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THE ROLE OF THE NUCLEAR REGULATORY 

COMMISSION IN AMERICA’S ENERGY FUTURE 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND THE 

ECONOMY 

AND THE

SUBCOMMITTEE ON ENERGY AND POWER 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

MAY 4, 2011 

Serial No. 112–43 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

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 

(II) 

(III) 

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) 

SUBCOMMITTEE ON ENERGY AND POWER

ED WHITFIELD, Kentucky 

Chairman 

JOHN SULLIVAN, Oklahoma 

Vice Chairman 

JOHN SHIMKUS, Illinois 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MICHAEL C. BURGESS, Texas 

BRIAN P. BILBRAY, California 

STEVE SCALISE, Louisiana 

CATHY MCMORRIS RODGERS, Washington 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

H. MORGAN GRIFFITH, Virginia 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

BOBBY L. RUSH, Illinois 

Ranking Member 

JAY INSLEE, Washington 

JIM MATHESON, Utah 

JOHN D. DINGELL, Michigan 

EDWARD J. MARKEY, Massachusetts 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

CHARLES A. GONZALEZ, Texas 

HENRY A. WAXMAN, California (ex officio) 

(V) 

C O N T E N T S 

Page 

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

opening statement ................................................................................................ 2 

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

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

of Kentucky, opening statement ......................................................................... 5 

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

Hon. Bobby L. Rush, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 8 

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

opening statement ................................................................................................ 9 

Prepared statement .......................................................................................... 11 

Hon. Joe Barton, a Representative in Congress from the State of Texas, 

opening statement ................................................................................................ 13 

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

California, opening statement ............................................................................. 13 

Hon. Cory Gardner, a Representative in Congress from the State of Colorado, 

prepared statement .............................................................................................. 107 

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

prepared statement .............................................................................................. 109 

WITNESSES

Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission ........................ 15 

Prepared statement .......................................................................................... 18 

Kristine L. Svinicki, Commissioner, Nuclear Regulatory Commission ............... 32 

Prepared statement 1 ........................................................................................

William D. Magwood, Commissioner, Nuclear Regulatory Commission ............. 33 

Prepared statement 1 ........................................................................................

William C. Ostendorff, Commissioner, Nuclear Regulatory Commission ........... 35 

Prepared statement 1 ........................................................................................

SUBMITTED MATERIAL

Letter, dated April 27, 2011, from Drs. Jeanne Hardebeck and Thomas 

Brochur, U.S. Geological Survey, to James D. Boyd, Commissioner, California Energy Commission, submitted by Mrs. Capps ...................................... 57 

Nuclear Regulatory Commission memo, dated October 8, 2010, from Commissioner Ostendorff to Chairman Jaczko and Commissioners Svinicki, 

Apostolakis and Magwood, submitted by Mr. Inslee ......................................... 67 

Nuclear Regulatory Commission Internal Commission Procedures, submitted 

by Mr. Griffth ....................................................................................................... 75 

1Ms. Svinicki, Mr. Magwood and Mr. Ostendorff did not submit prepared 

statements. Mr. Jaczko’s statement was submited on behalf of the Commission. 

(1) 

THE ROLE OF THE NUCLEAR REGULATORY 

COMMISSION IN AMERICA’S ENERGY FUTURE 

WEDNESDAY, MAY 4, 2011 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY, 

JOINT WITH

SUBCOMMITTEE ON ENERGY AND POWER, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittees met, pursuant to call, at 9:38 a.m., in room 

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

(chairman of the Subcommittee on Environment and Economy) presiding. 

Members present from Subcommittee on Environment and Economy: Representatives Shimkus, Murphy, Pitts, Bass, Latta, 

McMorris Rodgers, Harper, Cassidy, Gardner, Barton, Upton (ex 

officio), Green, Barrow, DeGette, Capps, Dingell, and Waxman (ex 

officio). 

Members present from Subcommittee on Energy and Power: Representatives Whitfield, Walden, Terry, Burgess, Scalise, McKinley, 

Pompeo, Griffith, Rush, Inslee, Markey, and Engel. 

Other Members present: Frelinghuysen and Simpson. 

Staff present: Charlotte Baker, Press Secretary; Michael 

Beckerman, Deputy Staff Director; Sean Bonyun, Deputy Communications Director; Anita Bradley, Senior Policy Advisor to Chairman Emeritus; Maryam Brown, Chief Counsel, Energy and Power; 

Aaron Cutler, Deputy Policy Director; Andy Duberstein, Special Assistant to Chairman Upton; Garrett Golding, Professional Staff 

Member, Energy and Power; Dave McCarthy, Chief Counsel, Environment/Economy; Katie Novaria, Legislative Clerk; Chris Sarley, 

Policy Coordinator, Environment and Economy; Peter Spencer, Professional Staff Member, Oversight; Tiffany Benjamin, Democratic 

Investigative Counsel; Alison Cassady, Democratic Senior Professional Staff Member; Greg Dotson, Democratic Energy and Environment Staff Director; and Caitlin Haberman, Democratic Policy 

Analyst. 

Mr. SHIMKUS. I would like to call the hearing to order and try 

to move promptly as scheduled. Welcome to the Commissioners. I 

also, before I start with my opening statement, I would like to recognize and acknowledge Congressman Rodney Frelinghuysen from 

New Jersey who is the cardinal in the Appropriations Committee, 

Energy and Water. He is watching to see if we actually work, so 

we will show you that we do a lot of work here, Rodney. Welcome. 

2 

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

And now I would like to recognize myself for my 5 minutes. Nuclear power is vital to our economy, particularly in my home State 

of Illinois, which boasts 11 operating nuclear reactors at six different locations. That is why the Nuclear Regulatory Commission 

plays a crucial role in ensuring that we meet our current and future energy needs without sacrificing safety or security. Licensings 

of new plants and new reactor designs, relicensing existing reactors 

and considering the Department of Energy’s application for a license to develop and operate a repository or storage site for spent 

fuel and high-level waste that is away from reactor sites are all 

issues that the NRC Commissioners are called upon to weigh and 

decide using their best information, judgment, and expertise. 

No one wants the NRC to rubber stamp any of these license applications. We want the NRC instead to give each one the careful 

scrutiny that it deserves and only approve the applications that 

meet the rigorous safety and security standards that the Commission itself establishes. But that means we expect the NRC to consider the applications and not just sit on them. 

We also expect all Commissioners to be fully engaged in the policy decisions before the NRC, and right now, we are not convinced 

Chairman Jaczko is respecting the roles of his fellow Commissioners as he should. This is deeply concerning to this committee 

and should be to the nation as a whole. For any amateur mind 

readers out there on or off the Commission, I want to be clear: Do 

not read into any of my remarks or questions a preference for a 

particular thumbs-up or thumbs-down on any adjudicatory matter 

before the Commission. 

You Commissioners have the expertise. I only ask that the Commission follow its own established procedures, take up the work 

federal law assigns to you, and, when data are in, come to some 

explicit and timely resolution. I am not confident we are getting 

that today. 

With that, I want to welcome all the Commissioners here with 

us today and look forward to hearing more details on their individual roles and the process for decision making at the Commission. And I would like to yield my remaining time to my colleague, 

Mr. Whitfield from Kentucky. 

[The prepared statement of Mr. Shimkus follows:] 

3 


71667.001
4 


71667.002
5 

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

Mr. WHITFIELD. Thank you very much, and I also want to welcome the Commissioners to be here with us today. We look forward 

to your testimony, and all of us are very much concerned about 

what has happened in Japan as it relates to nuclear power, and we 

recognize that you have a very important role to play in guaranteeing the safety as much as possible of the nuclear power plants 

in the U.S. so that the American public feels comfortable that we 

do have a safe system. 

We also recognize that with increasing electric demand in this 

country, increasing by 50 percent by the year 2035, nuclear power 

is going to have a vital role to play. And as a part of that, how we 

get rid of the waste is another important issue. 

And so I would like to reiterate what Chairman Shimkus said, 

and that is that it is important that some decision be made at the 

NRC in a way that all of us clearly understand because when we 

have spent billions of dollars on the Yucca Mountain Project, for 

example, and then we have contractual obligations with nuclear 

power plants that we will get rid of their waste, and they are filing 

lawsuits against the government and obtaining judgments against 

the government in the billions of dollars, this is an issue that needs 

to be resolved in some way. 

And so I look forward to hearing your testimony about the procedures used at the agency to deal with significant issues like this. 

And although it is not—well, I will yield. The gentleman from 

Texas had asked for some time. I yield the remaining time to you. 

[The prepared statement of Mr. Whitfield follows:] 

6 


71667.003
7 


71667.004
8 

Mr. BURGESS. Well, and I thank the chairman for yielding. Last 

week, I did join Chairman Shimkus on a trip to Yucca Mountain, 

and certainly it was instructive to see the facility where so much 

has been invested by the government and private industry. And as 

has been stated before, after the events in Japan, the pressing need 

for a sustainable, long-term answer to our nuclear fuel storage is 

critical. 

I recently introduced legislation to encourage ideas for long-term 

storage. The Nuclear Used Fuel Prize Act would incentive private 

industry to come up with ideas for long-term storage. I hope that 

this hearing will highlight the need for legislation similar to this 

and ideas that can and will be offered to solve the problem of nuclear waste storage so we can move forward to a more sustainable 

future with nuclear energy at the forefront of America’s Energy 

Arm of Interium. Thank you, Mr. Chairman. I will yield back. 

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

recognizes the chairman emeritus, if he is ready, Mr. Waxman. The 

chair recognizes Mr. Rush for 5 minutes. 

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

Mr. RUSH. Well, I want to thank you, Mr. Chairman, and I want 

to thank the Commissioners for being here today. Although the 

devastating events that happened in Japan have been swept from 

the front pages in recent weeks, and I might add recent days, I can 

assure you that my constituents still have a very real concern regarding nuclear safety. 

In Illinois, we house more nuclear reactors than any state in the 

country, and my constituents want to be assured that the NRC 

have in place common sense protocols for mitigating risks of nuclear disasters, as well as for seniors to safeguard the public in the 

event that a disaster occurs. 

When I visited the Dresden generating station in northern Illinois back in March, I learned that there were some very important 

distinctions in our nuclear safety protocols as compared to Japan. 

But there also was some concerns raised that I look forward to addressing here today. 

I was pleased to learn that U.S. nuclear facilities have multiple 

backup systems in place including underground and off-site locations. However, I do have some concerns regarding the placement 

of NRC resident inspectors and their closeness, I might add, in location in relationship to the facility managers that they are responsible for monitoring. 

While inspectors must have access to all key data and have the 

appropriate knowledge of the people running these facilities, I want 

to make sure that this familiarity does not lead to complacency or 

does not in any way cloud their judgment, their integrity, or their 

independence. 

Additionally, in Illinois, there are remote monitoring systems in 

place, both inside and outside the plants, that can quickly identify 

irregularities and alert officials in real time, which I believe needs 

to be replicated throughout the U.S. 

Another issue that will require a national solution is how and 

where we store the massive 72,000 tons of spent fuel rods that a 

9 

recent AP report found are located at nuclear reactor facilities 

throughout the U.S. I am curious to get your expert opinion on 

whether storing these rods in wet pools or dry cast is the safer option for long-term storage. And should these rods be stored above 

ground or in secure underground casts to mitigate risks? 

And finally, I also believe we must develop a comprehensive, 

long-term solution for storing these spent fuel rods as well as a 

plan for secure transportation of these rods when a location is identified. 

While I believe nuclear power must be a vital part of our country’s overall energy portfolio, we must ensure that we have the best 

systems and practices in place to safeguard against an unforeseen 

nuclear accident to prevent widespread disaster like that which is 

unfolding in Japan. My constituents in Illinois as well as the larger 

American public expects us to address these pressing issues. So I 

look forward to discussing these issues more in-depth with the 

Commissioners during the questioning session. And with that, Mr. 

Chairman, I yield back the balance of my time. 

Mr. SHIMKUS. Gentleman yields back his time. Chair recognizes 

the chairman of the full committee, Chairman Upton, for 5 minutes. 

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

Mr. UPTON. Well, thank you, Mr. Chairman. I commend you and 

Chairman Whitfield for holding this joint hearing. I certainly welcome all the Commissioners who join us this morning and your 

able and highly dedicated staff who accompany you today. Despite 

your frustrations, you should know that the nation certainly appreciates your service. 

NRC must ensure nuclear power plants and other facilities under 

its watchful eye are built and operated safely and securely. At the 

same time, the NRC must ensure that the entities it regulates can 

provide the energy we rely on today and will need tomorrow. Safety, security, and economic success all depend upon each other. 

For more than 30 years, the NRC with its collegial commission 

structure has met that challenge fairly consistently. Commissioners 

have hailed from both political parties in a wide variety of professional backgrounds, and the staggered terms have ensured that 

there is always a good mix of veteran Commissioners and fresh, 

new perspectives to address the many challenging policies used 

that the Commission is charged with managing. 

These collegial structures has given us confidence that policy decisions made by the Commission, which often have safety and economic implications for decades or longer, are not subject to the 

passing political winds of a single administrator or even a single 

president. 

However, I am concerned that the deliberative process necessary 

for the NRC to develop its independence and technical judgments 

may be breaking down. And that has profound implications for the 

public trust in NRC’s policy making. 

After a quarter of a century of active involvement in nuclear energy policy, both oversight and legislation, I have developed an appreciation for the NRC’s independent judgment on important techVerDate Nov 24 2008 09:51 Jan 13, 2012 Jkt 037690 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 G:\PRINTING\HEARINGS FOR REVIEW--112TH\112-43.PDF WAYNE
10 

nical and safety matters. I have never asked a Commissioner to 

vote a particular way, and frankly I would never even suggest that 

I could or should influence how you vote on any matter because 

that is your job, and I respect your expertise. But as your authorizing committee chair, I want to know that the trains are running 

on time and all crew are on board. 

The NRC should appropriately serve as an independent, strong 

watchdog, actually a pit bull, to ensure safe nuclear power, should 

have all the tools necessary, even one, so that there is no chance 

of a Monday morning quarterbacking down the road. But it should 

not be so deliberative that it prevents any nuclear development due 

to unreasonable cost or delays. The industry needs to know the 

rules and when they comply, they are able to move forward. 

We also need to constructively deal with long-term nuclear 

waste. Simply shutting the doors on an already-spent $12 billion 

for Yucca is not acceptable, especially with no other alternative. We 

will explore these and other concerns during today’s hearings and 

beyond. We will not let up until our oversight duties are fulfilled 

and either the Commission convinces us that it is operating the 

way the Congress intended, or we change the law to ensure that 

it does. And I yield the balance of my time to Mr. Barton. 

[The prepared statement of Mr. Upton follows:] 

11 


71667.005
12 


71667.006
13 

OPENING STATEMENT OF HON. JOE BARTON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. BARTON. Thank you, Mr. Chairman. I want to thank our 

Commissioners and the chairman of the NRC for being here today. 

As you all know, the NRC has the responsibility to establish and 

enforce the safety and security standards for all civilian applications of nuclear technology. It is a congressionally-mandated mission. It has to license and regulate the Nation’s civilian use and byproducts, source, and special nuclear materials to ensure the adequate protection of the public health and safety, to promote the 

common defense and security of the environment. 

To quote some of you, your own Commissioner’s statements, this 

is from Commissioner Peter Lyons. ‘‘In my view, without the nuclear powers industry’s continued perseverance toward adequate 

safety and security, nuclear energy will not play a future role, and 

our nation will have an immense energy shortfall.’’ It is my understanding that all the Commissioners before us today share that 

view. 

Commissioner—is it Svinicki? Am I close? Svinicki. You quoted 

the Principles of Good Regulation that were issued by the Commission in 1991, and I quote. ‘‘There are fundamental guideposts to ensuring the quality, correctness, and consistency of our regulatory 

activities.’’ You went on to say that you believe the principles articulate the standards by which the regulated community and the 

broader public is asked to judge the NRC as a regulator and as an 

institution that is charged with ensuring the public trust. 

Back in 1982 when I was a White House fellow at the Department of Energy, I worked on a bill which became law called the 

Nuclear Waste Policy Act 29 years ago. It established procedures 

for establishing a permanent underground repository for high-level 

nuclear radioactive waste. 1987, as a young congressman, I helped 

to amend the NWPA to designate Yucca Mountain as the only site 

to be characterized as a permanent repository. 

As chairman of this committee back in 2005, I was told in no uncertain terms that the NRC would fulfill its mission, would look at 

that proposed license, and would make a decision in a timely fashion. Yet here we are today in 2011, and that license application is 

still pending at the NRC and has not been acted upon in a definitive way. In this member’s opinion, that is simply unacceptable. 

I want to thank the Commissioners for being here today but 

point out to my friends on the minority side that we have four of 

the five here, so it is possible to get people to appear before this 

committee. With that, I yield back, Mr. Chairman. 

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

recognizes Chairman Emeritus Waxman for 5 minutes. 

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

Mr. WAXMAN. Thank you very much, Mr. Chairman. The mission 

of the Nuclear Regulatory Commission is to license and regulate 

the Nation’s civilian use of nuclear materials to ensure adequate 

protection of public health and safety, to promote the common defense and security, and to protect the environment. Today, we will 

14 

have the opportunity to hear from four of the five NRC Commissioners about their efforts to carry out this mission. 

