[House Hearing, 109 Congress] [From the U.S. Government Publishing Office] YUCCA MOUNTAIN PROJECT: HAVE FEDERAL EMPLOYEES FALSIFIED DOCUMENTS? ======================================================================= HEARING before the SUBCOMMITTEE ON THE FEDERAL WORKFORCE AND AGENCY ORGANIZATION of the COMMITTEE ON GOVERNMENT REFORM HOUSE OF REPRESENTATIVES ONE HUNDRED NINTH CONGRESS FIRST SESSION __________ APRIL 5, 2005 __________ Serial No. 109-60 __________ Printed for the use of the Committee on Government Reform Available via the World Wide Web: http://www.gpoaccess.gov/congress/ index.html http://www.house.gov/reform U.S. GOVERNMENT PRINTING OFFICE 00-000 WASHINGTON : 2005 _________________________________________________________________ For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001 COMMITTEE ON GOVERNMENT REFORM TOM DAVIS, Virginia, Chairman CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California DAN BURTON, Indiana TOM LANTOS, California ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois CHRIS CANNON, Utah WM. LACY CLAY, Missouri JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland DARRELL E. ISSA, California LINDA T. SANCHEZ, California GINNY BROWN-WAITE, Florida C.A. DUTCH RUPPERSBERGER, Maryland JON C. PORTER, Nevada BRIAN HIGGINS, New York KENNY MARCHANT, Texas ELEANOR HOLMES NORTON, District of LYNN A. WESTMORELAND, Georgia Columbia PATRICK T. McHENRY, North Carolina ------ CHARLES W. DENT, Pennsylvania BERNARD SANDERS, Vermont VIRGINIA FOXX, North Carolina (Independent) ------ ------ Melissa Wojciak, Staff Director David Marin, Deputy Staff Director/Communications Director Rob Borden, Parliamentarian Teresa Austin, Chief Clerk Phil Barnett, Minority Chief of Staff/Chief Counsel Subcommittee on the Federal Workforce and Agency Organization JON C. PORTER, Nevada, Chairman JOHN L. MICA, Florida DANNY K. DAVIS, Illinois TOM DAVIS, Virginia MAJOR R. OWENS, New York DARRELL E. ISSA, California ELEANOR HOLMES NORTON, District of KENNY MARCHANT, Texas Columbia PATRICK T. McHENRY, North Carolina ELIJAH E. CUMMINGS, Maryland ------ ------ CHRIS VAN HOLLEN, Maryland Ex Officio HENRY A. WAXMAN, California Ron Martinson, Staff Director Chris Barkley, Professional Staff Member Reid Voss, Clerk Mark Stephenson, Minority Professional Staff Member C O N T E N T S ---------- Page Hearing held on April 5, 2005.................................... 1 Statement of: Groat, Charles G., Director, U.S. Geological Survey; Ted Garrish, Acting Director, Office of Civilian Radioactive Waste Management, U.S. Department of Energy; Earl E. Devaney, Inspector General, U.S. Department of Interior; Gregory H. Friedman, Inspector General, U.S. Department of Energy; Judy Treichel, executive director, Nevada Nuclear Waste Task Force; B. John Garrick, chairman, U.S. Nuclear Waste Technical Review Board; Joseph Egan, Nevada Attorney General's Office; Bob Loux, executive director, Nevada Agency for Nuclear Projects; and John Mitchell, project manager, Bechtel Corp...................................... 38 Devaney, Earl E.......................................... 53 Egan, Joseph............................................. 74 Friedman, Gregory H...................................... 59 Garrick, B. John......................................... 63 Garrish, Ted............................................. 44 Groat, Charles G......................................... 38 Loux, Bob................................................ 128 Mitchell, John........................................... 135 Treichel, Judy........................................... 66 Guinn, Kenny C., Governor of Nevada; and Brian Sandoval, Attorney General of Nevada................................. 23 Guinn, Kenny C........................................... 23 Sandoval, Brian.......................................... 30 Reid, Hon. Harry, a U.S. Senator from the State of Nevada; Hon. John Ensign, a U.S. Senator from the State of Nevada; and Hon. Jim Gibbons, a Representative in Congress from the State of Nevada............................................ 11 Ensign, Hon. John........................................ 16 Gibbons, Hon. Jim........................................ 22 Reid, Hon. Harry......................................... 11 Letters, statements, etc., submitted for the record by: Berkley, Hon. Shelly, a Representative in Congress from the State of Nevada, prepared statement of..................... 6 Devaney, Earl E., Inspector General, U.S. Department of Interior, prepared statement of............................ 55 Egan, Joseph, Nevada Attorney General's Office, prepared statement of............................................... 76 Ensign, Hon. John, a U.S. Senator from the State of Nevada, prepared statement of...................................... 19 Friedman, Gregory H., Inspector General, U.S. Department of Energy, prepared statement of.............................. 60 Garrick, B. John, chairman, U.S. Nuclear Waste Technical Review Board, prepared statement of........................ 64 Garrish, Ted, Acting Director, Office of Civilian Radioactive Waste Management, U.S. Department of Energy, prepared statement of............................................... 46 Groat, Charles G., Director, U.S. Geological Survey, prepared statement of............................................... 40 Guinn, Kenny C., Governor of Nevada, prepared statement of... 27 Loux, Bob, executive director, Nevada Agency for Nuclear Projects, prepared statement of............................ 130 Mitchell, John, project manager, Bechtel Corp., prepared statement of............................................... 136 Reid, Hon. Harry, a U.S. Senator from the State of Nevada, prepared statement of...................................... 13 Sandoval, Brian, Attorney General of Nevada, prepared statement of............................................... 32 Treichel, Judy, executive director, Nevada Nuclear Waste Task Force, prepared statement of............................... 68 YUCCA MOUNTAIN PROJECT: HAVE FEDERAL EMPLOYEES FALSIFIED DOCUMENTS? ---------- TUESDAY, APRIL 5, 2005 House of Representatives, Subcommittee on Federal Workforce and Agency Organization, Committee on Government Reform, Washington, DC. The subcommittee met, pursuant to notice, at 10 a.m., in room 2247, Rayburn House Office Building, Hon. Jon Porter (chairman of the subcommittee) presiding. Present: Representatives Porter, Berkley, Tom Davis of Virginia, and Gibbons. Staff present: Ron Martinson, staff director; Chad Bungard, deputy staff director/chief counsel; Chris Barkley and Shannon Meade, professional staff members; Reid Voss, legislative assistant/clerk; Patrick Jennings, OPM detailee serving as senior counsel; Mark Stephenson and Tania Shand, minority professional staff members; and Teresa Coufal, minority assistant clerk. Mr. Porter. I'd like to bring the meeting to order. A quorum is present, the Subcommittee on the Federal Workforce and Agency Organization will come to order. Thank you all for being here this morning. We appreciate hearing from you and appreciate additional comments after the meeting. As you know, we just finished a 2-week work session, so many Members are still en route to D.C. This is the first of many hearings, we are going to plan on additional meetings, the first one being next Wednesday April 13th at 10 a.m., I believe is the correct time. And to remind Members that there are votes at 6:30 this evening, and for those that aren't able to attend today, those Members, there will be other opportunities to provide their statements. As a Member of this body, and a public servant for over 20 years of my life and throughout this time, I have represented Nevada on countless issues, and I am honored to have done so. But as chairman of the subcommittee, I now have a much larger role. I must now work to ensure that the Federal Government, including its employees, is serving the taxpayers honestly, ethically and effectively. There is no secret that the greater Las Vegas Valley is the fastest growing community in the United States of America. I could go on and on with statistics that show that the Las Vegas community is not as far as it may seem to some, as it was in the early 1980's, when Yucca Mountain was first being considered as our Nation's first high level nuclear waste repository. With every day that Yucca Mountain is being considered, more people begin to call Las Vegas home and more visitors are beginning to explore the resources we have to offer. Though this issue is of paramount importance to the people of Nevada, this is also an issue of national concern. Many more people than the citizens of Nevada are affected by the decision to dispose of nuclear waste in Yucca Mountain. This decision affects the safety and welfare of the entire Nation. When I first heard the news that some of the scientific data by the U.S. Geological Survey may have been falsified, I was outraged and appalled. The citizenry of this country trusts Federal public officials and employees to do the right thing. The actions by the Federal employees at issue today worked to eviscerate that trust. These Federal employees were trusted with developing true and honest data relating to Yucca Mountain but chose the very opposite path. This type of action cannot be tolerated under any circumstances. This is nothing short of criminal behavior, and we as Members of Congress must not allow this sort of behavior to happen again. Just last month I testified before the House Energy and Commerce Committee where some of the same people who are here today spoke about how they believe that the Yucca Mountain project is the safest place to store our Nation's high level nuclear waste. Then just a few days later, e-mails between Federal employees emerged showing that vital scientific information gathered between 1998 and 2000 in relation to this project had been falsified. All of my colleagues and the President and former Presidents have made decisions on the project based on so- called sound science. Unfortunately, it seems now that those decisions may have been made on nothing more than science fiction. The e-mails between Federal scientists at the project discussed the falsification of documents and records that go to the heart of the science or the science fiction that was used to justify the project. Let me just highlight a few disturbing exchanges between the employees involved. What's worse is that in the last 24 hours we have discovered that there are more documents that were not provided upon our initial request. First, if I may quote from an e-mail, ``Like you said all along, the Yucca Mountain project has now reached a point where they need to have certain items work no matter what. The infiltration maps are on that list.'' E-mail No. 2, ``Why can't they figure out that nothing I provided them is quality assured? If they really want the stuff they'll have to pay to do it right.'' The third: ``We're not sure how smoothly this is going to go, but this is the approach. Like you said all along, the YMP,'' which is Yucca Mountain project, ``has now reached the point where they need to have certain items work no matter what. And the infiltration maps are on that list.'' A fourth example, ``The bottom line is forget about the money. We need a product or we're screwed, and we'll blank the blame.'' The fifth example, very telling: ``Science by peer pressure is dangerous, but sometimes it's necessary.'' The sixth example: ``Here's the weird news. To get this milestone through quality assurance, I must state that I arbitrarily selected the analog sites.'' And the seventh: ``Dealing with the QA,'' quality assurance, ``the QA is bull and is really starting to make me sick.'' The eighth example, very telling: ``In the end, I keep track of two sets of files, the ones that will keep quality assurance happy and the ones that we've actually used.'' The ninth: ``There is of course no scientific notebook for this work.'' The tenth: ``I don't have a clue when these programs were installed, so I've made up the dates and the names.'' Let me repeat: ``I don't have a clue when these programs were installed, so I've made up the dates and the names. This is as good as it's going to get. If they need more proof, I'll be happy to make more stuff.'' Ladies and gentlemen, this is unacceptable. The reason we're here today is to find out exactly what this means. We provided an internal document from DOE which seems to capture the Department's concerns with this project. If I can quote from the document, ``These e-mails may create a substantial vulnerability for the program.'' Although DOE clearly recognizes the vulnerability of the project, it understates the gravity of the misconduct. The legitimacy of the science surrounding the storage of nuclear waste at Yucca Mountain is indeed in question. Moreover, the e-mails convey a clear intent by Federal employees to falsify their work to advance a political project, a project that carries the potential of horrific and unnecessary dangers to Nevadans and our whole country. The e- mails also seem to indicate there may have been pressure on the employees from the top of the food chain. As chairman of this committee, I must work to make sure that the Federal agencies and their employees are held accountable for their actions, especially those that have such a major impact on this country. Yes, there are many questions yet to be answered. And I do not plan on stopping here today, as I mentioned earlier. Today I will be sending out invitations to witnesses for our meeting on April 13th to additional Federal employees who have been involved in the e-mail exchanges to come testify before this subcommittee, next Wednesday at 10 a.m. I would like to thank all the witnesses who have traveled so far to be with us here today, of course, my good friend, Governor Kenny Guinn, Attorney General Brian Sandoval, we've been friends for many years and I have great respect for you and your perspective. I also have known Bob Loux and Joe Egan for some time, and they will be testifying and I appreciate their expertise. It has been helpful on this Yucca Mountain related issue, and certainly the information they provided to other Members of Congress for many years. Of course, I also recognized my distinguished colleague, Senator Harry Reid, who is with us here this morning, and Senator Ensign. I would like to thank them for taking time out of their busy schedules to help testify today, Senator Reid, for your assistance, and from your staff, who has also been most invaluable and we truly appreciate it. As I mentioned to my friends, Senator Reid and Senator Ensigns, they have been outspoken in their views on Yucca Mountain and have been champions to make sure that America remains safe, and their leadership and tenacity have been greatly appreciated. Congressman Jim Gibbons and Congresswoman Shelly Berkley have also been involved in Yucca Mountain for many, many years. Although they are not members of the Subcommittee on the Federal Workforce and Agency Organization, I have invited them to be here with me today during this hearing. I welcome their comments and their questions. To all other witnesses here today from the Department of Energy and the Department of Interior, I thank you for your attendance, and I do look forward to hearing your testimony this morning. I would like to at this point recognize my colleague and friend from Nevada, Congresswoman Shelly Berkley. Ms. Berkley. I want to thank you, Congressman Porter, for holding this important hearing and for allowing me to participate with you. I appreciate it very much. This hearing is of utmost concern to me and the people I represent, all those that call Nevada home. As with Congressman Porter, I am appalled, to say the least, at the Department of Energy's continued mismanagement of the Yucca Mountain project. In all of my years of fighting this project, I knew instinctively that it couldn't possibly be based on sound science. But I never thought the day would come when Federal employees would purposely falsify documents to accommodate the lack of basic science. These actions jeopardize the health and safety of all Americans, especially the people of Nevada. The documentation in question relates to computer modeling involving water infiltration and climate, two of the most fundamental factors involved in establishing whether or not the proposed repository can safely isolate radioactive waste and prevent groundwater contamination. In the e-mails, the suspected USGS employees fabricated dates and names of programs used in modeling for quality assurance, audits and deleted information that did not fit favorable conclusions. ``Don't look at the last four lines, those lines are a mystery. I deleted the lines from the official QA version of the files.'' In the end, as Congressman Porter cited, this e-mail said, ``I keep track of two sets of files, the ones that will keep the QA happy and the ones that were actually used.'' USGS employees made it clear that QA was not a priority of the project, but rather an obstacle, exactly the opposite of what they told us. ``At any rate,'' states another e-mail, ``it's a damned shame to be wasting time on this sort of thing.'' There can be no doubt to anyone reading these e-mails that the integrity of the project and the scientific research are compromised. The Yucca Mountain project has been continually plagued with problems, and more importantly, has failed to meet the necessary standard of science the administration promised not only Nevadans, but all Americans. In the past year, the Yucca Mountain project has faced a series of setbacks. Multiple lawsuits have been brought forth challenging the site. The U.S. Court of Appeals ruled that the radiation standards for the proposed repository did not follow the recommendations of the National Academy of Sciences and would not protect the health and safety of our Nation. The Nuclear Regulatory Commission has refused to certify an electronic data base required for licensing the repository. These latest allegations of falsification of the scientific documentation only compound existing deficiencies in the quality assurance program for the Yucca Mountain project. Last year, the Government Accountability Office found instances of mismanagement and incompetence which were outlined in an April 2004 report entitled ``Yucca Mountain: Persistent Quality Assurance Problems Could Delay Repository Licensing and Operation.'' According to the audit, the GAO concluded that the DOE has failed to fix persistent problems with data, models and software. In addition, continuing weaknesses in management have led to a work environment at the Yucca Mountain project that does not allow for employees to raise concerns without fear of retaliation from the DOE. On their own, any one of these issues is significant enough to stop Yucca in its tracks. Together, they spell disaster. Common sense dictates that this project be halted immediately. An in-depth, comprehensive, independent investigation into the falsification allegations must be completed before we spend one more nickel of taxpayers' dollars on a project that should have been terminated years ago. DOE should not be permitted to proceed with further licensing activities. It is crucial for the safety of our citizens that we delve into these issues thoroughly and ensure that nothing is swept under the rug. It is also crucial to recognize that the immediate future of nuclear power in this country does not depend on Yucca Mountain. A project this dangerous and risky must be scientifically sound, period. And as appalled and angry as I am, the nuclear industry should be twice as outraged, because rather than looking for alternative methods of storage of nuclear waste, they have relied entirely on the misrepresentations of the DOE to continue the Yucca Mountain project. It is my belief that the DOE has known for some time that this project was fatally flawed, that corners were cut, that the science did not support the conclusion and that the data was doctored. How can anyone who knew what was going on, DOE officials, the contractors, the subs, the supervisors and the employees, how can they live with themselves knowing they were putting their fellow Americans, their friends, their neighbors, and their own families at risk? There is no possible excuse for this wanton behavior. Yucca Mountain is based on a lie. There is no believable scientific foundation upon which to build this project. When you have a weak foundation, your building collapses. That is why Yucca Mountain's project is collapsing before our very eyes. Those e-mails provide demonstrable evidence that the DOE is building Yucca Mountain on a weak foundation, based on lies, fraud, intimidation, deception, and non-existent science. The FBI has announced that it is launching its own investigation into Yucca. If ever there was a reason for the FBI to investigate, this is it. The people who knowingly falsified the scientific documentation potentially jeopardized the health and safety of millions of Americans and squandered billions of taxpayers' money. They should be prosecuted to the full extent of the law. Once again, thank you, Congressman Porter, for holding these important hearings. I look forward to the testimony of the panels. Thank you. [The prepared statement of Hon. Shelly Berkley follows:]Mr. Porter. Thank you very much for your testimony. There are three individuals here that are going to have to leave for other meetings: Senator Reid, Senator Ensign. But I would like to first recognize the chairman of our full committee, Tom Davis, who also has to leave shortly. So Chairman Davis, thank you for being here. Mr. Davis of Virginia. Well, thanks for taking the lead and holding a very important hearing on recent developments at the Yucca Mountain project. I am going to be brief, because I want to hear from our speakers and get them back to work. These are very serious allegations involving Federal employees working at the project that they falsified documents. It raises grave concerns about the sound science underpinnings of this project. This subcommittee has jurisdiction over the work force. We are here to examine the veracity of these allegations. I doubt this will be our only hearing, and we are going to continue our investigation to get to the bottom of this matter. If confirmed, this alleged behavior not only casts serious doubt about the safety of this extremely important project, but also negatively impacts the public's perception, which has been improving, on the Federal work force. That is of great concern, I think, to all of