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THE NRC INSPECTOR GENERAL REPORT ON THE 

NRC CHAIRMAN’S UNILATERAL DECISION TO 

TERMINATE NRC’S REVIEW OF THE DOE YUCCA 

MOUNTAIN REPOSITORY LICENSE APPLICATION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND THE 

ECONOMY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

JUNE 14, 2011 

Serial No. 112–61 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

CLIFF STEARNS, Florida 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

Vice Chair 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

BRIAN P. BILBRAY, California 

CHARLES F. BASS, New Hampshire 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

JOHN SHIMKUS, Illinois 

Chairman 

TIM MURPHY, Pennsylvania 

Vice Chairman 

ED WHITFIELD, Kentucky 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

JOHN SULLIVAN, Oklahoma 

CHARLES F. BASS, New Hampshire 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

BILL CASSIDY, Louisiana 

CORY GARDNER, Colorado 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

GENE GREEN, Texas 

Ranking Member 

TAMMY BALDWIN, Wisconsin 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

FRANK PALLONE, JR., New Jersey 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

JOHN D. DINGELL, Michigan 

HENRY A. WAXMAN, California (ex officio) 

(II) 

(III) 

C O N T E N T S 

Page 

Hon. John Shimkus, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 1 

Prepared statement .......................................................................................... 3 

Hon. Gene Green, a Representative in Congress from the State of Texas, 

opening statement ................................................................................................ 4 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

opening statement ................................................................................................ 4 

Prepared statement ................................................................................................. 6 

Hon. Ed Whitfield, a Representative in Congress from the Commonwealth 

of Kentucky, opening statement ......................................................................... 8 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 8 

WITNESSES

Hubert T. Bell, Inspector General, Nuclear Regulatory Commission ................. 9 

Prepared statement .......................................................................................... 12 

Answers to submitted questions ...................................................................... 51 

Joseph McMillan, Assistant Inspector General for Investigations, Nuclear 

Regulatory Commission 1 .....................................................................................

Rossana Raspa, Senior Level Assistant for Investigative Operations, Nuclear 

Regulatory Commission 1 .....................................................................................

SUBMITTED MATERIAL

‘‘Former NRC chairman Klein at odds with Jaczko decision,’’ article in December 2010 Nuclear News, submitted by Mr. Barton ........................................... 31 

Subcommittee exhibit binder .................................................................................. 55 

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

(1) 

THE NRC INSPECTOR GENERAL REPORT ON 

THE NRC CHAIRMAN’S UNILATERAL DECISION TO TERMINATE NRC’S REVIEW OF 

THE DOE YUCCA MOUNTAIN REPOSITORY 

LICENSE APPLICATION 

TUESDAY, JUNE 14, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

The subcommittee met, pursuant to call, at 10:10 a.m., in room 

2123 of the Rayburn House Office Building, Hon. John Shimkus 

(chairman of the subcommittee) presiding. 

Members present: Representatives Shimkus, Murphy, Whitfield, 

Pitts, Bass, Latta, McMorris Rodgers, Harper, Cassidy, Gardner, 

Barton, Upton (ex officio), Green, Barrow, DeGette, and Waxman 

(ex officio). 

Member attending: Representative Markey. 

Staff present: Carl Anderson, Counsel, Oversight; Gary Andres, 

Staff Director; Charlotte Baker, Press Secretary; Michael 

Beckerman; Deputy Staff Director; Sean Bonyun, Deputy Communications Director; Anita Bradley, Senior Policy Advisor to Chairman Emeritus; Andy Duberstein, Special Assistant to Chairman 

Upton; Todd Harrison, Chief Counsel, Oversight/Investigations; 

Heidi King, Chief Economist; Dave McCarthy, Chief Counsel, Environment/Economy; Carly McWilliams, Legislative Clerk; Andrew 

Powaleny, Press Assistant; Chris Sarley, Policy Coordinator, Environment and Economy; Peter Spencer, Professional Staff Member, 

Oversight; Phil Barnett, Minority Staff Director; Tiffany Benjamin, 

Minority Investigative Counsel; Alison Cassady, Minority Senior 

Professional Staff Member; Greg Dotson, Minority Energy and Environment Staff Director; and Caitlin Haberman, Minority Policy 

Analyst. 

Mr. SHIMKUS. The hearing will come to order. The chair recognizes himself for 5 minutes. 

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

Today, we take another step in understanding the management 

breakdown at the NRC. I welcome our witness, Mr. Bell, and I 

thank him for his professionalism. He started this review last October at the request of Chairman Upton and Mr. Whitfield. His work 

is both thorough and timely. 

2 

Having read the entire report, I am struck by three problems at 

the NRC. First is the inefficiency. It is unbelievable that 1 week 

after the Nuclear Waste Policy Act says that the NRC must either 

approve or deny the license application or formally notify Congress 

as to why it needs more time, the Commission cannot even reach 

the question of whether the application is even alive. One year ago, 

the Atomic Safety and Licensing Board ruled that DOE has no authority to withdraw the application, and the NRC must continue to 

review it. Less than 2 months later, the question was put to a vote 

of the full Commission. On August 10, Commissioner Apostolakis 

abstained; on August 25 and 26 Commissioners Sviniki, Jaczko, 

and Ostendorf voted. Then, August 30, Chairman Jaczko retracted 

his vote. Then, September 15, Commissioner Magwood voted. Then, 

October 29, Chairman Jaczko voted again. But somehow 10 months 

after all that, the vote is still not over. You don’t need Internal 

Commission Procedures to see that it has been a horribly inefficient process, and according to Mr. Bell’s report, we have no one 

to blame except Chairman Jaczko. 

But there are Internal Commission Procedures. Commissioners 

are to vote within 10 business days; once a quorum has voted, permission to vote late may be granted by a majority of the Commission, and a delay in affirming the vote and promulgating the order 

may only be granted by a majority of the Commission. None of that 

has been followed. It is the Chairman’s duty to make certain it is 

followed. Parties to the action rely on the Commission to follow its 

own rules and keep the trains running on time. The Chairman’s 

neglect of this duty alone is shocking as it denies to the parties of 

interest a full, timely determination. 

But once you read further in the report, it becomes clear that the 

problems are worse than just inefficiency and even worse than neglect of duty. There is outright malfeasance. The report is replete 

with instances of Chairman Jaczko deliberately misleading both his 

fellow Commissioners and senior staff at the NRC. And he knowingly withheld crucial information from his fellow Commissioners 

even though the federal statute requires that all Commissioners 

have access to all information. In some instances, Chairman Jaczko 

manipulated the process through outright false statements to prevent his full Commissioners from understanding the implications of 

his actions and omissions. When confronted by one Commissioner 

about this, Chairman Jaczko merely insulted his colleague by sarcastically retorting, ‘‘You should have asked.’’ 

I hope all members study Mr. Bell’s June 6 report carefully and 

take time today to seek any clarifications. This situation warrants 

our attention and best judgment. 

The gentleman then yields back his time. The chair recognizes 

the ranking member, Mr. Green, for 5 minutes. 

[The prepared statement of Mr. Shimkus follows:] 

3 

4 

OPENING STATEMENT OF HON. GENE GREEN, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. GREEN. Thank you, Mr. Chairman, for holding this hearing 

today, and thank Mr. Bell for appearing before the committee to 

discuss your report entitled, ‘‘NRC Chairman’s Unilateral Decision 

to Terminate NRC’s Review of the DOE Yucca Mountain Repository License Application.’’ 

There has been a lot of discussion in this committee on the decision by the administration not to proceed with Yucca Mountain, 

and I have stated several times before the U.S. alone produced 806 

billion kilowatt hours of nuclear power in 2008 making us the biggest producer of nuclear power in the world. Now, 25 years later, 

$15 billion in rate-payers fees and income taxes, we are closing our 

only long-term solution for nuclear waste. The President has said 

he supports investments in alternative forms of energy, and Secretary Chu has testified before this committee that we would be 

unable to meet the President’s goals if we do not continue to invest 

in nuclear power. 

As we look forward and focus on investing more in nuclear 

power, we still have nuclear waste. Even if we have better shortterm storage than we do now, we still need somewhere to put the 

waste 50 or 1,000 years from now. 

Today, we will be discussing the NRC’s Inspector General’s Report on the NRC chair’s decision to terminate the NRC’s review of 

Yucca Mountain. Many allegations have been made on the legality 

of the NRC chair’s decision to terminate the NRC’s review. This report evaluated two allegations that one, the chairman unilaterally 

improperly closed the NRC review of Yucca Mountain application 

while the government was still operating under a continuing resolution in fiscal year 2011; and two, the chairman is preventing the 

Commission from ruling on NRC licensing board’s decision to deny 

the DOE’s motion to withdraw the Yucca application. 

The Inspector General’s report found that Chairman Jaczko had 

not been forthcoming with all the commissioners but that ultimately he acted within his authority as NRC chair and none of 

which suggests the NRC chair violated the law. The report does not 

review whether or not the actual decision to close Yucca was appropriate. The report does shed some light on the obvious internal 

issues within NRC that should be evaluated and addressed. 

And just on a personal note, it is frustrating, our country being 

the largest emitter of nuclear waste in the world and we are seeing 

us literally eclipsed by countries who do not have as much nuclear 

power as we do. And it is frustrating after all these years. 

With that, again, I want to thank Mr. Bell for appearing before 

the committee. I look forward to hearing your testimony. And 

again, thank you, Mr. Chairman. I yield back my time. 

Mr. SHIMKUS. The gentleman yields back his time. The chair now 

recognizes the chairman of the full committee, Mr. Upton, for 5 

minutes. 

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

Mr. UPTON. Thank you, Mr. Chairman. 

5 

Developing a safe, permanent storage site for spent nuclear fuel 

is indeed essential to energy security as well as our national security, and that is not and should not be treated as a partisan issue. 

So I commend and thank our witnesses for their efforts to provide 

an objective look at the inner workings of this key agency. The 

more we learn about NRC’s current leadership, the greater our concern about the apparent breakdown in the Agency’s operations, departure from nonpartisan tradition, and disregard for the decades 

of technical expertise and billions of dollars invested. 

Justice delayed is justice denied. And it has been a year since 

states and other affected parties went to court seeking a ruling on 

the license application for the repository at Yucca. The Atomic 

Safety and Licensing Board ruled that the NRC must consider and 

vote on DOE’s application. Yet the Commission still has not yet 

taken final action. And after a year in limbo, it now appears that 

the NRC Chair Jaczko devised a complex, calculated strategy to 

kill the license application without consideration by the Commission. 

Consumers have been paying into the Nuclear Waste Fund since 

1983 with a promise of something in return: a permanent place to 

send the spent fuel away from the reactor sites. When the license 

application was finally filed 3 years ago, we grew more confident. 

The Act said that in 3 years the NRC would grant the license or 

explain to Congress why they needed more time. Instead, NRC 

won’t even give a straight answer about whether the application is 

still alive. 

And it is not just nuclear power consumers who are cheated. It 

is taxpayers in every State including Nevada who are paying out 

judgments to plant operators because the DOE is late accepting the 

waste. GAO reports that the taxpayers are on the hook for an additional $15.4 billion—on top of the nearly $15 billion already spent 

on the project—and that is the liability if DOE opens Yucca by 

2020. If not, it rises another half-billion dollars every year. 

The circumstances surrounding this administration’s rush to pull 

the plug on Yucca are alarming as much as they are disappointing. 