It is an important time for NRC and for America’s nuclear energy industry. First, the Nation’s fleet of reactors is proposed to 

grow. Utilities have submitted license applications to NRC to build 

26 new nuclear reactors. 

Second, America’s strategy for storing nuclear waste is at a 

crossroads. The president has determined that the Yucca Mountain 

Facility is not workable and has created a blue-ribbon commission 

to review alternatives for storing, processing, and disposing of 

spent nuclear fuel and nuclear waste, and that report is due out 

next summer. It will help guide us on how to use 21st century technology to safely store the country’s nuclear waste. 

And third, the world is facing the most serious nuclear disaster 

in decades. NRC is continuing to review the safety of American nuclear reactors in light of what happened at the Fukushima Power 

Plant in Japan. It is too soon to say with certainty what caused the 

accident in Japan and what role, if any, lax regulatory oversight 

of the industry played in the catastrophe. 

Here in the United States, we are not immune to catastrophic 

events resulting from regulatory failures as we saw with the 2008 

financial collapse and the BP oil spill. It is our duty to learn lessons from the Fukushima disaster and close any gaps in our oversight of America’s nuclear fleet. 

Mr. Chairman, I thank you for holding this hearing. The committee needs to be performing regular oversight hearings such as 

this one, and I look forward to the testimony from today’s witnesses. And I welcome them today at this hearing. Yield back the 

balance of my time. 

Mr. SHIMKUS. Gentleman yields back his time. Now again I 

would like to welcome the Commissioners. As Chairman Emeritus 

Waxman said, we have four of the five. One is traveling overseas, 

so that is why we don’t have them all. And the history of many 

members of this committee, we probably haven’t had the NRC 

Commissioners here for over a decade. It is timely that we do it, 

but we actually put this in place prior to the Japan event. We were 

planning to have you all here. We are glad that you are here. 

It is my understanding that one opening statement will be made 

by the Commissioner, and then we will then go into our 5-minute 

questions. 

The comment is that the submitted statement for the record was 

a Commission-reported submission. Then everybody else will have 

a chance to make oral remarks. So with that, I would like to recognize Chairman Jaczko for 5 minutes. 

15 

STATEMENTS OF GREGORY B. JACZKO, CHAIRMAN, NUCLEAR 

REGULATORY COMMISSION; KRISTINE L. SVINICKI, COMMISSIONER, NUCLEAR REGULATORY COMMISSION; WILLIAM D. 

MAGWOOD, IV, COMMISSIONER, NUCLEAR REGULATORY 

COMMISSION; AND WILLIAM C. OSTENDORFF, COMMISSIONER, NUCLEAR REGULATORY COMMISSION 

STATEMENT OF GREGORY B. JACZKO 

Mr. JACZKO. Well, thank you, Mr. Chairman, Ranking Member 

Rush and members of the subcommittee. 

Mr. SHIMKUS. Chairman Jaczko, check the microphone again. 

Make sure it is pulled close. 

Mr. JACZKO. Is it on now? 

Mr. SHIMKUS. Yes, sir. 

Mr. JACZKO. I will start again. Mr. Chairman, Ranking Member 

Rush, members of the subcommittees, the chairman and ranking 

members of the full committee, my colleagues and I are honored to 

appear before you today on behalf of the U.S. Nuclear Regulatory 

Commission. As Chairman Shimkus indicated, Commissioner 

Apostolakis is unable to be here because of travel, and he asked me 

to convey his regrets that he was not able to attend today. 

For the first time since 2007, the Commission is operating with 

five members, and I am grateful for my colleagues for their experience and expertise that they have brought to our discussions and 

deliberations. 

Since I previously testified before you, I have traveled to Japan 

to convey a message of support and cooperation on behalf of the 

agency to our counterparts there. While meeting the demands of 

the Japan situation, our staff has also remained focused on our essential safety and security mission, and I want to recognize their 

tireless efforts and dedication. We are very proud of their work. 

The NRC continues to characterize the status of the Fukushima 

site as static. While we have not seen or predicted any new significant safety challenges, we have only seen incremental improvements towards stabilizing the reactors and spent fuel poles. 

Given the devastating conditions at the site due to the earthquake, tsunami, and hydrogen explosions, progress, while being 

made, is very challenging as important equipment and structures 

were either damaged or destroyed in the event or are not accessible 

due to high radiation fields. The government of Japan and the nuclear industry are providing significant resources and expertise to 

address the situation, and we will continue to provide support as 

needed. 

Our agency has a responsibility to the American people to undertake a systematic and methodical review of the safety of our domestic facilities in light of the natural disaster and the resulting 

nuclear situation in Japan. This review must be coupled with a 

sense of urgency, however, as there are likely lessons to be learned 

and changes we will need to make. 

On March 21, my colleagues on the Commission and I established a senior level agency task force to conduct a comprehensive 

review of our processes and regulations to determine whether the 

agency should make additional improvements to our regulatory 

16 

system. This review will be conducted in both the short-term and 

the longer-term timeframe. 

NRC’s primary responsibility is ultimately to ensure the adequate protection of the public health and safety of the American 

people. Review of the current Japan information combined with our 

ongoing inspection and licensing oversight gives us confidence that 

the U.S. plants continue to operate safely. In the meantime, there 

has been no reduction in the licensing or oversight function of the 

NRC as it relates to any of our U.S. licensees. 

I would like to turn briefly to the recent accomplishments and future challenges of the agency. As a relatively small, independent 

federal agency with approximately 4,000 staff, we play a critical 

role in protecting the American people and the environment. We 

currently license, inspect, and assess the performance of 104 operating power plants as well as many fuel cycle facilities and research and test reactors. Furthermore, nuclear materials are in use 

at thousands of hospitals, universities, and other locations around 

the country. In each of these, users present different challenges for 

the NRC and requires that the NRC develop and sustain a diverse 

array of regulatory capabilities. 

The past year has been a challenging time. In 2010, we saw an 

increase in the number of automatic SCRAMS for a second consecutive year. At the current time, three plants still remain in column three of the reactor oversight process action metric, which is 

our primary tool for providing oversight and information about 

oversight of the facilities. 

We have also seen challenges with human performance and material degradation, incidents that have been made more significant 

than we have seen in some time. Recent events serve as a vivid reminder that we cannot become complacent and that we have not 

encountered all the different types of natural occurrences, equipment failures, and human performance deficiencies that could impact safety. 

Over the past year, the agency has made significant progress on 

a number of long-standing issues. The Commission revised and finalized the waste confidence rule, providing a measure of certainty 

in an important and high visibility area. The NRC has also recently taken steps towards closing out long-standing safety issues 

involving fire protection and containment sump issues known as 

GSI 191. 

At the same time, we have proceeded with a number of new reactor issues, including moving to public comment the ABWR and the 

AP1000 design certification amendments as well as making significant progress on the ASBWR design certification, also moving that 

to public comment, high tech maintenance and new reactor risk 

metrics. In other areas, our staff lead the inter-agency radiation 

source protection and security task force. The agency completed a 

comprehensive review of its enforcement policy, and we have made 

substantial progress in evaluating and enhancing our alternative 

dispute resolution program. 

And in keeping with our historic commitment to openness and 

transparency, the NRC implemented the president’s open government directive, adding new tools to strengthen and broaden public 

input and engagement. 

17 

Currently the NRC is actively reviewing 12 combined license applications to construct and operate new nuclear power reactors. 

Five different designs are referenced in these applications, and the 

NRC is currently reviewing the design applications for certification 

or amendment. 

The NRC is also performing safety security and environmental 

reviews of facility applications of uranium deconversion facility application and applications for new uranium recovery facilities. And 

as early as late summer, the Commission may conduct the first 

mandatory hearing on new reactor licenses since the 1970s. As we 

all know, issues related to Yucca Mountain have garnered considerable attention in recent months. The 2011 appropriations bill has 

been signed into law, and it provides $10 million for the NRC staff 

to complete the effort, to thoroughly document the staff’s technical 

review, and preserve as appropriate for publication and public use. 

Mr. Chairman, Ranking Members Rush and Green, and members 

of the subcommittees, this concludes my formal testimony today. 

On behalf of the Commission, thank you for the opportunity to appear before you, and we will be pleased, and I will certainly be 

pleased to answer any questions you may have. Thank you. 

[The prepared statement of Mr. Jaczko follows:] 

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Mr. WHITFIELD [presiding]. Well, Chairman Jaczko, thank you 

very much for your statement, and we certainly want to give the 

other Commissioners the opportunity to make any remarks that 

they may like. So, Commissioner Svinicki, I will recognize you for 

up to 5 minutes. 

STATEMENT OF KRISTINE L. SVINICKI 

Ms. SVINICKI. Thank you, Chairman Whitfield, Ranking Members Green and Rush, and members of the subcommittees for the 

opportunity to appear before you today. I appreciate that you have 

granted me a few minutes to express some individual perspectives 

as a member of the Commission regarding NRC’s role in the important energy issues before your subcommittees. Chairman Jaczko 

has addressed the breadth of the NRC’s ongoing activities in the 

written statement he has submitted on behalf of the Commission. 

The events at Fukushima in Japan are a sober reminder that nuclear technology is unique, and, as I have heard so many of my colleagues say since these events, it requires a total, absolute, and unwavering commitment to nuclear safety and our professional conduct. 

The NRC has initiated a systematic review of these events while 

maintaining its focus on the safety and security of nuclear materials and facilities here in the U.S. The NRC staff continues its 

work as well on the many routine licensing, rule-making and inspection activities before the agency. 

We appear before you today as a commission. In my 3 years of 

service as an NRC Commissioner, I have come to believe that the 

Congress was quite deliberate in creating a commission structure 

atop the NRC, given the complexity of the issues expected to be addressed by the agency, and that commissions are not created for 

the purpose of fostering unanimity of opinion. Rather, I believe 

that Congress intends that the push and pull of diverse views on 

any such small, deliberative body, such as ours, will hopefully result in outcomes that have been examined from different angles, 

tested through debate and argument, and are stronger as a result. 

One such issue before the Commission now and under review by 

this committee is Yucca Mountain. Since October of last year, I 

have been public in my disagreement with the chairman’s direction 

to begin the closeout of the NRC’s technical review of the Yucca 

Mountain licensing application under the terms of the continuing 

resolution, particularly while an adjudicatory appeal related to the 

secretary of energy’s request to withdraw the application is pending unresolved before the Commission itself. 

I cast my vote in that adjudicatory appeal on August 25, 2010. 

The vote I cast was based on thorough study and review of the underlying record, including the licensing’s board decision as well as 

the substantial briefs filed before the Commission by parties to the 

proceeding. I have a strong conviction for the position I have taken, 

and I have not altered my judgment since that time. The Commission has failed to complete final agency action on this matter. Nevertheless, I stand ready to do my part at any time to bring this 

matter to conclusion. 

The Yucca Mountain issue is one of many currently before the 

NRC. As I anticipate this hearing will make clear, the NRC has an 

33 

important and decisive role to play in America’s energy future. The 

ability of NRC to perform this role is an appropriate area of scrutiny as your subcommittees debate the agency policies of the country now and into the future. 

In my personal experience, I have found the NRC to be an organization of extremely dedicates safety professionals who are ever 

mindful of their important obligations to the nation. My objective 

each day is to be the kind of Commissioner they deserve. Thank 

you again for this opportunity, and I look forward to answering 

your questions. 

Mr. SHIMKUS. Thank you. And now the chair would like to recognize Mr. Magwood for 5 minutes. 

STATEMENT OF WILLIAM D. MAGWOOD 

Mr. MAGWOOD. Thank you, Chairman Shimkus, Chairman 

Whitfield, Ranking Members Rush and Green, and members of 

both subcommittees for providing us an opportunity to speak with 

you today. The timing of today’s hearing is apt as there are many 

issues facing the Commission and facing the Nation as a whole. 

Clearly most of the attention in recent weeks has been focused 

on the events in Japan since the devastating earthquake and tsunami of March 11. These natural disasters have caused immense 

destruction, and in their wake, some 25,000 people are dead or 

missing and 300,000 have lost their homes. As a friend to Japan, 

I continue to share the sorrow of the Japanese people. 

For the NRC, the significant damage suffered by the Fukushima 

Daiichi Nuclear Plant has garnered our attention for nearly 2 

months. This damage has had significant impacts on the lives of 

many people in Japan and on the environment around the planet. 

Watching these events unfold from far has been both very sad and 

very sobering. 

In my years as an NRC Commissioner, I have been continually 

impressed with the professionalism and commitment of the NRC 

staff. The staff’s response to the events in Japan has provided just 

one more example. Within hours of hearing about the situation at 

the nuclear plant in Japan, the NRC staff again volunteered to 

travel to that country to provide whatever assistance might be possible. Within a few days, there were 11 NRC experts on the ground 

in Japan. Many other staffed the agency’s operations center around 

the clock, and others answered public call-in lines. 

Meanwhile, during all this activity, most of the staff remained focused on their primary mission of protecting the health and safety 

of the American people. This country should be proud to have people like that serving in their interests. 

While I believe the prospect of a truly catastrophic event has 

largely passed, Japan faces a long, difficult task to address the hazards presented by this damaged facility. Japan also faces a very 

tough challenge in fully absorbing the lessons learned from these 

events, just as we had to learn from Three Mile Island. 

I encourage my friends in Japan to examine every detail of the 

events associated with the Fukushima Daiichi Plant in a relentless, 

unblinking, and transparent manner, and to make any changes 

that such a review may prompt. 

34 

I am convinced that U.S. nuclear plants continue to operate safely. I also believe that many physical and operational improvements, 

implemented over the years, including those made after the terrorist attacks of September 11, 2001 provide important capabilities 

that will help ensure the safety of U.S. plants under many adverse 

conditions. While I believe that most of the lessons learned must 

be learned by Japan, it is clear that this Commission would be remiss if it did not review the events of Fukushima to determine 

what lessons, if any, can be applied to their operations here in the 

United States. 

As you have already heard, the Commission has approved the 

formation of an expert task force to consider what lessons can be 

learned from the situation in Japan. In addition, I have been 

pleased to see that U.S. nuclear industry, which I should note has 

also provided substantial support to our colleagues in Japan, has 

also established a steering committee to coordinate their review of 

the events in Japan and consider what changes might be made. 

While it is important that we study the details of how events unfolded at Fukushima, it is my view that we must also assure that 

the safety forest is not obscured by technical trees. While many 

questions remain about what transpired at the Fukushima Daiichi 

plant, some lessons are being learned right now by simply concerning probing questions about current practices in the U.S. that 

are prompted by those events. 

Perhaps the largest lesson I have learned from this event has 

been that nature will often present us with challenges that exceed 

even our most conservative expectations. Given that, we must place 

as much attention on how we recover and mitigate disasters as we 

place on how to resist them in the first place. 

As the United States assesses the events of Fukushima, I believe 

that America’s independent regulators are well suited to evaluate 

and respond to the lessons we will learn. I also believe that our 

Commission structure will serve us well as it has for many years. 

The Commission structure both reflects a broad policy direction of 

the elected government and preserves the vital independence and 

credibility of the technical work for the agency. 

Our structure also has the development of a highly professional 

technical staff and very stable long-term planning, both of which 

are much more difficult to achieve in the standard agency government’s model. I have noted in the past the other federal agencies 

might benefit from such a structure. 

Therefore, we need responsible individuals in government, including members of this agency’s congressional oversight committees, to protect the NRC’s independence and guard against any erosion. Given the fluid future, it may be appropriate to seek ways to 

bolster NRC’s independent status. Congress, if it wishes to maintain an independent NRC, may consider an update to our organic 

legislation and Energy Reorganization Act. 

Congress may also find that it is time to provide additional clarity regarding the operation of the Commission itself. While I believe that Congress’s expectations associated with the Commission’s 

roles and responsibilities are well-documented in the legislation, I 

think it could be enhanced further. 

35 

I also think it would enhance the organization if Congress would 

provide additional guidance regarding the responsibilities and authorities of various elements of senior staff, independent of the 

Commission. 

Finally I would like to thank the subcommittee for the long and 

effective oversight of the NRC. You supported the agency’s growth 

in recent years as we prepared for the development of new nuclear 

technologies and projects. You have also supported our efforts to 

encourage nuclear technology education. 

As my tenure as Commissioner continues, I look forward to working with you to further enhance the working of the NRC as we continue our singular mission to protect the health, safety, and security of the American people. Thank you. 

Mr. SHIMKUS. Thank you. The chair now recognizes Commissioner Ostendorff for 5 minutes. 

STATEMENT OF WILLIAM C. OSTENDORFF 

Mr. OSTENDORFF. Thank you, Chairman Shimkus, Chairman 

Whitfield, and Ranking Members Rush and Green. I appreciate the 

opportunity to be before you today. I also appreciate this committee’s and the subcommittee’s interest in the role of nuclear energy 

in our country’s energy future. 

I have been a Commissioner for just over 1 year. In that time, 

I have gained a deeper understanding of the NRC’s licensing and 

oversight programs and their importance to protection of public 

health and safety in our Nation. 

