appearance is everything is coming from the
    chairman himself. So I think the chairman has recognized that
    in the future any budget items that go forward has to have some
    supporting documentation from the office that provided the
    budget information.
        Mr. Bass. Mr. Chairman, I am out of time. I yield back.
        Mr. Shimkus. The gentleman yields back his time. The chair
    recognizes the gentleman from Ohio, Mr. Latta, for 5 minutes.
        Mr. Latta. Well, thank you very much, Mr. Chairman. And
    thanks very much for being here today. Sitting through these
    hearings I have come to the conclusion if I was teaching
    federal administrative law in law school, I would have the
    perfect case study to do. And also having been a county
    commissioner back in the State of Ohio where we actually had
    rules and regulations that we had to follow, this is amazing.
    And I know that Chairman Barton expressed that in the last
    hearing, and I am just astounded what I have been hearing today
    and also when I read the report because, you know, I make lots
    of tabs and everything else.
        But if I could, you know, the questions, you know, you said
    it is the prerogative of the chair who gets the information,
    but, you know, first of all, doesn't this Board sit as a quasi-
    judicial board, Mr. Bell? Would it sit as a quasi-judicial
    board?
        Mr. Bell. Quasi-judicial board?
        Mr. Latta. Right, when it is making its rulings. And it has
    to hear from all the parties and it has to have the information
    come before the Board?
        Mr. Bell. I think the Commission as a whole has to make a
    decision----
        Mr. Latta. Right, but the Board makes the decision but is
    it quasi-judicial as it is doing this?
        Mr. Bell. Yes.
        Mr. Latta. OK. And would you also say that the Commission
    needs to make timely actions on their actions when they have
    something come before it? Because if you don't, justice delayed
    is justice denied in these cases. Would that be a fair
    statement?
        Mr. Bell. Well, to think that within a certain time frame
    after anything has happened that you would have motions going
    forward to end whatever they are in the process of doing.
        Mr. Latta. Yes, and also following along, then, when the
    Commission's own internal procedures say the commissioners
    should vote within 10 business days and parties are waiting for
    the outcome, isn't holding a vote unfair in that situation?
        Mr. Bell. Well, it seems unfair but there is no--I mean the
    voting processes are relaxed. It is not enforced the way it
    should be.
        Mr. Latta. And I did find your report very, very
    interesting because on page 36 when you were talking about the
    chairman told the OIG he did not recall the email from his
    chief of staff advising him not to request an extension to vote
    and that he did not realize an extension was required on
    adjudicatory matters if a vote was not cast within 10 days. He
    said that the Commission does not always act in accordance with
    procedures. For example, the procedures say that the Commission
    votes on matters within 10 days, but then he goes on. He said
    that the Commission procedures are a guideline and not absolute
    rules, which take us back to what was being said here earlier,
    going back to the Reorganization Plan within Section 1, Section
    2, you know, it really lays out what the Commission is supposed
    to be doing. Did the Commission act the way it should have been
    acting under its own rules and regulations.
        Mr. Bell. No. No.
        Mr. Latta. OK. Going on. On page 29, again, this report is
    just fascinating. Page 29 when you were interviewing
    Commissioner Ostendorff talking about what was going on July
    the 11th, 2010, it says the general counsel, again, the general
    counsel--the attorney--told Commissioner Ostendorff that it was
    his experience that there were certain issues that the chairman
    does not want to hear from him on. He goes on to say ``the
    conversation left him with the impression that there was
    possibly not an open environment for OGC to provide unfiltered
    advice to the chairman without fear of retribution.'' Is that
    the way that we have due process being carried out in one of
    our administrative boards or commissions here? You know, going
    back to the whole idea of due process and getting something
    done, did that occur under the policy of the Commission?
        Mr. Bell. That is what we were told. I mean this is what
    Commissioner Ostendorff said that the general counsel told him.
