<DOC>
[106th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:64031.wais]
LEGISLATION TO IMPROVE SAFETY AND SECURITY IN THE DEPARTMENT OF ENERGY
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ENERGY AND POWER
of the
COMMITTEE ON COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
MARCH 22, 2000
__________
Serial No. 106-126
__________
Printed for the use of the Committee on Commerce
U.S. GOVERNMENT PRINTING OFFICE
64-031CC WASHINGTON : 2000
COMMITTEE ON COMMERCE
TOM BLILEY, Virginia, Chairman
W.J. ``BILLY'' TAUZIN, Louisiana JOHN D. DINGELL, Michigan
MICHAEL G. OXLEY, Ohio HENRY A. WAXMAN, California
MICHAEL BILIRAKIS, Florida EDWARD J. MARKEY, Massachusetts
JOE BARTON, Texas RALPH M. HALL, Texas
FRED UPTON, Michigan RICK BOUCHER, Virginia
CLIFF STEARNS, Florida EDOLPHUS TOWNS, New York
PAUL E. GILLMOR, Ohio FRANK PALLONE, Jr., New Jersey
Vice Chairman SHERROD BROWN, Ohio
JAMES C. GREENWOOD, Pennsylvania BART GORDON, Tennessee
CHRISTOPHER COX, California PETER DEUTSCH, Florida
NATHAN DEAL, Georgia BOBBY L. RUSH, Illinois
STEVE LARGENT, Oklahoma ANNA G. ESHOO, California
RICHARD BURR, North Carolina RON KLINK, Pennsylvania
BRIAN P. BILBRAY, California BART STUPAK, Michigan
ED WHITFIELD, Kentucky ELIOT L. ENGEL, New York
GREG GANSKE, Iowa TOM SAWYER, Ohio
CHARLIE NORWOOD, Georgia ALBERT R. WYNN, Maryland
TOM A. COBURN, Oklahoma GENE GREEN, Texas
RICK LAZIO, New York KAREN McCARTHY, Missouri
BARBARA CUBIN, Wyoming TED STRICKLAND, Ohio
JAMES E. ROGAN, California DIANA DeGETTE, Colorado
JOHN SHIMKUS, Illinois THOMAS M. BARRETT, Wisconsin
BILL LUTHER, Minnesota
LOIS CAPPS, California
James E. Derderian, Chief of Staff
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Energy and Power
JOE BARTON, Texas, Chairman
MICHAEL BILIRAKIS, Florida RICK BOUCHER, Virginia
CLIFF STEARNS, Florida KAREN McCARTHY, Missouri
Vice Chairman TOM SAWYER, Ohio
STEVE LARGENT, Oklahoma EDWARD J. MARKEY, Massachusetts
RICHARD BURR, North Carolina RALPH M. HALL, Texas
ED WHITFIELD, Kentucky FRANK PALLONE, Jr., New Jersey
CHARLIE NORWOOD, Georgia SHERROD BROWN, Ohio
TOM A. COBURN, Oklahoma BART GORDON, Tennessee
JAMES E. ROGAN, California BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois ALBERT R. WYNN, Maryland
HEATHER WILSON, New Mexico TED STRICKLAND, Ohio
JOHN B. SHADEGG, Arizona PETER DEUTSCH, Florida
CHARLES W. ``CHIP'' PICKERING, RON KLINK, Pennsylvania
Mississippi JOHN D. DINGELL, Michigan,
VITO FOSSELLA, New York (Ex Officio)
ED BRYANT, Tennessee
ROBERT L. EHRLICH, Jr., Maryland
TOM BLILEY, Virginia,
(Ex Officio)
(ii)
C O N T E N T S
__________
Page
Testimony of:
Adelman, David E., Project Attorney, Nuclear Program, Natural
Resources Defense Council.................................. 69
Conway, Hon. John T., Chairman, Defense Nuclear Facilities
Safety Board............................................... 24
Eldredge, Maureen, Program Director, Alliance for Nuclear
Accountability............................................. 58
Jones, Gary L., Associate Director, Energy, Resources, and
Science Issues, General Accounting Office.................. 45
Mande, Hon. Jerold R., Deputy Assistant Secretary for Labor,
Occupational Safety and Health Administration.............. 18
Meserve, Hon. Richard A., Chairman; accompanied by Hon. Greta
Joy Dicus, Commissioner; Hon. Nils J. Diaz, Commissioner;
Hon. Edward McGaffigan, Jr., Commissioner; Hon. Jeffrey S.
Merrifield, Commissioner, Nuclear Regulatory Commission.... 16
Shank, Charles V., Director, Lawrence Berkeley National
Laboratory................................................. 51
Sullivan, Mary Anne, General Counsel, U.S. Department of
Energy..................................................... 6
Van Ness, Robert L., Assistant Vice President for Laboratory
Administration, University of California................... 55
Material submitted for the record by:
Miller, Richard, Policy Analyst, Paper, Allied-Industrial,
Chemical & Energy Workers Union, prepared statement of..... 162
(iii)
LEGISLATION TO IMPROVE SAFETY AND SECURITY IN THE DEPARTMENT OF ENERGY
----------
WEDNESDAY, MARCH 22, 2000
House of Representatives,
Committee on Commerce,
Subcommittee on Energy and Power,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:30 a.m., in
room 2322, Rayburn House Office Building, Hon. Joe Barton,
(chairman) presiding.
Members present: Representatives Barton, Bilirakis,
Stearns, Largent, Whitfield, Rogan, Shimkus, Wilson, Bryant,
Ehrlich, McCarthy, Sawyer, Boucher, Wynn, and Strickland.
Staff present: Kevin Cook, science advisor; Elizabeth
Brennan, legislative clerk; Tom DiLenge, majority counsel; and
Edith Holleman, minority counsel.
Mr. Barton. The Subcommittee of Energy and Power of the
Commerce Committee, hearing on legislation to improve the
safety and security of the Department of Energy will come to
order.
The purpose of today's hearing is to consider legislation
to improve safety and security in the Department of Energy. The
three bills before us would provide a financial incentive for
the Department of Energy's nonprofit contractors to take safety
more seriously; would strengthen the Department's internal
oversight of security, and would bring about external
regulation of nuclear safety and worker safety.
I introduced the first of these three bills, H.R. 3833, to
address what I view as an obvious inequity in how safety rules
are enforced in the Department. Under the Price-Anderson
provisions of the Atomic Energy Act, the Department can assess
civil penalties against its contractors that violate DOE rules,
regulations, and orders on nuclear safety. However, the Atomic
Energy Act contains an explicit provision that exempts the
Department's nonprofit contractors from paying any such fines
when they commit a nuclear safety violation. If civil penalties
are an effective tool to improve the safety and performance of
the for-profit contractors, the same tool should be applied to
the nonprofits as well. This particular problem was discussed
in some detail at an Oversight and Investigations hearing last
June on Department of Energy Worker Safety.