We have an administration that apparently wants to erase the visionary effort launched by President Reagan, casting aside 3 decades of scientific research, bipartisan collaboration, and a fortune 

invested to start from scratch no matter what the cost or consequences to our national security. 

Despite this moment of dysfunction at the top, the NRC’s intrinsic value to the U.S. lies in the expertise and extraordinary dedication of its highly professional staff, including our witnesses today. 

To them we repeat: We will do what we can to rescue the Agency 

from the ditch that some have driven you into. And to consumers 

and taxpayers across America: We will get the NRC to focus once 

again on its statutory mission to serve all the people instead of, 

perhaps, the chairman’s political patrons. 

And I yield to Mr. Whitfield. 

[The prepared statement of Mr. Upton follows:] 

6 

7 

8 

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

Mr. WHITFIELD. Thank you very much. 

In January 2009, President Obama made this statement: ‘‘Let me 

say as simply as I can, transparency and the rule of law will be 

the touchstone of this Presidency.’’ And yet when you read the Inspector General’s report of Chairman Jaczko’s actions, you see 

words like ‘‘misleading,’’ ‘‘withholding information,’’ ‘‘false statements.’’ That is not the type of transparency that we need in America today. 

And I would like to reiterate what Chairman Upton said. This 

is more than just about Chairman Jaczko. This is about the American people and the American taxpayer who have already spent 

over $10 billion preparing Yucca Mountain who now have been 

sued by utility companies and owe them an additional $15 billion. 

And that is increasing every year because the government cannot 

meet its obligations, primarily because of one person at the Nuclear 

Regulatory Commission whose personal objective is to close this 

project at Yucca Mountain. And so I think it is an abuse of his authority and I look forward to the testimony of all the witnesses 

today. 

I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. The chair recognizes the chairman emeritus, Mr. Waxman, for 5 minutes. 

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

Mr. WAXMAN. Well, thank you, Mr. Chairman. This is the third 

hearing this subcommittee has held on the closure of the Yucca 

Mountain Waste Repository. Today, we will hear from the Nuclear 

Regulatory Commission’s Inspector General, who has recently 

issued a report on allegations that the NRC chairman’s actions relating to the closure were improper. 

The primary finding of the Inspector General’s report was that 

Chairman Jaczko’s ambitions have been consistent with established 

law, OMB guidance, and his authority as chairman. This finding is 

very different from what Chairman Shimkus has been saying for 

months. In the press and in this hearing room he has repeatedly 

stated that Chairman Jaczko has been acting illegally. This is, of 

course, the problem with prejudging and announcing the outcome 

of an investigation before it has started. 

Despite the rhetoric we have heard over the past months, today 

we won’t be presented with evidence of law-breaking. Instead, we 

will hear about internal procedures of the NRC. We will examine 

the consultation requirements and functions of the chairman of the 

NRC versus the functions of the other commissioners. The IG will 

tell us that some commissioners felt misled by Chairman Jaczko, 

did not like his interpersonal style, and expressed concern about 

the NRC chairman’s unilateral actions. 

Now, these are legitimate issues for our subcommittee to examine. We should be exercising our oversight to look at the Commission to ensure that it operates as smoothly, professionally, and fairVerDate Nov 24 2008 10:41 Jan 05, 2012 Jkt 037690 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 F:\112-061 NRC YUCCA REVIEW-SUBMITTED FOR REVIEW 12-23\112-61 NRC YUCCA R
9 

ly as possible. The chairman of the Commission, like the chairman 

of a congressional subcommittee or committee has an obligation to 

conduct proceedings fairly and impartially. 

Chairman Shimkus is concerned that Chairman Jaczko withheld 

information from his fellow Commissioners. That is a legitimate 

concern and one we should examine today. Ironically, however, we 

should look at this in the context of how our committee has operated. Over our objections, the staff of our subcommittee has been 

conducting interviews of fact witnesses without including Democratic members or our staff. The chairman says that the IG report 

‘‘reveals a calculating and political NRC chairman who has abused 

his authority and withheld information from fellow Commissioners.’’ Well, that is how some of us feel when we are being treated in this investigation by denying us access to witness interviews. 

Let us make sure that our committee operates as a model if we are 

going to criticize the Commission for not operating as we would 

hope they would. 

I look forward to hearing from the IG today and want to reiterate 

that I support a thorough investigation into the Yucca Mountain 

and the actions of the NRC, but any such investigation should be 

fair and nonpartisan and I would hope our committee will meet 

this standard. 

I yield back my time. 

Mr. SHIMKUS. The gentleman yields back his time. The chair now 

calls for today’s witness, the Honorable Hubert T. Bell, Inspector 

General of the Nuclear Regulatory Commission. He is accompanied 

by Mr. Joseph McMillan, Assistant Inspector General for Investigations at the NRC, and Ms. Rossana Raspa, Senior Level Assistant 

for Investigative Operations in the Office of Inspector General. 

As you know, the testimony that you are about to give is subject 

to Title XVIII, Section 1001, of the United States Code. When holding an investigative hearing, this committee has a practice of taking testimony under oath. Do you have any objection to testifying 

under oath? And both shake their head ‘‘no.’’ 

The chair then advises you that under the rules of the House and 

the rules of the committee, you are entitled to be advised by counsel. Do you desire to be advised by counsel during your testimony 

today? And the chair recognizes that all shake their head, ‘‘no.’’ 

In that case, if you would please rise and raise your right hand 

and I will swear you in. 

[Witnesses sworn.] 

Mr. SHIMKUS. Thank you very much. And now you may give your 

5-minute summary of your written statement. Welcome. 

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

Mr. BELL. Good morning again. Mr. Chairman, members of the 

subcommittee, it is my pleasure to appear before you today. With 

me are Mr. Joseph McMillan, Assistant Inspector General for Investigations, and Ms. Rossana Raspa, Senior Level Assistant for Investigative Operations. 

10 

The mission of the Office of Inspector General at the Nuclear 

Regulatory Commission is to assist NRC by ensuring integrity, efficiency, and accountability in the Agency’s programs. My office carries out this mission by independently and objectively conducting 

and supervising audits and investigations related to NRC’s programs and operations; preventing and detecting fraud, waste, and 

abuse; and promoting economy, efficiency, and effectiveness in NRC 

programs and operations. Our operating budget is $10.860 million 

with 58 full-time employees. 

Last week, my office issued a report conveying the results of an 

investigation into an allegation that the NRC Chairman unilaterally and improperly closed out NRC’s review of the Department of 

Energy’s Yucca Mountain repository application while the government was operating under a continuing resolution during fiscal 

year 2011 and was purposely preventing the Commission from completing its ruling on the Atomic Safety Licensing Board’s decision 

to deny DOE’s motion to withdraw its Yucca Mountain repository 

license application from NRC. 

OIG also looked into concerns raised about the chairman’s management style and whether his control of information prevents the 

other commissioners from effectively fulfilling their statutory responsibility to address policy matters. 

The Nuclear Waste Policy Act of 1982, as amended, names Yucca 

Mountain as the single-candidate site for geological high-level radioactive waste repository. Next, the Act states that NRC will consider an application for construction of a repository and issue a 

final decision within 3 years of application’s submission. 

NRC accepted DOE’s Yucca Mountain license application in September 2008 and planned, at the end of the technical review, to 

issue a safety evaluation report (SER) containing its findings on 

the repository design. In February 2010, the Energy Secretary 

noted during a Senate hearing that the Administration would seek 

to suspend licensing for the Yucca Mountain repository because it 

was not a workable option. In March 2010, DOE submitted to the 

ASLB a motion to withdraw its Yucca Mountain License Application, which the ASLB denied. The Commission chose to review the 

ASLB decision and in August 2010 began consideration of this adjudicatory matter. 

On September 30, Congress issued a continued resolution directing federal agencies generally to spend money at 2010 levels to continue 2010 projects and activities. On October 4, 2010, NRC senior 

officials issued a memorandum directing staff to continue its activities on Yucca Mountain license application during the CR period in 

accordance with the Commission’s fiscal year 2011 congressional 

budget justification. That document directed ‘‘work related to the 

orderly closure of the Agency’s Yucca Mountain licensing support 

activities.’’ Soon after, the chairman directed staff to stop working 

on SER and proceed to orderly closure of the program. 

OIG learned that the CR budget memorandum’s language directing staff to follow fiscal year 2011 budget guidance for High-Level 

Waste Program activities was based on instruction from the chairman’s office. OIG found that the chairman used the memorandum 

to initiate NRC’s fiscal year 2011 plans to close out its Yucca 

Mountain license application review, although the budget had not 

11 

been passed. The chairman’s decision was supported by the NRC 

General Counsel and consistent with the discretion within the 

chairman’s budget execution authority under the Reorganization 

Plan Number 1 of 1980, OMB budget guidance for CR spending. 

The administration’s decision to terminate the Yucca Mountain repository project and the chairman’s interpretation of the Commission’s fiscal year 2011 budget policy decisions. 

OIG also found that while the chairman had the authority to direct staff to follow the fiscal year 2011 budget guidance, he was not 

forthcoming with the other commissioners about his intent to stop 

work on the SER as part of implementing close-out activities. Although he told executive director of operations that all commissioners were informed of the support issuance of the CR budget 

guidance memorandum, a majority disagreed with the outcome of 

the memorandum, which was the chairman’s direction to stop work 

on the SER. Also, a majority of the commissioners did not think the 

conditions to proceed to closure had been met. 

Although one commissioner wrote a commission action memorandum, or COM, to the other commissioners on October 6 proposing to direct staff to continue working on SER, two commissioners elected not to vote on the matter. Without a majority, the 

Commission could not move the matter to policy space within the 

Commission’s purview. 

OIG found that various factors are preventing NRC from fulfilling its statutory obligation to review DOE’s Yucca Mountain Repository License Application and issue a final decision concerning 

issuance of a construction authorization. Factors include the administration’s decision to terminate the Yucca Mountain repository 

project, decreasing appropriations to NRC for the High-Level Waste 

Program, and the chairman’s direction to stop work on an SER. 

OIG found that the Commission’s adjudicatory voting procedures 

are not consistently enforced and they do not provide details on the 

process that occurred between completion of a notation vote on an 

adjudicatory matter and the conduct of an affirmation vote. The 

lack of enforcement of and specificity in the Commission’s procedures—coupled with the Commission’s practice not to move to affirmation until all commissioners agree to the affirmation notice and 

order—allows matters to sit in abeyance without final Commission 

action. 

OIG also found that the chairman controls the information provided to the other commissioners based on his interpretation of his 

statutory authority as chairman versus the authority given to the 

Commission. Because the chairman manages and controls information available to the other commissioners, they are uncertain as to 

whether they are adequately informed of policy matters that should 

be brought to their attention. Ultimately, however, all commissioners have the ability to bring any issue they perceive as a policy 

matter before the Commission by writing a Commission action 

memorandum gaining a majority of the Commission’s support. 

Mr. Chairman and members of the subcommittee, we would be 

pleased now to answer questions. 

