[Senate Hearing 113-773]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 113-773

      NRC'S IMPLEMENTATION OF THE FUKUSHIMA NEAR-TERM TASK FORCE 
   RECOMMENDATIONS AND OTHER ACTIONS TO ENHANCE AND MAINTAIN NUCLEAR 
                                 SAFETY

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

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                            DECEMBER 3, 2014

                               __________

  Printed for the use of the Committee on Environment and Public Works


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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                    ONE HUNDRED THIRTEENTH CONGRESS
                             SECOND SESSION

                  BARBARA BOXER, California, Chairman
THOMAS R. CARPER, Delaware           DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland         JAMES M. INHOFE, Oklahoma
BERNARD SANDERS, Vermont             JOHN BARRASSO, Wyoming
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
TOM UDALL, New Mexico                MIKE CRAPO, Idaho
JEFF MERKLEY, Oregon                 ROGER WICKER, Mississippi
KIRSTEN GILLIBRAND, New York         JOHN BOOZMAN, Arkansas
CORY A. BOOKER, New Jersey           DEB FISCHER, Nebraska
EDWARD J. MARKEY, Massachusetts

                Bettina Poirier, Majority Staff Director
                  Zak Baig, Republican Staff Director
                  
                  
                  
                            C O N T E N T S

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                                                                   Page

                            DECEMBER 3, 2014
                           OPENING STATEMENTS

Boxer, Hon. Barbara, U.S. Senator from the State of California...     1
Vitter, Hon. David, U.S. Senator from the State of Louisiana.....     3
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma, 
  prepared statement.............................................     5
Fischer, Hon. Deb, U.S. Senator from the State of Nebraska, 
  prepared statement.............................................   182
Crapo, Hon. Mike, U.S. Senator from the State of Idaho, prepared 
  statement......................................................   408

                               WITNESSES

Capps, Hon. Lois, U.S. Representative from the State of 
  California.....................................................     5
Macfarlane, Allison M., Chairman, U.S. Nuclear Regulatory 
  Commission.....................................................     7
    Prepared statement...........................................    10
    Responses to additional questions from:
        Senator Boxer............................................    29
        Senators Boxer and Markey................................    47
        Senator Markey...........................................    54
    Response to an additional question from:
        Senator Vitter...........................................    56
        Senator Crapo............................................    57
Svinicki, Kristine L., Commissioner, U.S. Nuclear Regulatory 
  Commission.....................................................   140
    Prepared statement...........................................   141
    Responses to additional questions from:
        Senator Boxer............................................   142
        Senators Boxer and Markey................................   144
        Senator Markey...........................................   146
        Senator Vitter...........................................   147
    Response to an additional question from Senator Crapo........   150
Ostendorff, William C., Commissioner, U.S. Nuclear Regulatory 
  Commission.....................................................   151
    Response to an additional question from Senator Boxer........   152
    Responses to additional questions from Senator Vitter........   153
Baran, Jeff, Commissioner, U.S. Nuclear Regulatory Commission....   158
    Responses to additional questions from:
        Senator Boxer............................................   159
        Senators Boxer and Markey................................   160
    Response to an additional question from Senator Markey.......   162
    Responses to additional questions from Senator Vitter........   163
    Response to an additional question from Senator Crapo........   171
Burns, Stephen G., Commissioner, U.S. Nuclear Regulatory 
  Commission.....................................................   172
    Responses to additional questions from:
        Senator Boxer............................................   173
        Senators Boxer and Markey................................   174
        Senator Markey...........................................   176
    Response to an additional question from Senator Crapo........   177
Hirsch, Daniel, Lecturer, University of California, Santa Cruz...   340
    Prepared statement...........................................   343
Blakeslee, Hon. Sam, Ph.D., former State Senator, State of 
  California, and former Commissioner, California Seismic Safety 
  Commission.....................................................   363
    Prepared statement...........................................   365
Pietrangelo, Anthony R., Senior Vice President and Chief Nuclear 
  Officer, Nuclear Energy Institute..............................   391
    Prepared statement...........................................   394



 
      NRC'S IMPLEMENTATION OF THE FUKUSHIMA NEAR-TERM TASK FORCE 
   RECOMMENDATIONS AND OTHER ACTIONS TO ENHANCE AND MAINTAIN NUCLEAR 
                                 SAFETY

                              ----------                              


                      WEDNESDAY, DECEMBER 3, 2014

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:03 a.m. in room 
406, Dirksen Senate Building, Hon. Barbara Boxer (chairman of 
the committee) presiding.
    Present: Senators Boxer, Carper, Whitehouse, Gillibrand, 
Markey, Vitter, Inhofe, Barrasso, Crapo, Wicker, and Fischer.

           OPENING STATEMENT OF HON. BARBARA BOXER, 
           U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. The hearing will come to order.
    Welcome, everyone.
    We know that Congresswoman Capps is right outside the door, 
so we are looking forward to her testimony.
    I am going to have testimony from myself and Senator 
Vitter. At that point, we will not have opening statements 
because we have votes starting very soon. We are going to have 
to get through the first panel in short order and then move to 
the second panel after a series of five votes.
    It is going to be a really big break, an hour or hour and a 
half, so second panel, you can enjoy the sights or something 
while you wait for us to come back.
    Today, we are holding our 10th hearing with the NRC since 
the earthquake, tsunami and nuclear meltdown in Japan three and 
a half years ago.
    Japan is still struggling to recover at the accident site 
as efforts to build a giant underground ice wall to stop 
radioactive water from flowing into the sea recently failed. It 
will take years and tens of billions of dollars to clean up.
    Children in Japan are forced to play in new indoor 
playgrounds because playing outdoors is still too dangerous in 
some locations.
    The Fukushima disaster is a warning to us that we must do 
more to ensure the safety of nuclear power plants here in the 
United States. Instead of heeding this warning, I am concerned 
that the Commission is not doing what it should to live up to 
its own mission ``to ensure the safe use of radioactive 
materials for beneficial civilian purposes while protecting 
people and the environment.''
    Although Chairman Macfarlane said, when she announced her 
resignation, she had assured that ``the agency implemented 
lessons learned from the tragic accident at Fukushima.'' She 
said, ``the American people can be confident that such an 
accident will never take place here.''
    I say the reality is not a single one of the 12 key safety 
recommendations made by the Fukushima Near-Term Task Force has 
been implemented. Some reactor operators are still not in 
compliance with the safety requirements that were in place 
before the Fukushima disaster. The NRC has only completed its 
own action 4 of the 12 task force recommendations.
    Further, I recently learned shockingly that the NRC has 
joined forces with Russia to block a European proposal 
requiring nuclear reactors to be retrofitted to ensure that 
they can be protected against severe earthquakes or other 
disasters.
    That is great. That is what I have learned, and that means 
going right along with Mr. Putin and his plans for safety. The 
sad irony is obvious. All we have to do is remember Chernobyl.
    Not only is the NRC delaying action on the post-Fukushima 
safety measures, the NRC is apparently acting to block a 
European proposal to require reactor safety upgrades worldwide. 
This is unacceptable.
    The National Academy of Sciences recently concluded that 
the Fukushima meltdowns resulted because the power plant's 
operator failed to protect the reactor's key safety equipment 
from flooding, even though the large tsunami risk for the plant 
was well known.
    The Academy went on to recommend that nuclear reactor 
operators act quickly to protect reactors from newly discovered 
risks.
    NRC's failure to heed these expert warnings is especially 
relevant at my home State of California's Diablo Canyon power 
plant. Even after learning of newly discovered strong 
earthquake faults close to the power plan, the NRC has declined 
to act on a senior inspector's warning, its own senior 
inspector's warning, that the reactor should be shut down if it 
did not come back into compliance with its seismic licensing 
requirements.
    An examination of NRC and PG&E documents provides evidence 
that the Diablo Canyon reactor operator also failed to comply 
with NRC safety regulations when it replaced its steam 
generators and other key reactor equipment without doing the 
analysis required to show that the new equipment could meet 
seismic safety standards.
    These are my people. These are Lois Capps' people. We 
represent them. This is a dangerous situation that has been 
created here. Safety should be the highest priority and it is 
supposed to be at the NRC.
    I have many other matters to discuss, but I am going to 
stop short of my time because here is the deal--we need to 
finish this first panel by the time of votes. Senator Inhofe, 
Senator Vitter and I will be making our statements. Then we 
will turn to Lois Capps.
    Senator Vitter.

            OPENING STATEMENT OF HON. DAVID VITTER, 
            U.S. SENATOR FROM THE STATE OF LOUISIANA

    Senator Vitter. Thank you, Madam Chair.
    I will submit my full statement for the record.
    I just want to express real regret that when Republicans on 
this committee unanimously requested what is completely 
standard a hearing on Mr. Baran's nomination to a full term, we 
were denied that opportunity before the committee vote 
yesterday.
    I do not understand that. It is completely unprecedented. 
It was a very basic, very straightforward request that we get 
this hearing given that Mr. Baran is nominated now to a full 
term before a committee vote. That was completely denied even 
though it was very simple to give us that opportunity today.
    We laid out a way that we could have gotten that focused 
opportunity today and had the committee action later today and 
not delayed a thing.
    I just think it is very, very unfortunate that we were shut 
out of the normal process in that way. We will move forward, 
including in this hearing.
    I will submit my full statement for the record.
    Thank you.
    [The prepared statement of Senator Vitter follows:]

                    Statement of Hon. David Vitter, 
                U.S. Senator from the State of Louisiana

    Thank you, Chairman Boxer, for convening today's hearing, 
and I would like to thank our NRC commissioners for returning 
to testify in front of this committee. I would also like to 
thank our industry experts and stakeholders for being here 
today.
    Before getting started I would like to bring some attention 
to the committee mark-up that occurred yesterday to consider 
several nominations, including the nomination of Commissioner 
Baran to fill the remainder of Chairman Macfarlane's term.
    While it is true that we recently held a hearing to 
consider Baran's qualifications on September 11, 2014, the sole 
purpose of that hearing was to decide whether or not he was 
qualified to hold this position for the remainder of former 
Commissioner William Magwood's term, which will expire on July 
30, 2015.
    Chairman Macfarlane's term is set to expire on June 30, 
2018. The difference between these two term lengths is drastic, 
and many questions remain concerning the qualifications of 
Baran, who only recently visited a nuclear reactor power 
station for the first time after being nominated.
    While I appreciate Chairman Boxer's commitment to the 
safety of our nuclear reactor fleet, it is clearly a misstep to 
move forward on Baran's nomination for a drastically longer 
term without holding a full EPW nominations hearing. There is 
no precedent for disregarding the importance of making sure 
each member of the NRC is qualified for the exact position and 
term for which they have been nominated.
    The decision to hold yesterday's EPW meeting is a clear 
change in committee precedent and will have long-term 
ramifications as we move into a new Congress.
    There is no doubt that many will attempt to counter this 
statement, saying we can ask Commissioner Baran any questions 
we would like during today's oversight hearing. However, 
dividing our time and focus between the important oversight of 
the Commission and the future of the NRC's leadership 
undermines the purpose of this committee.
    The bottom line is that no nominee, including Baran, should 
be given a free pass into office based solely on the merits of 
being handpicked by Majority Leader Harry Reid.
    Ensuring our commissioners are well-qualified and that the 
NRC is conducting business in a fact-based and ethical manner 
is crucial to the health, reliability, and safety of our 
nuclear fleet.
    It is the primary reason that our nuclear reactor fleet 
remains the safest in the world.
    The NRC has made great strides since the departure of the 
previous chairman, and I fear that Senate Democrats continue to 
undermine that progress as they prioritize politics over facts, 
policy and safety.
    Again, thank you very much for being here, and I look 
forward to hearing from you on these important issues.

    Senator Boxer. Thank you, Senator.
    I had a minute remaining. Let me say, the committee held a 
hearing to consider Mr. Baran's nomination on September 9. The 
90-minute hearing was attended by eight members of the 
committee, four Democrats and four Republicans. Mr. Baran was 
asked 88 questions for the record, 83 submitted by Republicans.
    Some have noted Mr. Baran is not qualified to receive a 
longer term as commissioner because he only visited one nuclear 
power plant before he was nominated to be an NRC commissioner. 
Publicly available travel records indicate that before 
Republican Commissioner Kristine Svinicki was nominated, she 
had visited no nuclear power plants.
    Yet, no member of this committee, not one, not a Democrat, 
not a Republican, raised any similar concerns. I feel really 
comfortable that Mr. Baran, who is well known on Capitol Hill 
for his service here, has absolutely been vetted fully and 
completely.
    I do respect that we have a difference of opinion here, but 
the facts are the facts. There were 88 questions answered in a 
90-minute hearing. I just don't know what else you wanted from 
this guy.
    Senator Vitter. Madam Chair, if I can reclaim my time.
    Senator Boxer. Yes, you can.
    Senator Vitter. It would have been nice to have the 
opportunity to explore all of this at a normal nomination 
hearing which is the complete norm, particularly for a full 
term on the NRC. It is absolutely unprecedented when the 
minority asks for that sort of a hearing for a full term for it 
to be completely denied.
    We aren't given the opportunity and we don't have the 
opportunity today to fully debate this, unfortunately. That is 
what you shut down and I think that is what you wanted to shut 
down, but I am talking about the process. It is very, very 
unfortunate that once again the minority was completely shut 
down and shut out of our normal rights.
    Senator Boxer. Well, a shutdown is in the eye of the 
beholder. I don't feel we did that in any way. I have 
tremendous respect for my colleagues and I look forward to 
getting past this and onto the hearing.
    We will now turn to Congresswoman Capps. I would ask you to 
keep your remarks to the 5-minute limit.
    Senator Inhofe. Madam Chairman.
    Senator Boxer. Yes.
    Senator Inhofe. Are we not going to have an opening 
statement?
    Senator Boxer. We are not. We don't have time because we 
have votes at 10 o'clock.
    Senator Inhofe. We are not going to have an opening 
statement?
    Senator Boxer. No, but listen, the two of us and then I 
will call on you first for your questions. Then I will call on 
Senator Carper and then go back to the regular order.
    Senator Inhofe. Let me submit my statement for the record. 
It is one I wanted to give.
    [The prepared statement of Senator Inhofe follows:]

                  Statement of Hon. James M. Inhofe, 
                U.S. Senator from the State of Oklahoma

    Chairman Boxer, thank you for holding this hearing.
    Over the last several years, I have consistently voiced my 
concern about the overregulation coming out of this 
Administration. It has been across every industry, including 
nuclear.
    It started with Utility MACT and the Cross State Air 
Pollution Rule a few years ago; then came the 316(b) Water Rule 
this past year. Now, after a false start on the cap-and-trade 
bill, EPA is pressing ahead with aggressive and unauthorized 
greenhouse gas regulations for power plants. And when you also 
weigh the Waters of the United States rule and the new proposal 
to reduce the Ozone NAAQS standard, it's no surprise that the 
economy has not recovered under the Obama administration.
    In fact, if the EPA brings the ozone standard down to 60 
parts per billion, as it is taking comment on, it would put all 
77 counties in Oklahoma out of attainment, making it impossible 
to do things like build new highways and factories. It could 
also stall much of the new oil and gas development going on 
around the country.
    These are the things that we have tried to raise attention 
to over the last few years, and I anticipate that will continue 
to be the case.
    But a few years ago, if there is an agency that I did not 
think would get brought into this thrall of overregulation, it 
would be the Nuclear Regulatory Commission.
    I have always seen the NRC as being a leader of working 
cooperatively with industry to craft regulations in a way that 
appropriately balances safety and cost, particularly when it 
comes to the cumulative cost of regulations. So when I see that 
the NRC is working on some 50 or 60 new policies and 
regulations, knowing that many of them are redundant of other 
policies already on the books, I have to wonder where things 
went wrong.
    Many of these regulations will only have marginal, if any, 
impact on improving safety--whether security or operational--
and yet their cost is massive when everything is added 
together.
    I want the nuclear fleet in the United States to be safe, 
and it is safe. The NRC on the whole has been doing its job 
well.
    But the fact of the matter is that NRC has grown too large, 
and it doesn't have enough to do. I've said several times here 
that I helped push the Agency's budget higher because we 
thought a nuclear renaissance was coming. It did not, but the 
NRC got the money anyway. And what do Government agencies do 
when their budget grows faster than their mission? They 
overregulate.
    I support reducing the NRC budget because I think a smaller 
NRC, at this point in time, will enable the Commission to focus 
its efforts on its core mission and not on the development of 
unnecessary and redundant regulations.
    I appreciate you taking the time to come testify. I look 
forward to hearing your thoughts on these matters and look 
forward to working with you to craft solutions.

    Senator Boxer. I will give you extra time in your 
questioning.
    Senator Inhofe. Thank you.
    Senator Boxer. Senator Carper, do you want that as well?
    Senator Carper. That would be great.
    Senator Boxer. OK.
    Senator Boxer. Congresswoman Capps.