The second bill is H.R. 3906, which was introduced last
week by Chairman Bliley. I join the Chairman and several of my
colleagues from the committee in cosponsoring H.R. 3906. This
bill will establish, in statute, an independent office to
oversee security throughout the entire Department of Energy
complex. This is the same office that Secretary Richardson has
already instituted at DOE headquarters, and it would function
the same way that it does today.
The only change--and it is an important change--made by the
bill is to establish a direct reporting line from the
Independent Security Oversight Office to the Congress, so that
the Congress has timely, uncensored information on security
problems in the field. Security oversight has been the topic of
numerous hearings, most recently the one held just last week in
cooperation with the Oversight and Investigations Subcommittee
of this committee.
The third bill, H.R. 3907, was introduced last week by
Chairman Bliley and several of our colleagues on the committee,
and also on the Science Committee. H.R. 3907 would put an end
to the Department trying to regulate itself when it comes to
safety manners.
Effective October 1, 2001, the Nuclear Regulatory
Commission would assume regulatory and enforcement
responsibility for nuclear safety throughout the Department of
Energy complex, and OSHA will do the same for worker safety.
The existing Defense Nuclear Facility Safety Board would be
abolished and its staff resources made available to the Nuclear
Regulatory Commission. I recognize that this is an ambitious
undertaking, and an ambitious schedule, but the alternative of
continuing to let the Department regulate itself is, in my
opinion, much worse.
These bills are meant to address some of the most obvious
safety and security problems in the Department of Energy. I
consider these changes to be long overdue in the DOE complex.
The Department keeps offering us reassurances that their
safety and security problems are always in the past and are now
under control. That particular line holds true until the next
headline. Just last week, for example, several workers at the
Los Alamos Laboratory were exposed to plutonium.
In the face of that kind of accident, it's hard to argue
that the Department of Energy is doing a fine job on safety and
should continue to be left to its own devices in terms of
regulating its safety programs.
I want to issue two challenges today: The first is to my
fellow members on this subcommittee from both sides of the
aisle. Mr. Upton, the subcommittee chairman of the Oversight
and Investigations Subcommittee, pointed out at last week's
joint hearing on safety and security that the Commerce
Committee knows better than any other committee in the
Congress, the extent of the Department's problems in these
areas. The committee's concerns with the Department of Energy's
safety and security systems go back years, even decades, and
have been the subject of numerous hearings.
It is time that we take our extensive base of accumulated
knowledge about the Department's safety and security problems
and do something constructive to solve the problems. This has
always been an area of bipartisan concern for the members of
this committee, and I intend to keep it that way. I'm more than
happy to work with all members of the subcommittee to address
particular concerns to improve the bills that are before us.
None of us want to read any more headlines about safety and
security fiascos in the Department, knowing that we, this
subcommittee, holds the power to reduce those risks and to
prevent future problems.
Second, I want to challenge our witnesses who are here
today to help us improve the legislation. The three bills
before are only starting points for discussion.
No doubt, there is substantial room for improvement in all
three bills. I would expect that there will be significant
changes to these bills before we take them to markup, but I do
intend to go to markup and hope that we can go to markup before
the House breaks for the Easter recess. That's not that far
away in terms of legislative days. Please take advantage of
today's hearing and work with us on the committee on both sides
of the aisle over the next several weeks to make these bills
better than they are today. We're serious about solving the
problems, but we do want to do it right.
I want to welcome our witnesses today, and I look forward
to hearing their thoughts on these bills. I'd like to point
out, before I recognize Mr. Boucher for an opening statement,
and then Mr. Sawyer and Mr. Rogan, that there are several bills
on the floor today that originated in this subcommittee.
We have a nuclear waste bill, and we have an energy policy
bill that came out of the Foreign Relations Committee, and
members on this subcommittee are going to want to be involved
in those bills on the floor, so we're going to have to have a
tag-team system for us that want to hear the witnesses before
us, and also want to participate in the floor debate. I don't
want our witnesses to feel unloved, if we're shuttling back and
forth several times.
With that, I would welcome our ranking member, the
Honorable Rick Boucher of Virginia, for his opening statement.
Mr. Boucher. Thank you very much, Mr. Chairman. This
morning we examine legislation which addresses the historical
concerns of this committee regarding security and safety
accountability at the Department of Energy.
The committee has taken steps over more than a decade to
address this concern. This committee was responsible for the
establishment of an Independent Oversight Office for Security
at DOE, and was responsible for the creation of the Defense
Facilities Nuclear Safety Board in lieu of external regulation.
Over the years, the committee has revealed in hearings, the
most recent of which was conducted last year, the
accountability problems caused by permitting the non-profit
weapons laboratories to be exempt from fines and penalties for
their safety violations.
I'm pleased that some of the legislation we're considering
this morning addresses that concern. The fact that all of the
agencies before us today essentially want to leave everything
as it is, should not prevent us from looking more closely at
legislative changes.
However, Mr. Chairman, I think we also need to be careful
not to propose significant increases in agency responsibilities
without providing those agencies with the necessary resources
to accomplish the missions that we set forth in the legislative
changes.
I look forward to hearing from these witnesses as we
continue our review of these matters.
Mr. Barton. I thank the gentleman and compliment him on the
brevity of his opening statement. That is definitely an
improvement over Congressman Hall.
Mr. Boucher. Good.
Mr. Barton. It took him 5 minutes just to say hello. The
gentleman from California, Mr. Rogan, do you wish to give an
opening statement?
Mr. Rogan. Mr. Chairman, you will compliment me also. I
thank you for calling this hearing, and I expect that it will
be very informative, and I don't have any further opening
statement.
Mr. Barton. The gentleman from Ohio, Mr. Sawyer, for an
opening statement.
Mr. Sawyer. Thank you, Mr. Chairman, thank you for your
leadership in calling this hearing, and in the measures that
you have brought before us for our consideration.
Last August, the Department of Energy revealed that the
Portsmouth gaseous diffusion plant in Piketon, Ohio, received
plutonium-laced uranium for about 25 years, from the 1950's to
the 1970's.
The employees at the plant were unaware that they were
exposed to highly radioactive plutonium. It's a familiar
scenario. It's an experience that's not isolated to Ohio.
The well-publicized problems in Paducah, Kentucky,
Portsmouth's sister plant, are almost identical in its
experience.
Plutonium first emerged as a clear threat to public health
and safety in Piketon in 1993 when contaminated sediment was
discovered in Little Beaver Creek, just off the plant's
grounds.
In 1996, the Ohio EPA again found plutonium contamination
in a three-acre plot on the east side of the plant grounds.
It's unfortunate that the early findings in 1993 and again in
1996 did not receive a much stronger reaction from DOE,
responsible as it is for internal oversight.
I particularly want to call attention to the work that our
colleague and friend on this committee undertook in the work
that Ted Strickland did in fighting for workers at the
Portsmouth site, in finding Federal money for health screening
and cleanup efforts.