As a Commissioner, I firmly believe in the NRC’s principles of 

good regulation. Independence, openness, efficiency, clarity, and reliability. These principles are absolutely vital to the proper functioning of our agency. Joining the comments of my fellow Commissioner colleagues, I agree with them completely that the NRC staff 

we work with are professional, enthusiastic, and committed to ensure that we carry out our mission effectively. It is an honor to be 

part of that NRC team. 

Last year, I spent considerable time talking to members of the 

public, anti-nuclear groups, pro-nuclear groups, visiting nuclear 

power plants, facilities, et cetera. And I found getting out and 

about around the country is absolutely essential to my performance 

as a Commissioner. The events that have unfolded in Japan at 

Fukushima Daiichi are significant. On the one hand, I firmly believe that our existing 104 commercial nuclear power plants in this 

country are indeed safe. 

The past few weeks we have seen natural events with tornados. 

With the Surry Nuclear Power Plant in Virginia, the Browns Ferry 

Plant in Alabama were both plants that have demonstrated their 

capabilities to safely shut down due to a loss of offsite power 

caused by severe weather conditions. 

On the other hand, I know that the NRC must and will conduct 

a thoughtful and rational examination of our regulatory framework 

as informed by the Japanese lessons learned. Toward that end, I 

am confident that the task force that we have chartered will perform a systematic and methodical review of our regulatory framework to ensure protection of public health and safety. If there are 

changes to be made, I am sure we will make them. 

36 

In closing, I want to thank the subcommittees for their interest. 

I look forward to your questions. Thank you. 

Mr. SHIMKUS. Thank you. Now the chair would like to recognize 

himself for 5 minutes for questions. Chairman Jaczko, this is for 

the other Commissioners. You have had a chance to visit with us 

already. To the Commissioners, I had an interesting discussion of 

your voting process when the chairman appeared before the hearing on March 16. I asked him about the licensing board decision 

denying the DOE’s motion to withdraw its Yucca Mountain application. I asked if all Commissioners had filed votes on the matter. 

Chairman Jaczko answered, and we have the transcript, ‘‘we have 

filed what I consider to be preliminary views that we exchange 

among colleagues.’’ 

So I asked Mr. Jaczko, ‘‘Is it your position that you have not filed 

final votes?’’ He replied, ‘‘I would consider votes more akin almost 

to prepared statements and remarks of members of the Commission. The practice of the Commission is to circulate these prepared 

remarks on any of the things that we do, and then based upon 

those circulated views, we work to see if there is a majority position.’’ 

Now to the Commissioners: Is that the way you describe those 

written votes you file, that they were merely prepared remarks? 

And we start with Commission Svinicki. 

Ms. SVINICKI. As I indicated in my prepared remarks, when I 

cast my vote in the high level waste matter in August, it was based 

on a very thorough review of the underlying record, and I consider 

that I took my position at the time that I cast that vote in August 

of 2010. I have not revisited the judgment I made at that time or 

altered the position I took in August. 

Mr. SHIMKUS. Commissioner Magwood? 

Mr. MAGWOOD. I spent a great deal of time thinking about how 

to evaluate the very interesting and unique issues that were presented by the DOE motion. And my conclusion was something that 

I took very seriously and spent a lot of time developing. And after 

working with my staff for quite some time, I wrote a very, very 

lengthy and, I think, quite eloquent, if I say myself, vote on the 

matter. And I really have not even considered changing from that. 

So, no, I consider that to be my final personal statement on the 

matter. 

Mr. SHIMKUS. So you consider it a vote? 

Mr. MAGWOOD. I consider it a vote. 

Mr. SHIMKUS. Commissioner Ostendorff? 

Mr. OSTENDORFF. Chairman Shimkus, I cast my vote on the 

Yucca Mountain legal motion to withdraw decision August 26, 

2010. I did not view that vote as a preliminary set of views or initial remarks. I viewed it as a final, concrete, legal decision from my 

own Commissioner office perspective. 

Mr. SHIMKUS. So they are not prepared remarks. They are in essence votes? And I see nodding from the three—— 

Mr. OSTENDORFF. Yes, correct. 

Mr. SHIMKUS [continuing]. Commissioners that are here. Thank 

you. Chairman Jaczko said that based upon those circulated views, 

you work until you have a majority position. Does the NRC have 

to wait for a majority position? 

37 

Ms. SVINICKI. I—if I may, and I apologize for this answer in advance, but the Commission’s decision is issued in the form of an 

order, and it would be affirmed at a public affirmation session. So 

I would characterize that the—what the Commission has been 

looking at is what form that order would take regarding the decision. 

So though all—though I cast my vote and took a position that I 

have not revisited, the votes are not what we issue so that the outcome can become publically known. It takes the form of a Commission order. And so that is what has been under development in the 

intervening time. But to your question of whether a majority is required, I interpret the Commission’s procedures to permit for an 

outcome of a Commission that would be divided, and that is the instance in which there would be no majority. If there were four participating members, a Commission could be evenly divided. 

If your question is is that provided for in our procedures, the answer is yes. 

Mr. SHIMKUS. Commissioner Magwood? 

Mr. MAGWOOD. I don’t think I can add anything to what Commissioner Svinicki said. I agree with her interpretation. 

Mr. SHIMKUS. That is fine. I think—let me go to my last question 

because I am running out of time myself. Is issuing a final decision 

on DOE’s motion to withdrawal a license application an NRC priority, yes or no? 

Ms. SVINICKI. I can speak only to my personal priority. 

Mr. SHIMKUS. That is what I am asking. 

Ms. SVINICKI. It is a personal priority for me. Yes, sir. 

Mr. SHIMKUS. Commissioner Magwood? 

Mr. MAGWOOD. I see it as a priority just as many such issues are, 

but, you know, I think it is an issue we will continue to work on. 

Mr. SHIMKUS. Commissioner Ostendorff? 

Mr. OSTENDORFF. Yes, and I will also add that I have taken steps 

since I cast my original vote to try to get the Commission to 

achieve majority position in order to reach an order. 

Mr. SHIMKUS. Chairman Jaczko? 

Mr. JACZKO. It certainly is a priority, and, I think, as Commissioner Ostendorff indicated, we are working to achieve the majority 

position, as he indicated, we do not yet have. 

Mr. SHIMKUS. But as the previous question identified in our comments in March, they are assuming votes have been cast, and they 

can make a decision. It doesn’t have to be a majority view. And I 

yield now to Mr. Green for 5 minutes. 

Mr. WAXMAN. Mr. Chairman, I am going to—— 

Mr. SHIMKUS. I am sorry. Chairman Emeritus. 

Mr. WAXMAN. With the courtesy of the two ranking members on 

the subcommittee, they allowed to go ahead of them because of a 

conflict issue. 

Chairman Jaczko, our subcommittee chairman, Chairman 

Shimkus, has alleged that your decisions about Yucca Mountain 

are ‘‘illegal’’ and ‘‘politics at the highest level.’’ So I want to ask you 

about these assertions. The Commission has provided thousands of 

pages of documents to our committee relating to the NRC’s review 

of the Yucca Mountain license application. 

38 

We have examined these documents, and by and large, I don’t believe they support Chairman Shimkus’s allegations. The documents 

show that you closely consulted with the NRC General Counsel before making any decisions, but it does appear that at least one individual on the NRC staff had concerns regarding the Yucca Mountain license application withdrawal. On October 18, 2010, Dan 

Grazer, the administrator for the licensing support network, sent 

an email to Judge Roy Hawkins, the chief administrative judge of 

Atomic Safety and Licensing Board Panel. Mr. Grazer is in charge 

of the data management system for the Yucca licensing proceeding. 

In this email, Mr. Grazer states ‘‘I believe that the action directed by the CFO, executive director of operations, and chairman, 

to begin shutdown of the high level waste program, in addition to 

being inconsistent with the last public agency decision on the matter and inconsistent with authorization, language and appropriations, language for both fiscal year 2010 and 2011 is a violation of 

the Nuclear Waste Policy Act and illegal.’’ 

Chairman Jaczko, Mr. Grazer is claiming that you violated federal law by directing staff to close down review of the Yucca Mountain license application. Are you aware of Mr. Grazer’s allegations? 

Mr. JACZKO. I have seen the email that you are referencing. 

Mr. WAXMAN. Do you agree with this assessment that it was illegal to stop the review of the Yucca Mountain? 

Mr. JACZKO. No, I do not. 

Mr. WAXMAN. The NRC has produced other emails from Mr. 

Grazer. Chairman Jaczko, I would like to ask you about another 

one. On September 7, 2010, Mr. Grazer sent an email to another 

NRC employee stating that a Yucca Mountain report called SER 

Volume 3 ‘‘may not get out the door before election day. Chairman 

stonewalling on the decision may be effective as there is means by 

which read gets no bad news before election day.’’ Mr. Grazer appears to be alleging that you delayed action on the Yucca Mountain 

report for political purposes. And again this is a serious allegation. 

Chairman Jaczko, what is your response to Mr. Grazer’s application? 

Mr. JACZKO. I made a decision to have the staff stick to the timing that they had previously indicated for the release of any of the 

documents related. It was in no way a political action or intended 

to reference any other political figure or direction from any other 

political figure. 

Mr. WAXMAN. Your fellow Commissioners with you today say 

that they already voted on this matter, as I understand their testimony. Mr. Grazer’s assertions are similar to those of Chairman 

Shimkus. Do you believe they substantiate his claim that you acted 

illegally or for political reasons? 

Mr. JACZKO. No, I do not. 

Mr. WAXMAN. Do you want to give us an explanation? Do you 

want to talk further about this matter? 

Mr. JACZKO. Well, as I said and what I indicated previously to 

the committee, the way the Commission’s voting process works is 

we circulate these votes. The votes are then for all of us to consider, as you have heard from some of my colleagues. Some of them 

do not intend to perhaps change their positions. That then makes 

it difficult to come to a resolution on the matter if Commissioners 

39 

are not willing to work to come to compromise and move forward 

in a way that we can have an order for the Commission. 

So that continues to be the effort that we are engaged in, is to 

bring that matter to conclusion. But it is not uncommon for the 

Commission to have matters in front of it that take time to resolve 

because the process that the Commission uses is a written notation 

voting process. It is not a formal voting session where we come to 

conclusion at a specific time. 

So all the actions that we have taken, I believe, are fully consistent with the procedures and policies of the Commission. And 

Yucca Mountain is a complicated issue. There are complicated legal 

questions in front of us, and we are taking the time to thoroughly 

review those and make sure we make a good decision. 

Mr. WAXMAN. As I understand the Yucca Mountain issue, it is 

not a question of voting on Yucca Mountain’s application as submitted by the DOE. DOE has withdrawn that application. Is 

that—— 

Mr. JACZKO. That is correct. 

Mr. WAXMAN. So the question is whether they have the ability 

to withdrawal the application? 

Mr. JACZKO. The question in front of the Commission is, one, 

whether or not we would review a decision made by a licensing 

board at the Commission, and then, if we did decide to review that, 

whether, in fact, we would agree or disagree with that decision to 

allow DOE to withdraw the motion? 

Mr. WAXMAN. And you feel you are following the proper legal 

procedures. 

Mr. JACZKO. Correct, and on a separate track, we are—because 

of the budget situation, we are working to close down our review 

of the application. And that was based on a decision that I made 

in early October, which was fully consistent with appropriations 

law, with GAO guidance, with circulary 11 and all the relevant 

guidance for dealing with a continuing resolution and the way we 

process our budget in that regard. 

Mr. WAXMAN. Thank you very much. 

Mr. SHIMKUS. And I thank you. Yields back his time. Chair now 

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

Mr. UPTON. Well, thank you, Mr. Chairman. I just want to say 

a couple of things before I get to our questions. There is a lot of 

interest on Yucca Mountain, as you know. We have had some private discussions, and we are beginning an investigation. And this 

is—today’s hearing is not going to be the end of this. 

We are going to pursue this with both of our subcommittees, Energy and Power as well as the Environment and the Economy, as 

well as the Oversight and Investigations Subcommittee. We have 

asked for a whole series of documents from both DOE as well as 

the NRC, and we are just starting to scratch the surface in terms 

of where we are. And we look forward to pursuing that. We look 

forward to your cooperation as we begin to ask questions, and this 

will not—this is not ending today. That is for sure. 

I have a couple questions. Chairman Jaczko, as you know, Secretary Chu has made it a very high priority for DOE to support deployment of a small modular reactor by 2020, perhaps even earlier 

40 

than that. These SMRs offer improved financing to the rate payers 

but also offer the most advanced safety features. I understand that 

the TVA is working to build as many as six of these lightwater 

SMRs. I would like to get your perspective on these in terms of 

their safety benefits, the licensing path forward, as well as what 

is your plan to carry on the Fukushima lessons learned activities 

to continue the licensing activities on these promising reactors? 

Mr. JACZKO. Well, currently we have been in close contact with 

the Department of Energy as they develop their plans for supporting small modular reactors. We are anticipating the TVA submitting a construction authorization next year, probably sometime 

the middle of next year. We are budgeted and prepared to review 

that application. That would be for a small modular reactor. 

At the same time, we are preparing as well to review other designs that are also small modular reactors. And we are prepared 

to do that. And we have the resources, again, subject to congressional approval in the fiscal year 2012 year. 

So I think we are in the good place to review those. The Commission recently held a meeting. Unfortunately I was in Japan at the 

time, but at that meeting, we discussed several policy issues that 

are related to the small modular reactors. And I believe we are on 

target to address those issues and be prepared to process those applications. 

Mr. UPTON. So is it your expectation that, in fact, the TVA—or 

the desire to have these in place and done by the end of this decade 

is an achievable goal? 

Mr. JACZKO. Well, I certainly think the agency is in the position 

to do our part. Anytime you are dealing with the review of an application, it is an activity that involves many parties including the 

applicants. So assuming that they are able to provide a good, highquality application, that they are able to provide the budgets to 

support that application, we believe we have the resources to review it. 

I would add—I think you mentioned interest in Japan—we are 

moving forward with two reviews to look at the situation in Japan. 

And if we do get information that comes out of it that tells us we 

need to make changes, we will make whatever changes are necessary, whether it is an existing facility or an application under review, such as a small modular reactor. 

Mr. UPTON. For the Commissioners, are you confident that all of 

you are receiving the information that you need to do your job from 

the staff? Is there an equal sharing of information that all of you 

are able to have to make a decision? 

Ms. SVINICKI. To the extent that the question raises the do-youknow-what-you-don’t-know aspect, it is a little bit hard to answer. 

But post Three Mile Island when the Congress rejected a single administrator structure, it did emphasize the importance of all Commissioners having access to information in existence at NRC at the 

same time. So it is a very important, I think, objective and goal of 

a Commission’s structure. It is difficult to discern if I have access 

to everything when I am not sure what might or might not be in 

existence. 

But it is something that I am fairly strident on asserting my 

right to see information in existence at the agency. 

41 

Mr. UPTON. So, you do feel that you get the proper information 

and—I mean have you been denied information? 

Ms. SVINICKI. Information can be in different states of finalization, and so—I think there has been a back-and-forth between my 

office and the agency staff occasionally on when it is most appropriate for them to share their work product with me. So I don’t 

want to say it is a straightforward every single time I ask for something. It may be that there is a little bit of push-back in terms of 

the work product not being ready for me to look at it. 

Mr. MAGWOOD. Like I said, I would say as a general matter, I 

am able to receive information I need to make decisions. I mean 

I think, as Commissioner Svinicki indicated, there have been occasions where, for one reason or another, information hasn’t been 

forthcoming, but I think the majority of times, if I ask for something, I get it immediately. So as a general matter, I think I am 

able to get information required to do what I need to do. 

Mr. OSTENDORFF. I would add that by and large, I do receive the 

information I feel like I need. There have been some problem areas 

that I have pointed out, either through my staff, our staff, or the 

chairman’s office. I have had a couple of issues with how policy 

matters are brought before the Commission from the staff, and I 

have communicated those to the chairman in his office. 

Mr. UPTON. Thank you. I know my time has expired. 

Mr. SHIMKUS. The chair now recognizes Ranking Member Green 

for 5 minutes. 

Mr. GREEN. Thank you, Mr. Chairman. I ask unanimous consent 

that my statement be placed in the record. Mr. Chairman. 

Mr. SHIMKUS. Without objection, so ordered. 

Mr. GREEN. Let me just touch on the Yucca Mountain issue in 

the budget. There are some of us who are concerned that the decision made to shut down, you know, after we spent $14 billion, and 

ultimately our country is going to need some type of long-term 

waste disposal facility for high-level nuclear waste. 

Mr. Chairman, let me ask you though. The continuing resolution 

that this house passed just recently last month on a bipartisan 

basis, the budget to avert the government shutdown, the budget zeroed out funding for Yucca Mountain and Department of Energy 

and appropriated $10 million to the NRC to close out the license 

review. Is that correct? 

Mr. JACZKO. Yes. 

Mr. GREEN. OK, now whatever happened before that or last fall 

or anything like that is actually moot because it is our job, if we 

have a difference of opinion, to provide appropriations to make sure 

we continue that. And, you know, we have a really nice hole in a 

mountain out there that somewhere along the way we are going to 

need to have a facility for our country for those rods because we 

continue to expand. And I know there is—we have had some success in keeping them on site, but that is not going to be a permanent solution. So we will need to deal with that, and it sounds like 

Congress needs to work at that. 

