By Paul T. Dickman
Paul Dickman was a career Federal environmental scientist specializing in nuclear waste and nuclear materials management. He served as Chief of Staff to NRC Chairman Dale E. Klein.
Part 2 of 2
NRC’s Draft Waste Confidence Decision Update of October 2008 was based on an understanding of that the DOE would continue to fulfill its legal obligations under the Nuclear Waste Policy Act. It was inconceivable to the NRC that the new President would choose to ignore a law that all of his predecessors complied with, regardless of their party affiliations and opinions. Instead, we saw the directed destruction of OCRWM with little understanding, or perhaps care, of what intertwined national and international policies were being destroyed by blindly appeasing the senior Senator from Nevada.
A few months later, the public comment period on the Draft Waste Confidence Update closed and noticeably absent from the record was anything from the Department of Energy. Shortly thereafter, DOE announced the death of Yucca Mountain and OCRWM. No explanation as to why, no effort made to clarify the President’s view of “bad science” or a technical basis for these remarks –if any existed, no formal decision document from DOE Secretary Chu as required by law, and only vague assurance that another collection of wise men and women– a Blue Ribbon Commission– would be convened at an unknown date, with an unknown charter or purpose, to look into this matter. This was the situation the three person Commission found itself going into the Summer of 2009.
It was obvious to the NRC staff that the only path forward was to re-notice for additional public comment finding #2 and request that DOE add something to the record that would provide clarity. This was a non-starter with Jaczko who was already maneuvering to use administrative methods to curtail and terminate the NRC’s program (Note 2). Throughout the Fall of 2009 the stalemate continued and it was apparent to all that Jaczko intend to wait until new Commissioners were appointed to fill the two vacancies on the Commission. I will give Jaczko credit for always treating Klein with respect but it was obvious that he had also assumed Klein would resign after replacing him as Chairman. Klein did not do so specifically to make sure that Jaczko’s power was held in check since, in the event of a 2-person Commission, all power flows to the Chairman and he becomes a single administrator.
In October 2009, President Obama nominated George Apostolakis and Bill Magwood to fill the two Democrat seats on the Commission. Both were highly respected and known experts in nuclear energy and safety and their impending confirmation was welcomed in our office because it allowed Dr. Klein to finally depart the NRC. He immediately informed the President that he would resign and return to the academic life upon confirmation of his successor to complete his term. In a few months, Bill Ostendorff was nominated to complete Klein’s term and the stage was set for three new and inexperienced Commissioners to assume their offices simultaneously. Hanging out there was the Waste Confidence update and it was obvious to all that this would be one of the first actions brought to the new Commission.
In January 2010, two things happened which undermined what little basis existed in Jaczko’s 2009 position—the DOE announced they were withdrawing the Yucca Mountain Application with prejudice, and they were closing OCRWM. Jaczko had hung his hat on finding #1 that the NRC staff had found that a geologic repository was technically feasible and therefore there was no need to seek further public comment or “second guess” the Administration’s motives or decision. But the stupidity of DOE in filing their motion to withdraw with “with prejudice” would bring into question the technical feasibility of a geology repository!
Comparatively speaking, how could the NRC “staff” know what was technically feasible? After all the DOE had spent 20+years and $10 billion studying this issue and they were withdrawing their application with prejudice and were not saying it was technically feasible. Add to that a President had said Yucca was based on bad science, a Noble Prize Winning DOE Secretary that was rapidly, and awkwardly, back-peddling on his vigorous defense of the “science” behind Yucca Mountain, and not one thing in the NRC rulemaking docket to support the staff’s view from the people who should know—the Department of Energy (Note 3). So Finding #1 was at risk and Finding #2, the only one supposed to be based on “informed speculation” was also tossed out with the dead carcass of the DOE’s OCRWM program and nothing existed to support the Government’s assurance that a repository would ever be built.
Dr. Klein in his last major speech to the industry and NRC staff on March 9, 2010 gave some insight as to the struggles occurring in the Commission on this issue. He said “Many of you have spent the last year or two urging the Commission to pass a new waste confidence rule, readdressing several of the basic findings supporting the rule. But I think the current situation demonstrates that those of us who resisted a rush to update the waste confidence findings were correct to proceed with caution. I continue to question whether the Commission would have maintained its public credibility if it had finalized the proposed update without taking the time to consider more fully the reality of the current situation. What many people—even many people in this room—fail to understand is that the waste confidence rule is a real challenge for us because it is not simply based on the technical judgment of the NRC. Part of the Commission’s “confidence” underlying the rule must be based on events that are beyond the NRC’s control, and when those events are in flux, the Commission has to be very careful in deciding whether it can credibly say that we have “confidence” that a repository will be open on a given date or period of time.”
Twenty days later, Dale Klein was once again a private citizen. The subsequent actions by the new and inexperienced Commission did not, in my opinion “consider more fully the reality of the current situation” is what has led to the current situation. An ambitious young Chairman, an inexperienced Commission, a self-destructive DOE legal strategy, and a vindictive Majority Leader—This has all the makings of a Shakespearian Tragedy and can anyone have doubted the outcome of the Appellate Court’s decision?
Regardless of the protestations by industry, Waste Confidence is a huge problem. Congress, not the NRC should be responsible for making these decisions. If Congress is incapable of requiring the Administration to comply with existing laws (the Nuclear Waste Policy Act), what hope does the NRC have of addressing Waste Confidence?
Note 2: It is important to note that both Klein and Svinicki agreed with Jaczko on the need to curtail the program given the lack of funding but at no time did they believe that the NRC had either the authority or mandate to terminate the program.
Note 3: It was not until June 29, 2010 that DOE finally confessed that it was politics, not science, and there were no technical reasons for abandoning Yucca Mountain. In fact, if you read their statement DOE filled before the Atomic Safety Licensing Board, they made some effort to defend the quality of science used in advancing the application.