I also very much appreciate Secretary Richardson's efforts
to put the cleanup on a high-order agenda.
It took media pressure in the summer of 1999 to launch
investigations, apologize to workers, and pledge compensation,
6 years after the contamination was found.
Congress missed the mark last year, I believe, by focusing
too narrowly on the control of weapons information, as
important as that may have been, failing to take into account
an even larger national security threat, the possibility of an
environmental disaster in America's back yard.
I believe Congress should consider all facets of public
interest, environmental, health and safety, as well as security
when considering DOE restructuring proposals.
And it is for that reason that I agree with the premise,
Mr. Chairman, of the three bills being considered. We should
make contractors liable. We should strengthen internal
oversight, and we should expand external safety and
environmental oversight as well.
I agree with you that there are some details of these
proposals that need our careful attention, but I think we're on
the right track with these reforms, and I look forward to our
witnesses' comments on how we can improve and strengthen
accountability and oversight.
Again, Mr. Chairman, thank you.
Mr. Barton. I thank the gentleman for that statement.
Seeing no other members present to give an opening statement in
person, the Chair would ask unanimous consent that all members
not present have the requisite number of days to enter their
openings statement in the record at the appropriate point. Is
there an objection to such a unanimous consent request?
[No response.]
Mr. Barton. Hearing none, so ordered.
[Additional statement submitted for the record follows:]
Prepared Statement of Hon. Tom Bliley, Chairman, Committee on Commerce
Thank you, Mr. Chairman. Today marks a very important step for this
Committee. We have held countless hearings in past years on safety and
security failures in the Department of Energy. Our Members have worked
hard behind the scenes to improve the oversight of these important
matters within the Department, and we have worked with other Committees
to improve related legislation moving through the Congress.
Those efforts, while useful, have been mere ``Band-Aids'' that help
to stop the bleeding at DOE but do not really cure the underlying
problems. As retired Senator Rudman observed last year, the unique
culture in the Department of Energy is extremely resistant to change.
The three bills before the Subcommittee today make a giant stride
toward changing that culture and getting at the root causes of some of
these safety and security failures.
H.R. 3833 will correct a perverse system in which the non-profit
DOE contractors do not pay any fines when they commit nuclear safety
violations. H.R. 3906 will codify in law that same system of
independent security oversight that Secretary Richardson has already
put in place in DOE, and will provide for direct reporting to the
Congress. And H.R. 3907 will bring to an end DOE's attempt to regulate
itself. Instead, the Nuclear Regulatory Commission and the Occupational
Safety and Health Administration will become responsible for safety
regulation of the DOE complex. All three of these bills are meant to
provide DOE and its contractors with the right set of incentives to
take safety and security more seriously.
No doubt the DOE bureaucracy will resist these changes. Correcting
failures is always difficult, and is always resisted by those invested
in preserving the status quo. But the Nation cannot afford to keep
relying in blind faith on the failed promises of DOE that things will
get better. Taxpayers are going to have to spend hundreds of billions
to clean up environmental contamination throughout the DOE complex and
to compensate the workers harmed by DOE's careless safety practices.
Americans now have worry that slipshod security measures may have
allowed a foreign power to steal valuable nuclear weapons designs. It
is time to bring about a fundamental change in the culture at DOE. We
must ensure that these failures are never repeated in the future.
I commend Chairman Barton for his aggressive action on these bills,
and I hope he can bring them to Subcommittee markup in the very near
future.
Mr. Barton. We want to welcome our first panel. Your
statements are in the record in their entirety. We're going to
start with the General Counsel at the Department of Energy.
Then we will recognize the Chairman of the Nuclear Regulatory
Commission, Mr. Meserve, and then we will recognize Mr.
Conway--no, actually, Mr. Mande is more to the right, so we'll
recognize him and then Mr. Conway.
The subcommittee also wants to express its condolences to
Commissioner McGaffigan on the passing of your wife. We
understand that that was a very traumatic event, and I
personally have a great degree of sympathy for you since I have
a brother who has liver cancer that's been diagnosed as
incurable. So you have our prayers on that.
Ms. Sullivan, we're going to recognize you for 7 minutes.
We do thank you for getting your testimony in on time, barely,
but you did get it in on time. And so that's a good way to
start this hearing. Ms. Sullivan?
STATEMENTS OF MARY ANNE SULLIVAN, GENERAL COUNSEL, U.S.
DEPARTMENT OF ENERGY; HON. RICHARD A. MESERVE, CHAIRMAN;
ACCOMPANIED BY HON. GRETA JOY DICUS, COMMISSIONER; HON. NILS J.
DIAZ, COMMISSIONER; HON. EDWARD McGAFFIGAN, JR., COMMISSIONER;
HON. JEFFREY S. MERRIFIELD, COMMISSIONER,NUCLEAR REGULATORY
COMMISSION; HON. JEROLD R. MANDE, DEPUTY ASSISTANT SECRETARY
FOR LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION; AND
HON. JOHN T. CONWAY, CHAIRMAN, DEFENSE NUCLEAR FACILITIES
SAFETY BOARD
Ms. Sullivan. Thank you, Mr. Chairman and members of the
committee for the opportunity to discuss with you, H.R. 3907,
concerning external safety regulation; H.R. 3383, concerning
civil penalties for DOE nonprofit contractors; and H.R. 3906,
concerning internal security oversight at the Department.
I'd like to begin with external regulation. During the
1990's, the Department engaged in a systematic evaluation of
the advisability of external safety regulation. The culmination
of this effort was a joint pilot program by the Department and
the NRC to determine the cost and benefits associated with NRC
regulation.
Unlike previous studies, the joint pilot program involved
real-time simulation of external regulation. The findings of
the joint pilot program were quite informative, and led to the
decision by the Secretary not to seek external regulation by
NRC.
Secretary Richardson pointed to three key elements in
concluding that DOE should not proceed with NRC regulation: The
potential difficulties in implementation, the potential costs,
and the absence of a clear benefit to safety.
Implementation of NRC regulation would involve a number of
difficult, unresolved issues. I'll offer just a few examples:
NRC regulations and standards were developed for commercial
facilities. They were not developed with DOE's complex and
diverse activities in mind.
Application of NRC regulations to DOE activities would
require a substantial effort to accommodate the unique hazards,
operations, and security considerations at DOE.
NRC does not have experience in regulating certain kinds of
activities at DOE, such as accelerators. In addition, the pilot
program did not even consider defense nuclear facilities for
which there is no corresponding activity in the commercial
sector.
The joint pilot program could not reach consensus on
whether the licensee for a DOE activity should be the
Department, its contractor or both. On balance, DOE believed it
was essential for it to be the licensee, because DOE is
ultimately responsible for the facilities. NRC could not accept
this fundamental proposition.
Many DOE facilities are old. They have physical layouts and
equipment that cannot be readily changed. Backfit and other
legacy issues could be an especially difficult and costly
problem for facilities with relatively short remaining lives.