Let me get to another issue. Our subcommittee in Environment 

and Economy has chemical safety or CFATS legislation. Yesterday, 

five men were arrested outside a nuclear waste processing plant in 

England and detained under the UK’s terrorism act. While we are 

42 

still learning more about the facts surrounding their arrests, incidents like those reinforce our need for safety and secure nuclear security infrastructure. 

Chairman Jaczko, what mechanisms does the NRC currently 

have in place to handle terrorism threats at U.S. nuclear facilities? 

Mr. JACZKO. Well, we have a very, I think, comprehensive and 

sophisticated program to deal with security. It starts with our requirements on the nuclear power reactors. They are required to 

have very robust security programs. We test those security programs with actual simulated attacks on the facility, and that is 

done for every facility once every 3 years. 

As part of our normal inspection activities, we inspect all the security systems on a periodic basis to ensure the cameras, the detection systems work. 

Mr. GREEN. Does that include unannounced visits? 

Mr. JACZKO. That is part of our normal inspection process, and 

generally some of that work is carried out by our resident inspectors who are at the site. And they will pick and choose some aspects of their review to look at certain areas. And they do that 

often on an unannounced basis. 

Mr. GREEN. Since I only have a couple minutes, in the last few 

days, has NRC increased its focus on nuclear security? 

Mr. JACZKO. We have kept a vigilant look at nuclear security, 

and as we get additional threat information, we will periodically 

communicate that as appropriate. But at this point, there is nothing immediately that has caused a significant change in the security posture for our facilities. 

Mr. GREEN. Under our current system, NRC facilities are exempt 

from Homeland Security chemical facilities anti-terrorism standard 

or CFATS regulations, which establish high-risk based performance 

standards for security of high-risk chemical facilities. It is my understanding that the NRC and Homeland Security has entered into 

a memorandum of understanding regarding security of high-risk 

chemical facilities and high-risk chemicals at NRC-regulated facilities. 

Can you explain what the memorandum of understanding says 

between NRC and Homeland Security? 

Mr. JACZKO. Well, what that memorandum of understanding is 

for is that some facilities where there is dual authority, namely facilities that may have nuclear material and chemical hazards, that 

those facilities would be regulated under the NRC’s program. We 

are constantly working to make sure that that is capturing the 

spirit of the law that currently exists, which provided an exemption 

for facilities that have nuclear material. So that memorandum of 

understanding is to make sure that we don’t have a loophole in coverage and protection for those facilities that have both nuclear and 

radiological material—I am sorry, chemical and radiological material. 

Mr. GREEN. OK, I have some concern the MOE goes beyond the 

authority and still allow CFATS exemptions for the entire facility. 

A good example is if a facility has a nuclear reaction and a highrisk chemical storage tank under the same site, under the current 

scheme, NRC is only required to regulate the reactor. Nevertheless, 

the entire facility including the storage tank is exempt from 

43 

CFATS, leaving that high-risk chemical storage tank exposed to potential terrorism. The exemption issue is significant, and I hope we 

can close that gap to make sure the regulation—the issues with the 

chemical security markup. We have one this afternoon on extending that, but that is something that we need to consider in any information the NRC could get to us to make sure it is seamless on 

those facilities that are covered under CFATS even though there is 

an exemption would be appreciated. 

Mr. JACZKO. We will certainly provide that, and we have been in 

discussion, I think, with the committees drafting that legislation to 

make sure that we achieve the same goal that you are looking at, 

which is to make sure there is no gap in coverage between facilities 

like that. 

Mr. GREEN. OK. Thank you, Mr. Chair. 

Mr. SHIMKUS. Gentleman yields back his time. Chair now recognizes the gentleman from Kentucky, Mr. Whitfield. 

Mr. WHITFIELD. Thank you very much. I also would like to revisit 

the Yucca Mountain issue simply because of the money that has 

been involved in it and the ramifications that decision or nondecision has on our country. From the testimony that I heard from the 

three Commissioners, all of you indicated that you, in your own 

mind, felt that you had issued a vote on whether or not to uphold 

the construction authorization’s board’s decision. 

And it was also said that in order to have a final order at the 

agency, there had to be a Commission order. So if the three of you, 

in your mind, voted on this issue, we know that one Commissioner 

recused himself. So my question is if people have voted, who makes 

the decision that there be a Commission order issued? Any of you 

can answer. 

Mr. JACZKO. Well, Mr. Whitfield, that is generally the process 

that we usually follow. We have what is called an affirmation notice, which is an official notice that goes out indicating that we are 

ready to move to a session, to actually weigh in on this order. That 

is done by the Commission itself, and when we have an approval 

of that affirmation, that is usually when we proceed to go forward. 

And so that serves as the proxy to indicate that the Commission 

itself has come to resolution and come to an agreement on an order 

and that we are willing to go forward. 

But it is ultimately the Commission that makes the decision 

about the order. 

Mr. WHITFIELD. But from Mr. Shimkus’s reading your testimony 

earlier, it would indicate that they feel like they voted on this 

issue, and from your perspective, they did not vote on this issue. 

Is that correct? 

Mr. JACZKO. Again, I think as I tried to explain at the time, votes 

have been cast. Those votes are not the final action. Some of my 

colleagues have circulated compromise positions as part of the postvoting action to work to bring us to resolution. So I appreciate the 

views that my Commissioners have expressed. However, it does not 

mean that because we have all the votes cast that we are ready to 

move to an order, and at this point, we are not. 

Mr. WHITFIELD. So are you the one that makes that decision? 

Mr. JACZKO. I am not. The Commission as a whole makes that 

decision. 

44 

Mr. WHITFIELD. But they said that they voted already. 

Mr. JACZKO. That is correct, and that is different from the order 

that is the final action when it comes to these adjudicatory matters, which is what I explained to Mr. Shimkus. And I think as you 

hear Commissioner Ostendorff say, we are working to get a majority on that particular order. 

Mr. WHITFIELD. During the events in Japan, Chairman Jaczko 

enunciated a policy that people living within 50 miles of the damaged reactors in Japan should evacuate. Now, that really created 

an uproar, I might say, not only in Japan and elsewhere, but also 

in the U.S. because I think we have a 10-mile evaluation area in 

the U.S. 

So my question would be on an issue like that, did the Commission vote on that, or was that just a unilateral decision that you 

made yourself? 

Mr. JACZKO. That was a decision that was made based on a staff 

recommendation at a time when we were responding to an emergency situation in Japan. That action was fully consistent with existing U.S. standards for how we would deal with comparable situations. I moved forward with that decision and made that recommendation to the ambassador ultimately in Japan. 

Mr. WHITFIELD. OK, so that was your decision based on staff recommendation? 

Mr. JACZKO. Absolutely. 

Mr. WHITFIELD. OK, now it is my understanding that the Energy 

Reorganization Act gives the chairman certain emergency powers 

at certain times. And it is also my understanding that that has 

never been—that that has been put into operation only once, and 

that was 9/11/2001. 

Did you exercise emergency authority in the Japanese issue? 

Mr. JACZKO. From the day that I became chairman, I have emergency authorities for all events that—all emergency situations that 

could occur that fall within the NRC’s responsibility. 

Mr. WHITFIELD. So there is not any mechanism that you have to 

go through to exercise that? 

Mr. JACZKO. That is correct. We don’t make a formal declaration. 

Now, the only time where there is an actual, I guess, some type 

of declaration is when I transfer those authorities to another Commissioner. That is always done in a memo. Or to a member of the 

staff, whoever is receiving the authority. So we transfer that in a 

memo so that there is a clear indication of who has the authority. 

But the intent of the Energy Reorganization Plan was to ensure 

that the Commission or the agency would make prompt decisions. 

And so all of those authorities of the Commission were vested in 

the chairman in an emergency situation so that you would not be 

taking time to try and determine is this an emergency situation or 

not, and what authorities, and who has what particular authorities. 

Mr. WHITFIELD. And at the operation centers, do all of the Commissioners have access to the operation center in the event of an 

emergency? 

Mr. JACZKO. It depends on the situation, and ultimately the operation center is under the control of the chairman. And so ultiVerDate Nov 24 2008 09:51 Jan 13, 2012 Jkt 037690 PO 00000 Frm 00050 Fmt 6633 Sfmt 6633 G:\PRINTING\HEARINGS FOR REVIEW--112TH\112-43.PDF WAYNE
45 

mately I decide who has access to the center and what is appropriate for the situation. 

Mr. SHIMKUS. Gentleman’s time has expired. Chair now recognizes the gentleman from Illinois, Mr. Rush, for 5 minutes. 

Mr. RUSH. Want to thank you, Mr. Chairman. Chairman Jaczko, 

during my tour of Dresden, I became concerned that there was a 

real possibility that the resident inspector who was really the local 

cop on the beat at these nuclear facilities, that they could very easily lose their ability to remain objective due to what I perceived as 

a certain coziness with their facility managers and the facility 

teams that they were responsible for overseeing. 

What are the protocols for deploying resident inspectors? Where 

and how are they assigned geographically and logistically, and how 

often do they rotate? 

Mr. JACZKO. Nominally, our resident inspectors serve for about 

7 years. Seven years is the max amount of time they are allowed 

to stay at any one site. We go through a competitive selection process. This is often a very competitive position within the agency, 

and some of our best and brightest individuals go on and become 

resident inspectors. And actually it is really a stepping stone to becoming one of the senior managers at the agency. We have many 

former resident inspectors who are ultimately some of the top managers at the agency. So we are very mindful of the concern that you 

are looking at. 

Mr. RUSH. So they are there for 7 years? 

Mr. JACZKO. Seven years is the maximum. 

Mr. RUSH. So they move family and friends to the particular geographic location for the most part? 

Mr. JACZKO. That is correct. 

Mr. RUSH. So they are going to church together, shop together, 

children play on the same team together. Do you have any fear 

that this kind of coziness over this long period of time might cloud 

their objectivity and their reliability and their integrity, you might 

add? 

Mr. JACZKO. From what I have seen of the individuals that carry 

out this work, I have very little concern. They are incredibly dedicated professionals, and they are, for lack of a better word, kind of 

a thorn in the side of the utilities. They investigate what they need 

to investigate. They don’t take any direction from the plant employees, other than information that might be helpful in an investigation or an inspection. They are very objective, but we do keep an 

eye on it to make sure. It is something we want to make sure 

doesn’t ever become a problem, and that is part of why we have 

that 7-year maximum, but we have had very little problems with 

our resident inspectors. 

Mr. RUSH. In that 7-year max, isn’t 7 years quite a length of time 

though? What is your rationale for the 7 years? 

Mr. JACZKO. You know, it is a timeframe that has changed over 

time. Originally we had a much shorter timeframe, but it turned 

out that it was not actually terribly easy to rotate and replace 

these people on a shorter timeframe. So it is actually something 

that the GAO looked at many years ago. 

And in fact, one of the things that the GAO recommended in a 

report was that we didn’t even need a timeframe, that what we 

46 

needed was periodic visits of these resident inspectors back to the 

regional headquarters. So that is something that we actually implement. They get together for a brief period of time every year at the 

regional headquarters so it takes them out of the plant so we have 

an opportunity just to kind of reinforce to them their responsibilities and their function. 

So right now, the cap is there. It has developed over the years, 

and it has been lifted and gotten longer over time because we 

found that the objectivity is not a problem. But it is something we 

continue to look at, and we will make sure that it doesn’t become 

a problem. 

Mr. RUSH. Does the NRC have independent sensors or monitoring equipment at all of the U.S. facility—nuclear facilities, independent sensors? Do we have them at all the locations? 

Mr. JACZKO. We do not have any particular sensors. Where we 

get our information is from the licensees. But we have unfettered 

access to any of the licensee information, and so we periodically 

audit and review information that they are providing about the status of the plants and material at the sites. 

Mr. RUSH. Yield back. 

Mr. WHITFIELD. [Presiding] Gentleman from Texas, Mr. Barton, 

is recognized for 5 minutes. 

Mr. BARTON. Thank you, Mr. Chairman. I am confused. I am a 

simple guy. I try to read things black and white, but I listened to 

the chairman’s explanation to both Chairman Shimkus and Chairman Whitfield, and I don’t understand it. So I want to try to clarify 

a few things. 

I want to ask you, Commissioner Ostendorff, is it true that in 

March of last year, the DOE did file a motion with the NRC Construction Authorization Board to withdrawal the license application? Is that a true statement? 

Mr. OSTENDORFF. Yes. 

Mr. BARTON. OK, and is it also true that the Commission directed the board to decide that motion by June of 2010, and on 

June the 29th, 2010, the board denied the DOE motion to withdrawal the application. Is that true? 

Mr. OSTENDORFF. That is correct. 

Mr. BARTON. So, by law, the Commission directed the board to 

decide on the motion to withdraw, and on June the 29th, the board 

denied the Department of Energy’s motion to withdraw? The full 

Commission has or has not had a vote on that motion to deny? 

Mr. OSTENDORFF. Four or the five Commissioners have voted on 

the ASLB, the Atomic Safety and Licensing Board decision. Commission Apostolakis was recused. 

Mr. BARTON. OK, so there was a vote, one Commissioner recused. 

The vote was two to two. Is that correct? 

Mr. OSTENDORFF. Congressman, it would be inappropriate for me 

to comment on the outcome of the votes. I can tell you that—— 

Mr. BARTON. I don’t want to know how anybody voted, but—well, 

let me ask you this. Was there a definite majority in this vote? 

Mr. OSTENDORFF. There was an outcome of those four votes—— 

Mr. BARTON. Well, it is either four-zero, three-one, two-two, onethree, or zero-four. 

47 

Mr. OSTENDORFF. Believe me, Congressman. I understand the 

frustration you are having in asking me this question. I am trying 

to stay consistent with our principles to not comment on matters 

that are subject of ongoing adjudications. 

Mr. BARTON. We are not asking how any Commissioner voted. 

We know that the motion to withdraw was denied. Apparently we 

know that the Commission voted on that board recommendation. 

What we don’t know is the outcome. Is that—— 

Mr. OSTENDORFF. That is correct. 

Mr. BARTON. The chairman, who is an honorable, decent man, 

who has been in my office a number of time and I have great admiration for, appears to me to be playing some sort of a foot-dragging 

game—that is my characterization—because he thinks on June the 

30th, he is going to apparently get a new Commissioner that apparently agrees with his position and can then issue this order. 

Now, he is smiling as I say that, but, you know, I am a simple guy. 

But I wasn’t born yesterday, Mr. Chairman, and that is what it appears to me. 

So my question to you, Commissioner Ostendorff, how do we resolve this? I mean it appears to me that we are just playing a shell 

game. My understanding to issue an order is a mechanical exercise. 

You just direct the clerk to put some words on paper, and that is 

it. It is not a policy exercise. Am I wrong on that? 

Mr. OSTENDORFF. Let me approach this, Congressman, if I may 

via a hypothetical. May I approach that might explain an analogous situation. As I mentioned earlier when I was questioned by 

your colleagues here, I voted August 26 on the DOE motion withdraw issue. My other colleagues at various times, they have indicated, have also voted on this matter. So four Commissioners at 

this table have cast votes on this matter. 

In order to get to—and the chairman was talking about this—in 

order to get to an order out of the Commission, so we have our individual one, two, three, four votes. To get to an order that represents the Commission’s decision, it requires three out of the four 

of us at this table to agree to common language that would go out 

on an order. That has not occurred as of yet. 

I will tell you that my own personal perspective, I have advanced 

drafts of orders that I thought could appropriately bring this to closure back on November 5, again on January 18 of this year. I have 

not been successful in—— 

Mr. BARTON. Well, how can you have a vote and it not be publically known what the vote is? When we vote, it is up on a big 

board, and then it is put into the Congressional Record. And, I 

mean, we don’t have the luxury of voting and then waiting two or 

three months or a year or 2 years before people know how we vote. 

I mean, I don’t understand that. Is there some secret protocol at 

the NRC that gives you all the authority to vote and not admit to 

the public how you vote? 

Mr. OSTENDORFF. The Internal Commission Procedures, which 

are our guidebook analogous to the House rules and procedures 

that you operate with and your specific committee rules, those Internal Commission Procedures govern how we conduct ourselves 

during adjudications and a whole host of other procedural matters. 

48 

And according to those procedures, it is a matter of getting an 

order out that represents the majority view of the Commission. 

Mr. BARTON. Well, my time has expired, and my chairman is a 

stickler for regular order. But this isn’t going to go away. Chairman Upton said it. Mr. Shimkus is concerned. Mr. Whitfield, myself. I hope some of my friends on the Democratic side. Yucca 

Mountain is controversial, but it is not impossible. 

Mr. WHITFIELD. Mr. Dingell, you are recognized for—the gentleman from Michigan, Mr. Dingell, is recognized for 5 minutes. 

Mr. DINGELL. Sir, I thank you for your courtesy. Members of the 

Commission, welcome to the committee. We need to learn from 

events in Japan. That said, hysteria is both unwise and premature. 

Compare an ancient Japanese reactor built several decades ago to 

reactors to be built in the United States in the next decade is like 

comparing apples to oranges. 

