[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

NRC REPOSITORY SAFETY DIVISION: STAFF PERSPECTIVE ON YUCCA LICENSE
REVIEW

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

HEARING

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

OF THE

COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

__________

JUNE 24, 2011

__________

Serial No. 112-67

Printed for the use of the Committee on Energy and Commerce

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COMMITTEE ON ENERGY AND COMMERCE

FRED UPTON, Michigan
Chairman

JOE BARTON, Texas HENRY A. WAXMAN, California
Chairman Emeritus Ranking Member
CLIFF STEARNS, Florida JOHN D. DINGELL, Michigan
ED WHITFIELD, Kentucky Chairman Emeritus
JOHN SHIMKUS, Illinois EDWARD J. MARKEY, Massachusetts
JOSEPH R. PITTS, Pennsylvania EDOLPHUS TOWNS, New York
MARY BONO MACK, California FRANK PALLONE, Jr., New Jersey
GREG WALDEN, Oregon BOBBY L. RUSH, Illinois
LEE TERRY, Nebraska ANNA G. ESHOO, California
MIKE ROGERS, Michigan ELIOT L. ENGEL, New York
SUE WILKINS MYRICK, North Carolina GENE GREEN, Texas
Vice Chairman DIANA DeGETTE, Colorado
JOHN SULLIVAN, Oklahoma LOIS CAPPS, California
TIM MURPHY, Pennsylvania MICHAEL F. DOYLE, Pennsylvania
MICHAEL C. BURGESS, Texas JANICE D. SCHAKOWSKY, Illinois
MARSHA BLACKBURN, Tennessee CHARLES A. GONZALEZ, Texas
BRIAN P. BILBRAY, California JAY INSLEE, Washington
CHARLES F. BASS, New Hampshire TAMMY BALDWIN, Wisconsin
PHIL GINGREY, Georgia MIKE ROSS, Arkansas
STEVE SCALISE, Louisiana ANTHONY D. WEINER, New York
ROBERT E. LATTA, Ohio JIM MATHESON, Utah
CATHY McMORRIS RODGERS, Washington G.K. BUTTERFIELD, North Carolina
GREGG HARPER, Mississippi JOHN BARROW, Georgia
LEONARD LANCE, New Jersey DORIS O. MATSUI, California
BILL CASSIDY, Louisiana DONNA M. CHRISTENSEN, Virgin
BRETT GUTHRIE, Kentucky Islands
PETE OLSON, Texas
DAVID B. McKINLEY, West Virginia
CORY GARDNER, Colorado
MIKE POMPEO, Kansas
ADAM KINZINGER, Illinois
H. MORGAN GRIFFITH, Virginia

7_____

Subcommittee on Environment and the Economy

JOHN SHIMKUS, Illinois
Chairman
TIM MURPHY, Pennsylvania GENE GREEN, Texas
Vice Chairman Ranking Member
ED WHITFIELD, Kentucky TAMMY BALDWIN, Wisconsin
JOSEPH R. PITTS, Pennsylvania G.K. BUTTERFIELD, North Carolina
MARY BONO MACK, California JOHN BARROW, Georgia
JOHN SULLIVAN, Oklahoma DORIS O. MATSUI, California
CHARLES F. BASS, New Hampshire FRANK PALLONE, Jr., New Jersey
ROBERT E. LATTA, Ohio DIANA DeGETTE, Colorado
CATHY McMORRIS RODGERS, Washington LOIS CAPPS, California
GREGG HARPER, Mississippi JOHN D. DINGELL, Michigan
BILL CASSIDY, Louisiana HENRY A. WAXMAN, California (ex
CORY GARDNER, Colorado officio)
JOE BARTON, Texas
FRED UPTON, Michigan (ex officio)

(ii)

C O N T E N T S

----------
Page
Hon. John Shimkus, a Representative in Congress from the State of
Illinois, opening statement.................................... 1
Prepared statement........................................... 4
Hon. Gene Green, a Representative in Congress from the State of
Texas, opening statement....................................... 6
Hon. Henry A. Waxman, a Representative in Congress from the State
of California, opening statement............................... 7
Hon. Fred Upton, a Representative in Congress from the State of
Michigan, prepared statement................................... 69
Hon. Joe Barton, a Representative in Congress from the State of
Texas, prepared statement...................................... 71

Witnesses

Janet P. Kotra, Senior Project Manager, Division of High-Level
Waste Repository Safety, Nuclear Regulatory Commission......... 9
Prepared statement........................................... 13
Answers to submitted questions............................... 73
Newton Kingman Stablein, Branch Chief, Division of High-Level
Waste Repository Safety, Nuclear Regulatory Commission......... 18
Prepared statement........................................... 20
Answers to submitted questions............................... 77
Aby Mohseni, Acting Director, Division of High-Level Waste
Repository Safety, Nuclear Regulatory Commission............... 24
Prepared statement........................................... 26
Answers to submitted questions............................... 81
Lawrence Kokajko, Acting Deputy Director, Office of Nuclear
Material Safety and Safeguards, Nuclear Regulatory Commission.. 29
Prepared statement........................................... 32
Answers to submitted questions............................... 86
Catherine Haney, Director, Office of Nuclear Material Safety and
Safeguards, Nuclear Regulatory Commission...................... 36
Prepared statement........................................... 38
Answers to submitted questions............................... 92

Submitted Material

Remarks of Gregory B. Jaczko, Commissioner, Nuclear Regulatory
Commission, before the Regulatory Information Conference, dated
March 9, 2005, submitted by Mr. Murphy......................... 53
Subcommittee exhibit binder, submitted by Mr. Shimkus............ 99

NRC REPOSITORY SAFETY DIVISION: STAFF PERSPECTIVE ON YUCCA LICENSE
REVIEW

----------

FRIDAY, JUNE 24, 2011

House of Representatives,
Subcommittee on Environment and the Economy,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 9:57 a.m., in
room 2322 of the Rayburn House Office Building, Hon. John
Shimkus (chairman of the subcommittee) presiding.
Members present: Representatives Shimkus, Murphy, Pitts,
Sullivan, Bass, Latta, Cassidy, Gardner, Barton, Green, Markey,
Barrow, and Waxman (ex officio).
Staff present: Allison Busbee, Legislative Clerk; Dave
McCarthy, Chief Counsel, Environment and the Economy; Chris
Sarley, Policy Coordinator, Environment and the Economy; Sam
Spector, Counsel, Oversight; 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 Ali Neubauer, Democratic Investigator.
Mr. Shimkus. The subcommittee will now come to order, and I
recognize myself for 5 minutes for the purpose of an opening
statement.

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

Today we continue the committee's efforts to understand the
decision-making process at the NRC, in particular when it comes
to the closure of Yucca Mountain. Specifically we will examine
the views and perspective of the non-partisan NRC staff that
was responsible for conducting the safety evaluation and
technical reviews of the license application for the Yucca
Mountain repository and the controversial efforts to shut this
review down.
This hearing will provide a public face on the professional
people at NRC who have labored tirelessly, outside the public
spotlight, in good faith, to carry out the Nuclear Waste Policy
Act.
We will learn about the human effort that has gone into
planning for and reviewing the Yucca Mountain license, an
effort that represents first-of-its-kind work. This is work to
ensure a repository will meet the EPA standards for 1 million
years. The NRC has worked for more than 2 decades to prepare
for and to conduct the license evaluation.
This important job has required dedicated staff,
representing a range of scientific disciplines to do the review
with objectivity and integrity so the public can trust the
work. There are geochemists, hydrologists, climatologists,
various engineering disciplines, health physicists,
volcanologists, and inspectors. The work NRC staff has put into
the Yucca Mountain license application has been by all evidence
world class, and we should expect no less from the NRC. Now
that very staff fears its work has been caught up in a
dysfunctional agency which is threatening their ability to
maintain public trust in the work they produce.
We will hear from some of the people who would ensure that,
should NRC approve DOE's license application for Yucca
Mountain, the repository will be safe. We should not forget how
much money and human effort has gone into development of this
project. To date we have spent $15 billion, probably half a
billion dollars alone by the NRC. The American rate payer and
taxpayer are owed something for this effort, yet that effort
risks getting swept away by the political agenda of this
administration and the NRC Chairman.
It is important for this committee to gather information
about what is behind the license review work in terms of staff
expertise, years of commitment and integrity.
We want to learn the facts about the status of their work:
Is it complete, what else needs to be done, and what kind of
direction they received from the Chairman and the NRC
management to shut down their work. Last week we took troubling
testimony from the Inspector General about the Chairman's
influence and actions to strategically work to impose his views
on the Commission. Now we find this virus has infected even
deeper than we imagined with manipulation by senior management
of career staff's scientific findings.
These staff who worked on the program can explain exactly
where they were in completing their work. They can explain what
they were doing to carry out their responsibilities under the
Nuclear Waste Policy Act and how the Chairman's and
Commission's actions affected this activity. And they can
explain what they believe it will take to resurrect the review
of the Yucca Mountain application.
We can also get the facts about the current efforts to
preserve the staff's decades of work on this project and
whether those efforts will provide the public a full view of
their analysis. This is new information we will examine today
to determine whether staff continues to be restricted in
providing a full and transparent report of their work to the
public, which has been promised by the Chairman.
We want to understand how information flows from staff who
seek policy guidance up to the Commission and how that has been
handled when it comes to the Yucca Mountain license and whether
they believe staff is getting the support it needs from
management, the Chairman and the Commission.
Let me express my gratitude to the witnesses from the
division level, Dr. Kotra, Dr. Stablein, Mr. Mohseni, and Mr.
Kokajko, and their supervisor, Ms. Haney, for taking the time
to appear today. It is unusual to hear directly from staff, but
this Yucca Mountain matter is unusual itself, and your
testimony is very important to our investigation.
[The prepared statement of Mr. Shimkus follows:]

[GRAPHIC] [TIFF OMITTED] T2593.001

[GRAPHIC] [TIFF OMITTED] T2593.002

Mr. Shimkus. And I do appreciate your attendance. And with
that I yield back my time, and I will turn now to the ranking
member, Mr. Green, for 5 minutes.

OPENING STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS

Mr. Green. Thank you, Mr. Chairman. Thank you, witnesses,
for your patience. I apologize for running late.
Thank you for holding the hearing. I want to thank our
witnesses like our Chair did for appearing before the Committee
to discuss the issue of Yucca Mountain.
As you know, I have recently toured Yucca Mountain and went
on a CODEL organized by Chairman Shimkus, and I appreciate the
opportunity to view the facility up close and to meet with
local individuals to hear their thoughts on Yucca Mountain.
There has been a lot of discussion on this committee on the
decision by the administration not to proceed with Yucca
Mountain. We have had a long series of hearings related to the
majority's ongoing investigation. Today we will hear from the
NRC staff on their thoughts regarding Yucca Mountain, whether
they feel the issue was properly handled.
I appreciate hearing from staff. I have read the testimony,
and this is beginning to sound like we are airing the NRC's
dirty laundry. But it seems like we do that in Congress pretty
often.
On June 14, this committee held a hearing with the NRCIG on
the report entitled ``The NRC's Chairman's Unilateral Decision
to Terminate the NRC's Review of the DOE Yucca Mountain
Repository License Application.'' The Inspector General's
report found that Chairman Jaczko had not been forthcoming with
the Commissioners but that ultimately he acted within his
authority as NRC Chair, none of which suggests the NRC violated
the law.
The report also did not review whether or not the actual
decision to close Yucca was appropriate. The report did shed
some light on obviously internal issues within NRC that should
be evaluated and address and which we will hear about yet again
today.
I appreciate the Chair's desire to continue to hold the
hearings on Yucca Mountain. As I have stated several times, the
United States alone produced 806 billion kilowatt hours of
nuclear power in 2008 making us the biggest producer of nuclear
power in the world. No matter what decision we make on Yucca
Mountain, we still have a nuclear waste disposal issue. So the
25-year-old Yucca Mountain dilemma remains, and we need to
resolve the situation sooner rather than later. However, a lot
of the committee and personal staff in this room should be
working on coal ash legislation and negotiations right now, and
the time that were spent on this Yucca Mountain hearings could
have been spent on other issues before our committee.
I hope when we return from the recess we have a bipartisan
coal ash bill to mark up, Mr. Chairman, in the Full Committee,
and we can begin working on other issues in our jurisdiction. I
yield back my time.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes the vice chairman of the subcommittee, Mr.
Murphy, for 5 minutes.
Mr. Murphy. Thank you, Mr. Chairman. I know we have been
delayed here, and it is important we hear the witnesses. So I
am going to waive my opening statement and just submit it for
the record.
Mr. Shimkus. The gentleman yields back his time. The Chair
now recognizes the ranking member of the full committee,
Chairman Emeritus Mr. Waxman, for 5 minutes.