The Commission has specific requirements relating to the
schedule for deactivation and decommissioning. These are
intended to ensure that licensees complete their license
responsibilities while they still have a secure financial base.
This rationale carries considerably less weight when applied to
a Federal agency. More compelling funding priorities typically
account for delay in D&D activities, and external regulation
doesn't solve the funding problem.
Turning to the cost impacts, the joint pilot program did
not attempt to estimate incremental costs of external
regulation DOE-wide; rather, it focused only on the costs of
NRC regulation of the particular pilots that were analyzed.
Even so, some of the Department's estimates were
substantially higher than NRC's. The variation resulted from
uncertainty in the range of regulatory approaches that the NRC
might actually use for the many DOE activities that have no
current counterpart in the NRC regulatory regime.
The essential learning was that virtually every DOE
activity would have to be separately reviewed to determine the
regulatory regime, and the associated costs cannot be predicted
with any certainty.
We do know from our experience with NRC's certification of
the gaseous diffusion plants, the license transfer for Ft. St.
Vrain, and the licensing of the Idaho Spent Fuel Facility, that
initial cost estimates tend to be considerably lower than
actual costs.
The final, but, it seems to me, critical point is that the
joint pilot program did not demonstrate that NRC regulation
would result in more protection of workers, members of the
public, or the environment.
This is because of the tremendous strides, certainly not
yet complete, that the Department has made to improve safety.
This improvement results from, among other things, from the
creation of the Office of Enforcement and Investigation,
adoption of integrated safety management requirements in DOE
contracts, and independent oversight by the Defense Nuclear
Facilities Safety Board.
In light of the numerous unresolved issues associated with
transition to NRC, and the increasing success of initiatives to
improve safety at DOE, the Department cannot support H.R. 3907.
We believe that the substantial resources that would be
required to prepare for a shift to NRC regulation would be
better spent on cleanup and on ensuring compliance with
existing safety requirements.
Let me turn now to the issue of civil penalties for DOE
nonprofit contractors: DOE supports subjecting its nonprofit
contractors to civil penalties, limited to the amount of fee
the nonprofits receive under their contracts.
H.R. 3383 would subject nonprofits to civil penalties, but
it doesn't limit the amount of the penalties to the fee
provided for in the contract. The risk with that approach is
that the nonprofits may be unwilling to contract with the
Department because of fears of putting their endowments at
risk.
Alternatively, they may insist on fee increases,
disproportionate to the additional risk the civil penalties
represent. These higher fees would divert funds away from
fundamental DOE research.
Accordingly, the Department would like to work with the
committee on a provision to limit the penalties for nonprofits
to the amount of fee.
Finally, on the issue of internal security oversight, H.R.
3906 would require the Secretary to maintain an Office of
Independent Security Oversight, specify that Office's
jurisdiction, and impose certain specific reporting
requirements on both the Secretary and the Director of the
Office.
Among the Secretary's responses to concerns over security
last year, was the creation of just such an office, as the
Chairman recognized. This new office had its origin in the
Office of Oversight, reporting to the Assistant Secretary for
Environment, Safety, and Health.
The new office provides independent analysis of the
performance of safeguards and security functions across the
Department, but does so directly under the Secretary.
Since it was created, the office has successfully applied
the full range of its appraisal skills to the Department, and
as the Director testified last week, it will continue to do so
with regard to the NNSA.
The Department's threshold concern about H.R. 3906 is that
it proposes to rigidly define the structure of an office that
already exists. The office was created as a timely response to
significant security concerns.
The Department of Energy Organization Act gives the
Secretary broad reorganization powers to respond to such
circumstances. The Secretary wisely exercised those powers by
restructuring and refocusing an existing office, giving it
substantially new and important functions, and requiring it to
report to him.
When the Congress institutionalizes the structure and
mission of an organization like that, it deprives the
Department and future Secretaries of the ability to adapt to
changing circumstances in the future.
This concern is aggravated by other provisions of the bill.
Section 1 would mandate that the Director is not subject to
supervision by anyone other than the Secretary. This undermines
the Secretary's authority to decide internal reporting matters.
Section 2 would require the Secretary and the Director to
report to the Congress, areas where they have differences of
opinion. These required revelations would impair the
Secretary's ability to receive frank and candid advice from his
subordinates.
In addition, they improperly subject to Congressional
refereeing, any of the Secretary's management decisions with
which the Director might disagree.
In short, we are concerned that H.R. 3906 would, through
legislative mandate, threaten the success of a positive
management response to real problems.
Mr. Barton. Ms. Sullivan, you're 2 minutes over your 7
minutes. Is that it?
Ms. Sullivan. I'm concluded. Thank you very much for the
opportunity to address these important matters.
[The prepared statement of Mary Anne Sullivan follows:]
Prepared Statement of Mary Anne Sullivan, General Counsel, U.S.
Department of Energy
Thank you, Mr. Chairman and members of the Committee, for the
opportunity to discuss: H.R. 3907, concerning external safety
regulation of the Department of Energy (DOE) by the Nuclear Regulatory
Commission (NRC) and by the Occupational Safety and Health
Administration (OSHA); H.R. 3383, concerning civil penalties for safety
violations by non-profit DOE contractors; and H.R. 3906, concerning
internal security oversight within the Department.
external regulation
I will begin with the issue of external safety regulation of the
Department. During the 1990's, the Department engaged in a thorough and
systematic evaluation of the advisability of external safety regulation
of the Department. Options considered included broadening the scope of
oversight through the existing Defense Nuclear Safety Board, and
transferring responsibility to the Commission. The culmination of this
effort was a joint pilot program by the Department and the Commission
to determine the costs and benefits that would be associated with the
transition to external regulation under the Commission. Unlike previous
studies and analyses of the issue of external safety regulation, the
joint pilot program involved real-time simulation of external
regulation activities. Specifically, representatives of the Department
and the Commission worked together closely to determine what could be
expected if the Commission assumed regulatory responsibility for
Lawrence Berkeley National Laboratory (LBNL), the Receiving Basin for
Offsite Fuel (RBOF) at Savannah River, and the Radiochemical
Engineering Development Center (REDC) at Oak Ridge National Laboratory.
In addition to the joint pilot program, the Department has actual
experience with NRC licensing of facilities involving commercial
nuclear materials which are subject to NRC licensing under the Energy
Reorganization Act. DOE applied for and was granted a transfer of the
NRC materials license for the Fort St. Vrain Independent Spent Fuel
Storage Installation. DOE has also received a license for the dry
storage of core debris from the Three Mile Island Unit Two (TMI-2)
reactor at the Independent Spent Fuel Storage Installation at Idaho.
The Department also has experience with the Commission in the
certification of the gaseous diffusion plants (GDPs).