    Again, I mean, you know----
        Mr. Latta. OK. And again, in your opening statement, again,
    you know, intriguing. Page 7, again, in your opening statement,
    you know, it is very interesting. The first full paragraph when
    you said in the second line ``OIG also found that although the
    chairman had authority to direct staff to follow the FY 2011
    budget guidance, he was not forthcoming with other
    commissioners about his intent to stop work on the SER as part
    of the implementing of his closeout activities.'' So again, is
    that proper procedure under the law and under what they have as
    their rules and regulations at the NRC?
        Mr. Bell. No.
        Mr. Latta. OK. And just real briefly, you know, when you
    are saying ``not forthcoming,'' and I think the term by one of
    my fellow colleagues appears something about being misled, you
    know, are we talking about a word that we should be using is a
    lie, to mislead? Is it a lie to not be forthcoming or are we
    just talking about what some people like to talk about back
    home--they call it a lie back home but here we are talking
    about a white lie?
        Mr. McMillan. That is for a characterization, is a white
    lie or an outright--it was clear that the commissioners that
    spoke with the agents conveyed the fact that they did not have
    all the information to believe that that SER was going to be
    stopped as a part of that budget guidance memorandum. That is
    factually what we were told by each of those commissioners that
    we interviewed. Now, the characterization as to his intentions
    behind it, his mens rea thoughts about it, we didn't get into
    that quite frankly with regard to--what we were trying to do
    was line up what occurred when and how did this document get
    out without their concurrence if you would. And that is what
    they told us is that they had no knowledge that the SER was
    going to be stopped.
        Mr. Latta. Thank you. Mr. Chairman, I see my time is
    expired and I yield back.
        Mr. Shimkus. The gentleman yields back his time. The chair
    is going to ask unanimous consent that Mr. Markey be recognized
    for 5 minutes. Without objection, so ordered.
        Mr. Markey. Thank you, Mr. Chairman, very much.
        I find it highly ironic that we are having a hearing to
    express the majority's apparent surprise that matters related
    to Yucca Mountain are sometimes political. This issue has been
    nothing but political from the very beginning. The Department
    of Energy was supposed to select two scientifically appropriate
    sites, one east of Mississippi and one west of Mississippi
    River. But the Speaker of the House then said he didn't want it
    in Texas. That was one of the sites. The second site was in
    Washington State. The majority leader came from Washington
    State. He said I don't want it in Washington State. It was out.
    The third state was the salt domes in Louisiana. The chairman
    of the Committee on Energy from the Senate said I don't want it
    in Louisiana. The fourth site was in North Carolina. The
    ranking Republican on this committee said I don't want it in
    North Carolina. Mississippi itself was a potential site, but
    they had a very powerful delegation at that time and they said
    we don't want it in Mississippi.
        And John Sununu as the Governor of New Hampshire on behalf
    of George Bush running for president in '88 said we don't want
    it in the granite formations of New Hampshire. And so the
    nuclear queen of spades wound up--not on a scientific basis but
    a political basis--political, political, political--in Nevada.
    That is how it all happened. I was here. I was saying you make
    a political decision you are going to wind up with big
    scientific problems at the end of the day, big scientific
    problems. So Congress actual--this committee barred the
    Department of Energy from looking at any other site other than
    Yucca Mountain. We used political science, not real science to
    hand that nuclear queen of spades to Nevada. That is the legacy
    this committee left.
        The problem is that Yucca Mountain has two fault lines
    running through it and is in an active earthquake zone. There
    have been more than 600 earthquakes within 50 miles of the site
    within the past 20 years. We saw just how earthquakes can
    impact spent nuclear fuel in Japan just a few months ago.
    Moreover, in 1997 scientists found that plutonium from nuclear
    weapons tests that had been conducted just a few decades
    earlier had migrated a mile through water in the rock near
    Yucca Mountain, which contradicted earlier assertions that the
    repository site was geologically isolated from the water table.