Nuclear power is 20 percent of our baseline and 7 percent of our 

local—rather, of our low-carbon power. If we are addressing climate 

change, we must move forward to a low-carbon future. And we 

need, above all, to take the approach that includes clean coal, CCS, 

nuclear, natural gas, and renewables. 

I remain troubled about the standstill over long-term repository 

for spent nuclear fuel. I am not here to blame you for this event. 

Other circumstances have brought that about. After more than 20 

years or more, when we have collected $17 billion from rate payers 

for long-term storage of nuclear waste, DOE has requested that 

NRC withdraw its application for Yucca Mountain, and no funding 

has been requested this year for Yucca Mountain. This is, in my 

mind, extraordinarily irresponsible. 

Now, my questions. Chairman Jaczko, do you intend to schedule 

a vote on DOE’s request to withdraw its pending application to construct a repository at Yucca Mountain? Yes or no. 

Mr. JACZKO. As soon as the Commission has an order that it can 

move forward in, we will move forward with the order. 

Mr. DINGELL. Now if so, when will you do that? 

Mr. JACZKO. As soon as we achieve the necessary conditions to 

have an order. I think as Commissioner Ostendorff indicated generally what those are, but again I don’t want to go too much into 

the detail to preserve these adjudicatory processes being like a 

quasi-judicial process. We don’t discuss publically what negotiations and discussions are. 

Mr. DINGELL. Thank you, Mr. Chairman. Also, Mr. Chairman, it 

is my understanding that last June, the Atomic Safety and Licensing Board ruled that DOE did not have the authority to withdraw 

its license application. Is this true? 

Mr. JACZKO. Yes. 

Mr. DINGELL. Why did they—why was that ruling made? 

Mr. JACZKO. I can’t really comment on that specifically because 

that question is in front of the Commission, and that is why we are 

looking to try and resolve. 

Mr. DINGELL. Thank you. Now, members of the Commission, welcome to all. These questions to all of the Commissioners. As I have 

mentioned, we have a lot to learn from events in Japan. It is important to review existing processes and procedures to identify lessons learned and to implement necessary improvement. 

49 

That said, the NRC staff has made significant progress on many 

of the combined license and design certification applications submitted to date. It appears that several applications are now in the 

final stages of review and could soon become a reality. Indicative 

of this progress is the recent final design approval of the ESBWR, 

the technology referenced in DTE Energy’s combined license application for FERMI 3 in Monroe, Michigan in my district. 

In the past, NRC has projected the general intent to complete the 

combined license and design certification process under part 52 in 

approximately 42 months. Is that so? Starting with you, Mr. Chairman, and then other members of the Commission. 

Mr. JACZKO. Yes. 

Mr. DINGELL. Yes? Our reporter doesn’t have a nod button, so we 

got to cooperate with him. 

Mr. JACZKO. Yes. 

Mr. DINGELL. Ma’am? 

Ms. SVINICKI. Yes, that is correct. 

Mr. DINGELL. Sir? 

Mr. MAGWOOD. Yes, that is correct. 

Mr. DINGELL. Sir? 

Mr. OSTENDORFF. Yes. 

Mr. DINGELL. Now, is there any reason to assume that that timetable might change, chairman? 

Mr. JACZKO. Well, we certainly will continue to move forward 

with the activities on all of the new reactor licensing, but if we get 

additional information from Japan that requires us to make a 

change or to modify our process, we will—in my view, I believe we 

should do that. Certainly leave it up to the rest of the Commission 

to answer for themselves. 

Mr. DINGELL. Thank you, Mr. Chairman. 

Ms. SVINICKI. I agree with Chairman Jaczko’s answer. 

Mr. DINGELL. Sir? 

Mr. MAGWOOD. I generally agree with that answer as well. I 

guess I would also indicate that, you know, we are also evaluating 

a petition that has been filed by a variety of public groups that 

have asked the Commission to consider delaying some of these applications. But, you know, we are still looking at that. We haven’t 

made any decisions on it, but we have instructed the staff in the 

interim to continue moving forward with the work to that purpose. 

Mr. DINGELL. Thank you, Commissioner. Last Commissioner 

please. 

Mr. OSTENDORFF. Actually I have nothing to add to my colleagues. I agree with their comments. 

Mr. DINGELL. Thank you, ladies and gentlemen of the Commission. I appreciate your courtesy. Thank you, Mr. Chairman. 

Mr. WHITFIELD. Gentleman from Pennsylvania, Mr. Pitts, is recognized for 5 minutes. 

Mr. PITTS. Thank you, Mr. Chairman. I would like to start out 

by thanking each of you for your testimony today. These are challenging times, and the work you are doing will play an important 

role in shaping our Nation’s energy future. 

There is no doubt that the incident in Japan has brought into 

sharp focus the need for continuous assessment of our nation’s nuVerDate Nov 24 2008 09:51 Jan 13, 2012 Jkt 037690 PO 00000 Frm 00055 Fmt 6633 Sfmt 6633 G:\PRINTING\HEARINGS FOR REVIEW--112TH\112-43.PDF WAYNE
50 

clear power regulations. It would be unacceptable to have anything 

less than the highest standards for our nuclear power plants. 

We also need regulations that work. Nuclear power supplies 20 

percent of our nation’s electricity needs. If we are going to get serious about clean energy and cutting off our dependence on foreign 

oil, we will need to maintain or increase this level of production 

over the next 20 years. So I implore you to work together to promote nuclear energy by making sure we have the best and safest 

nuclear plants, the most advanced nuclear technology and the 

safest and most effective way of storing spent fuel. 

Now to my questions. Mr. Chairman Jaczko, while the public 

awaits NRC’s important resolution of the DOE motion to withdraw 

the Yucca Mountain application, I understand that you directed the 

NRC staff to discontinue review work on the application and commence with an orderly close-down of the program. Is this correct? 

Mr. JACZKO. It is correct. 

Mr. PITTS. What does the orderly close-out entail? 

Mr. JACZKO. The primary product of that will be what we refer 

to as a technical evaluation report, which is a document that will 

capture a significant portion of the staff’s technical review and the 

work that they have done on the application. It also involves activities to do knowledge capture, knowledge management, to ensure 

that we retain the expertise and the information from the staff who 

have worked on this project and make sure we have a good record 

of their efforts and their activities. 

Mr. PITTS. I would like the other Commissioners to respond. Do 

the other Commissioners agree with the chairman’s decision to 

close down the program? Commissioner Svinicki? 

Ms. SVINICKI. No, I publically disagreed with the decision and 

the direction issued by the chairman in October of last year to 

begin the orderly shutdown under the continuing resolution. I disagree with that position. 

Mr. PITTS. Commissioner Magwood? 

Mr. MAGWOOD. I agree with the chairman’s general position to 

begin planning to close out the program because of budgetary reasons. We simply didn’t have the resources to continue going forward. However, I did not agree with all the details about what 

close-out meant, and that is still something, I think, is under some 

discussion. 

Mr. PITTS. Commissioner Ostendorff? 

Mr. OSTENDORFF. Congressman, I strongly disagree with this direction. I took actions in accordance with our procedures to issue 

what is called a COM, a Commission memorandum document, on 

October 6 of 2010. That document requested my colleagues on the 

Commission to take a different direction here, to allow the staff to 

continue to work on the licensing activities until there has been a 

final determination and a legal decision to terminate Yucca Mountain. So I disagreed then. I still disagree today. 

Mr. PITTS. Has the Commission voted on this issue, Mr. Chairman—— 

Mr. JACZKO. On the question of— 

Mr. PITTS [continuing.] On the closedown? 

51 

Mr. JACZKO. Yes, it was in reference to Commissioner 

Ostendorff’s communication. It was not approved by the Commission. 

Mr. PITTS. I would like to ask the other Commissioners to respond. 

Ms. SVINICKI. I voted to approve Commissioner Ostendorff’s proposal to reverse the chairman’s direction to shut down the program. 

Mr. PITTS. Commissioner Magwood? 

Mr. MAGWOOD. I decided not to participate in that particular 

vote. 

Mr. PITTS. Did you vote? Did you say you voted? 

Mr. MAGWOOD. I did not participate in that vote. 

Mr. JACZKO. I don’t want you to get too bogged down in the procedural niceties here, but from a practical matter, the Commission 

on their vote sheets, they have four options. They can approve, 

they can disapprove, they can not participate, or they can abstain. 

So each of those is the options that the Commissioners have. 

This particular vote, there were two—there was Commissioner 

Ostendorff’s approval, Commissioner Svinicki’s support of that, and 

then the remaining three Commissioners did not participate. The 

end effect was then a notice to Commissioner Ostendorff indicating 

that his proposal was not approved by the Commission. 

Mr. OSTENDORFF. I would like to add, Congressman, a comment 

there just one. My own interpretation is that—and I think the 

chairman has the various options—but not participating, from my 

standpoint, in the vote is not the same thing as saying you disagree 

with the decision that I was advancing in my document. So this is 

just my personal viewpoint that I wanted to add to your—to clarify. 

Mr. PITTS. Now, Mr. Ostendorff, you released a memorandum in 

October in which you disagreed with the chairman’s budget guidance. What was the main point of the disagreement? 

Mr. OSTENDORFF. Congressman, I strongly disagree with the 

guidance, and I told the chairman that up front. I have worked 

here in the House of Representative as a staff, subcommittee staff 

director and counsel dealing with continuing resolution matters. I 

have been a senior official at the Department of Energy where I 

ran the budget process at the security administration. So I have 

had significant experience dealing with CRs for many years in different jobs I have had. 

My experience with the CR is that, unless the new language 

clearly calls out for some special treatment of a program, that the 

prior year appropriation upon which the CR is based provides the 

guidance to agencies as to how to move forward. The fiscal year 

2010 budget for the NRC had the high-level waste program conducting licensing activities. In the absence of some congressional 

direction to change that, I do not believe that that needed to be or 

should be changed. 

I also believe that the conditions that were put forth officially to 

Congress in the fiscal year 2011 budget submittal—the budget had 

not been approved at that time—the budget submittal that came 

from our agency through ONB to Congress for fiscal year 2011 said 

that upon suspension or withdrawal of the Yucca Mountain license 

52 

application, then the NRC would commence to shut down operations. Neither of those two conditions was met. 

Mr. PITTS. Thank you. My time has expired. 

Mr. WHITFIELD. The gentlelady from California, Ms. Capps, is 

recognized for 5 minutes. 

Mrs. CAPPS. Thank you, Mr. Chairman. Chairman Jaczko, thank 

you to you and to all the Commissioners for appearing for this 

hearing today. Chairman, it has been over a month since I requested the NRC to stay the license renewal application for Diablo 

Canyon and to work with California oversight experts to review 

new seismic information and mapping. Can you explain why the 

NRC has not answered my request? 

Mr. JACZKO. We currently have in front of the Commission a 

broad request in these formal licensing hearings for the Commission to take an action similar to the action that you have requested. The Commission is working on—— 

Mrs. CAPPS. When—excuse me. When could I and my constituents expect an answer to my letter? 

Mr. JACZKO. The Commission is working to try and get this issue 

resolved, but I would expect it is going to be at least a month before we will have some resolution on that broader question of the 

hearing process. But we certainly have it in front of us, and we are 

working to give you a good answer— 

Mrs. CAPPS. Thank you. 

Mr. JACZKO [continuing]. As soon as we have it. 

Mrs. CAPPS. I wanted to ask you about the current relicensing 

process. It is focused entirely, it is my understanding, on identifying and managing the detrimental effects of aging plants and facilities, not on reevaluating the threats that form the basis of the 

plant’s original design. Am I correct? 

Mr. JACZKO. That is correct. 

Mrs. CAPPS. Now, our understanding of seismic threats has improved dramatically since most nuclear power plants were originally designed and licensed 30 or more years ago. And on top of 

that, we are now tragically learning lessons from Japan. The one 

thing we have learned loud and clear is that seismic issues must 

be thoroughly examined and incorporated in all design, construction, and operating phases of nuclear power. 

I appreciate that the NRC continuously reviews threats, but, as 

you know, in California, researchers have found new flaws close to 

Diablo Canyon. And it would follow that based on what—that plus 

what happened in Japan, that this information should be considered in the relicensing process just as it would be in the licensing 

of a new nuclear power plant. And I remind you of the history of 

the nuclear plant at Diablo Canyon when, as they originally were 

building it, they discovered the Hosgri Fault offshore. Had to stop, 

redesign it to the cost of billions of dollars to rate payers, and adjust it based on that new discovery. 

So my question, does the NRC have plans to examine seismic 

hazards of nuclear power plants design basis within the scope of 

their relicensing process? 

Mr. JACZKO. Well, the—currently, as you indicated, the relicensing process is focused on the aging management programs. If 

there ever were to develop information about new seismic informaVerDate Nov 24 2008 09:51 Jan 13, 2012 Jkt 037690 PO 00000 Frm 00058 Fmt 6633 Sfmt 6633 G:\PRINTING\HEARINGS FOR REVIEW--112TH\112-43.PDF WAYNE
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tion, much as has occurred with Diablo Canyon with the shoreline 

fault, we take that information and we process that immediately. 

And we are currently reviewing the analysis that has been done by 

P. Genie with regard to the shoreline fault. 

So we don’t wait for the relicensing for that action to be taken. 

Mrs. CAPPS. Well, for example, last month, the NRC’s region four 

staff was asked by the California legislature if they would withhold 

releasing their environmental impact report for license renewal at 

Diablo Canyon, and the answer was no. The fact is that my constituents want the NRC to immediately stay the license renewal 

application for Diablo Canyon. They want you to work with experts 

within my state to update seismic data and mapping for a reactor 

site that lies within 5 kilometers of four active earthquake faults. 

We have time. This relicensing is not due until 2025, and I want 

it entered into the record, if I may ask, the response of the USGS 

to the California Energy Commission when they inquired as to the 

state of seismic research. And I want to quote one sentence here. 

‘‘Given our current’’—this is USGS. ‘‘Given our current state of 

knowledge, we cannot rule out the possibility of a rupture on the 

shoreline fault, triggering a rupture on the Hosgri Fault or vice 

versa.’’ 

In my opinion, this begs for the use of 3D high-resolution studies 

to be done. And even though P. Genie says they are doing them, 

they are not asking for a stay in the process. They want this to continue. 

The bottom line is for the confidence of my constituents, and I 

believe for the American people, and the fact that we do want clean 

energy that nuclear power can give us—I am not asking for a shutdown of the facility. But these questions could be answered before 

the relicensing is proceeding any further because the situation in 

Japan looms so large on my conscience. And that we have a responsibility in the federal government to make sure that there is confidence, that the kind of energy we are seeking from nuclear facilities can be done so in an extremely safe manner. 

I don’t want us to look back on some, God forbid, horrific situation at either San Onofre or Diablo Canyon and say we had time. 

I can only imagine what the Japanese people are saying now following that tragedy, and we have an opportunity to use the latest—I am sorry you are having to hear my strong feelings here— 

that the desire of my constituents and, I believe, the American people, to have the latest of technology, 3D studies, done by an independent third party has every right to be fully examined before the 

licensing process is pushed any further. 

That was the substance of my letter to you, and I am using this 

time now to underscore the importance of that for, I believe, for our 

energy policy in this country, but certainly for my constituents. 

And I yield back. 

Mr. SHIMKUS. Gentlelady yields back, but I want to get confirmation. Do you want that letter submitted? Can we look at it? I am 

sure we will, but we want to make sure. We haven’t seen it yet, 

so we will take a look at it, and then we will—and now the chair 

recognizes Mr. Terry for 5 minutes. 

Mr. TERRY. Thank you, Mr. Chairman. Before I get to my question, I just want to express an observation here in that—or a conVerDate Nov 24 2008 09:51 Jan 13, 2012 Jkt 037690 PO 00000 Frm 00059 Fmt 6633 Sfmt 6633 G:\PRINTING\HEARINGS FOR REVIEW--112TH\112-43.PDF WAYNE
54 

clusion that I am very disturbed at this Commission. I think we 

have now found the most secretive agency or Commission on Capitol Hill. I used to think it was the Federal Reserve, but I think 

you guys take it. 

The level of noninformation from this panel is frustrating. Circular discussion and just, in normal human nature, when there is 

a void of information, it is filled with some information, which 

leads to conclusions, maybe true or misplaced, that perhaps this is 

a politically-run organization now. 

And certainly when we hear of whether or not there is votes or 

no votes or statements and state of approval or nonapproval, and 

you get to say I don’t vote, but yet that counts for a vote in the 

chairman’s mind is very disturbing. And so one of the recommendations I would make, Mr. Chairman, is that perhaps we need to legislate transparency into this organization. 

And I am disturbed or concerned that some of my colleagues on 

the other side of the aisle here seems to want to just ask non-related questions to the apparent dysfunction of this Commission and 

its Commissioner, or its chairman. But help me clarify because I 

think this is a key component here. On the high-level waste program, I want to know when was the policy to begin the closeout 

of the high-level waste program established at the NRC. 

And, Ms. Svinicki, when was that established? 