The findings of the joint pilot program were quite informative and
led to the decision by the Department not to seek a greater level of
external safety regulation of the Department than currently exists. In
his February 19, 1999, letters to Congress, Secretary of Energy, Bill
Richardson, characterized the insights gleaned from the joint pilot
program as follows:
These pilots have highlighted a number of significant,
unresolved issues including: ascertaining whether DOE or its
contractors should most appropriately hold a license; the
difficulties in assessing facility design under NRC standards
in some older facilities because we lack original construction
plans; the extent to which older facilities can be
``retrofitted'' or upgraded to meet NRC standards; applicable
standards for safeguards and security; deactivation and
decommissioning; and cost. Our analysis to date also indicates
that many of the potential benefits that we expected to see
from external regulation have not been demonstrated, and appear
to be outweighed by associated costs and difficulties raised in
the pilot projects.
I will elaborate on (1) the potential difficulties in implementing
external safety regulation, (2) the potential costs of external safety
regulation, and (3) the expected benefits for safety.
Implementation Issues
Implementation of external safety regulation would involve the
following unresolved issues:
<bullet> There are no ``standard'' DOE facilities. Most DOE activities
would have to be separately reviewed to determine the
individual elements of work that have no obvious counterpart in
the NRC regulatory regime. Thus the full complement of
requirements to effect external regulation of each of these
activities cannot be predicted with certainty.
<bullet> NRC regulations and standards were developed for commercial
facilities, many of which have a high degree of similarity to
one another. They were not developed with the complex and
diverse activities that are found in the DOE complex in mind.
Application of NRC regulations and standards to DOE activities
would require substantial effort to accommodate the unique
hazards, operations, and security considerations associated
with the DOE complex. NRC members of the joint pilot program
team suggested that existing NRC regulations and standards
could be made to fit through exemptions or through the
flexibility of a ``risk-informed, performance-based'' approach
to licensing. However, securing an exemption can require
considerable time and effort and ``risk-informed, performance-
based'' licensing is still a work in progress. In many cases,
the Commission might need to adopt new regulations and
standards for DOE activities or go through an administrative
process to adopt existing DOE standards.
<bullet> The Commission does not have experience in regulating certain
DOE activities. For example, accelerators do not typically
involve source, special nuclear, or byproduct materials and
thus do not come within the Commission's jurisdiction. In fact,
commercial accelerators have long been regulated by State
authorities. Similarly, many of the kinds of research
activities involving source and by-product materisals that
occur at Lawrence Berkeley National Laboratory are regulated by
States under Agreement State authority when these research
activities take place at non-federal facilities such as
educational and commercial laboratories. It should also be
noted that the joint pilot program did not consider external
regulation of DOE defense nuclear facilities. These defense
facilities conduct many unique activities for which there is no
corresponding activity in the commercial sector and thus for
which the Commission has no experience.
<bullet> NRC requirements, especially those relating to material
control and accountability (MC&A), reflect safeguard and
security considerations for commercial activities. The
safeguard and security considerations for DOE activities are
somewhat different. These differences do not relate to safety
concerns.
<bullet> The joint pilot program identified numerous impacts that would
arise from regulation by the Commission of some activities at a
DOE site but not other activities at the same site. These
impacts would relate primarily to the treatment of collocated
workers and of shared-site resources. At many DOE sites, it
might not be possible for the Commission to regulate DOE non-
defense activities without also regulating DOE defense nuclear
facilities.
<bullet> The joint pilot program could not reach consensus on whether
the licensee for a DOE activity should be the Department, its
contractor, or both. A strong argument can be made that the
Department should be the licensee because it is responsible for
the safety of its activities and provides the funding to the
contractor. On the other hand, the contractor is the entity
responsible for actually operating the facility, and thus for
implementing license requirements. On balance, the Department
concluded it should be the licensee in all such cases.
<bullet> Many DOE facilities were constructed many years ago and
possess physical layouts and equipment that cannot be readily
changed. If the Commission were to assume regulatory
responsibility for these facilities, it would be necessary to
deal with backfit and other legacy issues that do not relate
specifically to safety, but rather to technical compliance with
existing NRC requirements. This would be an especially
difficult and potentially very costly problem for facilities
with a relatively short remaining life.
<bullet> The Commission has many requirements relating to the schedule
on which certain activities must be undertaken. In many cases,
especially with respect to deactivation and decommissioning,
these schedule requirements are intended to ensure that the
licensee (often a private entity) completes its
responsibilities under the license while it still has a secure
financial base. That same rationale carries considerably less
weight when applied to an agency of the federal government. NRC
was offered that to impose these same requirements on DOE
unilaterally was not likely, but it could not guarantee
immediate relief without a legislative fix..
Cost Impacts
At the outset, it should be emphasized that the joint pilot program
did not attempt estimate incremental costs of external regulation, DOE-
wide. Rather, it focused on estimating the costs that would be
associated with the assumption by the NRC of regulation of LBNL, RBOF,
and REDC. The estimated costs can be summarized as follows:
<bullet> With respect to LBNL, the estimated costs to the Department
were $700,000 of transition costs and $500,000 of annual costs.
The estimated costs to the Commission were $430,000 of
transition costs (primarily to support a rulemaking on the
regulation of accelerators) and $30,000 of annual costs.
<bullet> With respect to RBOF, the estimated costs to the Department
were $6 to $13.5 million of transition costs and $1.5 to $3.2
million of annual costs. The estimated costs to the Commission
were $678,000 of transition costs and $347,000 of annual costs.
<bullet> With respect to REDC, the estimated costs to the Department
were $900,000 to $5 million of transition costs and $1.1
million of annual costs. The estimated costs to the Commission
were $1.1 million of transition costs and $347,000 of annual
costs.
Some of the Department's estimates are substantially higher than
the lower limit estimates provided by NRC staff. The variation in
estimates results from uncertainty in the range of approaches that the
NRC staff would actually use in resolving specific issues, based on the
NRC staff practices that have been used in recent years. For example,
the REDC regulatory pilot indicated two possible outcomes for
regulating materials (such as americium-252) central to the operation
of REDC. One outcome could be that the Commission would be willing and
able to reach a conclusion that DOE contractor's practices provided
equivalence with NRC's safety requirements, and that minimal costs
impacts could be obtained through a combination of waivers, adoption of
DOE safety requirements, and risk-informed, performance based
regulation. The other outcome could be that intervenors, or the NRC
staff, would cause the Commission to promulgate new sets of
requirements, and then demand compliance with the newly promulgated and
prescriptive requirements. It may well be that the lower range of cost
impacts would be obtained for all types of DOE activities, but it would
be a mistake to believe that such an outcome is guaranteed.
There are many DOE activities that have no direct counterpart in
the NRC regulatory regime, and therefore, the cost impacts would depend
on whether analogs to present regulatory practices were possible and
practical, or whether new approaches would have to be developed. The
joint pilot program has shown that, in some cases, it is possible to
use analogs, to assume that a broad regulation (such as 10 CFR Part 70)
is applicable, and to separate the components of that regulation into
elements of a fact-based cost estimate. However, the Department
believes that virtually every element of each DOE activity would have
to be separately reviewed. to determine whether it could be regulated
under the existing NRC regulatory regime or whether the Commission
would have to modify existing requirements or develop new requirements.
