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Posts Tagged ‘George Apostolakis’

DEBATE OF THE WEEK: IS NRC CHAIRMAN JACZKO FIDDLING WHILE YUCCA BURNS?

Friday, September 24th, 2010

On February 22, 2010,  just 21 days after the U.S. Department of Energy formally announced it would suspend the Yucca Mountain national nuclear spent fuel and high-level waste repository project in Nevada, the first of a bevy of lawsuits seeking to overturn the action was announced by three state of Washington businessmen.

Just nine days later, on March 3, the Department filed a license withdrawal request with the U.S. Nuclear Regulatory Commission (ASLB).  A month later, on April 6, the NRC’s Atomic Safety Licensing Board – in the face of mounting legal challenges and interventions relevant to the DOE action– announced it was freezing consideration of the matter to await guidance on the matter from U.S. Court of Appeals proceedings.  Less than 17 days later, on April 23 – without waiting for their newest colleague, Commissioner George Apostolakis, who was scheduled to be sworn in just hours later – the Commission vacated the ASLB decision and ordered the Board to render a decision on the DOE withdrawal request in 39 days or less (June 1).

Twenty-eight days after the June 1 deadline, the ASLB issued a unanimous decision rejecting DOE’s license withdrawal request.  Less than 24 hours later, in an unusual action, the Commission set immediate ground rules for an appeal of the decision requesting briefs from interested parties by July 9,  just nine days later.  On July 15, just six days after parties to the proceeding filed a motion seeking the disqualification of three commissioners based on their Senate confirmation hearing testimony earlier in the year, freshman Commissioner Apostolakis recused himself citing other considerations.
In a process that has been defined by days and hours for the most part, it is now 86 days and counting since the ASLB’s June 29th ruling and the initiation of the Commission’s review of the lower panel’s decision.  The full Commission has now exceeded the 39 days they initially provided to the ASLB to sift through considerably more complicated issues.  Meanwhile the U.S. Court of Appeals , which was scheduled to begin oral arguments on September 23 on the mountain of legal contentions now filed in the matter, has put a hold on the proceedings awaiting a Commission determination.  In just six days, the Yucca Mountain project will be in purgatory with the expiration of the fiscal year, a likely continuing resolution and given a DOE edict that it will terminate all remaining employees in the Office of Civilian Radioactive Waste Management on September 30.

The Commission’s delay with regard to an ASLB verdict has lead to much conjecture in Capitol Hill, legal and nuclear policy circles.  Does the NRC Chairman – a former disciple of chief Yucca Mountain antagonist Senate Majority Leader Harry Reid — lack the Commission votes to override the ASLB?  Was he waiting to get a consensus on an updated waste confidence rule, which was consummated on September 15?  Or for conspiracy theorists is he seeking to help his old boss’s up-hill re-election campaign by deferring a possible affirmation of the decision to reject the DOE license withdrawal until after the November 2 election or until Congress leave towns town for its elections recess?  Or for the more charitably-inclined was Jaczko just concentrating on his keynote speech on September 22 to the 54th International Atomic Energy Agency Conference on the  scintillating topic of “The Essential Role of the Safety Regulator?”

During the Great Fire of Rome in 64 AD,  Roman Emperor Nero Claudius Caesar Augustus Germanicus purportedly fiddled while Rome burned.  One authoritative source claims there wasn’t a fiddle to fiddle at the time – although perhaps he was playing a lyre.  Other revisionists suspect that the story was invented by Nero detractors who took power shortly thereafter.

Years later, Clairol’s hair color advertisements famously touted the tag line – “Only her hairdresser knows for sure.”  So perhaps while only Chairman Jaczko knows for sure, what’s your view?  Thus far, in the Nuclear Townhall poll on the subject, 63 % believe the NRC is delaying the decision until after the election; 14% feel the Commission should take as much time as they need ; 9 % say they are deadlocked.  A 2-2 vote by the eligible Commissioners would effectively rebuff a reversal of the ASLB decision.

SHOULD NUCLEAR REGULATORY COMMISSIONERS BE HELD TO A HIGHER STANDARD OF NEUTRALITY?

Friday, August 13th, 2010

When U.S. Supreme Court Justices appear before the Senate for confirmation hearings, they are never -– never -– asked respond to questions on how they would vote in specific cases. Thus, a whole line of Supreme Court nominees have dutifully responded that they have no preconceptions and will only follow the letter of the law when it comes to deciding hot-button issues such as abortion and gun control.

Yet when three of the present five Nuclear Regulatory Commissioners went through a joint confirmation hearing earlier this year, they were asked specifically if they would “second-guess” the Department of Energy on the biggest hot-button issue on the nuclear energy platter -– the fate of Yucca Mountain.