                 STATEMENT OF HON. LOIS CAPPS, 
        U.S. REPRESENTATIVE FROM THE STATE OF CALIFORNIA

    Representative Capps. Chairman Boxer, Ranking Member Vitter 
and members of this committee, thank you for holding this 
hearing and for the opportunity for me to testify.
    I also want to thank the NRC commissioners for being here 
as well as the experts we will hear from on the second panel.
    I have worked closely with the NRC over the years and 
appreciate your hard work on these important issues. I am 
pleased you will also be hearing from my constituent and former 
State senator from California, Sam Blakeslee.
    In addition to representing Diablo Canyon and the 
surrounding communities for many years in Sacramento, State 
Senator Blakeslee is also a scientist with a Ph.D. in Seismic 
Studies. He has unique and diverse experience on this important 
issue.
    I am here today because my congressional district, as you 
mentioned, Senator, includes the Diablo Canyon Nuclear Power 
Plant which generates electricity for roughly 3 million 
Californians.
    Owned and operated by PG&E, Diablo Canyon is an important 
economic driver in San Luis Obispo County, supporting hundreds 
of quality jobs and hundreds of millions of dollars in economic 
activity.
    Also Diablo Canyon is the only nuclear power plant in the 
Nation operating at the highest seismic risk area as determined 
by the NRC.
    In the early 1970s, while the plant was originally under 
construction, scientists discovered the Hosgri Offshore Fault 
less than 3 miles away, forcing a major redesign of the plant, 
pushing the project billions of dollars over budget.
    Then in 2008, scientists discovered yet another fault, the 
Shoreline Fault which lies less than half a mile from the 
plant. As a result, seismic safety has always been a high 
priority at Diablo Canyon and its surrounding communities.
    The issue took on new urgency in the wake of the Fukushima 
catastrophe in 2011. That tragedy put in such stark terms how 
little we actually knew about the seismic situation at Diablo 
Canyon and the potential consequences.
    I last testified before this committee in April 2011, just 
weeks after the Fukushima catastrophe in Japan, to call 
attention to these issues and to push for additional seismic 
studies. Since then I have worked closely with the NRC, with 
you, Senator Boxer, with State Senator Blakeslee and State 
officials to investigate the seismic situation at Diablo Canyon 
and to make necessary safety improvements based on the best 
available information, which is why we pushed for additional 
seismic studies and independent analysis of the data.
    These studies were completed earlier this year. PG&E 
released its internal analysis last September. The data is now 
being reviewed by the NRC and an independent peer review panel 
established by the California Public Utilities Commission.
    I am pleased with this progress. I am eagerly awaiting the 
results of the independent analysis. In my view, this 
independent analysis is the most critical part of the process. 
Up until the release of this new data, the only seismic studies 
available were from the internal PG&E studies and the NRC's own 
review of those studies.
    While the NRC and PG&E certainly have well qualified 
experts of their own, we all know independent analysis by 
outside experts is essential to the scientific process. The 
stakes are simply too high for us not to do everything in our 
power to fully identify and understand the risks and prepare 
for them.
    Independent analysis and transparency also helps to build 
public confidence in this process. The more information that is 
available and accessible to the public, the more our 
constituents can engage in the oversight process and make their 
voices heard.
    Considering how and when these faults were discovered, many 
of my constituents are understandably skeptical about the NRC 
process and the reliability of the seismic safety information 
they have been given.
    Limiting independent review or public access to information 
only feeds skepticism. Congress established the NRC to be an 
independent watchdog of our nuclear facilities. The public 
needs to trust that the Commission is doing its job.
    The best way to build that trust is through transparency 
and public engagement. Yet, one of the most common complaints I 
hear from my constituents is the frustration with the NRC's 
process and the lack of transparency.
    While I know the NRC makes a strong effort on several 
fronts to engage with the public, clearly more needs to be done 
to address these concerns.
    Madam Chair, the Fukushima tragedy has taught us that we 
constantly need to be questioning our emergency preparedness 
and doing all we can to be ready for any scenario. Even after 
the independent reviews are completed, even after the NRC 
finishes its review, we must not stop asking questions and 
demanding answers. It is often the scenario we never thought 
could happen that ends up causing the greatest alarm.
    Thank you again for holding this hearing. I look forward to 
continuing to work with this committee and the NRC on this very 
important issue.
    Senator Boxer. Congresswoman, thank you. We know you have 
other obligations. You can stay or go. However, you are free to 
go.
    I wanted to say to my colleagues who just arrived, I think 
that is Ed and Roger, the two of us did openings. With Senator 
Vitter's approval, I am going to call on those of you who 
didn't get to do openings first. We will withhold our questions 
so you can have the time to do an opening statement and 
questions ahead of us. We will give you an extra minute to do 
that.
    We would ask the Commission to please come up right now. We 
have Hon. Allison Macfarlane, Hon. Kristine Svinicki, Hon. 
William Ostendorff, Hon. Jeff Baran, and Hon. Stephen Burns. 
Welcome.
    Chairman Macfarlane, we are going to start with you. You 
get to have 5 minutes. The other commissioners get to have 2 
minutes if they wish. Welcome.

  STATEMENT OF ALLISON M. MACFARLANE, CHAIRMAN, U.S. NUCLEAR 
                     REGULATORY COMMISSION

    Ms. Macfarlane. Good morning, Chairman Boxer, Ranking 
Member Vitter and distinguished members of the committee. It is 
good to see you this morning.
    My colleagues and I appreciate the opportunity to appear 
before you on behalf of the U.S. Nuclear Regulatory Commission.
    As you know, this is likely the last time I will appear 
before you in my capacity as Chairman of the NRC. Therefore, 
let me share with you some of the accomplishments we have made 
over the past two and a half years.
    The NRC continues to make significant progress in 
implementing post-Fukushima safety enhancements. We have seen 
the first reactors come into compliance with the mitigating 
strategies and spent pool fuel instrumentation orders. 
Licensees have purchased backup diesel generators, pumps, 
piping, cabling and other equipment and have strategically 
placed around their sites.
    Some have built earthquake-proof structures to ensure that 
this equipment is protected from natural disasters. They have 
standardized connections on the components so that backup 
equipment can be quickly and easily connected.
    Other licensees are preparing to make safety system 
modifications so they can complete their enhancements on time 
as required during their spring refueling outages.
    As a result of these activities, nuclear power plants in 
the United States will have more defense and depth to cope with 
the prolonged loss of offsite power and other severe accident 
conditions. The NRC continues to work closely with licensees to 
monitor and inspect their progress.
    The industry's two national response centers in Memphis and 
Phoenix are now operational. While the work is not done, the 
progress we have made is substantial and impressive. I believe 
it is essential that both the NRC and the industry keep this 
sustained focus until all of the Near-Term Task Force 
recommendations are addressed.
    The NRC continues its oversight of new reactor construction 
at Watts Bar Unit 2, Plant Vogtle and V.C. Summer. While we 
have had to address quality control challenges with 
construction suppliers, we are satisfied with the overall work 
that is underway.
    Licensees have an essential role in vendor oversight and 
construction quality. This responsibility must remain paramount 
for any new reactor construction. We expect to issue a decision 
on the operating license for the Watts Bar 2 plant in mid-2015.
    We have renewed our focus at the NRC on the back end of the 
fuel cycle in part as a result of a number of recent reactor 
shutdowns. Licensees have requested certain license amendments 
and exemptions from NRC regulations to reflect changes that 
will occur when fuel is permanently removed from the units.
    For instance, the NRC has granted Wisconsin's Kewaunee 
Power Station exemptions from specific emergency planning 
requirements, but we denied a separate exemption request 
related to certain physical security regulations that we 
believe were important to keep in place. Now that multiple 
reactors are decommissioning, I believe it is time for the NRC 
to examine whether specific regulations for decommissioning 
should be developed.
    In August 2014, after a 2-year rulemaking process that 
included extensive public engagement, the Commission approved 
the NRC's final continued storage rule and generic 
environmental impact statement.
    The implementation of the rule in October enables the NRC 
to complete several licensing actions that have been suspended 
pending the outcome of this rulemaking. The NRC will continue 
to ensure that spent fuel is stored safely and securely at 
reactor sites.
    I firmly believe that this should not be a reason to slow 
or stop progress on permanent disposal solutions for the United 
States.
    During my tenure, the NRC has also taken steps to enhance 
its public engagement including improving our public meeting 
process. I am proud of the progress we have made in this area 
and I believe public engagement is equally important for 
industry.
    Maintaining effective relationships with the local 
community around a nuclear power plant builds trust and 
facilitates open, effective discussions and decisionmaking.
    We have also emphasized engagement at the interagency and 
international levels, recognizing that the NRC is best 
positioned to ensure safety and security when the interagency 
understands and supports our important mission.
    Internationally, we have worked to further our cooperation 
and assistance to enhance global nuclear safety and security.
    The NRC continues to be prudent in expending agency 
resources and is working to improve the transparency of our 
fees. We have engaged an independent firm to study and provide 
recommendations on fee allocation methods. We plan to hold a 
public meeting in early 2015 to address generic issues raised 
and public comments on the fee rule for fiscal year 2014.
    The commission has also directed the NRC staff to take a 
hard look at how we can effectively, efficiently and flexibly 
meet our safety and security mission under any future 
circumstances.
    The staff is currently working both internally and 
externally to analyze where the nuclear industry will be over 
the next 5 years and anticipate commensurate changes to the NRC 
skill sets and resources.
    It has been an honor to lead the agency during the past two 
and a half years. I have learned much during my tenure, and I 
leave satisfied that the good work of the agency will continue 
well into the future.
    I am grateful to the agency's talented and dedicated staff 
for their tireless efforts to support our important mission and 
to my colleagues for their support and for our collaboration.
    Thank you for the opportunity to be here today. I am happy 
now to answer your questions.
    [The prepared statement of Chairman Macfarlane follows:]
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    Senator Boxer. Thank you.
    We will turn to Commissioner Svinicki. We are going to take 
a little time off because the Chairman went over. We will go a 
minute and a half per commissioner because we have votes coming 
shortly. Sorry to do this.
    Go ahead.
    Ms. Svinicki. Thank you, Chairman Boxer, Ranking Member 
Vitter and members of the committee.
    In the interest of the Senate's voting schedule, may I 
request just to submit my statement for the record?
    Senator Boxer. Of course. Without objection.
    Ms. Svinicki. Thank you.
    [The prepared statement of Ms. Svinicki follows:]
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    Senator Boxer. Now we will turn to Commissioner Ostendorff.

STATEMENT OF WILLIAM C. OSTENDORFF, COMMISSIONER, U.S. NUCLEAR 
                     REGULATORY COMMISSION

    Mr. Ostendorff. Thank you, Chairman Boxer, Ranking Member 
Vitter and members of the committee.
    Regarding lessons learned from Fukushima, the NRC and 
industry have made significant progress. We determined these 
activities must be accomplished without haste, the Tier I 
activities that are most safety significant.
    Several licensees as noted by the Chairman have already 
complied with the mitigating strategies order. These 
modifications will be subject to NRC inspection to ensure 
appropriate implementation followed by codification and a 
rulemaking.
    As I reflect on the work that has been completed by the 
agency and industry and the activities that still remain, I am 
proud of the agency's reliance on solid principles of science, 
engineering and risk management.
    I appreciate this committee's oversight role and I look 
forward to your questions.
    Thank you.
    [The responses of Mr. Ostendorff to questions for the 
record follow:]
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    Senator Boxer. Thank you so much, Commissioner.
    We will now turn to Commissioner Baran.

STATEMENT OF JEFF BARAN, COMMISSIONER, U.S. NUCLEAR REGULATORY 
                           COMMISSION

    Mr. Baran. Chairman Boxer, Ranking Member Vitter and 
members of the committee, thank you for the opportunity to 
appear today before the Environment and Public Works Committee.
    Since I started on the Commission in October, it has been a 
privilege to work with my fellow commissioners. Together, we 
bring a diversity of experience and perspectives to our 
deliberations.
    On a personal note, I want to publicly say that I deeply 
appreciate the warm welcome they have given me. I believe we 
are all working very well together and building productive, 
collegial relationships.
    It has been a busy time at the Commission. We have held 
commission meetings on a number of topics, including Watts Bar 
2 Unit licensing, small modular reactors, NRC's international 
activities and Project Aim 2020, which is NRC's effort to 
appropriately match resources to workload and increase the 
agility and efficiency of the agency.
    I have also met with a broad range of stakeholders, 
including the Nuclear Energy Institute, the American Nuclear 
Society, NRDC and the Union of Concerned Scientists. I have had 
the opportunity to meet the senior leadership of many of NRC's 
licensees at the annual MPO CEO's conference.
    I also recently visited Watts Bar Units 1 and 2 and look 
forward to touring additional NRC-regulated facilities in the 
near future.
    I remain committed to bringing an open-minded and 
thoughtful approach to the policy and adjudicatory issues 
pending before the Commission such as decommissioning plant 
licensing exemptions, staff guidance for the use of qualitative 
factors and cost benefit analysis, updates to the Force-on-
Force Inspection Program and the examination of NRC's foreign 
ownership and control standards.
    These are complex issues but I am confident that the 
Commission has the positive working relationships and wide 
range of experience needed to successfully address them.
    Thank you.
    [The responses of Mr. Baran to questions for the record 
follow:]
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    Senator Boxer. Thank you so much, Commissioner.
    Commissioner Burns.

   STATEMENT OF STEPHEN G. BURNS, COMMISSIONER, U.S. NUCLEAR 
                     REGULATORY COMMISSION

    Mr. Burns. Thank you, Chairman Boxer, Ranking Member Vitter 
and members of the committee. It is a pleasure to appear before 
you today.
    As many of you know, I first started at the NRC as a junior 
attorney back in the late 1970s. I would not have imagined I 
would be sitting before you today as a commissioner.
    The mission of the agency remains as vitally important 
today as it was then. The protection of public health and 
safety and the common defense and security against the 
potential hazards posed by radiological materials is a 
critically important task and one to which I have committed my 
entire career.
    The NRC also has a responsibility to ensure that its 
decisions are based on sound legal and technical footing and 
are transparent to all stakeholders.
    Over the past few years, I have spent outside the NRC and 
the international community and that has allowed me to take 
stock of the agency. I continue to believe it is one of the 
finest organizations in our Government.
    I can say from the perspective of the international 
community that the NRC is enormously respected and is often 
looked to for technical and policy leadership.
    However, acknowledging the agency's high caliber should not 
be understood to mean that we cannot improve. We all recognize 
that the climate in which the agency operates has changed over 
the last number of years. It is our obligation to be agile in 
responding to changes in that environment.
    In closing, I thank the committee for their continue 
support of the NRC and the opportunity to appear here today.
    I look forward to answering any questions you may have.
    Thank you.
    [The responses of Mr. Burns to questions for the record 
follow:]
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    Senator Boxer. Thank you. We have covered our panel. Thank 
you all for being succinct.
    I am going to go last so I am going to start with Senator 
Carper, go to Senator Fischer, then Markey, Whitehouse and each 
of you will have 6 minutes rather than 5.
    Senator Carper. Thank you, Madam Chair.
    Welcome everyone, especially our two new members. Mr. 
Burns, it is good to see you. Mr. Baran, congratulations and 
welcome aboard. Chairwoman Macfarlane, thank you so much for 
your willingness to serve on the NRC and to serve at a 
difficult and tumultuous time in the history of the Commission 
and to provide the leadership that helped to steady the ship 
and, as you leave, to put us on a better course. We thank you 
for that.
    As you know from our earlier conversations, and my 
colleagues know, I am one who thinks a lot about morale, work 
force morale. I chair the Senate Committee on Homeland Security 
and Governmental Affairs. We have jurisdiction over the 
Department of Homeland Security which, although not a very old 
agency, has had a history of not very good morale.
    The new Secretary, Jeh Johnson and Deputy Secretary Ale 
Mayorkas are working hard, with a lot of good people there, to 
turn that around and we are trying to help them.
    I would start, Madam Chair, by asking a little bit about 
the morale. NRC has historically had among the top rated morale 
as one of the best places to work within the Federal 
Government. When you think about the morale, the work force and 
the people when you became Chairman and today, is it the same, 
is it better, is it worse?
    Ms. Macfarlane. I think things are much improved from when 
I arrived at the agency. The folks there are fantastic. They 
are like a family. They come and stay, they are there, they 
work there for decades. They are really dedicated to the 
mission of the agency.
    Senator Carper. Why do you think it has gotten better?
    Ms. Macfarlane. Why do I think it has gotten better?
    Senator Carper. Yes.
    Ms. Macfarlane. I think things are calmer. The Commission 
is working very collaboratively, very well and I think that 
trickles down.
    Senator Carper. When you think back to what you have been 
able to accomplish, you went through a list of accomplishments, 
as you prepare to leave and turn over the leadership to a new 
Chair, what are some of the to do's that have to be at the top 
of a to do list?
    Ms. Macfarlane. Thanks for that. I think important to 
remember for the new chairman would be to make sure that when 
you are considering whatever issues, internal or policy issues, 
listen to as many viewpoints as possible and understand the 
full range of views on an issue, that you use the agency staff. 
The staff is a fantastic resource and is to be relied upon.
    In the end, make your decisions data-driven. I have always 
tried to make my decisions data-driven. I think that is very 
important.
    I would hope that the future chairman would continue the 
collegial behavior that we have been able to demonstrate at the 
Commission.
    Senator Carper. Last year, along with Senators Sessions, 
Barrasso and Cardin, we sent a letter to the Commission. I know 
you get a lot of letters but this was one encouraging the NRC 
to streamline the licensing process for dry cast storage. Could 
you give an update on this issue, please?
    Ms. Macfarlane. I think we are working well on our 
licensing process for dry cast storage. We have licensed many 
cast designs and continue to do so. I think that is going quite 
well. Further detail, I will take for the record.
    Senator Carper. All right, thank you.
    Another question for you, is the NRC on track to issue the 
final rules dealing with station blackout? I think you may have 
mentioned this but I am not sure, and strengthening emergency 
operating procedures and severe accident management.
    I think these are expected to go final by 2016?
    Ms. Macfarlane. Yes.
    Senator Carper. If not on track, why not? How are we doing 
there?
    Ms. Macfarlane. We are doing well on that. We are on track 
with that rulemaking.
    Senator Carper. If you were to give some advice to these 
new commissioners coming onboard, how long have you served on 
the Commission now, 3 years?
    Ms. Macfarlane. Two and a half.
    Senator Carper. It seems like 3.
    Ms. Macfarlane. Maybe 4 or 5.
    Senator Carper. It hasn't been that long since you sat in 
their seats, but what advice would you have for them as new 
members of the Commission?
    Ms. Macfarlane. Again, I would encourage them to really 
think broadly about all the issues that face us and to develop 
and have good staffs to support them, that has been essential 
for my own work, to be broad minded and engage not just 
internally with folks in the agency but outside the agency as 
well. That is a real important part of our mission.
    Senator Carper. I would say to our new members, the 
Chairman mentioned having good staff. I have always tried to 
surround myself with people smarter than me. My wife says it is 
not hard to find them. That is always good advice.
    Give us a quick update, if you will, on how we are doing in 
this country with respect to modular reactors? Give us a little 
update on that, please.
    Ms. Macfarlane. Sure. We are working well in terms of 
talking with the potential small modular reactor designers. We 
are working on developing design-specific guidelines for the 
small modular reactor design certification applications as they 
come in.
    None has come in yet. We are expecting the first one in 
2016. Right now it is a wait and see game.
    Senator Carper. Tell us what you will be doing next and how 
your service here will better inform you for the challenges 
that lie ahead for you.
    Ms. Macfarlane. I am going back to the university. I am 
going to George Washington University where I will direct the 
Center for International Science and Technology Policy.
    Certainly, what I have learned over the past 2 to 3 years 
has been essential and will inform all the research that I do 
in the future.
    Senator Carper. Good luck and thank you very much for your 
service.
    Ms. Macfarlane. Thank you.
    Senator Boxer. Thank you very much, Senator.
    We will turn to Senator Fischer.
    Senator Fischer. Thank you, Madam Chairman.
    Thank you all for being here today.
    Commissioner Baran, at your September 9 confirmation 
hearing, I asked you about the use of qualitative factors. You 
responded that it is ``important in some cases to consider 
qualitative factors but it must be done carefully.''
    Could you explain in the inherent limitations and concerns 
associated with using those qualitative factors in the context 
of the backfit analyses, and would you agree that it is 
incorrect to suggest that the NRC staff should have that 
flexibility in the use of qualitative factors and NRC 
regulatory analyses and backfit analyses?
    Mr. Baran. Senator, the issue of qualitative factors and 
whether the guidance for staff related to qualitative factors 
should be updated is an issue pending before the Commission 
right now. The focus of the staff paper before us is not 
whether qualitative factors should be used or whether they 
should be used more often than they are now.
    The question posed by that staff paper is does it make 
sense as part of the staff's overall, multi-year effort to 
update the overall cost-benefit guidance, and should they as 
part of that effort update the sections related to the use of 
qualitative factors?
    The staff recommendation is that it would be useful to 
provide tools and methodologies to the staff to better 
articulate when qualitative factors are used, how are they 
being used, when are they being used, why are they being used 
so that decisionmakers and anyone reading a staff paper is 
going to be able to understand very clearly that analysis and 
why qualitative factors were used in it.
    Historically and under both OMB and NRC guidance, both 
quantitative and qualitative factors are used. Qualitative 
factors tend to be used in cases where there either isn't 
enough data to do a quantitative analysis or there aren't 
developed methodologies to do it.
    I think there is no question that the guidance from NRC at 
NRC now and more broadly places a premium on quantitative 
analysis, but there are times you cannot capture everything 
with quantitative, so there is a long history of also turning 
to qualitative factors and having a combined analysis.
    Senator Fischer. When you have facilities that are already 
licensed, don't you think the numbers-based analysis is the way 
to go on that? How much flexibility do you think is appropriate 
to use with qualitative factors, especially on facilities that 
are already licensed?
    Mr. Baran. I understand your question as it relates to the 
backfit rule. I think for backfit or for other purposes, it is 
going to be important to consider all the relevant factors. 
That is what the guidance says now both from OMB and from NRC. 
That means looking at both the relevant quantitative factors 
and the relative qualitative factors.
    If there are important factors that cannot be captured 
quantitatively, it is important that decisionmakers consider 
those as well. Again, there is the question pending before us 
now of should we update the guidance. Should staff update the 
guidance to provide the staff members doing this analysis at 
NRC with additional guidance about how to go about that and 
make sure whatever the analysis is, that it is being done in a 
transparent way so the decisionmakers, whether the Commission 
or others, can look at that and understand what has been done.
    Senator Fischer. You said you are in the process now of 
staff updating the guidance. Do you support that update. 
Specifically what does that mean to you? When you say updating 
guidance, what is that?
    Mr. Baran. There is a broad effort, which will take 
multiple years to update the overall cost benefit analysis 
guidance the agency has. The staff has kind of a plan to work 
on that over the next several years.
    I think right now the guidance doesn't even use the terms 
cost and benefits but uses other terms. I think that effort 
makes a lot of sense to update the guidance and make sure we 
have something that benefits from our years of experience on 
that.
    The more narrow question currently before us is should we 
approve the staff's recommendation to update the portion of the 
guidance related to the use of qualitative factors. I haven't 
actually voted on that yet, but my sense is it probably does 
make sense to have good, updated guidance with the latest 
methodologies and a process laid out for how are these used, 
when are these used and how do you explain that to people so 
that when a paper comes to the Commission, we have an 
understanding, not just what is the ultimate recommendation but 
how was that derived.
    Senator Fischer. Thank you.
    Dr. Macfarlane, thank you for your service. I so appreciate 
you serving the people of this country and the very important 
position you are in. I wish you well in the future.
    In August 2014, the NRC staff paper acknowledges, ``NRC 
guidance directs the NRC staff to quantify benefits and costs 
and propose regulatory action to the extent possible.''
    Would you agree that whenever it can be done that the NRC 
staff should focus on that quantitative factor in reaching 
decisions?
    Ms. Macfarlane. The NRC does focus on the quantitative 
factors in reaching many of these decisions but nonetheless, 
there are often qualitative factors that are also important in 
considerations.
    I think some of the quantitative factors considered, they 
themselves, are not necessarily fully quantitative like the 
price of the cost of a human lung.
    Senator Fischer. Thank you.
    Thank you, Madam Chair.
    [The prepared statement of Senator Fischer follows:]