Where there is no direct counterpart in the NRC regulatory regime, the
costs associated with NRC regulation of the work cannot be predicted in
advance with any certainty.
Any attempt to extrapolate the estimated costs to the DOE complex
as a whole must take into account that the estimates developed as part
of the joint pilot program assumed favorable regulatory treatment of
many issues by the Commission and that LBNL, RBOF, and REDC represent
relatively simple facilities from the viewpoint of regulation by the
Commission. In addition, experience with the license transfer for Fort
St Vrain, the licensing of the spent fuel facility in Idaho, and the
certification of the GDPs indicates that initial estimates of the costs
associated with regulation by the Commission tend to be considerably
lower than the actual costs.
In the case of the Fort St. Vrain ISFSI, the Department applied for
and was granted a transfer of the NRC materials license. This facility
is perhaps the best possible and most straight forward application of
NRC regulations to a DOE activity. The facility was built and operated
under NRC regulation and the regulations were drafted with this
specific type of facility and activity in mind: dry storage of
commercial spent nuclear fuel. However, it took 3 years to effect the
license transfer. This was primarily a result of the Department's
needing to provide additional documentation about its management making
minor modifications to strictly adhere to specific details of NRC
requirements and NRC staff's unfamiliarity with the Department's
management approach and safety requirements. Another significant cost
involved with the transfer was the cost of creating and instituting a
quality assurance program that would meet NRC standards because the
Department's approach to obtaining a high level of quality is entirely
different than that of the Commission.
The Department has also licensed the Independent Spent Fuel Storage
Installation at Idaho for the dry storage of TMI-2 core debris. A
significant difference existed in the seismic design standards between
the Department and the Commission for low to moderate risk facilities
such as this one. The Department's Idaho Operations Office applied for
and was granted an exemption to the NRC seismic requirements. Had the
Department not been granted this regulatory exemption, it was estimated
that the facility would have cost as much as an additional $7 million
to build. To meet milestones for completing construction and moving
fuel into the dry storage facility contained in existing legal
agreements with the State of Idaho, the Department found it necessary
(and accordingly notified the Commission in writing) to proceed at risk
by releasing construction of facility equipment prior to design
approval by the Commission. Although the Commission did eventually
approve the design and no milestones were missed, the implications of
this event to future licensing activities are apparent: there is no
reason to doubt the Commission's ability and willingness to grant
appropriate exemptions, but there is a risk that needed and appropriate
exemptions would not be immediately forthcoming.
In the case of the GDPs, the transition costs were estimated
initially to be approximately $60 million. Thus far, the actual
transition costs have exceeded $300 million. Concurrently, the
transition period increased from an estimate of 2 years to 3 1/2 years.
It should be noted that the initial cost estimate was based on DOE's
general knowledge of NRC fuel facility requirements (10 CFR 70) as well
as initial interaction with NRC staff. The Commission, however, had
limited standards to regulate the GDPs due to the unique nature of the
facilities and operations. An extensive rulemaking process was needed
to develop new regulatory standards.
Improvements in Safety
The joint pilot program did not demonstrate that external safety
regulation could be expected to result in more protection of workers,
members of the public, or the environment. This results from: (1) DOE's
emphasis on the identification and implementation of appropriate
nuclear safety requirements; (2) creation of the Office of Enforcement
and Investigations and increased use of field offices to enforce
nuclear safety; (3) contract reform, including the adoption of
integrated safety management requirements in DOE contracts; (4)
continued independent oversight of nuclear safety matters by the Office
of Environment, Safety and Health as well as the Defense Nuclear
Facilities Safety Board and action on formal plans to address nuclear
safety issues, and (5) public participation in decisions concerning the
safety of DOE nuclear activities.
<bullet> The Department has improved the quality of the safety
requirements applicable to its nuclear activities in several ways. It
streamlined the nuclear safety orders and related documents in the DOE
directives system to reduce unnecessary and redundant requirements. At
the same time, where appropriate, the Department adopted certain
requirements as regulations through the rulemaking process, including:
(1) procedural requirements for DOE nuclear activities, including
procedures for investigating possible violations of nuclear safety
requirements and assessing civil penalties where such violations occur;
(2) radiological protection requirements for workers and other persons
involved in the conduct of DOE nuclear activities; (3) quality
assurance requirements; (4) requirements on workplace substance abuse
programs at DOE sites; and (5) whistleblower protection requirements.
The Department currently is completing additional regulatory
requirements on safety management and on radiological protection of the
public and the environment. In addition, the Department engaged in a
comprehensive exercise to ensure that the requirements used in
connection with a particular activity are sufficient to assure adequate
protection of workers, members of the public and the environment in a
manner commensurate with the type and complexity of the activity and
the associated hazards.
<bullet> The Department established the Office of Enforcement and
Investigations, which reports to the Assistant Secretary for
Environment, Safety and Health, to investigate possible violations of
the nuclear safety requirements and, where appropriate, to impose civil
penalties and other remedies and corrective actions. DOE field office
and program personnel assist in investigations and enforcement and
provide regular oversight of contractor activities.
<bullet> The Department has undertaken an extensive reform of its
contracting process to improve the management of work and safety
throughout the DOE complex. Specifically, it has revised the Department
of Energy Acquisition Regulation (DEAR) to include provisions on
performance-based contracting, competition, award fees, property
management, record-keeping, insurance, litigation, claims,
accountability provisions, and the conditional fee policy. The most
significant contract reform affecting nuclear safety is the adoption of
DEAR clauses that mandate: (1) the use of integrated safety management
systems and (2) the identification of laws, regulations, and DOE
directives to be applied to activities under DOE contracts.
<bullet> The DEAR clause on the Integration of Environment, Safety
and Health into Work Planning and Execution establishes a standard
prescribed contract clause on how contractors must perform work in a
manner that ensures adequate protection for employees, the public, and
the environment. It provides for: (1) defining the scope of work; (2)
identifying and analyzing hazards associated with the work; (3)
developing and implementing hazard controls; (4) performing work within
controls; and (5) providing feedback on adequacy of controls and
continuing to improve safety management. The clause establishes the
principles that: (1) line managers must be given responsibility and
held accountable for implementing health and safety requirements; (2)
clear lines of authority and responsibility must be established; (3)
workers and managers must have competence to assess and deal with the
hazards; (4) resources must be effectively allocated; (5) hazards must
be evaluated and an agreed-upon set of standards and requirements must
be established before work is performed; (6) administrative and
engineering controls must be tailored to the work and associated
hazards; and (7) conditions and authorization authorities must be
agreed upon. The clause specifically requires each contractor to submit
a safety management system description for approval by the Department
that explains how the contractor will implement the system to establish
performance objectives, measures and commitments; integrate work
planning, hazards assessment, hazard controls, budget and resource
planning and continuous improvement.