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

Mr. Waxman. Thank you very much, Mr. Chairman. This is the
fourth hearing this subcommittee has held on the Yucca Mountain
Nuclear Waste Repository, and today's hearing will examine the
concerns of some of the NRC staff about the decision to
terminate the NRC's review of Yucca Mountain.
I appreciate the witnesses being here today and share in
their concerns with the committee. I can understand why
technical staff, who have worked for years on Yucca Mountain,
are frustrated and angry that the NRC may never approve or deny
the license application. I believe they care deeply about the
mission of the NRC and its role as an independent agency. But
what I have a hard time accepting is the assertion that the
decision to cease review of the license application at NRC was
somehow a unilateral decision by a rogue chairman.
The Secretary of Energy determined that Yucca Mountain is
not a workable option. The Department of Energy, which would be
responsible for actually building the repository and managing
the waste, asked to withdraw the license application. In the
fiscal year 2011 budget passed in April, to avert a government
shutdown, Congress allocated no money to DOE for Yucca Mountain
and just $10 million to NRC to close down the licensing review.
For fiscal year 2012, the NRC Commissioners approved a budget
requesting just $4 million in order to terminate all Yucca
Mountain program activities. And OMB allocated no money to NRC
for the high-level waste program for 2012.
I understand why some members believe the decision to shut
down the review of Yucca Mountain was political, but from what
I have seen, the key decision was DOE's. DOE decided to
withdraw the license application. Once DOE made this decision,
the NRC's options were limited. Continuing its review risks
squandering millions of taxpayer dollars.
While I have said on several occasions that the Yucca
Mountain project merits independent and objective oversight, I
am also concerned that this Subcommittee's myopic focus on
Yucca Mountain has diverted its attention from other pressing
nuclear safety issues.
This week we learned of significant nuclear safety problems
in the United States from two different sources. First,
Congressmen Ed Markey and Peter Welch released a GAO report
about radioactive leaks from underground pipes at the Nation's
nuclear power plants. As nuclear power plants age, their
underground piping tends to corrode. But the condition of many
underground pipes at plants across the country is unknown. GAO
noted in its report that NRC has no plans to evaluate the
extent to which volunteering industry initiatives are adequate
to detect leaks and corrosion in these underground pipes. As a
result, GAO found that NRC has ``no assurance'' that these
initiatives will promptly detect leaks before they pose a risk
to public health and safety. We ought to be holding a hearing
on that subject.
Second, an investigation by the Associated Press concluded
that Federal regulators at NRC have been working closely with
the nuclear power industry to keep the Nation's aging reactors
operating within safety standards by weakening those standards
or not enforcing them. The AP investigation found what it
called a recurring pattern. ``Reactor parts or systems fall out
of compliance with the rules. Studies are conducted by the
industry and government, and all agree that existing standards
are unnecessarily conservative. Regulations are loosened, and
the reactors are back in compliance.'' We ought to be
investigating that issue.
The GAO report and AP investigations raise serious concerns
about the safety of reactors in the United States, especially
as NRC continues to consider and approve additional license
extensions for the aging fleet.
But we aren't talking about that today. We are again
talking about Yucca Mountain, a program with no funding and no
apparent future. I question whether this is the right priority
for our Nation.
With that said, I thank the witnesses for being here today.
I look forward to their testimony. I understand their concerns.
I feel their pain. But if DOE puts in an application and DOE
withdraws its application, it is hard to rule on that
application. And then when with this funding no longer
available, I don't know what NRC, under any chairman, could do
under those circumstances.
I yield back my time.
Mr. Shimkus. The gentleman yields back his time. They have
called one vote on the floor, so I think the way we will
proceed, if it is OK with my friends in the minority, is that
we will go vote, then we will come back and then we will start
your testimony after we do the swearing in. And with that I
will call----
Mr. Pitts. Mr. Chairman, that would be what, about 10
minutes we should be back, 10, 15 minutes?
Mr. Shimkus. Well, it is a 15-minute vote, so I would say
we will start in 15 or 20 minutes. And I want to ask unanimous
consent that anyone who has a written opening statement they
want to submit for the record be allowed to do so. Without
objection, so ordered. The hearing is recessed.
[Recess.]
Mr. Shimkus. I will call the hearing back to order, and you
are at your desk but the Chair will call you, the witnesses,
which is Dr. Janet P. Kotra, Senior Project Manager in the
Division of High-Level Waste Repository Safety at the NRC; Dr.
N. King Stablein, Branch Chief in the Division of High-Level
Waste Repository Safety at the NRC; Mr. Aby Mohseni, Acting
Director in the Division of High-Level Waste Repository Safety
at the NRC; Mr. Lawrence Kokajko, Acting Deputy Director for
the Office of Nuclear Material Safety and Safeguards at the
NRC; and Ms. Catherine Haney, Director of the Office of Nuclear
Material Safety and Safeguards at the NRC. Again, thank you for
joining us.
As you know, the testimony that you are about to give is
subject to Title 18, Section 1001, of the United States Code.
When holding an investigative hearing, this Committee has the
practice of taking testimony under oath. Do you have any
objection to testifying under oath?
Mr. Stablein. No.
Mr. Mohseni. No.
Mr. Kokajko. No.
Ms. Kotra. No.
Ms. Haney. No.
Mr. Shimkus. For the record, all respondents stated no. The
Chair then advises you that under the rules of the House and
the rules of the Committee, you are entitled to be advised by
counsel. Do you desire to be advised by counsel during your
testimony today?
Ms. Kotra. No.
Mr. Stablein. No.
Mr. Mohseni. No.
Mr. Kokajko. No.
Ms. Haney. No.
Mr. Shimkus. And the Chair acknowledges that all
participants stated no. In that case, if you would please rise
and raise your right hand, I will swear you in.
[Witnesses sworn.]
Mr. Shimkus. Thank you very much, we will now go into a 5-
minute summary of your statement, and we would like to start
left to right with Dr. Kotra. Thank you, ma'am. I appreciate
you being here. And you are recognized for 5 minutes.

TESTIMONY OF JANET P. KOTRA, SENIOR PROJECT MANAGER, DIVISION
OF HIGH-LEVEL WASTE REPOSITORY SAFETY, NUCLEAR REGULATORY
COMMISSION; NEWTON KINGMAN STABLEIN, BRANCH CHIEF, DIVISION OF
HIGH-LEVEL WASTE REPOSITORY SAFETY, NUCLEAR REGULATORY
COMMISSION; ABY MOHSENI, ACTING DIRECTOR, DIVISION OF HIGH-
LEVEL WASTE REPOSITORY SAFETY, NUCLEAR REGULATORY COMMISSION;
LAWRENCE KOKAJKO, ACTING DEPUTY DIRECTOR, OFFICE OF NUCLEAR
MATERIAL SAFETY AND SAFEGUARDS, NUCLEAR REGULATORY COMMISSION;
AND CATHERINE HANEY, DIRECTOR, OFFICE OF NUCLEAR MATERIAL
SAFETY AND SAFEGUARDS, NUCLEAR REGULATORY COMMISSION

TESTIMONY OF JANET P. KOTRA

Ms. Kotra. Good morning, Chairman Shimkus, Mr. Green and
members of the Subcommittee. Thank you for inviting me to
participate in your hearing today. My name is Janet Kotra. I
work as a senior scientist and project manager in the Division
of High-Level Waste Repository Safety at the NRC. I joined NRC
more than 27 years ago as a postdoctoral fellow. I have been
one of the major contributors in developing NRC's regulations
for the proposed Yucca Mountain Repository. Along with my
scientific and engineering colleagues, I have participated in
the NRC staff's independent safety review of the license
application for the proposed repository at Yucca Mountain and
in preparing portions of the NRC staff's Safety Evaluation
Report which you will often hear referred to as the SER.
As leader of NRC's high-level waste public outreach team,
it has also been my job to organize and conduct more than three
dozen public meetings and workshops in Nevada and California to
explain NRC's oversight role, regulatory process and review
procedures.
Of the many hats that I have worn at NRC over the years,
this is by far been one of the most personally satisfying and
enriching. I spent more then 10 years on the road meeting with
people of the affected units of local government and from the
affected tribe near Yucca Mountain, Nevada, the Timbisha
Shoshone.
I spoke with people about NRC's oversight role and review
procedures. I helped individuals and local officials understand
their options for participating in NRC's hearing process. I
explained how the NRC staff reviews and considers public
comments on proposed NRC regulations. I listened to people's
concerns and learned how to be more effective as a public
servant. Among the comments I heard over and over again were
how will NRC make its safety decision and how can we affect
NRC's decision or take part in your process, if we don't
understand how your decisions are made? Over the course of
those 10 years, we worked hard at becoming more transparent. We
took the steps needed to make our speech clearer, our documents
more available and our presentations more understandable. We
assured our audiences that once the application came in, we, as
independent scientists and engineers, would conduct a thorough,
technically sound and fair review. We also promised that our
findings in the form of an SER would be made available for all
to see and evaluate for themselves. And then, those findings,
along with the application and all contentions admitted by an
independent hearing board, and there were almost 300 of them,
would be subject to an open and impartial hearing before any
decision would be made to deny or authorize construction of a
repository at Yucca Mountain. I assured people over and over
again that this would be the case because I believed it myself.
I believed it because this is how NRC conducts business. This
is how NRC's licensing process has worked when NRC decided
whether or not to license reactors or other large nuclear
facilities throughout our more than 35-year history. And I
believed it because it is consistent with the law, consistent
with NRC's regulations, and consistent with our role as an
independent safety regulator as established for us by you, the
Congress.
Then, as reported recently by the NRC's Inspector General,
Chairman Jaczko ordered staff to postpone issuance of SER
Volumes 1 and 3. Division staff and managers became concerned
that the other Commissioners might not be fully aware of the
policy, legal and budgetary consequences of such redirection
and felt that guidance from the entire Commission was called
for.
I was directed to prepare a staff memorandum for all five
Commissioners to be signed by the Office Director, Ms. Haney.
We hoped that given an honest assessment of the facts, fair-
minded Commissioners would see the need to provide staff with
clear policy direction as we struggled to honor our conflicting
duties and instructions. We were told, however, that the
memorandum should make no reference to any of the related
policy issues and that I should prepare it only as a status
report.
Over the coming months, using a highly irregular process, I
was asked to incorporate an inordinate number of changes from
senior agency managers. I was willing to comply, despite my
growing reservations, so long as descriptions of the program's
history and status remained reasonably accurate and consistent
with my knowledge of the facts.
Only later, in September of last year did it become clear
that rather than to just postpone issuance of individual SER
volumes, the Chairman's intent was to terminate the staff's
safety review altogether. Using the continuing resolution as
justification, the Chairman directed that all work on the SER
must stop, including Volume 3 on post-closure safety, which was
already complete, and undergoing management review. Written
guidance came later on October 4. The Chairman met with us in
the staff's Yucca Mountain team meeting just after Columbus
Day. He explained that the decision to shut down the staff's
review was his alone and that the staff should move to shut
down the NRC's Yucca Mountain program altogether. This, despite
the fact that then, as now, the Nuclear Waste Policy Act
remains in effect, the hearing process continues, and I would
have to disagree with Mr. Waxman's assertion, and no Commission
decision has even today been issued on whether the application
can be legally withdrawn.
As the months wore on and work on the memorandum continued,
formal and informal comments from the Deputy Executive Director
for Operations, the Chief Financial Officer and the General
Counsel were incorporated. These comments repeatedly diluted or
contradicted the language prepared by the high-level waste
staff and staff of the Atomic Safety and Licensing Board Panel.
Both had described the severe difficulties faced by our offices
struggling to cover the costs of shutting down a complex and
valuable national program and infrastructure, while at the same
time supporting an ongoing hearing.
Eventually, I could no longer, in good conscience, agree
with the memo I was preparing. I formally withdrew my
concurrence, consistent with NRC's procedures, on February 1 of
this year. I did so because senior managers insisted on changes
that, to me, implied that it was the NRC staff who voluntarily,
or, worse still, on its own volition, terminated NRC staff's
independent review of the Yucca Mountain License application
and sought to end support for a full and impartial hearing to
review the application.
Gentlemen, to me, this was grossly misleading and
unacceptable. My colleagues who worked tirelessly to conduct a
fair, independent and technically sound safety review and to
prepare the required SER, stood down from those obligations
only with enormous reluctance and heavy hearts.
Let me be very clear. We did not choose to abandon our duty
under the law. We were directed explicitly by Chairman Jaczko
to terminate our review. Yet, on multiple occasions I was
prohibited from including in the status report any statement to
that effect. The memorandum made no reference to the facts
surrounding the termination of the staff's safety review.
Without this crucial context, the reader is left with a
mistaken impression that the termination and orderly shutdown
of the licensing review and hearing was the staff's preferred
and well-considered course of action, initiated by the
technical staff. Nothing could be further from the truth.
In closing, as a member of the NRC's technical staff, I
remain deeply concerned that the ground-breaking regulatory
work accomplished over so many decades by my colleagues not be
lost or wasted. This seminal work is documented in the draft
SER volumes staff has prepared. Irrespective of what ultimately
becomes of Yucca Mountain, preservation and dissemination of
the results of NRC staff's review and findings are of critical
importance to future decisions regarding disposition of the
Nation's high-level waste and spent nuclear fuel. The public
deserves access to what we learned and accomplished during our
safety review. If the Blue Ribbon Commission does indeed find
that deep geologic disposal is inescapable as a solution for
our Nation's spent fuel and high-level radioactive wastes, the
lessons that NRC's technical staff learned from reviewing and
evaluating compliance of the first license application for a
geologic repository in the United States must be preserved,
studied and shared as the resources they truly are.
Please help us, the NRC technical staff, keep the
commitments we made to the public about the openness and
transparency of NRC's safety review at Yucca Mountain. I
implore you to take whatever action you deem necessary to allow
completion and prompt, public release of the complete,
unredacted and uncensored volumes of the NRC staff's SER.
I want to thank you for your concern and attention to these
important matters, and I welcome any questions you may have.
[The prepared statement of Ms. Kotra follows:]