In confirmation hearing testimony before the Senate Committee on Environment and Public Works on February 9, 2010, there was this "brief exchange" with Senator Barbara Boxer, as follows:

Senator Boxer:

Now, I have a question here for all three of you from Senator Reid. You can just answer it yes or no. If confirmed, would you second guess the Department of Energy’s decision to withdraw the license application for Yucca Mountain from NRC’s review?

Mr. Magwood: No.

Senator Boxer: Okay. Anybody else?

Mr. Apostolakis: No.

Mr. Ostendorff: No.

Senator Boxer: Thank you. I think he will be very pleased with that.

What’s going on?  Should NRC nominees be able to invoke the same standards of neutrality as other regulatory or judicial nominees? 

Has the NRC — which now is comprised of three former U.S. Senate staffers, including a former staff member handpicked by the Senate Majority Leader as well as a former Clinton and Bush political appointee — become completely politicized? 

Or is it unrealistic or even mistaken to expect NRC Commissioners to be uncommitted, apolitical arbitrators in the first place — given that they are appointed on the basis of a political formula, which dictates that the President’s party controls three out of five seats, including the Chairmanship? 

What is the impact of this growing politicalization on the agency’s integrity, objectiveness and credibility?

Join the Townhall debate!

NRC LAWYERS: COMMISSIONERS DID NOT SHOW BIAS ON YUCCA

Friday, July 23rd, 2010

By Steve Hedges
The Nuclear Regulatory Commission’s legal staff has advised the commission that three of its five members do not have to recuse themselves from consideration of the Yucca Mountain, Nevada nuclear waste facility.

In an 8-page brief, the NRC’s lawyers disagree with claims that  three NRC commissioners should withdraw from the Yucca debate because of alleged bias.

The request for the recusal of the three commissioners has become one of the thornier legal sideshows in the Yucca Mountain dispute.

The issue is the “No” answer from three commissioners –William Magwood, George Apostolakis, and William Ostendorff — during their Feb. 9, 2010 confirmation hearing in the U.S. Senate. The question was posed by Sen. Barbara Boxer (D-Calif.), on behalf of Sen. Harry Reid (D-Nevada), a strong opponent of Yucca and the current Senate majority leader.

Boxer asked the commissioners if they would oppose an effort by the U.S. Department of Energy to withdraw its license application for Yucca from the NRC. Upon hearing the “No” answers, Boxers said that, “I think he (Reid) will be very pleased.”

The parties that are fighting to keep Yucca open, including the states of Washington and South Carolina, the counties of Aiken, South Carolina and White Pine, Nevada, and an association of utility commissioners, contend that — in light of their nomination declaration — the three commissioners have already voiced a bias against Yucca as well as their intent of supporting DOE’s efforts to withdraw its license.

One commissioner, George Apostolakis, recused himself July 15 from Yucca, citing his earlier work with a DOE national laboratory.

Regarding the commissioners’ statement, the NRC lawyers concluded that pro-Yucca litigants, “fail to carry their burden to demonstrate that, as a matter of law, the listed commissioners have prejudged the issues regarding the DOE motion or that a reasonable person, cognizant of all the circumstances, would harbor doubts about their impartiality.”

The NRC lawyers did agree with a contention by the states, counties and utility commissioners who favor Yucca that the NRC’s standards, “are generally the same as those for the federal judiciary.”

However, the NRC counsel argued that, “There is a presumption that public servants and administrative officers will discharge their responsibilities with integrity.”

The NRC filing notes that, “An adjudicator must recuse himself where he is biased against a party, or where there is the appearance of bias or prejudgment of the factual issues.”

But it adds, “Here, the Commissioners’ answers do not appear to be a prejudgment of fact because the answers can reasonably be construed to pertain to DOE’s policy reasons for withdrawal when viewed in the context of the surrounding circumstances. The Commissioners’ Senate confirmation hearing was held on February 9, 2010, prior to the filing of the DOE motion and subsequent reply that delineated DOE’s legal arguments as to why the withdrawal should be granted.”

The NRC staff concludes: “While a decision on whether to recuse is within the discretion of each Commissioner, neither recusal nor disqualification is required if the affected Commissioners determine that their prior comments do not reflect prejudgment or the appearance of prejudgment of adjudicatory issues associated with the DOE motion and that, in fact, they have not prejudged the DOE withdrawal motion.”

NRC COMMISSIONER OPTS OUT OF YUCCA; ONE DOWN, TWO TO GO?