<bullet> The DEAR clause on Laws, Regulations and DOE Directives is
an integral part of the safety management system. This clause requires
clear identification of requirements, including nuclear safety
requirements, to be implemented in connection with nuclear activities
under a contract. In general, the clause requires a contractor either
to incorporate all applicable requirements in DOE Orders and
regulations or to use a tailoring process to develop a set of
environment, health and safety requirements that is commensurate with
the complexities and hazards associated with the work to be performed
under the contract.
<bullet> Since its creation in 1988, the Defense Nuclear Facilities
Safety Board has provided independent oversight of DOE defense nuclear
facilities and made many valuable recommendations on nuclear safety
issues. Implementing these recommendations has been and continues to be
an impetus for enhancing safety throughout the DOE complex. Indeed, DOE
has never rejected a Defense Board recommendation.
<bullet> The Department has adopted and implemented a Public
Participation Policy to foster improvements in nuclear safety by
ensuring decisions benefit from the perspective of those interested in
and affected by DOE activities, such as workers and those who live in
communities where DOE activities take place. In furtherance of this
policy, the Department has established citizens advisory boards (CABs)
at all its major sites to establish open, ongoing, two-way
communication, both formal and informal, between the Department and its
stakeholders. This process provides a diverse collection of opinions,
perspectives, and values and enables each party to learn about and
better understand each other's views and positions. As a result of such
communication, the Department can make better, more informed decisions.
Through these initiatives, the Department has substantially
improved its ability to provide a safe and healthy workplace, protect
the communities near our facilities, and preserve the environment. We
now have a strong safety structure under which: work and hazards are
evaluated; appropriate safety requirements are identified and imposed
on our contractors; integrated safety management operates to make
compliance with these requirements an integral part of how work is
performed; safety performance is an important part of determining
contract fees; the Office of Enforcement investigates possible
violations of safety requirements and imposes civil penalties where
appropriate; and the Defense Board and our Independent Oversight Office
verify how well the structure is working and make recommendations for
improvements.
H.R. 3907
In light of the numerous unresolved issues associated with a
transition to external safety regulation, the potential costs of such a
transition, and the ongoing success of the initiatives to improve
safety throughout the DOE complex, the Department cannot support
legislation to mandate external safety regulation by NRC of the
Department. The substantial funds that would be required to prepare DOE
facilities for a shift to external regulation would be better spent on
achieving the Department's cleanup and mission goals. The manpower that
would be required to implement a transition to external regulation
would be better used in overseeing compliance with the Department's
existing safety requirements.
With respect to H.R. 3907, I note that the bill does not address in
a meaningful manner the implementation issues identified by the joint
pilot program and does not provide funding for the increased costs to
both the Department and the Commission. In addition, the bill would
abolish the Defense Board and extend external safety regulation to DOE
defense nuclear facilities without any examination of the potential
effects of such action on the Department's national security missions.
civil penalties for nonprofit doe contractors
In its Report to Congress on the Price-Anderson Act (DOE Price-
Anderson Report), the Department indicated that it supported
continuation of the Congressional decision in the 1988 Price-Anderson
Act Amendments not to apply civil penalties to nonprofit contractors.
This decision reflected the belief of the Department that major
universities and other nonprofits would be unwilling to put their
educational endowments at risk for contract-related expenses such as
civil penalties and that the increase in fees they would insist upon to
protect against even the slim possibility of such a result would
outweigh the benefit of being able to assess penalties.
The Department also indicated that all nonprofit contractors,
nonprofit subcontractors and nonprofit suppliers should be treated the
same with respect to the applicability of civil penalties. Accordingly,
it suggested eliminating the statutory exemption for specific named
contractors and their subcontractors and suppliers and replacing it
with a generic exemption to cover all nonprofit contractors, nonprofit
subcontractors and nonprofit suppliers. This change would eliminate the
need to identify particular entities by name in the statute and also
eliminate the distinction between ``educational'' nonprofits and other
nonprofit entities. As part of such a change, the exemption of for-
profit subcontractors and suppliers to nonprofit contractors exempt by
statute would be eliminated.
Subsequent to the submission of the DOE Price-Anderson Report to
Congress, several DOE nonprofit contractors indicated they could accept
civil penalties if the amount of the civil penalties were limited to
the amount of the fee they received under their contracts with the
Department. Recently, S. 2162 has been introduced in the Senate to
extend the Price-Anderson Act. This Senate bill contains a provision
that would make a nonprofit DOE contractor subject to civil penalties
up to the amount of the fee provided for in its contract with the
Department. The Department supports this approach.
h.r. 3383
H.R. 3383 would likewise make nonprofit DOE contractors subject to
civil penalties, but it contains no provision that would tie the amount
of a civil penalty imposed on a nonprofit DOE contractor to the fee
provided for in its contract with the Department. The Department
supports subjecting non-profit contractors to civil penalties up to the
amount of the fee, but would need to consider further the implications
of allowing for such penalties to exceed the amount of fee provided for
in the contract.
internal security oversight
Now I will turn to H.R. 3906, which proposes to specify for DOE the
internal mechanisms and authorities to independently assess the
effectiveness of its policy and site performance in the areas of
safeguards and security and cyber security. This bill would require the
Secretary of Energy to maintain an ``Office of Independent Security
Oversight,'' specify that Office's jurisdiction, and impose peculiar
statutory reporting requirements on both the Secretary and the
Directory of the Office.
First, to put my comments in context, I would like to describe the
creation and functions of the Department's existing Office of
Independent Oversight and Performance Assurance. In response to
numerous concerns over security last year, Secretary Richardson
announced his Security Reform Package on May 11, 1999, a significant
feature of which was the creation of the Office of Independent
Oversight and Performance Assurance reporting directly to the
Secretary.
This new office had its origin in the Office of Oversight under the
Assistant Secretary for Environment, Safety and Health, which had been
responsible for the performance of safety and security reviews. The new
Office provides independent analysis of the performance of safeguards
and security and other critical functions from across the Department,
but does so directly under the Secretary.
Since it was created in May, the Office of Independent Oversight
has been headed by Mr. Glenn S. Podonsky. The office is staffed by
highly qualified and experienced personnel, many of whom are recognized
as national experts in their individual security disciplines. The
personnel are trained inspectors, skilled at determining, on a
practical level, the adequacy of protection programs. The Office
successfully has applied the full range of its appraisal skills to the
Department, and as Mr. Podonsky testified before the House Commerce
Committee on March 14, 2000, it will continue to do so with regard to
the NNSA.
My threshold objection to HR 3906 is that it proposes rigidly to
define the structure of an office which already exists within the
Department. The office was created by Secretary Richardson pursuant to
his management authorities under the Department of Energy Organization
Act as a timely response to significant security concerns facing the
Department. The Department of Energy Organization Act gives the
Secretary broad reassignment powers and appropriate reorganization
ability to respond to changing circumstances. The Secretary wisely
exercised those powers to respond to the Departmental security concerns
by restructuring and refocusing an existing office, giving it
substantially new and important functions, and requiring it to report
directly to him.