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Mr. Shimkus. Thank you very much for your testimony. Now we
would like to turn to Dr. N. King Stablein, Branch Chief of the
Division of High-Level Waste Repository Safety. Sir, your full
statement is in the record. You have 5 minutes.

TESTIMONY OF NEWTON KINGMAN STABLEIN

Mr. Stablein. Good morning, Chairman Shimkus, Mr. Green,
and members of the subcommittee. Thank you for inviting me to
participate in your hearing today.
My name is Dr. Newton Kingman Stablein. I have spent most
of my 27 years at the NRC involved in NRC's prelicensing and
licensing activities related to DOE's efforts to support an
application to construct a high-level waste geological
repository at Yucca Mountain. I am currently Chief of the
Project Management Branch responsible for leading the review of
DOE's license application by the NRC staff and its contractor
since 1987, the Center for Nuclear Waste Regulatory Analyses.
The NRC received DOE's license application in June of 2008
and, after completing an acceptance review, docketed the
application in September 2008. The NRC staff prepared to
complete its review of DOE's application and production of its
Safety Evaluation Report, or SER, within approximately 18
months, by March or April 2010.
In March 2009, the Executive Director for Operations
informed the Commission that because of reduced resources in
the fiscal year 2009 budget and expected cuts in fiscal year
2010, the NRC staff would complete the SER in fiscal year 2012,
2 years later than the original schedule. The staff revamped
its plans for the SER, opting to issue it in five separate
volumes on a staggered schedule, with the first volume to be
published in March 2010.
In January 2010, the staff informed the Atomic Safety and
Licensing Board that the NRC staff would issue Volume 1 on
general information and Volume 3 the post-closure volume, by no
later than August and November 2010, respectively.
The staff had Volume 1 ready for publication in June 2010,
2 months ahead of the August target. Around the same time,
Chairman Jaczko issued a memorandum to the EDO stating that it
was in the best interests of the Agency ``not to alter the
schedule for the completion of SER volumes at this time'' and
directing that Volume 1 be published no earlier than August
2010. He added that subsequent volumes should be issued
consistent with and not earlier than the schedule provided to
the Commission in March 2010. Volume 1 was published in August
2010.
Volume 3 could have been ready for publication in
September, but because the Chairman had directed staff not to
issue it before November 2010, the final review steps leading
to its publication were slowed.
The staff expected to publish Volume 3 in November 2010 and
the other three volumes by March 2011. However, on September
30, the Director of the Office of Nuclear Material Safety and
Safeguards instructed NRC staff to transition immediately to
closure of Yucca Mountain licensing activities and to cease
work on the SER volumes. Within the next couple of weeks, the
Chairman met with staff and affirmed that it was his decision
to discontinue work on the SER and to transition to closure
activities, including the issuance of technical evaluation
reports, or TERs, instead of the SER volumes.
This decision had a profound impact on the Yucca Mountain
team and its program. As a supervisor in this program, I am
keenly aware of the agony experienced by the NRC staff as it
dutifully followed the Chairman's direction. Many of the staff
have worked on the Yucca Mountain program for two decades or
longer. To be denied the opportunity to finish the SER because
of what appeared to be the arbitrary decision of one
individual, was wrenching. The staff was not aware of any
substantive discussion and airing of issues at the Commission
level, as would be expected for a decision of this magnitude.
Although the staff was deeply affected by the Chairman's
decision, it acted immediately to follow his direction to
develop TERs with no regulatory findings in place of the
planned SER volumes. On March 31, 2011, the staff presented the
post-closure TER to NMSS management for approval to publish.
Over 2 months later, the NMSS office director disapproved
publication of the document in its present form and that stated
that it would need modifications to be published.
These latest developments are the most recent and clearest
example of how the staff has been denied the opportunity to
fulfill its duty to make its technical insights and information
available to the Nation and to thereby enrich the ongoing
discussion about what path to follow in dealing with nuclear
waste. The work of a generation of scientists and engineers
continues to be systematically suppressed to the detriment of
these patriots and the Nation at large. Thank you.
[The prepared statement of Mr. Stablein follows:]

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Mr. Shimkus. Thank you for your testimony. Now, I would
like to turn to Mr. Aby Mohseni, Acting Director in the
Division of High-Level Waste Repository Safety. Welcome. Your
full statement is into the record, and you have 5 minutes.

TESTIMONY OF ABY MOHSENI

Mr. Mohseni. Thank you very much Mr. Chairman, Ranking
Member Green, and members of the committee, for the opportunity
to be here today. My name is Aby Mohseni. I worked for the
State of Washington before joining the NRC in 1990. I became
the Deputy Director for Licensing and Inspections in the
Division of High-Level Waste Repository Safety in 2006. I am
currently the Acting Director of this Division. I will briefly
describe the division's role, accomplishments and challenges.
The U.S. Congress enacted the Nuclear Waste Policy Act
directing and entrusting the NRC scientists to determine the
safety and security of the Yucca Mountain Geological Repository
for the Nation. NRC has invested almost 3 decades preparing for
and conducting a safety review of the proposed Yucca Mountain
design.
My staff and I are quite used to challenges. Reviewing the
performance of a mountain over time frames of a million years
using a first-of-a-kind, risk-informed, performance-based
methods is a challenge. But that scientific challenge seemed to
be the easy one. Less than a year after the Department of
Energy submitted its long-awaited license application to build
a geological repository at Yucca Mountain, Nevada, in 2008, our
budget was cut by 30 percent. Despite that and subsequent cuts,
we, NRC staff and scientists, impressed with the task entrusted
to us for the Nation's safety, absorbed the pressures and
maintained our focus on our mission.
Although resilient from our adaptation to budgetary
pressures, we were unprepared for the political pressures and
manipulation of our scientific and licensing processes that
would come with the appointment of Chairman Jaczko in 2009. We
believe that any political manipulation of the scientific and
licensing process is an assault on the responsibility to the
NRC mandated by Congress.
We staff felt that manipulation at the Commission level, as
described in the NRC's Inspector General report issued earlier
this month, permeated the activities of my division by some
senior managers.
For example, some NRC senior managers directed the staff to
suppress information to the Commission by providing them a
status report instead of a policy report on the closure of
Yucca Mountain. Whereas a policy report empowers the Commission
with the staff's findings and recommendations required to make
sound policy for the Nation's safety, a status report merely
informs them of decisions made, leaving the burden of discovery
on individual Commissioners.
Additionally, some senior managers contributed to the
manipulation of the budget process and information to
apparently make sure that the Yucca Mountain project would be
left unfunded even if the license application was still before
the NRC.
Furthermore, apparently at the direction of the Chairman
and with the aid of some senior managers, the disclosure to the
rest of the Commission of the staff's views on the impacts of
budget cuts and allocations were suppressed. I note that
keeping the full Commission fully and currently informed is a
statutory requirement.
Despite being entrusted with independent decision making,
when confronted with these concerns by the Office of Inspector
General, these senior managers essentially responded that the
Chairman's office made them do it. I ask who holds these
managers accountable? Chairman Jaczko?
We at the NRC are at a crossroads. Apparently, the NRC's
senior leadership is ineffective in upholding the integrity of
this Agency. Politics are influencing some of the NRC's staff's
work. The question is, could politics at some point affect the
staff's technical and regulatory findings and decisions? This
is not where an independent safety organization should be. If
the NRC were to find any of our licensees so lacking, we would
require of them a corrective action plan. We should hold
ourselves at least to the same standards. The NRC needs to
enact a corrective action plan.
I cannot overemphasize the importance of your oversight
role. If it were not for your oversight, much of what has been
revealed would remain behind closed doors. Given the recent
revelations, I am not sure that you, the oversight Committee,
made up of the representatives of the citizens of United States
of America, entrust us at the NRC to always be and remain
objective, independent and credible to ensure the health and
safety of the American public. We need to re-earn your trust.
Thank you for this opportunity.
[The prepared statement of Mr. Mohseni follows:]

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Mr. Shimkus. Thank you, Mr. Mohseni. Now I would like to
turn to Mr. Lawrence Kokajko, Acting Deputy Director for the
Office of Nuclear Material Safety and Safeguards at the NRC.
Sir, again, your full statement is in the record. You have 5
minutes.