Ms. SVINICKI. I do note that the Commission established a policy 

of shutting down the Yucca Mountain program. This gets to the interpretation of nonparticipating as an affirmative act, meaning that 

it establishes—it establishes an outcome certainly, but I don’t believe that having a majority of the Commission not participate in 

a policy proposal results in establishing a new—— 

Mr. TERRY. Which is an interesting procedure that, whether it is 

a tie or three to one or one to three, we will never know. Then 

somehow gives carte blanche power to the chairman to proceed as 

he or she wants to. Mr. Magwood, would you agree with Ms. 

Svinicki’s statement that there was no establishment of a closedown policy? 

Mr. MAGWOOD. I don’t think that the Commission has taken an 

active decision to close down the program. I do think—— 

Mr. TERRY. But the chairman has. 

Mr. MAGWOOD. The chairman clearly set a direction towards 

close down, and as I indicated—— 

Mr. TERRY. Mr. Ostendorff—I am sorry to cut you off, Mr. 

Magwood. I just looked up and saw I only have a minute, 14 left 

and two other questions. Mr. Ostendorff, do you feel that this policy of close down has been established? 

Mr. OSTENDORFF. I was informed verbally by the chairman on 

October 1 of the intent to provide the direction that he has described, to shut down the licensing activities. My document here I 

am reading from is my COM issued October 6, which I tried to convince my colleagues during the pendency of the contending resolution, the staff should continue to follow the schedule to complete 

safety evaluation documents for Yucca Mountain. 

Mr. TERRY. All right, my 40 seconds left, Chairman Jaczko. 

When was the policy to begin closeout of the high-level waste program established, how was it communicated to your fellow ComVerDate Nov 24 2008 09:51 Jan 13, 2012 Jkt 037690 PO 00000 Frm 00060 Fmt 6633 Sfmt 6633 G:\PRINTING\HEARINGS FOR REVIEW--112TH\112-43.PDF WAYNE
55 

missioners and to the public, what are the documents, are there 

transcripts of the votes, and what lead you to this decision to close 

out? And you have 8 seconds. 

Mr. JACZKO. Did I use them up? I—the decision ultimately was 

in a memo. Well, really the first indication was when DOE indicated their withdrawal of the application, I believe, which is in 

March of—I am going to get my years wrong—2010, I believe. 

There was a memo that was circulated to the Commission indicating that based on the fact that the application was being withdrawn, that the staff would be moving into closeout. At the beginning of the fiscal year, 2011 fiscal year, a memo was issued from 

our executive director of operations, who is essentially the chief operating officer, and the CFO, indicating that the staff should effectively begin close-down of the program. 

As Commissioner Ostendorff indicated, he then—and I was comfortable with that decision in my executive authority as chairman 

of the agency. I was comfortable in that decision and moving forward in that way. Commissioner Ostendorff then, as is his right, 

made an argument that that was, in fact, a policy issue that should 

have been considered by the Commission. The Commission did not 

support that. So the policy decision ultimately was made with the 

memo that had my concurrence issued in early October. I think you 

have a copy of that. We can get you a copy of that exact memo. 

Mr. TERRY. Yield back. 

Mr. SHIMKUS. We are policymakers. We don’t make decisions 

based upon memos. I would like to recognize Diana DeGette for 5 

minutes. 

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

Jaczko, I wanted to talk to you for a minute about a concern that 

you know that I have, which is what are we going to do with the 

nuclear waste that we have sitting around at all of the sites around 

the country? Spent fuel was an issue at Fukushima when they 

were trying to control the emissions. And I am wondering about 

what our long-term plans are in this country for it. 

As I understand it, we have about 63,000 metric tons of spent 

fuel, including both dry cask storage and the spent fuel pulls. Is 

that correct to your knowledge? 

Mr. JACZKO. About that number, yes. 

Ms. DEGETTE. And how many years has that built up over? 

Mr. JACZKO. Well, we have some facilities that have been operating for over 40 years. So some of that fuel goes back that far. 

Ms. DEGETTE. So it is built up over the period of about 40 years. 

And as I understand it, even if we did certify Yucca Mountain, that 

facility, at least according to the original plan, was statutorily limited to 70,000 metric tons, correct? 

Mr. JACZKO. I believe that is the correct sum. 

Ms. DEGETTE. So with 63,000 metric tons sitting around right 

now and 70,000 tons, even if we did certify Yucca, that really 

wouldn’t address the long-term problem if we are going to develop 

more nuclear power in this country about what do we do about the 

waste problem, correct? 

Mr. JACZKO. Yes, there certainly would be a shortage of storage 

capacity even with that. 

56 

Ms. DEGETTE. Right, so my question is, I guess, what is the 

Commission doing, as we think about developing nuclear power in 

the future, aside from all the safety issues and the certification and 

all of that? I mean whether or not you assume that we are going 

to reopen the whole discussion about Yucca, what is the Commission doing about planning for long-term storage issues around 

spent fuel? 

Mr. JACZKO. Well, first and foremost, our focus is to make sure 

that the fuel can be stored safely and securely, and right now, we 

believe that it can be. The Commission recently made a policy decision about our belief that certainly for at least 60 years beyond the 

licensed operation of a facility, that the spent fuel can be made, 

stored safely and securely in a combination of wet or dry storage. 

In addition to that, we have asked the staff of the agency to look 

at a longer term timeframe, maybe 200, 300, 400 years to make 

sure that there are no real substantive problems with the safety 

and security of that fuel over that period of time. 

And in addition then, there are efforts ongoing. There is a blueribbon commission that the Commission is not directly involved in, 

that the secretary of energy convened, to really answer that much, 

much longer timeframe question about what are the best ways to 

deal with this fuel? Whether it needs to be reprocessed, whether 

it can be put into a geologic repository, or other some type of other 

approach for reprocessing or recycling. 

Ms. DEGETTE. So I guess my view would be that I think it is important, if we are really going to look at development of nuclear energy, not just to say well, we think that we can safely store the 

spent fuel on site the way we are now. We can just kick that can 

down the road for 60 or 100 or 200 years. 

My view would be, as we start to think about whether nuclear 

power really is a viable, either a bridge fuel or a long-term fuel, 

that we are really going to have to have some clear idea of what 

we are going to do. And if that would require some appropriations 

or efforts from Congress, I think that is something to do. I think 

just saying well, you know, would it be safe for us to leave all this 

spent fuel sitting on site for 200 years? I don’t think that is the 

discussion we should be having. I think we really need to grapple 

with what we are going to do. And, Mr. Chairman, I guess that is 

all I have to say, and I yield back. 

Mr. SHIMKUS. Gentlelady yields back. For my colleague from 

California, we looked at the letter, and we will accept it under 

unanimous consent. So ordered. 

[The information follows:] 

57 


71667.021
58 


71667.022
59 


71667.023
60 


71667.024
61 

Mr. SHIMKUS. Now the chair recognizes my colleague from Ohio, 

Mr. Latta, for 5 minutes. 

Mr. LATTA. I thank the chairman, and I thank the Commissioners for being with us today. And I too have got some questions 

as to how things proceed at the Commission. Can I ask you right 

off the bat, when you are voting, is that something under regulations or under statute as to how you proceed? Ms. Svinicki? I am 

sorry. 

Ms. SVINICKI. Yes, the statute, I believe, references that the 

Commission will develop policies and procedures for how it conducts its business. 

Mr. LATTA. OK, thank you. And Commissioner Ostendorff, can I 

ask you how would you define collegial voting process? 

Mr. OSTENDORFF. I would say that that describes an environment where each individual can study an issue, can engage their 

colleagues. We typically meet one on one with each other every 

week governed by the government in the Sunshine Act requirements, and we can exchange our views and positions in informal 

meetings, and then proceed to cast a vote. This is a formal written 

notation vote under our procedures. And that becomes our position 

on a matter. Then those votes are used to hopefully come to a majority position. The Commission can announce, in the case of an adjudication, as the results of an order. 

Mr. LATTA. OK, if I could ask Commissioner Magwood. You had 

said a little bit earlier, and I hope I got this correct. You said on 

some occasions you are not getting the information, but the majority of the time you are. And you just heard from your fellow Commissioner that you get time to study the issue and exchange views 

and get the information. But if you are not getting the information, 

how can you exchange views properly and make a proper decision? 

Mr. MAGWOOD. Well, in the case of matters where we have a 

vote, I don’t think there has ever been a case where I have been 

unable to get information to support my ability to render a judgment. 

Mr. LATTA. OK, and, Commissioner Svinicki, you said that there 

has been times, if I wrote this down properly, you said that there 

have been—it has been pushed back and not being ready. Could 

you explain that a little bit when you are getting, like you are getting all the information before you have to make a decision? You 

say you are getting some push back? 

Ms. SVINICKI. Yes, policy matters come before the Commission 

for its deliberation and voting as a number of ways. As we have 

heard, Commissioners can themselves propose a policy matter to be 

voted on, but the agency staff can also develop policy issues and 

bring them forward to the Commission. When I indicated that 

there is occasionally issues of ripeness or when an issue is ready 

to be brought to the Commission, that was the push back that I 

referred to is if it is an issue arising from the agency staff being 

brought to the Commission for the deliberation, it may occasionally 

be—there may be timing issues. 

Mr. LATTA. OK, and I wanted to make sure I understood this. 

Commissioner Magwood, when Mr. Pitts was asking some questions, you said that dealing with what the word closeout meant, 

62 

and you had a problem with that. Could you explain that, something in regards to what closeout meant? 

Mr. MAGWOOD. When the issue of closing out the program first 

came up in the context of the convening resolution, it was clear 

that the language of the previous year’s appropriation did not 

clearly authorize closeout of the program. But it seemed to me at 

the time that the fact that we had such limited resources, that it 

was a—as a person who has managed government programs, it was 

in my view a reasonable choice to begin planning to go towards a 

position where the program would be out of money by the end of 

the fiscal year, and then we would have to be ready for that. 

Mr. LATTA. OK, and then again this is for all Commissioners, 

Svinicki, Magwood, and Ostendorff. On page 12 of the chairman’s 

testimony today notes that the 2011 appropriations bill provides 

$10 million for the NRC staff to complete the effort to thoroughly 

document the staff’s technical review and preserve it as appropriate for publication and public use. 

Are we to interpret that statement from the chairman to mean 

that the Appropriation Committee earmarked the $10 million to 

mothball the Yucca license review? Commissioner Ostendorff? 

Ms. SVINICKI. I do not interpret the Congress’s action on the 

funding bill to have directed the NRC to shut down the program. 

Mr. LATTA. Commissioner Magwood? 

Mr. MAGWOOD. I think that the process to decide exactly what 

we mean by shutdown is a decision the Commission has to make, 

and I have offered a COM to the Commission to try to move towards deciding that, but we haven’t resolved that. 

Mr. LATTA. Thank you. Commissioner Ostendorff? 

Mr. OSTENDORFF. I agree with Commissioner Svinicki’s comment. 

Mr. LATTA. Thank you very much. Mr. Chairman, I yield back. 

Mr. SHIMKUS. Gentleman yields back his time. Chair now recognizes my colleague from Georgia right next to me, Mr. Barrow, for 

5 minutes. 

Mr. BARROW. I thank the chairman. Members of the Commission, 

I represent Georgia’s 12th District, which is the home of Plan 

Vogtle. Vogtle was, as you may know, the last nuclear power plant 

to be commissioned in this country over a quarter of a century ago, 

and it just happens to be the site of the next nuclear power plants 

to be commissioned in this country as a result of many, many 

things going on right as we speak. 

Policy makers at both the state and the federal level had a huge 

role to play in this. At the state level, legislators given the owner/ 

operator the permission to start charging rate payers long in advance without getting any return on their investment. So Georgia 

rate payers are already paying for the construction cost in order to 

lower the amount of borrowing that has to be done to build the 

thing. 

At the federal level, the last administration signed into law and 

this administration is implementing for the first time loan guarantees to reduce the cost of the borrowing that does have to take 

place. So at the both the state and the federal level, the rate payers, the policy makers at both levels doing everything they can to 

re-inaugurate or re-jump start the nuclear renaissance in this 

country that is going on right now. And we have gotten just about 

63 

as far down the road as you can with preparation before we have 

to start building the thing itself. 

And I want to commend you all, commend you and your staff for 

the role that you all have been playing in this because it is a major 

development. I think the folks I represent recognize that Vogtle is 

a unique and really valuable asset, and they are proud about its 

prospects. And I want to commend you all for what has happened 

thus far. 

What I want to ask about is—and I know we are concerned about 

learning the lessons from the events in Japan. The question I have 

for you all is what can the folks who are developing the new sales 

at Vogtle expect as a result of the review of the events in Japan? 

Mr. Chairman, can you elaborate on that? 

Mr. JACZKO. Well, we have—there are really two stages to the review. The first stage is a 90-day review. That is about a month into 

that review. So in about another 60 days, we will have some preliminary information about possible changes we would need to 

make to our regulations. If there were changes that were necessary, those would fall into really one of two categories. Changes 

that are fundamental to safety and changes that are really more 

enhancements to safety. 

If they are fundamental change to safety, then all plants would 

really have to look at those without regard to cost or other considerations. If they are factors that involve kind of enhancements to 

safety, then they would fall under our provisions that require us 

to do essentially a cost/benefit justification for making those 

changes. 

So a perspective license application would potentially fall under 

one of those two categories, but the goal is to try and get all the 

work done before we have to make any final decisions on these new 

licenses. But certainly that will be—it will be a challenge to get 

there, but I think we have some good people working on it. And 

I think they understand the importance of identifying what the lessons are, identifying them early, and then laying out what the 

changes are that might be necessary. 

So we will continue to communicate very well, I think, with all 

of our applicants about possible changes and keep them informed 

as we go forward. 

Mr. BARROW. Anybody else on the Commission wish to elaborate? 

All I will add is—thank for the explanation—is just to understand 

that they are actually building the thing. Huge investments have 

been made. Commitments have been made. The rate payers are already paying for something. They haven’t got a return on their investment yet, and the state and the federal governments have both 

combined and cooperated to try and make this possible. So I urge 

you all to approach this review in the most constructive manner 

possible. 

You decide what is best, and I understand that is where we are. 

And I want to again commend you all and your staff for the work 

that you all have done thus far. And with that, Mr. Chairman, I 

yield back. 

Mr. SHIMKUS. Gentleman yields back his time. Chair now recognizes the gentleman from Texas, Dr. Burgess, for 5 minutes. 

64 

Mr. BURGESS. And I thank the chairman for the recognition. My 

apologies for being out of the room on some of these questions. So 

if I am covering ground that has already been covered, bear with 

me. That is what the committee process is all about. 

Chairman Jaczko and any of the other Commissioners who wishes to answer, on the budget approved by the Commission, the 2011 

budget approved by the Commission in February 2010 appeared to 

set conditions for ending review of the Yucca application. Is that 

an accurate read of the budgetary document? 

Mr. JACZKO. The 2012 budget has zero funding for the Yucca 

Mountain review. 

Mr. BURGESS. But what about for the year 2011? 

Mr. JACZKO. For 2011, the appropriation approved by Congress 

was for $10 million, which is for closeout of the review. 

Mr. BURGESS. And the Department of Energy has made a motion 

to withdrawal the license, but that motion was denied by the Nuclear Regulatory Commission. Is that correct? 

Mr. JACZKO. A licensing board at the NRC denied that motion. 

The Commission as a whole has not rendered a final action, but I 

would note that those actions are separate from the budgetary decisions. The budgetary decision goes to our review and ultimately our 

general activities. So it is possible for the agency to close out the 

review with the legal question of withdrawal still outstanding. 

In essence, it would be mothballed and all the documents would 

be frozen in time, as they are. That legal question would be frozen 

in time, but from a practical matter, there really isn’t that much 

of a difference, I think, because the Department of Energy has no 

funding. The program has been terminated at the Department of 

Energy at this time, and it has been terminated now for over a 

year. 

Mr. BURGESS. Yes, and I will just share with you, having been 

there with Chairman Shimkus last week, I mean I was shocked by 

the lack of activity, the inactivity after such a sizable investment. 

As Mr. Barrow has indicated, the rate payers have invested this 

money. And again I was shocked by what I saw. But at this point, 

the application has not been withdrawn. Is that correct? 

Mr. JACZKO. It is still—the application is still in front of the 

Commission, and the question of withdrawal is in front of the Commission. But again from a budgetary perspective, we are closing 

out our review and intend to close out by the end of this year. 

Mr. BURGESS. Well, have the policy conditions been met to begin 

the termination? 

Mr. JACZKO. We have received a congressional appropriation for 

$10 million which is to close out the program. The issues about the 

policy conditions again, we—I have perhaps answered this question 

many times in front of this committee. We have reviewed all of the 

questions and all of the issues that have been raised by my colleagues here, and those were ultimately reviewed by the Commission in Commissioner Ostendorff’s communication about whether or 

not this was the appropriate action for the Commission to take. 

And I would note that Commissioner Ostendorff, in a meeting 

that we had in October in front of the entire NRC staff, indicated 

that he had disagreed with the decision. That decision was looked 

at by the Commission, and he ultimately respected that the majorVerDate Nov 24 2008 09:51 Jan 13, 2012 Jkt 037690 PO 00000 Frm 00070 Fmt 6633 Sfmt 6633 G:\PRINTING\HEARINGS FOR REVIEW--112TH\112-43.PDF WAYNE
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ity of his colleagues did not agree with his interpretation. So that 

issue was put to rest in October of that year. 