[The prepared statement of Mr. Bell follows:] 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

Mr. SHIMKUS. Thank you very much, Mr. Bell. I ask unanimous 

consent that the contents of the document binder be introduced 

into the record and to authorize staff to make any appropriate 

redactions. Without objection, the document will be entered into 

the record with any redactions that staff determines are appropriate. 

[The information appears at the conclusion of the hearing.] 

Mr. SHIMKUS. I now recognize myself for the first 5 minutes. 

Again, Mr. Bell, thank you. Mr. Bell, how many interviews did 

you conduct for this investigation? 

Mr. BELL. Thirty-nine total, sir. 

Mr. SHIMKUS. Thirty-nine total. And they were transcribed interviews under oath, is that correct? 

Mr. BELL. The majority were. I think maybe one or two were not 

transcribed. They were all under oath. 

Mr. SHIMKUS. They were all under oath? 

Mr. BELL. Yes. But I think all but two were transcribed. 

Mr. SHIMKUS. And did you review documents as well? 

Mr. BELL. Yes, we did. 

Mr. SHIMKUS. So your report is based on documentary evidence 

and sworn testimony both in its narrative and its findings, is that 

correct? 

Mr. BELL. That is correct, sir. 

Mr. SHIMKUS. And this evaluation was conducted independently 

without any direction or interference from outside of the Office of 

the Inspector General? 

Mr. BELL. That is correct, sir. 

Mr. SHIMKUS. Mr. Bell, you investigated the chairman’s decision 

to close down the staff safety evaluation of the Yucca license during 

a continuing resolution last October, correct? 

Mr. BELL. Yes, sir. 

Mr. SHIMKUS. And you determined the senior NRC staff expressed concerns that the whole Commission needed to be onboard 

with guidance to this effect? 

Mr. BELL. Yes, sir. 

Mr. SHIMKUS. And the chairman told senior staff he would inform the Commission and later said the commissioners were in 

agreement with the direction and implications of the direction. Is 

that the case? 

Mr. BELL. That is the case. Yes, sir. 

Mr. SHIMKUS. But the chairman did not ensure the other commissioners understood the implications of this guidance, did he? 

Mr. BELL. The inference that the chairman had told the Commission was that before he issued any memorandum that all the commissioners would be informed. And this was done to either be himself having conversations with the commissioners or his chief of 

staff talking to the Commission officers that he had not personally 

spoken with or discussed it with. 

Mr. SHIMKUS. But on your report, let me ask this again, Chairman Jaczko did not ensure that each commissioner understood the 

implications of the guidance? 

Mr. BELL. No. 

Mr. SHIMKUS. In fact, according to your investigation, the chairman was not forthcoming with the commissioners. He did not even 

25 

talk to one of them and he did not explicitly explain his plans to 

direct the shutdown of the Yucca review. Is that what you found? 

Mr. BELL. That is correct, sir. 

Mr. SHIMKUS. Is the Reorganization Plan of 1980 as amended the 

statutory guidance under which the NRC operates? 

Mr. BELL. Yes. 

Mr. SHIMKUS. According to the NRC statutory requirements in 

this plan, the chairman ‘‘shall be responsible for ensuring that the 

Commission is fully and currently informed about matters within 

its functions.’’ Isn’t that correct? 

Mr. BELL. That is what the Reorganization Plan states, yes, sir. 

Mr. SHIMKUS. That is an essential responsibility of the chairman 

as laid out in the law, correct? 

Mr. BELL. Correct. 

Mr. SHIMKUS. According to your investigation, the chairman 

‘‘strategically provided three of the four commissioners with varying amounts of information about his intention to not complete the 

safety evaluation report.’’ That is what you determined, correct? 

Mr. BELL. That is what the investigation showed, yes, sir. 

Mr. SHIMKUS. And that is what you determined as the author. 

Now, is strategically withholding information from different commissioners consistent with ‘‘ensuring that the Commission is fully 

and currently informed?’’ 

Mr. BELL. It doesn’t appear to be. No, sir. 

Mr. SHIMKUS. From your investigation, it became clear that 

many staff, including senior staff and the majority of the commissioners considered the Yucca-related guidance and directives imposed by the chairman to be a policy matter. Isn’t that correct? 

Mr. BELL. A policy matter is correct. 

Mr. SHIMKUS. At page 42 you write that ‘‘the chairman himself 

knew the Commission did not support the budget guidance for the 

High-Level Waste Program and that he wanted to be prepared for 

battle.’’ So even the chairman recognized this would be a policy 

fight, not an administrative matter, correct? 

Mr. BELL. Correct. 

Mr. SHIMKUS. Would you agree that the decisions surrounding 

the Yucca Mountain application review have profound national policy implications? Wouldn’t you agree that it is a policy matter? 

Mr. BELL. It is a policy matter, sir. 

Mr. SHIMKUS. What we see here, in fact, was a matter of national 

policy which the chairman tried to manipulate into a mere administrative matter solely within his control. Is this consistent with 

the statutory obligations for how to formulate policy? 

Mr. BELL. No, sir. 

Mr. SHIMKUS. Thank you very much. And I would like to yield 

5 minutes to the ranking member, Mr. Green, for 5 minutes. 

Mr. GREEN. Thank you, Mr. Chairman. 

Your investigation evaluated two allegations that Chairman 

Jaczko unilaterally and improperly closed out the NRC review of 

the Yucca Mountain application while the government was operating under a continuing resolution in fiscal year 2011, and two, 

that the chair was preventing the Commission from ruling on NRC 

Licensing Board decision to deny the DOE’s motion to withdraw 

Yucca. You found that the chairman had not been forthcoming with 

26 

all commissioners but ultimately he acted within his authority. Did 

your office evaluate whether it was appropriate to close the Yucca 

Mountain facility generally? 

Mr. BELL. No, sir. 

Mr. GREEN. OK. Does your report say it was wrong to close the 

Yucca Mountain facility? 

Mr. BELL. No, it does not. No, sir. 

Mr. GREEN. And I didn’t see it in your report but this is the second time I have noticed an administration taking leave under a 

continuing resolution. I would say did your investigation discuss 

anything about an administration using, I guess, very liberally interpreting a continuing resolution that may not have been successful in Congress? 

Mr. BELL. No. No, sir. 

Mr. GREEN. Some of my colleagues have charged the chair decided to close out the Yucca Mountain licensing review process for 

some nefarious purpose and some have alleged this was done directly at the behest of the President for political purposes. In your 

investigation, did you find any indication that the President 

reached out to the chairman and personally asked him or contacted 

him to stop reviewing the Yucca Mountain application? 

Mr. BELL. No, sir. 

Mr. GREEN. This report identified some serious communication 

issues within the Commission and I think we need to take those 

seriously. The report does not, however, find illegal conduct, nor 

does it make any assertions more generally about whether the administration’s decision to close Yucca was proper. I do think, Mr. 

Chairman, our committee needs to look at what the NRC—and 

frankly, I think it is general government, not just our committee. 

There has been a case—and I watched what happened with NASA 

last year. Some decisions were made based on the President’s budget that did not pass the House of Representatives or the Senate 

and yet they made these administrative decisions to change programs. I think that might be the problem we have. And I think 

whether it be NRC or even other agencies, I think they need to 

come back to Congress before they make these decisions, particularly after $15 billion in ratepayers’ and taxpayers’ money has been 

put into it and after 25 years of work, all of a sudden a year ago 

say, well, we are not going to accept that. So that is our problem. 

I think Congress needs to take away that authority that they are 

using. 

Mr. SHIMKUS. Will the gentleman yield for one second? 

Mr. GREEN. I would be glad to. 

Mr. SHIMKUS. Kind of follow up on that. In this case, if there is 

a policy decision that should be made, it should be made by the 

commissioners collectively. Wouldn’t you say that is correct, Mr. 

Bell, a policy decision? 

Mr. BELL. A policy decision should be the Commission. 

Mr. SHIMKUS. And that is another way—this is a Commission, so 

the Commission should all have a say when there is a change in 

policy. And it is our contention, and I think the report defends it, 

that the policy decisions were made by the chairman. 

Mr. GREEN. And I agree. It should be the Commission. But ultimately on something this major, I think we ought to have the opVerDate Nov 24 2008 10:41 Jan 05, 2012 Jkt 037690 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 F:\112-061 NRC YUCCA REVIEW-SUBMITTED FOR REVIEW 12-23\112-61 NRC YUCCA R
27 

portunity as elected officials to make that decision because, again, 

Appropriations for $15 billion for the last 25 years at least. And I 

yield back my time. 

Mr. SHIMKUS. The gentleman yields back his time. The chair recognizes the chairman of the full committee, Mr. Upton, for 5 minutes. 

Mr. UPTON. Well, thank you, Mr. Chairman. And I want to thank 

you, too, Mr. Bell for the report. 

President Reagan, as we know, signed the Nuclear Waste Policy 

Act back in 1982, almost 30 years ago. And in reading again the 

Commercial Nuclear Waste GAO report from this last April, I want 

to read to you one long paragraph. ‘‘Prolonging onsite storage 

would add to the taxpayer burden by increasing the substantial liabilities that DOE has already incurred due to onsite storage at 

commercial nuclear reactors. For DOE to open Yucca in 2020 as it 

had planned, it began taking custody of spent nuclear fuel, it would 

still have taken decades to take custody of the entire inventory of 

spent nuclear fuel. Assuming that 2020 opening of Yucca, the DOE 

estimated that the total taxpayer liabilities for the backlog as of 

2020 would be about $15.4 billion. It would increase by half a billion for each year of delay thereafter. It is important to recognize 

that these liabilities are outside of the nearly 15 billion already 

spent on developing a repository and the estimated 41 to 67 billion 

still to be spent if Yucca Mountain repository were to be constructed and become operational, most of the cost of which is borne 

by the Nuclear Waste Fund.’’ So nearly $100 billion at the end of 

the day. 

In reading the report this weekend, I want to read just a couple 

comments on three commissioners. The first is Commission 

Magwood, who, on page 17, you write, ‘‘Magwood also told the 

chairman that he would not support a precipitous termination of 

the High-Level Waste Program. According to Commissioner 

Magwood, the chairman assured him that this was not the expectation.’’ ‘‘According to Commissioner Magwood, the chairman became 

very agitated and said that he would never have taken these actions had both Commissioners Apostolakis and Magwood not 

agreed to support the guidance. Commissioner Magwood said that 

he objected to this statement quite strongly and that the chairman 

never told him his plan had been to shut down the High-Level 

Waste Program and withhold publication of SER Volume III.’’ 

Then on Commissioner Ostendorff, you write on page 18, ‘‘Commissioner Ostendorff stated that on October 1, 2010, Chairman 

Jaczko told him that the CR budget guidance memo would have 

the staff commence orderly closure of Yucca license application review. Ostendorff told the chairman that he disagreed with his direction. The direction was wrong and you should not issue it.’’ 

As it relates to the third commissioner, Commissioner Svinicki, 

you write on page 19, ‘‘On October 5, her staff informed Chairman 

Jaczko’s office that she objected to the CR guidance. She stated 

that she did not have any direct communication with Chairman 

Jaczko’s review regarding the matter before the CR budget guidance memo was issued on October 4, 2010.’’ So can one come to a 

different conclusion than there were at least three votes in opposition of where they ultimately were? And it is a pretty damning reVerDate Nov 24 2008 10:41 Jan 05, 2012 Jkt 037690 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 F:\112-061 NRC YUCCA REVIEW-SUBMITTED FOR REVIEW 12-23\112-61 NRC YUCCA R
28 

port as it relates to his control of these three commissioners who 

in fact said on the record that they didn’t agree. Can one come to 

a different conclusion? 

