Controversy continues to grow around Nuclear Regulatory Commission Chairman Gregory Jaczko’s unilateral decision to order the NRC staff to stop its work on Yucca Mountain.  The chairman defended his actions in a letter to the editor published by Energy Daily last week (subscription required).  He suggested that he was authorized to stop work on Yucca by the 2011 budget.  Never mind that the budget was never passed.  The Chairman simply states that: “the administrative actions the agency has taken are simply a matter of efficient resource management and good government.”

Despite the effort, the Chairman’s letter only underscored the weakness of his rationale, which has launched a flurry of responses.

The first one came from former DOE official, Lake Barrett, who points out that the Chairman’s actions would ensure that the results of the NRC’s work on Yucca, which was scheduled for release this month would never be published : He asked:

When in the name of good government does it make any sense to suppress the publication of the results of the NRC staff review of the Yucca Mountain license application? Rather, it would seem that in the name of good government, transparency and openness and scientific integrity, the public’s interest would be best served by publishing the results of the NRC staff technical review.

And today Energy Daily published two responses to the Chairman.  First, Dr. Dale Klein, Jaczko’s predecessor as NRC Chairman responded with a commentary that debunked Chairman Jaczko’s argument that the not-passed 2011 budget authorized his order.  Dr. Klein points out that there were only three commissioners when the 2011 budget was in development: he (then chairman), current commissioner Kristine Svinicki, and now-Chairman Jaczko and that Commissioner Svinicki has already publicly disagreed with the Chairman’s actions.  Hence:

It is not appropriate for Chairman Jazcko to continue to rationalize his actions as being consistent with the commission’s FY 2011 budget guidance. Doing so implies that I and Commissioner Svinicki are complicit in authorizing his actions, and that is clearly not the case.

Today’s Energy Daily also included a letter to the editor from Heritage Foundation research fellow in nuclear energy policy, Jack Spencer who argues that the budget likely would have excluded the President’s Yucca policy “given the vociferous, bipartisan support for Yucca.”

Spencer goes on to point out that the Chairman’s decision not only relies on a budget that never passed but also: “ignores the fact that the NRC’s own Atomic Licensing and Safety Board agree unanimously that the Department of Energy lack the authority to withdraw its Yucca application.”

Even a new member of the current commission is publicly disagreeing with Jaczko.  On October 6, NRC Commissioner William Ostendorf wrote a memo to his fellow commissioners stating his opposition to the Chairman’s policy.  His position was reiterated on October 27 in response to a request for Congressman Doc Hastings that (R-WA) where he summed his opposition as:

I disagree with Chairman Jaczko’s decision to transition to close out the NRC’s High-Level Waste Repository program, and I have voiced this disagreement to the Chairman, my other colleagues on the Commission, and the NRC staff.  I endorse your view that the actions taken contravene the intent of the President’s directive on openness and transparency.

The result of the Jaczko fiasco is unfortunately a weaker Nuclear Regulatory Commission, which is supposed to be an independent regulatory body. And despite commissioners that are politically appointed, once seated, the NRC has traditionally operated professionally and apolitically.  But the actions of Chairman Jaczko undermine that heritage.  The fact is that a lot of controversy and uncertainty currently surround Yucca.  Most notably, the NRC’s Atomic Safety and Licensing board ruled that the Department of Energy did not have the authority to withdraw its Yucca application and courts are still considering the legality of the same issue.  The nation needs a strong, independent commission to provide stability and sureness of thought. That is not what we currently have.

Spencer letter:

On October 25, 2010, The Energy Daily published a letter to the editor from Gregory Jaczko, Chairman of the United States Nuclear Regulatory Commission, to “set the record straight” on his decision to closeout the Yucca Mountain program. Unfortunately, Chairman Jaczko’s defense answered none of the relevant questions surrounding his controversial decision.

For example, he continued to argue that his authority to close out the Yucca program was derived from the President’s 2011 budget request, which neither house of Congress passed.  And even if they had, given the vociferous, bipartisan support for Yucca, the budget likely would have excluded the President’s Yucca policy.  Given these circumstances, the Chairman should at least release the general council’s memorandum that justifies his authority based on the unpassed budget.

Further, he completely ignored the fact that the NRC’s own Atomic Licensing and Safety Board agreed unanimously that the DOE lacked the authority to withdraw its Yucca application or that courts continue to review cases that would answer the same question.

But most curiously, the Chairman argues that his actions “are simply a matter of efficient resource management and good government.”  Washington has spent over $10 billion Yucca Mountain and the NRC is close to issuing its Safety Evaluation Report, which would provide a comprehensive review of the technical and scientific merit of the project.   By closing the books on Yucca now, the Chairman is keeping the critical document, which every American has paid for, from ever being published.

Americans deserve better.

Jack Spencer

Research Fellow, Nuclear Energy Policy

The Heritage Foundation