        So basically what we had was Congress writing a law that
    Yucca Mountain was a nuclear Alcatraz from which there could be
    no migration of this nuclear material. But scientists said it
    was more like a nuclear sieve. And we heard that from the
    National Academy of Sciences back then in 1987 and '86. We
    heard that from them here, but this committee and other
    committees ignored that warning.
        The Obama Administration bravely recognized that moving
    forward with Yucca Mountain was not the scientifically
    appropriate direction to take. DOE withdrew its license
    application and Congress started to slash funding for the
    project. Chairman Greg Jaczko then did what any permitting
    office would do when a building plan is cancelled. He stopped
    spending money processing the permit. Although members of this
    committee have accused him of doing something illegal, the NRC
    Inspector General and general counsel have both found that it
    was legal and entirely within his authority to do so.
        Mr. Bell, you said earlier that Chairman Jaczko's press
    release on your report was his alone and you had no input, but
    isn't it true that you and your deputy saw this statement
    before it went out from Chairman Jaczko and you told the
    chairman's chief of staff that you had no objections. Is that
    true?
        Mr. Bell. No, that is not true. I read the statement but I
    said that was his statement. We made no changes, nothing to the
    statement. I just saw the statement because he said he was
    going to put it out.
        Mr. Markey. Did you say you had an objection to him putting
    it out?
        Mr. Bell. I said I didn't oppose him to releasing the
    statement.
        Mr. Markey. You did not oppose him in putting out that
    statement?
        Mr. Bell. No. I mean----
        Mr. Markey. OK. Great. So in finding, number one, you said
    two of the commissioners didn't understand that when the
    chairman told him that he would be using the appropriations
    process to proceed with closure of the Yucca Mountain program,
    this meant the documents necessary for the Yucca Mountain
    license would cease being prepared. On page 23, your report
    notes that when Chairman Jaczko suspected that one of the
    commissioners didn't understand the discussion they had, he
    directed his staff to follow up with the commissioner's staff
    to be sure it was clear. Do you believe that Chairman Jaczko is
    responsible for a failure by other commissioners to understand
    their support for a document that said it would begin the
    closure of Yucca Mountain's technical review and adjudicatory
    activities when the license application was withdrawn even
    after he tried to explain it to him?
        Mr. McMillan. Clearly, he said Chairman Jaczko is
    irresponsible.
        Mr. Markey. Is it his fault they didn't understand it.
        Mr. McMillan. He had a responsibility to ensure that they
    understood the content of the four squares of that piece of
    paper. And if they are saying--and what they related to us
    during the interviews was they never came to understand that
    the SER--and I think sometimes those are differences----
        Mr. Markey. Can I tell you the truth? I have a hard time
    when two commissioners on the Nuclear Regulatory Commission
    can't understand something this prosaic, this simple, when they
    have to understand the most complex nature of nuclear
    materials. So to say that they didn't understand something so
    fundamental, OK, as to the way in which the regulatory process
    works, in my opinion they did not do their job. They had a
    responsibility after they were told that that was the route
    that they were going to go.
        Mr. Shimkus. The gentleman's time is expired.
        Mr. Markey. I thank the chairman.
        Mr. Shimkus. The chair now recognizes Mr. Harper for 5
    minutes.
        Mr. Harper. Thank you, Mr. Chairman.
        Mr. Bell, when the staff reported in March of 2010 to the
    Commission about their plans for completing the Yucca Safety
    Evaluations and tight budget constraints, their plans were to
    complete Volume I and Volume III of the SER not later than, I
    believe, August and November of 2010 respectively. Is that
    correct?
        Mr. Bell. That is correct, sir.
        Mr. Harper. Now, according to your report, the EDO and
    technical staff believed that even if DOE were to withdraw the
    application, it would benefit the country to have completed the
    technical review. Is that correct?
        Mr. Bell. That is correct, sir.