Mr. BELL. I will let Mr. McMillan answer. 

Mr. MCMILLAN. Clearly, each of those commissioners, sir, 

thought that the budget guidance memorandum that was being circulated would not stop the SER from progressing. While the Commission might very well be moving towards closure of the program 

itself, in each of those cases when the individuals were interviewed, 

it was their impression that the SER would, in fact, be continued. 

Mr. UPTON. But was it not the fact that the staff review of the 

SER plan was going to be expedited and it was Chairman Jaczko 

who said slow down? 

Mr. MCMILLAN. That is correct. There was a meeting in the June 

time frame of 2010 when the staff went to the chairman and indicated a desire to advance SER’s related to numbers I and III, the 

issues related to Volumes I and III. The chairman did indicate to 

the staff that he wanted to maintain the published schedule that 

was in the record at that time. That was their understanding that 

they would maintain the public schedule of timing. 

Mr. UPTON. What did the commissioners feel when they learned 

that the SER III decision had been withheld from them, their reaction? 

Mr. MCMILLAN. And again, staying within the context of the report, through the interviews, clearly the commissioners that we 

spoke to that had no understanding of this SER being stopped, OK, 

were somewhat agitated by that fact and they did in fact raise the 

issues back with the chairman regarding their discussions that he 

had had and the indications that at no time did they understand 

that the SER and the findings in the SER would be stopped. 

Mr. SHIMKUS. The chairman’s time has expired. The chair now 

recognizes the chairman emeritus, Mr. Waxman, for 5 minutes. 

Mr. WAXMAN. Thank you, Mr. Chairman. 

Mr. Bell, over the last few months, the chairman of this subcommittee has told us that the NRC chairman acted illegally with 

regard to its handling of Yucca Mountain. Mr. Bell, you have conducted a 7-month investigation of this matter. Did you find that 

the chairman of the NRC acted illegally? 

Mr. BELL. No, we didn’t, sir. 

Mr. WAXMAN. OK. Your report describes concerns raised by some 

Commission staff that Chairman Jaczko controls and restricts the 

information provided to his fellow commissioners. Some of this appears to be due to a change in management style. For example, 

Chairman Jaczko has taken a more hands-on role in the budget 

process. As your report describes, the chairman meets with division 

directors to provide direction on the Agency’s priorities, and then 

each division formulates a budget document and submits it to the 

chairman and the chairman sees the budget as his responsibility 

and it says that he is entitled to develop the budget as he sees fit. 

Mr. Bell, although some staff and commissioners may not like this 

approach, does it mean it was illegal? 

Mr. BELL. It is not illegal and it is the prerogative of the chairman to the direction of the budget. And this chairman has elected 

29 

to have the budget filter through him and his office and then he 

disseminates it back to the Commission. 

Mr. WAXMAN. Now, Chairman Jaczko made a decision that there 

should be an orderly shutdown of Yucca Mountain because he did 

not think that the NRC was going to have enough funds to pursue 

the matter. Wasn’t that decision vindicated by the continuing resolution passed overwhelmingly by the House and the Senate and 

signed by the President where $10 million was provided to close 

out Yucca Mountain’s consideration? 

Mr. BELL. Well, obviously, yes, sir. And a decrease in the budget 

for the High-Level Waste Program was one of the contributing factors to moving toward a closeout because it eventually was a zero 

budget for High-Level Waste. 

Mr. WAXMAN. So the chairman made a decision about the budget 

and others might not have agreed with it, but he made that decision and it looked like it was vindicated by the actions of the Congress. 

Similarly, the chairman has taken a more active role in the planning of the Commission’s agenda. At times he has directed staff to 

not develop an issue paper for the review of the whole Commission. 

At other times he has determined that an issue paper is an administrative matter, not a policy matter worthy of consideration by the 

Commission. The IG report states that the chairman wants to control the flow of policy issues to the Commission to allow them to 

be more efficient. Of course, some disagree and see this as a means 

to limit the information available to other commissioners. Mr. Bell, 

although some staff and commissioners may not like this chairman’s approach, does that mean it is illegal? 

Mr. BELL. It is not illegal because remember I said that any commissioner has an opportunity to write a COM and get a majority 

vote on the COM and then it moves from a policy space to Commission space. But you have to have majority Commission agree with 

the COM. So he has not done anything illegal, but each commissioner knows if they want to move an issue from the chairman’s 

purview to the Commission’s purview, then they have to get a majority vote by writing a COM and having the commissioners vote 

on it. To date that hasn’t been done. 

Mr. WAXMAN. What is a COM? 

Mr. BELL. A communication memorandum of an issue that they 

want to bring forward. 

Mr. WAXMAN. I see. So they could have acted to take this issue 

away from the chairman but they did not. 

Mr. BELL. They can take any issue that they get a consensus on, 

a majority vote on and move it from the chairman’s purview to the 

Commission agenda. 

Mr. WAXMAN. OK. It seems to me that the chairman’s interpretation of his role and responsibilities differs from how other commissioners see his role and responsibilities. And this seems to appear 

to be the root cause of the conflict. Your report, Mr. Bell, also notes 

that Chairman Jaczko has a ‘‘bad temper’’ and created what some 

employees describe as an ‘‘intimidating work environment.’’ And 

that Chairman Jaczko admits in the report to having a short fuse, 

especially with his fellow commissioners. Mr. Bell, he obviously 

30 

should work on his interpersonal skills at the office, but does this 

mean his behavior is illegal? 

Mr. BELL. No. 

Mr. WAXMAN. And I could just say from my own experience, I 

serve on this committee, I know my colleagues in a professional 

way. I am surprised when I hear that some of them have a huge 

temper and they are rude to their staffs. I am shocked when I hear 

that some of the colleagues that I serve with on the committee 

might Twitter things to people. I just don’t have any knowledge of 

it but I guess the members of this Commission and the staff noticed his poor interpersonal skills. Not admirable, is it? That is, I 

guess, a rhetorical question, Mr. Bell. 

Mr. Green said that the report does not find illegal conduct, nor 

does it make any assertion more generally about whether the administration’s decision to close Yucca Mountain repository was 

proper. Is that an accurate statement? Should I repeat it? 

Mr. BELL. Yes, repeat it again, sir. 

Mr. WAXMAN. He said that the report does not find illegal conduct, nor does it make any assertion more generally about whether 

the administration’s decision to close Yucca Mountain was proper. 

Mr. BELL. Yes, that is accurate. 

Mr. WAXMAN. And then Mr. Green went on to say I do think 

Congress needs to address the issue. But Congress did address the 

issue in the continuing resolution. 

Mr. SHIMKUS. The gentleman’s time has expired. 

Mr. WAXMAN. Is that a correct statement? 

Mr. SHIMKUS. You can answer him, Mr. Bell. 

Mr. BELL. Yes. 

Mr. WAXMAN. Thank you, Mr. Chairman. 

Mr. SHIMKUS. The gentleman’s time has expired. The chair now 

recognizes the chairman emeritus of the full committee, Mr. Barton, for 5 minutes. 

Mr. BARTON. Thank you, Mr. Chairman. 

I don’t know where these rumors come from that Members have 

tempers. That must be on the minority side. We are all peace and 

light and sunshine on the majority side, you know, so—— 

Mr. WAXMAN. I read a Twitter about it. 

Mr. BARTON. You read a Twitter about it? Well, we will investigate those rumors, Chairman Waxman, get to the bottom of it. 

I want to put into the record, Mr. Chairman, an article from the 

December 2010 periodical called ‘‘Waste Management.’’ It is part of 

the Nuclear News magazine and it refers to former Chairman Dale 

Klein’s comments. He wrote an open letter to the Commission and 

to several journalists about this issue that we are debating today 

or investigating today. And I will put the entire article in the 

record but part of his open letter states—this is former NRC chairman Dale Klein—that ‘‘there was no intention by the Commission’’—by that he means the NRC—‘‘to approve or even contemplate a preemptive termination of the High-Level Waste Program.’’ I would ask that this be put into the record. 

Mr. SHIMKUS. Is there objection? Hearing none, so ordered. 

[The information follows:] 

31 

32 

33 

Mr. BARTON. OK. I have read the executive summary, Mr. Bell, 

of your investigatory report and I listened as you answered some 

questions from Chairman Waxman. It is my understanding that 

one of your conclusions is that while Chairman Jaczko didn’t act 

appropriately, it is your opinion that he did not violate any law. Is 

that correct? 

Mr. BELL. That is correct, sir. 

Mr. BARTON. Now, I have a different opinion and I am not an inspector general so my opinion is just that. I think it is an informed 

opinion. But I have read the statute that applies to the Nuclear 

Regulatory Commission and it has language that says the chairman ‘‘must fully inform other commissioners of all pending actions.’’ You yourself in your report say that Chairman Jaczko I believe said misled but he certainly didn’t fully inform all the other 

commissioners. If that is a true statement, how can he not have 

violated federal law? 

Mr. MCMILLAN. Sir, what we are attempting to convey in the report was the fact that if the commissioner on the Commission 

wanted to move his decision from budget space to policy space, 

there was a mechanism by which to do that. And clearly, Commissioner Ostendorff attempted to do that with his COM in October 

shortly after the CR memorandum guidance. 

Mr. BARTON. How can you put the burden on a commissioner if 

the chairman has the information and the chairman doesn’t fully 

inform the other commissioners? I mean how can you then put the 

burden of proof so to speak on an uninformed unaware commissioner? 

Mr. MCMILLAN. It was the responsibility to ensure all the commissioners understood the purpose of the budget guidance memorandum. That clearly was a responsibility of the chairman. 

Mr. BARTON. If I understand your report correctly, he failed that 

responsibility. Is that not correct? 

Mr. MCMILLAN. The report reflects the fact that the commissioners that were involved in that process went to the chairman 

and indicated that had they known that the SER was going to be 

stopped that they would not have even given tacit approval towards moving that document—— 

Mr. BARTON. So that would appear to me to factually prove that 

he violated the law. I mean I don’t know how you can have it any 

other way. He has got an obligation under law to fully inform the 

commissioners. Your own report indicates that he didn’t fully inform. The commissioners said that had they known, they would 

have taken preemptive action to prevent what he did. He violated 

the law. He did not uphold his responsibility under the statute. 

That is clear layman common sense. My time has expired. I have 

two more things I want to state. 

Before you issued this report about him not violating the law, did 

you check with outside legal counsel on that issue? 

Mr. BELL. No, we didn’t, sir. 

Mr. BARTON. Did not. So this is an internal decision. What is 

your opinion, Mr. Inspector General, as of right now the licensing 

application for Yucca Mountain? Is it active? Has it been terminated? Should it still be acted upon? What is the legal standing 

34 

given that the Construction Authorization Board refused to allow 

the Department of Energy to withdraw that application? 

Mr. BELL. Well, the ASLB denied the appeal. So the application 

is still before the Commission. And until—— 

Mr. BARTON. So it is active? It should be acted upon. The Commission should make a decision on it. Is that not correct? 

