Why was Jaczko asked to resign?

NRC Chairman Greg Jaczko was asked to resign from his position of authority over the Nuclear Regulatory Commission because the agency charged with independent audits of his organization found that he was not trustworthy and not discharging the duties assigned to him as the Chairman of a duly appointed group of commissioners who share equal responsibility for policy formulation, policy related rulemaking, orders, and adjudication.

The Office of the Inspector General (OIG) of the US Nuclear Regulatory Commission investigated four specific allegations regarding Chairman Jaczko’s exercise of authority and addressed allegations concerning his working behavior regarding NRC officials and his testimony to Senate and House committees in December 2011.

Though Jaczko jumped out in front of OIG report with his own spin effort in the form of a press release, the report validated the reports of the people who made the allegations; it did not vindicate the Chairman. For some of the allegations, Jaczko might be considered to have “gotten off on a technicality” by the linear thinking kind of people that his agency regulates.

Here are some of the findings of the report taken from the Executive Summary (2.8 MB PDF).

(Note: In the NRC lexicon, SECY is a written issue paper.)

With regard to an allegation that Chairman Jaczko exceeded his authority by assuming emergency powers in response to an incident at a facility not regulated by the NRC, the OIG report found that Jaczko did not follow the law as written. Instead, he chose to follow a debatable interpretation of the law offered by his General Counsel.

OIG found that Jaczko’s assumption of emergency authority after the earthquake and tsunami was not in keeping with the explicit language of section 3(a) of the Energy Reorganization Plan of 1979, which states that a section 3 emergency pertains to “a particular facility or materials licensed or regulated by the Commission.”

At the time of the assumption of nearly complete control of the Commission, the NRC General Counsel interpreted the law differently than most of us who read and speak English. A prior General Counsel had determined that it was correct for the NRC chairman who was serving in 2001 to use his emergency powers during the aftermath the September 11, 2001 terrorist attacks against selected targets in New York and Washington DC.

Since neither of the two targets that were actually hit during that attack were licensed or regulated by the NRC, the General Counsel advising Chairman Jaczko apparently told him that meant it was okay to assume emergency powers even if there was no involvement of a facility under the NRC’s jurisdiction. Actions taken to establish security at US nuclear facilities following direct attacks on other carefully selected parts of our infrastructure were apparently precedent setting with regard to a natural disaster thousands of miles away from our shores.

The General Counsel acknowledged to the OIG that expansion of the definition of an emergency under section 3 to events at non-licensees “could be debated.” This notion of changing the words written into law by pointing to precedent may be okay for lawyers and politicians, but it is not the way that nuclear professionals are taught to operate. That is especially true when the circumstances associated with the precedent are so vastly different than the new circumstances when an exemption to the law is being requested.

In response to an allegation that the Chairman violated the Internal Commission Procedures with regard to withholding information from his fellow commissioners, the General Counsel offered another questionable opinion as an excuse for the Chairman. The particular situation investigated was the initial report of the near-term task force investigating the Fukushima Dai-ichi nuclear plant accident.

The report (SECY-11-0093) originally included a written perspective from the EDO (Executive Director for Operations) and Deputy EDO which Chairman Jaczko did not like. He ordered the report to be withdrawn so those perspectives could be removed and replaced with a notation vote paper.

The OIG found the Chairman’s direction to be “inconsistent with the Commissioners’ expectations to receive the staff’s written views, analysis, and recommendations as part of SECY papers.” Here is the way that the OIG report described the General Counsel’s interpretation of whether or not Jaczko’s actions to remove written perspectives from the most senior professional staff members at the NRC violated the commission’s own internal procedures.

Ultimately, the Commissioners were able to consider the information that the Chairman ordered retracted from the initially submitted version of SECY-11-0093 as well as information they obtained during communications with senior managers to inform their voting on SECY-11-0093. When questioned by OIG, the General Counsel said that this outcome means that the full access requirement was met. However the Commissioners said they rely on the staff’s written input to support their policy decisionmaking and found that the final SECY-11-0093 transmittal memorandum to be of no value.

(Emphasis added.)

You can read the opinions of Jaczko’s fellow commissioners about their access to information in the Commission Voting Record on SECY-11-0093 dated August 19, 2011.

On the allegation that the Chairman attempted to control the content and flow of information to the Commission:

OIG found that 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 in 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 Chairmen reported that 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 that 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.)

Aside: It is worthwhile to recognize that the OIG went to the trouble to interview President Carter and to understand that President Carter indicated that Chairman Jaczko did not follow the law as he wrote it. End Aside.

On the issue of an allegation that the Chairman directed the Secretary of the Commission not to follow direction provided by a majority of the Commissioners pertaining to revisions to the NRC’s Internal Commission Procedures:

OIG found that Chairman Jaczko initially instructed the Secretary of the commission not to follow the consensus approach of the four Commissioners concerning moving forward to finalize the revised Internal Commission Procedures.

(Emphasis added.)

On the allegation that the Chairman’s interpersonal interactions with the NRC staff and Commissioners has created a chilled workplace environment:

OIG identified more than 15 examples of interactions between the Chairman and NRC senior executives and Commissioners where the Chairman’s behavior was not supportive of an open and collaborative work environment. NRC holds licensees accountable for behavior by senior managers that is not conducive to an environment where employees feel encouraged to raise concerns.
…
The Chairman says he welcomes disagreement and challenges the staff for the good of the agency. However, many of the people who personally experienced or witnessed these interactions did not perceive these exchanges in a positive manner. The impact is that some senior officials avoid interactions with the Chairman and may limit what they tell the Chairman, which is contradictory to both NRC’s values and an open and collaborative work environment.

(Emphasis added.)

On the issue that the Chairman provided inaccurate testimony before the House Committee on Oversight and Government Reform and Senate Environment and Public Works Committee hearings held in December 2011:

OIG found that the Chairman’s December 2011 testimony before the House and Senate committees was inconsistent, in five areas, with testimony provided to OIG by NRC senior officials during this investigation.

(Translation: Jaczko lied to Congress.)

Unfortunately, though Chairman Jaczko’s tenure at the NRC is going to end very soon, he has given plenty of hints that he intends to continue trying to impose his jaundiced view of nuclear energy on the rest of us. I suspect that he will be taking over the role that has been played for the past 30 years by former NRC commissioners Bradford and Gillinsky. There is a reason why many of my posts discussing his performance have been placed into the “antinuclear activist” category.

One more thing. The chutzpa of the man is evidenced by the fact that his description of his accomplishments as NRC Chairman includes noting that the agency “approved the first new reactor licenses in more than 30 years”. Both of those licenses were issued with a single dissenting vote – his. It is amazing to think that he takes any credit at all for their issuance.