NRC Commissioner Candidates Stephen Burns and Jeffery Baran

The Obama Administration, under the direction of influential Senators, has provided the names of two people to fill vacancies on the Nuclear Regulatory Commission.

One of the vacancies exists already; Commissioner Apostolakis, a renowned expert in the field of nuclear reactor safety and probabilistic risk assessment was not offered a second term when his first term expired at the end of June 2014. Commissioner Magwood remains on the commission, but he has announced that he will be departing at the end of August for a new job as director general of the Organization for Economic Co-operation and Development’s Nuclear Energy Agency.

Marvin Fertel, CEO of the Nuclear Energy Institute (NEI) whose mission statement includes providing a “unified industry voice,” issued a statement with his initial reaction to Stephen Burns and Jeffery Baran, the two people who were named as commissioners, subject to Senate confirmation.

“With the nomination of Stephen Burns, who served as NRC general counsel, President Obama has identified a figure familiar with the commission’s responsibilities, processes and culture. Industry recognizes Burns’ 33 years of service to the commission—he received numerous positive reviews and was repeatedly promoted. Industry has some concerns regarding certain actions taken by the NRC while Burns served as general counsel, including the chairman’s use of emergency authority in the weeks after the Fukushima Daiichi accident and the decision to terminate the Yucca Mountain repository licensing process. The confirmation process will provide ample opportunity for Burns to elaborate on his views.

The nomination of Jeff Baran merits close scrutiny. Although Baran has energy and environmental policy experience, his background includes little, if any, relevant experience with nuclear energy technology or the NRC regulatory process and policies. We look forward to hearing his perspectives on these matters during the confirmation process.

Stephen Burns joined the NRC staff in 1978 and held a variety of jobs of increasing scope and responsibility, including being the legal counsel for Commissioner (and retired Rear Admiral) Kenneth Carr, also serving as Carr’s Executive Assistant when he became the Commission Chairman. In April 2009, Commission Chairman Dale Klein promoted Burns from Deputy General Counsel to General Counsel.

Aside: About a month later, on May 13, 2009, President Obama promoted Commissioner Jaczko to be the Chairman, asking Chairman Klein to remain as a Commissioner.

Commissioner Klein continued to serve until March 30, 2010; he and Chairman Jaczko had a stormy relationship that included at least one instance of Klein reminding Jaczko that his title was Chairman, not Dictator. That high-conflict work relationship must have been part of the reason that he left the commission before the end of his term.

Amusingly enough, Klein’s page in the former commissioner’s section of the NRC web site includes the following sentence. “He is currently serving as a Commissioner.” Whoever performed the review/update on July 01, 2014 must have been thinking about plans for their upcoming long weekend instead of carefully reading the page. End Aside.

Stephen Burns served as NRC general counsel until March 2012, when he retired from the agency with 33 years of service. That was near the crescendo of the NRC’s leadership crisis and about two months before Chairman Jaczko finally resigned from the Commission. My sources tell me that Burns was burned out and fed up with the politicization of the agency he had loyally served for so many years.

Several long-serving NRC staffers contacted by Atomic Insights have provided words of support with varying levels of strength for Mr. Burns. They all indicated that they believe he will be a fair commissioner.

Paul Dickman, who was a career Federal employee and served as Chairman Dale Klein’s Chief of Staff, shared a December 15, 2011 letter from Dr. Klein to Senator Sessions that explains why he disagrees with the Emergency Powers opinion provided by Burns to Chairman Jaczko in March 2011 and strongly disagrees with the way that Chairman Jaczko used that opinion to perform actions that were outside its narrow scope of actions related directly to the accident. Here is a quote from page 1 of that letter.

Given a situation similar to the incident at Fukushima, I can see no reason to invoke Emergency Powers because nothing in the incident would have required a suspension to the normal Commission procedures. Moreover, I do not believe that suspending the law, which is what Emergency Power allows, is something take casually or in response to an incident in a foreign country that has little or no threat to the U.S. It is my understanding that former Chairman Richard Meserve declared Emergency Powers during 9/11 (a real crisis on American soil), but did so in consultation with his fellow commissioners.