                    Statement of Hon. Deb Fischer, 
                U.S. Senator from the State of Nebraska

    Chairman Boxer and Ranking Member Vitter, thank you for 
holding today's hearing. I would like to thank the 
Commissioners and witnesses for being here and sharing your 
time with us today.
    Chairman Macfarlane, I want to wish you the best as you 
prepare to leave the NRC. Thank you for your work in restoring 
collegiality at the Commission and for your frankness to 
Congress on NRC matters. It is truly appreciated.
    I am always pleased to have the opportunity to talk about 
Nebraska's unique 100 percent public power system and the 
important role that nuclear energy plays in keeping Nebraska's 
electricity rates among the lowest in the entire country. We 
are grateful for the safe and productive operation of 
Nebraska's nuclear power plants and uranium mining facilities. 
We are also mindful of the tremendous impact that NRC actions 
and policies have on these operations.
    As we meet today to discuss NRC's implementation of task 
force recommendations and other actions to enhance and maintain 
nuclear safety, I hope we can focus on the Commission's 
principles of good regulation--independence, openness, 
efficiency, clarity, and reliability.
    It is critical that NRC decisionmaking is based on 
objective, reliable information. Deliberate and disciplined 
cost-benefit analyses are needed to ensure that regulatory 
requirements yield valid, identifiable safety benefits. We must 
improve the accuracy of cost estimates and critically examine 
the use of qualitative factors to justify changes that are not 
truly cost-beneficial.
    We on this committee are very conscious of and concerned 
with the President's Climate Action Plan, which could seriously 
jeopardize the reliability and affordability of Americans' 
electricity. At a time when our energy landscape is changing so 
drastically, we are especially concerned with any actions that 
could undermine access to dependable, affordable, baseload 
nuclear power. With so much at stake, we must have a Nuclear 
Regulatory Commission that provides regulatory stability and 
pursues justified, defensible safety improvements.
    I look forward to our discussion of these important issues 
at today's hearing.
    Thank you.