us. All the more reason why this subcommittee should use its investigative and oversight authority to confirm or dismiss the allegations, give the American people in general, the residents of Nevada in particular, reassurance that their interests are held at the highest priority in the forthcoming decisions and how to proceed on the Yucca Mountain project. I have, I think, been fairly neutral on this project as it has moved through the process through the years. I have expressed some skepticism, but I don't share the strong opposition of my colleagues here from Nevada. But these allegations are disturbing, and I just wanted to say, as chairman of the full committee, we want to work with you to get to the bottom of the matter. I appreciate your bringing this to our attention. Mr. Porter. Thank you, Mr. Chairman. We appreciate your comments. I would now like to call on Senator Harry Reid. STATEMENTS OF HON. HARRY REID, A U.S. SENATOR FROM THE STATE OF NEVADA; HON. JOHN ENSIGN, A U.S. SENATOR FROM THE STATE OF NEVADA; AND HON. JIM GIBBONS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEVADA STATEMENT OF HON. HARRY REID Senator Reid. Thank you very much. Mr. Chairman, members of the subcommittee, since September 11th, every indication that they are going to try to haul nuclear waste has been a target of opportunity for terrorists, every train load or truck load of nuclear waste. The taxpayers and ratepayers have spent about $10 billion on Yucca Mountain so far. It is a flawed project. It should be brought to a stunning halt. We should stop as of now. There will be excuses, I've seen them already coming from the DOE, well, this stuff doesn't really matter. This matters. It shows clearly what has gone on, that there has been false science. The situation should be that the legislation that has been introduced by Senator Ensign and me to leave the nuclear waste where it is, store it onsite, in drycast storage containers, it would be safe for 100 years, and it would save the country billions of dollars. Billions of dollars. And we would have a safer society, and maybe in the future there would be some nuclear power that could be generated, new nuclear power in this country. I think that what has transpired here makes, as Congressman Davis indicated, makes the Federal Government look bad. I think it's important that this subcommittee gets to the bottom of this. I think, as Congressman Berkley said, that people should be prosecuted. You can't take science and have malpractice committed there. People are making fun of their own science. And this is leading to the wasting of money. We have known they rushed through that, as they cut through that mountain, they wouldn't even bother to wet down the drilling areas, knowing that people would get sick from mesothelioma. This whole project is a lesson in what's bad about Government. That is too bad. I would ask that my full statement be made a part of the record. I would ask that I be excused, please, Mr. Chairman. [The prepared statement of Hon. Harry Reid follows:] Mr. Porter. Absolutely, thank you, Senator. We appreciate your testimony this morning. Senator Ensign. STATEMENT OF HON. JOHN ENSIGN Senator Ensign. Thank you, Mr. Chairman. I want to thank you for holding this hearing on Yucca Mountain. I know that you share my outrage and the outrage of the people of the State of Nevada that a USGS scientist apparently falsified documents regarding the Yucca Mountain quality assurance program. At this time, we have more questions than answers. What we do know is that Nevadans were promised that decisions concerning Yucca Mountain would be based on sound science. It now appears that the science may have been falsified. These e- mails have finally blown the lid off this fraudulent and ill- conceived project. According to the Washington Post, ``E-mails by a Government scientist on the Yucca Mountain nuclear waste dump project suggests the worker was planning to fabricate records and manipulate results to ensure outcomes that would help move the project forward.'' Mr. Chairman, I am dismayed to find that quality assurance documents are fraudulent, but frankly, I am not surprised. The DOE has regularly cut corners in the very program which has been set up to verify that all scientific data and engineering designs submitted to support a license for Yucca Mountain are accurate and reliable. In 2004, the GAO completed a report that Senator Reid and I requested on this very subject. The report was entitled, ``Yucca Mountain: Persistent Quality Assurance Problems Could Delay Repository Licensing and Operations.'' I would like the entirety of this report to be submitted for the record. It makes for extraordinary reading. Mr. Porter. I ask unanimous consent. Hearing no objection, so moved. [Note.--The GAO report entitled, ``Yucca Mountain, Persistent Quality Assurance Problems Could Delay Repository Licensing and Operation,'' may be found in subcommittee files.] Senator Ensign. It shows that the DOE has been unable or unwilling to correct quality problems with data, models, software, and management since 1998. It indicates that some data sets could not be traced back to their sources, model and validation procedures were not followed. It also shows the DOE's arrogance. The DOE rejected the GAO findings and recommendations, while the NRC agreed with the conclusion but suggested flexibility in the ways to achieve and measure performance. It is my hope that the DOE will be more willing to look at recommendations now that its quality assurance program has been revealed for what it is: a fraud. I am stunned by the number of references to deleting and destroying e-mails, fudging information and not telling anyone how something was done. From ``I will be happy to make up more stuff'' to ``science by peer pressure is dangerous but sometimes it is necessary'' the e- mails are proof that the only thing necessary at this point is that we get to the truth. It seems that Yucca Mountain's destiny is that of a mountain of lies and nothing else. As this matter continues to be investigated, it is highly possible that more falsified documents will come to light. Lawyers working for Nevada recently uncovered an Energy Department audit from 2000 that reviewed Yucca documents from 1997 to 1998. The audits showed problems with USGS documentation, including that USGS officials claimed that they had calibrated instruments that did not exist at Yucca. This is emblematic of the shoddy work and perhaps criminal acts that have plagued this program. Mr. Chairman, the quality assurance program was put in place as part of the NRC licensing process to verify the accuracy and credibility of work that has been completed to protect public health and safety. The fact that the alleged fraud deals with the issue of water infiltration is critical, because it impacts the corrosion of casks and the containment of radioactivity. We are not talking about how realistic this scenario would be for a science fiction novel or movie script. The corrosion of casks and the containment of radioactivity are frightening realities that Nevadans and all Americans face should this project proceed based on fraudulent science. Mr. Chairman, I want to underscore, this is only the last in a series of setbacks for the Yucca Mountain project. A Federal appeals court last July ruled that new radiation safety standards must be established before the Department could file the licensing application with the Nuclear Regulatory Commission. The standards must be at the point when the waste will be at its peak radiation. That could be 300,000 years from the time the waste is sent to Yucca Mountain, instead of the arbitrary EPA standards of 10,000 years. The EPA has yet to set that new standard. The 1982 Nuclear Waste Policy Act gave the Department of Energy until 1998 to open a permanent, underground geologic repository for high level nuclear waste. Up until recently, Yucca Mountain was scheduled to open in 2010. That date has slipped indefinitely. Mr. Chairman, we are beyond the point where we need to abandon this ill-conceived and problem-riddled project, and focus on safer, smarter and more reasonable alternatives. I think we need to amend the Nuclear Waste Policy Act of 1982 to require the title to all spent nuclear fuel stored in dry casks to be passed on to the DOE upon the site transfer from storage pools to casks. Senator Reid and I, as he mentioned, are planning to introduce legislation to allow the DOE to assume liability of the waste onsite before it is transferred to Yucca Mountain. Conveying the title means that DOE will have full responsibility for the possession, stewardship, maintenance, and monitoring of all spent nuclear fuel. Through the act, the DOE would also be made responsible for various maintenance and oversight that would be associated with implementation. Furthermore, we need to invest in new technologies at our national labs to recycle the waste without producing weapons grade plutonium as a byproduct. Recycling has advantages over burying high level waste. The residual activity and radio toxicity of the waste in the repository following the recycling process would be dramatically less than for a non-assisted repository. The volume would be substantially lower as well. In conclusion, Mr. Chairman, I want to thank you for holding this hearing on possibly fraudulent quality assurance documents. I have no confidence in the Department and the Department of Interior to get to the bottom of this fraud and to make sure that the science underpinning Yucca Mountain program is truly sound. I have 8 years worth of evidence to back up my position: these agencies have nothing but empty promises. Senator Reid and I have asked the Department of Justice and the FBI to protect and preserve any and all records associated with the Yucca Mountain project. We have also asked for an independent investigation of the document review and DOE's license application. I hope this committee will join us in these efforts. There needs to be an independent review of the science behind Yucca Mountain. By independent, I mean the scientists who are experts in the field and have never been on the DOE payroll. I am tired of hearing comments by DOE officials that the fraud isn't scientifically important, because the computer models work. This is the kind of attitude that caused these kinds of problems in the first place and the kind of approach which reveals that DOE is not up to the job of fixing it. Mr. Chairman, I conclude my testimony at this point and ask that the rest of my testimony be made part of the record. I ask to be excused. [The prepared statement of Hon. John Ensign follows:] Mr. Porter. Thank you, Senator Ensign. I appreciate your comments, and welcome back to the House. It's always good to see you. Thanks again to our Minority Leader, Senator Reid, for his comments. I would like to now bring it back to the panel and introduce Congressman Jim Gibbons from Nevada. STATEMENT OF HON. JIM GIBBONS Mr. Gibbons. Thank you very much, Chairman Porter. And to my friend and colleague who just left, Chairman Davis, I also want to thank you for inviting us to be part of this panel for this very important hearing. Ladies and gentlemen, this is no small matter. This is no trivial issue. I would ask that the panels following the Governor and my friends out here that are out here today that testify from DOE and the USGS, that they do not attempt to trivialize the wrong that was done under their watch. This is significant. There are significant safety issues involved, there are significant sums of money involved. This will not go away by a mere statement of saying, they are small, unimportant, trivial mistakes. I implore you, don't come to the table and make that statement. I commend Chairman Porter for his prompt action in undertaking this hearing today. This is a significant and important issue before not just Nevadans, but before every American. Again, I want to welcome my friends that are here, the Governor of Nevada, Kenny Guinn, and the Attorney General, Brian Sandoval, along with our two Senators who had to leave earlier, and my other colleague, Congresswoman Shelly Berkley, who are here as well, feeling that this is so important, so significant that we have to make sure that the American public understands what's going on. And let me say that I as a geologist, as a scientist, have long had many questions and grave concerns about the scientific integrity of Yucca Mountain over the years, from what I have seen be reported by their scientists. I have never been convinced that the Department of Energy could soundly stand on science as the basis for making Yucca Mountain a nuclear repository. Like many Nevadans, like everyone on this panel, I was shocked and dismayed to learn that Government scientists and their superiors had falsified testimony and science relating to the possible water infiltration problems at Yucca Mountain. These are serious allegations, ladies and gentlemen. As I said, these are allegations that are not going to go away until they are resolved. This administration, President Bush's administration has prided itself on Government accountability. I have applauded their effort in that accountability. Now it is time for Congress, even if it is just this committee, it is time for Congress to hold the feet to the fire, hold the line on integrity and get to the bottom of what really is happening at Yucca Mountain. As I said, it's time for everyone to measure up to what the standards of Yucca Mountain are today and whether or not, for 100,000 years, they will meet the needs and the safety of the American public. I daresay to each one of you at DOE, you come to Nevada and you explain to the people out there why your callous disregard of safety allowed for the waters of the western part of the United States to be contaminated with nuclear radioactive materials. Something, ladies and gentlemen, has to be accounted for. You are the ones whose feet are going to be held to the fire. Mr. Chairman, I have a tremendous amount of information in my statement that I would like to have entered into the record. Right now I simply would like to close by saying that please, when you come to this table, when you come to testify before this committee, do not trivialize. This goes beyond the veracity of the framing science for the basis of the decision for moving forward with Yucca Mountain. This goes to the basis of believability of the U.S. Government. Those people on the next several panels are going to have the responsibility to answer the American public's questions about what went on and why it went on and importantly, what you are doing to correct it. With that, Mr. Chairman, I would like to offer my complete written statement for the record and yield back the balance of my time. Mr. Porter. Thank you, Congressman. At this time, I would like to ask unanimous consent that all Members have 5 legislative days to submit written statements and questions for the record and any answers to written questions provided by the witnesses also be included in the record. Without objection, so ordered. I ask unanimous consent that all exhibits, documents and other materials referred to by Members and the witnesses may be included in the hearing record, that all Members be permitted to revise and extend their remarks. Without objection, it is so ordered. It is a practice of this committee to make sure that we administer the oath to all witnesses. Would you please all stand with me and also, I believe Mr. Ziegler is here, if he would stand also. [Witnesses sworn.] Mr. Porter. Let the record reflect that all witnesses have answered in the affirmative, and please be seated. Thank you. As I mentioned earlier, we had an adjustment in the schedule to make sure the Senators could go back to their house and take care of business, also our Chairman Davis. So now I would like to move into our first panel, and we would like to hear from the Governor of Nevada, the Honorable Kenny Guinn. Governor. STATEMENTS OF KENNY C. GUINN, GOVERNOR OF NEVADA; AND BRIAN SANDOVAL, ATTORNEY GENERAL OF NEVADA STATEMENT OF KENNY C. GUINN Governor Guinn. Mr. Chairman and members of the committee, for the record, I am Kenny Guinn, Governor of the State of Nevada. I would like to begin by thanking you, Mr. Chairman, for taking the initiative and arranging for this very important hearing today. I also want to thank all of you as members of the subcommittee for devoting your time and effort to address a matter of critical importance not only to my State, but also to the entire country. The recent disclosure by Secretary of Energy Bodman that scientists working on the Yucca Mountain project may have falsified data is nothing short of criminal behavior. While it is certainly possible for there to be honest differences of opinion among scientists and technical experts, in a project as complex and controversial as a nuclear waste repository, the fact that data may have been intentionally fabricated in service of shoring up predetermined and politically driven conclusions, calls into question the very legitimacy of the entire program. I am shocked by this development and I join our Attorney General and congressional delegation that you have heard from here today in calling for an immediate and thorough investigation. For too long in this project, we have watched politics trump science over and over again. In 1987, when Congress decided to arbitrarily abandon the step by step scientifically based approach to repository site selection embodied in the original Nuclear Waste Policy Act of 1982, and singled out Nevada's Yucca Mountain as the only site to be considered, it did so for purely political reasons. Frankly, it has all been downhill from there. What began as a noble effort to blend science and policy into a sound approach for solving a difficult and controversial technical problem has deteriorated into a quagmire of politics where the laws of expediency prevail over the laws of science. Mr. Chairman, less than a month after my election as Governor to the State of Nevada, but before I was sworn into office, I co-authored a letter with then-Governor Bob Miller to Energy Secretary Bill Richardson urging that Yucca Mountain be immediately disqualified as a repository site, citing strong and compelling scientific evidence indicating the site was incapable of safely isolating deadly radioactive waste. One of the main points raised in that letter was ironically the existence of very rapid groundwater pathways and evidence showing that rapid water movement through the site would expedite the corrosion of waste disposal containers underground at Yucca Mountain and very quickly transport radioactive materials to the aquifer and from there to water sources used by the people in the various communities. Little did we know then that the very information the Secretary of Energy relied on in subsequently denying my request was very likely based on fabricated data, given the fact that from published reports, at least, the data believed to have been compromised involved U.S. Geological Survey studies of groundwater movement at Yucca Mountain. It is certainly suspicious, if not outright incriminating, that those USGS studies were ordered by DOE in an attempt to contradict earlier DOE and State of Nevada research findings that were not to DOE's liking. In 2002, when President Bush, acting on Secretary Abrams' advice, recommended that Congress endorse continuing the Yucca Mountain project, he was likely also acting on information that was grounded in falsified data. The President, in a personal meeting with me, eye to eye, face to face, told me that he would base his decision on sound science. I wonder how many of you in Congress would have voted in the summer of 2002 to override my veto on the project would have done so if you had known that a fundamental underpinning of the Yucca Mountain project was based on fraudulent and intentionally falsified data? It is a sad day for my State and for America when we can no longer trust Government scientists to report their findings honestly and not mislead, misrepresent or falsify the facts, especially when we are dealing with such a critical, important, and risky technical issue as nuclear waste disposal. It would be far worse for the country, however, if such fraudulent science would be allowed to be swept under the rug. To quote Thomas Jefferson, ``It is more honorable to repair a wrong than to persist in it.'' That, Mr. Chairman, is the task before this subcommittee today. Already, DOE officials are seeking to minimize the importance of Secretary Bodman's disclosure. The wagons are being circled, and without swift and decisive action to get to the whole truth in this matter, I am very concerned that the true extent of any wrongdoing in the Yucca Mountain program will never be known. Despite calls from the Nevada Attorney General, Nevada's congressional delegation, others and me, for DOE to release the e-mails and other materials that prompted Secretary Bodman's disclosure of likely data falsification, DOE has refused to make the materials available. Instead, DOE representatives have been seeking to downplay evidence as merely paperwork problems, or as minor quality of assurance matters. If that is in fact the case, Mr. Chairman, why has DOE not made the evidence available to the State of Nevada and other entities charged by the Nuclear Waste Policy Act with overseeing DOE-Yucca Mountain activities? Before becoming Nevada's Governor, I was the CEO of the largest utility company in Nevada, and one of the largest ones in the State of Arizona and a part of California. For more than a year, I was the acting president of the University of Nevada and Las Vegas. Let me tell you, if any scientists or engineers working for me were found to have fabricated or otherwise misrepresented information regarding academic work at the University or any Southwest Gas project, they would have been dealt with swiftly and harshly. Yet here we sit today, 3 weeks, 3 weeks since Secretary Bodman disclosed the existence of falsified Yucca Mountain date, and no one has been permitted to see the e-mails in question or interview the scientists in totality. What we get from DOE is simply obfuscating and damage control. During the past year, the country has seen CEOs of major industries dragged before the courts for cooking the books and fabricating information to make corporate profits appear better than they were in reality. I see no difference between those scandals and what appears to have occurred in DOE's Yucca Mountain program. In the case of ENRON, WorldCom, or