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President Carter’s opinion of whether Jaczko exceeded authorities granted by Reorganization Act

ByRod Adams

I know that some people want to declare the Jaczko era over and to move on to other items, but there is still a good deal of information about the reign and its long term effects that has not been fully exposed or discussed. Though Jaczko and his patrons have declared that the OFFICIAL USE ONLY – OIG INVESTIGATION report is an exoneration, the reality is quite different.

Though the report is long and full of boring bureaucratic details that can be described as “he said – she said”, it paints a picture of an isolated man surrounded by highly qualified individuals who all somehow formed similar negative opinions about his methods. Most of those independent individuals are far too polite and politically aware to question Jaczko’s motives, but I have no such limitations. As numerous recent articles have shown, Jaczko’s primary assignment was to kill Yucca Mountain – all of the bluster about concerns for nuclear safety were just a cover story.

There is one section of the IG report that I would like to share because it shows that even people with similar political tendencies were able to see that Jaczko was violating the intent of the law and exceeding his delineated authority. This excerpt shows that Jaczko was trying to run the NRC as a fiefdom instead of as a commission of qualified professionals who each have a personal responsibility to enable the availability of safe nuclear energy.

Allegation #3 in the IG report was that Chairman Jaczko improperly attempted to control the content and the flow of information to the rest of the Commission. The OIG investigated to determine whether the Chairman’s control over matters to be presented to the Commission was in accordance with the authority granted to that office by the Reorganization Plan of 1980. The OIG took advantage of an interesting resource – the investigators interviewed President Jimmy Carter, the man who wrote the Reorganisation Plan and successfully led its enactment into law.

The documented results of that interview are worth quoting.

President Carter

According to President Carter, the intent of the Reorganization Plan No. 1 of 1980 does not allow the Chairman to interfere with NRC staff proposals being submitted to the Commission for review and consideration. The Chairman should present the staff’s recommendations to the Commission as received and articulate his position separately, differing or not, to the Commission. This applied to policy and non-policy matters. President Carter thought it was misleading and inappropriate for the Chairman to direct the staff to adjust and/or change staff recommendations based on the Chairman’s desires. President Carter said the Chairman has the ability to state his position separately if he disagrees with the staff’s recommendations. This also holds true for individual Commissioners.

President Carter stated that the Reorganization Plan of 1980 gave the Chairman special authority, not extraordinary powers. OIG informed President Carter of the Chairman’s Commission agenda planning process and how the Chairman has the ability to control the flow of information to the Commission. President Carter advised that the Chairman has no right to obstruct, withhold, or delay the staff from presenting staff generated issues to the Commission; however, the staff cannot bypass the Chairman. President Carter recommended that the Commission should determine which matters are to be reviewed rather than a single Commissioner determining if a matter is administrative or policy in nature.

President Carter stated the staff should not work exclusively with the Chairman in development of policy. The Commission is the overall decisionmaker (sic) on policy matters and the Commission majority decision should always prevail.

(Emphasis added.)

Here is finding 2 on Allegation #3:

The OIG found Chairman Jaczko interprets his authority broadly and, at times, attempts to control the flow of information to the Commission. Specifically, the Chairman directed a senior official to change the staff’s recommendation in one SECY paper (SECY-11-0118) and to remove the EDO’s and Deputy EDO’s perspective on another (SECY-11-0093) prior to submission to the Commission. The Chairman also initially directed the staff to stop preparing a paper (SECY-11-0033) that the staff wanted to submit for Commission consideration. The Commissioners disagree with the Chairman’s influence over SECY paper content and uniformly expressed a need to receive the staff’s unaltered, expert recommendations to support their decisionmaking. Two prior NRC Chairman reported they did not change staff views expressed in SECY papers and if they had a different view than the staff, they expressed it in the voting record. Additionally, President Carter, who submitted the Reorganization Plan to Congress, said the Reorganization Plan does not allow the Chairman to interfere with NRC staff proposals and that the Chairman should present the staff’s recommendations as received and articulate his position separately, differing or not, to the Commission.

(Emphasis added.)

That is a negative finding, not an exoneration. It is not the only one in the report, just the most interesting one. Please remember, Jaczko resigned with no other apparent reason right before this IG report was released. It is spin on the level of gyroscopic behavior to attempt to portray his reign at the NRC as anything other than a politically directed attack on the very foundations of the Nuclear Regulatory Commission as formed under the Atomic Energy Act. That act and its subsequent ammendments was passed to ENABLE the safe use of clean, abundant nuclear energy, not to place a series of mushy barriers in its way.

