Members of a Congressional subcommittee grilled the inspector general of the Nuclear Regulatory Commission (NRC) Tuesday over a report in which he and other members of his office suggested that the chairman of the commission, Gregory B. Jaczko, did not break any laws in closing out the agency's review of a contentious nuclear waste repository.
The IG's investigation and report were prompted following Jaczko's controversial decision last fall to issue budget guidance that would effectively end his agency's review of a long-debated nuclear waste storage facility at Yucca Mountain in Nevada. That decision angered the nuclear industry and its Republican supporters in Congress -- not least because it was largely viewed as being politically motivated.
President Barack Obama had made it a campaign goal to find an alternative to Yucca Mountain, and Jaczko was elevated by the president to the top job at NRC in 2009 in part to help oversee that mission.
The IG's report, which was circulated to members of Congress late last week, concluded that although Jaczko behaved unprofessionally, was ill-tempered and repeatedly misled his fellow commissioners in a bid to end the agency's consideration of the Yucca facility, his actions were lawful.
But Rep. Joe Barton (R-Texas), was among several Republicans who disagreed with that conclusion.
"I have a different opinion," Barton told Inspector General Hubert T. Bell, the lead author of the investigation into Jaczko's actions. "And I'm not an inspector general, and my opinion is just that -- I mean, it's an informed opinion. But I have read the statute that applies to the Nuclear Regulatory Commission, and it has language that says the chairman, and I quote, 'must fully inform other commissioners of all pending actions.'"
Barton argued that the report details numerous instances in which Jaczko strategically shared and withheld information from his fellow commissioners last fall, when Congress failed to pass a budget for the coming fiscal year. That provided Jaczko with a fiscal mechanism to halt his agency's review of the Department of Energy's application to build the Yucca Mountain facility, and he circulated a memo to his staff instructing them to do just that.
The IG's report, however, found that he was not forthcoming with his fellow commissioners about his intent to use the budget as a way to begin closing down the Yucca review.
"That would appear to me to factually prove that he violated the law," Barton said. "He's got an obligation under law to fully inform the commissioners. Your own report indicates that he didn't fully inform -- the commissioners said that, had they known, they would have taken preemptive action to prevent what he did. He violated the law. He did not uphold his responsibility under the statute. That is clear, layman common sense."
"Before you issued this report about him not violating the law, did you check with outside legal counsel on that issue?" he asked before yielding.
Bell responded: "No, we didn't."
A short time later, in a lengthy exchange that took on a prosecutorial tone, Rep. Tim Murphy, (R-Pa.), again tucked into Bell and his fellow witnesses, Assistant Inspector General Joseph A. McMillan and Senior Level Assistant Rossana Raspa, on the issue of whether Jaczko's actions violated federal statute:
Tim Murphy: If there is a statement that says the chairman and the director of operations and the chairman shall be responsible for ensuring that the commission is fully and currently informed about matters within its function, and that was signed into law and that is specifically and categorically ignored, is that illegal?
Hubert Bell: It's wrong.
TM: Is the chairman of the NRC statutorily required then, under the reorganization plan of 1980 as amended, to keep his fellow commissioners fully and currently informed?
TM: So, the chairman and executive director of the NRC are required under law, as you said, to keep the commission "fully and currently informed" of agency activities. Do you conclude from your investigation that this is currently happening? That's "fully and currently informed." Is that your conclusion. That's fully happening or it's not happening?
HB: They're not being fully informed. I think the chairman has given them just enough information to proceed in a manner that he wanted to proceed, with the, uh...
TM: But that's in a manner that the chairman wanted to proceed. But that's -- from what you've said so far in a couple cases so far now -- that runs contrary to what the statute says and was passed by Congress and was signed into law by the president. So how does failure to follow statutory obligations exonerate the chairman's actions? My point is, given the statements made by Mr. Bell here in reference made to this statute, how does failure to follow statutory obligations exonerate the chairman's actions?