Mr. BELL. Correct. 

Mr. BARTON. Thank you, Mr. Chairman. 

Mr. SHIMKUS. Thank you. The chair now recognizes the 

gentlelady from Colorado, Ms. DeGette, for 5 minutes. 

Ms. DEGETTE. Thank you very much, Mr. Chairman. 

Mr. Bell, in the beginning of your report, you provide some historical background for the structure of the NRC and more specifically for the chairman’s authority. I think this is important based 

on the last questioning. I understand that when the Commission 

was established, much of the power was evenly distributed among 

the commissioners, is that correct? 

Mr. BELL. Under the Reorganization Act? 

Ms. DEGETTE. Under the original structure of the Commission, 

much of it was evenly distributed, right? 

Mr. BELL. Yes. 

Ms. DEGETTE. And then it was changed and it was changed because of Three-Mile Island, is that right? 

Mr. BELL. Correct. 

Ms. DEGETTE. And after Three-Mile Island, both the Presidential 

Commission and an NRC-commissioned review identified issues 

with that structure I described with the equal power, and so they 

completely overhauled the Commission’s structure. Is that right? 

Mr. BELL. Correct. 

Ms. DEGETTE. Now, can you talk to me for a minute about some 

of the expanded duties and responsibilities of the chairman under 

that Reorganization Plan in 1980? 

Mr. MCMILLAN. Specifically, ma’am—— 

Ms. DEGETTE. Mr. McMillan? 

Mr. MCMILLAN [continuing]. Under Section 2 of the 

Reorganizaiton Plan, it assigns the chairman responsibility for all 

functions, serving as the Commission’s spokesman, serving as the 

Commission’s principle executive officer responsible for developing 

policy planning and guidance for consideration by the Commission. 

It also assigns him the responsibility of the administrative functions of the Commission, distribution of business among the offices 

of the Commission and preparation of the budget estimates, and 

then proposed the distribution of appropriated funds. The Reorg. 

Plan states that the chairman determines the use in expenditure 

funds of the Commission in accordance with the distribution of appropriated funds. So clearly, he has got some unique responsibilities and duties—— 

Ms. DEGETTE. Right. 

Mr. MCMILLAN [continuing]. That are different than those of 

other commissioners. 

Ms. DEGETTE. He has got additional responsibilities and duties? 

Mr. MCMILLAN. Yes, ma’am. 

Ms. DEGETTE. Is that right? 

Mr. MCMILLAN. Yes, ma’am. 

35 

Ms. DEGETTE. And that plan was approved by Congress as I understand it. 

Mr. BELL. 1980. 

Ms. DEGETTE. And it was approved in 1980? Thank you. 

Mr. BELL. Reorganization. 

Ms. DEGETTE. And so really to say what may or may not have 

happened in this situation with Chairman Jaczko is illegal is probably inaccurate, and I think you have answered that about 10 

times. Is that correct, Mr. Bell? 

Mr. BELL. Yes. 

Ms. DEGETTE. So, Mr. Chairman, I would like to make a suggestion. And Mr. Murphy will tell you we had a very, very informative 

trip last week where we looked at nuclear disposal, studies for permanent and also reprocessing and interim disposal. And I have 

been interested in this issue for many, many years ever since I 

went to Yucca Mountain with Chairman Emeritus Barton and I 

have been thinking, irrespective of what you think about the issue 

of nuclear energy for this country as a policy, the fact is that we 

have to grapple with this, and we have to grapple with it in a way 

that is science-based, not in a way that is based on politics. 

And the concern I have is that in this country, much of what we 

have done—and you can argue on either side of the aisle who is 

more at fault—is we base our issues on how we should dispose of 

the current and future nuclear waste, politics and not on science 

where it will work. 

And so I guess my suggestion would be, look, we are in a situation right now where we had looked at Yucca Mountain, they were 

undergoing their scientific studies. The last administration tried to 

expedite the certifications even though the studies weren’t over, 

and now this administration has shut it down. And we can argue 

back and forth whether what the chairman did was illegal or just 

wrong or maybe not wrong at all or maybe just a 

miscommunication. We can argue about all of that, but the truth 

is we now don’t have a permanent facility that is either certified 

or under certification process. And it seems to me that that would 

be a very fertile area for us to look at in this committee because 

at some point, irrespective of how we decide to take our nuclear energy policy in the future, we are going to have to grapple with this. 

And so that would be my suggestion. We can waste a lot of time 

arguing about these details or we can move forward and say what 

are we going to do now coming from where we come? 

Thank you and I yield back. 

Mr. SHIMKUS. The gentlelady yields back her time. And I would 

just say that the delay of the SER report is a delay of science-based 

information for Yucca. That is part of this whole debate is the SER 

report, which has been delayed. And I yield 5 minutes to the vice 

chairman of the committee, Mr. Murphy, for 5 minutes. 

Mr. MURPHY. Thank you, Mr. Chairman. 

It certainly is important from my friend from Colorado that it is 

important to adhere to scientific information because the implication is not only what happens to Yucca Mountain, but this impacts 

the credibility of the NRC on many issues of licensing. 

So Mr. Bell, last week, Chairman Jaczko issued a press release 

claiming your office has exonerated him of any wrongdoing. I am 

36 

not certain that the report really supports that interpretation so let 

me ask this: first of all, on the matter of the continuing resolution 

budget guidance issued unilaterally by the chairman, your report 

makes it clear that the senior career NRC managers and other 

commissioners and even the chairman himself believed it to be a 

policy matter. Is that correct? 

Mr. BELL. Yes. 

Mr. MURPHY. Now, in fact, on page 22 of your report you say that 

the chairman told the executive director of operations, ‘‘There may 

be commissioners who don’t agree with this and will try to make 

it a policy issue.’’ Your report states that the EDO had already advised the chairman that this was a policy matter—on page 15—and 

therefore, it should have been brought before the Commission, is 

that correct? 

Mr. BELL. Yes. 

Mr. MURPHY. I believe the quote on page 15 is that, ‘‘He believed 

that if the commissioners decide the matter was a policy issue, they 

could vote on it.’’ He said, ‘‘he expressed his concerns’’—the chairman—‘‘that the Commission needed to see the memorandum.’’ And 

your report also details the efforts of the chairman and his staff 

made to mislead the commissioners, deny them the information 

they needed to make an informed decision, and prevent other commissioner views on this matter being considered. Is that correct? 

Mr. BELL. Yes. 

Mr. MURPHY. Now, is it a crime to mislead? 

Mr. BELL. It is not a crime but it certainly is not an up-front way 

to do business. And also the exoneration—the chairman’s statement was the chairman’s statement. We had no input or anything 

into the chairman’s statements just for the record. 

Mr. MURPHY. And is it against the law to overturn a statute that 

Congress has passed and signed into law? 

Mr. BELL. No. 

Mr. MURPHY. It is not a crime—not illegal to do that? 

Mr. BELL. I mean if Congress overturns it? 

Mr. MURPHY. No. If there was a statement that says that the 

chairman and executive director of operations to the chairman 

shall be responsible for ensuring that the Commission is fully and 

currently informed about matters within its functions. And that 

was signed into law and that is specifically, categorically an order. 

Is that illegal? 

Mr. BELL. It is wrong. 

Mr. MURPHY. OK. Is the chairman of the NRC statutorily required, then, under the Reorganization Plan of 1980, as amended, 

to keep its commissioners fully and currently informed? 

Mr. BELL. Yes. 

Mr. MURPHY. OK. So the chairman and executive director of the 

NRC are required under law, as you said, to keep the Commission 

fully and currently informed of Agency activities. Do you conclude 

from your investigation that this is currently happening that it is 

fully and currently informed? Is that your conclusion that it is fully 

happening or it is not happening? 

Mr. BELL. It is not being fully informed, correct. 

Mr. MURPHY. OK. 

37 

Mr. BELL. Now, I think the chairman has given them just 

enough information to proceed in the manner that he wanted to 

proceed with the—— 

Mr. MURPHY. But that isn’t the matter that the chairman wanted 

to—— 

Mr. BELL. But that—— 

Mr. MURPHY. From what you have said so far on a couple of occasions now that that runs contrary to what the statute says was 

passed by Congress and signed into law by the President. So how 

does failure to follow statutory obligations exonerate the chairman’s actions? 

Ms. RASPA. I am sorry. What was the question? 

Mr. MURPHY. My point is, given the statements made by Mr. Bell 

here in reference to this statute, my question then how does failure 

to follow statutory obligations exonerate the chairman’s actions? 

You have to put the microphone up close, ma’am. 

Ms. RASPA. The reorganization plan was premised on keeping the 

commissioners informed of matters within their purview. And so 

they were aware of the chairman’s actions. They didn’t fully understand the implications of that CR budget memorandum. 

Mr. MURPHY. But I challenge that. As Commissioner Magwood 

stated, ‘‘The chairman never told him his plan had been to shut 

down the High-Level Waste Program and withhold publication of 

SER Volume III. The chairman responded to him, you should have 

asked.’’ So is intent to mislead by withholding information to effect 

behavior an actual policy matter, isn’t this a violation of the statute? 

Mr. MCMILLAN. What we attempted, again, sir, to do was to lay 

out what transpired during the course of these sequence of events 

and leave the interpretations whether it be regarding legality, OK, 

to others. 

Mr. MURPHY. I understand. 

Mr. MCMILLAN. Clearly, when you have—— 

Mr. MURPHY. I am not asking whether this is criminal or not. I 

think this is a whole other legal issue. The question is is it a violation of the statute? Is it a violation of the statute in terms of what 

they actually did, what was actually going on? 

Mr. MCMILLAN. One could draw that conclusion that it is opposite the intent of that statute, yes. 

Mr. MURPHY. Thank you. I yield back. 

Mr. SHIMKUS. The gentleman’s time has expired. The chair now 

recognizes the gentleman from Kentucky, Mr. Whitfield, for 5 minutes. 

Mr. WHITFIELD. Thank you very much. And, Mr. Bell, thanks for 

being with us today. We appreciate it. 

I want to touch on, initially, the Department of Energy’s motion 

to withdraw the application, which was denied by the Appeal 

Board. And then after that and the subject of a lot of this is the 

fact that there has not been a final vote by the Commission on 

whether or not to uphold the Appeal Board. 

And Chairman Ostendorff said—and I want to know if your investigation affirmed this—but he said that he went to Chairman 

Jaczko on September the 9th, September the 14th, October the 5th, 

38 

October the 19th, October the 27th wanting to know when they 

were going to vote on this. Did your investigation affirm that? 

Mr. BELL. Yes. 

Mr. WHITFIELD. He did talk to him on those occasions? OK. And 

Chairman Jaczko told him that he was delaying it because he was 

concerned that a 2–2 vote would leave the Appeal Board decision 

in limbo, is that correct? 

Mr. BELL. That is correct. 

Mr. WHITFIELD. And some of the Commission members felt like 

a 2–2 vote would actually uphold the Appeal Board decision, is that 

correct? 

Mr. BELL. In most instances, a 2–2 vote does uphold. 

Mr. WHITFIELD. So what did your investigation find out that 

Jaczko was thinking about when he said it would leave the Board 

in limbo—the decision in limbo? 