Friday, July 16th, 2010

By Nuclear Townhall Staff
In a development with profound implications for the direction of the U.S. Nuclear Regulatory Commission’s (NRC) ongoing review of the recent Atomic Safety Licensing Board (ASLB) rejection of the U.S. Department of Energy’s Yucca Mountain license application withdrawal, freshman Commissioner George Apostolakis has filed a Notice of Recusal with respect to any "adjudicatory proceeding" involving the "application for authorization to construct a high-level waste repository at Yucca Mountain."

NRC observers said that — in addition to apparently removing a key swing vote on the ASLB issue — the action could buoy a current challenge by Yucca Mountain proponents to force recusal or disqualification of two of Apostolakis’ new Commission colleagues — William Magwood and William Ostendorff.  It also elevates an ongoing swirl over the objectivity of Chairman Gregory Jaczko, who previously worked in opposition to Yucca Mountain when he was a staff member in the U.S. Senate for Harry Reid (D-NV), the lead opponent of the project.  Jaczko recused himself from Yucca Mountain deliberations during his initial year on the Commission.

In his July 15th Notice of Recusal, Apostolakis said that his decision was premised on the fact he "chaired the Independent Performance
Assessment Review (IPAR) Panel, which was tasked by Sandia National Laboratories (SNL), the U.S. Department of Energy’s Lead Laboratory for Repository Systems, to conduct a high-level review for SNL and its senior management on the adequacy of the long-term performance assessment for the proposed Yucca Mountain repository."

The Commissioner said the recusal was based entirely on his Sandia involvement and was made "prior to and without consideration of the
unrelated motion for recusal/disqualification that was filed by the State of Washington, State of South Carolina, Aiken County, South Carolina, and White Pine County, Nevada, on
July 9, 2010.

The motion suggests that the NRC can’t be objective because three of its members have already voiced their opposition to Yucca.

The three NRC Commissioners in question — Apostolakis, Magwood and Ostendorff — answered "No," during their confirmation hearings in February 2010 when they were asked if they would oppose DOE’s request that its Yucca license be withdrawn (DOE made that request a week before the hearing).
 
They were questioned by Sen. Barbara Boxer, (D-Calif.), chairman of the Senate Environment and Public Works Committee. Boxer said she was asking the question on behalf of Reid. When each Commissioner replied that he would not block the effort to halt the Yucca project, she told them, that Reid, "will be very pleased."
 
But the motion argues that it was that exchange that demonstrates that three of the commissioners are biased, and that the political considerations of Reid and the administration have tainted the NRC deliberative process.
 
"The standard for recusal or disqualification is met in this case," the motion states. "The extra-judicial testimony of Commissioners Magwood, Apostolakis, and Ostendorff, made in advance and as a matter of confirmation that they would not ‘second guess’ any DOE decision to withdraw the Yucca Mountain license application, can be reasonably interpreted to demonstrate that each have, in fact, prejudged this matter should the Commission choose to review the ASLB’s decision."
 
The motion specifically cites the exchange with Boxer at the confirmation hearing, and her statement that Reid "will be very pleased" as, "further indication that the questioning was intended to establish that the new Commissioners would not stand in the way of DOE’s motion to withdraw. No other meaning was intended or understood, nor can any other meaning be inferred."
 
Since the new Commissioners had not yet taken office when they made the statements, their opinions were obviously formed on “‘some basis other than what the judge has learned from his participation in the case.”

The NRC has invited parties involved in the Yucca dispute to submit arguments to determine, "whether the Commission should review, and reverse or uphold, the [Atomic Safety and Licensing] Board’s decision."  Final responses are due on Monday, July 19.

See the video of the hearing below or click here if you are unable to view it:
 

YUCCA PROPONENTS: NRC MUST ADOPT ETHICAL STANDARDS OF FEDERAL JUDGES

Wednesday, July 14th, 2010

Commissioners have already shown anti-Yucca bias
 
By Steve Hedges
WASHINGTON — Proponents of the Yucca Mountain, Nevada nuclear waste facility have told the Nuclear Regulatory Commission that it must meet the same standards as the federal judiciary and that three of its members should recuse themselves from the debate over Yucca since they have already voiced their opposition to the project.
 
In a motion filed with the NRC in Washington, the states of Washington and South Carolina, the counties of Aiken, South Carolina and White Pine, Nevada and a group of utility commissioners “respectfully request that (NRC) Commissioners Magwood, Apostolakis, and Ostendorff recuse themselves and be disqualified from any consideration," of the license concerning Yucca.
 