There should be no enthusiasm for enacting any Jaczko led, cost increasing plans or implied policies like Fire Protection rules, the Aircraft Impact rule, the 50 mile evacuation planning zones, or the recommendations of the Jaczko-appointed Fukushima task force.

Some of the task force recommendations might be useful, but none of them should be assumed to be correct without independent verification. Considering the tiny size of the assigned task force and its Jaczko-enforced isolation from the rest of the technical experts at the NRC, it should be easy to find qualified verifiers.

Rod Adams
Rod Adams

Rod Adams is Managing Partner of Nucleation Capital, a venture fund that invests in advanced nuclear, which provides affordable access to this clean energy sector to pronuclear and impact investors. Rod, a former submarine Engineer Officer and founder of Adams Atomic Engines, Inc., which was one of the earliest advanced nuclear ventures, is an atomic energy expert with small nuclear plant operating and design experience. He has engaged in technical, strategic, political, historic and financial analysis of the nuclear industry, its technology, regulation, and policies for several decades through Atomic Insights, both as its primary blogger and as host of The Atomic Show Podcast. Please click here to subscribe to the Atomic Show RSS feed. To join Rod's pronuclear network and receive his occasional newsletter, click here.

3 Comments

  1. True enough … but the OIG report also states there is a lack of clarity in the legislative history of these provisions, and that Senate and House Committees have often taken a different view leading to conflicting results and outcomes (which have been reflected in the different conduct and options of past Chairs). The finding here is not that Jaczko violated any rules, but that the legislation may need some additional clarity and strengthening (and a consistent interpretation and application by House and Senate Oversight Committees).

    Quoting from the Executive Summary at Length (Finding #3), emphasis my own:

    http://thehill.com/images/stories/news/2012/06_june/26/nrc_igreport_06_26_12.pdf

    OIG found that the Reorganization Plan assigns the Chairman responsibility for ‘developing policy planing and guidance for consideration by the Commission,” but does not define these terms or articulate the limits of the Chairman’s authority in this area. Moreover, the legislative history provides conflicting interpretations as to whether the Chairman can direct the staff not to submit written policy proposals to the Commission or alter the information the staff provides in its written policy proposals. While a Senate committee noted the Chairman was to serve only as a conduit to pass information forward, a House committee noted the Chairman was responsible for guiding, developing, and represented policy proposals and options to the Commission. This lack of clarity results in differing interpretations by different Chairmen as to the extent of their authority to influence and modify the staff’s policy proposals prior to submission to the Commission.”

  2. @EL

    You sound like some of the people I deal with in my day job. Only lawyers, sea lawyers and nukes think that you need to define standard words like “policy” – use a flipping dictionary!

    Besides – can you really tell me that we need better legislative history than going back to the guy whose staff wrote the darned law and who presented that law to Congress for passage?

    The Chairman of the Nuclear Regulatory Commission is NOT an executive decision maker who has the right to control the flow of information to the rest of the Commission. There is NO DOUBT in the law on that matter, only in the minds of lawyers who can argue about anything.

    Besides, the OIG also asked two previous chairmen about their interpretations of the Reorganization Act.

    Former NRC Chairman Meserve

    Former Chairman Meserve told OIG that during his time as NRC Chairman, he never personally modified the content of a staff paper or directed the staff to modify the content of a staff paper before the paper was submitted to the Commission. He accepted the staff papers as they arrived. Former Chairman Meserve stated it was important to get the staff’s recommendations as guidance for the Commission’s consideration. The purpose of the SECY paper was to provide the staff’s judgement to the Commission, and then the Commission would decide whether it agreed or disagreed. Former Chairman Meserve related there were occasions when he disagreed with the staff’s recommendation in a SECY paper, which would be reflected in his voting record. Former Chairman Meserve could not recall ever telling the EDO or staff not to submit a SECY paper that he did not want presented to the Commission.

    Former NRC Chairman Dale Klein

    Former Chairman Klein told OIG that during his time as Chairman, he never directed or asked the staff to change the content or their recommendation in a SECY paper prior to submission to the Commission. He never instructed the staff not to submit a SECY paper, and he believed that the Commissioners should receive the staff’s information as is. When his view differed from the staff’s view, he would provide it in his comments. Former Chairman Klein stated his approach as Chairman was to be open and transparent with the Commission about all matters; however, Chairman Jaczko’s approach was different. He said that when he was a Commissioner, Chairman Jaczko talked about being open and transparent, but tended not to be that way in practice.

  3. Rod,
    the complete OIG report is not that easy to find on the internet.
    Perhaps you should share a link to it in your article.

Comments are closed.

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