Ms. RASPA. Regarding the adjudicatory matter, we could only 

look into the process of their votes. We could not look at their 

thinking and what was behind their thinking in casting those 

votes. 

Mr. WHITFIELD. OK. But a 2–2 vote upholds the Board and at 

least some people are saying that Jaczko is saying well, I didn’t 

want to vote because I am afraid a 2–2 vote would leave this in 

confusion. OK. 

In addition to that, I just read through some of this testimony 

and your report and it says that Chairman Jaczko controls and restricts information available to his fellow commissioners. Did you 

have people say that? 

Mr. BELL. Yes, we had. 

Mr. WHITFIELD. They view him as unprofessional and manipulative. Did you find that? 

Mr. BELL. That was things that have been said also, yes. 

Mr. WHITFIELD. They find that he suppresses papers and manipulates the agenda planning process because he wants to control the 

sequence of papers to be presented to the Commission. 

Ms. RASPA. The chairman has also indicated that he is trying to 

prioritize those matters that—— 

Mr. WHITFIELD. I am not asking what he is trying to do. I am 

just asking was this told to you. It says here that you were told 

that the chairman withholds information to the Commission by either suppressing papers or manipulating the agenda. 

Mr. BELL. Yes, we were told that. 

Mr. WHITFIELD. You were told that? OK. You were also told that 

the distinction between policy issues and administrative actions is 

a subject of contention within the Commission, is that correct? 

Mr. MCMILLAN. Yes. 

Mr. BELL. That is correct. Yes, sir. 

Mr. WHITFIELD. And, of course, the chairman would like if he 

wants it to be administrative, then it is not a policy matter so he 

would have more control over that, is that correct? 

Mr. BELL. That is correct. Anything that is not policy he would 

have. 

Mr. WHITFIELD. OK. And it says that some people have said that 

he acts in an unprofessional way, that he uses intimidation, that 

there is a work environment of intimidation, he yells at people, his 

39 

tactics have a negative impact on the camaraderie in the office or 

in the Agency. He rules by intimidation. His behavior creates an 

environment in which it is difficult for people to work with him. He 

even said that himself. And the thing that disturbs me about this 

here you have a chairman of a Nuclear Regulatory Commission 

that has such a dramatic impact on this country that is now resulting in legal judgments against the Federal Government paid for by 

taxpayers, and the clear impression is that we have one chairman 

over there who is unprofessional, who intimidates, who manipulates, and this has all been testified to by people that you have 

interviewed. Is that correct? 

Mr. BELL. That is correct. 

Mr. WHITFIELD. And would you say that the tenure of that would 

be a violation of the Energy Reorganization Act of 1974 if you are 

trying to have a collegial atmosphere and provide transparency and 

information, what has been testified to by these people, his actions 

would be violating that Act, wouldn’t it? 

Mr. BELL. I don’t think it violates the Act. I mean the judgment 

and the personality and everything that goes with his demeanor at 

times people consider it unprofessional. 

Mr. WHITFIELD. All right. I see my time has expired. 

Mr. SHIMKUS. The gentleman’s time has expired. The chair recognizes the gentleman from Pennsylvania, Mr. Pitts, for 5 minutes. 

Mr. PITTS. Thank you, Mr. Chairman. 

Mr. Bell, in your report you asked the chairman to respond to 

your office on what, if any, action he intends to take in response 

to your investigation. To your knowledge, does the press release 

last week by Chairman Jaczko that he was exonerated represent 

the views of the Commission? 

Mr. BELL. No, that is the chairman’s press statement. That is his 

press release to the report. 

Mr. PITTS. Do you consider his press release an adequate response to your report? 

Mr. BELL. That is not a response to me at all. That is just a 

press release that he issues publicly. So we have not had any correspondence with the chairman about the report yet. 

Mr. PITTS. What do you intend to do if the chairman fails to respond formally to your report? 

Mr. BELL. I mean the report stands on its own and the report 

will stay open until we get some response. If we don’t get a response, then the actual report itself will be closed until we get 

some notice from the chairman. Then it would be an open report. 

Mr. PITTS. All right. Regarding the issuance of the CR guidance, 

the executive director for operations on page 15 said, ‘‘expressed his 

concerns to the chairman that the Commission needed to see the 

memorandum.’’ And the chairman told him ‘‘the memorandum 

would not be issued until the other commissioners were on board 

with the memorandum language.’’ The EDO went on to testify that 

‘‘the Chairman told him that all four commissioners were in agreement with the language.’’ Is that correct? 

Mr. BELL. That is what we were told, yes. 

Mr. PITTS. Now, you conclude that the chairman selectively mislead three commissioners and to one commissioner he revealed 

40 

nothing at all about the CR guidance to close out the Yucca review, 

is that correct? 

Mr. BELL. That is correct. 

Mr. PITTS. So someone’s testimony appears to be false here. Either the EDO is misstating that he received this assurance from 

the chairman or the chairman did not tell the truth to the EDO 

about having the agreement of the other commissioners. How do 

you reconcile this testimony? 

Ms. RASPA. The chairman did not recall when asked if he had 

communicated to the EDO and exactly what he had communicated 

in terms of giving him the green light to issue this CR memorandum. However, the EDO, as you have indicated, does say or did 

tell us that the chairman told him the memorandum could be 

issued, all were on board, he had spoken to all the commissioners. 

And therefore, based on that, he signed the CR memorandum. 

Mr. PITTS. Well, I think a question raised by this report here is 

that somebody is not telling the truth in this process. Your report 

lays out what people say, but you do not connect the dots. What 

are the next steps? 

Ms. RASPA. We cannot say that the chairman lied to us. He said 

he did not recall what he told the EDO quite frankly. That is in 

our report. There is a conflict and sometimes you can’t resolve that 

conflict. 

Mr. PITTS. Is this investigation continuing? Are there other facts 

and issues that you believe warrant investigation? 

Mr. MCMILLAN. At this juncture this is still an open investigation. If something were to be presented to us that necessitated us 

looking at a particular issue related to the allegations themselves, 

then clearly we would take it under that context, you know, to assess. But as Ms. Raspa said, occasionally in an investigation, as 

you are cognizant of, you can’t always reconcile the testimonies between people. There was no anecdotal documentary evidence to line 

up specifically what the chairman recalled or did not recall in relationship to the EDO’s testimony that it was, in fact, told to him. 

So this was a point that we just could not resolve regarding that 

communication. 

Mr. PITTS. So it appears that Chairman Jaczko has let politics 

trump science here, that he has manipulated the process. He has 

misled some of the fellow commissioners about the consequences of 

the actions they were taking. And I think the credibility of the 

NRC has been damaged. Its reputation has been damaged. There 

are some real serious questions about the Agency’s independence 

and scientific integrity, and I thank you for your testimony. 

Mr. SHIMKUS. The gentleman’s time has expired. The chair recognizes the gentleman, Mr. Bass, for 5 minutes. 

Mr. BASS. Thank you, Mr. Chairman. I just want to follow up 

very quickly on a line of questioning that Mr. Pitts brought up at 

the beginning of his time. 

It is my understanding that the chairman of the NRC sent out 

a press release after this report was published exonerating himself. 

Is that the only response that he is required to make to your report? 

41 

Mr. BELL. The press release is not a response to my report. His 

response to my report has to be directed to me. 

Mr. BASS. And he hasn’t done that, right? 

Mr. BELL. No, he hasn’t done that. I mean we normally—— 

Mr. BASS. He has no obligation to either, right? 

Mr. BELL. Well, no, we give him an opportunity to respond, and 

normally we give 120 days. 

Mr. BASS. So if nothing happens in 120 days, it is the end as far 

as you are concerned? 

Mr. BELL. Well, it is the end of what we looked at. 

Mr. BASS. Yes. All right. Fair enough. I have a couple of questions regarding control of Commission information. 

Mr. Bell, is it your experience that under former chairmen’s staff 

could bring policy matters directly to the full Commission? 

Mr. BELL. Under previous chairmen? 

Mr. BASS. Yes. Is it your experience that under previous chairmen it was the standard that staff could bring policy matters directly to the full Commission? 

Mr. BELL. I don’t know firsthand but it has never come to us in 

a manner that was disputed like this. 

Mr. BASS. All right. Fair enough. Yet your report under Chairman Jaczko the staff was not able to bring policy matters directly 

to Commission, were they? 

Mr. MCMILLAN. I can help clarify that to some degree. 

Mr. BASS. Yes, certainly. 

Mr. MCMILLAN. The staff has periodic meetings, OK, with all of 

the commissioners, including the chairman. And during the course 

of those meetings, a variety of issues are serviced which is coming 

from the staff in and of itself. It is just the manner by which the 

current chairman handles the agenda if you would is where there 

has been some disconnects from previous chairmen in the Commission itself. 

Mr. BASS. Well, do you think it is fair to say that the staff were 

constrained from communicating policy matters to the full commission or on matters that the chairman may have had a disagreement with staff? 

Ms. RASPA. I think that as Mr. McMillan indicated, the staff does 

communicate with each of the commissioners. They generally know 

what the staff may be working on. What becomes more difficult is 

when the staff is looking for guidance and wants to, for example, 

get a paper up to the commissioners that that process has to go 

through the EDO who in turn has to go through the chairman. And 

it is at that point where even though the commissioners know, they 

may not know always real time as items are coming up they have 

to be prioritized. 

Mr. BASS. Let me reconstruct the sentence. Do you think that the 

staff was constrained from communicating policy matters to commissioners at any time? 

Mr. BELL. I would say yes. 

Mr. BASS. OK. Fair enough. According to your report on page 29, 

the executive director of operations, EDO, said the chairman did 

not want any differences between his budget and staff’s budget and 

sought as his budget proposal. The chairman also wanted the opportunity to review and change any of the staff’s responses to the 

42 

commissioners’ questions. Do you believe unilaterally editing staff 

information supplied to the Commission is an appropriate way to 

manage Agency information sharing? 

Mr. BELL. Well, again, this chairman has operated differently 

than previous chairmen. And previous chairmen it was a more 

open and collaborative discussion of the budget. This chairman has 

sought to take the budget as his responsibility and has taken full 

responsibility for it. I mean if commissioner officers seek any information from any office, then all this information has to be filtered 

back through the chairman’s office for a response. 

Mr. BASS. So in your opinion, unilaterally editing staff information supplied to the Commission is an appropriate way, then, to 

manage Agency information? 

Mr. BELL. No. 

Mr. BASS. OK. Fair enough. Your report on page 37 that the 

chairman’s budget estimate was submitted to the Commission 

without fundamental supporting documents presented by the staff, 

is that correct? 

Mr. BELL. Correct. But I think that has subsequently, though the 

general counsel, has advised the chairman’s office that when he 

submits budget information to any of the offices that there has to 

be supporting documentation to support the budget or the appearance is everything is coming from the chairman himself. So I think 

the chairman has recognized that in the future any budget items 

that go forward has to have some supporting documentation from 

the office that provided the budget information. 

Mr. BASS. Mr. Chairman, I am out of time. I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. The chair recognizes the gentleman from Ohio, Mr. Latta, for 5 minutes. 