TESTIMONY OF LAWRENCE E. KOKAJKO

Mr. Kokajko. Thank you. Mr. Chairman, Ranking Member Green,
and members of the Subcommittee, my name is Lawrence Kokajko,
and I am honored to appear before you today to provide my
perspective on those internal NRC issues----
Mr. Shimkus. Can you check----
Mr. Kokajko. Perspective on those internal issues----
Mr. Shimkus. And I hate to interrupt you. Maybe pull it a
little bit closer to you.
Mr. Kokajko. Hello?
Mr. Shimkus. That is much better.
Mr. Kokajko. Thank you. I will just start over, if you
don't mind. Mr. Chairman, Ranking Member Green, and members of
the subcommittee, my name is Lawrence Kokajko, and I am honored
to appear before you today to provide my perspective on those
internal issues associated with the review of the Department of
Energy's license application for the proposed repository at
Yucca Mountain, Nevada.
Currently, I am the acting Deputy Office Director for the
Office of Nuclear Material Safety and Safeguards, although my
official position is the Director of the Division of High-Level
Waste Repository Safety. I have been with the NRC since 1989,
and I have regulatory experience in reactors, materials and
waste.
I had always wanted to be associated with a program of
national significance, and when the opportunity to be the
Director presented itself, I enthusiastically accepted. Part of
my enthusiasm was due to the repository safety staff itself.
All employees of the NRC are dedicated to its mission to assure
safety, security and environmental protection, and the members
of the repository safety division are no exception.
Moreover, in 1987, agency leadership, with great foresight,
contracted with the Southwest Research Institute that organized
the Center for Nuclear Waste Regulatory Analyses as the NRC's
only federally funded research and development center and to be
a conflict-of-interest-free entity. Both the NRC and Center
employees have expertise in geological and related sciences and
engineering, and they are dedicated professionals that have
spent decades in preparation for this application.
Besides wanting to work on a program of national
significance, I wanted to work with these talented
professionals. I recognized their unique set of knowledge,
skills and abilities and the challenging subject matter and
context for this important major Federal action. Quite frankly,
I am very concerned about the loss of this disposal expertise
as spent nuclear fuel continues to increase and the U.S.
program is now uncertain. I hasten to add that geologic
disposal remains the internationally recognized means to
isolate high-level radioactive waste for very long time
periods.
The Nuclear Regulatory Commission is an independent agency,
and as such, the agency has the responsibility to demonstrate
this independence by openness and transparency in its
deliberations and decision making. This can be displayed by
collaborating and assuring all information is available and
discussed. Agency independence and internal processes should be
jealously guarded, and the appearance of political influence in
such deliberations and decision-making should be avoided at all
costs.
Given that the Congress did not amend the Nuclear Waste
Policy Act or enact other legislation to discontinue
development of Yucca Mountain, other legitimate internal
processes could have occurred. For example, the Atomic Safety
and Licensing Board could have agreed that the Department of
Energy could withdraw the repository application; the
Commission itself could have overturned the June 29, 2010,
Atomic Safety and Licensing Board's decision promptly; or
alternatively, the collective Commission could have decided
through a vote and subsequent staff requirements memorandum
that the staff should formally suspend its review pending
legislative or other adjudicatory action.
Staff would have willingly followed any outcome from a
faithfully executed legitimate process. Until such decision,
staff was under the distinct impression that it could continue
its safety review as long as sufficient funding existed.
Further, I would go so far to say that many think as I do, the
Nation paid for this review, and the Nation should get it.
I would like to have seen the Commission act collegially to
address this issue. As noted in the recent Office of Inspector
General report, the decision to close the program by the end of
fiscal year 2011 was made without the entire Commission being
fully informed or acting in concert. When this became apparent,
executive staff leadership should have acted as a brake to
afford the Commission information and time to assess and
develop appropriate program direction. This would have enabled
more budget and program information to rise to the entire
Commission and would have precluded decisions based on
incomplete information or perception.
Regardless of the NRC's evaluation of the technical merits
of the application, the staff takes no position on actual
construction and operation of a proposed repository.
Ultimately, it is up to the Congress to determine whether to
build and operate the facility. Any such national policy
decision by Congress would be based upon the science and
engineering performed by the Department of Energy and the
subsequent safety evaluation and adjudication by the NRC,
assuring that this meets the standards set by the Environmental
Protection Agency.
NRC requires complete and accurate information in all
material respects in relation to the repository license
application. The Department of Energy has not identified a
safety defect in the application; thus, it remains valid and
before the NRC. I believe science and the scientific process
must inform and guide NRC's regulatory decision making. I
further believe we have been open and transparent with our
stakeholders with regard to our regulatory duties as this
Chairman and this Commission have emphasized. Technical staff
associated with this program are dismayed by what has happened
thus far, and we would hope the day comes soon when we can
return to being boring regulators.
For the record, this is not meant to be a pejorative
remark. Our mission and our work are vitally important to the
Nation, and we take our responsibility seriously. The Agency
should always be in the background as the fundamental pillar,
assuring safety as our number one priority, keeping in mind
that we must be ever vigilant. This is not exciting work to
many, but we all appreciate our roles as Federal employees,
assuring the safety of our fellow citizens. This current
situation is distracting and does the Agency and its people no
good.
Thank you.
[The prepared statement of Mr. Kokajko follows:]

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Mr. Shimkus. Thank you. And we will now turn to Ms.
Catherine Haney, Director of the Office of Nuclear Materials
Safety and Safeguards at the NRC. Again, your full statement is
in the record. You have 5 minutes and welcome.

TESTIMONY OF CATHERINE HANEY

Ms. Haney. Thank you. Good morning, Chairman Shimkus and
Ranking Member Green and members of the subcommittee. I am
Catherine Haney. I am the Director of the Office of Nuclear
Material Safety and Safeguards at the NRC. I have held this
position since May 10 of 2010, previously serving as Deputy
Director in the office. I am responsible for management and
oversight of three program areas at NRC, the fuel cycle safety
and safeguards, spent fuel storage and transportation and high
level waste repository safety.
I am here today to discuss our activities regarding the
NRC's regulatory oversight of the proposed Yucca Mountain high-
level nuclear waste repository.
The Department of Energy submitted a license application in
June 2008 to seek authorization to construct the geologic
repository at Yucca Mountain. The NRC accepted the application
for review in September 2008 and commenced a two-pronged review
process, first, the technical review of the license application
by the NRC staff and second, a hearing process before the
Atomic Safety and Licensing Board. The results of the staff's
technical evaluation are to be documented in a Safety
Evaluation Report.
Before I was appointed by the Commission to the position of
Office Director in May 2010, the Department of Energy had filed
a motion to withdraw the Yucca Mountain application before the
Atomic Safety and Licensing Board. As a result, my predecessor
had directed the staff to start planning an orderly closure as
a contingency and for documenting the licensing review while we
continued our development of the remaining volumes of the
Safety Evaluation Report. At the end of June 2010, the
Licensing Board denied DOE's request to withdraw the license
application. This decision by the Board has been under review
by the Commission since early July 2010. The staff issued
Volume 1 of the safety evaluation review in August 2010.
Over the course of the remainder of fiscal year 2010, my
staff continued with the licensing review and the preparation
of an orderly closure plan in case the Commission overturned
the Board's June 2010 decision or the Congress enacted the
appropriations requested by the President in the 2011 budget.
For fiscal year 2011, the President's budget requested $10
million for the close-out of the high level waste program and
no funds from the Nuclear Waste Fund for the Department of
Energy's high-level waste program. On October 1, 2010, while
operating under a continuing resolution and consistent with
direction from the Chairman, we began a process of
transitioning to close-out of the Yucca Mountain program.
Specifically, we began the process of documenting and
preserving the staff's review, which included converting the
remaining volumes of the draft Safety Evaluation Report into a
Technical Evaluation Report. The objective of the TER is to
capture the knowledge gained during the last 30 years in
preparing for and conducting the Yucca Mountain licensing
review. It is our belief that by thoroughly documenting the
staff's technical review and preserving it as appropriate for
publication and public use, the agency will be best positioned
to respond to future direction from the Commission, Congress or
the courts.
I believe this action was consistent with Commission
policy, the general principles of appropriations law, and
applicable guidance from the Office of Management and Budget
and the Government Accountability Office on expenditure of
funds under continuing resolutions.
In September 2010, my staff began to draft a memo to the
Commission that would provide an update on the Yucca Mountain
Program. The scope and purpose of the memorandum evolved over a
number of weeks as external and agency internal factors, such
as budget parameters, individual Commissioner and Commission
actions, and inquiries from Congress extended the dialogue
regarding the future of the Yucca Mountain program. On February
4, I signed this memorandum that provided the information I
felt needed to be conveyed to the Commission to keep the
Commission fully and currently informed. That memorandum
outlined with some specificity the various actions completed,
underway and planned. These included converting the remaining
volumes of the Safety Evaluation Report into a Technical
Evaluation Report; secondly, archiving the institutional,
regulatory and technical information amassed over nearly 3
decades of evaluation of Yucca Mountain; redirecting the Center
for Nuclear Waste Regulatory Analysis to focus its Yucca
Mountain-related efforts on the preservation of knowledge and
records management; continuing to support the Office of General
Counsel on any adjudicatory hearing-related matters;
videotaping interviews with departing and other senior
technical staff for knowledge; initiating discussions with the
General Services Administration and other government agencies
about preparatory activities to close and decommission the Las
Vegas Hearing Facility; and lastly, keeping the Licensing Board
informed of the status of the staff's application review
activities.
Our efforts to thoroughly document and capture the
knowledge from our Yucca Mountain activities continue, with a
goal of completing these activities by the end of fiscal year
2011. No resources have been requested for this activity in
fiscal year 2012.
As we have been proceeding with the orderly closure of the
Yucca Mountain regulatory program, we have also been
implementing our strategy for integrated spent fuel management.
Given the expected delay in the availability of a repository
for high-level waste, the Nation will accumulate an increasing
inventory of spent nuclear fuel. Consistent with NRC's mission
of ensuring safety and security, the NRC's objective in this
strategy is to develop the regulatory tools, analyses and data
needed to evaluate and support the safe and secure management
of this increasing inventory. We are pursuing this strategy in
collaboration with a broad array of external stakeholders.
And this completes my prepared remarks. Thank you.
[The prepared statement of Ms. Haney follows:]

