[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:]




                                 
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