Mr. LATTA. Well, thank you very much, Mr. Chairman. And 

thanks very much for being here today. Sitting through these hearings I have come to the conclusion if I was teaching federal administrative law in law school, I would have the perfect case study to 

do. And also having been a county commissioner back in the State 

of Ohio where we actually had rules and regulations that we had 

to follow, this is amazing. And I know that Chairman Barton expressed that in the last hearing, and I am just astounded what I 

have been hearing today and also when I read the report because, 

you know, I make lots of tabs and everything else. 

But if I could, you know, the questions, you know, you said it is 

the prerogative of the chair who gets the information, but, you 

know, first of all, doesn’t this Board sit as a quasi-judicial board, 

Mr. Bell? Would it sit as a quasi-judicial board? 

Mr. BELL. Quasi-judicial board? 

Mr. LATTA. Right, when it is making its rulings. And it has to 

hear from all the parties and it has to have the information come 

before the Board? 

Mr. BELL. I think the Commission as a whole has to make a decision—— 

Mr. LATTA. Right, but the Board makes the decision but is it 

quasi-judicial as it is doing this? 

Mr. BELL. Yes. 

Mr. LATTA. OK. And would you also say that the Commission 

needs to make timely actions on their actions when they have 

43 

something come before it? Because if you don’t, justice delayed is 

justice denied in these cases. Would that be a fair statement? 

Mr. BELL. Well, to think that within a certain time frame after 

anything has happened that you would have motions going forward 

to end whatever they are in the process of doing. 

Mr. LATTA. Yes, and also following along, then, when the Commission’s own internal procedures say the commissioners should 

vote within 10 business days and parties are waiting for the outcome, isn’t holding a vote unfair in that situation? 

Mr. BELL. Well, it seems unfair but there is no—I mean the voting processes are relaxed. It is not enforced the way it should be. 

Mr. LATTA. And I did find your report very, very interesting because on page 36 when you were talking about the chairman told 

the OIG he did not recall the email from his chief of staff advising 

him not to request an extension to vote and that he did not realize 

an extension was required on adjudicatory matters if a vote was 

not cast within 10 days. He said that the Commission does not always act in accordance with procedures. For example, the procedures say that the Commission votes on matters within 10 days, 

but then he goes on. He said that the Commission procedures are 

a guideline and not absolute rules, which take us back to what was 

being said here earlier, going back to the Reorganization Plan within Section 1, Section 2, you know, it really lays out what the Commission is supposed to be doing. Did the Commission act the way 

it should have been acting under its own rules and regulations. 

Mr. BELL. No. No. 

Mr. LATTA. OK. Going on. On page 29, again, this report is just 

fascinating. Page 29 when you were interviewing Commissioner 

Ostendorff talking about what was going on July the 11th, 2010, 

it says the general counsel, again, the general counsel—the attorney—told Commissioner Ostendorff that it was his experience that 

there were certain issues that the chairman does not want to hear 

from him on. He goes on to say ‘‘the conversation left him with the 

impression that there was possibly not an open environment for 

OGC to provide unfiltered advice to the chairman without fear of 

retribution.’’ Is that the way that we have due process being carried out in one of our administrative boards or commissions here? 

You know, going back to the whole idea of due process and getting 

something done, did that occur under the policy of the Commission? 

Mr. BELL. That is what we were told. I mean this is what Commissioner Ostendorff said that the general counsel told him. Again, 

I mean, you know—— 

Mr. LATTA. OK. And again, in your opening statement, again, 

you know, intriguing. Page 7, again, in your opening statement, 

you know, it is very interesting. The first full paragraph when you 

said in the second line ‘‘OIG also found that although the chairman 

had authority to direct staff to follow the FY 2011 budget guidance, 

he was not forthcoming with other commissioners about his intent 

to stop work on the SER as part of the implementing of his closeout 

activities.’’ So again, is that proper procedure under the law and 

under what they have as their rules and regulations at the NRC? 

Mr. BELL. No. 

Mr. LATTA. OK. And just real briefly, you know, when you are 

saying ‘‘not forthcoming,’’ and I think the term by one of my fellow 

44 

colleagues appears something about being misled, you know, are 

we talking about a word that we should be using is a lie, to mislead? Is it a lie to not be forthcoming or are we just talking about 

what some people like to talk about back home—they call it a lie 

back home but here we are talking about a white lie? 

Mr. MCMILLAN. That is for a characterization, is a white lie or 

an outright—it was clear that the commissioners that spoke with 

the agents conveyed the fact that they did not have all the information to believe that that SER was going to be stopped as a part of 

that budget guidance memorandum. That is factually what we 

were told by each of those commissioners that we interviewed. 

Now, the characterization as to his intentions behind it, his mens 

rea thoughts about it, we didn’t get into that quite frankly with regard to—what we were trying to do was line up what occurred 

when and how did this document get out without their concurrence 

if you would. And that is what they told us is that they had no 

knowledge that the SER was going to be stopped. 

Mr. LATTA. Thank you. Mr. Chairman, I see my time is expired 

and I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. The chair is 

going to ask unanimous consent that Mr. Markey be recognized for 

5 minutes. Without objection, so ordered. 

Mr. MARKEY. Thank you, Mr. Chairman, very much. 

I find it highly ironic that we are having a hearing to express 

the majority’s apparent surprise that matters related to Yucca 

Mountain are sometimes political. This issue has been nothing but 

political from the very beginning. The Department of Energy was 

supposed to select two scientifically appropriate sites, one east of 

Mississippi and one west of Mississippi River. But the Speaker of 

the House then said he didn’t want it in Texas. That was one of 

the sites. The second site was in Washington State. The majority 

leader came from Washington State. He said I don’t want it in 

Washington State. It was out. The third state was the salt domes 

in Louisiana. The chairman of the Committee on Energy from the 

Senate said I don’t want it in Louisiana. The fourth site was in 

North Carolina. The ranking Republican on this committee said I 

don’t want it in North Carolina. Mississippi itself was a potential 

site, but they had a very powerful delegation at that time and they 

said we don’t want it in Mississippi. 

And John Sununu as the Governor of New Hampshire on behalf 

of George Bush running for president in ’88 said we don’t want it 

in the granite formations of New Hampshire. And so the nuclear 

queen of spades wound up—not on a scientific basis but a political 

basis—political, political, political—in Nevada. That is how it all 

happened. I was here. I was saying you make a political decision 

you are going to wind up with big scientific problems at the end 

of the day, big scientific problems. So Congress actual—this committee barred the Department of Energy from looking at any other 

site other than Yucca Mountain. We used political science, not real 

science to hand that nuclear queen of spades to Nevada. That is 

the legacy this committee left. 

The problem is that Yucca Mountain has two fault lines running 

through it and is in an active earthquake zone. There have been 

more than 600 earthquakes within 50 miles of the site within the 

45 

past 20 years. We saw just how earthquakes can impact spent nuclear fuel in Japan just a few months ago. Moreover, in 1997 scientists found that plutonium from nuclear weapons tests that had 

been conducted just a few decades earlier had migrated a mile 

through water in the rock near Yucca Mountain, which contradicted earlier assertions that the repository site was geologically 

isolated from the water table. 

So basically what we had was Congress writing a law that Yucca 

Mountain was a nuclear Alcatraz from which there could be no migration of this nuclear material. But scientists said it was more 

like a nuclear sieve. And we heard that from the National Academy 

of Sciences back then in 1987 and ’86. We heard that from them 

here, but this committee and other committees ignored that warning. 

The Obama Administration bravely recognized that moving forward with Yucca Mountain was not the scientifically appropriate 

direction to take. DOE withdrew its license application and Congress started to slash funding for the project. Chairman Greg 

Jaczko then did what any permitting office would do when a building plan is cancelled. He stopped spending money processing the 

permit. Although members of this committee have accused him of 

doing something illegal, the NRC Inspector General and general 

counsel have both found that it was legal and entirely within his 

authority to do so. 

Mr. Bell, you said earlier that Chairman Jaczko’s press release 

on your report was his alone and you had no input, but isn’t it true 

that you and your deputy saw this statement before it went out 

from Chairman Jaczko and you told the chairman’s chief of staff 

that you had no objections. Is that true? 

Mr. BELL. No, that is not true. I read the statement but I said 

that was his statement. We made no changes, nothing to the statement. I just saw the statement because he said he was going to put 

it out. 

Mr. MARKEY. Did you say you had an objection to him putting 

it out? 

Mr. BELL. I said I didn’t oppose him to releasing the statement. 

Mr. MARKEY. You did not oppose him in putting out that statement? 

Mr. BELL. No. I mean—— 

Mr. MARKEY. OK. Great. So in finding, number one, you said two 

of the commissioners didn’t understand that when the chairman 

told him that he would be using the appropriations process to proceed with closure of the Yucca Mountain program, this meant the 

documents necessary for the Yucca Mountain license would cease 

being prepared. On page 23, your report notes that when Chairman 

Jaczko suspected that one of the commissioners didn’t understand 

the discussion they had, he directed his staff to follow up with the 

commissioner’s staff to be sure it was clear. Do you believe that 

Chairman Jaczko is responsible for a failure by other commissioners to understand their support for a document that said it 

would begin the closure of Yucca Mountain’s technical review and 

adjudicatory activities when the license application was withdrawn 

even after he tried to explain it to him? 

46 

Mr. MCMILLAN. Clearly, he said Chairman Jaczko is irresponsible. 

Mr. MARKEY. Is it his fault they didn’t understand it. 

Mr. MCMILLAN. He had a responsibility to ensure that they understood the content of the four squares of that piece of paper. And 

if they are saying—and what they related to us during the interviews was they never came to understand that the SER—and I 

think sometimes those are differences—— 

Mr. MARKEY. Can I tell you the truth? I have a hard time when 

two commissioners on the Nuclear Regulatory Commission can’t 

understand something this prosaic, this simple, when they have to 

understand the most complex nature of nuclear materials. So to 

say that they didn’t understand something so fundamental, OK, as 

to the way in which the regulatory process works, in my opinion 

they did not do their job. They had a responsibility after they were 

told that that was the route that they were going to go. 

Mr. SHIMKUS. The gentleman’s time is expired. 

Mr. MARKEY. I thank the chairman. 

Mr. SHIMKUS. The chair now recognizes Mr. Harper for 5 minutes. 

Mr. HARPER. Thank you, Mr. Chairman. 

Mr. Bell, when the staff reported in March of 2010 to the Commission about their plans for completing the Yucca Safety Evaluations and tight budget constraints, their plans were to complete 

Volume I and Volume III of the SER not later than, I believe, August and November of 2010 respectively. Is that correct? 

Mr. BELL. That is correct, sir. 

Mr. HARPER. Now, according to your report, the EDO and technical staff believed that even if DOE were to withdraw the application, it would benefit the country to have completed the technical 

review. Is that correct? 

Mr. BELL. That is correct, sir. 

Mr. HARPER. The most critical portion of the technical review, 

the SER Volume III was almost complete and on track to be completed well before November according to staff. Is that correct? 

Mr. BELL. Yes. 

Mr. HARPER. Completion by the end of August is consistent with 

a not-later-than-November schedule reported to the Commission in 

March, isn’t it? 

Mr. MCMILLAN. Sir, just on that last question—— 

Mr. HARPER. Yes? 

Mr. MCMILLAN [continuing]. With regards to the completion, that 

was not necessary concurrence and approval. OK. While it might 

very well have been completed by the staff to be forwarded up, it 

still had to go through a concurrence process including OGC, so I 

just want to make sure we clarified that point. 