other corporate wrongdoing, the motive was a maximizing of profits and avoiding losses, while the fraudulent actions involved falsifying embarrassing and incriminating accounting and reports, all for money. In the case of Yucca Mountain, the motive was covering up and countering incriminating and embarrassing information that could have meant disqualifying the entire project. And the questionable actions involved, doctoring scientific findings and quality assurance records. If we treat corporate fraud, which after all hardly compares to the seriousness of fraud involving the safe disposal of some of the most deadly and long-lived substances known to man, as such a serious matter, how can we not demand equally intense scrutiny of apparent fraud in a public sector program that has the potential to impact many generations of people and do irascible damage to the credibility of agencies and institutions whose sole role it is to address some of the most pressing and scientific and technical issues of our day? The foot-dragging and game-playing must stop, and a real, legitimate investigation must be immediately initiated. Let me conclude, Mr. Chairman, by reminding this subcommittee and other Members of Congress that from the very beginning of the Government's high level nuclear waste repository program, we in Nevada have asked just one thing of the Department of Energy. Be honest with us and carry out a scientifically sound and credible screening program that has as its goal the identification of a site capable of isolating deadly radioactive waste from the human waste and the environment for the extraordinarily long time that it would require. DOE has never lived up to that expectation and now, with these revelations about falsified scientific data, the curtain has been pulled back to reveal just how bankrupt and fraudulent the Yucca Mountain program may have been all along. The evidence is becoming overwhelming that the Yucca Mountain program is broken beyond repair. It is hemorrhaging money and cannot meet appropriate health and safety standards. It is falling farther and farther behind schedule. Even its most ardent supporters are beginning to question its wisdom and now the project has lost whatever scientific credibility that might have been remaining. Let us, Mr. Chairman, find a way to make this fraudulent, bankrupt, and unnecessary project stop, not only for the sake of the people and environment in my State, but in the best interests of America's people and its environment. I want to thank you again for the opportunity to address you here today on this very important issue, and we will be happy to cooperate with you in any way that we possibly can. But we are demanding that we also see public records from the e-mails so that we can defend our case against this project. Thank you very much. [The prepared statement of Governor Guinn follows:] Mr. Porter. Thank you, Governor. We appreciate your testimony. Now our Attorney General of Nevada, Mr. Brian Sandoval. Ms. Berkley. Mr. Chairman, if we have questions of the witnesses, shall we wait until the panel has finished? Mr. Porter. Yes. Ms. Berkley. All right, thank you. STATEMENT OF BRIAN SANDOVAL Mr. Sandoval. Good morning, Mr. Chairman, members of the committee. My name is Brian Sandoval, Attorney General for the State of Nevada. First, Mr. Chairman, I would like to compliment you and thank you in your leadership in scheduling this meeting. I would also like to thank Congressman Gibbons and Congresswoman Berkley for your leadership on the Yucca Mountain issue and for exposing the science fiction associated with the Yucca Mountain project. The recent disclosure by the U.S. Department of Energy that key Yucca Mountain scientific studies concerning water infiltration were falsified undermines the credibility of the Yucca Mountain project, a multi-billion dollar project that is increasingly confronted with potentially insurmountable problems. The question of falsification of critical data goes directly to the suitability or unsuitability of Yucca Mountain to safely house this country's first permanent high level nuclear waste repository. The question of falsification also calls into question the health and safety of Nevadans and all Americans. The studies that are now circumspect form the basis of the Department of Energy's site recommendation to the President of the United States and the President's recommendation of the Yucca Mountain site to Congress. Such falsification irreparably damages the legality of the project, its scientific integrity, and public confidence in the project. Of course, all these are and must be fundamental prerequisites to the viability and safety of the project. Some of my colleagues will attest to other fraudulent conduct at Yucca Mountain that further undermines the suitability of the site. Such fraudulent conduct by DOE and its contractors could actually result in a rejection by the Nuclear Regulatory Commission of DOE as a qualified applicant for an NRC license to construct the project, assuming DOE ever files a license application. In a March 17, 2005 letter to Attorney General Alberto Gonzales, I requested that all relevant e-mails be made available to my office, that the Yucca Mountain data base be immediately frozen as to prevent damage to other vital evidence, and most importantly, that an independent investigation into the potential criminal activity be conducted. To date, although I am aware through media reports that the FBI is conducting a criminal investigation, I have not heard from the Department of Justice. I am also trying to schedule with the Attorney General, schedule a meeting with the Attorney General of the United States to personally discuss my concerns with him. Finally, as Nevada's Attorney General, I am responsible for protecting the health and safety and welfare of Nevada's citizens. To that end, I will pursue all appropriate legal remedies available under Nevada law to protect the people of Nevada and the millions of visitors that travel there every year. Mr. Chairman, in closing, I urge this committee to demand immediate action. I ask that you request an independent investigation of all the issues that we have heard discussion about today, that an independent commission be formed to conduct this investigation of all the science associated with the Yucca Mountain project, someone without bias, to give credibility to the investigation, and that the entire data base, not a portion, but the entire data base, be looked at. Because it all may be affected. No. 2, I ask that an absolute provision of all the information be allowed to be given to the State of Nevada unfettered and without a request of privilege. Third, I encourage an aggressive continuation of a criminal investigation into potential wrongdoing associated with the science at Yucca Mountain. Thank you, Mr. Chairman. [The prepared statement of Mr. Sandoval follows:] Mr. Porter. Thank you, Mr. Sandoval. We are now going to move into the question and answer segment of the hearing. I do have a question for you, Mr. Sandoval. I know there has been numerous lawsuits that have been initiated by the State of Nevada and other individuals. Based on the information that has been provided in the last few hours, 48 hours, 72 hours, regarding the e-mails and internal documents, if you knew then what we know now, how would this have impacted some of our lawsuits that either have closed or are currently pending? Mr. Sandoval. Thank you, Mr. Chairman. Certainly I think it would have changed our approach by 180 degrees. Although I think we may have never have gotten to litigation, because there may never have been a recommendation to the President of the United States by the Secretary of Energy who would not have been able to make that recommendation because of the falsified data associated with the presentation to him, who in turn made the recommendation to this Congress. But certainly I believe that it would have strengthened, if we would have had this information, strengthened our lawsuits and we would have been even more successful than we have already been. Mr. Porter. I think we may hear testimony this morning, just having read some of the backup, that the agencies may declare that this is a success, because they in fact discovered these documents, brought them forward to the public for review. Could you comment on that approach by the Department of Energy and the Department of Interior and the USGS? Mr. Sandoval. Thank you, Mr. Chairman. My only comment is this, that it's our belief that this disclosure was not voluntary, that it was a result of our aggressive prosecution of this case and a demand that these types of documents be turned over. Had it not been for Nevada's aggressive approach in terms of requiring the presentation of these documents, we may never have heard about this. Mr. Porter. Thank you. And I would concur, again, reading our testimony and seeing some of the press statements, that they are good citizens by releasing this information, the facts remain, this information would not be before this committee today if it wasn't for the State of Nevada and your office and those involved, of calling for this information to be released. So I appreciate that. Thank you. Mr. Sandoval. Thank you, Mr. Chairman. Mr. Porter. Congresswoman Berkley. Ms. Berkley. Thank you, Mr. Chairman. Governor Guinn, there is no doubt in my mind that you were eye to eye with the President, pleading Nevada's case and doing a very good job, at that. There is no doubt that the President believed at the time that he was basing his decision on sound science. My concern now is, how are we going to communicate these latest findings to the President? According to the Associated Press today, there is a memo, a section is entitled, ``Key Points for Your Discussion with the Secretary,'' and among those points, this is the Department of Energy officials, ``we do not believe that the questionable data has any meaningful effect on the results supporting the site recommendation.'' Now, the Secretary of Energy is relatively new. He hasn't been dealing with this the last 20 years, as the rest of us have. He is getting that type of guidance from the people below him. He is going to take the information they give him and take it to the President of the United States. And if he follows the recommendations that are cited in this memo, he is going to be telling the President that these falsified scientific documents are not relevant to the future of Yucca Mountain. What are you planning to do to take our message to the President, so that he gets an unfiltered and correct version of what's going on? Governor Guinn. Well, of course, Congressman Berkley, we would be at a definite disadvantage if we are not able, hopefully through this subcommittee's actions, to be able to get the entire data that we need. Because we are only getting various e-mails that are leaked out or coming through. I haven't seen anything other than what I've seen on national television and read a couple of them in the paper. So through the Attorney General, we are asking for this data so that we can prepare our case. We would not like to have to do it halfway. I think it's important for us to have the data that we need to go to the White House, just like we did once before. We got the opportunity to meet with President Bush on the basis that there is a law that requires that he has to make a decision off of supposedly the data that is presented to him. Then I had the right to veto that, and it could only be overridden by congressional action by both the Senate and the House. So in my meeting with him, he was very firm. I know him from our Governor days, I know him to be a man that is fair and certainly convinced to do things in his mind from a scientific basis. He told me that he would only make his decision on scientific data and sound science. I think this shows that there are a lot of questions to the data that he had to make that decision. We will certainly do everything we can to get this data, working with you, working through our own process. If we can't, then we would have to go there just on what we know. But I assure you that we will be working to get another sit-down, face to face discussion with the President of the United States. Because the facts have changed, there is no doubt about that. Ms. Berkley. And I would urge you to do that sooner than later, because I have no confidence in the Department of Energy, that they are going to be forthcoming. And 6 months from now, no mater how hard we're trying, they could still be dragging their feet. And I don't think we have the luxury of waiting 6 months to get this information before the President, even if we don't have the full, all the documentation, we are going to need to give him another point of view, because I guarantee, with or without the documentation, they are going to be all over him. Governor Guinn. I would just like to say in conclusion to your question, this is not the only issue that we have difficulty getting information on. I have written my second letter asking for permission to see some of the data they have that is not related to the e-mails. The only way I can get that is to sign a joint agreement with them that it would never, any of it, be made public. This is not like it's national security. This is a problem inside our own borders and an issue that has been discussed over the last 20 years. So we have difficulty getting that, because if we sign an agreement like that, and it's the only way we can get this information, which should be shared with us, we would share with them anything that we have, then it means that if we sign that agreement and then we have litigation, we are not able to disclose it. That's just not a fair playing field. So we have trouble getting that data anyway. But this is one that's even more serious, and we will go directly, in my opinion, to the White House for another sit-down discussion. Ms. Berkley. I would urge you to do that, as I said, sooner than later. General Sandoval, I appreciate the step by step approach that you are taking. Could you give us some idea, as Nevada's attorney, what you think the next appropriate legal move should be in this issue? Mr. Sandoval. Thank you, Mr. Chairman and to Congresswoman Berkley. I think the next step should be a legal one in terms of seeking the documents, so that we can get to the bottom of this and then take the appropriate action thereafter. We have tried to do it the kind way and the polite way. If that way doesn't work, then we have to do it the legal way. Ms. Berkley. Thank you. Mr. Porter. Congressman Gibbons, do you have any questions? Mr. Gibbons. Yes, I do, Mr. Chairman, thank you very much. And to the Governor and the Attorney General, thank you again for your time and your testimony here today. It has been very helpful to us to understand this issue a little better. On March 24th of this year, I sent a letter both to the Department of Energy, the Secretary of Energy, as well as to the President of the United States, asking for an immediate shut-down of the Yucca Mountain project, pending the outcome of this investigation. I would just like to ask, Mr. Attorney General, have you seen the redacted documents that were supplied to Congress regarding the e-mails at this point in time? Have you seen those? Mr. Sandoval. Mr. Chairman and Congressman Gibbons, no. Mr. Gibbons. So these documents were never part of your litigation as to the veracity or the suitability of Yucca Mountain during its pending course in court? Mr. Sandoval. No, they were not. Mr. Gibbons. On March 29th, there was a secondary list of original documents, I believe, that were sent to us, and I'm holding them up here. I don't presume you have seen these. This is the first time I have seen these. I would like to have your thoughts, when you get a moment, when you go over these e- mails, to see whether or not this would have any pending change in your strategy, both you, the Governor and the Attorney General, to look at these documents when you have a moment, to determine whether that would change the strategy of the State of Nevada with regard to its approach to Yucca Mountain when you have that moment. One analogy that I'm sure will bring a smile to your face. If I were to design an airplane that you were to fly in to risk your life, and I were to tell you that the quality assurance was something I didn't care about and that I took steps to avoid and that I intentionally fabricated the science and engineering related to that airplane, would you fly on that airplane? I would hope your answer is no. Governor Guinn. If you're asking me, no. [Laughter.] Mr. Sandoval. I wouldn't fly it either, and I would ask you to fly it. Mr. Gibbons. I wouldn't fly it myself. That's what the Department of Energy and the U.S. Geological Survey is asking the people of the State of Nevada, in fact, the people of America, to do by accepting their science and their engineering regarding the security of the Nation's most toxic, deadly material and the security of their water supplies for hundreds of thousands of years thereafter. So with that, I want to, Mr. Chairman, thank you again for allowing me to ask those questions, and again, thanks to our witnesses here as well today. Mr. Porter. Thank you, Congressman. I would like to move into our next panel. To help expedite the process this morning, I'm actually going to combine the second and third panels. So I would now like to invite our second and third panels of witnesses to please come forward. First, we will bring in Dr. Charles Groat, Director of the U.S. Geological Survey at the Department of Interior. Following him will be Mr. Ted Garrish, Deputy Director of the Office of Civilian Radioactive Waste Management at the Department of Energy. Then we will hear from Mr. Earl Devaney, the Inspector General at the Department of Interior. After Mr. Devaney, we will hear from Gregory Friedman, Inspector General at DOE. Then we will hear testimony from Mr. John Garrick, chairman of the Nuclear Waste Technical Review Board. After Mr. Garrick, we will hear from Judy Treichel, the executive director of the Nevada Nuclear Waste Task Force. Then we will hear from Mr. Egan, attorney for the Nevada Office of the Attorney General. Following that will be Mr. Loux, executive director of the Nevada Agency of Nuclear Projects, followed by Mr. John Mitchell, the Yucca Mountain Project Manager for Bechtel. I will allow you all a moment to get situated. Thank you for your patience. I would now like to open with Mr. Charles Groat, Director of U.S. Geological Survey at the U.S. Department of Interior. Welcome. STATEMENTS OF CHARLES G. GROAT, DIRECTOR, U.S. GEOLOGICAL SURVEY; TED GARRISH, ACTING DIRECTOR, OFFICE OF CIVILIAN RADIOACTIVE WASTE MANAGEMENT, U.S. DEPARTMENT OF ENERGY; EARL E. DEVANEY, INSPECTOR GENERAL, U.S. DEPARTMENT OF INTERIOR; GREGORY H. FRIEDMAN, INSPECTOR GENERAL, U.S. DEPARTMENT OF ENERGY; JUDY TREICHEL, EXECUTIVE DIRECTOR, NEVADA NUCLEAR WASTE TASK FORCE; B. JOHN GARRICK, CHAIRMAN, U.S. NUCLEAR WASTE TECHNICAL REVIEW BOARD; JOSEPH EGAN, NEVADA ATTORNEY GENERAL'S OFFICE; BOB LOUX, EXECUTIVE DIRECTOR, NEVADA AGENCY FOR NUCLEAR PROJECTS; AND JOHN MITCHELL, PROJECT MANAGER, BECHTEL CORP. STATEMENT OF CHARLES G. GROAT Mr. Groat. Thank you, Mr. Chairman. Good morning to you and to members of the subcommittee, and thank you for the opportunity to speak with you on behalf of the U.S. Geological Survey on the Department of Energy's Yucca Mountain Project. On March 14, 2005, we learned from the Department of Energy that improprieties in studies and the quality assurance process were allegedly committed 6 years ago by USGS scientists working on the Yucca Mountain waste repository project. I referred the matter to the Department of Interior's inspector general for action. We take these charges very seriously, Mr. Chairman, and we will do everything we can to ensure that the scientific information the USGS provides the Nation meets the highest standards of accuracy and credibility. Throughout the entire history of the Yucca Mountain project, USGS scientists have been major participants in the earth science research that has been conducted on behalf of the Department of Energy. My written testimony provides the history of our involvement and has been submitted for the record. I will limit my comments to the present situation. E-mails that are the subject of the current investigation were sent between 1998 and 2000. And as you have mentioned, referred to an analysis and model reports concerning water infiltration and climate. I have seen these e-mails, and I agree with you that they raise serious concerns. Inasmuch as this matter is under investigation by the inspector general, we are unable to pursue our own assessment or discuss the matter until that investigation is complete. When these steps are concluded, we would be happy to provide a briefing or meet with members to discuss the situation further. The objectivity and credibility of our scientists and their work is of supreme importance to us, and has been throughout our 125 year history. Misrepresentation and falsification of data or of the documentation of scientific processes is contrary to the very essences of the scientific process and must be dealt with firmly. Once we determine the extent of these acts and their severity, we will take the appropriate personnel actions. The significance of what has happened for the Yucca Mountain waste repository project needs to be determined. This will require an open, objective review of the extent of the wrongful acts, their consequences for the specific projects they affected, and for the overall assessment of the suitability of Yucca Mountain for the storage of nuclear waste. Then we can deal with what needs to be done: redoing certain projects, additional scientific investigations, or other actions appropriate for this stage of the site approval process. Designing the objective review, as many of you have mentioned, is the next critical step and will require input from many parties. We are eager to begin this phase of the inquiry. Thank you, Mr. Chairman. [The prepared statement of Mr. Groat follows:] Mr. Porter. Thank you. We will now have Mr. Garrish, Acting Director, Department of Energy. STATEMENT OF TED GARRISH Mr. Garrish. Thank you, Mr. Chairman. I appreciate being here to tell you our side of this story. I am accompanied today by Joe Ziegler, our licensing manager from the Yucca Mountain project. The program has undergone considerable criticism today, but I would like to make a couple of points and then respond to your