    Senator Boxer. Thank you.
    Senator Markey.
    Senator Markey. Thank you, Madam Chair.
    Experts agree that the Fukushima meltdowns could have been 
prevented if the reactors had been protected against the 
tsunami threats that they were known to face.
    The 2011 Fukushima Near-Term Task Force report recommended 
that reactor operators use modern science to predict the amount 
of flooding that might occur at each reactor and then upgrade 
safety equipment to prevent such a flood from causing damage.
    I have received documents that have not been publicly 
released yet that I request be made a part of the record, that 
say that NRC staff agreed with a Nuclear Energy Institute 
request to eliminate this key Fukushima Task Force 
recommendation.
    The NRC staff recommended that NRC no longer require 
reactor upgrades to prevent flooding but only an increased 
ability to respond to potential floods.
    That is a lot like your doctor telling you not to get a flu 
shot because he can just treat you once you get the flu, 
expecting you not to point out that thousands of Americans die 
of the flu each year.
    Fifteen senior NRC employees, including one who was 
actually an author of the Fukushima Task Force report, have 
filed formal disagreements with the NRC staff paper. One of 
these documents said that even though the proposal would save 
the industry money, it would gut this post-Fukushima safety 
recommendation.
    My first question is, do any of you disagree that requiring 
both flood protection and flooding response measures would 
provide a higher level of safety than flooding response 
measures only. Madam Chairman.
    Ms. Macfarlane. This issue has just come before the 
Commission, so I doubt that any of my colleagues, I certainly 
haven't had time to digest it, to look at this issue, so I 
would request that we take this one for the record.
    Senator Markey. Why don't I let the others mention it? I 
asked a general question. I will go with you first, 
Commissioner Baran.
    Mr. Baran. I haven't had a chance to review the paper yet, 
but I agree with your general point that it is important to 
both prevent a problem and have the ability to respond to it.
    Senator Markey. Thank you.
    Commissioner.
    Ms. Svinicki. Senator Markey, the question you have posed 
is the core disagreement between the technical experts who 
differ and the staff recommendation that the Commission 
officially received. I am still exploring to understand the 
points of departure between the two viewpoints.
    Senator Markey. Again, do any of you disagree that 
prevention and response is better than just response?
    Commissioner.
    Mr. Ostendorff. Senator Markey, I appreciate the question. 
As the Chairman noted, it is before the Commission. I will just 
tell you that on Friday of this week, Commissioner Burns and I 
are meeting with non-concurring staff to better understand 
their viewpoints.
    I know the rest of the Commission, when their schedules 
permit, will be doing the same to better understand where they 
are coming from on this. It is an important issue.
    Senator Markey. Commissioner.
    Mr. Burns. The basic principle of both prevention and 
mitigation is I think fundamental in our regulatory system. As 
Commissioner Ostendorff said, we are going to be briefed on the 
paper and the robust exchange of views we are having on it.
    Senator Markey. Do any of you disagree that NRC staff 
should work together to resolve the disagreement by the 15 
senior NRC employees before it submits the proposal to you for 
a vote? Do any of you disagree with that?
    Ms. Macfarlane. Senator, we have at our agency processes 
that allow our staff to formally disagree with senior 
management, which I think is actually one of the strengths of 
our agency, that we have put in place over the past few years 
these formal processes, the non-concurrence process and the 
differing professional opinions process.
    Senator Markey. Right now you have three senior managers 
who are in disagreement. I would strongly recommend to you that 
you get that resolved before it comes up to the Commission.
    Ms. Macfarlane. I will tell you my practice, and I know 
this is true of Commissioner Ostendorff.
    Senator Markey. I have just one more question I have to 
ask. I just give you that as my recommendation. I know you will 
be gone and again, I thank you for your service but I think the 
Commission has to resolve these issues.
    Last year, last year language I authored was enacted to 
require NRC to provide non-public documents to Congress after 
NRC attempted to change its policy in a way that would have 
automatically denied most congressional requests.
    The agency is still refusing to comply with this law. For 
example, five members of the Chinese military were recently 
indicted on charges of hacking into U.S. company systems in 
2010 and 2011 and stealing nuclear reactor trade secrets from 
Westinghouse.
    At the very same time these thefts occurred, Westinghouse 
was hosting dozens of unescorted Chinese personnel at U.S. 
nuclear reactors for months.
    You have refused to provide to me a meaningful response to 
my letters. Your staff even told mine that you would provide no 
additional information, even though other members of your staff 
have told my staff that the FBI has no objection to your doing 
so.
    I have been made aware of many NRC meetings, letters and 
presentations about this Chinese program. I have also learned 
that NRC security staff recommended an increase in security 
requirements for the Chinese nationals but others at NRC 
rejected the suggestion. Yet, you provided one of these 
materials to me in violation of the law.
    The law requires NRC to provide non-public documents to 
Congress. Does each of you agree to follow the law and to fully 
respond to any of my outstanding requests about this Chinese 
compromise of the security at nuclear facilities in the United 
States?
    Madam Chairman.
    Ms. Macfarlane. Senator, with regard to this particular 
situation, we did learn about this program. We actually checked 
and ensured that the licensees were following our security 
regulations. We found that the licensees had granted limited 
access and we verified that the licensees followed our 
requirements.
    Senator Markey. Will you provide the non-public documents 
to me, to the committee, so that we can examine them?
    Ms. Macfarlane. We will have to take that back.
    Senator Markey. Again, you are in violation of the law if 
you do not provide that information to the committee. We have a 
right to know what the relationship between Westinghouse and 
these Chinese who are gaining access to the nuclear facilities 
in the United States is. Will you provide that information to 
the committee and to my office?
    Ms. Macfarlane. Senator, we did ensure that these folks 
followed our regulations.
    Senator Markey. That is not the question I am asking you.
    Senator Boxer. The question is either yes or no. Could you 
do it because his time is running out? I have to turn to 
Senator Barrasso.
    Ms. Macfarlane. I am happy on this particular situation to 
provide you the information you need. We will provide you 
briefings on this topic. We are happy to do that.
    Senator Markey. But you will not provide the documents, is 
that what you are saying?
    Ms. Macfarlane. We are happy to engage with you and engage 
with this committee.
    Senator Markey. That is just unacceptable.
    Senator Boxer. I just think this point is unbelievable, 
that we cannot get a simple yes or no to a request for 
documents that we are entitled to that you swore that you would 
give to us when you were confirmed.
    Anyway, we turn to Senator Barrasso.
    [The referenced documents follow:]
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    Senator Barrasso. Thank you, Madam Chair. I appreciate the 
opportunity for this hearing today.
    The Nuclear Regulatory Commission is vital to ensuring 
nuclear safety. I think it is important for this committee to 
ensure that their mission is effectively carried out.
    I have concerns that our mission of oversight is being 
thrown out the window in the name of political expediency, 
thrown out by the actions of those who seek to turn the Nuclear 
Regulatory Commission into a political prize rather than a 
sacred trust.
    This is nothing new. Once again, in the name of short-term 
gain, the majority has broken the rules of this committee to 
further the goals of partisanship. Since Fukushima, this 
committee has held numerous hearings with the full Commission. 
Many on this committee fought hard to see that the Commission 
functions as it should.
    However, the Majority Leader chose to push a former one of 
his staffers to serve on the Commission and then become its 
chairman. This was an unmitigated disaster. His deeds are well 
documented by the NRC Inspector General and this committee.
    In the interim, this Administration, along with the 
Majority Leader, has pushed to eliminate other very qualified 
members of the NRC and replaced them with less qualified 
individuals. We have lost good, seasoned commissioners like 
Commissioner Apostolakis and William Magwood.
    In return, the current majority has unilaterally passed 
Commissioner Baran without one Republican vote and no hearing 
for this longer term to fill the remainder of Ms. Macfarlane's 
term.
    As mentioned before, it is against committee precedent to 
not have a hearing on a nominee, so it appears that the current 
majority is trying to chip away at the NRC brick by brick until 
all that is left are those who do as they are told. This is not 
good for public safety.
    Commissioner Svinicki, the Nuclear Regulatory Commission 
has taken a number of actions post-Fukushima to improve public 
safety on our nuclear fleet. Can you go into detail as to what 
the Commission has achieved and learned post-Fukushima?
    Ms. Svinicki. The NRC has engaged on a number of different 
issues. Chairman Macfarlane's written testimony describes those 
in detail.
    In the interest of time, I would highlight the immediate 
orders issued to require mitigating strategies for more extreme 
natural events at nuclear power plants. When you visit a 
nuclear power plant in the United States today, you will see 
that they have additional pumps and emergency equipment with 
unified quick connections so that it can be used against a 
whole different range of events.
    That is a significant achievement that you can go and 
visibly see at power plants. We continue to work on an 
integrated set of rulemakings and other response measures that 
will take some time to put in place. We are in a very active 
implementation phase at nuclear power plants and regulated 
sites now.
    Senator Barrasso. Does anyone else have anything they want 
to add to this?
    Mr. Ostendorff. Senator, I would like to add to 
Commissioner's Svinicki's response.
    I am very proud of the actions that we have required as an 
agency. Commissioner Svinicki and I have been here on the 
Commission since Fukushima. I believe we have taken a 
thoughtful approach based on science, engineering and risk 
principles to ensure that the right thing is being done in the 
proper sequence. I think they have been done so far.
    This is not easy and it is taking some time, but I think 
the actions taken by the NRC and the industry have been 
appropriate to the issue.
    Senator Barrasso. Thank you.
    Ms. Macfarlane. Senator, I want everyone to understand 
right now that plants have acquired a lot of extra equipment. I 
have been to many of them and seen it myself. I think some of 
my other fellow commissioners have as well.
    If an accident was to befall a plant now, they are 
significantly better prepared to handle it than they were in 
the past.
    Senator Barrasso. Commissioner Svinicki, could you explain 
your perspective on additional things that still need to be 
done post-Fukushima?
    Ms. Svinicki. There are a number of the Near-Term Task 
Force recommendations that are still under analysis and review.
    As Commissioner Ostendorff mentioned, NRC has taken a step-
wise approach, first, of necessity because some of our experts 
need to be working on higher safety priority items right now, 
but also because we do not want to diminish the effectiveness 
of measures already in place by taking subsequent actions.
    We want to be certain that this enhancement and the ability 
to respond that Chairman Macfarlane talked about is something 
we can continue to capture all the benefits of as we move 
forward on subsequent items.
    Senator Barrasso. Chairman Macfarlane, given all the NRC 
has been asked to do post-Fukushima, are we losing some 
perspective on everything else the Commission is tasked to do?
    For example, as you know, Wyoming has an abundance of 
uranium. Given all of the work that has been devoted to post-
Fukushima activities, do you believe the NRC has the staffing 
and the resources available to process all the new uranium 
applications and permits for other activities the NRC needs to 
approve as well?
    Ms. Macfarlane. We do have the appropriate staffing to 
handle all the uranium recovery license applications, license 
renewals and extensions that we have received. I want to assure 
you of that.
    We have not lost sight of the mission of safety and 
security at nuclear plants given all the extra Fukushima work. 
We have been working very closely with industry to ensure that 
they have not lost sight of that as well as they try to meet 
some of these new requirements.
    Senator Barrasso. Thank you.
    Thank you, Madam Chairman.
    Senator Boxer. Thank you so much.
    I am going to place in the record a comparison of 
Commissioner Svinicki's and Commissioner Baran's experience. 
What you will find is it is identical. I never heard one word 
from a Republican against Commissioner Svinicki.
    [The referenced information follows:]
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    Senator Boxer. As a matter of fact, not one Democrat ever 
criticized her experience even though she worked for Senators 
Craig and John Warner. In her work, she had nothing to do with 
civilian nuclear energy whereas Mr. Baran worked for 
Congressman Waxman with direct oversight of civilian nuclear 
energy.
    This outrage over appointing commissioners who worked as 
congressional staffers is worse than ringing hollow. It is 
really ridiculous when, in fact, not one Republican ever 
complained, nor one Democrat, about Commissioner Svinicki's 
background.
    As a matter of fact, I well remember how happy I was for 
Senators Warner and Craig because they were smiling from ear to 
ear.
    With that, I turn to Senator Whitehouse.
    Senator Whitehouse. Thank you.
    Let me ask this question to the members who will be 
continuing on because this is a forward looking question.
    We have a massive carbon pollution problem in this world. 
If anyone needs a reference, look no further than today's AP 
CBS news story, ``Hotter, Weirder, How Climate Change Has 
Changed Earth.''
    Nuclear power does not contribute to carbon pollution, and 
there are new technologies out there, some actually not so new, 
but they just have not been deployed in the civilian electric 
power fleet.
    We have small modular reactors. The U.S. Navy has been 
running submarines and carriers off that kind of reactor safely 
for decades, yet it has never transitioned into the electric 
fleet.
    Traveling wave is a technology developed in the United 
States of America that has the potential at least to turn 
nuclear waste into electric power. The Chinese are now 
developing traveling wave reactors. We are not.
    Thorium was developed as a reactor back in I want to say 
the 1970s on an experimental basis in the United States. That 
initiative collapsed. The Chinese and the Indians are now 
building thorium reactors, again a U.S.-based technology.
    Over and over again, what I hear is that an American 
industry that wants to go into these strategies and explore 
them has essentially a regulatory black box at the NRC. It has 
no idea when it walks into those woods, how long the path will 
be, how winding it will be, or what lurks there in the dark.
    The position of the NRC has been very reactive about this. 
You bring it to us, and we will take a look as opposed to 
looking at this as a significant threat, the carbon pollution 
problem as a grave problem, and the nuclear solution as a 
potential solution.
    I am not suggesting for a minute that anyone should step 
back on being completely safety oriented, but I do think that a 
clearer way in the future of engaging with the industry to let 
them know what they have to look forward to is necessary.
    If you are planning to enter this business on a business 
basis, huge question marks in the business plan are disabling, 
even if the actual answer, if you could open the box, is it is 
not that bad, because they simply cannot take the risk to find 
out. You have to be able to walk them through it in advance.
    I don't know why on earth the technology that drives our 
subs and our carriers has never been able to make it into the 
civilian fleet. I don't know why on earth the Chinese have to 
be developing thorium and traveling wave technologies.
    In the case of thorium, we have actually built and run them 
in this country but have never turned it into a viable 
technology.
    To now see the Chinese and the Indians out there doing it 
again, using our technology, it is very frustrating, 
particularly when you see this as an alternative to the coal 
fleet which is doing such immense damage to our country and to 
our world.
    I would ask Commissioners Baran, Svinicki, Ostendorff and 
Burns to respond briefly.
    Mr. Baran. Senator, I completely agree that it is NRC's 
responsibility to have an efficient and effective licensing 
process for small modular reactors and other reactor designs 
that may be coming in future years.
    As Chairman Macfarlane mentioned, I think the earliest 
applications we are likely to see for a small modular reactor 
is in 2016, the new scale application.
    The Commission just last month had a public meeting, like a 
hearing, with NRC staff and outside stakeholders to look at 
these very questions. My impression is, and it seems pretty 
clear to me, that the NRC staff is focused and engaged on this.
    They are thinking through in advance what the tough issues, 
technical issues and policy issues are that have to be though 
through in advance, whether it is control room staffing, 
security, emergency preparedness, annual fees or the range of 
issues where the answers might be different for a small modular 
reactor or an advanced design than for our traditional larger, 
light water reactors.
    That is happening. Information and papers are being 
prepared. There may be some questions that come up to the 
Commission as policy matters but my sense is the staff has been 
quite proactive on this.
    Senator Whitehouse. Commissioner Svinicki.
    Ms. Svinicki. Your reaction to the Indian and Chinese 
programs was similar to mine. At the invitation of the U.S. 
State Department, I have had the opportunity to travel to both 
of those countries.
    Even knowing the level of activity in advance, it was hard 
not to be a bit overwhelmed at the level of activity and 
investment those countries are making in advanced reactors.
    I would say since my service on the Commission began in 
2008, I have monitored the NRC activity in this area. I think 
it has been commensurate with the amount of industry interest 
in the United States. It has been scalable to that.
    Also, our extent of pre-application engagement where we 
meet with vendors in advance of their finalizing their design 
has really been somewhat unprecedented. You said there is the 
regulatory uncertainty question mark. We are really working to 
try to fill that in so we can get high quality applications.
    Senator Whitehouse. Commissioner Ostendorff.
    Mr. Ostendorff. My background is in nuclear submarines. I 
spent 16 years in sea duty on six different submarines driving 
reactors that were not too far different from the size we are 
talking about here.
    Senator Whitehouse. So you can appreciate the question.
    Mr. Ostendorff. Yes, sir.
    I have been at the Commission four and a half years. I have 
seen us, even in the wake of Fukushima, go through the design 
certification approval for Westinghouse's AP-1000 design cert, 
including licensing reactors to be built in South Carolina and 
Georgia.
    I have seen us recently approve GE-Hitachi's economic 
simplified boiling water reactor, ESBWR, and design 
certification.
    Along with Commissioners Svinicki and Baran, I think we are 
ready for the SMRPs. I am very optimistic that we can deal with 
this from a regulatory standpoint.
    Senator Whitehouse. Commissioner Burns, you have the last 
10 seconds.
    Mr. Burns. I agree with much of what my colleagues are 
saying. Over the last couple of years, part of my duties at the 
Nuclear Energy Agency in Paris was to provide support of the 
Generation IV Forum and Framework Agreement. There is a lot of 
work being done there.
    As Commissioner Svinicki said, my experience has been that 
being able to at least stepwise able to engage those who may be 
interested in the new technologies is what is important.
    For example, the generation of the small modular reactors 
that often are still current generation, probably the process 
is a little clearer but we need to make sure we are adept and 
ready for looking at the advanced technologies in terms of the 
framework.
    Senator Whitehouse. My time is up.
    Senator Boxer. I am sorry. I think that question is so 
important and I appreciate it.
    Senator Gillibrand, just so we know, the vote is about to 
start. Ask your questions and then I will stay and ask all of 
mine. Then the panel will be relieved to know they can go. The 
other panel will take a walk around the block and we will get 
back as soon as we can because I really want to talk about 
Diablo and hear from the people out there.
    Senator Gillibrand.
    Senator Gillibrand. Thank you all for being here. I am very 
grateful for your testimony and your participation.
    I have three questions. I will ask them all and whoever 
wants to answer them can answer them.
    The first is about emergency planning in an evacuation 
zone. We have Indian Point, as you know, where 17 million 
people live within 50 miles of a nuclear power plant.
    You are familiar with the geography of New York. You know 
that in the event of an evacuation of New York City, the only 
options are north or west which means you would have a large 
number of people evacuating toward Indian Point.
    Since Fukushima, the FERC recommended that Americans who 
live in a 50-mile radius be evacuated. That sends a very mixed 
message for preparedness.
    My question is, has the NRC taken any steps to work with 
FEMA and other Government agencies to develop an emergency plan 
that encompasses the shadow evacuation zones? That is my first 
area of inquiry.
    My second is about cyber security. Last year, the 
Department of Homeland Security and the Industrial Control 
Systems Cyber Emergency Response Team responded to well over 
200 cyber-related incidents with the majority taking place in 
the energy sector. This represents nearly a doubling of the 