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Mr. Shimkus. Thank you very much. Thank you all for your
statements and your testimony. Before we go to questions, I ask
unanimous consent that the contents of the document binder be
introduced into the record and to authorize staff to make any
appropriate redactions. Without objections, the documents will
be entered into the record with any redactions the staff
determines are appropriate.
[The information appears at the conclusion of the hearing.]
Mr. Barton. Mr. Chairman, may I ask just a parliamentary
question?
Mr. Shimkus. You are risking it but you can.
Mr. Barton. We have a document before us that says ``not
for public disclosure.'' Is that just for the Members' review
or are we allowed to refer to it in the questioning?
Mr. Shimkus. That submission is part of what is in the
document binder, and you can refer to it.
Mr. Barton. We can refer to it? Thank you, Mr. Chairman.
Mr. Shimkus. Thank you. Now I would like to recognize
myself for the first 5-minute round of questioning.
Let me start with you, Dr. Kotra. Just to be clear, the
division of high-legal waste repository safety is responsible
for providing the technical analysis of the Yucca Mountain
license application. Is that correct?
Ms. Kotra. That is correct, sir.
Mr. Shimkus. So this is really where the bread and butter
work on the license review is done, correct?
Ms. Kotra. Yes, in coordination with our dedicated
contractor at the Center for Nuclear Waste Regulatory Analysis
as Mr. Kokajko explained.
Mr. Shimkus. And why is it important that the staff perform
their work objectively and in a non-partisan manner?
Ms. Kotra. I think it is absolutely vital that the decision
makers have at their disposal a decision based upon science,
objective, unbiased assessment of the applications put before
the Commission for any facility based upon the principles of
science, physics and evaluated against the Commission's
regulations. That is how this Agency has operated for over 35
years.
Mr. Shimkus. And you have been there----
Ms. Kotra. Twenty-seven years.
Mr. Shimkus [continuing]. A big part of that 35 years?
Ms. Kotra. That is correct.
Mr. Shimkus. In your testimony, you also spend a
considerable amount of time in public outreach about the
Agency's work on Yucca review, is that correct? And what is the
message about the NRC regulatory process that you have
attempted to convey to the public?
Ms. Kotra. Our independence, our transparency, our
willingness to be open to contentions from parties that, yes,
we do as thorough and as objective a review as our great body
of scientists and staff and contractors will allow, but that is
now sufficient that our rules allow for a full and open and
non-partisan, impartial hearing process where those parties are
free to bring forward criticisms not just of what the applicant
provides but also what the staff finds in its independent
review. And if those are admitted to the hearing and as you
well know, the vast majority of over 318 contentions were
admitted by the hearing board, and we were prepared to go
forward and adjudicate those in our hearing process. So what I
told the stakeholders in southern Nevada and in California was
if there is merit and those contentions are backed by science
and engineering evidence and witnesses, then the board hears
those, and on those occasions when the staff is wrong, the
Board may find against the staff. And that is OK. That is how
the process is supposed to work.
Mr. Shimkus. Your message really rests on integrity.
Ms. Kotra. Absolutely.
Mr. Shimkus. So when it comes to integrity of the process,
do you believe that the actions by the NRC leadership over the
past year have affected the integrity of the NRC?
Ms. Kotra. I think it has cast a very serious cloud on
that, and it troubles me deeply.
Mr. Shimkus. Do you believe the actions by leadership at
the NRC have undermined what you have tried to convey to the
public?
Ms. Kotra. It is stark contrast to what I have tried to
convey to the public, yes, sir.
Mr. Shimkus. So let me just turn to Dr. Stablein, Dr.
Mohseni, Dr. Kokajko. Do you agree with this initial round of
questioning on NRC on integrity and that there is now a
question of the entire NRC process based upon leadership? Dr.
Stablein?
Mr. Stablein. I definitely do. This is one of the things
that we are fighting to get back.
In the 27 years I have been with the Agency, we have been
very proud of a couple of things: our independence from
political pressures and our scientific integrity and the
integrity of our process to protect the public health and
safety. I think that has slipped, and we are in danger of
losing that.
Mr. Shimkus. Mr. Mohseni?
Mr. Mohseni. I do agree.
Mr. Shimkus. Mr. Kokajko?
Mr. Kokajko. Right. Thank you. I can't speculate on other
parts of the NRC, but I have always felt that if you could be
turned in one area, you can be turned in another. So I do have
some concerns.
Mr. Shimkus. The NRC is still a Federal agency. A lot of
employees in diverse areas. Is this specific to your area or is
this feeling being spread throughout the entire NRC?
Ms. Kotra. Is that a question----
Mr. Shimkus. It is whoever would like to respond.
Ms. Kotra. I would just say that my area of expertise and
experience, at least recently, at least since 1993, is confined
to the division of high-level waste repository safety.
Mr. Shimkus. Anyone else like to? My time is expired, and I
would like to recognize the Ranking Member, Mr. Green, from
Texas for 5 minutes.
Mr. Green. Thank you, Mr. Chairman. Like I said earlier, I
would like to thank each of you for coming before us today
because I have a concern about the decision that was made or
hasn't been made but the actions that have been taken based on
what is happening at the Yucca Mountain, and that is why this
Subcommittee is looking at it.
And I appreciate you as career employees. I know most of
you have been with the Agency since the late '80s, early '90s,
so you have actually served under four different Presidents.
Ms. Haney, I know you became Deputy Director in May of
2010. How long have you been with the Agency?
Ms. Haney. A little over 20 years. I started in 1981,
served 2 years with the Agency, worked as a consultant for 6
years and then came back in the late '80s, and since 1989 I
have been employed with the Agency. So I, too, have as long a
record as my colleagues at the table.
Mr. Green. OK. I guess my concern is that the American
people, we expect you to do your job, and you have been there
for all these years. Has there ever been, that any of you can
remember, something like what has happened at the Commission
that there was a decision made based on a continuing
resolution? I don't have any doubt that it was legal, but
again, Congress made the decision years ago to decide on Yucca
Mountain, and we haven't done as good a job as, you know, you
testified in providing funding. But the decision was made to
not officially withdraw the application but to do everything
you could by shutting it down. Do you remember any other chair
or anything else in your experience since the late '80s?
Ms. Kotra. I can recall of no precedent for this action,
sir.
Mr. Stablein. It is unprecedented in my experience.
Mr. Mohseni. I do not recall, but it doesn't mean I am
aware of everything that has happened in the Agency. But for
something that has become so apparent, so critical, so much
challenge internally by all of us, including Ms. Haney, we all
challenged that decision when it first arrived. So it is not
like there is precedence for it and we would have accepted it
based on precedence, at least in my memory that it never came
up that there is a basis for such a redirection under a
continuing resolution when you have carry-over funds that carry
you into the next year. And almost every year we have had
continuing resolutions but none that would have done such a
dramatic redirection in a major national program.
Mr. Kokajko. No, sir.
Mr. Green. Yes, sir?
Mr. Kokajko. No, sir, I don't recall anything similar in
the past, and I have worked for very short times in the
Executive Director's Office as well as Commission offices.
Mr. Green. Ms. Haney, in your----
Ms. Haney. I am not aware of any, either.
Mr. Green. Ms. Haney, let me ask you about your memo of
February the 4th. This memo outlines the status of NRC staff
work on the closure of Yucca Mountain licensing review and
appears several times in the witness testimony. When you first
decided to write the memo to the Commission in last year, what
was its purpose?
Ms. Haney. When I first worked with staff to develop the
memo, it was probably in the early September timeframe, and at
that point, we did not have any guidance from either the
Executive Director of Operations or from the Commission level
with regards to the future of the program. I was aware of
statements in the budget statements in the document for the
fiscal year 2012 budget. So consistent with what past practice,
I thought it was prudent to prepare a status memo to the
Commission telling them that we--just reinforcing our March
memo to them that we could plan to use carry-over funds from
fiscal year 2010 into 2011 to complete the Safety Evaluation
Report. And by doing that I would take it to the Commission,
give them the opportunity to know what our plans were. If they
had a differing view, they could, through internal procedures,
let staff know of that.
Mr. Green. I only have 5 minutes, but last fall with the
developments regarding the direction of high-level waste, the
Chairman told the staff to begin closure of Yucca Mountain
licensing review and stop work on the safety evaluations.
Commissioner Ostendorff asked the Commission to overturn it,
but it failed. Did these events change the purpose and scope of
your memo?
Ms. Haney. Yes.
Mr. Green. Mr. Mohseni, the suggestion in your testimony
that you quote senior managers directed the staff to suppress
information to the Commission by providing a status report
instead of a policy report on the closure of Yucca Mountain.
Ms. Haney, how did you respond to that? Did anyone direct you
to suppress information to the Commission?
Ms. Haney. No.
Mr. Green. Dr. Kotra, you expressed in your testimony the
final version of the memo implied that the NRC staff was who
decided to terminate the NRC's review of the license
application. Is that one of the reasons you cite for submitting
the formal non-concurrence with the memo?
Ms. Kotra. That is the primary reason that I submitted a
non-concurrence, sir.
Mr. Green. OK. I assumed it was common knowledge the
Chairman made the decision to close down the program?
Ms. Kotra. Not initially.
Mr. Green. Dr. Kotra, does anyone at NRC or the Commission
really believe that this was the technical staff's decision?
Ms. Kotra. Certainly not now.
Mr. Green. Mr. Chairman, I know I am over my time but one,
I appreciate you being here. I am frustrated because we spent
$15 billion in a decision made by Congress in the 1980s, for
good or bad, and we are just throwing that out and starting
over again.
So, Mr. Chairman, thank you for the time.
Mr. Shimkus. I thank my colleague. I would like to turn now
to the chairman emeritus, Mr. Barton, for 5 minutes.
Mr. Barton. I am going to try to do it in 5 minutes. It is
going to be difficult. I first just have some general
housekeeping questions. I assume that you all are all SES
employees?
Ms. Kotra. No, sir.
Mr. Stablein. I am not.
Mr. Mohseni. I am.
Mr. Barton. Let us start over again. What are you? Each of
you explain your status, the type of employee you are at the
NRC.
Ms. Kotra. I am a senior-level project manager, technical
staff. I am not an SES employee.
Mr. Barton. Is anybody here a political appointee?
Ms. Haney. No.
Mr. Stablein. No.
Mr. Mohseni. No.
Mr. Kokajko. No.
Ms. Kotra. No.
Mr. Barton. So you are all hired based on merit and you can
be fired based on merit according to whatever the protocol is
on review, is that correct?
Ms. Kotra. That is correct.
Mr. Barton. Who is the highest ranking person here?
Ms. Haney. I am.
Mr. Barton. And you are a----
Ms. Haney. I am a Senior Executive Service Office Director.
Mr. Barton. You are an Office Director?
Ms. Haney. Correct.
Mr. Barton. Who is the next highest?
Mr. Kokajko. That would be me.
Mr. Barton. And what are you, sir?
Mr. Kokajko. I am a Senior Executive Service Member. I am
currently the Acting Director for the Office, Acting Deputy
Director for the Office.
Mr. Barton. So you report to Ms. Haney?
Mr. Kokajko. Yes, I do.
Mr. Barton. Who is next?
Mr. Mohseni. I am next. I am an SES member as well, and I
am the Acting Division Director, permanently as a Deputy
Division Director.
Mr. Barton. Are you equivalent to Dr. Kokajko?
Mr. Mohseni. Dr. Kokajko would be my Division Director
regularly, but he has moved to an Acting Deputy Director due to
the Japanese event. And I have backfield behind him as the
Acting Division Director. I report to him generally in the
division.
Mr. Barton. You report to him and he reports to her?
Mr. Mohseni. He reports to Cathy.
Mr. Barton. What about you, sir?
Mr. Stablein. I am a grade 15 Branch Chief. That is non-
SES, and I report directly to Mr. Mohseni.
Mr. Barton. So it is just kind of going right up. And then
you are the low lady on the totem pole?
Ms. Kotra. I most certainly am. I am a grade 15 Senior
Staff. I report to Dr. Stablein, and I have no one reporting to
me.
Mr. Barton. Ms. Haney, who do you report to?
Ms. Haney. I report to the Deputy Director of Operations,
Michael Weber.
Mr. Barton. And who does he report to?
Ms. Haney. To the Executive Director of Operations which is
Bill Borchardt.
Mr. Barton. And who does he report to?
Ms. Haney. At that point, you move onto the Commission
level and he reports to them.
Mr. Barton. So you are two levels below the Commission?
Ms. Haney. Yes.
Mr. Barton. So you would normally, even at your level, you
have no day-to-day interaction with the Commission staff?
Ms. Haney. On a day-to-day----