questions. First, any falsification is unacceptable and inexcusable, but that does not condemn the work of thousands of responsible scientists on this project. The reason that we are here today is because we brought this issue forward. As soon as we knew the facts, we came out forthrightly and freely. We notified congressional committees, the State of Nevada issued a press statement. However, our first call was to the Nuclear Regulatory Commission. This is consistent with our commitment to being responsible and informing the public. My point is, we found the problem, we identified it, and we will do what is required to rectify it. We initiated investigations on this specific issue but ultimately it will be the responsibility of the Nuclear Regulatory Commission to adjudicate this case and to decide whether or not we have met our burden of proof that the repository is safe. The NRC process lies before us. Once we file our license application for the next 3 to 4 years, every imaginable allegation is likely to come to light. These include such things as differences of professional opinion, mistakes and the like. I expect that we will adjudicate all of these points. Everything will be on trial--all of these e-mails, all of the calibrations, all of the conflicting scientific opinions. It will be up to the NRC to decide is the repository safe. We will undergo a rigorous multi-year proceeding with thorough NRC expert review and legal adjudication, with the opportunity for participation by the NRC staff, the State of Nevada and other interested parties. But that process has not started yet. When we discovered these e-mails, they were part of our pre-licensing activities, and these activities are still ongoing. The impact of this issue has yet to be determined. And yes, we are concerned about the integrity of the data. What was done is inexcusable. But let me tell you what we are doing about it. We are doing three things. First, we are requesting the DOE Inspector General to investigate the non- technical implications of what was done. The Department of Interior, as you have heard, has also requested a similar investigation by their IG. Second, we are reviewing the impact that this may have on the science involved and how it could affect the technical work. We have identified two analyses and model reports and how they are potentially affected. Third, we are conducting a review of the overall quality assurance and management culture. DOE will be the organization doing these last two actions. These steps will be done methodically and as expeditiously as possible. As we move into the transition of becoming a licensee, it is important to note NRC not only licenses the repository, but it also licenses the people that run it. And our people must have the qualifications and values that are essential to a nuclear safe culture. We believe that we have demonstrated these values by bringing this issue forward. Let me outline and explain the importance of these values to us. They are, first, openness. As I said, we are the ones that brought this issue forward. The issue arose while we were evaluating millions of documents and e-mails. The model reports in question have been on the Internet for years. They have been subject to the key technical issue agreements with the NRC. All of these e-mails are destined to be fully public and searchable on the LSN. Second, the second value of importance is self- identification. To let you know this is an important value for us to maintain. We found this problem ourselves and we encourage our employees to have a questioning attitude. Third is self-correction. We need not only self-identify problems, but we need to also correct them. Systematic quality assurance improvements have been undertaken over a number of years, and we are doing a formal review to see whether or not they are sufficient. Fourth, we need to promote a safety conscious work environment. This is an extremely important element of our culture. Everyone has the ability and obligation to raise issues without fear or retribution. Over the last 3 years, employees have raised over 400 concerns to our employee concerns program of differing professional opinions, internal audits and some directly to the NRC. We will followup on every one of these. Employees are encouraged to come forward, are not harassed or intimidated, and in our 2004 safety conscious work environment survey, 80 to 90 percent of our workers responded that they have confidence in a retaliation-free work place. Finally, we need commitment to data integrity. The e-mail suggests that one or more employees have deliberately circumvented our procedures. But they also feel that we have well defined standards for data integrity and a QA program that they were well aware of. We need to maintain this data integrity. These are the values that we are bringing to the nuclear culture and to this project. When we find one of these issues, which has been the subject of this hearing, they will be appropriately dealt with. So Mr. Chairman, that is what we are doing. So now our next step is to proceed and complete our license application and in doing so, I stand with the thousands of scientists associated with this project who are doing it right. It is truly unfortunate that the good work of so many scientists has been impugned by this conduct. I am accompanied here by Mr. Ziegler, and he and I are pleased to respond to your questions at the appropriate time. Thank you. [The prepared statement of Mr. Garrish follows:] Mr. Porter. Thank you, Mr. Garrish. Now I'll call on Mr. Earl Devaney, the Inspector General at the Department of Interior. Welcome. STATEMENT OF EARL E. DEVANEY Mr. Devaney. Mr. Chairman and members of the subcommittee, thank you for the opportunity to address the subcommittee this morning concerning the investigation being conducted by my office, Mr. Friedman's office, and the FBI into allegations of falsification of documents and records relating to the proposed Yucca Mountain project. Because this investigation is ongoing, I can't discuss any of the details here today. What I can do is talk briefly about the authorities of my office, the investigative process, and how the results of an investigation such as this might be put to use. As I'm sure you know, my office is a statutorily independent organization which, among other things, conducts investigations relating to alleged wrongdoing on the part of Department of Interior employees. The IG Act gives me the authority to obtain access to all employees and records of the Department. In my view, this independence and authority is particularly important when we conduct criminal investigations. Criminal investigators in my office have full Federal law enforcement authority. This includes the authority to carry weapons, make arrests, and refer potential criminal violations to the Department of Justice for prosecution. The majority of our investigations begin with criminal prosecution in mind. As a result, we typically work in close cooperation with the Department of Justice. In this case, we're working with the U.S. Attorney's office in Las Vegas. Our investigations arise from any number of sources: credible allegations by DOI employees, public citizens or anonymous sources, requests from Congress or from the Department itself. Regardless of the source, we conduct our investigations the same way--prudently, thoroughly, and completely. We always attempt to proceed as quickly as possible, but we will not compromise accuracy for speed. Although we are often pressured to do so, we will never rush an investigation to meet the specific needs of any source. Most of our high profile investigations involve issues that stir up strong emotions and opinions, and the Yucca Mountain project is no exception. The protections that my office enjoys under the IG Act gives us the luxury to proceed with an investigation having no preconceived notions and no preordained outcomes. The integrity of my office is at stake each time we conduct an investigation, and I fully expect that my investigators will always demonstrate the utmost professionalism, independence, and objectivity. I believe the content of our previously issued investigative reports reveals these very qualities. When appropriate, I will condemn the Department for wrongdoing. On the other hand, I will publicly exonerate the Department when the allegations prove unfounded. My office generally conducts investigations from the lowest level to the highest, starting with individuals who appear to be the least culpable and making our way to those who are most to blame. Our investigators travel throughout the country to interview witnesses, obtain documents, and gather physical evidence. When we are faced with a highly technical issue, we routinely seek the assistance of independent subject matter experts. Or we may partner with other law enforcement organizations, like in this case. We report the results of our investigations in any number of formats. If we are referring a case for criminal prosecution, we will present it to the U.S. Attorney's office in a formal report of investigation. This report will typically contain all witness interviews, evidentiary documents and investigative activity reports. If we are referring a matter to the Department for an administrative action, we will attempt to tailor our reports to address the conduct of individual employees so that we can provide the Department with the facts it needs to take disciplinary action. In preparing a report for release to the public, we will often write the report in a narrative form which excludes confidential personal privacy and privileged information. Whether investigation results in a prosecution or a conviction of a criminal defendant or a disciplinary action against the employees who engage in misconduct, I am most pleased when the results of one of our investigations also gives the Department insight on how to prevent the problem from happening again. I will conclude my remarks by giving you my assurance that all the investigators are working diligently to bring this investigation to closure. I will keep you updated on our progress and I will also provide you with the results of our investigation as soon as we are able to do so. Mr. Chairman and members of the subcommittee, this concludes my oral remarks. I will be pleased to answer any questions. [The prepared statement of Mr. Devaney follows:] Mr. Porter. Thank you, Mr. Devaney. Now we will hear from Mr. Gregory Friedman, the Inspector General at the Department of Energy. STATEMENT OF GREGORY H. FRIEDMAN Mr. Friedman. Mr. Chairman and members of the subcommittee, I am pleased to be here today to testify regarding allegations of misconduct involving documents associated with the U.S. Department of Energy's Yucca Mountain project. Disposal of the Nation's high-level nuclear waste and spent nuclear fuel is one of the most sensitive and complex challenges facing the U.S. Government. Under the Nuclear Waste Policy Act, as amended in 1987, the Yucca Mountain site in the State of Nevada is the only site in the United States to be evaluated for this purpose. The act established a formal, step by step methodology for making this evaluation. For the State of Nevada and all other interested parties, the process to evaluate Yucca Mountain as the potential repository has enormous implications. Paramount among concerns expressed is that the consideration and evaluation be objective and that it be based on sound scientific analysis. Public confidence in the evaluation and licensing process must also be assured. On March 14, 2005, we became aware of allegations concerning possible falsification of records relating to aspects of the scientific assessment of Yucca Mountain. We assembled a team of highly qualified special agents and commenced a criminal investigation to gather the relevant facts. As Mr. Devaney mentioned, we have been working jointly with his office, the Department of Interior's Office of Inspector General, and the Federal Bureau of Investigation. Since this is a criminal case, we are in regular consultation with the U.S. attorney's office in Nevada. Our plan is to conduct comprehensive interviews of Federal and contractor personnel and analyze the extensive documentary records surrounding this matter. We have dedicated the resources necessary to ensure an independent, objective, and thorough investigation. We will follow the facts wherever they may lead. Because of the nature of the allegations and the importance of the Yucca Mountain project, we will proceed as expeditiously as possible. Mr. Chairman and members of the subcommittee, this concludes my statement. I will be pleased to answer any questions that you may have. [The prepared statement of Mr. Friedman follows:] Mr. Porter. Thank you, Mr. Friedman. Now we will hear from Mr. John Garrick, chairman of the Nuclear Waste Technical Review Board. STATEMENT OF B. JOHN GARRICK Mr. Garrick. Good morning, Mr. Chairman and members of the subcommittee. I am John Garrick, chairman of the Nuclear Waste Technical Review Board. All 11 members of the Board are appointed by the President and serve on a part-time basis. In my case, I'm a private consultant specializing in the application of the risk sciences to complex technological systems in the space, defense, chemical, marine and nuclear fields. As you know, Mr. Chairman, the board was created by Congress in 1987 to perform an ongoing, independent, technical and scientific evaluation of the DOE's implementation of the nuclear Waste Policy Act. I am pleased to represent the board at this hearing. With your permission, Mr. Chairman, I will now briefly summarize my comments and ask that the full text of my written statement be entered into the hearing record. According to the letter inviting the board to participate, today's hearing has two purposes: to address whether Federal employees falsified documents related to work at the Yucca Mountain; and to examine whether sound science exists for the proposed Yucca Mountain project. Mr. Chairman, it would be inappropriate for the board to draw any conclusions at this time about the impact on the DOE's technical work at Yucca Mountain from the group of redacted e- mails that were posted on the subcommittee's web site last Friday. As disturbing as it is to see such loosely framed discussions among scientists, the answers to important questions that might be raised by or about the e-mails or related documents should await the completion of comprehensive investigations already underway at the Departments of Energy and Interior. The board will follow the progress of these investigations and when they are concluded, the board will evaluate the significance of the results to the DOE's technical and scientific work. We will then report our findings to Congress and the Secretary of Energy. In the meantime, the board will continue its ongoing peer review of DOE activities. The Nuclear Regulatory Commission is the appropriate agency to address questions about the effects on the regulatory process of possible infractions of QA procedures. Mr. Chairman, let me close by saying that the board looks forward to continuing its congressionally established role of unbiased and independent technical and scientific information to Congress and the Secretary. As I mentioned earlier, we will be able to comment better on the significance of the activities that are the topic of this hearing when the full results of the DOE and Interior investigations are known. Thank you for the opportunity to present the board's views. I will be happy to respond to questions. [The prepared statement of Mr. Garrick follows:] Mr. Porter. Thank you, Mr. Garrick. We would like to hear now from Judy Treichel, executive director of the Nevada Nuclear Waste Task Force. Welcome. STATEMENT OF JUDY TREICHEL Ms. Treichel. Thank you very much for the invitation to be here. My name is Judy Treichel, I am the executive director of the Nevada Nuclear Waste Task Force. The task force is a public advocacy organization focused on the Yucca Mountain and nuclear waste issues. We attend and bring a public voice to technical meetings, and we provide information to the public. The falsification of data by the Department of Energy or its contractors did not come as a surprise to us. The seeds for this situation were sown nearly 20 years ago. I have submitted my written statement which explains the long and sordid story that Nevada has had with this and previous Government atomic programs. Since it began, the Yucca Mountain project has only survived because it has never been held accountable. The DOE began their scientific studies promising to follow all of the rules and passed the tests necessary to show that Yucca Mountain was a safe site for the mostly high radioactive waste. None of the rules could be met, so they were all changed, and they are still being changed. Now we know that when science was analyzed, since you can't change the laws of physics, the data was simply falsified. The public, including Nevadans, understands the need to safely manage and ultimately permanently isolate nuclear waste. We have fought the Yucca Mountain project for over 20 years. But not because we just wanted somebody else to have the problem. This is not a case of not in my backyard, or NIMBY. We are not trying to simply have the Department of Energy stick a pin in another part of the U.S. map and try to make that work. This is a futile project. Yucca Mountain cannot isolate waste. The only reason to create and carry out a nuclear waste disposal program is to improve the protection of public health and safety. How can any thinking person believe that people's communities and the environment are safer by handling the waste multiple times, shipping it by highway, rail and barge through nearly every State in the United States, and then dump it in a repository that was only able to built by changing the rules and falsifying the data? This is a program that's been driven to meet deadlines and create the illusion that Yucca Mountain is on track. Now we know that in order to paint that picture, scientific credibility was sacrificed, as were ethic and accountability. The DOE's myopic goal is to obtain a license from the Nuclear Regulatory Commission and to get Yucca Mountain built and receiving waste. The first step in the licensing process is to open up the record. But huge numbers of those records, we are now finding, are being marked privileged. Therefore, one wonders how many will be found to have been falsified. Now, there must be an end to congressional fixes and tolerance for dishonesty that has propped up this program for more than 20 years. The political divisiveness surrounding this program is not due to parochialism or selfishness. It is because the public recognizes that Yucca Mountain is a failed and dangerous project and it must be ended once and for all. Thank you very much. [The prepared statement of Ms. Treichel follows:] Mr. Porter. Thank you for your testimony. Next we will have Mr. Joe Egan, attorney from the Nevada Office of the Attorney General. STATEMENT OF JOSEPH EGAN Mr. Egan. Thank you, Mr. Chairman and members of the subcommittee. My name is Joe Egan, I'm a nuclear lawyer and nuclear engineer. My firm, Egan, Fitzpatrick, Malsch and Cyncar was hired by the Attorney General in 2001 to represent Nevada's lead outside counsel on all the nuclear litigation taking place now and to be taking place at the Nuclear Regulatory Commission. With the help of Bob Loux, the director of the Agency for Nuclear Projects, we have assembled a world class team of scientific experts to assist us with the review of the documents at Yucca, and we have put together a world class team of attorneys. I have five brief points I would like to make to supplement what my esteemed colleagues from Nevada have already testified to. I would also like to offer my extended testimony and prepared statement into the record, Mr. Chairman. The first is that the issue of falsification at Yucca Mountain is nothing new to us. The most recent manifestation prior to these e-mails occurred only this January, when DOE disclosed that its workers at Yucca Mountain that were drilling the tunnels over the years had been unlawfully over-exposed to toxic silica dust without respiratory protection. We have industrial hygienists who have provided testimony under oath that documents there were falsified pertaining to the toxicity of the air in the tunnels, that they were falsified on nearly a daily basis. So falsification is not a new thing and we don't think it's limited to one USGS enclave. The second thing is that this was not a voluntary disclosure by DOE. In April of last year, the inspector general of DOE disclosed in a public report to Senator Reid and Senator Ensign that there were 4 million archival e-mails that DOE was not planning to produce on the public docket available for licensing. We immediately went to the Licensing Board of Nuclear Regulatory Commissions and petitioned to have DOE's document certification struck on grounds that they had done an incomplete certification and one that was not conducted in good faith. The Licensing Board agreed with us and struck the certification on three independent grounds, and ordered DOE to have human beings and not machines go through these archival e- mails and produce them on the electronic docket, which the DOE was planning to do in a couple of months. So DOE, having now been put in a position of having to disclose these e-mails, was faced with the decision of, do they let Nevada disclose or do they disclose. I think they did the honorable thing. The third is that DOE is now apparently planning to withhold tens of thousands of additional documents from this electronic data base that we believe are vital to assessing the safety of the repository. They are doing this on grounds of privilege that seem to be ever-broadening as we go; privileges such as the delivered and processed privilege or the work product privilege applicable to attorneys. Our view is that this is a public process, public project involving the safety of Nevadans and other Americans, and there should be nothing here to hide. We are very troubled by the extensive claims of privilege that DOE is planning to make. Just to give you one example, we have asked in a formal request sent by the Governor to DOE that they produce a copy to us of the draft license application. We have yet to receive it. That request was turned down to the Governor. Finally, the last point I'd like to make is that quality assurance and sound science are inextricably intertwined. There is no such thing as