Rosanna Raspa: The reorganization is premised on keeping the commission informed on matters within their purview. And so they were aware of the chairman's actions. They didn't fully understand the implications of that [...] budget memorandum.
TM: But I challenge that. As Commissioner Magwood stated, the chairman never told him his plan had been to shut down the high level waste program and withhold publication of [a safety evaluation report]. The chairman responded, "You should have asked." So is withholding information to affect behavior a policy matter? Isn't this a violation of the statute?
Joseph McMillan: What we attempted, again, sir, to do was to lay out what transpired during the course of this sequence of events and leave the interpretations, whether it -- regarding legality, OK -- to others.
TM: I'm not asking whether this was criminal or not -- that's a whole other legal issue. The question is whether it's a violation of the statute. Is it a violation of the statute in terms of what they did -- folks actually did?
JM: One could draw that conclusion, that it's the opposite of the intent of that statute, yes.
Democratic members of the committee were quick to defend Jaczko and the inspector general's report, arguing that their Republican counterparts were essentially beating a dead horse.
Rep. Henry Waxman (D-Calif.), for example, argued that, despite months of heated speculation that the IG's report would find Jaczko guilty of wrongdoing, it ultimately concluded that he acted within his authority -- even if he acted badly.
"Did you find that the chairman of the NRC acted illegally?" Waxman asked.
"No we didn't, sir," Bell replied.
"Now Chairman Jaczko made a decision that there should be an orderly shutdown of Yucca Mountain because he did not think that NRC was going to have enough funds to pursue the matter," Waxman continued. "Wasn't that decision vindicated by the continuing resolution passed overwhelmingly by the House and the Senate and signed by the president, where the $10 million was provided to close out Yucca Mountain's consideration?"
Bell responded: "Yes sir, a decrease in the budget for the high level waste program was one of the contributing factors for moving toward a close out because it eventually was a zero budget for high level waste."
Waxman added that while others might not have agreed with it, Jaczko "made that decision, and it looked like it was vindicated by the actions of the Congress."
Rep. Edward Markey (D-Mass.), said he found it ironic that critics were calling the decision to phase out Yucca Mountain a political one, given that its selection in the first place was highly political.
"Congress -- actually, this committee -- barred the Department of Energy from looking at any other site other than Yucca Mountain," he said. "We used political science, not real science, to hand that nuclear Queen of Spades to Nevada. That's the legacy this committee left."
"The problem is the mountain has two fault lines running through it and is in an active earthquake zone," Markey continued. "There have been more than 600 earthquakes within 50 miles of the site within the past 20 years. We saw just how earthquakes can impact spent nuclear fuel just a few months ago," he said referring to the nuclear disaster in Japan.
Last week, Jaczko issued a statement ahead of today's hearing praising the IG's findings and issuing a call to move forward.
"The conclusions of the report reaffirm that my actions have been and remain consistent with established law, guidance, and my authorities as Chairman," he wrote. "With the IG report now completed, we can all move forward with a renewed commitment to ensuring public health and safety in the use of nuclear materials –- the essential mission of the NRC."
"The closeout of the Yucca Mountain license review has been a complicated issue, with dedicated and experienced people holding different viewpoints," Jaczko continued. "All NRC Chairmen have the responsibility to make difficult and sometimes controversial decisions. The IG plays an important role in enabling the American people to continue to have confidence that my focus as Chairman –- and the entire agency's focus –- is on effectively carrying out the NRC's vital safety mission. Thus, I appreciate the thoroughness with which the IG and his staff conducted this comprehensive review over the last seven months."
Still, at least one Republican has already begun calling for Jaczko's resignation, and Republicans in Congress are likely to use the IG's report -- and the seeming inconsistencies within it -- to renew debate over the fate of the Yucca Mountain facility.
Jaczko is scheduled to appear before the Senate Environment and Public Works Committee on Thursday.