(Emphasis in original)

Dickman also expressed strong reservations about the the opinion Burns provided regarding Jaczko’s decision to halt the NRC’s review of the DOE’s Yucca Mountain license application. He provided an open letter to journalists from Dr. Klein that expresses his reasons for rejecting Burns’s opinion. Here is a quote from that letter.

It is not appropriate for Chairman Jaczko 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. Having served as NRC Chairman during several budget cycles, I believe that the continuing resolution budget guidance for the HLW program should have been handled as a Commission policy matter, with the full participation of the Commission and, most certainly, in consultation with Congress.

Lastly, having served as Chairman, I believe I have a reasonable understanding of the legal authority of the Chairman’s office to address administrative matters such as budget issues. I would not consider the closeout of the HLW application technical review to be a simple reassignment of personnel or routine reallocation of resources. Rather, the actions taken are the implementation of a major national policy decision that has not been acted on by the Commission or authorized by Congress.

Even with those two areas of disagreement, Dickman concluded with the following statement.

“…even though I have pretty strong objections to the legal opinions Steve Burns made, he is highly qualified and I would vote for his nomination.”

One of my sources, though disagreeing with Burns’s opinions on the same issues raised by NEI and Dickman, offered stronger words of support.

I know Steve Burns very well and have a deep respect for him. As I’m sure you already know, Steve was General Counsel at the NRC for about 3 years before he retired, but was the Deputy General Counsel for about 10 years I think before that. There are few people that understand the legal framework of the agency better than Steve does.

Steve cares a great deal about the agency, and I always felt like he was personally invested in its success.

From my limited perspective, I think he is uniquely qualified to be a Commissioner precisely in the spirit of why the NRC was established with 5 Commissioners — he will bring a unique, but highly qualified and experienced perspective to the Commission’s decision-making. I do not believe that Steve is in anyway anti-nuclear or anti-industry, and I have never heard him say anything along those lines.

In December 2011, Stephen Burns was asked to testify, along with Bill Borchardt the NRC Executive Director for Operations (EDO), in front of the House Oversight Committee. The full video of that event is available from C-Span; below is a clipped version that includes Burns’s opening statement and all of the questions directed to him along with his responses.

When he provided that testimony, Burns was still serving as the General Counsel and still working under the direction of Chairman Jaczko. I wonder if he would answer Issa’s questions differently today and make it clear that Chairman Jaczko’s actions in exercising Emergency Powers went well beyond the envisioned scope of his March 17, 2011 memo.

With some trepidation and caution, I recommend that the Senate confirm Stephen Burns as an NRC Commissioner. He will not require a lengthy acculturation process or any significant training time to come up to speed as a fully functioning Commissioner.

The information I’ve discovered about Jeffery Baran is quite different. All searches and inquiries point to the fact that he is a denizen of Capitol Hill who started serving as a staffer immediately after finishing law school and has never worked outside of the narrow confines of Washington, DC. Any and all association that he has with nuclear energy is as an “issue” or “policy” and not as a complex, valuable technical endeavor worthy of intense study to obtain mastery.

He has never worked with equipment, measuring devices, metal, welding, thick concrete, construction, generators, or pollution control devices. He has no apparent experience in fault tree analysis, implementing regulatory requirements, writing procedures, performing or verifying engineering calculations or selecting engineering design criteria. He has never worked with skilled technicians, top notch scientists, or operational experts.

In short, Baran has nothing in his background that would make it possible for him to be a contributing member of a responsible body of regulators that serve as the single gatekeeper for a vital technical field that includes not just energy production but all industrial use of radiation and radioactive materials.

My recommendation is for the Administration to find a more qualified nominee that can bring something to the commission other than focused Capitol Hill-only experience. These days, that perspective is even more disfunctional than usual; the words cooperation, collegiality and compromise seem to have been exorcised from the Capitol Hill training manual. Ideally she should have deep experience with knowledge of nuclear technology, plant operations, construction, regulation development, or oversight.

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