sound science without sound quality assurance. So the notion that DOE is advocating in testimony here today that we shouldn't be troubled because they can go to the NRC and demonstrate that the science is sound, that's only true if you believe that science can be separated from quality assurance. And as any professional in our field can tell you, it just cannot. Thank you very much, Mr. Chairman. [The prepared statement of Mr. Egan follows:] Mr. Porter. Thank you, Mr. Egan. We will now hear from Mr. Bob Loux, executive director of the Nevada Agency for Nuclear Projects. STATEMENT OF ROBERT LOUX Mr. Loux. Good morning, Mr. Chairman. Thank you for the hearing and thank you for your patience. I am Bob Loux, executive director of the Nevada Agency for Nuclear Projects. The agency was established by the legislature in 1985 to carry out oversight duties under the act. I have been the director since then. Mr. Chairman, it's difficult to imagine a situation more damaging than Secretary Bodman's recent disclosure of scientific information may have been fabricated to support the DOE's determination that Yucca Mountain is suitable for development as the Nation's high-level nuclear waste depository site. It is imperative that steps be taken immediately to answer critical questions before we have any further advances in this suspect program. But first we, the American people, especially the people in Nevada, must have the opportunity to examine all of the documents that led Secretary Bodman and the USGS to announce its crucial falsification regarding water infiltration and future climate at Yucca Mountain. These parameters are at the very core of any safety determination that can be made about the Yucca Mountain repository. Through the history---- Ms. Berkley. Could you go a little slower, please, so we could hear every word you are saying? Mr. Loux. My apologies. Given the history of the repository program for more than 20 years, and our direct experience with it over that entire time, without all the documents at hand we have no basis for any assumptions of the credibility and integrity of the outcome of any internal investigation of this program. Here we frequently investigate this with almost no results. The question that must be answered include: What other documents may be inspected by these tainted sources? Are there similar documentations of fraud in the balance of the DOE's purported science program at Yucca Mountain? How does this fraudulent activity affect the analysis that led the Secretary of Energy, the President and the Congress to find Yucca Mountain suitable and safe for repository development? The looming question that must be at the forefront of any inquiry: How pervasive has the falsification and manipulation of information been in the Department of Energy's relentless zeal to meet mission expectation? Since the current example seems to be discovering something through a random check, further investigation by truly independent commission of program data and documentation, once integrity has been appropriately protected, would be warranted. Mr. Chairman, I also want to indicate that this is not an isolated incident. We heard just yesterday in a similar situation that the press has reported that DOE has attempting to steal water, allegedly steal water from the State of Nevada in direct violation of a Federal district court order. We don't know the bottom of this yet, it was just revealed to us yesterday. I'm certain that the Nevada officials will be investigating, including the water engineer, as well as the Attorney General. But these are hardly isolated incidents going on in the entire program. I would like to also call the Department of Energy to release all of its employee concerns program documentation so that we could actually look at what the employees' concerns really are, and what other aspects of the program they are calling into question. It is time for a full, independent review of the whole policy, and this is not the first time Congress has seen the program off-track. But now more than ever, careful scrutiny of the track itself is in order. Mr. Chairman, the e-mails provide us an interesting observation. They certainly provide an insight into the Department of Energy's information program that they try to pass off as good science. It also reveals a climate, it appears, of trying to find the right answer and not scientific truth. DOE management set unreasonable politically motivated deadlines and goals, created pressure to get the right answer, and they are also responsible for any outcome of this. Mr. Chairman, this issue is far more serious than what has been revealed today. We believe that much of the information is yet to be discovered. We call on DOE to release the entire full data base for us to review, not only those things that are currently on the LSN, but all of the 4 million to 5 million e- mails that are out there for us to take a look at as well. I hope that your subcommittee can be instrumental in helping us to receive that information. With that, I thank you and look forward to questions. [The prepared statement of Mr. Loux follows:] Mr. Porter. Thank you, Mr. Loux. Now I would like to call on Mr. John Mitchell, project manager with Bechtel. STATEMENT OF JOHN MITCHELL Mr. Mitchell. Mr. Chairman, members of the subcommittee and members of the Nevada Delegation, my name is John Mitchell, and I am the president and general manager of Bechtel SAIC. In 2001, we had the management and operating contract for the Yucca Mountain project for the DOE. Our contract scope included maintenance and operation of the site itself, preparation of the license application and planning for the design and execution of the repository. Since our full testimony has already been accepted for your record, I will paraphrase my summary. The work that has been performed over the past 20 years has been performed by many individuals and many organizations. The willful actions of the individuals in question is an insult to the integrity of those who created this scientific understanding and applied it to the specific use of the definition and description of the geologic repository and rigorously adhered to the highest standards of quality. The license application that will be provided would not only provide the scientific base but will meet all the quality standards demanded by the NRC. In the interest of time, I will stop at that point and await your questions. [The prepared statement of Mr. Mitchell follows:] Mr. Porter. Thank you, Mr. Mitchell. We appreciate that. I'd like to note for the record that there will be numerous questions that we will not be able to ask today because of our time constraints. But we will ask that once these questions are presented to each of you, following the meeting, we would like to have them returned to the committee as soon as possible, no later than Monday of next week if at all possible. I would like to begin with a few questions myself, I think, for Mr. Garrish. Are there any of the employees in question who are still working at Yucca Mountain? Mr. Garrish. Are any of the employees with these e-mails, is that what you're asking? Mr. Porter. That's correct. Mr. Garrish. The individuals, I think there are principally 10 individuals that are involved in those initial e-mails, and I'm not sure if any of those are fully--yes, there are some, but not the ones, I think, that are subject to this inquiry. They went off the project, I think, in the year 2000. So in other words, I think there are two individuals that most of these e-mails were involving. They left the project in the year 2000. There are other USGS personnel still on the project, if that's your question. Mr. Porter. My question is, if you have any of those individuals that were employed or are currently employed or are on leave at this point because of any of the allegations. Mr. Garrish. That's really a subject for USGS to respond to. Mr. Porter. Thank you. And absolutely, that will be my next question. Mr. Groat. Mr. Groat. Mr. Garrish is correct, Mr. Chairman, in that the individuals involved in this are no longer working on the Yucca Mountain project. In answer to your question, no one has current been suspended or terminated as a result of the ongoing investigation. Mr. Porter. Is that an outrage? We have documents that state there is falsification. I pull up your Web site and I see that they are still employed, a number of the individuals that have admitted, as have internal documents admitted, from the Department of Energy, that in fact there are falsified documents. I can't believe that these folks are still on the payroll. Mr. Groat. Mr. Chairman, I can assure you that the appropriate action will be taken, all the way from administrative actions to dismissal. Our position has been that because the investigation is ongoing, the extent and number of individuals that have been involved, their involvement in particular parts of this needs to be ascertained by the Inspector General and by ourselves, so that we do take the appropriate action, and in fact, we take action on all those that were involved, both laterally and vertically in the management chain, which may or may not be disclosed through the e-mails. So we are not putting off taking action because we don't plan to take it, we definitely do. We want to be sure we have the best case and best information so we take appropriate action. Mr. Porter. So what you're saying today is, these same individuals that have admitted to falsifying documents, they are currently still on, or are working on other projects that could impact major projects around the country? Mr. Groat. They are working on other projects, yes, sir. Mr. Porter. Have you met with these individuals? Mr. Groat. I have not. Mr. Porter. Has anyone met with these individuals? Mr. Groat. Only their immediate supervisors, Mr. Chairman. Mr. Porter. If I may interrupt, how seriously do you take these allegations? Mr. Groat. We take them very seriously. We are---- Mr. Porter. Obviously you don't. Mr. Groat. I don't understand that point, Mr. Chairman. We, as I said in my testimony, we initially, when we heard of these allegations, both asked our Inspector General to participate and then began our own internal investigation, so that we could determine for ourselves the extent of what was done and the impact of what was done. We were advised by the Inspector General that our own internal management review, both of these individuals and the import of what they had done, needed to wait until the Inspector General had finished his criminal investigation. So we do not have our own internally derived information available to us upon which to base the actions that you mentioned. I assure you that when we do have that information, we will take the appropriate action. Mr. Porter. Again, I'm not only appalled about the e-mails, but the fact that you have this cavalier attitude that, well, some other agency is going to take care of this problem. This is a very, very serious and in fact, internal documents have stated from the Department of Energy that in fact these are falsified documents. Do you feel confident that you are turning the full responsibility to some other agency, that you don't feel you have responsibility for these employees? Mr. Groat. No, I feel we do, Mr. Chairman, have responsibility. Our Inspector General is currently manifesting responsibility that the Department of Interior and U.S. Geological Survey has, to understand exactly what was done and what the impact of what has done, and our own Bureau's, USGS responsibly, will depend on our own management review of their actions and the impact of their actions. Once we determine the outcome of both of those investigations, we will take appropriate action. We do take this very seriously, and can assure Mr. Gibbons and others that this is not a trivial matter. Mr. Porter. If I may interrupt, please, I of course don't have in front of me your policy and personnel manual as far as falsification, unethical behavior. I would assume that somewhere in your documents and your personnel manuals you have a process in place to handle this type of activity. Is laying people off or reducing their salary or putting them on leave a part of your documents when it comes to personnel and unethical falsification of documents? Mr. Groat. Yes, sir, it is. Mr. Porter. It is currently a part of that? And have you followed the procedures within your own personnel manuals of these individuals? Mr. Groat. We have not followed the procedures based on our own investigation, because we have not investigated it ourselves. We are waiting for the Inspector General. Mr. Porter. Mr. Groat, I think you summarized the whole problem this morning, in that you have not investigated this yourself. Of course, we are going to be asking for additional information, and one of those items is going to be the names of the supervisors. We will get that to you. I would also like to ask you another question. As I mentioned numerous times, in the internal documents from the Department of Energy, they state that they feel that this could create substantial, based on these e-mails, that it could create substantial vulnerability to the project. Do you think that these e-mails could create a substantial vulnerability to this project? Mr. Groat. We are deeply concerned by the e-mails. We are deeply concerned about the integrity of the scientific investigations toward the Yucca Mountain project. We are very much interested and anxious to have a thorough, objective review of what these actions mean in terms of the projects our scientists have been working on, the results of those projects, and the impact those results have on the Yucca Mountain project. If they were seriously affected, both infiltration and climate effects on the Yucca Mountain repository are extremely significant. If they are materially affected by our actions, then they could have a significant impact on the total project. We don't know the answer to that yet. Mr. Porter. And you haven't asked the questions yet, because you haven't talked to these people? Mr. Groat. We have not been given the opportunity to do that, sir. We have been asked not to participate or conduct any internal investigation of those consequences until the---- Mr. Porter. So you have been asked not to use your own personnel manuals when it comes to this particular case? Who were you asked by to not follow your own procedures? Mr. Groat. We were not asked not to take administrative actions. That was our own position. We were asked not to conduct our own internal review of either the actions the employees took or the implications for the project until such time as the Inspector General has concluded his investigation. Mr. Porter. Mr. Garrish, I would like to ask you the same question. Based on your internal documents, it says that it will create, these e-mails could create substantial vulnerability to the project. Do you believe that's the case? Mr. Garrish. Well, that is going to be investigated as to phase two, that I mentioned in my oral testimony. One of the elements that we are going to look at is the extent to which the science has been impacted on this. If I could, I would like to have Mr. Ziegler, our licensing manager, respond to that and explain to the committee exactly what is going to be undertaken in that review. Mr. Ziegler. Yes, the vulnerability is a vulnerability that exists, and how the technical information was created and is used in the modeling and safety analysis for the repository. What we are focusing on right now concurrent with the Inspector General's reviews is the two-part review that looked at the direct implications in these e-mails of the statement of the apparent actions by these individuals and how that would directly affect the safety analysis of the repository and the specific implications of these actions on the records and how they might actually affect scientific and technical information. Once that is determined, an appropriate action would be taken to make sure that only fully quality assurance information is used in the safety analysis. Beyond that, however, we are not going to limit our reviews to just what these individuals apparently have done. We are going to look further than that to re-look at what we have already done on models data and software going backward in time, to make sure that all the information we use in our safety analysis is fully valid. Mr. Porter. We're going to move on to my colleague on the left to followup on this. So would you support what we are hearing from the USGS, that they shouldn't follow their own personnel procedures at this time? Mr. Garrish. Maybe I can respond to that. I just want to maybe put this in the context of a nuclear culture. If this were a nuclear plant, and there were employees that had falsified data that related to a quality protocol, they would not be employed very long in that culture. They would be moved from those jobs, and that would be the kind of culture that we would attempt to foster in the future on this program. The nuclear culture is very strict on quality assurance, and those are the sorts of values we want to bring to this project. It will be required, under the regulations by the Nuclear Regulatory Commission, because as I said, they not only worry about the repository, they worry about the people that run the repository and they want to make sure that they have the right values and culture to go forward and operate this. Mr. Porter. Thank you, Mr. Garrish. Congresswoman Berkley. Ms. Berkley. Thank you, Mr. Chairman. Mr. Egan, can you explain to me very briefly what the courts ruled about the radiation standards that the DOE was using for this project? Mr. Egan. Yes, I can. Last summer the Court of Appeals ruled that DOE had been using a standard promulgated by the EPA that had unabashedly rejected the findings and recommendations of the National Academy of Sciences concerning the duration of the regulatory compliance period for Yucca Mountain. And what the Academy had recommended is that Yucca Mountain had to be regulated through the duration of the peak dose or the peak hazard, whenever that was. The EPA arbitrarily limited that time period to 10,000 years. That was the basis upon which DOE did its performance analysis for Yucca Mountain. Ms. Berkley. And the court's rule, or the National Academy of Sciences finding was that the radiation reached its peak levels at 300,000 years? Mr. Egan. No, Congresswoman, they didn't make any finding that way. What they said is, based on DOE's models, they saw a peak dose occurring at 300,000 years. But that was based on a waste container that would last for an exceptionally long period of time. If the waste containers fail at Yucca Mountain, the peak hazard could occur at 2,000 years. Ms. Berkley. Does any such container currently exist that could store the nuclear waste safely for 300,000 years? Mr. Egan. No, ma'am. Ms. Berkley. We have information that the DOE has improperly held at least 6 million documents, including roughly 4 million e-mails, that it has misleadingly called archival e- mails. Can you tell me again and reiterate your concerns about the DOE being forthcoming with information that it should be disclosing to the public, since Mr. Garrish spoke glowingly of the openness of the DOE in this process? Mr. Egan. Well, Congresswoman, based on the Inspector General's finding at DOE, we had asked to see all of these so- called archival e-mails posted on the licensing support network. DOE took the position in litigation before the licensing board that they were not relevant. The standard is relevant documentary material. DOE claimed they were not relevant. They claimed they were not relevant because they were too old. In cross-examination by the hearing officers, it was discovered that these e-mails go all the way up to the year 2003 and covered people like Leif Barrett, who used to run the programs, his e-mails were among that package. So the licensing board ordered that they all be produced, and it was that order that---- Ms. Berkley. Have they been produced? Mr. Egan. No, because they wouldn't be produced until the time at which DOE attempts to recertify its documents. Ms. Berkley. I see. We also understand that the DOE tried to steal water for the Yucca Mountain project. There are allegations, obviously, that they didn't provide the information for their employees that are silicosis related. Could you comment on that? Mr. Egan. Well, our view is that DOE will have a very difficult time proving one requirement of the Atomic Energy Act that all NRC licensees must demonstrate character and fitness required to be a licensee. We think that there is a pattern of mismanagement and a pattern of malpractice at Yucca Mountain, principally extending from 1996 onward, that really suggests DOE can't meet that test. The silica document falsification is one of them. The water theft, if indeed it occurred, would be even a more serious infraction, because it would violate a State engineer's ruling and a court order. And we will be looking into that. The Attorney General has the full power of Nevada law in that case as well. Ms. Berkley. What has been Nevada's role in discovering the falsified materials submitted to the licensing support network? Mr. Egan. It was our petition to strike the certification on grounds that these e-mails were not there that precipitated the board's order that they be produced. Ms. Berkley. So the DOE didn't voluntarily come forth with this information? Mr. Egan. Well, that leads to a mystery, Congresswoman. Because DOE says that it was only in their review of these e- mails that they discovered this problem and that only occurred in December 2004. But as you can see by exhibits 8 and 11, attached to my prepared statement, we have documents that we found ourselves, e-mails from DOE's own quality assurance inspectors in the year 2000 that point to various document falsification and extraordinary inaccuracies and errors in quality assurance. Ms. Berkley. Thank you, Mr. Egan. Mr. Loux, listening to the DOE's testimony today, one would believe that there are a few bad apples that wrote these, a few bad employees that wrote these e-mails and they are really not demonstrative of the thousands of employees that work for the Department of Energy on this project. It's my understanding that there has been a pattern here, and this is just the tip of the iceberg. What has been your experience with this? Mr. Loux. Well, I guess my assumption is that No. 1, that these fellows didn't do this on their own, that these people didn't voluntarily try to create these, that