recent yearly caseload.
    While these incidents have yet to cause a major disruption, 
the possibility of cyber-related terrorism is obviously a 
threat.
    The question I have is how is the NRC working with 
utilities to address the threat, and are you seeing the same 
obstacles in the energy sector with regard to cyber incidents 
that other sectors are actually facing, whether it is the need 
for capital improvements, better information sharing between 
the industry and appropriate regulators and better training? 
Are those necessary?
    The third and final question is about seismic activity and 
seismic concerns because New York actually is on a fault line. 
In November, NRC announced it is requiring Indian Point to 
conduct a high level earthquake risk report for both Units 2 
and 3, a requirement for plants in the higher seismic risk 
category. This report must be completed by June 2017.
    Do you think that more than two and a half years is an 
appropriate timeline to complete this study for the plant with 
recent documented aging infrastructure and its proximity to 17 
million people and the high risk?
    Once the risk evaluation is complete, when would you 
suggest any action to address be implemented?
    There are three questions and whoever thinks they have the 
most expertise, I would appreciate your response.
    Ms. Macfarlane. Let me try to run through a couple of 
those. Let me take your last question first, your seismic 
activity question.
    I think two and a half years is probably reasonable. There 
aren't a lot of seismic experts in the country. These seismic 
performance assessments take a long time to do, and we want to 
make sure that they are done properly and thoroughly.
    In the interim, we have required plants that have qualified 
to do this extra analysis, this extra evaluation, to ensure 
that they have safety systems in place. We are going to be 
inspecting them for that.
    They have given us their plans on that, they will by the 
end of this year and we will be inspecting them.
    Let me also say that with regards to Indian Point, we put 
them in our first priority category to move out on this. They 
asked to be taken out of that first priority category. We 
refused.
    In terms of emergency planning, emergency preparedness, we 
do closely coordinate with FEMA on this. We do have extensive 
regulations. We are actually in the process of strengthening 
our regulations on emergency preparedness based on what 
happened in Fukushima. We do conduct regular drills and 
exercises with the State and local officials.
    Senator Gillibrand. Do you have a written plan that I can 
see because I just know the experience from Super Storm Sandy. 
If we had had to evacuate, we would not have been able to 
because most of the roads in that region were closed because of 
downed power lines, because of downed trees, so we had days 
when people could not actually use the roads to get their 
families to school or to work throughout Westchester County.
    Ms. Macfarlane. I completely understand and empathize with 
your concerns on this issue. I think you are right on track to 
be concerned about this. We are looking at this and we will get 
you that information.
    Senator Gillibrand. I definitely want to see updated 
reports. Also, the confluence of factors during Super Storm 
Sandy was very concerning. We had swells up to, I think it was 
10 feet. I think our clearance was 12 feet. It was something 
very close. It was very close, so a storm with a little more 
strength, a little more flooding, a little more rain would have 
perhaps overwhelmed the plant.
    Ms. Macfarlane. Right, and we are looking at that too.
    Senator Gillibrand. We only had a second generator, only 
one backup. Again, if you look at Fukushima as an example of 
all the things that can go wrong that you cannot possibly 
imagine could go wrong, I was beginning to see it during Super 
Storm Sandy.
    If it was 2 more feet, if it flooded the second generator, 
you could see it happening. I saw all the trees and powerlines 
down and there would be no evacuation availability.
    Ms. Macfarlane. You are right to be concerned about these 
issues. We are, too, and we are taking our lessons from 
Fukushima and Super Storm Sandy and ensuring that there are 
flood hazard analyses being redone for Indian Point and for 
other plants as well. Be assured we are on top of this.
    In terms of cyber security, yes, this is a threat that is 
constantly changing. I think we have been way ahead of the game 
on this one. We required regulations on cyber security for our 
nuclear power plant licensees in 2009. We are working on that.
    I will ask Commissioner Ostendorff to say something more on 
that issue. He is an expert on that one.
    Mr. Ostendorff. I am not an expert, but I have had some 
experience in this from other jobs.
    I will just tell you that we agree with you, Senator, that 
cyber is a key area of concern. We take it very seriously.
    As the Chairman noted, the NRC put out a rule in 2009 
requiring our nuclear power plants to comply with certain cyber 
requirements. We meet as a commission frequently with the 
Department of Homeland Security CERT group on critical 
infrastructure concerns as well as the FBI and the National 
Security Agency.
    For the sake of time, I will just tell you that in a couple 
of our meetings with DHS, the experts they have on industrial 
control systems for critical infrastructure commented very 
favorably on the regulations we have in place.
    Senator Gillibrand. Thank you.
    Senator Boxer. Thank you, Senator Gillibrand.
    I hope the rest of you can answer her in writing because 
she hit on something that also impacts my people. I remember 
when I went to visit the San Onofre plant, which is now shut 
down, millions of people live within 50 miles, similar to your 
situation.
    I asked the sheriff what happens in case of an emergency 
here at the plant. She sort of laughed in a sad way and pointed 
to the freeway and said, that is our answer. In a regular day, 
you are backed up.
    It is a huge issue because a lot of the time these plants 
are quite old. I don't know how old your plant is. It must be 
quite old and the population was much smaller. Then you 
discover these new earthquake faults or tsunami zones or 
climate change, the different kinds of impact.
    I think you are on to something critical which is the 
emergency preparedness has to be more front and center given 
the fact we are going into these extreme weather events that 
shock us. I thank you very much.
    I would say to the panel that the first vote has started. I 
am going to stay here as long as I can and finish my 
questioning. If anyone wants to come back, they should go vote 
now and come back. If not, we will recess until we finish all 
five votes. Hang around here but you can take at least a half-
hour, the second panel.
    Madam Chairman, when you talked about your tenure, you 
said, significant progress in post-Fukushima safety. I guess 
that goes to the issue of beauty is in the eye of the beholder 
because I look at the NRC's Near-Term Task Force, made up of 
senior staff, who represented together 135 years of experience 
and made just 12 recommendations to address Fukushima lessons 
learned.
    They did that in July 2011. They put out their 12 
recommendations. July 2012 passed, July 2013 passed, July 2014 
passed and there isn't one of these that is in place, not a 
single one.
    We have a chart just in case. I don't want you to say I 
don't agree with you because you can't not agree because here 
are the facts. None of them are in place, so how you can say 
you are proud of what you did?
    I know you did a lot of other things that are good but how 
you can say you are proud that you helped us post-Fukushima is 
beyond my belief and understanding. I guess we would have to 
sit and talk for a long time for me to figure it out.
    I am a person who believes there are benchmarks, you lay 
them out and you meet them. If I have to visit so many counties 
by such and such a time, I commit to do it, I do it or I fail.
    Here it is and not one of them has been implemented by the 
industry. At the same time while this is going on, the NRC has 
apparently joined with Russia to block a reactor safety 
proposal overseas that would require existing reactors to be 
retrofitted to prevent accidents caused by severe earthquakes 
or other natural hazards.
    Again, I am sure you are proud of your work. I am sure 
there are things you could point to but for me, sitting in a 
State that now has one plant left and one plant closed because, 
in my opinion, there was lax oversight, the problem they faced 
could have been prevented.
    Be that as it may, why haven't these been done and why did 
you join with this Russian idea that we shouldn't move forward? 
Do you want to answer that?
    Ms. Macfarlane. Let me answer your question about what I 
think you are talking about here. The proposal you referred to 
in terms of Russia is the proposed amendment to the Convention 
on Nuclear Safety.
    Let me state up front that we work closely with our 
European counterparts, and we collaborate with them a lot over 
Fukushima changes that we are all doing. We have been 
collaborating extensively with them.
    Our view on the proposed amendment to the Convention on 
Nuclear Safety is that we are already meeting the essence of 
that amendment in other ways. Opening an amendment to the 
Convention on Nuclear Safety is a difficult, long, time 
consuming process and it may actually damage global nuclear 
safety.
    Senator Boxer. I have to ask you. It will damage nuclear 
safety to require existing reactors to be retrofitted to 
prevent accidents caused by severe earthquakes or other natural 
hazards. That is your quote. It would be damaging to safety. I 
don't understand you.
    Ms. Macfarlane. I want to be clear about what I said. What 
I said was that amending the Convention on Nuclear Safety is a 
very difficult, long-term, time consuming process.
    Senator Boxer. Just give me a yes or no. The Russian 
proposal opposes that reactors be retrofitted to protect 
against natural hazards and you oppose that? Will you support 
that?
    Ms. Macfarlane. That is not what the Russian proposal 
proposes. The Russians are saying they do not want to amend the 
amendment language.
    Senator Boxer. Right, to make it stronger.
    Ms. Macfarlane. No, they simply are saying they do not want 
to amend the amendment language. We are heavily involved in 
working with the State Department who has the lead on the 
negotiations on this issue of whether to amend the Convention 
on Nuclear Safety.
    Senator Boxer. You are on your way out the door and 
happily, I think, for you because I think you are happy. You 
are proud of what you did, and I am glad that you are proud of 
what you did.
    I have to say you teamed up with Russia, that is the story, 
to block a reactor safety proposal overseas that would require 
existing reactors to be retrofitted to prevent accidents caused 
by severe earthquakes. That is just the fact and it is 
disturbing to me that we are teaming up with Russia on this. It 
just is disturbing given Russia's record.
    I have a question and I am going ask each of you to answer. 
Think this through before you answer it. It is not a trick 
question, it is pretty straightforward, but I want you to think 
it through.
    Do you believe that reactor operators are required to 
comply with their operating licenses? Do you believe that 
reactor operators are required to comply with their operating 
licenses? Mr. Baran.
    Mr. Baran. Yes.
    Senator Boxer. Ms. Svinicki.
    Ms. Svinicki. This is the license issued to each operator?
    Senator Boxer. Yes.
    Ms. Svinicki. Yes.
    Ms. Macfarlane. Yes, we require reactor operators to comply 
with their licenses.
    Senator Boxer. Yes?
    Mr. Ostendorff. Yes.
    Mr. Burns. Yes.
    Senator Boxer. Excellent. Despite your answers, the 
Commission has allowed California's Diablo Canyon nuclear power 
plant to continue to operate even though it is out of 
compliance with the seismic safety terms of its license.
    NRC also declined to act when its own senior inspector said 
that the plant should be shut down until it could be shown that 
it was in compliance with its license. Can you confirm that 
Diablo Canyon is operating without a license that accounts for 
the new seismic faults? I ask that question. Mr. Baran.
    Mr. Baran. I think the answer is somewhat complicated 
because there was a very complicated licensing history for 
Diablo Canyon. I think there are two questions. One is safety 
and one is compliance.
    On the safety side, the NRC staff has looked at it, done an 
independent review of the data and they have concluded it is 
safe to operate the plant.
    The second question, which is more of what you are getting 
at, is how they in compliance with their license. Right now, 
the staff is looking at whether a license amendment would be 
necessary.
    Senator Boxer. It is not in dispute that PG&E is out of 
compliance with its license. That is why PG&E asked NRC for a 
license amendment and then it withdrew. Does anyone disagree 
with that? It is not in dispute that PG&E is out of compliance 
with its license.
    Ms. Macfarlane. I think you are referring to the license 
amendment request they withdrew with regard to the seismic 
hazard analysis?
    Senator Boxer. Yes, right.
    Ms. Macfarlane. The reason they withdrew that is that we 
provided guidance when we required them, after Fukushima, to do 
a new seismic hazard reevaluation. That is why they withdrew 
that license amendment request.
    Senator Boxer. Madam Chairman, can you confirm that Diablo 
Canyon is operating without a license that accounts for the new 
seismic faults? The NRC never approved a new request.
    Ms. Macfarlane. They are in compliance with their license 
and we consider them safe to operate until we see new 
information that tells us otherwise. If we find new information 
that suggests they are not safe to operate, we will shut them 
down. Of course that is what we would do with any nuclear power 
plant.
    Senator Boxer. Does their current license cover the new 
information discovered on the earthquake faults? Does their 
current license cover that?
    Ms. Macfarlane. This is a very complex issue.
    Senator Boxer. Let me give you my opinion as someone who 
has been in politics a long time. I always tell my constituents 
when someone says this is complicated, they really don't want 
to answer it.
    I am telling you we have information, you know that very 
well, of new seismic problems there. The license doesn't match 
that. They need to upgrade their facility. Your own senior 
inspector said it. Why don't you listen to your own senior 
inspector, can you answer that question, who says they ought to 
be shut down or make the upgrades? You are saying you did 
listen to the inspector?
    Ms. Macfarlane. Certainly.
    Senator Boxer. What have you done to make sure they shut 
down until they upgrade the facility?
    Ms. Macfarlane. We considered the concerns of the senior 
resident inspector who said there was no immediate safety 
concern that he was presenting about Diablo Canyon.
    Senator Boxer. Immediate is not good enough for this 
Senator, and immediate is not good enough for the 500,000 
people who live within 50 miles. Immediate is what they said at 
Fukushima, oh, there is no immediate problem, and Fukushima 
happened. This is a problem. You know there is a problem there.
    I am going to go into this with the second panel. I am 
going to move along.
    The NRC Inspector General recently issued its report about 
how NRC oversaw efforts by the operator of the California San 
Onofre nuclear power plant to replace its steam generators 
using a less rigorous regulatory process. The flawed steam 
generators ultimately caused the plant's permanent closure.
    The NRC Inspector General said that the NRC missed an 
opportunity to identify the problems with the steam generators 
when it inspected San Onofre's steam generator replacement 
efforts in 2009 with NRC experts saying there were many 
shortcomings in the analysis Southern California Edison 
provided to the NRC to justify the less rigorous regulatory 
process.
    Do any of you disagree with the conclusion of the Inspector 
General of the NRC? Does anyone disagree with that?
    Ms. Macfarlane. Senator, we actually have lessons learned 
analysis going on for the San Onofre nuclear power plant. Part 
of that analysis will look at what we call the 10 CFR process.
    Senator Boxer. Let me try this again. The NRC Inspector 
General said that two former senior NRC officials said that 
Southern Cal Edison should have applied for a license amendment 
for its new steam generators which would have required a much 
more rigorous review by the NRC. Let me add parenthetically, 
maybe that plant wouldn't have had to shut down.
    They also said the NRC would not have approved such a 
license amendment because the design was fatally flawed.
    Do any of you disagree with the IG's conclusion that NRC 
should have done a more rigorous review?
    Ms. Macfarlane. We are in the process of looking at their 
conclusions.
    Senator Boxer. Do you agree?
    Ms. Macfarlane. We are in the process of looking at their 
conclusions in terms of the situation at the San Onofre power 
plant.
    Senator Boxer. Could I just say, it is so frustrating. You 
have senior officials that talk about safety, you have an IG 
that faults you and all you do is continue to look at 
something. You have 12 recommendations that are very clear and 
even most people could understand what they are. They are 
pretty straightforward.
    Not one has been done, and you say you are proud of the 
work of the Commission. Not one is in place, not one. There has 
been no upgrade to the emergency response draining, no longer 
term study of emergency response topics, and no improved 
reactor inspection and oversight. It is unbelievable.
    There is not a study completed to upgrade seismic flooding 
and other hazard protections. Some licenses are still not in 
compliance with pre-Fukushima requirements.
    All I am saying is think what you will about how great a 
job you are all doing, I know you work hard, every one of you 
cares deeply, but you have to do better because this isn't an 
academic setting where we talk about things that may happen.
    I live in the real world where I go out to these places and 
look in the eyes of the people, some of whom will be here this 
afternoon. Senator Gillibrand says after Super Storm Sandy, she 
was terrified at what could happen at that plant.
    I am just saying from the bottom of my heart, more has to 
be done. I want to address the new commissioners who are 
joining the team here. I hope you four can work as a team. I 
hope you can find common ground.
    If you can't agree on doing the 12 things, for God's sake, 
do two, three or four of the things and get it done because one 
of those 12 things could be absolutely critical.
    I guess I want to ask another question of Chairman 
Macfarlane or all of you. This is another question so think it 
through before you answer.
    Do any of you disagree that when reactor operators replace 
equipment like steam generators, NRC's so-called 50.59 
regulations require the operators to demonstrate that the new 
equipment can perform safely? Do any of you disagree with that?
    Ms. Macfarlane. Madam Chairman, I would like to submit, for 
the record, our charts which show the progress that we have 
made on Fukushima upgrades at plants.
    Senator Boxer. Sure.
    [The referenced charts were not received at time of print.]
    Senator Boxer. I will give to you the list of 12, and you 
tell me which ones of those you have put in place.
    Ms. Macfarlane. Absolutely. We are happy to provide all of 
that information.
    Senator Boxer. Let me get back to my questioning. Let the 
record reflect that none of you disagree that the operator has 
to demonstrate the new equipment can perform safely when 
replacing equipment licensed generators.
    I would like to place NRC's response to questions my staff 
asked about Diablo Canyon into the record.
    [The referenced information was not received at time of 
print.]
    Senator Boxer. Those responses acknowledge that when PG&E 
replaced both of its steam generators and its reactor vessel 
head, it did not comply with NRC's 50.59 regulations.
    What is more, the analysis PG&E failed to do was to answer 
the question of whether the new equipment could work safely 
following both a severe earthquake and a loss of ability to 
cool the reactors similar to what happened at Fukushima.
    I would like for Chairman Macfarlane to answer this. Can 
you confirm that NRC has known about PG&E's failure to meet 
these key NRC regulations, the 50.59, since 2011 but has not 
taken enforcement action against the licensee for this failure?
    Ms. Macfarlane. Madam Chairman, I did learn recently about 
this issue. I am aware of the general outlines of this issue. I 
asked the staff to get back to me on this issue. They informed 
me that the licensee in 2011 found, PG&E noted the failure to 
collect this kind of information.
    Also at that time, they did the evaluation they needed to 
previously have done and the NRC concurred on that.
    Senator Boxer. I will put in the record the fact that the 
NRC did not pursue this issue. We have the background on it. 
They have known about it. You have known about it since 2011. I 
have the proof from the staff, your staff, and did nothing 
about it.
    I am going to turn it over to Senator Markey and give him 
the gavel. I will run and vote and come right back. Then you 
can vote on the second vote. Is that OK, Senator?
    Senator Markey. Yes.
    Senator Boxer. I will be right back.
    Senator Markey [presiding]. It is like I am Chairman of the 
House again, eh? Thank you.
    The NRC's Office of Investigations was created in 1982, 
which was 2 weeks after a hearing I chaired about a case where 
NRC officials whitewashed a safety investigation after they 
showed it to a former NRC chairman who had been hired by the 
subject of the investigation.
    I recently wrote a letter to the NRC about my concerns that 
the independence of this office was being eroded, that the 
Office of General Counsel may have inappropriately attempted to 
interfere with a recent investigation and that the staff which 
assisted with the investigation was being retaliated against.
    In response, I was told that you, Madam Chairman, and 
others had referred those concerns to the NRC's Inspector 
General. That is why I was so disturbed when I obtained a copy 
of a draft proposal that you authored that directed the Office 
of General Counsel to effectively take over and reorganize the 
Office of Investigations and limit the resources and types of 
investigations that could be conducted in the first place.
    You even did this before the NRC Inspector General 
completed his work.
    When Chairwoman Boxer and I sent you a letter conveying our 
strong concerns about this proposal, you did not respond to us. 
Instead, you directed your staff to deny the very existence of 
the proposal in the first place, even though I had been 
provided a copy of the document.
    Madam Chairman, is this proposal, which unquestionably was 