Mr. Barton. With a Commissioner?
Ms. Haney. With a Commissioner? Typically on a frequency of
once to every other month I meet on a one-on-one basis with a
Commissioner or with the Chairman.
Mr. Barton. Does everybody here consider yourself to be
outside politics? I mean, you are professionals. Whatever the
job is, you do it, and you let the presidentially appointed
Commissioners and their political appointees handle the
politics. Is that a fair statement?
Ms. Haney. Yes?
Mr. Barton. Everybody agrees?
Ms. Kotra. Yes.
Mr. Barton. Mr. Mohseni, we have a document that is listed
not for public disclosure that was sent from you to Ms. Haney.
It is apparently now going to be in the public record. Is that
with or without your permission?
Mr. Mohseni. I did not release it myself.
Mr. Barton. So it is without your permission?
Mr. Mohseni. Yes.
Mr. Barton. And it is sent to you, Ms. Haney, so I assume
it has been released without your permission?
Ms. Haney. Correct.
Mr. Barton. OK. Mr. Mohseni, this is a pretty, to me, an
unusual document.
Mr. Shimkus. If the gentleman will yield for a second? It
is Tab 6 in the document binder that we submitted into the
record.
Mr. Barton. You disagree with the decision not to approve
the Technical Evaluation Report as written for publication. I
also disagree with the need to revise the TER which is
Technical Evaluation Report. Did you feel when you wrote this
that this might have some negative consequences on you?
Mr. Mohseni. Me?
Mr. Barton. Yes, sir.
Mr. Mohseni. Yes, I did.
Mr. Barton. OK. And when you received it, Ms. Haney, did
you feel like that you needed to respond fairly emphatically or
that you would be put under some pressure from higher-ups?
Ms. Haney. No.
Mr. Barton. You felt no pressure?
Ms. Haney. The pressure is coming from I have a desire to
have the Technical Evaluation Report released to the public. So
the pressure comes from an internal desire to make that
document publically available, and as written, I was not
comfortable with it being released to the public. So the
pressure comes with regards to the document, not with regards
to any of the content of the memo.
Mr. Barton. My 5 minutes is already expired. Let me ask one
final question. Do you all feel like the Chairman at NRC is
acting appropriately within the statute with what he has done
to try to shut Yucca Mountain down? That is a straight
question.
Mr. Mohseni. I do not agree with his decision of bypassing
the rest of the Commission and making this decision as a policy
decision where the entire Commission would have actually vetted
this decision, this important decision. The reasons I have that
the law has not changed----
Mr. Barton. We don't have time for your reasons.
Mr. Mohseni. OK. Well, I disagree with the Chairman's
decision to move----
Mr. Barton. Ms. Haney, do you----
Ms. Haney. I believe he is within his legal authority to
make the decisions he has made.
Mr. Barton. Without the other Commissioners' approval? You
think the Chairman himself has that authority?
Ms. Haney. Based on the knowledge and the reasons that he
has provided for making that decision, yes.
Mr. Barton. What about you, Mr. Kokajko?
Mr. Kokajko. No, sir. I disagree with the Chairman on this.
I would have preferred that the NRC implement its internal
processes which are available to make this decision. I think it
is of profound national significance, and it should have been
done much more openly and----
Mr. Barton. Dr. Stablein, what is your position?
Mr. Stablein. I also believe that the entire Commission
should have had the opportunity to weigh in on such a major
decision, and in fact, the IG report indicates had they weighed
in, the decision would have come out differently.
Mr. Barton. OK, and Dr. Kotra?
Ms. Kotra. Earlier in my career, I served on the staff of
two Commissioners and did a rotation for a third, and in all my
experience working for political appointees in the NRC, I have
never seen a policy decision of this magnitude handled in this
manner. I disagree with this decision treated unilaterally by a
Chairman. It should have been a Commission decision.
Mr. Barton. Thank you, Mr. Chairman, and thank you for the
courtesy of letting me go over 2 minutes.
Mr. Shimkus. The Chair now recognizes the chairman
emeritus, Mr. Waxman, for 5 minutes.
Mr. Waxman. Thank you very much, Mr. Chairman. I would like
to discuss some of the allegations raised in the witness
testimony against Chairman Jaczko and senior managers at the
NRC.
Mr. Mohseni alleges in his statement that, ``senior
managers contributed to the manipulation of the budget process
to apparently make sure that the Yucca Mountain project would
be left unfunded.'' Mr. Stablein called Chairman Jaczko's
decision to terminate the licensing review process, ``the
arbitrary decision of one individual.'' These statements appear
to leave out important players in this ongoing saga.
In February of last year, the Obama administration
announced that it planned to shut down the Yucca Mountain
project. Not long after that, Secretary of Energy asked to
withdraw the Yucca Mountain license application from NRC
review. Ms. Haney, is that correct?
Ms. Haney. Yes.
Mr. Waxman. In 2010, the NRC approved its budget
justification for fiscal year 2011 stating that it would use
its funding to begin an orderly closure of the Yucca Mountain
licensing activities. For fiscal year 2012, NRC requested $4
million to terminate the licensing review. The Commission
approved that budget request as well. Ms. Haney, is that your
understanding?
Ms. Haney. Yes.
Mr. Waxman. In addition, after the Chairman told the staff
to close out the Yucca Mountain licensing review last fall,
Commissioner Ostendorff called a vote to direct staff to
proceed with the license review and finish the Safety
Evaluation Reports. That vote failed when a majority of
Commissioners opted not to participate. Ms. Haney, is that your
understanding?
Ms. Haney. Yes.
Mr. Waxman. And Congress has weighed in as well. In April,
Congress passed a continuing resolution that zeroed out funding
for Yucca Mountain at DOE and allocated $10 million to NRC to
close out the license review. I would note that both Chairman
Shimkus and Chairman Upton voted for the CR and did not offer
or even file an amendment to restore funding for Yucca
Mountain. Despite the record, Mr. Mohseni alleges in his
testimony that there is a conspiracy among senior management at
NRC to do the political bidding of Chairman Jaczko. So I will
ask the question. Ms. Haney, has the Chairman or his staff ever
directed you or asked you to direct staff to change or suppress
technical findings on Yucca Mountain?
Ms. Haney. The Chairman has never asked that.
Mr. Waxman. Thank you. I can understand why many of you are
frustrated and upset by the end of this program after 4 years
of hard work. While some may disagree with Chairman Jaczko's
decision to close down Yucca Mountain licensing review, it was
hardly an arbitrary decision. The Commission and Congress voted
on several occasions to move forwards with the closure, it
wasn't the Chairman alone. It was the Secretary of Energy and
the President of the United States and the Congress of the
United States that decided to end the Yucca Mountain project,
and that is where we stand at the moment.
Mr. Shimkus. Will the gentleman yield just for one second,
just to follow up on a question?
Mr. Waxman. Yes.
Mr. Shimkus. The question you asked Ms. Haney, and she is
under oath, the question that you asked, did the Chairman or
staff. Her response was, the Chairman did not. Can she answer
the question whether staff had ever given her direction? I
mean, that is what your question was, to Chairman and staff.
Ms. Haney, your response was, and you are under oath, your
response was the Chairman has not.
Ms. Haney. Nor has the staff.
Mr. Shimkus. OK. Thank you.
Ms. Haney. But if given the opportunity with regards to--I
am interpreting suppress to be to change technical findings, we
did receive direction from the Chairman with regards to when we
would issue technical documents as noted in Dr. Stablein's
testimony. But am I answering that the Chairman or the staff
did not give me. That is my interpretation of suppression, that
he did not suppress technical information.
Mr. Waxman. But he did ask you or his staff asked you to do
what?
Ms. Haney. With regards to the timing of the Safety
Evaluation Report being issued at the times we had told the
Board that we would issue them, and my reference is back to Dr.
Stablein's testimony.
Mr. Waxman. And is that something unusual for the Chairman
to talk about the timing and direct the timing of release of
certain--
Ms. Haney. It is unusual, but again, I believe it is
consistent with the authorities that he has as Chairman.
Mr. Waxman. Thank you very much. I yield back my time, Mr.
Chairman.
Mr. Shimkus. Thank you, Mr. Waxman, for letting me
intervene. The Chair now recognizes the vice chair, Mr. Murphy,
for 5 minutes.
Mr. Murphy. Mr. Mohseni, I read the Inspector General's
report, and it seems that some NRC executives anticipated that
during the continuing resolution in the fall of 2010 your
department would continue its work on Yucca and the Safety
Evaluation Report. Allow me to read it for you. ``The Deputy
Executive Director wanted to convey in the CR budget guidance
memorandum that the staff would use FY 2010 carryover funds in
fiscal year 2011 to move ahead with license application review
activities until they had a final decision from the Commission.
This was a language the Deputy Executive Director originally
inserted into early draft versions of the CR budget guidance
memorandum.'' Meaning there was money left over. I repeat,
there was money left over to continue with the Safety
Evaluation Report and review of the Department of Energy
application while the Commissioners deliberated on whether to
uphold or vacate the Atomic Safety and Licensing Board
decision. This language was ultimately removed. Is that
correct?
Mr. Mohseni. That is correct.
Mr. Murphy. Is it your opinion that Chairman Jaczko
directed the removal of this language?
Mr. Mohseni. I don't know personally for sure, but
circumstantial evidence suggests that.
Mr. Murphy. Is it your opinion that by removing that
language, the Chairman was undermining the Agency's independent
work at Yucca?
Mr. Mohseni. There is a connection there to be made.
Mr. Murphy. Mr. Mohseni, the Director, Catherine Haney
here, has testified that on October 1, 2010, while the NRC,
like all government agencies, was operating under a continuing
resolution, the Department began to convert the remaining
volumes of the Safety Evaluation Report into a technical
advisory document devoid of scientific findings. Is there a
difference between a safety evaluation report and technical
evaluation report in terms of what they mean for policymakers?
Is there a difference in content?
Mr. Mohseni. There is.
Mr. Murphy. All right. Is it true that a technical
evaluation report would lack scientific findings and
conclusions reached by the Department in your work?
Mr. Mohseni. The Safety Evaluation Report would have
regulatory compliance findings. It would also have a technical
assessment. The technical evaluation report would just have the
technical assessment without the regulatory compliance.
Mr. Murphy. So if you were directed to do one and not the
other, there would be a distinct difference in content between
the two documents, am I correct?
Mr. Mohseni. Yes.
Mr. Murphy. And it is possible that the safety evaluation
report could contain information that would validate Yucca and
dispel safety concerns, am I correct?
Mr. Mohseni. Correct.
Mr. Murphy. So if you were told not to do a safety
evaluation report but to do a technical evaluation report,
there would be direct suppression of data, am I correct?
Mr. Mohseni. Yes, from a licensing standpoint, the ultimate
decision for the Nation was whether or not it meets the
regulation. So that piece of information would not be
available.
Mr. Murphy. So is it your opinion that the Chairman of the
NRC specifically directed the staff in your department to delay
publication of a Safety Evaluation Report until after he
published a budget memorandum that would end your department's
work? Am I correct in that?
Mr. Mohseni. Let me just rephrase that, if you don't mind.
Mr. Murphy. Real quick. I have a whole bunch of questions.
Mr. Mohseni. Yes, the Safety Evaluation Report is tied to
our litigation process, and the timing of release of that would
have been consistent with what we had announced to the board.
And the intervention by the Chairman put us off course.
Mr. Murphy. Mr. Mohseni, you recently appealed to the full
Commission to intervene in connection with your concerns about
manipulation and suppression of staff information. This is what
we have in Tab 7 there, what appears to be a copy of that
petition. That is what you filed?
Mr. Mohseni. Yes, sir.
Mr. Murphy. What led you to do this, real quick?
Mr. Mohseni. The Technical Evaluation Report was complete
March 31 as we had announced, and I was the final signatory on
it. And we provided it to the front office, and 2 months later
we got the direction that I think you heard the witnesses here
that we were not authorized to release it unless it was
revised.
Mr. Murphy. You wrote in this document, ``In this division
alone I have witnessed the suppression and manipulation of
programmatic and budgetary information to meet a politicized
agenda.'' Is it your belief that this direction came from Mr.
Jaczko?
Mr. Mohseni. Although I don't have direct evidence, but it
seems like it is the same agenda.
Mr. Murphy. All right. In your testimony you referenced the
political pressures, manipulation of our scientific and
licensing process that would come with the appointment of
Chairman Jaczko. Do you believe the source of problems of the
Agency today stemmed from Chairman Jaczko's behavior and
actions?
Mr. Mohseni. The source might be there, but he couldn't do