there was pressure from management at the top to actually produce the right answer. I think some of the e-mails are very explicit about the pressure from management to find the ``right answer.'' Moreover, what about the USGS employees that saw, knew and watched what was going on and actually said nothing over the years to management about a problem, if it is just one or two isolated individuals? Frankly, in the last several years, our office has received hundreds of phone calls of various employees at Yucca Mountain wanting to voice various concerns about what's going on in the program, their concerns about the very issues we're talking about today in terms of fabrication of data. Moreover, we have learned that some of the people that are making allegations about the theft of water, that they were directed by management, in this case Bechtel, to actually construct devices that would bypass the meter that had been placed to monitor how much water was available to them under the court order. So far from being an isolated incident, we see this as endemic in the entire project. Again, if in fact DOE is to be believed about forthrightness, then we would like to see what the Governor has been asking for, the draft license application, the current TSPA and related documents. We would also like to see the employees' concerns program, albeit with names deleted, so we can actually see the extent of what's being reported inside DOE by employees having concerns with the program. Ms. Berkley. Thank you, Mr. Loux. Mr. Groat, I think what the chairman was getting at is that you have employees, we know there were at least 10 employees that wrote those e-mails. According to what you were telling us, most of them are no longer with the project. But the fact is that they are still under our employ in some project or another. Now, it would occur to me if they were so bad, such blatantly, wantonly bad employees on the Yucca Mountain project and that they were falsifying scientific documentation on this project, what would ever lead you to believe that they would behave any differently on another project? That is why you need to speak with them and you need to relieve them of their responsibilities. If they are willing to do this with a project that is so sensitive as Yucca Mountain, what would be in your mind, what would you think for a minute, they wouldn't do this someplace else? Mr. Groat. Congresswoman, referring to Mr. Garrish's comment about 10 people being involved, on the e-mail list there were only two that were principally involved in the communications. Others received a copy. Ms. Berkley. Have you spoken to those two? Mr. Groat. No, ma'am, we have not been able to speak to those yet. Ms. Berkley. Don't you think it is in the best interest of the people of this country that whatever project they are working on now, perhaps they are fudging the same scientific types of documentation that they have done according to their e-mails for Yucca Mountain? Why would we want those people in our employ? I would not want them in my congressional office. Mr. Groat. If we discover that their actions were of such severity or involvement was so deep that they understood a situation this critical and did not react properly, then they will be---- Ms. Berkley. And how will you find that out if you're not speaking to them? Mr. Groat. Well, we're not able to speak to them, as I mentioned earlier, we're not able to conduct our own internal investigation until such time as the Inspector General frees us to do that. We will do that, I can assure you, Congresswoman. Ms. Berkley. And when will that take place? Do we have a timetable? Six months, a year, 10 years from now? Will I still be in Congress when this takes place? Will you still be employed? Mr. Groat. We certainly hope it takes place very soon. We hope sooner than later, Congresswoman, and we will depend on the Inspector General's decision as to what point it is appropriate for us to take those actions. Ms. Berkley. There is another concern I have. Even though those employees are no longer working for the Yucca Mountain project, their data, their information, their falsified scientific findings are still part of the general scientific findings of the Yucca Mountain project. So their successors are operating with their information that they left behind. Doesn't that somewhat disturb you? Mr. Groat. It's not clear from the e-mails, and that's all we have to go on, that there was any falsification of scientific data. Ms. Berkley. There's e-mails that say that they made up the dates, that they made up the information, that they weren't, that quality assurance was a damned pain in the neck. Mr. Groat. The parts that they have alleged that they made up related to parts of the quality assurance program. I'm not minimizing the significance of that, it is significant. So I can't answer your question about scientific data themselves and their continued involvement in the program until we determine, which we have not yet, if those data were significantly affected and to the extent that impacts the program, we don't know what data to pull out and what work needs to be redone. We are as a scientific organization very anxious to understand that, so we can take the appropriate action. Ms. Berkley. Why would we not put a halt to the Yucca Mountain project instead of continuing on what may be very, very faulty science? I mean, we are just spending more time and more taxpayers' money on a project that may be some compromised scientifically that it is unredeemable. Mr. Groat. I think that judgment as to whether it is compromised scientifically to that point is beyond our scope. That's a judgment that DOE has to make. Ms. Berkley. All right. Mr. Garrish, I'll be in touch. Mr. Porter. Congressman Gibbons. Mr. Gibbons. Thank you very much, Mr. Chairman. And to our witnesses here on both panels, thank you very much for taking the time out of your busy days to be here to help us better understand this very troubling issue. I hope to be very respectful to each of you for your time as well as your presence and your position that you hold within your respective entities. I did want to say to Mr. Groat and Mr. Garrish that this is not a condemnation, nor is it ever intended to be a condemnation of all the good, hard-working people, both at the USGS and the Department of Energy. What it is is a scathing rebuke of a few scientists and a culture of management within the USGS and the Department of Energy which has gone forward from day 1 with the idea that you could pound a square peg into a round hole at any cost. We are seeing that today. The e-mails that we have before us, gentlemen, are not isolated incidents, but show what I feel is pressure from above to get a product out, let me quote. In one of the e-mails dated on, I believe it is December 17, 1998, it says, ``We only win if we get this final product out,'' meaning Yucca Mountain project. And you look at the response to that, and this is probably from 1 of these 10 scientists that are here, we're talking about today. On December 18, 1998, it's responded, it says, ``YMP,'' Yucca Mountain Project. Presumably, in my view, when I read YMP, that's the management of Yucca Mountain. ``YMP is looking for the fall guys.'' Obviously they felt that pressure. They knew there was something going on. They knew you were still trying to pound that square peg in the round hole. The memo goes on to further state, ``And we are high on the list.'' That's not the errant scientist giving bad data. That stems from a cultural problem of management. So far, what I've heard from you today is that you're only looking at the errant scientist, not the management philosophy and the culture within the agency. We need to broaden our minds and go a little bit further than just looking at 10 little people and finding the falls guys that you want to find today. So this is not a condemnation of every worker. But it is a scathing rebuke of those scientists and the management culture within your two organizations. Mr. Friedman, let me jump over to you real quick and ask a question. Because as we talked about earlier, what's your estimation of how long the IG investigation is going to take? And also tell me why in your answer. Why it is that you're doing a non-technical investigation and where do we go to get a technical review, a technical investigation of this? And is your investigation, the non-technical side, doing fraud from mismanagement, fraud from misappropriation? Because as I see it, when we look through some of these memos here, people are talking about dollars. It says in that same memo on December 17, 1998, the bottom line is forget about the money. Obviously, somebody is concerned about money going some place there. So answer my question if you could, Mr. Friedman. I didn't structure it very well, but I think you get the intent. Mr. Friedman. I think there are three parts to your question, and if I don't answer them all, please refresh my memory. No. 1, what is the timeframe. As I sit here today, we have been involved in this, Mr. Gibbons, for about 2 weeks. It was brought to our attention on March 14th. We are faced with interviews of numerous individuals, both DOE individuals, contractor individuals, USGS individuals and people who have left the site over the years. After all, the most offensive memos that have been published were written in 1998 and 1999. So we face, in addition, we face the task of reviewing literally thousands of documents, thousands of e-mails and thousands of other documents. So it would be almost irresponsible of me to try to sit here today and try to give you a timeframe. What I can assure you of is, we are committed, we have placed the people on the task to get this done as expeditiously as we possibly can in a thorough and objective way. We are working closely with Mr. Devaney and with the FBI and with the U.S. Attorney's Office to make sure that happens. Help me out. Mr. Gibbons. The other two were whether it was going to undertake fraud, mismanagement---- Mr. Friedman. Yes. The answer is, this is a criminal investigation. We will follow the facts where they take us. And the financial aspect certainly will be part of our investigation. Help me out one more time. Mr. Gibbons. Well, the following part would be the technical side of the study versus the non-technical. Mr. Friedman. Right. We are initiating this as a criminal investigation, looking at primarily questions of false statements made by individuals up and down the line, both vertically and horizontally in the management structure as well. That's the floor of our review. It may expand as this thing evolves. So I would say, we'll have to wait and see where this takes us. Mr. Gibbons. Mr. Chairman, may I engage in just one more line of questioning? I know my time is up, but I do want to follow on with this line of questioning just for one brief moment. I want to go back to Mr. Groat and to Mr. Garrish over here with DOE. If you are not taking any action against these individuals, as what I heard and as you just now acknowledged, that is the case, are you still moving forward with the project? Mr. Groat. Mr. Chairman, as mentioned earlier, or Mr. Gibbons, these employees are no longer involved, so they themselves are not moving forward with the project. We do have other USGS scientists who are still involved with the project. Mr. Gibbons. And I presume, Mr. Garrish, that's the same for DOE? Mr. Garrish. Well, we are proceeding to put the license application together currently. We are doing this broader review, we're trying to see these USGS scientists, these particular individuals, we are going to pull their work, we are going to do an evaluation of everything that they touched. We are going to evaluate what they did. Now, that's not going to be the end of it. But once we get our evaluation in, we are also going to look at our QA culture across the entire operation, across the entire project. Mr. Gibbons. If I may interrupt, because I think it's important, what we're doing here. You felt it was so compelling that you not talk to, not intervene in the status of these individuals until the Inspector General has completed his task. But yet, you've already formulated an opinion in your own mind that it's irrelevant what they did because you're going forward with the project. How do you balance the two out? Mr. Garrish. I didn't say it was irrelevant. We are going to evaluate it. But we're---- Mr. Gibbons. If it's not irrelevant, then you should shut down the project until you have the evaluation done and the science completed until you know that you can, if you're building a bridge, that the footings on either side or sound. It doesn't matter how well you build the structure if the footing isn't sound. Mr. Garrish. I understand your position, Congressman. Mr. Gibbons. I think you get where we're going. Mr. Garrish. I understand. Mr. Gibbons. And I understand your answer is you're still going to go forward. I would have expected that from you. We will have, hopefully, another round of questions, Mr. Chairman. Mr. Porter. Thank you, Congressman. Mr. Mitchell, again, thank you for being here today. Is Bechtel aware of any additional falsified documents, and when and if, when were you made aware of these particular documents that are in question today? Mr. Mitchell. I'm not aware of any others, of course. I personally became aware on either March 9th or 10th, a Thursday or Friday of the week just immediately before the announcement. Mr. Porter. Have you asked any internal, or any of your employees as to when your company discovered the falsified documents and when they were brought to light to your staff? Mr. Mitchell. Yes. At that time I was also aware that the documents originally had surfaced as early as December, and that as a result, how that was carried out. They had not been forwarded to management until a later time. I could discuss that if you would like. Mr. Porter. So you're telling me that someone in Bechtel was aware of this in December? Mr. Mitchell. Yes. Mr. Porter. Would you please explain? Mr. Mitchell. Certainly. The way the documents came to light, as part of this process of reviewing the various e- mails, several thousand e-mails we're talking about, we have people going through a systematic review of all those e-mails, people in that process identified these e-mails as being in question, because of not only what they said, but how they were marked. Our instructions to them were to bring them forward to legal counsel, that whole process involves making legal matters relevant, that sort of thing. When those matters were brought forward, they were discussed with legal counsel. Unfortunately, the way that conversation went, it was less clear than it might have been as to what actions should be immediately taken. No action was immediately taking until some time later. Mr. Porter. So if I understand correctly, your company, Bechtel was aware in December but prior to March 9th, is that the date you mentioned, then you heard from who on March 9th? Mr. Mitchell. I actually heard it from my employees concerns program manager. That was the first time it actually came to me. Mr. Porter. So once you found out on March 9th, what steps did you take in your role with Bechtel to take care of these problems? Mr. Mitchell. Several. Noting the discrepancy of the timing, of course, I asked my internal audit manager to conduct a series of interviews with the people that had been involved to establish as factually as we could and as quickly as we could who knew what when. That was done. We turned our attention immediately also to the technical issues of the implications of this, in our case, since we have the responsibility for coordinating the license application. We started making the decisions one would make about what were then possible implications, how would we proceed, we started to put together the various things that Mr. Garrish was talking about, various lines of inquires to establish the technical basis on how it was done, what was the quality basis and how we could proceed on that basis. Mr. Porter. So when did Bechtel notify the Department of Energy of their findings? Mr. Mitchell. The notification that went from our employee concerns, the DOE was informed on our department ECC, employee concerns organization informed the DOE employee concerns organization, I believe on the 11th or 12th. I think on the 11th. Mr. Porter. Of March. Mr. Mitchell. Same timeframe, yes, sir. Mr. Porter. So you found out, someone in your company found out in December and there wasn't correspondence until after or shortly before the release of the documents? Mr. Mitchell. It was before the release. Individuals in the organization were aware of the e-mails. They did not take action to bring them to our employee concerns program or others. As soon as that was done in March, we notified the Department of Energy. Mr. Porter. What is your protocol when dealing with USGS individuals? Did your management discuss it with the individuals or discuss it with management of USGS? What happens internally when this is discovered? Mr. Mitchell. We are a contractor with DOE. Our relationship with USGS is to provide casting through the Department of Energy back to the USGS, provide data for the license application. We have no direct management relationship with them. Mr. Porter. Your understanding is that Bechtel Corp. is not aware of any additional falsified documents regarding the Yucca Mountain project? Mr. Mitchell. I assure you if we actually knew they were falsified, we would have notified DOE before this time. Mr. Porter. Or any allegations of such? Mr. Mitchell. Allegations in the employee concerns program that arise, there are a variety of things to handle those processes. If some of those had been led to a point where there is some reason to believe there is a falsification, we would present that. Mr. Porter. Thank you so much. Mr. Garrish, and Mr. Groat, I have a question regarding independent investigation. Something that has come up numerous times, and I think you're going to hear about it in my closing. But would you support and accept an independent investigation? Mr. Garrish. Well, one of the things that we are doing now is not only internally to try to determine exactly what happened with these particular e-mails, and how it impacted the science, which is an undertaking that we are doing. But the second part, which is the QA analysis and evaluation, we are going to bring in outside people that are not currently associated with the project and have their evaluation made to us and their recommendations to us on that, on the entire quality assurance program. So that's what we're intending to do, is ask a lot of outsiders for their assistance and evaluation as to whether or not this program is doing the job. Mr. Porter. So you're saying yes to an independent investigation? Would you support an independent investigation? Mr. Garrish. I have a hard time understanding what is different from bringing in outside individuals like we're doing now. These are independent of us. They are coming in to take a look at the quality assurance program. Mr. Porter. Well, possibly I could help. The problem is, it was under your watch when this happened before. That's the problem with bringing in another individual under your watch. The question is, there are employees that have falsified documents. So would you support an independent investigation? Mr. Garrish. I'm not certain I understand how this is under my watch. Mr. Porter. Would you answer my question? Would you support an independent investigation? Mr. Garrish. Well, I'd like to know exactly what is being proposed, and I'm certain the Department would have a position as to whether or not it would support it. Mr. Porter. So that's a no at this point? Mr. Garrish. No, it's that we would like to know what it is that you propose, and we would be happy to respond in the appropriate way and at the appropriate time. Mr. Porter. Mr. Groat, would you support an independent investigation? Mr. Groat. We would welcome an independent investigation. Mr. Porter. Thank you very much. I appreciate that. Also, Mr. Garrish, you had mentioned on numerous times that it's going to be up to the NRC to make these determinations. It appears to me, and maybe I'll ask you to clarify your testimony, that it doesn't matter if there is a significant lapse in quality assurance, it's going to be up to the NRC to make this decision. Is that what I heard you say? Mr. Garrish. Well, the NRC, as one of the things that they will evaluate, is our QA program. So as part of their process, all of these allegations will be litigated and adjudicated before the Atomic Safety Licensing Board. At that time, they will make their determination relative to not only the data but the quality assurance program. Mr. Ziegler. Before it gets to NRC, unless we can assure ourselves that the technical basis for the safety analysis is fully valid, we will not submit the licensing application. It's our job first to make sure that the technical basis is valid, and NRC has the job to make sure, in their independent reviews, before they actually grant a license, that everything is as it should be. Mr. Porter. Thank you. Ms. Berkley. Thank you, Mr. Chairman. Mr. Mitchell, there was an AP report yesterday that, and I'll read a piece of it to you, ``Pipefitters at Yucca Mountain say they were instructed to damage the tunnel's main water line and install a pipe to bypass the State water meter at the Federal nuclear waste repository. Ron Dolan of Terrum said he was harassed before Yucca Mountain project contract Bechtel- SAIC fired him in May 2003 for reporting what he called were violations of worker safety and EPA laws, including the Clean Air Act and Clean Water Act. Dolan said pipefitters made a pipe in 2003 to reroute groundwater pumped from a nearby well around the State water meter.'' Is that the type of business as usual that Bechtel is, is that the type of product we are expecting from Bechtel? Mr. Mitchell. Congressman, Mr. Dolan has made a series of accusations. There was a lawsuit. They are being handled in the courts at this time. Obviously that matter has to resolve itself legally. In the meantime, I will state unequivocally, that is not the way we do business nor have we done business. Ms. Berkley. And what if it's adjudicated true? Mr. Mitchell. Then I'll be wrong. Ms. Berkley. I can't hear you. Mr. Mitchell. Then I will be wrong. Ms. Berkley. And what will you do about that? Mr. Mitchell. I suspect there will be lots of things in that case. If it turns out, first of all, I'm not going