        Mr. Harper. The most critical portion of the technical
    review, the SER Volume III was almost complete and on track to
    be completed well before November according to staff. Is that
    correct?
        Mr. Bell. Yes.
        Mr. Harper. Completion by the end of August is consistent
    with a not-later-than-November schedule reported to the
    Commission in March, isn't it?
        Mr. McMillan. Sir, just on that last question----
        Mr. Harper. Yes?
        Mr. McMillan [continuing]. With regards to the completion,
    that was not necessary concurrence and approval. OK. While it
    might very well have been completed by the staff to be
    forwarded up, it still had to go through a concurrence process
    including OGC, so I just want to make sure we clarified that
    point.
        Mr. Harper. Certainly. Thank you.
        Mr. McMillan. Thank you.
        Mr. Harper. But when the chairman learned that the report
    could be ready in August before the fiscal year, is it true
    that he inserted himself into the process in June and directed
    staff to slow down?
        Mr. McMillan. He directed the staff to maintain the current
    published schedule with regards to the release of the various
    products.
        Mr. Harper. OK. But did he not in fact--did you have an
    addition to that?
        Ms. Raspa. I would just note that the August time frame was
    for Volume I. It was not for Volume III. Volume III was
    anticipated in November. However, the majority of the work had
    been done and they believed they could get both volumes ahead
    of schedule.
        Mr. Harper. OK. But in fact----
        Mr. Shimkus. Would the gentleman yield just for a second?
        Mr. Harper. Yes.
        Mr. Shimkus. Which is amazing that a government agency
    would be good enough to move quickly instead of being way
    behind. So in that aspect I would applaud the NRC for being
    prompt.
        Mr. Harper. And I will go back, Mr. Bell, and ask this. In
    fact, though, the chairman did direct staff to issue the SER
    Volume III not earlier than November. Isn't that correct?
        Ms. Raspa. His June 11 memorandum speaks to not issuing
    Volume I prior to schedule. It does also speak about other
    volumes but only Volume I is specifically identified as not
    being released prior to August.
        Mr. Harper. OK. But prior to November was Volume III.
        Ms. Raspa. Volume III was due in November, correct.
        Mr. Harper. Now, was the impact of his actions in the SER
    Volume III would not be completed by what date? Did you say
    October 1?
        Ms. Raspa. November.
        Mr. McMillan. November.
        Mr. Harper. November, OK. Now, as your report on page 27,
    when senior staff discussed the chairman's actions to slow the
    completion of the SER, they indicated to the chairman that it
    would be contrary to the Agency's value of openness and
    transparency to slow down that work. Is that correct?
        Ms. Raspa. Our report reflects that one manager told us
    that, correct.
        Mr. Harper. So at least one commissioner also warned the
    chairman that it was not a good idea to slow the process, is
    that correct?
        Mr. McMillan. Yes.
        Ms. Raspa. One commissioner, yes, also agreed that it
    shouldn't be slowed.
        Mr. Harper. Did the chairman listen to the senior staff or
    other commissioners and allow the staff review to continue at
    the same pace the staff themselves had set?
        Ms. Raspa. No.
        Mr. Harper. The staff also informed the Commission in March
    30, 2010, that it planned to continue to work on any remaining
    SER volumes until fiscal year 2010 funds were exhausted, is
    that correct?
        Mr. McMillan. Correct.
        Mr. Bell. Yes.
        Mr. Harper. Were those funds exhausted by November of 2010?
        Ms. Raspa. No, they were not. By the end of the fiscal year
    2010 there was approximately $7 million remaining.
        Mr. Harper. OK. And, in fact, according to your report, the
    NRC staff including the EDO assumed as late as mid-September
    that the CR guidance would allow for continuing the license
    review with those available funds as you said. So the draft EDO
    CFO memos of mid-September bear this out. So despite the
    chairman's instructions to slow down, staff planned to continue
    work using those fiscal year 2010 funds. But the chairman
    changed that. That is where we are, right?