it alone if there were not enablers.
Mr. Murphy. I am a psychologist. I am familiar with
enabling. I would like to read to you a couple statement from
his speech and see if you are in agreement with this. This is
regarding the mission statement of NRC. The NRC must foster
initiatives that seek to further the culture within our own
staff by encouraging programs such as differing professional
opinions. Would you agree with that?
Mr. Mohseni. Yes, sir.
Mr. Murphy. Do you think that culture exists in this
situation?
Mr. Mohseni. I have tested it, and so far I am still
sitting here before you, so----
Mr. Murphy. All right. But the culture of being allowed to
have these professional opinions coming to an official NRC
report seems to be tainted. How about this one?
Mr. Mohseni. Yes.
Mr. Murphy. How about this one, too, the process of the
Commission uses to make policy decisions should always be open,
accessible and well-understood by all. But the law as Congress
has passed, the President signed into law, it says the Chairman
and the Executive Director of Operations to the Chairman, shall
be responsible for ensuring the Commission is fully and
currently informed about matters within its functions. Yet, it
appears by directing the report to be done in one way and not
the other, it seemed to be in violation of that law. Would you
agree?
Mr. Mohseni. Yes, I agree.
Mr. Murphy. One more statement, Mr. Chairman. Would it
surprise you those quotes I read you were made by Mr. Jaczko
himself in 2005?
Mr. Mohseni. Yes.
Mr. Murphy. I would like to submit this for the record, Mr.
Chairman.
Mr. Shimkus. Is there objection? Hearing none, so ordered.
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Mr. Shimkus. The Chair now recognizes the gentleman from
Pennsylvania, Mr. Pitts, for 5 minutes.
Mr. Pitts. Thank you, Mr. Chairman. Mr. Mohseni, to
continue, you state your belief that ``At the direction of the
Chairman and with the aid of some senior managers, the
disclosure to the rest of the Commission of the staff's views
on the impacts of budget cuts and allocations was suppressed.''
What were these views briefly?
Mr. Mohseni. We had prepared responses to inquiries by
individual Commissioners and by inquiries from Members of
Congress. And we the staff were the first people to actually
try to address those questions. As they were sent up through
the chain, it had to be cleared at the Chairman's office, and
then the answers that went out were quite different than the
ones we had forwarded.
Mr. Pitts. Mr. Mohseni, why would the Chairman and certain
senior managers seek to silence the staff's views on the
impacts of budget cuts and allocations?
Mr. Mohseni. In retrospect, after the IG report, I can
actually say that it is very clear that, in fact, to keep the
others in the dark so that the decision would not be hampered
to shut down the program.
Mr. Pitts. Isn't it true that keeping the full Commission
fully and currently informed is a statutory requirement?
Mr. Mohseni. It is indeed.
Mr. Pitts. Why is it important that the full Commission
have an opportunity to hear the views of its dedicated and most
experienced professional staff?
Mr. Mohseni. Because the Commission's policy-making body
heavily relies on the best information available to them to
make policy. Once the staff deprives the full Commission of
getting the full benefit of the thinking of the staff in terms
of the options that the Commission has and the recommendation
from the staff, it undermines the functionality of the
Commission, and you will at best come up with an inadequate
policy because you did not support with full information the
integrity of the process by providing them with the best advice
possible.
Mr. Pitts. Dr. Kotra and Dr. Stablein, Mr. Mohseni, if you
will each respond, to what extent does NRC senior leadership
contribute to problems of keeping information fully and
currently from the Commission? And if you can provide a
specific example of this happening to you with regard to
providing information to the Commission about Yucca Mountain?
Ms. Kotra. Well, to the extent that I am given assignments
to draft information that is going to go forward to the
Commission, I have to satisfy the concurrence chain that goes
up through my management. And ordinarily, there is a chain that
starts at the bottom and goes to the top. The regular procedure
that I had to follow in the memo that we have discussed here
today was coming directly from the Deputy Director of
Operations reaching down to my level and making changes in the
draft that would be seen by multiple layers above me is now how
it is supposed to work. Basically, the draft that was supposed
to go through the concurrence chain in an orderly progression
was not allowed to happen. There were over 100 different
electronic drafts that were entered into our electronic
recordkeeping system before this memo went forward to the
Commission, and much of that was to incorporate changes that
were provided, I am told, you know, through this iterative
process, and I don't know this directly, but it was through
meetings that my office director had with the Deputy Director
for Operations, and I could only surmise that this direction
was coming from the Chairman's office.
Mr. Pitts. The chair emeritus wants to----
Mr. Barton. The Deputy Director of Operations reports to
the Director of Operations who I assume reports to the
Chairman?
Ms. Kotra. That is correct.
Mr. Barton. Or to the Commission?
Ms. Kotra. That is correct.
Mr. Barton. At those two levels, are those political
appointees or are they civil service?
Ms. Kotra. They are career civil servants, but they report
directly to the Chairman.
Mr. Barton. OK. Thank you.
Mr. Pitts. Dr. Stablein, would you respond?
Mr. Stablein. The best example that I have is also this
memo that Dr. Kotra worked on because as her supervisor, I
agonized with her over these changes we were forced to make.
Mr. Pitts. Thank you. Mr. Mohseni, would you respond?
Mr. Mohseni. Same.
Mr. Pitts. All right. Ms. Haney, you supervise the other
panelists appearing here today, right?
Ms. Haney. Yes.
Mr. Pitts. How do you respond to the concerns expressed by
these senior NRC staff that the Commission is not getting full
information?
Ms. Haney. To the best of my knowledge, I believe the
Commission was getting the information. Now after the IG report
is out, there are things that would call that into question.
But at the time we were working on that memo and I was the one
that was directing the content of the memo with input from the
Deputy Director of Operations, I felt the Commission was aware
based on my periodic meetings with the Commissioners.
Mr. Pitts. Well, knowing what you know as Director and
knowing what the Commission does not know, do you think all
policy and budget matters concerning the Yucca license activity
have adequately been communicated to the Commission?
Ms. Haney. I do believe that.
Mr. Pitts. What is the reaction of the other three of you?
Ms. Kotra. I find that hard to believe.
Mr. Mohseni. I specifically asked that question yesterday
of at least one Commissioner, and I previously asked the
others. The answer was no, we have not.
Mr. Pitts. Dr. Stablein?
Mr. Stablein. Yes, I agree with what Mr. Mohseni said.
Mr. Pitts. My time is up.
Mr. Shimkus. The gentleman's time is expired. The Chair now
recognizes the gentleman from Ohio, Mr. Latta, for 5 minutes.
Mr. Latta. Well, thank you, Chairman. I appreciate the time
and I appreciate the panelists here today, and every one of
these hearings I set through, I can't say that I am not even
more amazed of what is going on out there.
As the chairman has stated about a dysfunctional Commission
and hearing what the Inspector General is saying and saying
that the Chairman is not forthcoming in the information to his
fellow Commissioners is just beyond belief.
But if I could, Mr. Mohseni, if I could ask you this, what
is the technical evaluation report for post-closure safety?
Mr. Mohseni. It is the staff's collection of learning that
has contributed to our original Safety Evaluation Report minus
the regulatory compliance findings. So it has, I don't know,
400 or 500 pages of serious technical assessment of the
performance of the mountain once it is closed. It is the post-
closure, 1-million-year assessment of its performance as
proposed by the Department of Energy.
Mr. Latta. OK. And according to the February 4 memo to the
Commission, was the document to be released on March the 31st?
Was the document to be released by March 31?
Mr. Mohseni. It had to be completed by March 31 and
probably within days to be released, yes.
Mr. Latta. OK, and was the TER manage group completed by
March 31?
Mr. Mohseni. The staff completed it, yes.
Mr. Latta. OK. And also, in one of your memos that you had
sent on June the 3rd, you stated that this was not a draft, it
was final and it was completed on or around the 31st. Do you
still stand by that, that it was----
Mr. Mohseni. Yes, sir. Yes, sir.
Mr. Latta. And also, are you the signing official on that
document, then?
Mr. Mohseni. Yes, as Acting Division Director, I signed. I
am the final signatory on that document.
Mr. Latta. Let me ask you this. Director Haney had
mentioned that she believed that the Commission was getting the
information, but in looking at some of these documents that we
have received, one dated on June the 20th that you had sent to
all the Commissioners, a request for Commission intervention,
why did you send that?
Mr. Mohseni. This was the final straw for me. I had
observed the testimony of the individual Commissioners in
response to the IG report, and then this event about the TER
occurred. And I could not give the benefit of the doubt anymore
to the senior management above me to actually perform what we
were supposed to be performing. And I thought this still
smelled like even after the IG report is out, we still have not
learned the lesson of actually maintaining a level of integrity
in the process.
Mr. Latta. OK.
Mr. Mohseni. I thought the process is----
Mr. Latta. I am not sure about the date on this one. I have
two memos here. You have one addressed to the Commission, to
each Commissioner by name. But in the second paragraph it
says--is this the enclosure then? Within it it says on June the
6th I was informed that additional redactions be needed to
release the TER. I respectfully disagreed with the decision not
to release the TER as written and approved for the publication
and public distribution. I also disagreed with the need to
revise the TER. Attached is my email fully explaining my basis
for challenging this policy decision.
Did you get any response back from anybody on the
Commission?
Mr. Mohseni. Not from the Commission, but I think Ms. Haney
can address that. We have had--the EDO responds at least, you
know, on short notice on a list of actions that the EDO is
taking on that memo. We are still awaiting Commission decision
on it.
Mr. Latta. OK. Let me go on with the February the 4th memo
with the TER. According to that memo, the TER was going to
contain no staff findings of a regulatory compliance, is that
correct?
Mr. Mohseni. That is correct.
Mr. Latta. OK. Are there staff findings about the
regulatory compliance in that document?
Mr. Mohseni. No.
Mr. Latta. And did the Office of the General Counsel object
to the TER or express any concerns about the document as it was
written?
Mr. Mohseni. No, they did not.
Mr. Latta. But even without regulatory findings, this is an
important scientific document reflecting the judgment and
analysis of the NRC technical and scientific staff. Is that
correct?
Mr. Mohseni. That is correct.
Mr. Latta. And I would also assume that any efforts to edit
the scientific analysis would be frowned upon by the diligent
staff. Would I be wrong in that assumption?
Mr. Mohseni. No.
Mr. Latta. Dr. Haney, if I could just ask you, the February
the 4th report does not contain any regulatory findings. Why
did you not allow the division staff to release the TER?
Ms. Haney. Because when I looked at the Technical
Evaluation Report and compared it to the Safety Evaluation
Report, I felt that there were similarities between the two
documents and that it actually did contain the findings. So I
asked for some minor changes, and I would emphasize they were
minor changes to further separate the documents.
Mr. Latta. OK. Isn't it true that the TER specifically
states that it does not include conclusions as to whether or
not the DOE satisfies the Commission's regulations in the TER?
Ms. Haney. That was the intent of the document, but I felt
there were statements in there that were too similar to the
Safety Evaluation Report, and you could make a conclusion based
on staff's technical findings.
Mr. Latta. OK. Are there specific conclusions about whether
the DOE license application for Yucca Mountain complies with
the NRC safety regulations in the document?
Ms. Haney. There is not a direct tie in the Technical
Evaluation Report to the regulations. However, there is a tie
to the Yucca Mountain Review Plan that is a Commission-approved
document.
Mr. Latta. Let me ask this. I just want to make sure I
heard it correctly. When you were sending information up the
chain, as you might say, did you believe this Commission was
getting all the information, all the Commission members?
Ms. Haney. At the time, prior to the IG's report coming
out, my answer would have been yes. But based on the IG report
now, I would have to change that opinion.
Mr. Latta. So you would change it to--what would your
opinion be then?
Ms. Haney. It appears that they were not getting some of
the information that I thought that they had been getting.
Mr. Latta. Thank you very much, Mr. Chairman. I yield back.
Mr. Shimkus. The gentleman yields back. The Chair
recognizes the gentleman from Colorado for 5 minutes.
Mr. Gardner. I thank you, Mr. Chairman, for the hearing
today and thank you to the witnesses as well for your time in