to prejudge what was done. Mr. Berkley. Mr. Garrish, after I had been in office for about a year, I was invited to a meeting of former Nevada test site workers who had worked at the test site for the Atomic Energy Commission, which is of course the precursor of the Department of Energy. There were about 200 men, mostly men there, a few women, but mostly men. And at a certain point in the discussion with these 200 former Nevada test site workers, a question was posed to them and it went something like this. Everybody here that is suffering from some form of cancer please stand up. Every 1 of the 200 plus former employees of the Nevada test site stood up. They were all dying of some form of cancer. Now, the Atomic Energy Commission told these workers that all they had to do was go home and take a shower and wash their clothes and there would be no danger of radiation poisoning. That turned out not to be the case. So you will forgive me if I'm not particularly high on the trust level that I have for the Department of Energy. It is not exactly the best track record that I can imagine. And the very idea that you are investigating yourself is a joke to me. Because it's been proven in the past that it doesn't work. Now, you have said, and these are the five things that you thought were very important, that the DOE believes in openness. Well, we've got whistleblowers coming out of the wazoo telling us that there is no such thing as openness with the DOE. We know that the revelations of the e-mails were actually known in December and they weren't disclosed until March. We know that you're hiding information now. And according to the testimony of the Governor of the great State of Nevada, its Attorney General, and our outside counsel, Joe Egan, you're still not forthcoming with the information that they've requested, which is a slap in the face not only to the Governor of the State and the Attorney General, but to all the people of the State of Nevada, who are only interested in this information in order to protect the health and well-being of their families. You talk about self-identification. We know that is impossible to be able to do. You did not come forward with the information until you absolutely had to. Self-correction, I don't know if that's possible, because you still have a mind set that this is just an aberration and you're going forward with the licensing when we don't know that the basis of the licensing isn't based on faulty documentation and scientific documentation. You talk about employees and how valued they are. We have e-mails that demonstrate otherwise. There was not a culture of valuing the employees. There was quite a culture of intimidation and having them fudge the data. And I can't understand what the use of having standards are, if they are systematically ignored by the supervisors and employees that work for you. So I cannot understand for the life of me why the DOE is going forward with this licensing procedure when we do not know whether or not the scientific documentation upon which you are basing your decisions is in fact flawed. And until this investigation, which I believe should be an independent investigation, is conducted and completed, it makes absolutely no sense to me that you're going forward with your licensing procedures. Why? Why would you possibly be going forward with this and not calling a halt to it until we know for sure what's going on at Yucca Mountain? Mr. Garrish. Congresswoman, you had a number of issues there, but let me just try and deal with a couple if I could. And I would ask that you please judge us by how we respond and what we do. Let us do our investigation. Undoubtedly you will see those results very soon. And we will be able to tell you what the impact is. And then eventually we will have, we believe, an independent reviewer on this entire project. That's the Nuclear Regulatory Commission. Ms. Berkley. Why would you let it go to that point and continue to spend time and millions of dollars of taxpayers' money when you don't know what the investigation is going to disclose? Mr. Garrish. Well, I would ask first that you let us finish our investigation, determine what action is appropriate, and then you can judge us at that time. Ms. Berkley. For the life of me, I can't understand why you think we would trust your investigation of yourself, when we have a series, over the last 20 years, of debacles and cover- ups that I didn't trust you then and I certainly don't trust you now and the information you are going to provide for us after your own investigation, rather than an independent, outside investigation. In my mind, it's suspect from the beginning. Mr. Garrish. I understand your point of view. Ms. Berkley. And what do you say about that point of view? I'm glad you feel my pain, but I'd like to get some information from the Department of Energy. Mr. Garrish. Well, my point is that we believe that we should go through our investigation---- Ms. Berkley. Why do you think you should be doing the investigation and not an outside, independent body? Mr. Garrish. I don't know what body you're suggesting would review us. We are going to have, individuals from the Inspector General are going to look at the facts in this case. We are going to have individuals outside the Department to help us with our QA system. The scientists that are responsible for presenting this case to the Nuclear Regulatory Commission are the ones that are going to take a look at exactly what happened to the science and whether or not we can go forward with it or not. And we will have those results and then please judge us at that time as to whether or not you think it's sufficient. Ms. Berkley. According to your oral testimony, and I just want to clear this up, you stated that you don't believe for a minute that sound science is separate and distinct from quality assurance, do you? I mean, they are interconnected in your mind, I believe, I would hope. Can you delineate the two, that there is no quality assurance but this project is based on sound science? Mr. Garrish. The quality assurance aspects of what we do relates to the Nuclear Regulatory Commission presentation of our case. There is a lot of science that goes on in the world that does not follow the Nuclear Regulatory Commission requirements. And there can be science that does not go through quality assurance. And that science can be good. However, what we have to do is not only do sound science, we have to present that sound science to the Nuclear Regulatory Commission, using quality assurance protections. Ms. Berkley. Do you intend to repeat the models on water infiltration and climate, or are you just going to go on the same information? Mr. Garrish. I don't know the answer to that until we are done with our evaluation. Ms. Berkley. Don't you think that would be a fundamental scientific issue regarding Yucca Mountain and whether or not it can support storage of 77,000 tons of toxic nuclear waste? Mr. Garrish. We are going to look at that exact issue when we do our evaluation. Ms. Berkley. How can you do an evaluation if we know for a fact that the e-mails are documenting that they fudged on the model that is the very essence of probably the most fundamental science with the Yucca Mountain project? Mr. Garrish. If I may ask Mr. Ziegler to respond to this. There are ways in which we scrutinize the data in other ways. I would like to have him explain some of the techniques, if I could. Mr. Ziegler. Yes, first off, the direct implications in the e-mail are regarding the timing of the documentation, the dates. There are some other words in there that may lead to other implications. But until there is a---- Ms. Berkley. Yes, but they made up the dates. ``I have no clue what the dates are, so I made them up. And if they need any more information, I'll make that up, too.'' Mr. Ziegler. Right now, the direct implications of the processes, as far as the scientific information, I think we need to look further to know the implications on that. We certainly take it very seriously. We want to make sure that the data and information used in the safety analysis is fully valid. Ms. Berkley. What worries me is that data and information is still in place and that's what you're using to go forward with the licensing. It hasn't been disproved, you haven't redone the modeling. You haven't redone the science. So we are going forward on the licensing process with the faulty information, with the faulty scientific findings on the very fundamentally most important aspects of the Yucca Mountain Project, whether to not it's going to pollute our groundwater. Mr. Ziegler. Actually, as I think I said earlier when I spoke, unless we can show that the technical basis for the safety analysis is valid, we are not able to go forward, we would choose not to go forward. Ms. Berkley. So have you halted the Yucca Mountain project? Or are you continuing to go forward with your licensing process? Mr. Ziegler. We have not made an application, license application, to the Nuclear Regulatory Commission yet. There are many aspects of the project that are not in question here. So those aspects are continuing. Until we are able to show that the scientific basis is valid, we will not go forward with that information. Ms. Berkley. OK. One more question. OK, I guess we're having a third round. Mr. Porter. Mr. Gibbons. Mr. Gibbons. Thank you very much, Mr. Chairman. Mr. Ziegler, thank you for bringing your testimony here before us as well. I am amazed when I hear you say that, because I want to read to you, when I hear your statement saying, well, and maybe Mr. Garrish saying, that you know, all these memos had to deal mostly with time, when we were going to submit the data and that. I want to read something to you. And I want your opinion. It's a memo, one of these e-mails, dated April 3, 1998, written at 4 hours, 19 minutes, 40 seconds p.m., to be very specific, by somebody I don't know, but it's titled, subject is, infiltration and UZ, capital words, UZ flow. Let me read it to you. It says, ``I have some maybe bad and maybe good news that you should be aware of. Blank called me 2 weeks ago and said that he had tested the first sample of core from blank at blank, and it had a concentration of 39 micrograms per liter of chloride. This means that the flux is at most 2 or 3 millimeters per year in this high infiltration zone. Blank is at the crest of Yucca Mountain. There are some implications,'' and this is what I want you to pay attention to. ``There are some implications that I did not realize until I talked them over with blank yesterday. Basically, either our infiltration model is wrong or our flow blank or UZ flow model is wrong.'' Now, does that sound like time to you, or does that sound like science and technology? Mr. Ziegler. It sounds like a discussion by these individuals, I don't know them either, but I have seen the e- mails, of information and how they may or may not have used that information. I think until we go back and see what was actually done and then evaluate the scientific validity of what was done independent of these individuals who have implicated themselves, then I think we don't know. Mr. Gibbons. Mr. Ziegler, are you a scientist? Mr. Ziegler. I'm a nuclear engineer. Mr. Gibbons. OK, pretty close to one, anyway. Something that says, ``our model is wrong'' or ``our blank flow is wrong'' tells me that's science. That's not just merely a discussion. Here is an opinion of somebody who is a scientist writing this memo, and you are sitting here before us saying, well, it's just a discussion and I want to look at it and make sure I know what's going on. I can appreciate that opinion. But I wanted to tell you, not all of these e-mails have to deal with time or when the information was submitted. Because in this one, we're talking about some very specific information. Now, not to leave people unattended to in this discussion. Mr. Garrick, in your testimony, you said that these e-mails were rather loosely framed statements, and I think you were trying to put a happy face on them. If I read you that same statement that I just read Mr. Ziegler, the e-mail of April 3, 1998, would you say that the statement of that individual is a loosely framed statement? Mr. Garrick. What I was trying to say was that---- Mr. Gibbons. Well, I mean, I'm only asking if you would apply your standard to that e-mail. Do you think that's a loosely framed standard? Mr. Garrick. I think that particular statement was probably pretty specific. And I think also that statement could be a concern by the scientists that there was a possibility that the infiltration rates that were being used were not as low as they should be. Mr. Gibbons. Well, in his word, out of this statement, wrong. Mr. Garrick. Well, sure, they're wrong. But I'm just pointing out that the wrong could be in the direction of opposite from doing damage, but in the direction that the infiltration rates are too conservative. Mr. Gibbons. Builds our point. Mr. Garrick. Yes. Mr. Gibbons. You don't know what the science is at this point in time. You don't know whether it's conservative or wrong. You don't know whether it's good or bad. You don't know. Let me jump over on Mr. Friedman, I didn't get a chance to talk to you, a little bit more. You said there were about 2 weeks worth of studies to go on in all these e-mails. The e- mails were from 1998 to 2000, I believe, that's part of your IG investigation. Is that correct? Mr. Friedman. In trying to describe to you, Mr. Gibbons, why I can't tell you how long this is going to take, I was trying to indicate that some of the e-mails go back to 1998, 6 or 7 years ago. And there is a huge body of information that we are going to have to look at. Mr. Gibbons. Are there potentially e-mails outside of the timeframe from today back to 1998 that would be relevant, that would be pertinent, would be applicable to your investigation? Mr. Friedman. There are not only e-mails that would fit your characterization, but there are other documents that would fall into the same category. Mr. Gibbons. OK, thank you. Mr. Egan, I appreciate your legal skills and the fact that you are also a nuclear engineer as well. There is such a thing in the legal doctrine of privilege, is there not? A doctor has a privilege with his patient, a lawyer has it with his client, a priest has it with a penitent. That is an accepted doctrine in courts in the law today. I'm wondering, in your jurisprudence experience, have you ever seen an exception or a privilege granted between a scientist and his supervisor or a scientist and his management? Mr. Egan. No, sir, in fact, the scientific method, which really is the foundation of quality assurance, in fact, but the scientific method is really predicated on full disclosure of everything. So if a scientist publishes his findings in a peer reviewed journal, the peer review team can look at his work papers, his notes, he's not entitled to shield anything from that peer review. The whole idea is, let's get to the bottom of this, let's find the truth. In law, there are privileges, and there are appropriate privileges to apply to litigation that might not necessarily be in the public interest on a project like this. But at any rate, my concern is with the effort by DOE to claim broad categories of privilege. Let me just give you one example that I fear could happen. We had the court case, we have the EPA setting a new standard. We know we're going to have DOE opining about what that standard should be and we know when that standard is set, we know we're going to have DOE evaluating whether Yucca can meet that new standard. Well, we think that analysis and that round of opinion ought to be public knowledge, especially on an issue of this importance that they got wrong the first time. We are concerned that DOE would have its lawyers instruct the entire organization, please do the following, please evaluate the new EPA standard, please evaluate whether Yucca Mountain meets that standard. And oh, by the way, this is all attorney work product. Arguably, there is a technical way to do that a technician in a court room could say meets the attorney work product standard. But we think that certainly goes against the grain of what Mr. Garrish has testified to about full disclosure. And we don't think it's appropriate, and hopefully the NRC will agree with us that it's not appropriate, if that's done. Right now it's a fear that it will be done based on some discussions we have had. Mr. Gibbons. Thank you, Mr. Egan, and I know that privileges do have a sound public policy purpose why they are enacted and certainly let's hope that we see a sound, reasonable decision made by the NRC. Thank you, Mr. Chairman. Mr. Porter. Thank you, Congressman. This is for Mr. Devaney and Mr. Friedman. What I have heard from Mr. Garrish and Mr. Groat are really two different answers to a similar question. That is, Mr. Groat is saying that he's been told he can't investigate, he can't interview, can't talk to his employees regarding the possible falsification of documents. I hear Mr. Garrish saying that he is going to do his own investigation and he is going to get to the bottom of it, he's going to take care of the science and take care of the employees. I'm confused. Can one of you gentlemen help me with this? Mr. Devaney. Mr. Chairman, I think we have to talk about which investigation we're talking about. The FBI and Mr. Friedman's office and my office are conducting a criminal investigation. When we do that, it is not helpful to have the agency doing the same thing at the same time. We are working with the U.S. Attorney, we have an investigative strategy. I'm talking about any criminal investigation, not just this one. We have an investigative strategy that is developed in part with the U.S. Attorney. We are doing the interviews in an informed way in the order in which we want to do them. With all due respect to Mr. Groat, lying to Mr. Groat is not a crime, lying to Federal agents is a separate crime. So there are a lot of nuances in conducting a criminal investigation that would be interfered with if Mr. Groat was conducting a similar, internal investigation about the falsification of records and documents. Now, maybe Mr. Groat might need to have a chat after the meeting, because I wouldn't be opposed to Mr. Groat reassigning these employees to some other--I understand they're not on this project right now. But how he reassigns them is his business. He could also put them on administrative leave without pay if he wanted to. Taking an adverse action against the employee without the facts would be premature. So he needs to get the facts from us. But first we have to present the facts to the U.S. attorney. Because the goal of any criminal investigation is seeing if we can put somebody in jail. Before I was an IG, I spent 30 years in Federal law enforcement trying to do that. I might add I was at one point the special agent in charge of the Secret Service in Las Vegas. So even then, I was familiar with this issue. And that's the goal of our criminal investigation, is to see if anybody has committed a crime, and if they have, to bring them to justice. Mr. Porter. Well, then hypothetically, Mr. Devaney, we have an agency that has at least serious indications that there have been falsified documents. What I hear you saying is that you would not discourage them from reassigning or taking them off of these projects and putting them into another role. Mr. Devaney. I am in a fact-gathering mode. What happens to those employees is Mr. Groat's concern right now. He has to make those decisions. I can't help him make those decisions. At some point, I will present him with a fact-based report where he might want to consider taking adverse action against these employees, but we're not there yet. Mr. Porter. Mr. Friedman, the testimony by Mr. Garrish was such that they were going to perform all these investigations, that they feel confident that they have the systems in place. So what is your advice to this panel as to those comments from Mr. Garrish? Mr. Friedman. Well, first let me say, Mr. Chairman, in response to your earlier question, that my position parallels that of Mr. Devaney. Mr. Garrish and I have had this discussion, or have had a discussion. It's clear to me that he is not doing a criminal investigation. He understands the firewall that exists, and that's my responsibility. Mr. Porter. If I understand that, Mr. Groat does not understand the firewall, is that what we hear? Mr. Friedman. I haven't discussed--Mr. Groat is not within my purview, and his activities. So I have not had a discussion with Mr. Groat on this issue. I think we have to wait. We intend to take a look at the study that the Department does, and I'm pleased to hear that the technical review board will be looking at it as well. We may have to proceed independently once we take a look at the work that they've done to confirm their findings to our satisfaction. Mr. Porter. Thank you very much. Mr. Garrish, the report from GAO, which was initiated by Senator Reid and Senator Ensign last year, the summary of April 30, 2004, so it wasn't that long ago, has to do with persistent quality assurance problems which could delay repository licensing and operations. You comment consistently how you have this quality assurance program that is one of the best, correct? At least that's my understanding in summarizing what I hear you saying. But throughout this report, the GAO is consistent in stating that you are not. But yet, quality assurance, although I believe that is a wrong term, that would be about public health and safety and welfare, it's not about quality assurance of apples, it has to do with life, I still question that you are in a position to do research when the GAO has been, just last year, stating that you haven't followed through with, over a 3-year study of quality assurance problems and challenges. I don't understand. Here's the report. And of course, on page 31 in this report, and as you know, GAO is probably as fine an organization as any in getting to the bottom of problems. But on page 31 it states, a list of concerns by employees, it shows management problems, it claims mismanagement, 26 substantiated concerns, human resource problems, 8 substantiated concerns, harassment, intimidation, retaliation, discrimination, 4 substantiated concerns, quality, fraud, waste, we can go on and on. Again, Mr. Garrish, what are your plans to comply with the GAO's request before you start looking at your own back yard? You need to fix your back yard. Mr. Garrish. Mr. Chairman, quality assurance is one of