        Ms. Raspa. The senior staff always anticipated that they
    would be able to complete certain volumes and they were relying
    on fiscal year 2010 funds to do that.
        Mr. Harper. So this was the chairman's strategy to slow-
    walk these critical reports to October, early November, and
    then use his budget authority to ensure the staff's findings
    would not be made public. Is that correct?
        Mr. McMillan. I think the report is reflective of the fact
    that once they got into budget space, you would have to use
    another mechanism by which to change the course. And since you
    did have the budget guidance memorandum that everyone was
    complying with, it would have taken a COM at that juncture then
    to move it over into policy space.
        Mr. Harper. My time is almost up. Let me ask this question.
    Did your investigation examine whether the chairman's actions
    were directed by or coordinated with the White House or Senator
    Harry Reid?
        Mr. McMillan. We had no indications or inferences by anyone
    that came to us that assured us or stated to us that that
    occurred.
        Mr. Harper. My question was did you examine that
    possibility? Did you look into that with any of the witnesses?
        Mr. McMillan. There was nothing that would lead us to that
    from the information of the interviews that we conducted where
    anyone stated that at all so we didn't go and probe any further
    in that regard. We stayed within regards to the allegation that
    was proffered to us. And no one said that there was any
    interference by the White House at all.
        Mr. Harper. Right. But did you ask?
        Mr. McMillan. I want to get back with you on that one
    particular point just to ensure in our notes, but I just want
    to assure you that it never came up.
        Mr. Harper. OK. But my question is did you ask it through
    any communications along the lines of what I just inquired?
        Mr. McMillan. I would have to get back with you with regard
    to that specific question.
        Mr. Harper. Thank you. With that, I yield back.
        Mr. Shimkus. The gentleman's time has expired. The chair
    now recognizes the gentleman from Louisiana, Mr. Cassidy, for 5
    minutes.
        Mr. Cassidy. Thank you. Now, I appreciate Mr. Markey's
    efforts to defend his former employee, but he alleged that
    maybe those other commissioners were derelict in their
    responsibility of learning as much as they could learn. Did you
    find any evidence of dereliction of duty in learning other
    issues by the other commissioners?
        Mr. McMillan. Again, I think it was clear that when the
    commissioners were interviewed by our office, they were very
    concerned by the fact that they felt they did not have all the
    information.
        Mr. Cassidy. OK. Now earlier I think you, Mr. Bell,
    mentioned that the senior staff felt constrained in conveying
    information to the other commissioners. But just to be clear,
    would they have been constrained without instructions from the
    chairman as to what to communicate? Would they on their own
    have said oh, we shall be constrained because whatever or would
    it have been a directive from their chairman to not communicate
    certain issues?
        Mr. Bell. Well, I think it was pretty common knowledge that
    any communications that went back to the chairman had to go
    through the chairman's office.
        Mr. Cassidy. So the constraint would have come from the
    chairman.
        Mr. Bell. It was just the way this chairman has elected to
    do business, that if it is not a policy issue and his office
    can control whatever it was, whatever request commissioners
    made, whether it be the budget or otherwise. Before the
    commissioners got an answer, it had to be vetted through the
    chairman's office.
        Mr. Cassidy. So ultimately, just in a word, it was the
    chairman's responsibility. It was the chairman who was doing
    the restraining?
        Mr. Bell. Correct.
        Mr. Cassidy. Correct. Now, you know, I have been here for 3
    years and I look at taxpayers who just see $15 billion
    frittered away and I have to ask, although you are clear that
    he may have been within the letter of the law--there is a
    question of fact and we can't resolve this question of fact--do
    you think he was within the spirit of the law in terms of the
    Reorganization Act and was he within the spirit of the law
    communicating to his fellow commissioners that which they
    needed to know?
        Mr. Bell. Again, I think the chairman was given just enough
    information for them to understand what he wanted to do.