discussion today.
Dr. Stablein, what is the significance of SER Volume 3 in
your opinion?
Mr. Stablein. The significance of the Safety Evaluation
Report, Volume 3, is it provides the staff's regulatory
findings versus the part 63 requirements for performance of the
repository in the million years after it is closed up.
Mr. Gardner. And what is the status of the document when
Chairman Jaczko directed you to terminate review?
Mr. Stablein. It was very near being ready to be issued.
Mr. Gardner. Very near? Would it have taken much effort to
finish it?
Mr. Stablein. No. In terms of resources, really very little
resource to finish.
Mr. Gardner. So finish relatively easy then?
Mr. Stablein. Yes.
Mr. Gardner. OK. Mr. Mohseni, according to your email
exchange with Ms. Haney, which I believe is in Tab 6, page 2,
Item 8 of what you have in front of you, you say the SER Volume
3 is complete in content with the Office of General Counsel's
no legal objection and no open issues. Is that correct?
Mr. Mohseni. Yes.
Mr. Gardner. When was the SER 3 completed with the Office
of General Counsel offering no legal objection to the full
content?
Mr. Mohseni. Perhaps the latter part of the year 2010.
Mr. Gardner. So it was completed with the Office of General
Counsel you believe the latter part of the year 2010?
Mr. Mohseni. Yes, latter part of 2010, and we developed a
reversible package, not the SER. To get to a TER, we had to
start from the SER, and the work that went into it, my
colleagues later called it a hybrid thing, to go from one
document to another. So the terminology, we were not working on
an SER anymore, we were working on a TER. But by going through
the initial phase, I think we completed the OGC concurrence in
that phase.
Mr. Gardner. OK. And so the document is essentially, save
for formatting and copy edits, is that correct?
Mr. Mohseni. Yes, and of course, the Office Director
comments prior to publication, obviously. The signature has to
come from the Office Director.
Mr. Gardner. Until your email, was the Commission made
fully and currently aware that the staff had substantially
completed SER Volume 3?
Mr. Mohseni. Yes.
Mr. Gardner. Yes? OK. And so as far as technical staff is
concerned, the SER will not fundamentally change and could be
released to the public as of the timeframe you mentioned,
correct, to this year?
Mr. Mohseni. Yes.
Mr. Gardner. So that is correct. Then what is the basis for
saying then that its release is pre-decisional?
Mr. Mohseni. It is pre-decisional because of the hearing
process, pre-decisional because if--first of all, the Office
Director has not signed off on it, so therefore, the document
is incomplete if you will because that final signature is not
on it.
Mr. Gardner. So is----
Mr. Mohseni. But it is pre-decisional because of the legal
aspects of it, prior to--you know, when we are ready to issue
it to the Board, it becomes public.
Mr. Gardner. So who makes that determination then?
Mr. Mohseni. That final determination is by our office
director.
Mr. Gardner. OK. All right.
Mr. Mohseni. The staff has done its work, but the Office
Director's signature is necessary. Obviously it is a licensing
document, and the NMSS Office Director is in charge of making
that final call.
Mr. Gardner. And so, Ms. Haney, then on what basis are you
making this decision that the SER is a draft? We just heard it
is complete.
Ms. Haney. I have not completed my review. A copy with the
OGC changes in it has not been presented to me, and I have the
direction from the Chairman that the document is not to be
issued until our original schedule, which was November.
Mr. Gardner. So is the Chairman making the decision or are
you making the decision?
Ms. Haney. There are a couple things going on. One is the
Chairman's June memo that said the Safety Evaluation Report
should be issued on the schedule that we had provided to the
Board which was that Volume 3 would have been presented for
publication in November of 2010.
Mr. Gardner. How many of the Commissioners know there is a
reversible SER on the shelf right now then?
Ms. Haney. I think the use of the term reversible SER is
rather confusing. On October 1 we began to work on a Technical
Evaluation Report. So the Safety Evaluation Report stopped on
September 30 of last year. All the Commissioners I believe are
aware that staff is working on a Technical Evaluation Report
that was being developed using the Safety Evaluation Report as
a basis document.
Mr. Gardner. But in terms of the SER, do you believe you
have an obligation to keep the Commission fully and currently
informed?
Ms. Haney. Yes.
Mr. Gardner. And have you done that?
Ms. Haney. I believe I have.
Mr. Gardner. But the Counsel report said that they didn't
know certain things.
Ms. Haney. I know I had numerous conversations, one-on-one
conversations with all the Commissioners as well as the
Chairman with regards to the status of the Safety Evaluation
Report and the Technical Evaluation Report. I am aware of what
the IG report says also.
Mr. Gardner. And so--I mean, does the Commission provide
any guidance to staff on how to handle near-complete SERs?
Ms. Haney. No.
Mr. Gardner. Prior to the IG's report you say you thought
information was getting through. Now it appears that it wasn't.
What information wasn't getting through?
Ms. Haney. It appears some of the budgeting information.
Mr. Gardner. It appears though it didn't get through?
Ms. Haney. Correct.
Mr. Gardner. And is that something that you should have had
a conversation with them about?
Ms. Haney. Certain elements of the budget I would have
conversations with them, but that is not a primary
responsibility of my job.
Mr. Shimkus. The gentleman----
Ms. Haney. That would be more of Chief Financial Officer.
Mr. Shimkus. The gentleman's time is expired. The Chair
recognizes the gentleman from Oklahoma, but before he assumes
his time, I just want to clear something up that Mr. Latta has
mentioned.
Ms. Haney, you testified that before the IG report, you
felt that all the information to the Commissioners were fully
informed, and it is my understanding based upon your written
and oral testimony from the other four, before the IG report
was submitted, you already questioned whether full information
was being provided to the Commissioners. Is that correct? And I
see the four nodding.
Mr. Stablein. Yes.
Mr. Kokajko. Yes.
Ms. Kotra. Yes.
Mr. Mohseni. Yes, that is correct.
Mr. Shimkus. And I want to also highlight that Ms. Haney,
you are their supervisor.
Ms. Haney. Yes.
Mr. Shimkus. So if your employees already have a view that
the Commissioners aren't fully informed, we have a problem
here. And would like to yield 5 minutes to Mr. Sullivan from
Oklahoma.
Mr. Sullivan. Thank you, Mr. Chairman. Before I start my
questions, I just wanted to--Congressman Gardner had a question
that I don't think was answered clearly by some of you, and I
start with Ms. Haney.
Does the Commission know there is an SER on the shelf with
no legal objection, there is one on the shelf with no legal
objection? Yes or no.
Ms. Haney. They are not aware that there is a no-legal
objection. They are aware there is an SER on the shelf.
Mr. Sullivan. That would be no? You can just----
Ms. Haney. To answer your full question----
Mr. Sullivan [continuing]. Say no.
Ms. Haney [continuing]. It would be no.
Mr. Sullivan. OK. And Mr. Kokajko, could you answer that
same question? Does the Commission know there is an SER on the
shelf with no legal objection, just sitting there?
Mr. Kokajko. I agree, no.
Mr. Sullivan. No? And Mr. Mohseni, could you answer that
question, please?
Mr. Mohseni. I should say I don't know. I am now very
confused what they do know and what they do not know. It is
hard to tell exactly. Some of them may know, some may not.
Mr. Sullivan. That sounds like a problem, doesn't it?
Mr. Mohseni. It is.
Mr. Shimkus. If the gentleman would yield for one second?
Mr. Sullivan. I yield.
Mr. Shimkus. But it is part of the law that the
Commissioners have to be fully informed. Is that correct?
Mr. Mohseni. That is correct.
Mr. Shimkus. I yield back.
Mr. Sullivan. Thank you, Mr. Chairman. Last week we took
testimony from the NRC Inspector General who painted a
disturbing picture of the Chairman's behavior and actions. Are
you all familiar with this report, yes or no? And I will start
with you, Ms. Haney, and go down the line.
Ms. Haney. Yes.
Mr. Kokajko. Yes.
Mr. Mohseni. Yes.
Mr. Stablein. Yes.
Ms. Kotra. Sadly, yes.
Mr. Sullivan. Mr. Mohseni, the IG report found that the
Chairman acts as the gatekeeper for information to the
Commission and strategically withholds information to
manipulate Commission decisions. Are you familiar with that?
Mr. Mohseni. That is my experience, what I described today,
based on----
Mr. Sullivan. That would be yes?
Mr. Mohseni. Yes, absolutely yes.
Mr. Sullivan. Mr. Mohseni, aside from the Commission level
information problems, what do you see in terms of information
control among senior management?
Mr. Mohseni. I think the senior managers were contributing
to suppression of the information.
Mr. Sullivan. To what extent does information control and
suppression permeate the activities of your division and would
you elaborate?
Mr. Mohseni. Well, one is the famous memo we have been
talking about where it should have been a policy decision for
the Commission to make, and we should have developed a policy
paper, which is the basis for my nonoccurrence on that
memorandum. Another one is the TER, another one is the budget.
The budget was influenced adversely by management above me. So
the information would not get to the entire Commission.
Similarly the programmatic impact of the budget or other
decisions would not get out because we never developed a policy
position to recommend to the Commission for the entire
Commission to understand fully the implications of what was
going on. So for the past 2 \1/2\ years, the Commission has
never received the full information to my knowledge.
Mr. Sullivan. That is amazing. Dr. Kotra, Dr. Stablein and
Dr. Kokajko, would you agree with Mr. Mohseni on this? And
could you add to his perspective?
Ms. Kotra. I have served on the staff of two Commissioners.
I am well-experienced in both drafting as well as reviewing
policy papers for Commissioners. I was fully prepared to draft
an options paper and wanted to draft an options paper on this
very important issue. It was not an opportunity I was given. I
was told to write only a status paper. There were so many
policy ramifications that we were trying to sort through, and
it was turned into a status paper. Like I said in my testimony,
it was with great reluctance that I agreed to do that. I voiced
my preference for an options paper but went forward as long as
the status was accurately described.
Mr. Sullivan. Dr. Stablein?
Mr. Stablein. I agree with Mr. Mohseni and believe his
examples are the most apropos that I am aware of.
Mr. Sullivan. Mr. Kokajko?
Mr. Kokajko. As I replied in my response to Mr. Mohseni,
which was formally required, I did tend to agree with him, and
I think as it turns out, I was correct in that.
Mr. Sullivan. Ms. Haney, what Commission policy guidance
directs staff to strip out regulatory findings of the Safety
Evaluation Report to create the TER?
Mr. Mohseni. As far as I know, I don't think there is any
precedence for this----
Mr. Shimkus. I think he was directing to----
Mr. Mohseni. I am sorry.
Mr. Sullivan. Directed toward Ms. Haney. Thank you, Mr.
Chairman.
Mr. Shimkus. I am sorry.
Mr. Sullivan. Thank you, Mr. Chairman.
Ms. Haney. I was going to say thank you.
Mr. Sullivan. We will get to you next.
Ms. Haney. I am not aware of any regulatory guidance that
would proscribe that.
Mr. Sullivan. OK. From your email exchange from Mr.
Mohseni, and that is at Tab 6, page 2, you say your direction
to strip out staff conclusions on their analysis should be
consistent with statements made by the Chairman that the
document would not contain any findings. Was the preparation of
the TER under the direction of Chairman Jaczko or the
Commission?
Ms. Haney. The preparation of the Technical Evaluation
Report would be under the Commission, but my statement, my
email, that was one of the considerations that I took into
consideration.
Mr. Sullivan. Was the preparation of the TER under the
direction of Chairman Jaczko or the Commission? Was it, yes or
no? Can you answer it quickly? How long have you worked there?
Ms. Haney. I have worked there for multiple years as you
have heard.
Mr. Sullivan. OK.
Ms. Haney. I mean, I was looking at the Technical
Evaluation as an office document, and I was considering it from
that standpoint. I did not consider the elements of your
question.
Mr. Shimkus. The gentleman's time is----
Mr. Sullivan. May I ask one more?
Mr. Shimkus. Quickly.
Mr. Sullivan. Is there any written document that outlines
specifically what the Chairman desires you to do?
Ms. Haney. No.
Mr. Sullivan. OK. Thank you, Mr. Chairman.
Mr. Shimkus. The gentleman's time is expired. We have votes
on the floor. We really want to thank you. This is never easy,
and we appreciate your forthrightness, your calmness under
stress and strain and we have to have an NRC that the American
public trusts. You have to have a government that you trust. We
are all in this together.
I want to thank the witnesses for coming today and for the
testimony and members for the devotion to this hearing today.
The committee rules provide that members have 10 days to submit
additional questions for the record, and we hope that if they
do so, in particular, that you would then get those back to us.
Mr. Green. Mr. Chairman, I would like to join you in
thanking our witnesses because that is the purpose of our
committee, and you have heard a lot of our opinions and also
our questions and appreciate your being here.
Mr. Shimkus. The hearing stands adjourned.
[Whereupon, at 12:02 p.m., the subcommittee was adjourned.]
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