Mr. BURGESS. Well, just so I am clear on this, the budget guidance issued by the Nuclear Regulatory Commission in February 

2010 says ‘‘upon withdrawal or suspension of the licensing review, 

the NRC would begin an orderly closure of the technical review and 

adjudicatory activities.’’ 

Now, Ms. Svinicki, if I could ask you, you were on the Commission when this budget language was debated. Is that correct? 

Ms. SVINICKI. Yes, I was part of the three-member Commission 

at that time that voted on the budget request that you have just 

quoted. 

Mr. BURGESS. And why was that language included in the budget 

document? 

Ms. SVINICKI. If I am remembering events correctly, there might 

have been language in the draft budget request that I was voting 

on that had said something about assuming the withdrawal of the 

application. I had in my vote on that budget request language revised—proposed to revise that language to upon the withdrawal or 

suspension instead of assuming the withdrawal or suspension. And 

that garnered majority support, and that is why it reads as you 

have just quoted it. 

Mr. BURGESS. So the language then is not an accident. It was actually voted on by the Nuclear Regulatory Commission? 

Ms. SVINICKI. Yes. 

Mr. BURGESS. Commissioner Ostendorff, the question I previously posed to Chairman Jaczko on the guidance issue in February 2010, do you have—and you were a dissenting opinion on 

that? 

Mr. OSTENDORFF. I was not—Congressman, I was not on the 

Commission in February 2010. I assumed duties April 1, 2010, so 

I was not involved in the decision process that Commissioner 

Svinicki nor Chairman Jaczko were at that time. 

Mr. BURGESS. Right, but Chairman Jaczko referenced a debate 

that was voted in October. 

Mr. OSTENDORFF. Yes, the chairman has accurately stated the 

situation from October of last year where an all-hands meeting in 

Rockville with NRC staff. There was probably 1,500 people there. 

We had acknowledged that—I disagreed with the chairman’s approach in this, but we had—I respected also that my colleagues on 

the Commission had made a different decision. 

Mr. SHIMKUS. Gentleman’s time has expired. Chair recognizes 

the gentleman from Washington State, Mr. Inslee, for 5 minutes. 

Mr. INSLEE. Thank you. We have great concern in the state of 

Washington. We are spending millions plus vitrifying waste that 

has been left over from us winning the Cold War and helping the 

country in that regard. And now we are vitrifying this waste, and 

it is all dressed up with no place to go. 

And it is accumulating, and we are ready to go. And we are doing 

our job in the state of Washington, but we are stuck in this situation where Uncle Sam is not fulfilling its statutory obligation to 

open up this repository, and it causes us great concern in the state 

of Washington, both from the standpoint of efficiency that we are 

doing this great work vitrifying the waste, and from the standpoint 

66 

that we have these hundreds, over 100 now what are supposed to 

be temporary sites. This is of great concern to us. 

So I just want to ask the chairman my understanding is that the 

NRC staff was reviewing the Yucca Mountain application using 

2010 funds. It was heading in that direction, and then without contrary direction from Congress, when the stop-gap CR came in to 

the 2011, it basically reversed course without statutory authority. 

Is that, in fact, what happened here? 

Mr. JACZKO. No, I don’t believe that it what happened. 

Mr. INSLEE. And why do you think it was a different situation? 

Mr. JACZKO. At the beginning of the 2011 fiscal year, we were 

operating under a continuing resolution. We had had an application for the Yucca Mountain project that had been withdrawn. At 

the beginning of that fiscal year as well, the program had been terminated by the Department of Energy so there is no longer a Yucca 

Mountain program. 

So at that time, what I did was look at general practices for appropriations law for dealing with a continuing resolution and made 

a decision to move to close down of the program. That was based 

on the fact that partially at that time, the Senate had approved a 

reduction in the budget for the NRC and the House as well. 

There had been, at I believe a subcommittee level, there had 

been a mark to indicate a reduction in the budget for close out. 

And based on guidance from circulary 11 from the OMB as well as 

GAO guidance, the appropriate and prudent action at that point 

was for us to move to close down activities to preserve that option 

for Congress, which ultimately is what Congress wound up approving, which was a dramatic reduction in our budget to $10 million 

while zeroing out the program at the Department of Energy. 

So based on all of that, I am confident we took the right steps 

so that we are prepared to complete our action for closing out the 

program by the end of this fiscal year. 

Mr. INSLEE. So I would like to put in the record a memorandum 

dated October 8 from Commissioner Ostendorff, which basically 

says, ‘‘I believe that it is inconsistent with the intent of the continuing resolution to direct the staff to follow direction in the budget request for fiscal year 2011. My conclusion comes not only from 

a plain reading of the continuing resolution and applicable guidance, but also from my past experience as Principle Deputy Administrator at NNSA and as counsel for the House Armed Services 

Committee.’’ 

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Mr. INSLEE. Now, to me, the only reading I can have of this scenario is that there was a decision made here politically without 

statutory guidance. And that is most concerning. Commissioner, 

would you like to comment on this? 

Mr. OSTENDORFF. Congressman, you have my memo there. We 

have already discussed in the hearing, but just to summarize, I 

had, at that point in time, very strong beliefs that the position that 

I had advocated in my memo was the correct position that the 

Commission should take. I disagreed with the direction provided to 

the staff and used the COM vehicle, this memorandum, as hopefully the advocacy document to get my colleagues on the Commission to agree with my position, which is that the staff should continue high-level waste licensing activities until there has been a 

withdrawal of the license application decision or until there has 

been a decision to suspend those activities. 

I was unsuccessful in getting a majority of my colleagues to 

agree to that position. 

Mr. INSLEE. Now, the situation is that the Atomic Safety and Licensing Board is an independent, trial-level, adjudicatory body. 

They have issued a ruling that the DOE cannot withdraw the application. On what grounds can your organization ignore that clear 

adjudicatory ruling that stands as of this moment? I just—it just 

boggles my mind to think that they can just be ignored in this regard. 

Mr. JACZKO. Congressman, the Commission has not yet acted on 

that particular matter. The budget issues are a separate matter. 

We will be done with close out by the end of this fiscal year. At 

that time, if those legal questions are unresolved, they are unresolved. 

But I would just remind you there is no program at the Department of Energy anymore for high-level waste. That program and 

that office were terminated almost two years ago now. There is no 

longer any Yucca Mountain program. So, you know, I think that 

this is the best analogy is a developer wanting to build a shopping 

mall and the fire marshal conducting inspections and reviewing fire 

safety for that particular shopping mall and the developer deciding, 

after two years, to stop work and stop developing the project. The 

fire marshal doesn’t still go out and tell the developer to keep 

building so they can conduct their licensing inspections. That is the 

scenario that we have. 

We are not in charge of the Yucca Mountain program. That is a 

Department of Energy program. It has been terminated. It ultimately would be a tremendous waste of taxpayer dollars to continue to review an application for which there is no applicant, and 

that is the situation we find ourselves in from a budgetary standpoint. 

Mr. INSLEE. I would just point out that I don’t think it is the private citizen’s right to tell the fire marshal what they are doing. 

That is the metaphor I would suggest. Thank you. 

Mr. SHIMKUS. Gentleman’s time has expired. Chair recognizes 

the gentleman from Louisiana, Mr. Cassidy, for 5 minutes. 

Mr. CASSIDY. Thank you. Ms. Svinicki, I am sorry if I mispronounce your name. Won’t be the first time, I am sure, for you. 

I have been here 3 years, and when you said something earlier, 

70 

way earlier, I asked a question—it is like you were asked how 

much you know, and you replied somehow that no, you are really 

being asked what you don’t know that you know. It suggested a 

lack of forthrightness on behalf of the staff. If you ask a question, 

they answer you directly, but they are not necessarily generous and 

contextual with the answer. Is that—was that a fair characterization of what you said? 

Ms. SVINICKI. I would characterize the NRC staff has an inclination to be forthcoming to every member of the Commission. I think 

that what they have to do is adjudicate issues of rightness and 

when it is that they would bring matters before the Commission. 

If they desire to do additional work, they may suggest to me as an 

individual member of the Commission that the matter is not ripe 

for me, for my review at that time. 

Mr. CASSIDY. When you say desire to do individual work, what 

do you mean by a desire to do individual work? Like this is an interest that is a personal interest on their part or an interest of the 

Commission or of the chairman? Or do you follow what I am saying? I am not quite sure I know what you mean by a desire. 

Ms. SVINICKI. Desire on my part would be an issue in which I 

have developed some interest as an individual member of the Commission. It is not perhaps before the Commission as a body but in 

pursuing oversight of the staff’s work, I may develop a personal interest in some area that they are working on. 

Mr. CASSIDY. I am sorry. You mentioned their desire though. 

How would their desire impact your activities? 

Ms. SVINICKI. Perhaps desire is a poor choice of words. It may 

be their evaluation that they should do additional work on a matter before it comes to the Commission. It may be their expert judgment that there is additional work that they need to do prior to the 

Commission considering it. 

Mr. CASSIDY. So you have no problem with how the staff deals 

with your issues? 

Ms. SVINICKI. My experience is that the staff is almost uniformly 

inclined to keep the Commission fully and currently informed. 

Mr. CASSIDY. OK, that is wonderful. Now, there is also a letter 

that, I gather, that when Chairman Issa and another committee requested the Volume 3 of the draft Safety Evaluation Report of the 

Yucca Mountain license application. Four of you signed a letter, 

and it is a little cryptic. But I am told that reading between the 

lines, it suggests that the chairman had not sent the full report. 

Or, put it this way, that you wished to weigh in that there may 

be a problem with the report as sent. I think this is already in the 

record. I can give it to you if you wish. 

Mr. SHIMKUS. If you are asking for it, we will look at it as we 

do all—— 

Mr. CASSIDY. No, I am just—— 

Mr. SHIMKUS. Let me just say that as a factual matter, I transmitted that report to Congressman Issa. The particular—— 

Mr. CASSIDY. Can I ask the other—excuse me, Mr. Chairman, 

but can I ask the folks that signed this what was the purpose of 

the letter? Mr. Magwood, I just don’t—I don’t understand it. 

Mr. MAGWOOD. The Commissioner has a process to formally approve correspondence to Congress and the correspondence genVerDate Nov 24 2008 09:51 Jan 13, 2012 Jkt 037690 PO 00000 Frm 00076 Fmt 6633 Sfmt 6633 G:\PRINTING\HEARINGS FOR REVIEW--112TH\112-43.PDF WAYNE
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erally. And the Commission had come to some agreement on what 

the transmitting letter would say, and the letter that was purposed 

to be sent was different from what we had agreed to. 

Mr. CASSIDY. So the Commission decided upon the content of a 

letter, but the chairman sent a different letter? 

Mr. MAGWOOD. That is correct. 

Mr. CASSIDY. Wow, now—wow. 

Mr. JACZKO. Congressman, if I could just add, the—— 

Mr. CASSIDY. Yes, let me finish with these folks because you are 

very opaque when you speak, Mr. Chairman. But frankly, I am getting the sense of a group of folks who don’t find a collegial atmosphere, but rather find—in fact, I noticed that you quoted earlier, 

you used the personal pronoun ‘‘I decided’’ regarding the budget. 

And then ‘‘we issued’’—— 

Mr. JACZKO. That is correct, as well as other colleagues indicated 

that. 

Mr. CASSIDY. You said ‘‘I decided.’’ Then you said the collective 

‘‘we’’ as if the ‘‘we’’ then signed on. 

Mr. JACZKO. Congressman, I can just provide you a copy of—— 

Mr. CASSIDY. Mr. Ostendorff, what was your feelings about the 

fact that a different letter was sent aside from the one that the 

Commission approved? 

Mr. OSTENDORFF. I had strong issues, and I, basically through 

my staff, told the chairman’s office that we did not agree with the 

version that he had. Four of the Commissioners had agreed to a 

particular version, and a different letter went out. And I did not 

agree with the tone or some of the context of what the chairmen 

sent. So I joined my other colleagues to send the letter that you got 

in your hand. 

Mr. CASSIDY. I really get a sense that there is a lot that is 

unspoken here, but in a sense that oftentimes the Commission as 

a whole does not sign on to that which the Commissioner, the 

chairman, decides is going to be the course of the Commission as 

a whole. That the chairman, if you will, informs you after the fact 

and then uses the collective ‘‘we’’ when initially it was ‘‘I,’’ he that 

made the initial decision. Is that an unfair characterization? 

Mr. OSTENDORFF. I would like to comment if I could on that. I 

think the chairman and his office, I would say, were transparent 

and clear with our office that they disagree with the letter we had, 

the majority had viewed on, that he was going to proceed differently. But his staff was, I would say, up front, Congressman, in 

telling us that he had a different approach to it. 

Mr. CASSIDY. Was that after his initial letter had been sent 

or—— 

Mr. OSTENDORFF. It was final to the final version going from the 

chairman’s office. 

Mr. SHIMKUS. Gentleman’s time has expired. Chair recognizes 

the gentleman from Massachusetts, Mr. Markey. 

Mr. MARKEY. Thank you, Mr. Chairman. First of all, Chairman 

Jaczko, I want to commend you for your commitment to following 

the science and the requirements of law as you have dealt with 

Yucca Mountain and Fukushima and other important matters before the Commission. I want to commend you for following the law 

and the science. And I would also like to give you 15 seconds to 

72 

respond to the discussion that was just taking place here so you 

can explain the role of the chairman at the Nuclear Regulatory 

Commission. 

Mr. JACZKO. Well, Congressman, I appreciate that. I think—I 

mean ultimately it is my job as chairman to serve as the chief 

spokesperson and also as the chief congressional liaison for the 

agency. So, you know, this is an internal matter in the Commission. I think it is unfortunate that we are distracted by something 

like this, with all due respect to the committee here. My focus as 

chairman has been to focus on safety and nuclear safety. 

With any collegial body, there are always going to be differences, 

and in regard to the particular letter, the letter that I sent expressed my views which are different from the Commission on the 

transmittal of this particular document. I offered all of my colleagues an opportunity to send whatever additional documents 

they would like as part of that transmittal. None of my colleagues 

took me up on that opportunity, and then after the fact, they decided to send a different letter. 

So, you know, I think it is unfortunate that this is where we are, 

but what I care about is nuclear safety. And I will continue to do 

what I think is right in the interest of nuclear safety. 

Mr. MARKEY. Mr. Chairman, it sounds like you made a fair offer 

to the other Commissioners that they rejected. So I commend you 

on giving that opportunity, and perhaps they could explain why 

they didn’t take you up on that offer. Seems like that was the regular protocol that they should have followed, to be honest with you. 

And I don’t know why they are off as, you know, independent operators here rather than working with in a framework that, it seems 

to me, is long established at the NRC. 

Chairman, Jaczko, on March 21, you proposed a review of U.S. 

nuclear power plant safety in the wake of the Japanese meltdown 

and said that its results would be released publically. But Commissioner Magwood then counterproposed that it only be released publically after the NRC Commissioners voted to approve its release. 

I understand why the Commission should vote on the regulatory 

steps needed, but other safety documents, routinely released publically without a Commission vote to enable the release of those 

documents. Do you think it was a better procedure for you just to 

be able to release those safety documents so that the public could 

know what was taking place? 

Mr. JACZKO. I did. I thought this was such a high profile and important issue. It was important that the task force that we developed have its report provided publically and to the Commission for 

the Commission then to weigh in on. And I am pleased to say that 

in the end the Commission did wind up supporting that particular 

proposal, and I think it is the right decision. 

Mr. MARKEY. Yes, and I strongly disagree with the position 

which Commissioner Magwood took, and I just want to put that out 

on the record. Now, I have also learned from an NRC employee 

that inspectors were told not to investigate whether vulnerabilities 

like the ones that lead to the meltdown in Japan existed at U.S. 

reactors. 

When inspectors complained, that they were then granted permission to examine these vulnerabilities but were told to keep all 

73 

of their findings secret and out of the NRC’s public report. That is 

unacceptable, and I am asking each one of you to commit to me 

that these inspections will include an assessment of all 

vulnerabilities exposed in U.S. reactors and that all the results, except for those that are truly security sensitive, will be made part 

of the public record. Yes or no, Mr. Chairman. 

Mr. JACZKO. Yes. 

Mr. MARKEY. Yes. Commissioner Svinicki, yes or no? 

Ms. SVINICKI. The inspections are to our regulations, and aside 

from security findings, will be made public. That is my understanding, sir. 

Mr. MARKEY. OK, yes. Commissioner Magwood, yes or no? 

Mr. MAGWOOD. The inspections are meant to compare plant conditions with the requirements as per—— 

Mr. MARKEY. Is that a yes, Commissioner? 

Mr. MAGWOOD. Yes, will be made public. 

Mr. MARKEY. OK, yes. Thank you. Commissioner Ostendorff, yes 

or no? 

Mr. OSTENDORFF. I would like to explain. I don’t think a yes or 

no answer here is appropriate, Congressman, to be responsive. I 

think there has been a lot of confusion on matters that are either 

safeguards material or related to what is called the B5B inspections—— 

Mr. MARKEY. Anything that is security sensitive can be kept out. 

Everything else should be made public. Do you agree with that? 