prepared and circulated by you, still being considered?
    Ms. Macfarlane. At the moment, it is not being considered, 
but let me tell you that the draft memo that you are referring 
to was only circulated to the very senior management of the 
agency and to my colleagues here, of course. It was a draft to 
get their feedback.
    Never and nowhere in that memo will you find any 
contemplation of any reorganization of the Office of 
Investigations. As commissioners, we are trying ensure that we 
have an effective enforcement process because that is critical 
to our agency's ability to enforce our regulations.
    Senator Markey. The document actually said that the Office 
of Investigations couldn't do the same work, it said it 
couldn't have the same resources, it said that the General 
Counsel had to direct every action that was going to be taken.
    Ms. Macfarlane. I do not agree with your analysis. That is 
not what it said. The Office of General Counsel was only cited 
in terms of providing guidance. I would ask my colleagues to 
weigh in because they have seen this memo.
    Senator Markey. Do any of the other members of the 
commission wish to address that?
    Mr. Ostendorff. I would like to respond, Senator Markey.
    I agree with the Chairman's response. I, along with the 
other commissioners, was offered a chance to review this memo. 
This is a personal viewpoint. There were some concerns in the 
organization. I think it was a very responsible act by the 
Chairman to take the initiative to address a problem.
    That memo did not direct reorganization of the Office of 
Investigations. I think the actions the Chairman circulated as 
a draft proposal were responsible and appropriate.
    Senator Markey. Do any other members wish to comment? 
Commissioner.
    Ms. Svinicki. Senator, in the feedback I provided to 
Chairman Macfarlane, I also indicated that I viewed the 
proposal as an opportunity to look at strengthening the 
coordination between the Office of Investigations, Enforcement 
and General Counsel.
    My feedback to her as that I supported having the NRC staff 
look at that and see if any enhancements could be made.
    Senator Markey. Do you support the continued complete 
independence of this office?
    Ms. Macfarlane. The office should be independent to the 
degree that it does report back to our Executive Director of 
Operations. That is the structure of the Office of 
Investigations. It is not the Inspector General. That is a 
separate and distinct office at our agency.
    Senator Markey. Does each of you agree that it should 
maintain its independence?
    Mr. Burns. I agree that the Office of Investigations has to 
have the capability to carry out its professional 
responsibilities as an investigative office. I worked closely 
with them when I was General Counsel and an attorney at NRC for 
25 years.
    Sometimes there are disagreements between the lawyers and 
investigators about where to go but essentially, the office has 
the ability to make its recommendations and to cooperate with 
the Justice Department in appropriate cases. That is what is 
important and that is what I would defend.
    Senator Markey. Should it be able, Commissioner, to do 
whatever investigations it deems to be appropriate?
    Mr. Burns. Essentially, it makes the judgment call as to 
its investigative workload or the investigations it pursues. 
You have this sometimes in the constraints of when an 
investigation is underway, because that is the nature of the 
American legal system in terms of objections that persons may 
make.
    For example, if I am someone who is the subject of an 
investigation, do I have to testify. There are ways of 
resolving those things through subpoena and through other types 
of actions. The judgment call is essentially within the office 
to carry out its mission.
    Senator Markey. Should it have to report to the General 
Counsel during the course of an investigation?
    Ms. Macfarlane. It doesn't report to the General Counsel, 
but it works with the General Counsel's office.
    Senator Markey. Should it have to?
    Ms. Macfarlane. Yes, because it is part of our overall 
enforcement process. Our overall enforcement process 
encompasses three of our offices, the Office of Investigations 
which carries out the investigations but they need to work with 
our General Counsel's Office and the lawyers in forming those 
investigations, and because this is part of our enforcement of 
our regulations process, they have to work together with the 
Office of Enforcement.
    They all have to work together and that is what we wanted 
to look at.
    Senator Markey. Should it be able to be free to pursue any 
investigation is my question to you? Do you agree with that?
    Ms. Macfarlane. It does have the ability to pursue any 
investigation. They have not been prevented from that.
    Senator Markey. Should it continue to have that ability is 
my question to you?
    Ms. Macfarlane. It should continue to have the ability to 
develop investigations as it sees fit, but it does have to work 
with the other offices because it is part of our overall 
enforcement process.
    Senator Markey. You are a former General Counsel, can you 
help us to sort this out because we want to have vigorous 
oversight taking place? Should they have the ability to be free 
to pursue any investigation?
    Mr. Burns. I think, as the Chairman is saying, they 
essentially are free to pursue investigations. The point I was 
trying to make is, both as a matter of administrative law and 
constitutional law, there are sometimes limits on that with 
respect to is it a matter within the scope of the agency's 
competence, are they investigating something that is a matter 
within the NRC, and are they carrying out the appropriate 
protections that are required under the Administrative 
Procedures Act or other statutes? Those are the only caveats 
that I would put on that.
    Senator Markey. I am trying to clarify. As long as they 
continue to operate within their legal authority, should they 
be permitted to continue operating the way they have 
historically, in your opinion as a former General Counsel?
    Mr. Burns. In my view, yes, again, within the framework of 
what their responsibilities are and what the NRC's 
responsibilities are, they are able to do that.
    Senator Markey. Do you think there is a reason to limit the 
resources and types of investigations that could be conducted 
in the first place? That is something that there is a draft 
proposal out there to look at this as an issue.
    Ms. Macfarlane. There is no draft proposal to limit their 
resources. There is a draft proposal to look at the whole 
enforcement process.
    Senator Markey. We have a copy of a draft proposal that 
would limit the resources. You are saying there is no draft 
proposal?
    Ms. Macfarlane. That is correct.
    Senator Markey. Then there is a disagreement between the 
committee and the agency. We will have to resolve that because 
obviously we have a document that says that is not the case.
    You are not, in fact, supporting a proposal to erode the 
mission or the independence while they are in the middle of an 
investigation right now?
    Ms. Macfarlane. I am supporting a proposal to improve and 
ensure that our enforcement process is as efficient and 
effective as possible because as a regulator, we are not going 
to be able to regulate properly unless we can have an effective 
enforcement process to enforce our regulations.
    Senator Markey. I have a document. I am not going to 
introduce it into the official record right now. We do have a 
disagreement between the committee and the commission on this. 
I am not going to introduce it into the record at this point in 
time but we are going to have to have a private discussion and 
negotiation between the commission and the committee over this 
document where we are in fundamental disagreement.
    With that, let me say there is a second roll call on the 
floor of the Senate. I am going to run over and make the roll 
call.
    The Chair is back, so let me ask one final question.
    Chairman Macfarlane, the recent litigation challenging 
NRC's assertion that spent nuclear fuel could be stored at 
reactor sites indefinitely cost the agency between $250,000 and 
$300,000 in legal fees and cost the Department of Justice 
additional taxpayer dollars as well.
    There are more than 300 contentions pending on the Yucca 
Mountain license proceeding and contentions cost more than 
litigation to resolve because the process for resolving them is 
much more complicated.
    Is it safe to say that the legal costs of resolving the 
Yucca Mountain contentions is likely to exceed 300 times the 
cost the agency absorbed on the other spent fuel litigation, 
that it would be much, much higher than the $75 million to $95 
million?
    Ms. Macfarlane. I don't know about the math that you 
elaborated but I can tell you that it would cost in excess of 
probably $300 million.
    Senator Markey. It would cost in excess of $300 million. I 
think that is very important for us to have on the record 
because clearly this is becoming a more and more costly 
enterprise for the Federal Government.
    I thank you, Madam Chairman. I yield back.
    Senator Boxer [presiding]. Thank you.
    I understand that you asked about a document. I am going to 
follow through on that, but you should go to make vote.
    The NRC is still withholding two categories of documents 
that Senator Markey talked about. Senator Markey did you read 
into the record what renowned constitutional scholar Mort 
Rosenberg said?
    Senator Markey. No, I did not.
    Senator Boxer. This is why this is critical. When you get 
confirmed, you answer in the affirmative to turn over 
documents. Now you say there is no such document when there is 
such a document. That is a problem. That is a real problem 
before this committee.
    We don't swear in people here, we don't do that, but you 
are under oath. That is the rule. You are considered under 
oath. I don't care what the General Counsel is whispering at 
this point.
    Anyone here is considered under oath, and they cannot say 
anything to the contrary but the truth under 18 U.S.C. Section 
1001. You can read it. You have to be truthful to Congress.
    There has been denial of a document. We have the document. 
Thank God there are people in the NRC.
    It is interesting, Chairman, because of your discussion 
about how great morale is. Listen, I am sure it is true for 
most people, but for some of the senior people, I say this to 
the four commissioners, they are calling us all the time, 
telling us that safety is not being followed.
    Renowned constitutional scholar Morton Rosenberg said that 
NRC's reasons for withholding these documents demonstrates, I 
am glad senior counsel is here, ``a profound misunderstanding 
of Congress' investigatory power that they misstate court 
decisions, they ignore overwhelmingly contrary case law that 
supports the committee's right to receive the materials, and 
they show a lack of awareness of over 90 years of congressional 
investigations in which agencies have had to give Congress what 
it asked for. What is more, last year, Congress enacted 
statutory legislation language requiring NRC to respond to 
congressional requests.''
    The Chairman has already not dealt with me in a fair way, 
in my opinion. We have had to go through hell and back to get 
anything, and we still don't have documents. We will get them 
because there are whistleblowers in the agency helping us, so 
the truth will come out.
    I want to ask the other four, will each of you follow the 
law and give the committee what it has asked for?
    Mr. Baran. Madam Chairman, I agree with you that you have 
an important oversight role. My view is that NRC should work 
with the committee to provide documents when you request them.
    Senator Boxer. Thank you.
    Mr. Baran. Our focus should be on providing information 
that is requested, not withholding it. There will sometimes be 
sensitive issues that we have to work through but we should be 
working through those issues.
    Senator Boxer. We should work through them together.
    Mr. Baran. Yes.
    Senator Boxer. Because the bottom line is we all care about 
the safety of the people. I do and you do, so why are we in 
this tug of war, you can't see my papers?
    Let me ask Commissioner Svinicki, will you vote to give the 
committee what it asks for as you promised to do when you took 
your oath?
    Ms. Svinicki. Chairman Boxer, I have supported our 
continued engagement with you and your staff.
    Senator Boxer. That is not the question. What does 
engagement mean, discussion? I am asking if you would vote to 
give us the documents we request.
    Ms. Svinicki. I have been part of the deliberation on 
providing the documents over the last couple of years and I 
have supported the outcomes as articulated by Chairman 
Macfarlane where we would continue to respect the oversight 
role and work with you and your staff.
    Senator Boxer. The Chairman denied us.
    Go ahead, Mr. Ostendorff.
    Mr. Ostendorff. I agree with Commissioner Svinicki. I have 
been involved in these decisions as well. I believe we have 
followed the law as we understand it. I know we have sent 
several letters to this committee requesting to meet in person 
and we have not been able to arrange those meetings.
    Senator Boxer. We are meeting in person. What is this? How 
many oversight hearings have we had? This is the tenth. You can 
tell it to me out here in the real world. You don't have to 
whisper in my ear about it.
    Mr. Ostendorff. We sent very clear letters in November and 
December of last year addressing this topic. I have read the 
Rosenberg memo and I believe the position we have taken is 
still consistent.
    Senator Boxer. This is going to be a big problem because we 
asked for documents, not a meeting privately or secretly, and 
we didn't get them. This is serious stuff. Your counsel is 
telling you things that are in absolute conflict with renowned 
constitutional scholars, so you may wind up in a courtroom 
pretty soon.
    Mr. Burns.
    Mr. Burns. I will echo what Commissioner Baran said. I 
think it is in the extraordinary power of the Congress to get 
documents, to get information it needs. I have read the 
Rosenberg memo and some other things.
    I want to say I think there is a very limited, limited set 
where there may be some questions and there may be some issues, 
but my commitment is to work with the committee and assure its 
needs but at the same time, assuring whatever issues need to be 
protected are protected.
    Senator Boxer. Let me say there is no legal restriction on 
our getting papers, period. That is the truth. If you go back 
in history, one thing we know about America, our people want 
transparency. They don't like secrecy.
    Of course if there is a paper that shows a certain 
technology and there is a right to make sure people don't know 
how to make a certain part, we understand that and we have 
agreed to that.
    Here is the deal. I am not encouraged by the two to two 
split here on papers. I am saying this is an area of deep 
concern and it is not going away.
    I want to ask the remaining four of you a straightforward 
question because we may be without a fifth person for a while. 
We don't know how long it will take. As you know, two to two 
equals nothing getting done and it puts a burden on each of you 
to try and reach out and listen to the other side.
    I can give you an example in this committee. As you know, 
there are lots of disagreements here. We have gotten together 
on many pieces of legislation, highways, water, protecting 
animals, Superfund clean ups, all kinds of issues. We have set 
aside our differences.
    I am asking you, particularly on this series of 12 
recommendations which could mean life and death, that is not 
hyperbole, to my people and to people all over the country. I 
only have one plant left but there are 500,000 people living 
within 50 miles of that plant.
    We can look at the other chart. I don't know what the other 
chart says, but I can tell you we have reviewed this and we 
know. Not one of these has been implemented fully.
    Will each of your work with each other to try and get the 
maximum number of these post-Fukushima recommendations by your 
own staff put in place within the next 6 months? Will you work 
in that effort? Soon to be Chairman Baran.
    Mr. Baran. That would be news to me.
    Senator Boxer. Commissioner Baran. I guess that is what I 
would like to see.
    Mr. Baran. I absolutely commit to work with my colleagues 
to implement the recommendations expeditiously.
    Senator Boxer. Will you reach out to those that you would 
normally not see eye to eye with because that is the critical 
part here?
    Mr. Baran. All five of us talk all the time.
    Senator Boxer. There are only going to be four. That means 
in order to move from A to B, there needs to be someone giving. 
One of you is going to have to really work with the other side 
to say, you know what, that makes sense. Will you be willing to 
do that kind of extraordinary effort to get this done?
    Ms. Svinicki. Yes, Chairman Boxer. I have had many 
colleagues come and go from the commission. The two new members 
constitute very significant new blood for us. I agree with you 
that two to two is not a great outcome for the United States. 
We need to re-engage and work together. I pledge to do that.
    Senator Boxer. I appreciate that.
    Mr. Ostendorff.
    Mr. Ostendorff. I am committed to working with my 
colleagues.
    Senator Boxer. Excellent.
    Mr. Burns. As am I.
    Senator Boxer. OK.
    Ms. Macfarlane. May I interrupt for 1 second? I just want 
to correct the record.
    Senator Boxer. No, no, I will give you your time in a 
moment, just a minute.
    That was kind of a general response from you two. I am 
saying on those 12 issues, to get them in place within the next 
6 months, many of them, will you work together to do that? Will 
you try to get that done?
    Can you answer that, please? Mr. Ostendorff.
    Mr. Ostendorff. I am not going to sit here and tell you 
that all those can be approved in the next 6 months.
    Senator Boxer. I didn't say all 12, I said some of them.
    Mr. Ostendorff. I think we are making strong progress. We 
will continue to work toward implementing those as quickly as 
we can.
    Senator Boxer. You will work with all colleagues even 
though it might be a two to two situation to get some of these 
into place?
    Mr. Ostendorff. I don't see a two to two situation on the 
Commission as being a bar to moving forward.
    Senator Boxer. Excellent.
    Mr. Burns.
    Mr. Burns. Nor do I. When I was with the agency as a 
general counsel under Chairman Jaczko, including Commissioners 
Svinicki and Ostendorff, proved going forward. One of the 
emphases the Commission did was get these done, and I think it 
was a 5-year timeframe. It doesn't mean all of them done in 5 
years, but the things done in a timely manner. That is what I 
commit to do.
    Senator Boxer. Let the record show 2011 was the date and 
nothing is happening yet.
    Chairman, you wanted to say something?
    Ms. Macfarlane. I just want to correct the record in my 
discussion with Senator Markey about the Office of 
Investigations. I want to be clear that I said there is a 
preliminary draft memo that he was referring to. That is all.
    Senator Boxer. Now you are saying this document does exist?
    Ms. Macfarlane. Yes, I always acknowledged it. I 
acknowledged it the entire time. I just want to be clear.
    Senator Boxer. We will read back the record. We will leave 
it in and then we will correct what you said so that it is 
clear.
    I want to say to all of you that you have really important 
jobs. So will you, Chairman, when you go back to your 
atmosphere at the university because those are the minds of the 
future. Thank you for doing that. It is important.
    I just want to say for those of you who remain on the 
Commission and the new people, whenever I lose my way 
sometimes, even around here, I go back and read the 
Constitution, and I read what some of my predecessors said.
    I look at the different issues, whether it is environmental 
issues, civil rights issues or human rights issues. I read what 
legal experts have said. I think the most important thing for 
you to do is to go back to why this commission was founded. It 
is so instructive to read what it says. It really is so clear 
that it is safety.
    If that is not foremost in your mind, then that is not what 
you should be doing. You should reset because it isn't about 
playing footsie with any operator, it isn't about the future of 
nuclear power which many of us hope will find its way, be say 
and be an answer to climate. I think you heard that from 
colleagues.
    We are looking for safety. We are looking to make sure that 
we don't build plants on earthquake faults and if they are 
there, they have to be retrofitted. They can't stay the way 
they are. They are too dangerous.
    Go back and I think you will get infused with even more 
energy, no pun intended, in the work you are about to pursue.
    Good luck to you, Chairman. I think one of the greatest 
things for you is you will not have to face me across this 
divide anymore. That will be a reason for celebration.
    For the rest of you, good luck. We have an open door. The 
biggest open door is right here in this chamber because there 
is nothing we have to keep secret. We are transparent here.
    Thank you, very, very much.
    I am going to recess and tell my second panel we will be 
back in about 25 minutes. We are recessed until the call of the 
Chair.
    [Recess.]
    Senator Boxer. We are back and I apologize deeply for the 
delay. There is a lot happening, including voting, and then, 
after that, just putting together the final stages of an 
omnibus bill that requires my attention because there is like, 
oh, at least 14 environmental riders that are being attempted 
to go on there, and I am trying to deal with those.
    So I am just thrilled with this panel. Well, Dan Hirsch is 
someone I have worked with, is the word forever apt here? 
Honestly, I don't know how far back it goes, but I think it was 
before I was in the U.S. Senate, so we are talking decades. And 
I just think he is tremendous. He is a lecturer at University 
of California, Santa Cruz, and that doesn't begin to describe 
his contribution to safety from toxics and the rest.
    And then we will go with Hon. Sam Blakeslee, a former State 
and I have to say Republican senator, because that is important 
to know, that this is bipartisan testimony; former California 
Seismic Safety Commissioner. These are the two majority 
witnesses.
    And our minority witness is Mr. Anthony Pietrangelo, Senior 
Vice President and Chief Nuclear Officer at the NEI. And that 
is our minority witness.
    So I am very happy you are here. I am very grateful to you 
for sticking around, because I know this has been a long wait. 
But as you could tell from the first panel, these issues are 
matters of life and death, and that is why we took the time we 
took, and I didn't want to rush your panel. I have a lot of 
time here, so we will go back and forth.
    So, Mr. Hirsch, do you want to please begin? And we will 
give you 6 minutes. Go ahead. And make sure you turn on your 
microphone and speak into it.