        Mr. Cassidy. Now, again, is that within the spirit of the
    law as originally--I mean, I can imagine somebody writing the
    law way back when. How do we account for a control freak who
    decides to only define as policy issues those things which are
    relatively unimportant, to define others as budget issues, and
    then to be selective in presentation. That would be very hard
    to write a statute to exclude what someone attempts to do. Was
    he within the spirit of the law in terms of communication with
    his fellow commissioners?
        Mr. McMillan. That, in fact, could be called into question
    as to whether or not he was within the spirit of the law as
    designed for an open collaborative engagement with the other
    commissioners.
        Mr. Cassidy. Now, as regards this question of fact because
    earlier, ma'am, you had mentioned it is a question of fact. The
    EDO suggests that he was told by the chairman not to do
    something but the chairman does not recall. A little bit of a
    dodge, but let us give it to him. Now, I have been deposed
    before and I watch law programs on TV. There is a milieu in
    which people try to establish which side of the question of
    fact is most likely true. Is there a pattern on one side of
    duplicity, of hiding, of ignoring the spirit of the law, again,
    doing whatever you can to avoid certain outcomes. Does this
    person have a motivation to not recall or is there, on the
    other side, such motivation? Now, it does seem as if, as I look
    at this question of fact, I am much more likely to believe the
    EDO and I am much more likely to think that if this were to go
    to some sort of judicial proceeding that the judge would be
    more likely to believe the EDO. Do you have any thoughts on
    that?
        Mr. Bell. I don't have any thoughts.
        Mr. Cassidy. OK. Now, lastly, I see that in these
    confirmation hearings before the Senate in 2005, Mr. Jaczko
    said that he was going to recuse himself from all issues
    regarding Yucca Mountain for a year, and at that point he was
    hopeful to have demonstrated that he would absolutely be fair
    and objective and that there would not longer be a need to
    recuse himself. In your opinion, do the actions of the chairman
    indicate that he has been fair and objective regarding the
    Yucca Mountain issue?
        Mr. Bell. Well, I think the time frame that he referred to
    was when he was a commissioner----
        Mr. Cassidy. Yes?
        Mr. Bell. [continuing]. And during that time frame,
    anything with Yucca Mountain he did recuse himself from.
        Mr. Cassidy. But that is not my question. My question is he
    said he did not need to recuse himself from consideration of
    Yucca Mountain issues throughout his entire tenure on NRC
    because he had proven himself to be fair and objective. I think
    that is fair and objective kind of like Fox News. Has he proven
    himself to be fair and objective in your opinion regarding
    Yucca Mountain?
        Mr. Bell. Well, not in terms of the information-sharing
    aspect of it anyway.
        Mr. Cassidy. OK.
        Mr. McMillan. Also, sir, I wanted to clarify the questions
    you asked previously about direction from the White House. We
    did, in fact, ask that question and no one indicated that there
    was any direction from the President or the White House to
    close the program. That question was, in fact, asked.
        Mr. Cassidy. Thank you. I will yield back.
        Mr. Green. I was just going to say, Mr. Chairman, one, I
    didn't know it was so easy to get a law license. I watch it on
    TV. But I would agree that this chairman might be as fair and
    objective as Fox News is.
        Mr. Shimkus. We thank the ranking member for that
    interrogatory there.
        We do want to thank you for coming. We do appreciate the
    effort that you did and the position that you hold within the
    NRC is a tough position because you are checking up on
    yourself. And so we know you have worked diligently and we do
    appreciate it. And I want to thank you for coming and for the
    members who have participated and their devotion to the hearing
    today.
        The committee rules provide that members have 10 days to
    submit additional questions for the record to the witnesses.
    And then if you then receive those, if you would reply to us,
    we would appreciate that.
        Again, thanking you for your attendance, the hearing stands
    adjourned.
        [Whereupon, at 11:53 a.m., the subcommittee was adjourned.]
        [Material submitted for inclusion in the record follows:]