"When acting in an adjudicatory role, NRC Commissioners are, like other agency adjudicators, subject to the same objective standard for recusal as federal judges," the motion states. "This objective standard provides that a judge ‘shall’ recuse him or herself in any proceeding in which ‘his impartiality might reasonably be questioned. ‘
 
“The Supreme Court has explained that under this standard, “’what matters is not the reality of bias or prejudice but its appearance. Quite simply and quite universally, recusal [is] required whenever ‘impartiality might reasonably be questioned.’ ”
 
Congress determined in the Nuclear Waste Policy Act of 1982 that a national nuclear waste repository be built, and in 1987 it chose the Yucca Mountain, site, which is about 90 miles from Las Vegas in desert lands.
 
But Sen. Harry Reid, a Nevada democrat and now the U.S. Senate majority leader, wants to cancel Yucca. The Obama administration has sided with Reid, a political ally who is in a close re-election fight this year. Earlier this year the administration asked its Department of Energy to withdraw its Yucca license application before the NRC.
 
But last month, the NRC’s Atomic Safety and Licensing Board ruled that the DOE doesn’t have the authority to do that, since Congress selected the Yucca site and dictated by law that it be built.
 
Following the decision, the NRC invited parties involved in the Yucca dispute to submit arguments to determine, "whether the Commission should review, and reverse or uphold, the [Atomic Safety and Licensing] Board’s decision."
 
The motion filed by the states, counties and utility commissioners suggests that the NRC can’t objectively do that because three of its members have already voiced their opposition to Yucca. A fourth, commission Chairman Gregory Jaczko, previously worked in opposition to Yucca when he was a staff member in the Senate for Reid.
 
The three NRC commissioners in question — William Magwood, George Apostolakis, and William Ostendorff — answered "No," during their confirmation hearings in February 2010 when they were asked if they would oppose DOE’s request that its Yucca license be withdrawn (DOE made that request a week before the hearing).
 
They were questioned by Sen. Barbara Boxer, (D-Calif.), chairman of the Senate Environment and Public Works Committee. Boxer said she was asking the question on behalf of Reid. When each commissioner replied that he would not block the effort to halt the Yucca project, she told them, that Reid, "will be very pleased."
 
But the motion filed with the NRC by the states, counties and utility commissioners argues that it was that exchange that demonstrates that three of the commissioners are biased, and that the political considerations of Reid and the administration have tainted the NRC deliberative process.
 
"The standard for recusal or disqualification is met in this case," the motion states. "The extra-judicial testimony of Commissioners Magwood, Apostolakis, and Ostendorff, made in advance and as a matter of confirmation that they would not ‘second guess’ any DOE decision to withdraw the Yucca Mountain license application, can be reasonably interpreted to demonstrate that each have, in fact, prejudged this matter should the Commission choose to review the ASLB’s decision."
 
The motion specifically cites the exchange with Boxer at the confirmation hearing, and her statement that Reid "will be very pleased" as, "further indication that the questioning was intended to establish that the new Commissioners would not stand in the way of DOE’s motion to withdraw. No other meaning was intended or understood, nor can any other meaning be inferred."
 
Since the new Commissioners had not yet taken office when they made the statements, their opinions were obviously formed on “‘some basis other than what the judge has learned from his participation in the case.”
 
Besides the issue with the three commissioners, the motion also raises questions about the impartiality of NRC Chairman Jaczko. In notes that during Jaczcko’s own Senate confirmation hearing, in April 2005, that Jaczko pledged to recuse himself from Yucca mountain deliberations for one year. That period has since expired. But some senators during the hearing questioned whether a year-long recusal was adequate, given Jaczko’s opposition to Yucca while working the Senate.
 
One such skeptic was Sen. James Inohofe (R-Okla.), then the committee’s chairman. During the hearing, he told Jazcko about the recusal of a previous NRC commissioner involving NRC deliberations at the Seabrook Station Nuclear Power Plant in Seabrook, New Hampshire:
 
"Senator INHOFE: Well, you know, there is some precedent for this. It was Commissioner Curtis, a few years ago, who had had a very similar association with Seabrook. He did recuse himself, by letter to us, in his tenure of service. So if that is the request I make of you, do I understand that you prefer not to do that?
 
Mr. JACZKO: I would certainly review that. I am not familiar with all the details of his circumstances, and I will certainly review that with the Office of General Counsel and seek their advice on the similarities with my circumstance."
 
During the hearing, Jaczko also told the committee that, "My hope is that within 1 year, I will have demonstrated that absolutely I can be fair and objective. My hope is that at the end of my recusal, that the answer to that question will be self-evident, whether or not I need to further recuse myself. But I will certainly continue to discuss with our Office of General Counsel, as well as other members of the Commission, what my appropriate action should be on any matters, including Yucca Mountain, after that recusal."