Mr. HARPER. Certainly. Thank you. 

Mr. MCMILLAN. Thank you. 

Mr. HARPER. But when the chairman learned that the report 

could be ready in August before the fiscal year, is it true that he 

inserted himself into the process in June and directed staff to slow 

down? 

47 

Mr. MCMILLAN. He directed the staff to maintain the current 

published schedule with regards to the release of the various products. 

Mr. HARPER. OK. But did he not in fact—did you have an addition to that? 

Ms. RASPA. I would just note that the August time frame was for 

Volume I. It was not for Volume III. Volume III was anticipated 

in November. However, the majority of the work had been done 

and they believed they could get both volumes ahead of schedule. 

Mr. HARPER. OK. But in fact—— 

Mr. SHIMKUS. Would the gentleman yield just for a second? 

Mr. HARPER. Yes. 

Mr. SHIMKUS. Which is amazing that a government agency would 

be good enough to move quickly instead of being way behind. So 

in that aspect I would applaud the NRC for being prompt. 

Mr. HARPER. And I will go back, Mr. Bell, and ask this. In fact, 

though, the chairman did direct staff to issue the SER Volume III 

not earlier than November. Isn’t that correct? 

Ms. RASPA. His June 11 memorandum speaks to not issuing Volume I prior to schedule. It does also speak about other volumes but 

only Volume I is specifically identified as not being released prior 

to August. 

Mr. HARPER. OK. But prior to November was Volume III. 

Ms. RASPA. Volume III was due in November, correct. 

Mr. HARPER. Now, was the impact of his actions in the SER Volume III would not be completed by what date? Did you say October 

1? 

Ms. RASPA. November. 

Mr. MCMILLAN. November. 

Mr. HARPER. November, OK. Now, as your report on page 27, 

when senior staff discussed the chairman’s actions to slow the completion of the SER, they indicated to the chairman that it would 

be contrary to the Agency’s value of openness and transparency to 

slow down that work. Is that correct? 

Ms. RASPA. Our report reflects that one manager told us that, 

correct. 

Mr. HARPER. So at least one commissioner also warned the chairman that it was not a good idea to slow the process, is that correct? 

Mr. MCMILLAN. Yes. 

Ms. RASPA. One commissioner, yes, also agreed that it shouldn’t 

be slowed. 

Mr. HARPER. Did the chairman listen to the senior staff or other 

commissioners and allow the staff review to continue at the same 

pace the staff themselves had set? 

Ms. RASPA. No. 

Mr. HARPER. The staff also informed the Commission in March 

30, 2010, that it planned to continue to work on any remaining 

SER volumes until fiscal year 2010 funds were exhausted, is that 

correct? 

Mr. MCMILLAN. Correct. 

Mr. BELL. Yes. 

Mr. HARPER. Were those funds exhausted by November of 2010? 

Ms. RASPA. No, they were not. By the end of the fiscal year 2010 

there was approximately $7 million remaining. 

48 

Mr. HARPER. OK. And, in fact, according to your report, the NRC 

staff including the EDO assumed as late as mid-September that 

the CR guidance would allow for continuing the license review with 

those available funds as you said. So the draft EDO CFO memos 

of mid-September bear this out. So despite the chairman’s instructions to slow down, staff planned to continue work using those fiscal year 2010 funds. But the chairman changed that. That is where 

we are, right? 

Ms. RASPA. The senior staff always anticipated that they would 

be able to complete certain volumes and they were relying on fiscal 

year 2010 funds to do that. 

Mr. HARPER. So this was the chairman’s strategy to slow-walk 

these critical reports to October, early November, and then use his 

budget authority to ensure the staff’s findings would not be made 

public. Is that correct? 

Mr. MCMILLAN. I think the report is reflective of the fact that 

once they got into budget space, you would have to use another 

mechanism by which to change the course. And since you did have 

the budget guidance memorandum that everyone was complying 

with, it would have taken a COM at that juncture then to move 

it over into policy space. 

Mr. HARPER. My time is almost up. Let me ask this question. Did 

your investigation examine whether the chairman’s actions were 

directed by or coordinated with the White House or Senator Harry 

Reid? 

Mr. MCMILLAN. We had no indications or inferences by anyone 

that came to us that assured us or stated to us that that occurred. 

Mr. HARPER. My question was did you examine that possibility? 

Did you look into that with any of the witnesses? 

Mr. MCMILLAN. There was nothing that would lead us to that 

from the information of the interviews that we conducted where 

anyone stated that at all so we didn’t go and probe any further in 

that regard. We stayed within regards to the allegation that was 

proffered to us. And no one said that there was any interference 

by the White House at all. 

Mr. HARPER. Right. But did you ask? 

Mr. MCMILLAN. I want to get back with you on that one particular point just to ensure in our notes, but I just want to assure 

you that it never came up. 

Mr. HARPER. OK. But my question is did you ask it through any 

communications along the lines of what I just inquired? 

Mr. MCMILLAN. I would have to get back with you with regard 

to that specific question. 

Mr. HARPER. Thank you. With that, I yield back. 

Mr. SHIMKUS. The gentleman’s time has expired. The chair now 

recognizes the gentleman from Louisiana, Mr. Cassidy, for 5 minutes. 

Mr. CASSIDY. Thank you. Now, I appreciate Mr. Markey’s efforts 

to defend his former employee, but he alleged that maybe those 

other commissioners were derelict in their responsibility of learning 

as much as they could learn. Did you find any evidence of dereliction of duty in learning other issues by the other commissioners? 

Mr. MCMILLAN. Again, I think it was clear that when the commissioners were interviewed by our office, they were very conVerDate Nov 24 2008 10:41 Jan 05, 2012 Jkt 037690 PO 00000 Frm 00052 Fmt 6633 Sfmt 6633 F:\112-061 NRC YUCCA REVIEW-SUBMITTED FOR REVIEW 12-23\112-61 NRC YUCCA R
49 

cerned by the fact that they felt they did not have all the information. 

Mr. CASSIDY. OK. Now earlier I think you, Mr. Bell, mentioned 

that the senior staff felt constrained in conveying information to 

the other commissioners. But just to be clear, would they have been 

constrained without instructions from the chairman as to what to 

communicate? Would they on their own have said oh, we shall be 

constrained because whatever or would it have been a directive 

from their chairman to not communicate certain issues? 

Mr. BELL. Well, I think it was pretty common knowledge that 

any communications that went back to the chairman had to go 

through the chairman’s office. 

Mr. CASSIDY. So the constraint would have come from the chairman. 

Mr. BELL. It was just the way this chairman has elected to do 

business, that if it is not a policy issue and his office can control 

whatever it was, whatever request commissioners made, whether it 

be the budget or otherwise. Before the commissioners got an answer, it had to be vetted through the chairman’s office. 

Mr. CASSIDY. So ultimately, just in a word, it was the chairman’s 

responsibility. It was the chairman who was doing the restraining? 

Mr. BELL. Correct. 

Mr. CASSIDY. Correct. Now, you know, I have been here for 3 years and I look at taxpayers who just see $15 billion frittered 

away and I have to ask, although you are clear that he may have 

been within the letter of the law—there is a question of fact and 

we can’t resolve this question of fact—do you think he was within 

the spirit of the law in terms of the Reorganization Act and was 

he within the spirit of the law communicating to his fellow commissioners that which they needed to know? 

Mr. BELL. Again, I think the chairman was given just enough information for them to understand what he wanted to do. 

Mr. CASSIDY. Now, again, is that within the spirit of the law as 

originally—I mean, I can imagine somebody writing the law way 

back when. How do we account for a control freak who decides to 

only define as policy issues those things which are relatively unimportant, to define others as budget issues, and then to be selective 

in presentation. That would be very hard to write a statute to exclude what someone attempts to do. Was he within the spirit of the 

law in terms of communication with his fellow commissioners? 

Mr. MCMILLAN. That, in fact, could be called into question as to 

whether or not he was within the spirit of the law as designed for 

an open collaborative engagement with the other commissioners. 

Mr. CASSIDY. Now, as regards this question of fact because earlier, ma’am, you had mentioned it is a question of fact. The EDO 

suggests that he was told by the chairman not to do something but 

the chairman does not recall. A little bit of a dodge, but let us give 

it to him. Now, I have been deposed before and I watch law programs on TV. There is a milieu in which people try to establish 

which side of the question of fact is most likely true. Is there a pattern on one side of duplicity, of hiding, of ignoring the spirit of the 

law, again, doing whatever you can to avoid certain outcomes. Does 

this person have a motivation to not recall or is there, on the other 

side, such motivation? Now, it does seem as if, as I look at this 

50 

question of fact, I am much more likely to believe the EDO and I 

am much more likely to think that if this were to go to some sort 

of judicial proceeding that the judge would be more likely to believe 

the EDO. Do you have any thoughts on that? 

Mr. BELL. I don’t have any thoughts. 

Mr. CASSIDY. OK. Now, lastly, I see that in these confirmation 

hearings before the Senate in 2005, Mr. Jaczko said that he was 

going to recuse himself from all issues regarding Yucca Mountain 

for a year, and at that point he was hopeful to have demonstrated 

that he would absolutely be fair and objective and that there would 

not longer be a need to recuse himself. In your opinion, do the actions of the chairman indicate that he has been fair and objective 

regarding the Yucca Mountain issue? 

Mr. BELL. Well, I think the time frame that he referred to was 

when he was a commissioner—— 

Mr. CASSIDY. Yes? 

Mr. BELL. [continuing]. And during that time frame, anything 

with Yucca Mountain he did recuse himself from. 

Mr. CASSIDY. But that is not my question. My question is he said 

he did not need to recuse himself from consideration of Yucca 

Mountain issues throughout his entire tenure on NRC because he 

had proven himself to be fair and objective. I think that is fair and 

objective kind of like Fox News. Has he proven himself to be fair 

and objective in your opinion regarding Yucca Mountain? 

Mr. BELL. Well, not in terms of the information-sharing aspect 

of it anyway. 

Mr. CASSIDY. OK. 

Mr. MCMILLAN. Also, sir, I wanted to clarify the questions you 

asked previously about direction from the White House. We did, in 

fact, ask that question and no one indicated that there was any direction from the President or the White House to close the program. That question was, in fact, asked. 

Mr. CASSIDY. Thank you. I will yield back. 

Mr. GREEN. I was just going to say, Mr. Chairman, one, I didn’t 

know it was so easy to get a law license. I watch it on TV. But I 

would agree that this chairman might be as fair and objective as 

Fox News is. 

Mr. SHIMKUS. We thank the ranking member for that interrogatory there. 

We do want to thank you for coming. We do appreciate the effort 

that you did and the position that you hold within the NRC is a 

tough position because you are checking up on yourself. And so we 

know you have worked diligently and we do appreciate it. And I 

want to thank you for coming and for the members who have participated and their devotion to the hearing today. 

The committee rules provide that members have 10 days to submit additional questions for the record to the witnesses. And then 

if you then receive those, if you would reply to us, we would appreciate that. 

Again, thanking you for your attendance, the hearing stands adjourned. 

[Whereupon, at 11:53 a.m., the subcommittee was adjourned.] 

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