the cornerstones of a nuclear culture. This, the way I would refer to it, has been a long and improving process. When GAO did their initial investigation, they took it at a slice in time. We took seriously what they have said and by the time they issued the report, many of those things that were included in the report had already been improved. And we are continuing to want to improve this program, and in fact, that is one of the things that we are going to be looking at at our independent investigation. So I understand your concern, I agree that we need to continue, have a continuing program of improvement on QA. And we have a ways to go. But I believe we are making progress. I would like, if I could, to just make a comment relative to our earlier comments to the inspectors general, relative to what we are doing or not doing. I do want to set the record straight that we are not conducting any criminal investigation and we are not investigating the falsehoods. But what we are doing is evaluating separately from what the inspectors generals are doing, is the science, what the people have touched, and evaluating the science to see how it is impacted. We are separately evaluating the QA. Mr. Porter. Thank you, Mr. Garrish. Unfortunately, the GAO's comments are contrary to yours, consistently stating that corrective actions have not yet been successful in correcting the weaknesses of DOE regarding quality assurance. We have a definite disagreement between DOE and GAO. Actually, that will conclude my questions. Ms. Berkley. Thank you, Mr. Chairman. Mr. Mitchell, in the same report that the chairman just cited, it says in its audit of Yucca Mountain, the GAO found consistent quality assurance problems. Could you give us some idea of how many times it has been necessary for the DOE or Yucca Mountain contractors like Bechtel to revise their quality assurance programs? Mr. Mitchell. I certainly couldn't give a realistic estimate of the number of times all of the processes and procedures, of which there are hundreds, have been revised over the last 5 to 6 or 8 years. It would be an extremely large number. Those processes and procedures are revised both as the program phase changes, both as we gain additional information, as we amplify and clarify them. So there is a revision state that goes on. The standards to which those processes and procedures apply are in fact not revised. The quality assurance procedures that apply to us through the contract are changed only at infrequent intervals, sometimes it's because of a change of a standard, sometimes an interpretation. The implementation of those through our processes and procedures is a process of continuous improvement. Ms. Berkley. Could you tell me if an employee voices his or her concerns what's the procedure that they follow to get those concerns heard? Mr. Mitchell. There are a number of processes and procedures available to them. First and foremost, we would assume they would go to their supervisor, if they chose to do so. That's the one we encourage. In addition to that, we encourage them to take advantage of any other process they use. There are employee concerns programs both in the company and in the Department of Energy. And they have access to the employee concerns process of the NRC. Ms. Berkley. Why do you think there is such a large number of employees that are complaining that they are intimidated, and that once they bring a problem forward that they are either fired or punished in some way? Are all of these disgruntled employees? Mr. Mitchell. I have no idea which data base you reported those numbers from. Our information shows right now that at least over the last couple of years, the surveys we have conducted, that there is in fact no climate of intimidation. Ms. Berkley. Well, that's unfortunately contrary to the words we're getting from the employees. Given what you know now regarding various problems with the project, the moving of pipes, possible destruction of water pipes, the misappropriation of Nevada's water, do you think Bechtel is entitled to any portion of the pending bonuses for the Yucca Mountain project? Mr. Mitchell. First of all, as I believe we stated, we do not believe those allegations are in fact correct. Ms. Berkley. If they are? Mr. Mitchell. If they are, that's a decision for the Department of Energy to make. Our fee structure is governed by the instant contract we have with the Department of Energy, and that is in fact their decision to make. Ms. Berkley. Do you think it would be appropriate if these charges are proven true that Bechtel accept that bonus money? Have you earned that bonus money? Mr. Mitchell. The fee terms of any contract are a mutual deal between the Department and ourselves. They are documented, they are clearly available. We would expect to comply with them. Ms. Berkley. Let me ask one more question. Mr. Garrish, I'm not sure I heard your answer when I asked you whether or not you were going to release the information and documentation that the Governor of the State of Nevada and the Attorney General have requested. Is it your plan to release that information to them? Mr. Garrish. Ultimately, all of this information goes before the Nuclear Regulatory Commission. He has asked---- Ms. Berkley. That's not my question. The question is, are you going to comply with the request of the Governor and Attorney General of the State of Nevada? Mr. Garrish. That's under consideration as we speak. Ms. Berkley. What would possess you not to? Mr. Garrish. As I said, all of this information will be available on our licensing support network. That's the way the Nuclear Regulatory Commission intended us to provide it. And the final license application, not a draft, will be presented to the Nuclear Regulatory Commission. So instead of having non- policy information as to preliminary information, that it will not go forward, we believe that it is more appropriate to provide the actual copy of the license application and provide the certification and all the information in the manner in which the Nuclear Regulatory Commission has set forth. Ms. Berkley. So you expect the Governor and the Attorney General to wait until the licensing procedure is completed to get the information? Mr. Garrish. No. They will get that at least 6 months in advance of the filing of the license application. Ms. Berkley. And what if the licensing application is not filed for the next 10 years? Don't you think that the Governor of the State of Nevada and the Attorney General are entitled to this information? You said in your testimony that one of the things you pride yourself on the most is your openness. Don't you think that this is not a demonstration of openness? Mr. Garrish. No, they will get this information. I'm telling you that, and we---- Ms. Berkley. You're saying that they will get this information? Mr. Garrish. They will get the information. We will do the licensing support network, we will file that information we believe this summer. That information, much of the information they are currently requesting is on the license support network. The only issue is really the question as to whether or not a non-policy draft of the license application will be made available to the State. That question is under consideration now at the Department. Ms. Berkley. I should think it would be. Let me ask you one final question. In your Department's press release on this matter, you stated that the safe handling and disposal of nuclear waste and the sound scientific basis for the repository safety analysis are priorities for the administration and the DOE. All related decisions have been and will continue to be based on sound science. Now, how can you possibly state that all related decisions have been based on sound science before you have completed or begun your investigation into the scientific data, analyses or documentation related to the program that you suspect were falsified? What sound science are you talking about? Mr. Garrish. It is our commitment to the people of the State of Nevada and others around the country that we will not move forward with any decisions on nuclear waste that are not based on sound science. That is our commitment to you. We are in the process of evaluating this information, and we will not go forward if we cannot demonstrate that this is based on---- Ms. Berkley. You are going forward as we speak, are you not? Mr. Garrish. We are preparing a license application, we are evaluating---- Ms. Berkley. So you are going forward even though there is a very strong possibility that this entire project is not based on sound science, yes or no? Mr. Garrish. We are preparing the documents to move forward with this. But we have not made a final decision yet as to when and whether to file those documents. Some of that evaluation will be dependent on what we find in this investigation, or excuse me, this evaluation that we're doing now. And that is a process that will occur over the next several months. But I can assure you we will not go forward unless we can have the feeling ourselves first that this repository will be safe and would, and only a safe repository would be included in a license application. Ms. Berkley. It is my opinion that you have misled the people of the State of Nevada. You have misled the people of the United States. You are misleading the U.S. Congress. And you have misled the President of the United States. I would like to see someone in the DOE with the guts or common decency to stand up and halt this project. It is not based on sound science and quite frankly, Mr. Garrish, you ought to be ashamed. Mr. Porter. Congressman Gibbons. Mr. Gibbons. Thank you very much, Mr. Chairman. And to our witnesses, as we wind down this very eventful and sometimes painful day for each of you, I again want to thank you for the time you've spent before us today. As I started off saying, I hoped that you would not come before us and trivialize this matter. I think you can understand from the frustrations and the sense of what we heard today that this is not a trivial matter. This is no small matter for the people of Nevada or the American people in general. This goes not only to the veracity of the science that was forming the basis of your decisions to move forward with Yucca Mountain, but this goes to the trust, goes to the confidence, goes to the believability of our Federal Government, and therefore has a significantly important and weighty responsibility on the shoulders of each and every one of you here today. I only want to close with a statement from one of these e- mails, because I think it senses the frustration of individuals who are working on the project and the management culture that we've talked about this whole time. This e-mail is what I will close with. And I apologize to the audience and to all of you because it contains swear words. But it was dated February 23, 1998, written at 1:28 a.m. This is an individual sitting at his computer in the wee hours of the morning, probably after a very long and frustrating day. Sitting there typing this e-mail to someone. It's redacted, so I can't tell you who or who received it. And it quotes, ``Blank, you are just starting to wake up to what the hell is going on in the Yucca Mountain project. I can't teach it to you. I've learned, and that's why I'm in blank.'' I don't know, is that Timbuktu? ``I would have liked to bring more people with me, but nobody ever figured it out, as much as I tried to tell you, I couldn't do it directly because you have to learn by experience. Once you learn, you learn. There is more to it than you think, that's why I'm still on the project. They won't get rid of me. You are on the verge of figuring this shit out. Good luck. Blank.'' A sense of what was being felt on that project by this individual at 1:30 a.m. Obviously not something that he was happy about. Obviously something that troubled him greatly. Obviously when it came out, it reflected what he has sensed about the management of what was going on at the project. Now, what this applies to, we will only find out later on when this investigation is finally finished. But I will say to each and every one of you here today that it is troubling to have people who are working with you with the dedication that many of these people have that resulted in this type of an attitude and this type of a feeling at 1:30 a.m., wrote an e- mail expressing himself about his thoughts about the Yucca Mountain project. This is the same type of frustration that we have known and felt for a long time in the State of Nevada. We are just now seeing that people in the Yucca Mountain project are more responsible for what we find are troubling us today than we had ever imagined. Ladies and gentlemen, thank you for being here today. I look forward to working with Chairman Porter as we move forward in this process. I believe strongly that we will find the answer. But until that day, I believe strongly that it is up to you, the obligation is yours, for the USGS and the Department of Energy, to stop working on Yucca Mountain until the answers are done. Thank you, Mr. Chairman. Mr. Porter. Thank you, Congressman Gibbons, and Congresswoman Shelly Berkley. I think we need to stress it one more time, that there are many hard-working, honest, truly professional individuals working for the Department of Energy, working for the USGS. But also make note that the comments today, although seeming very specific to Yucca Mountain, it shows a systematic problem in the Department of Energy around the country. To my colleagues that would think that Yucca Mountain is truly a parochial issue, what we're hearing today is continual management challenges that have been put forth by the Department of Energy, an agency that has oversight over nuclear power plants, energy, terrorist activity and law enforcement in protecting our facilities. So today wasn't just about Yucca Mountain. It's about the Department of Energy. The important thing about these recently discovered e- mails, aside from the evidence of corruption and fraud, is that they demonstrate that Yucca Mountain truly did flunk the test of science. That's why it's so important to view them in the context of what's happening at Yucca Mountain at this time. In 1996, DOE had just completed its first major site characterization study in the exploratory tunnel it had dug. The first of many tests it believed necessary to properly assess Yucca. The results of that test were spectacularly bad. They showed that rainfall would infiltrate the Yucca Mountain rock and get into the repository cavity far more quickly than would have been thought, 50 years instead of the thousands of years predicted by DOE's geologists. That is critically important, since water can corrode the waste containers and it leaks into the regional water supply. It appears we need to protect the waste from the mountain, based upon the studies that have been brought forward. Over the next 3 years, DOE and USGS geologists scrambled to regroup. This is the time period during which, under severe budget crunch and pressure by DOE to produce, they produced an array of deeply troubling e-mails. Those e-mails were not simply the ones produced to the subcommittee. Nevada has chronicled dozens of additional e-mails during this same time period from DOE's public records and has posted them on the Nevada Agency for Nuclear Projects Web site. Plus, I discovered numerous e-mails in the newspaper that were not provided to us. Together they show that DOE's own scientists knew Yucca had flunked the site suitability rules then on the books at DOE. They show a quick and dirty effort by DOE to change the rules, so DOE could disregard the mountain and rely for containment almost completely on man-made waste containers. They show the wholesale abandonment by DOE of any additional site characterizations. But most troubling, they show data being fabricated, instruments being calibrated that were not even in their possession, dates and names changed, two sets of books, one for inspectors, one for representing the real data. They show a complete programmatic breakdown of quality assurance. Consistently even the GAO has reported troubles of quality assurance. Equally troubling, e-mails Nevada discovered suggest that DOE's quality assurance inspectors knew about the falsifications. They knew about the bogus data as early as the year 2000, not 2004, and you will find it in the backup testimony. They appear to show knowledge by DOE of gross improprieties long before recommending the Yucca site to the President and the Congress. They show an utter disregard for sound science in the performance models for the repository. This is not a mere housekeeping matter. The issue of the precipitation of rain and its infiltration in the repository has become the key issue in whether or not Yucca can even be licensed. DOE says water will not get into the repository. Nevada's experts say it will. Now we know that DOE's models that will show very infiltration rates are bogus. Can we rely on anything DOE now says about the safety for our citizens? What are we left with? Dr. Garrick suggests in his prepared statement that we don't yet know whether the falsifications are technically significant for the project. But even if that were true, it seems to beg the question. The question is, how can conduct like this occur on one of the most potentially dangerous waste projects in the history of the world, in a project we spent $9 billion studying? And we haven't even got to nuclear waste yet. This is about water tests. If they didn't know at the time, where were the quality assurance managers? Where were the managers, if they did know at that time, why wasn't prompt action taken? What does this say about the character and fitness of the DOE to be an NRC licensee? The Atomic Energy Act requires NRC to assess the character and fitness of all license applicants to be an NRC licensee. I submit that DOE has not demonstrated such character and fitness. It cannot pass the test. Consider what we have seen: e-mails showing fraud and apparently criminal falsifications; silica, class action cases where industrial hygienists allege document falsification of health and safety records for tunnel records; theft of Nevada's precious water at a time when a Federal judge and the State engineer have put legal restrictions on what DOE may use; horrible quality assurance, raising issues of whether the safety of the repository can ever really be demonstrated; agency changing the rules every time a test fails, and agency hiding documents from Nevada and the public. Ladies and gentlemen, it seems to me that we have had to search far and wide to find an organization such as this that could build the Yucca Mountain project. I don't think we could find a worse organization at this time. It's not the men and women that are working every day. It is the management. There is something rotten here and it's rotten to the core. That's why I am going to be calling, and I believe the support of our committee, and I will bring it back for the full committee, that I am going to call for an independent commission to analyze the impacts of document falsification, the lack of quality assurance and the ability of DOE to demonstrate the safety of Yucca Mountain. We cannot move forward on this project until we have answers to the question of whether this mountain flunks the test of science or whether it just needs a few studies redone. It is necessary but not sufficient for the Inspector Generals of Interior and Energy to investigate. They will not make a determination as to the impact of such conduct on the ultimate science of the repository. After the Three Mile Island nuclear accident in 1979, the President appointed John Kemeney, then-president of Dartmouth College, to chair a commission to investigate what went wrong. This may be something that we need to do in a manner that the public can embrace and that will be unbiased. The President recognized that a matter like this could not be investigated by lawyers at that time, the public relations specialists and the NRC bureaucrats. The commission at that time had subpoena power and they had a few additional privileges. It got to the truth about Three Mile Island and mismanagement that occurred and suggested appropriate change. The commission report, when finished, was a great success, leading to a very significant retooling of the nuclear regulatory regime governing nuclear power plants and ultimately greatly increasing the safety. The same sort of vehicle is needed here, ladies and gentlemen. The public and Nevadans in particular have lost faith and confidence in DOE as its Yucca contractor. We no longer can believe sound science that truly may well be science fiction. There are many unanswered questions and it certainly begs additional questions, but it means that we must pause this project so we have time to get to the bottom of the fraudulent acts to the gross mismanagement that has been occurring. It was haste and mismanagement that got DOE into this problem. It would be tragic if haste and mismanagement again shuffled it under the rug. So I am going to be asking specific things. We are going to be asking for a copy of the draft application with a chain of command, an employment flow chart, so we know who has been working on the projects. And we will get you these formal requests. Employee lists, we've had numerous people call my office, as I know my colleagues have, so we would also like to have a copy of the whistleblower files so we'll have them available. Under the independent investigation, we will be working in concert with our delegation. But it must not be a Federal agency. It must be totally independent. We also call upon DOE, as has been mentioned numerous times today, for DOE to halt the project as we know it today. We will be passing a letter that will be coming from members of the delegation. And on April 13th, as I mentioned, we are going to be inviting, for a meeting on April 13th, we are inviting employees to come in that are directly impacted and have information. Again, I applaud those individuals who have come forward. I thank this committee. I would also like to thank Chairman Don Young for allowing us to use this facility of the Transportation Committee and his staff. And if Members have additional questions for our witnesses today, they can submit them for the record. I would like to again thank all of our witnesses for being here today. The hearing is now adjourned. Thank you. [Whereupon, at 1:17 p.m., the hearing was adjourned.] [Additional information submitted for the hearing record follows:]