STATEMENT OF DANIEL HIRSCH, LECTURER, UNIVERSITY OF CALIFORNIA, 
                           SANTA CRUZ

    Mr. Hirsch. I have a written statement which I----
    Senator Boxer. We will put it in the record.
    Mr. Hirsch. Thank you.
    Chairman Boxer, thank you so much for the invitation to 
appear here today.
    The Japanese parliamentary investigation into the Fukushima 
tragedy concluded that it was caused by a too cozy relationship 
between the reactor operator and its regulator that allowed the 
nuclear plant to be built to withstand only an earthquake and 
tsunami far smaller than actually occurred. These problems 
plague the American nuclear regulatory system as well.
    My testimony will focus on an examination of one case 
study, Diablo Canyon, that suggests the Fukushima lessons have 
not been learned here. This is particularly important in light 
of extraordinary new seismic discoveries near the site and the 
inadequate response to them by the NRC. Unless the underlying 
dysfunctional nature of nuclear regulation in this country 
rapidly undergoes sweeping reform, a Fukushima-type disaster or 
worse can occur here, perhaps on the California coast.
    Diablo was designed and permitted based on the claim that 
there were no active earthquake faults within 30 kilometers of 
the site. We now know, however, that there are at least four 
large active faults nearby, all capable of more ground motion 
than the plant was originally designed for. Each time there was 
a new belated seismic discovery at Diablo, however, the 
Commission gave PG&E a pass. Rules were relaxed, safety margins 
reduced, public hearings denied. The most recent discoveries of 
increased seismic risk have met the same fate.
    At the construction permit hearings in 1970, the intervener 
asked for a few hours to present evidence of nearby faults. 
PG&E and the Commission staff objected and the NRC refused to 
permit the matter to be heard.
    Senator Boxer. Say that one more time, that last point.
    Mr. Hirsch. In 1970, interveners wanted a few hours to be 
able to present evidence of undiscovered faults. Both PG&E and 
the Commission staff objected; the licensing board refused to 
permit the testimony. Tom Pickford, a member of the board, 
dissented, saying, shouldn't we find out, before we pour 
concrete, if there are earthquake faults?
    Senator Boxer. Thank you.
    Mr. Hirsch. He lost and they went ahead and poured the 
concrete, and almost immediately it was revealed that there was 
an offshore fault, the Hosgri fault, much larger than the plant 
was designed for. But instead of withdrawing the permit or 
requiring a full upgrade to deal with the new fault, NRC waived 
the normal requirements of the license and granted an exception 
for the Hosgri. Only minimal retrofits were required.
    But it didn't end then. Within days of granting the 
operating license, NRC, egg on its face, had to rescind it 
because it turned out that PG&E had used the wrong blueprints 
for putting in the retrofits, mirror image blueprints, placing 
the retrofits in the wrong places. They had to do it all over 
again, leading to a cost moving from $320 million to over $5 
billion, the cost over-end largely passed on to the ratepayer. 
But we were assured there can't be any more faults out there.
    And then, a few years later, the second and the third 
nearby faults were discovered, the Los Osos and San Luis Bay 
faults. Again we were told, don't worry, there can't be any 
more surprises.
    And then, in 2008, the U.S. Geologic Survey found the 
fourth fault that wasn't supposed to exist, the Shoreline 
fault, coming within 600 meters of the plant. PG&E and NRC 
said, don't worry, the three recently identified faults were 
well within the licensed limits.
    But then something absolutely remarkable happened. Dr. 
Michael Peck, the senior resident inspector for NRC at Diablo, 
actually went and checked the license, and what he discovered 
was that all three of those faults, according to PG&E itself, 
had ground motions greater than the plant license allowed. He 
said that it should be shut down until the problem was fixed. 
So PG&E proposed, instead of fixing the plant, to amend the 
license to remove the provisions they were violating. But even 
that didn't work because they couldn't meet the criteria for 
license amendments, so they withdrew it.
    And that should have been the end of the matter. The plant 
should have been shut down until it was retrofitted. But, 
instead, NRC allowed PG&E to, in essence, amend the license 
without amending the license, all to avoid a public hearing. 
And then Peck took the gutsy step of filing a dissenting 
professional opinion, which this September, as expected, the 
NRC rejected.
    But here is where the story gets most troubling, with 
developments essentially not reported to the public until 
today. On the very same day NRC issued to the news media its 
denial of Dr. Peck's dissent, PG&E released an 1800-page study, 
required by the State, of the seismic situation near the 
facility, and they discovered that the Shoreline fault, which 
they hadn't even known about until a few years earlier, was 
twice as long as they had previously thought; that a number of 
the faults are now estimated to produce larger magnitude 
earthquakes than they had thought just a few years ago; and 
that, again, all of these are estimated to produce ground 
motions in excess that was permitted in the license for all 
faults except the Hosgri.
    It is deja vu all over again, repeat of the problem we have 
seen year after year after year. And unless we fix these 
problems of regulated entities pressing for weakening of safety 
requirements and of regulators viewing themselves more as 
allies of the industry rather than protectors of public safety, 
we will not have learned the lessons of Fukushima, and a 
Fukushima-type disaster is just waiting to happen here. All it 
takes, just as at Fukushima, is an earthquake larger than the 
plant was designed to withstand. It could happen tomorrow.
    [The prepared statement of Mr. Hirsch follows:]
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    Senator Boxer. Thank you for your testimony. It is quite 
riveting, and you tell it in the most straightforward way, and 
that is what I know about you and what I have always admired. 
You just give us the facts, and you let us understand the drama 
just by giving us the facts, and this is dramatic testimony and 
I am very grateful.
    Now we are very honored to have Sam Blakeslee here, Hon. 
Sam Blakeslee. You have great background in nuclear safety and 
serving people, and I talked to you, I don't know, a year or 
two ago, when all this was hitting the fan, about this new 
earthquake discovery, and you were so forthcoming. So please 
proceed.

 STATEMENT OF HON. SAM BLAKESLEE, Ph.D., FORMER STATE SENATOR, 
   STATE OF CALIFORNIA, AND FORMER COMMISSIONER, CALIFORNIA 
                   SEISMIC SAFETY COMMISSION

    Mr. Blakeslee. Thank you, Senator Boxer and Ranking Member 
Vitter, members of the committee. May I ask that my written 
remarks be entered into the record?
    Senator Boxer. Yes, they will be.
    Mr. Blakeslee. Thank you for this invitation to testify 
today at the hearing regarding actions to ensure nuclear plant 
safety in the aftermath of lessons learned at Fukushima.
    I am Dr. Sam Blakeslee. Let me start my comments by stating 
that I am a lifelong Republican, a scientist, and am not anti-
nuclear. My testimony here today reflects the culmination of my 
experiences as a former State senator, as the GOP leader in the 
California State assembly, as a member of the California 
Seismic Safety Commission, and a former senior research 
geophysicist with Exxon.
    When elected to California's legislature a decade ago, I 
raised concerns that state-of-the-art seismic assessment 
technologies used by oil companies had never been applied to 
identifying offshore earthquake faults near Diablo Canyon 
Nuclear Power Plant. I therefore, in 2006, authored 
legislation, and Governor Schwarzenegger subsequently signed, 
that mandated a report that was released just a couple of 
months ago about the new seismic hazards at Diablo. But even 
before the release of that report, as Mr. Hirsch just 
testified, in 2008, the utility confidently declared to State 
regulators and the public that their seismic study program had 
already learned everything there was to know about the 
surrounding seismic landscape near the plant.
    Amazingly, only weeks after these assurances in writing of 
safety, the USGS announced the discovery of a powerful 
Shoreline fault within 600 meters of the plant. And now here we 
are with updated seismic data from the studies released just a 
few months ago confirming what many had feared and what the 
utility had long denied: a number of new earthquake threats do 
exist that are larger and closer to the plant than previously 
believed.
    The report uncovers the following revelations:
    Contrary to earlier representations, the Hosgri fault is in 
fact connected to the San Simeon fault, capable of producing a 
171-kilometer rupture.
    The Hosgri also connects to the powerful Shoreline fault, 
introducing the potential for a magnitude 7.3 just 600 meters 
from the plant and 300 meters from the intakes, a magnitude 
7.3.
    There are now five earthquake hazards that can produce 
shaking greater than an earthquake on the Hosgri fault, the 
same fault which the utility claimed was the controlling fault 
and the largest threat to Diablo.
    Despite these astonishing findings, the utility continues 
to argue the plant is now safe and, in fact, now it is safer 
than ever before.
    How is that done? They have concluded this by developing a 
new less conservative methodology that reduces shaking 
estimates from all nearby earthquakes.
    The information about these new faults is so compelling 
that it led Dr. Michael Peck, NRC senior resident inspector at 
Diablo, to issue an official dissenting professional opinion 
stating these earthquakes could in fact, by the utility's own 
estimates, produce shaking stronger than permitted under the 
current license. He called for closure of the plant until the 
utility could prove that the reactors could withstand potential 
earthquakes from these faults. Yet, his concerns were silenced 
by the NRC.
    For the NRC to de facto accept this new less conservative 
methodology which reduces estimated shaking from these nearby 
earthquakes would be a stunning delegation of authority to the 
utility and NRC staff that would result in dramatically 
weakened seismic safety standards at the Diablo Canyon Nuclear 
Power Plant. This passive erosion of regulatory oversight is 
exactly what led to the Fukushima disaster, the Deepwater 
Horizon disaster, and the recent unexpected shutdown of 
California San Onofre Nuclear Generating Station, all of which 
were foreseeable and avoidable.
    In fact, just this year the Office of Inspector General at 
the NRC reviewed the factors leading to the shutdown of San 
Onofre and chastised the NRC for allowing the utility to 
sidestep the license amendment process.
    So the question before us today is how will the NRC respond 
to these new revelations about new earthquake threats that 
surround Diablo. Will they repeat the mistakes of Japan's 
nuclear regulation authority and rely upon the utility's 
representations? Will they give the utility a pass around the 
license amendment process, which is exactly what happened at 
San Onofre? Or will they recognize the dangers of passive 
regulatory oversight and insist on higher seismic safety 
standards?
    You heard in the prior testimony the commissioners 
testified to the complex and convoluted licensing history at 
Diablo. But we now know much more about seismic issues than 
when Diablo was licensed. Therefore, the NRC has a 
responsibility to the public to define updated seismic 
standards through a formal license amendment process that 
protects the public interest. This process ensures a robust 
independent setting where the best technical arguments can be 
made in public, rather than behind closed doors between the 
utility and NRC staff.
    I would like to use this opportunity to urge a license 
amendment process for Diablo in light of these new earthquake 
threats.
    Thank you.
    [The prepared statement of Mr. Blakeslee follows:]
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    Senator Boxer. Thank you so much, Senator, Doctor. I don't 
know which one trumps which one, but we will call you Senator 
Doctor.
    Mr. Pietrangelo.