Mr. OSTENDORFF. I agree with that. 

Mr. MARKEY. OK, thank you. As you know, the loss of electricity 

was the ultimate cause of the meltdowns in Japan. Will the postFukushima task force, Mr. Chairman, be looking at the question of 

whether emergency generators should be available for spent fuel 

pools even when there is no fuel in the reactor core? 

Mr. JACZKO. Yes, I think that is something we should be looking 

at. And the Commission, in fact, had a meeting on this issue of 

what we call station blackout, which is when all the electricity is 

lost, and that issue came up there as well, the need to ensure that 

spent fuel pools are covered. 

Mr. MARKEY. OK, thank you. Thank you, Mr. Chairman, very 

much. 

Mr. SHIMKUS. Thank you. Chair now recognizes the gentleman 

from Virginia, Mr. Griffith, for 5 minutes. 

Mr. GRIFFITH. Thank you, Mr. Chairman. I have to tell you, I am 

just really perplexed. I don’t understand your processes, and I don’t 

follow it. It doesn’t seem to me to be in the principles of little D 

democracy and little R republicanism, and I just don’t get it. So 

what I would like to know is I am not as concerned about the underlying policy at this moment as I am the fact that it doesn’t look 

like we can get policy. 

So where exactly are your rules, and how did you come up with 

if we don’t vote, it is a no vote? I mean, I understand there may 

be some procedural mechanism where that is, but how do you not 

participate, but it is equated as a no vote? That may be in your 

rules. Do you have a set of rules, Mr. Chairman? 

Mr. JACZKO. We do, and one of the options is for nonparticipation. 

74 

Mr. GRIFFITH. And can you provide those rules to us please? 

Mr. JACZKO. Absolutely, they are publically available on our Web 

site, but we can provide them. 

Mr. GRIFFITH. All right, I will get my staff to get them for me 

as well, but I would like to have those rules entered as part of the 

record because I think it may clarify some of the answers we have 

heard here today, which are hard to believe. 

Mr. SHIMKUS. Without objection, so ordered. 

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Mr. JACZKO. I think what you will find is that our procedures are 

overly complex. One of the things that I—— 

Mr. GRIFFITH. Hang on. I only get so much time. And who promulgates these rules? Did you all do that at prior commission? 

Mr. JACZKO. Prior commission. 

Mr. GRIFFITH. So you all could fix it? 

Mr. JACZKO. We could. 

Mr. GRIFFITH. Well, why don’t you? That would be a nice thing 

to do. And I am disturbed that you would say, Mr. Chairman, it 

is a shame we were being distracted by this because the way I 

heard that, and I am sure what it is not what you really meant 

was, it sure is a distraction to have to come talk to the elected officials of the United States of America. I am going to give you an 

opportunity to say that is not what you really meant. 

Mr. JACZKO. Of course that is not what I meant, and—— 

Mr. GRIFFITH. That is what I thought. 

Mr. JACZKO [continuing]. I have met with many of the members 

of this committee in one-on-one meetings and am always available 

to any members of the committee who would like to meet with me 

or any other members of the Commission. 

Mr. GRIFFITH. And do your rules not allow, like the Supreme 

Court does? Because you have got to make these decisions, and apparently a vote was taken. And now you all are arguing over, you 

know, commas and ands and buts. And so what I am trying to figure out is why can’t you have an opinion that says I agree with 

the majority, a concurring opinion that is somewhat different, or a 

dissenting opinion, and get this decision out there because it does 

appear from the outside that the foot dragging is an attempt to try 

to wait until somebody comes along that agrees with you more 

than apparently whatever votes you got behind the scenes. And I 

am guessing it wasn’t a two-two vote because if it was a two-two 

vote, you could have gotten an order that said we couldn’t reach 

an agreement. 

Mr. JACZKO. Well, again, and I think I can’t remember who is 

was mentioned that when you don’t have information, there gets to 

be a lot of speculation about motives and other issues. And again 

I can’t comment on the particular issue, but as you indicated, the 

Supreme Court is a good analogy here. This particular issue is 

done like a judicial issue where we do not deliberate in public. The 

results are only released with the final decision when the Commission comes to that final decision. We don’t yet have that final decision. 

In all other regards, we strive to make—— 

Mr. GRIFFITH. But wouldn’t you agree, based on what I have 

heard here today, that you have made a decision. The argument is 

over what to put in the order. So it is not—you are not using your 

rules or you are not allowing—or you are not using the analogy of 

the Supreme Court there because they come out with a 5–4 decision, and maybe it is 3 and 2, three thought this way and 2 

thought that way, but they reached the final decision. 

It sounds like to me what I am hearing is you got a majority, 

but then you—because you can’t get a majority to agree on the specific reason why they reached that conclusion, you are not able to 

issue an order. And so wouldn’t it be better to go ahead and issue 

102 

the order with concurring opinions as opposed to having us—I 

mean you all are the people responsible for making these decisions. 

This took place—and I am new to this, so I am not somebody 

that has a long history with this. But a decision was made in August. It is May, and you all are still arguing over commas and jots 

and tittles. Not acceptable. 

Mr. JACZKO. I appreciate your concerns, and I can assure that, 

from my perspective, the Commission is not arguing over the trivial matters that you have discussed. The—— 

Mr. GRIFFITH. I don’t consider jots and tittles or commas and 

ands and ors to be trivial, but I do think that if a decision was 

made, you all need to get a decision out there so the people can 

start operating based on that decision instead of being in the dark 

as to what you all think should be done. 

Mr. JACZKO. And in my understanding and my view, the decision 

has not yet been made. That is what we are working towards. 

Mr. GRIFFITH. Well, I understand that, but a majority of the folks 

here seem to think a decision was made and you are just arguing 

over the language. That is what I have heard here today. I thank 

you, Mr. Chairman, and yield back my time. 

Mr. SHIMKUS. Gentleman yields back his time. I am concerned 

that I might have to figure out what a tittle is, but that will be 

for another hearing. The chair recognizes Mr. Engel for 5 minutes. 

Mr. ENGEL. Thank you very much, Mr. Chairman, for holding 

this hearing today. Chairman Jaczko, I understand that you are in 

the process of working out details for a visit next week to the Indian Point Energy Center, which is just outside my district. I 

would like to start by discussing the procedures used to relicense 

our nuclear reactors. I am very concerned about Indian Point, and 

I have called for its closure many, many years ago. 

I am not against nuclear power, but I think that is an antiquated 

plant located near New York City. If it was being built today, it 

would never been sited there in Buchanan, New York. It is on two 

fault lines. One of the planes that hit the World Trade Center went 

directly above Indian Point. 

And when you talk about all our nuclear reactors in the country, 

there are 104, and all of their reactors were granted initial operating licenses for 40 years. And therefore, many of those licenses 

are up for renewal. So far, every reactor in this country that has 

requested a license renewal has been approved. The NRC never denied a single application for license renewal, and one of the reasons 

for that is a rule change in the early 1990s that limits the factors 

the NRC evaluates when considering a relicensing application. 

It concerns me, and I hope it concerns you because obviously 

there needs to be a focus on protecting the health and safety of our 

citizens. And I believe the current process fails to do that. It 

doesn’t take into account certain serious safety issues including 

proximity to population centers, inability to evacuate in case of 

emergency, and I certainly believe that is the case with Indian 

Point. A risk of seismic activity. We have just recently learned that 

Indian Point is on two fault lines. And threat of terror attack, and 

New York City unfortunately is the number one threat for terrorist 

attack. 

103 

There are 25 million people living within a 50-mile radius of Indian Point. In Japan, they wanted to get everybody out of the 50- 

mile radius. You actually have New York City in it. I am told it 

is the power plant that is closest to any major metropolitan area 

in the country, and yet it is the most populated metropolitan area. 

So it makes no sense to me. 

The NRC released a report, which said that among U.S. nuclear 

plants, Indian Point’s reactor number three has the highest risk of 

core damage from an earthquake of any nuclear power plant in the 

country. Now, it said it was one in 10,000, but, you know, one in 

10,000, it is still number one on the list. And researchers at Columbia University have determined that Indian Point, and I quote 

them, ‘‘is clearly one of the least favorable sites in our area from 

an earthquake hazard and risk perspective.’’ 

Now, none of these factors can be considered in the decision to 

relicense the reactors at Indian Point. They applied to react them. 

My colleague, who also has a district very close, Nita Lowey, and 

I have introduced a nuclear power licensing reformat, which is H.R. 

1268. Our bill is simple. It would require the NRC to evaluate relicensing applications for nuclear reactors with the same stringent 

criteria used to license new plants. 

Right now, it is a much less stringent criteria, so I don’t understand why that should be the factor. Whether you are approving 

a new power plant or relicensing a new power plant, safety concerns are safety concerns. It doesn’t matter whether it is new or 

old or relicensing or not. So I would, you know, like to ask you 

about that and see if we could change the law. Obviously we could, 

but it would be a lot easier to do it if the Commissioners understood and agreed with me and my colleague Congresswoman Lowey 

that we need to make sure that no matter whether you are building a new plant or relicensing a plant, the same stringent rules 

would be followed. 

Mr. JACZKO. Well, as you indicated, our license renewal process 

is really focused on the aging of the systems and the components 

that are important for safety. So, in effect, what it does is it puts 

additional requirements on a plant that is having its lifetime extended. Every plant, regardless of whether it is 1 year old or 45 

years old is required to meet and follow all of our regulations. 

So if we get new information, for instance, as we are looking at 

with the seismic issues related to Indian Point, we don’t wait for 

license renewal to address those. We require utilities to take that 

information and promptly address that to make sure that the plant 

is safe regardless of what its age is. 

So what we found is the way the license renewal approach would 

work best is to have this focus really just on these additional programs that are necessary to ensure that there are no effects from 

the aging of the equipment as it gets older with the extended life 

of the plant. 

But, of course, if Congress were to give us additional direction, 

of course, we would follow whatever additional direction would be 

provided. But we have gone through—over 66 units now have used 

the existing rules for their relicensing. So it is unlikely, I think, 

that we would be looking at particular changes in the near future. 

104 

Mr. ENGEL. Well, just let me say—and I know my time is up— 

I look forward to your coming to the plant, and I really believe that 

this plant should be shut down. I really do, and so most of the 

members of Congress that have districts right across from the 

plant. Thank you, Mr. Chairman. 

Mr. SHIMKUS. Gentleman’s time has expired. Chair recognizes 

the gentleman from Mississippi, Mr. Harper, for 5 minutes. 

Mr. HARPER. Thank you, Mr. Chairman, and appreciate each of 

you being here today, and with what has happened recently in 

Japan, the concern I have on what I have been able to hear today 

is if ever there was any agency that we cannot afford for it to have 

any even the hint of internal issues, it would be the NRC. 

So we want to certainly give you the tools to do what you need 

to do, but when you look at the safety issues that you have the responsibility for, we can’t afford to have any infighting. And it greatly concerns me on what Mr. Cassidy was asking earlier about 

these, the letters that went out to Chairman Issa. And I will ask 

this, Mr. Chairman, if I may. In your letter that went, when it was 

sent, you knew at that point, the other four Commissioners were 

not in favor of that letter? Is that true? 

Mr. JACZKO. No, I did not. 

Mr. HARPER. OK, did you make any—did you consult with them 

before that letter went out? 

Mr. JACZKO. I did. I circulated the draft of the letter that I intended to send, and I offered them an opportunity to include their 

views with that letter as well as separate views or in any way that 

they would like. 

Mr. HARPER. OK, and I will ask each of the Commissioners your 

recollections of how that went down. 

Ms. SVINICKI. I would testify today that we have a process for 

voting on correspondence that goes to Members of Congress. It all 

goes under the chairman’s signature, but certain of it is voted as 

a voting matter by the entire Commission. There were four votes, 

in my recollection, in alignment for the letter that is—was subsequently transmitted. 

The chairman’s office notified my staff that the chairman intended to send a different letter. We were solicited for whether or 

not individual Commissioners would append views to that. I interpreted that to be an offer to provide dissenting views when I was 

in a majority, and therefore I reinstated through my staff to the 

chairman’s staff that I stuck by my vote for the other letter and 

that is my recollection. 

Mr. HARPER. OK, Mr. Magwood? 

Mr. MAGWOOD. When we were informed that the chairman’s office intended to proceed with the letter that was ultimately sent, 

we indicate that we stood by the original letter and saw no reason 

to change our vote at that time. And when the letter was sent, we 

signed on to the subsequent letter, which you have before you. 

Mr. HARPER. OK, Mr. Ostendorff? 

Mr. OSTENDORFF. My recollection is the same as Commissioner 

Magwood’s and Svinicki’s. Four Commissioners had voted for identical language prior to the chairman sending the letter that he sent 

to us for comment, and under our Commission correspondence procedures, where a majority had ruled that—or voted on a matter 

105 

with a certain outcome, I thought that original letter the four of us 

had supported should be issued. 

Mr. HARPER. All right, and I would like to kind of back up to the 

Japan incident that occurred, and I will ask each of the Commissioners. If you were—or when were you notified that the chairman 

was planning to exercise emergency powers under the Emergency 

Reorganization Act? 

Ms. SVINICKI. I have never been notified that the chairman is invoking his emergency power under the Energy Reorg Plan. 

Mr. HARPER. OK, aren’t you—isn’t that something, part of the 

collegial atmosphere? Is that something you would have expected 

you would have been notified of that before it took place? 

Ms. SVINICKI. Yes, that would have been my expectation, but I 

cannot testify that I am aware that there is a specific requirement 

for that. I would need to look that up. 

Mr. HARPER. OK, but that would come under the general collegial thought that you would have as a commission? 

Ms. SVINICKI. Yes. 

Mr. HARPER. Mr. Magwood? 

Mr. MAGWOOD. Yes, I have never been notified. 

Mr. HARPER. Have or have not? 

Mr. MAGWOOD. Have not. 

Mr. HARPER. OK, Mr. Ostendorff? 

Mr. OSTENDORFF. I have not had full notification. However, I did 

discuss questions and concerns I had on this topic with the chairman in a meeting I had with him on March 31. 

Mr. HARPER. OK, now you know how sometimes talk starts, and 

you hear things. And so I just would like to know, there was some 

talk that the chairman told perhaps the other Commissioners, 

maybe other staff involved, to stay out of the emergency operations 

center during the Fukushima crisis. And I am even told that there 

was demand of perhaps placing a guard at the entrance to the center to let only designated staff into the center. Is this true or not 

true or just one of those, you know, stories that get started? 

Ms. SVINICKI. Chairman Jaczko requested that members of the 

Commission not visit the emergency operations center so as not to 

distract the staff from their important responsibilities. 

Mr. MAGWOOD. Same answer as Commissioner Svinicki. We were 

on a phone conference call, and the chairman made that request. 

Mr. HARPER. OK. 

Mr. OSTENDORFF. I agree, and that call was actually on March 

17. 

Mr. HARPER. Now, I understand that you have—the president 

designates somebody to be the chairman. I understand that, and 

the chairman has certainly the administrative responsibility. But 

when it comes to something like this, did you have any reaction to 

the fact that you were told to stay out? 

Ms. SVINICKI. I did not interpret the presence of a Commissioner 

would necessarily be a distraction, but I understood, of course, that 

staff needed to focus on their important responsibilities. 

Mr. HARPER. Sure, but if you were in the room, do you consider 

yourself to have been a distraction or would be disturbing? 

Ms. SVINICKI. I would attempt not to be a distraction. 

Mr. HARPER. OK, and my time is up, so I yield back, Mr. Chair. 

106 

Mr. SHIMKUS. Gentleman yields back his time. Chair recognizes 

gentleman from Pennsylvania. Mr. Murphy has no questions. Is 

any other member here seeking to ask questions of the Commissioners? If not, I have to make a couple announcements. First of 

all, the record will be open for 30 days for submission of additional 

questions to the Commission. If you would respond as you—if you 

figure out how to do that in collegial manner, we would appreciate 

that. 

Also, an announcement for my colleagues that we will clear the 

room to prepare the room for the markup of the bill. Maybe get 

through opening statements before they deal with votes on the 

floor, and then I would like to end. In closing, I would just like to 

reiterate that we are continuing our investigation into the many 

issues that have been touched on today. And I would just like to 

get an assurance from each of the Commissioners that you would 

be responsive to our requests in an open, forthright, and expedited 

manner, and that we won’t encounter any undue delays in receiving documents or information from the Commission. 

I would also like to stress that, of course, no undue influence or 

suggestion should be made to the NRC staff or anyone else regarding responses to this committee’s investigation. Chairman Jaczko, 

can you please give me that assurance? 

Mr. JACZKO. We certainly will be as responsive as we can to the 

committee. 

Mr. SHIMKUS. Commissioner Svinicki? 

Ms. SVINICKI. Yes, I give that assurance. 

Mr. SHIMKUS. Commissioner Magwood? 

Mr. MAGWOOD. Absolutely. 

Mr. SHIMKUS. And Commissioner Ostendorff? 

Mr. OSTENDORFF. Yes. 

Mr. SHIMKUS. Thank you very much, and the hearing is adjourned. 

[Whereupon, at 12:18 p.m., the subcommittees proceeded to other 

business.] 

[Material submitted for inclusion in the record follows:] 

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