STATEMENT OF ANTHONY R. PIETRANGELO, SENIOR VICE PRESIDENT AND 
        CHIEF NUCLEAR OFFICER, NUCLEAR ENERGY INSTITUTE

    Mr. Pietrangelo. Chairman Boxer, Ranking Member Vitter, 
thank you for the opportunity to appear before you today.
    I am Tony Pietrangelo, the Senior Vice President and Chief 
Nuclear Officer at NEI.
    America's 100 nuclear power plants provide approximately 20 
percent of our electricity and nearly two-thirds of our carbon-
free electricity. They produce that electricity 24 hours a day 
and are not dependent upon wind or sun or fuel delivered by 
trucks, barges, rail lines, or pipelines to do so. Finally, 
nuclear power plants provide vital clean air compliance value, 
and any system that limits emissions or the so-called criteria 
pollutants or carbon dioxide. The emissions provided by nuclear 
energy reduce the compliance burden that would otherwise fall 
on emitting generation capacity.
    With that said, some electricity markets in portions of the 
country are creating serious challenges for base-load 
generation, including nuclear. Regulated States have been able 
to create the conditions under which companies can undertake 
long-term, capital-intensive projects and preserve fuel and 
technology diversity. In the south and southeast, State 
legislatures and regulatory commissions provide the assurance 
of prudent cost recovery necessary for capital intensive 
projects like nuclear. This is why Vogtle and Summer nuclear 
energy projects are under construction in Georgia and South 
Carolina.
    Absent significant market redesign or creation of new 
market mechanisms, it is not clear how merchant markets will 
ever stimulate investment in anything but the lowest cost 
short-term option. Given today's conditions, this will be 
natural gas-fired generation thanks to the relatively low 
initial capital outlay for a gas-fired combined cycle plant.
    This and other factors have led to sustained economic 
stress on some existing generating capacity, particularly base-
load capacity. At a time when the surplus of generating 
capacity in the eastern United States is decreasing, as 
existing generation capacity retires, effective and efficient 
market design and operating practices in the capacity and 
energy markets are more critical than ever.
    At the same time the electricity industry is dealing with 
challenging market conditions, it is also dealing with the 
cumulative impact of regulations from the Nuclear Regulatory 
Commission. The NRC currently has more than 50 rulemakings 
underway in various stages. Almost all of them, if implemented, 
will require modifications to plant systems and operations. 
Yet, the NRC does not appear to be prioritizing or even 
coordinating many of these rulemakings.
    Last year, Senator Vitter and House Energy and Commerce 
Chairman Upton requested that the Government Accountability 
Office review the NRC's use of cost-benefit analysis, and we 
look forward to the results of that analysis. For our part, we 
have numerous examples in which the actual cost of meeting new 
NRC requirements was five to ten times higher than the NRC's 
estimated cost.
    We believe that if the NRC more accurately estimated the 
cost of its regulatory requirements, it would find that many of 
its requirements do not pass a simple cost-benefit test. As a 
result, resources are being spent complying with requirements 
that have little or no safety benefit.
    Let me be clear. The industry will implement requirements 
that have a direct safety benefit. However, regulatory 
requirements with little or no nexus to safety result in 
diversion of resources from both the industry and the NRC from 
higher safety significant requirements and operational safety 
focus.
    I want to take a moment to quickly summarize the state of 
post-Fukushima preparedness.
    After Fukushima, the industry immediately took steps to 
strengthen our strategies to protect our nuclear energy 
facilities from severe natural events like earthquakes and 
floods. We didn't wait for NRC requirements. Each company that 
operates nuclear power plants has added yet another layer of 
backup safety equipment to ensure that the facilities will have 
access to power and water that are necessary to keep reactors 
safe in the rare event of a severe natural event.
    Moreover, we developed national response centers in Memphis 
and Phoenix. Each of those centers is stocked with five sets of 
emergency equipment, backup generators, pumps, standardized 
couplings and connectors for hoses and cables that are ready 
for delivery to any U.S. reactor in 24 hours.
    The companies using some of the Nation's best experts also 
are reevaluating external hazards, like earthquakes and floods, 
for their sites using the latest methods and data. The next 
step is to review the protective and mitigating measures put in 
place against the latest site-specific hazard information to 
determine if any refinements are necessary. We are in the 
process of conducting those evaluations and expect to have 
largely completed implementation by the end of 2016.
    Chairman Boxer, I invite you to go to any nuclear power 
plant in the country to see what has occurred in response to 
Fukushima since 2011 to now.
    Senator Boxer. I have done so. Thank you, sir.
    Mr. Pietrangelo. Finally, I would like to offer a 
perspective on seismic regulation, particularly at the Diablo 
Canyon Nuclear Power Plant.
    When Diablo was under construction, the nearby Hosgri fault 
was discovered. Because the ground motions from the Hosgri 
fault could exceed the double design earthquake postulated in 
the plant's operating license, prior to commencing operations, 
the plant was retrofitted to withstand the ground motions from 
the Hosgri fault. The Shoreline fault discovered in cooperation 
with the U.S. Geological Service in 2008, is below the Hosgri 
ground motion levels for which the plant was retrofitted in the 
1970s prior to commencing operation. As a result, the plant is 
able to withstand the largest ground motion that could be 
expected to be generated from any of the nearby faults because 
none exceed the plant's robust Hosgri earthquake design.
    I realize because some staff at the NRC filed a differing 
professional opinion, and to my friend Sam I just met here, 
that is not silencing someone to file a differing professional 
opinion, that is part of the NRC's process, and that was used 
here. Differing professional opinions do occur among 4,000 
staff at the NRC, and they have a process for addressing them. 
No one was silencing anybody.
    In this case, the conclusion was that there is now, or 
never has been, a safety concern with this issue at Diablo 
Canyon. In addition, the panel concluded that older analytical 
techniques were overly conservative and no longer technically 
justified since the license at Diablo allows for newer 
technologies to be used.
    Chairman Boxer, that concludes my prepared remarks, and I 
look forward to your questions. Thank you.
    [The prepared statement of Mr. Pietrangelo follows:]
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    Senator Boxer. Thank you so much.
    Well, just a couple comments, sir. When Mr. Hirsch spoke, 
he talked about a cozy relationship between industry that 
occurred and the regulators in Japan, and then you had 
Fukushima, and I honest to God think, given your obvious 
intimate knowledge of the NRC and how people disagree and all 
this, you are proving his point. I don't get how industry knows 
what different people feel within the regulating agency. I 
mean, that says to me you have proved the point. It is really a 
cozy relationship. That is my view. I am sure you don't agree, 
and I respect that.
    Mr. Pietrangelo. I would hang my hat on our safety record, 
Chairman Boxer. Review our safety record.
    Senator Boxer. Well, they would have done that in Fukushima 
Daiichi Plant. As a matter of fact, I was listening to your 
testimony. It could have been given, that same testimony, by 
the industry, a day before what occurred. So we are not really 
talking about the fact that, thank the Lord God, we haven't had 
a crisis. But I will tell you this. The plant in California 
that just shut down, we averted a crisis, because they upgraded 
the plant and they didn't do it right because they tried to 
escape the steps they should have taken. So, at the end of the 
day, the regulator is very important.
    Now, you, in the beginning, complained that there are too 
many regulations, so on and so forth. Do you know what the cost 
is going to be to clean up after Fukushima? Do you have that 
number?
    Mr. Pietrangelo. I know approximately what each plant here 
is spending to make sure that we don't have a Fukushima.
    Senator Boxer. No, no, no, no. I didn't ask you.
    Mr. Pietrangelo. I do not have a good estimate of what they 
are spending.
    Senator Boxer. Well, it is $100 billion, the latest 
estimate, $100 billion.
    Now, here you have the Price-Anderson Act, so you would pay 
how much in an accident like that before the taxpayers come in?
    Mr. Pietrangelo. It depends on what the Congress approves, 
Senator.
    Senator Boxer. Well, the law has a deductible, it is like 
$13 billion.
    Mr. Pietrangelo. And the Congress can also approve higher 
levels.
    Senator Boxer. Well, the Congress can, will, won't. If 
something happens today, God help us, it is $13 billion that 
you would have to pay, not you, the plant; and the rest would 
be paid by the taxpayers, which is a whole other issue that we 
are not going to get into today. But I am making the point the 
risks, the financial risks that these companies are taking add 
to my concern because everything is not on the line because of 
Price-Anderson. It is very rare. We don't have many examples of 
where an industry is so protected.
    And I just say, and I feel for you because you don't have 
my colleagues who would take your point of view, and they are 
not here because they are working hard on other things, but I 
just have to say, from me to you, I think that when you take 
these safety measures which you say are happening, even though 
not one of the 12 recommendations by the NRC staff has been 
fully implemented, it really helps the nuclear industry, it 
doesn't hurt the industry, it helps you, because, let me just 
say, if, God forbid, something happens, whether it is caused by 
an earthquake or another problem, that will be the end of 
nuclear power here. We don't want to see that; we want safe 
nuclear power.
    Mr. Pietrangelo. We do too, Senator.
    Senator Boxer. Good. Good.
    Mr. Pietrangelo. And, again, I will meet you at any nuclear 
power plant in the country to review what they have put in 
place since 2011.
    Senator Boxer. It is not necessary.
    Mr. Pietrangelo. To suggest that nothing has been done at 
these sites in response to Fukushima is not appropriate, 
Senator.
    Senator Boxer. I didn't say that, sir. Sir, calm down. Calm 
way back down. I am not talking about what industry is doing; I 
am talking about what the NRC has put in place post-Fukushima. 
And you can disagree with it, but you wouldn't be telling the 
truth to the people because here it is. There were 12 task 
force recommendations that came in 2011, July. July 2011, July 
2012, July 2013, July 2014. Not one of these is in place. So 
they have not been fully implemented.
    Mr. Pietrangelo. Chairman Boxer, the NRC issued orders in 
March 2012, 1 year after the Fukushima event occurred.
    Senator Boxer. Sir, I will call on you in a minute. Here is 
my point. You are not responsible for this, sir. You are not in 
any way responsible for this. I am responsible because I have 
oversight over the NRC. I am making a point here. Fukushima was 
a huge disaster for the nuclear industry worldwide. I am sure 
you know that. And you also know that if anything were to 
happen, it would be almost a death knell. And we don't want 
that. I don't want that. I want safe plants. I want plants that 
respond to new information such as deep earthquakes, longer 
earthquakes, larger; not by manipulating the shake factor. How 
ridiculous is that?
    You are sitting next to a scientist. And, by the way, a 
Republican scientist. That is amazing. I am so excited that you 
are here because we see in the Republicans here, they don't 
listen to scientists. But you are a Republican scientist and 
you have told us what they have done is irresponsible.
    So I wanted to make that point.
    I am going to talk to Dr. Blakeslee and Mr. Hirsch and 
thank you so much for your testimony. Making sure that a 
nuclear power plant is protected against a severe earthquake 
requires an understanding of how much the ground will shake, 
and that is why I was so pleased to hear you address that as a 
scientist, and what will happen to the reactor safety systems 
when they are subjected to an earthquake.
    Can you please confirm, to your knowledge, because you may 
not know this, but I am asking you. Can you confirm that NRC 
has thus far always accepted estimates of how strong an 
earthquake might occur at Diablo Canyon that used questionable 
science to minimize the risk, Mr. Hirsch?
    Mr. Hirsch. That has been the pattern over and over again. 
When the Hosgri was discovered belatedly, 80 percent of the 
plant was already constructed. So rather than require them to 
upgrade it to the shaking that you could get from that 
earthquake, they allowed them to use a bunch of fudge factors, 
four different fudge factors, so that they could, in the end, 
do almost no retrofitting. Commissioners Galinsky and Bradford 
on the Commission at the time dissented vigorously and said 
that this was carving out the essential safety margins that 
were needed.
    What is intriguing is that after the Hosgri was done and 
they created an exception for it, they are now using even less 
protective assumptions now that these new faults have been 
discovered. And that is why I was struck by the difference 
between the first panel and this first. I wasn't even sure 
which planet I was on. I was getting all these assurances----
    Senator Boxer. Well, welcome to my world, Dan.
    Mr. Hirsch. All these assurances that we are on top of it. 
But what I see by looking at the historic record is that the 
NRC has been wrong every single time on Diablo, and never seems 
to get embarrassed. Every time they claim there is no 
additional fault there is a new one; every time there is a new 
fault, they say it can't produce more shaking, and then it 
turns out that it does.
    And what I am most worried about is that you can't make the 
earthquake go away by changing the input assumptions on a piece 
of paper. Nature isn't going to cooperate with the fiction. 
That is what happened at Fukushima; the regulator allowed them 
to build the reactor for a fictional earthquake and tsunami 
much less than could occur, and that is what is happening at 
Diablo and at many other plants around the country.
    Senator Boxer. Right. I would say, when you say you thought 
you were on another planet, if you took this question outside 
of this room and we just went up to a person on the street in 
any town near a nuclear power plant, not near a nuclear power 
plant, and you said do you think we should be building a 
nuclear power plant near earthquake faults, they would start 
laughing and say, you mean to say you guys allow that? I mean, 
that is the biggest no-brainer known to mankind.
    Mr. Hirsch. And, Senator Boxer, look at the record in 
California for PG&E alone. They built a plant at Humbolt Bay, 
which now has had to be shut down because of the discovery of 
an earthquake fault that they had claimed was inactive. They 
wanted to build one at Bodega Head, and they actually dug the 
foundation for it, a huge hole called Hole in the Head by the 
locals, and some seismologist crawled into it on a weekend and 
found a fault in the hole right where the reactor was going to 
go. So that is why there is no reactor at Bodega Head.
    So then they turned their attention down to Diablo.
    Senator Boxer. Right.
    I want to call on Dr. Blakeslee here. So let me ask a 
different question, since that one I think was answered. Could 
you also confirm that ever since the Hosgri fault was first 
discovered, to your knowledge, the NRC has never required PG&E 
to prove that the reactor's safety systems could withstand such 
a severe earthquake using the conservative safety assumptions 
that NRC is supposed to use?
    Mr. Blakeslee. I would say that is accurate, and I would 
probably go further. The technical methodologies that were 
employed during the licensing process to calculate ground 
motion from a particular earthquake were included in the 
deliberations of the NRC and were part of establishing 
standards.
    What has transpired over the past years and has accelerated 
during the last 5 years is that with each progressive discovery 
of a new seismic threat, the calculations of shaking from any 
earthquake has systematically gone down, so that now all these 
earthquake threats that have been identified are calculated to 
produce more shaking than that worst case to Hosgri. But all of 
the shaking from all of those scenarios has markedly come down 
to ensure the ability to say that the plant is safe.
    So whereas, previously, the debate was do these earthquake 
faults exist, how large are they, and how close are they to the 
plant, previously, that was the debate. And pursuant to the 
legislation that Governor Schwarzenegger signed, the research 
was performed using advanced geophysical methods, that was 
answered definitively, and suddenly the utility has changed its 
argument to, yes, that is fine, they exist. But the 
methodologies we historically used overestimated shaking, so 
let's just reduce the shaking from all these faults and declare 
ourselves to be compliant with the license, which is why I feel 
it is so important to have a rigorous license amendment 
process. Because if they got it wrong, the consequences would 
be catastrophic and, yes, for the State of California, yes for 
the nuclear industry, but, more importantly and, frankly, for 
my family. We live within 10 kilometers of that plant, and I 
brought this, which my daughter gave me, who every night sleeps 
by that plant. And this is not a technical argument, this is an 
argument about safety for the public.
    Senator Boxer. Absolutely. That is what I said to the four 
commissioners. They have to go back and read why we set them 
up, the NRC. And I want to really compliment you for your work 
in the State legislature, because the facts, the new facts that 
came to light in this earthquake are critical, but it is 
unbelievable. I am trying to find an analogy. There is really 
none because this is life and death. But just take a situation 
where you had a certain grade to get into a university and so 
many people needed a lower grade and they said, well, we are 
still a great university, but now it is 55 percent on your test 
to get in. You just can't manipulate like that.
    This is shocking. This is, in my view, unethical. This is 
dangerous. And I just hope that what comes out of this today 
via the media, who I hope will hear this point, is that we have 
new information about these earthquake faults. An inspector 
came in from the NRC and said PG&E is not operating Diablo 
Canyon in compliance with its license requirements because of 
these faults, and he said the reactor should be shut down until 
PG&E comes back into compliance.
    So I want to ask the three of you a yes or a no, and hope 
you will be able to do that. Do you think that NRC's decision 
to allow PG&E to study its seismic vulnerabilities for as many 
as four more years before any safety upgrades are required can 
substitute for NRC's responsibility to ensure that licensees 
comply with the terms of their operating license? In other 
words, it is kind of a long question. They say you have 4 more 
years before you have to make any upgrades, as opposed to 
ensuring that they make them sooner. Would you say now or 4 
years?
    Mr. Hirsch. Now. The earthquake may not wait 4 years.
    Senator Boxer. Good point.
    Mr. Blakeslee. We are very familiar with paralysis by 
analysis, and the threat now is unequivocally so great as a 
result of these new studies that action is required 
immediately.
    Senator Boxer. Sir.
    Mr. Pietrangelo. The licensee should be allowed to continue 
to operate because there are measures in place to deal with 
beyond design basis external hazards like seismic or flooding 
or rain or hurricanes. That was the response to Fukushima that 
the industry, as ordered by the NRC in 2012, implemented.
    Senator Boxer. Do you agree with that?
    Mr. Hirsch. May I respond to that?
    Senator Boxer. Yes, please.
    Mr. Hirsch. I sat through the licensing hears for Diablo 
many years ago, where the issue of the functioning of the 
emergency plan in an earthquake was raised. The intervener said 
that the freeway, the only way in and out is Highway 101, and 
the overpasses could easily come down in an earthquake, and you 
have to have a functioning emergency plan according to the law.
    The NRC ruled, and I was stunned. I have never quite seen 
something with so much logic that has been twisted into such a 
pretzel. The NRC ruled that they didn't need to have an 
emergency plan that would function after an earthquake because 
it was not credible, their term, that there would ever be an 
earthquake and a nuclear accident at Diablo simultaneously.
    Well, no one was ever talking about them being two separate 
events. We are talking about an earthquake that causes an 
accident and then people can't get out. And so to say that 
there are good systems for dealing with this if there is a 
``beyond design basis event,'' which means something occurs 
that they didn't design for, really begs the question. That is 
the whole problem. Fukushima wasn't designed for the earthquake 
that could occur.
    Senator Boxer. Do you think, doctor, that 4 more years 
before any safety upgrades are required should be permissible 
at this point, knowing what we know?
    Mr. Blakeslee. I believe that now that the seismic issues 
are resolved, the engineering questions should go to the front 
of the list, and this question of the degree to which the 
facility in fact could survive these events, which are now 
clearly much more robust earthquakes than previously 
envisioned, is critically important to address, and I don't 
think those questions should be delayed, they should be pursued 
immediately.
    Senator Boxer. OK.
    Mr. Hirsch, your written testimony describes numerous 
instances in which the NRC used irregular licensing and other 
processes to find a way to allow Diablo to be built and 
operated. Could you once again just summarize that? In other 
words, there has been a parade of these things over the years, 
and I know you have done it, but if you could summarize all 
the, if you will, errors in judgment the NRC has made leading 
up to this point.
    Mr. Hirsch. One of the best ways of telling whether the 
five commissioners who testified here earlier today really have 
it under control is to empirically look at the track record of 
how well the NRC has done. So let's look at that record for 
Diablo.
    They built it claiming there were no earthquake faults that 
were active within 30 kilometers. They said you only have to 
design the facility for a ground motion of .4 G. Then the 
Hosgri was discovered and they said you don't have to use the 
normal assumptions for the Hosgri, we will let you use four 
different fudge factors that take the estimated ground motion 
from 1.15 G, which is what USGS said would be the normal 
figure, and reduced it down to something less than .6. They 
used pencils and erasers to try to lower the estimated ground 
motion, rather than deal with the ground motion that was there.
    But then they made an actual finding, the licensing board: 
that it is highly unlikely that there are any more faults that 
we haven't discovered, and we are absolutely certain that the 
Hosgri fault is not connected to the San Simeon fault, and that 
there is high quality assurance of how the plant is being 
built.
    And then the day that the utility people were flying back 
from Washington with their operating license, it was discovered 
that they had put the retrofits in all the wrong places.
    Senator Boxer. Explain what you mean by that, they put them 
in all the wrong places. You mean physically in the plant?
    Mr. Hirsch. There are two units at Diablo, Unit 1 and Unit 
2, and they were built to mirror image blueprints of each 
other. So when they got into one unit to put the retrofits in, 
they used the wrong set of blueprints, the ones that were the 
mirror image of the unit they were putting it in. So the pipe 
snubbers and the whip restraints were put in the wrong places, 
and they had to go back and do it all over again. Complete 
breakdown in quality assurance, but they said, don't worry, we 
are fine now, there can't be any more faults.
    Then they found the San Luis Bay and Los Osos were active 
and they said, don't worry, those can't cause more ground 
motion than in the license; they can't cause more than the .4 
G. But then Dr. Peck went and actually looked at PG&E's 
estimates, and they were estimating those three new faults, 
Shoreline, Los Osos, and San Luis, were producing from .6 to .7 
G. Anyone knows that is a lot higher than .4. They were way 
over the level.
    So now they are doing, as Dr. Blakeslee indicates, the same 
thing; they are sharpening the pencils again and they are 
saying let's change the assumptions and let's reduce the safety 
margins further and drive our estimate of the ground motion 
down further, rather than upgrade the plant.
    Look, in real terms, you either fix the problem or you try 
to use your pencil to make it pretend to go away. But nature 
doesn't let things disappear. It was a 9.0 quake at Fukushima. 
The plant wasn't built for it. There was a massive tsunami. It 
wasn't built for it.
    And let me make one last point here. The chart that you 
showed so effectively of the 12 recommendations that haven't 
been carried out, those are tiny, tiny steps they were supposed 
to take to deal with Fukushima. They are baby steps and they 
haven't done them.
    Senator Boxer. Right.
    Mr. Hirsch. What they haven't done is even thought about 
the big steps. Reactor containments in this country are not 
required to be designed to withstand a meltdown accident. The 
evacuation plant isn't required to work in the case of an event 
that requires it. You don't have to have offsite power that 
will stay in place long enough to keep the fuel cooled over the 
long periods, as we saw at Fukushima. The big problems they 
aren't even thinking about and the small problems they are not 
fixing. They are just hoping that we get lucky, and that is the 
problem with earthquakes, it is just tossing dice. When will 
one of those faults move? It is not up to the NRC, it is not up 
to the Nuclear Energy Institute or PG&E. Nature is going to 
decide when that fault moves. And the question is is the plant 
going to be ready for it, and right now it is not.
    One more point. There is 1,000 times the long-lived 
radioactivity of the Hiroshima bomb in each of those reactors.
    Senator Boxer. Say that again.
    Mr. Hirsch. One thousand times the long-lived radioactivity 
of the Hiroshima bomb is in each of the Diablo reactors, and 10 
times that in the spent fuel pools. And the only way it stays 
in place is if the cooling isn't lost. And an earthquake, as we 
have seen at Fukushima, can destroy the cooling.
    And it is not just the 500,000 people within the immediate 
area. You could wipe out, for practical purposes, a substantial 
portion of our State. That radioactivity has to stay inside 
those domes, and the only way that happens is if the reactors 
are built to withstand the worst thing that could happen.
    Mr. Pietrangelo. Could I correct Mr. Hirsch for a moment?
    Senator Boxer. Let him finish, then, yes, you can, sir. You 
can have your time to give your perspective on it.
    But please finish. And while you are at it, Mr. Hirsch, do 
you happen to know how many of the rods were permitted for 
those pools and where they were over those rods?
    Mr. Hirsch. This is again the problem. They built the pools 
to handle only a few fuel rods, and then they kept re-racking 
and re-racking, making them more and more compact.
    So the National Academy of Sciences has indicated that 
under some loss of coolant events you could not only have the 
fuel in the pools lose their cooling, but they could catch fire 
because the zirconium cladding tends to burn when it gets hot 
in the presence of air. It doesn't happen for every accident 
sequence, but it can happen for some. And, as I say, there is 
10 times more long-lived radioactivity in the pools than there 
are in the reactors.
    So you have to prevent there being an event that the 
systems can't withstand, and I have seen for decades of 
watching the NRC that they basically, at industry urging, 
create regulatory fictions.
    An example, Governor Brown, when he was Governor the first 
time in California, was an intervener in the Diablo proceeding, 
and his expert said that you needed to have a security plan 
that could protect against 12 attackers. PG&E and NRC said 
absolutely impossible; there will never be an attack involving 
more than 3 people in the United States; 9/11 was 19.
    So over and over again they have been wrong, and the reason 
is because it is cheaper to pretend that a smaller threat can 
exist.
    Senator Boxer. Well, it is all follow the money.
    Now, we are talking about cooling down the plant, and I 
know Mr. Pietrangelo is losing his cool, so please.
    Mr. Pietrangelo. Nice segue. Thank you.
    Senator Boxer. Talk to us. Yes. I try to get a little humor 
into this otherwise serious panel.
    Mr. Pietrangelo. I appreciate that. Thank you.
    When the magnitude 9 earthquake occurred at Fukushima, the 
plant was in the process of safely shutting down on their 
emergency diesel generators onsite, OK, per design. That 
earthquake was historic and for the first 45 minutes of that 
event those three reactors that were operating at Fukushima 
Daiichi----
    Senator Boxer. And what is your point?
    Mr. Pietrangelo [continuing]. Were shutting down safely. It 
was the tsunami that caused the accident at Fukushima.
    Senator Boxer. OK.
    Mr. Pietrangelo. And until we get into the plant----
    Senator Boxer. It is the earthquake that caused the 
tsunami. That is the reason why you have to build safely, 
because the earthquake caused the tsunami.
    Mr. Pietrangelo. There is tsunami risk and there is 
earthquake risk, Chairman Boxer.
    Senator Boxer. Yes. But you would agree----
    Mr. Pietrangelo. They are not the same.
    Senator Boxer. You would agree that earthquake----
    Mr. Pietrangelo. They are not the same.
    Senator Boxer. Excuse me. You would agree that the 
earthquake caused the tsunami in the Fukushima disaster.
    Mr. Pietrangelo. Yes, I would.
    Senator Boxer. Thank you.
    Doctor, do you have a final thought?
    Mr. Blakeslee. Well, I would make one quick observation, 
that although Fukushima is often used as the test case around 
which we hold this conversation, it is not the only earthquake 
which has caused a shutdown of a nuclear power plant. In 2007, 
Japan had an earthquake, a much smaller earthquake, even a 
relatively modest size earthquake compared to what we are 
discussing, that hit the west coast of Japan and knocked out 
the largest nuclear power plant in the world, the KKPN plant.
    And just by way of scale, and I was serving on the 
California Seismic Safety Commission at the time, so I had 
access to much of the data that was shown that has never seen 
public purview, that this earthquake was only a magnitude 6.6. 
Let's put this in a context. A 6.6 offshore earthquake. We are 
talking about a 7.3. A 6.6 earthquake located 19 kilometers 
from this plant knocked it out of commission and caused very 
serious damage and fires. Nineteen kilometers.
    So in terms of energy release, the energy released from 
that earthquake was one-thirtieth the energy that would be 
released from the earthquake we are now discussing, and it was 
30 times further away, and it knocked out that plant.
    So to argue that it would take a tsunami to take out a 
nuclear power plant is not supported by the facts.
    Senator Boxer. I hear you.
    Mr. Pietrangelo. Yes it is, Sam. Unfortunately, I have to 
disagree with you on this one. There was no damage to any of 
the safety-related equipment of that plant.
    Senator Boxer. Mr. Pietrangelo, talk to me. Talk to me.
    Mr. Pietrangelo. I am sorry.
    Senator Boxer. Don't talk to Sam. Talk to me.
    Mr. Pietrangelo. Because I tremendously respect him.
    Senator Boxer. I understand you respect him, but talk to 
me.
    Mr. Pietrangelo. OK.
    Senator Boxer. This is a hearing and I would like you to 
address the Chair.
    Mr. Pietrangelo. Thank you.
    Senator Boxer. Please. All right.
    Mr. Pietrangelo. There was a transformer fire at the 
Kashiwazaki Kariwa site, OK? It didn't knock out the power 
plant. There was no release to the public. There were no 
safety-related structure systems or components that were 
damaged by that earthquake.
    In fact, let's go back to the Tohoku earthquake that did 
cause the tsunami at Fukushima. The Onagawa plant is much 
closer to where that plant occurred. There were walk-downs done 
of the Onagawa plant after the Tohoku earthquake and, like 
Kashiwazaki Kariwa, no damage to any safety-related structure 
systems or components at that plant. So we have actual 
operating experience for beyond design basis earthquakes where 
no safety-related structures are being damaged.
    I am not trying to say that we don't study the new 
information. In fact, I think this is to your point, Chairman 
Boxer, the licensing basis of a plant does change over time, 
and there is new information that is brought to the table that 
has to be evaluated for its safety significance and then acted 
upon, and there is a process for doing that. Mr. Hirsch may not 
like the process very much, but it is a very disciplined 
process----
    Senator Boxer. No, I think Mr. Hirsch likes the process; he 
doesn't like the result.
    Mr. Pietrangelo [continuing]. That the NRC has and that you 
have oversight over to determine whether new requirements are 
necessary.
    Senator Boxer. I just don't think you are being fair. There 
is a process and there is the integrity of the process. Those 
are two different things. You have a process where an inspector 
said, about Diablo, it is in violation of its license; it 
either needs to be upgraded or the operation has to be 
suspended until it is upgraded.
    So I don't think it is fair to say that I don't like the 
process. I just want a fair process that is not a process that 
results from too cozy a relationship with the industry, because 
in my mind, and I have been around a long time, the industry is 
better served, as is everybody else, when safety of the 
mission--because look what happened after Fukushima; not a good 
thing for the nuclear industry. It is not good. And you can go 
through all of the, I never heard someone sort of try to 
minimize earthquakes, but, anyway.
    Dr. Blakeslee, you had some disagreement?
    Mr. Blakeslee. I do. I think the parsing of the answer was 
very telling about the safety----
    Senator Boxer. The parsing of his answer?
    Mr. Blakeslee. The parsing of the answer was very telling 
about what was and wasn't damaged, and he identified certain 
safety elements that were not damaged. But if you actually look 
at the photographs, you can see that the foundation of the 
nuclear power plant settled in a manner that ruptured the water 
mains that were there to provide firefighting capability, and 
through luck that transformer did not extend to produce the 
kind of worst case scenario we saw at Fukushima.
    But let me say they also had a safety building which was 
designed for just that purpose. So when the teams of operators 
ran to get to the safety building, the earthquake had damaged 
the door so it couldn't be opened. They could not get into the 
building to implement their safety procedures that were inside 
that building.
    And when the local fire department came racing to the site 
because of the alarm, the earthquake had caused sufficient 
separation of grade in the road; they could not get to the 
facility using the road. And the nuclear power plant was 
knocked out of commission for years, or many reactors were. 
Those are facts.
    Mr. Pietrangelo. They weren't knocked out by the 
earthquake, Dr. Blakeslee. They were not allowed to operate.
    Mr. Blakeslee. I wonder why they weren't allowed to 
operate.
    Mr. Pietrangelo. Right. Again, the roads in the town of 
Kashiwazaki Kariwa are not safety-related.
    Senator Boxer. You know, you two can take this outside.
    [Laughter.]
    Senator Boxer. But my interest here, you know, is not in 
Korea, it is about my State and 500,000 people, one of them 
sitting in front of me who is living in a circumstance where, 
if I don't do my job and NRC doesn't do its job, there could be 
a terrible situation.
    Now, if you are conservative, you want to do the 
conservative thing, and it seems to me a pretty straightforward 
thing. You either suspend operation until you have retrofitted 
the plant in the right way, and fix it and start it up, or that 
is it. Those are the two options. You can either fix up the 
plant or you can suspend operations.
    So it seems to me that what the NRC has apparently done, 
which is to give them 4 years, and what they are doing to 
change science, which we are kind of used to around here, given 
people's views of scientists and climate, they pronounce what 
they want about it, but I don't, I listen to the scientists.
    And I am very suspicious when you tell me that they have 
changed their analysis of how much the plant will shake just 
to, by happenstance, meet the levels that are allowed in the 
license. This is scary. And I don't want to overstate what I 
feel because I don't want to impugn people, but I do want to 
say there is a lot at stake here. I have gone through some 
horrific things in California, including an explosion of a 
pipeline where people died and it turned out there weren't 
inspections, there weren't upgrades. I have gone through a 
traumatic experience with San Onofre where they made an 
upgrade, but it was faulty, and there by for the grace of God 
that place is shut down. And, you know, it is clear to me what 
the options are.
    I just want to say to all three of you, you have been 
terrific, all of you. I think the fact that there was a little 
give and take that way, this way, is always good, and I think 
that what for me is the critical piece here is the safety of 
that little daughter. That it is, that is why I am here. I am 
not here for any other reason. There is no other reason I am 
here. And I will continue to push hard on this.
    But I also want to say to the two of my constituents how 
important your work is back home. What you did to get the 
information about the new earthquake and Governor 
Schwarzenegger then signing that, congratulations. What if we 
didn't know about it? I mean, you can only be as good as the 
information that you have.
    So I want to thank all three of you. This has been a really 
long day for us here to get to this, but I think, when it comes 
to the safety of 500,000 people, if we have to do this again, 
although I must admit I won't have this anymore, and won't Mr. 
Pietrangelo be excited when this gavel goes over to my buddy, 
Jim Inhofe, who sees things a bit differently. But you know 
what? I still have a role, a voice, and we will still continue 
to work together.
    Thank you very much. We stand adjourned.
    [Whereupon, at 12:44 p.m. the committee was adjourned.]
    [An additional statement submitted for the record follows:]

                     Statement of Hon. Mike Crapo, 
                  U.S. Senator from the State of Idaho

    Thank you, Chairman Boxer and Ranking Member Vitter, for 
holding this hearing on NRC's Implementation of the Fukushima 
Near-Term Task Force Recommendations and Other Actions to 
Enhance and Maintain Nuclear Safety. Like many of my colleagues 
on this panel, I am concerned by the majority's decision to 
break committee precedent by approving Mr. Baran to serve the 
remainder of Chairman Macfarlane's term without a proper 
hearing. Having visited his first nuclear plant this summer, 
Mr. Baran lacks the experience and knowledge necessary to serve 
as a Commission member. I look forward to asking Mr. Baran more 
about his relevant qualifications.
    The Idaho National Laboratory is the world leader in 
nuclear energy research and in the development of safer and 
more effective commercial technologies. The Lab has already 
embarked on the Next Generation Nuclear Plant program, working 
to incorporate lessons learned from existing facilities and 
building on recent developments in the field. Congress should 
ensure the Commission serves as a partner in the development of 
America's future civilian nuclear energy portfolio.