When the Congress institutionalizes the structure and missions of
an organization like the existing Office of Independent Oversight,
which was created by the Secretary to address a particular concern at a
particular time, it deprives the Department and future Secretaries of
the ability to adapt to changing circumstances and to craft appropriate
future responses, as the Secretary did in the case of the existing
Office of Independent Oversight and Performance Assurance. The result
is a significant erosion of the Secretary's management authority.
Rather than acknowledging the appropriateness of the Secretary's action
in creating the Office, HR 3906 potentially would hamstring the
Department in the future by institutionalizing an existing function
rather than permitting the Secretary to retain needed flexibility to
respond appropriately to changing circumstances.
This threshold concern is aggravated by other specific provisions
of the bill. The provision in Section 1(a) that would mandate that the
Director report directly to the Secretary and is not subject to
supervision by any other office within DOE is further evidence of the
bill's objectionable erosion of the Secretary's internal management
authority. The Secretary must retain the authority to decide the
internal reporting chain.
Section 2 contains additional objectionable features. Section 2(8)
would require that the Office of Independent Security Oversight to
transmit to the Congress and the Secretary annual reports, that include
a description of any significant security policy decision with which
the Office Director is in disagreement. Section 2(b) would also require
the Secretary to transmit to the Congress a report which includes an
identification of each significant problem, deficiency, or
recommendation in the Office's annual report with which the Secretary
is in disagreement, and an explanation of the reasons for any failure
on the part of DOE to complete corrective actions. Read together these
two subsections would require the Secretary and the Director to report
to the Congress areas where they have a difference of opinion. These
required revelations to the Congress by Departmental subordinates
impairs the Secretary's ability to receive frank and candid advice from
his subordinates. In addition, these peculiar reporting requirements
also improperly subject to Congressional refereeing any of the
Secretary's management decisions with which the Director might
disagree. Disagreements regarding execution of the law are proper
subjects of decisions by the President and his immediate subordinates,
not by elements of the legislative branch. On a practical level, these
concurrent reporting requirements would potentially undermine the kind
of positive working relationship between the Secretary and the Director
that has enabled the office to function so effectively since its
creation.
Section 2(d) contains a similar requirement for special reports.
The Director would be required to report immediately to the Secretary
and the Congress whenever the Director becomes aware of particularly
serious or flagrant problems or deficiencies. The Secretary then,
within seven days after receiving such a report, would be required to
report to the Congress on the corrective actions taken to address such
problems. This concurrent reporting requirement would again
inappropriately insinuate the Congress into the executive
decisionmaking process and execution of laws. Concurrent reporting
requirements may breach the separation of powers by disrupting the
chain of command within the executive branch. Here they would impede
the Secretary in exercising his responsibility to supervise and control
departmental subordinates. Moreover, this provision would infringe the
Secretary's authority, as the President's immediate subordinate and as
the head of an executive agency, to determine the executive branch's
views that are presented to Congress.
Finally, I have similar concerns about sections 2(e) and 2(f),
which inappropriately would prohibit the Secretary from altering,
modifying, or otherwise changing the substance of certain reports to
the Congress or testimony by his subordinate Office Director. The
Congress must determine what laws the President and Cabinet officers
are to enforce, but the Congress may not impair the President's
ability--through the Secretary--to determine the nature of official
communications to the Congress. Nor the Congress should dictate how the
Executive Branch is to execute the law. Efforts such as those contained
in this bill which seek to determine the precise organizational
structure of an executive branch department and the chain of command
with respect to internal management decisions serious threaten the
Secretary's ability to effectively and efficiently fulfill his
responsibilities to execute the law.
Mr. Barton. Thank you. We're going to recognize the
Chairman of the NRC, Mr. Meserve. I'm going to run and vote.
Congresswoman Wilson is going to take the Chair, and I will
rush back. We're going to try to continue the hearing without
having to suspend for the vote.
You are recognized for 7 minutes.
STATEMENT OF HON. RICHARD A. MESERVE
Mr. Meserve. Good morning. It is a pleasure to appear
before you today to discuss the proposal for external
regulation of facilities owned or operated by the Department of
Energy and in particular to explain the Commission's views in
the recently introduced bill, H.R. 3907, External Regulation of
the Department of Energy Act.
I am joined by my fellow Commissioners Greta Dicus, Nils
Diaz, Edward McGaffigan, Jr., and Jeffrey Merrifield.
As the Commission has previously testified, the Commission
believes that the NRC could be the sole regulator of DOE's
nuclear and radiological safety if the Congress determined that
such regulation was in the best interests of the nation. The
Commission also testified that we believe that a majority of
the technical, policy and regulatory issues identified during
the NRC-DOE pilot program at three DOE facilities can be
adequately resolved in the existing NRC regulatory framework.
We see a path to resolving the issues and we continue to
stand by our previous testimony.
Today we are testifying on a significantly different
approach than that discussed in our previous testimony. H.R.
3907 would require the NRC to assume regulatory jurisdiction
over the entirety of DOE's activities, both defense and
nondefense at one time. The Commission strongly prefers a
multiphased approach.
Our concern is that a one-phase approach could divert
significant agency resources from important ongoing regulatory
initiatives relating to current NRC licensees. These
initiatives, which include license renewal, license transfers,
a new reactor oversight process, a more effective license
amendment process, and dry cask storage for spent nuclear fuel,
have been urged by Congress and require significant agency
resources to bring to fruition. NRC previously testified that
it could initially regulate the relatively less complex, less
costly facilities of DOE's Office of Energy Research, now the
Office of Science, and the Office of Nuclear Energy, which is
now the Office of Nuclear Energy, Science and Technology and
that, subject to receiving adequate resources, the NRC could
then gradually phase in the more complex, more costly
facilities of DOE's Office of Environmental Management and the
National Nuclear Security Administration over a period of
years.
Assuming responsibility for all DOE nuclear facilities at
one time could overwhelm the agency and place at risk the
critical regulatory initiatives currently underway, thus the
Commission does not believe that the approach described in H.R.
3907 is feasible, even if significant resources were made
available. Indeed, we would have a very hard time estimating
the necessary NRC resources without further study.
Let me give you an example of the cost associated with a
very complex facility. The NRC now provides regulatory advice
to the DOE concerning DOE's Hanford Tank Waste Remediation
Systems Project. This effort includes a resident inspector who
is onsite full-time and requires significant involvement both
by our Headquarters Staff and our Center for Nuclear Waste
Regulatory Analyses in Texas.
There is no prospect for an NRC regulatory role until at
least 2015 under DOE's current program, yet NRC's current
assistance is costing about $2.4 million each year. The Hanford
Project is extraordinarily complex. Nonetheless there are many
complex DOE/EM and NNSA facilities presenting many challenges
both from a technical and a programmatic perspective.
The immediate assumption of authority over potentially
hundreds of such complex DOE/EM and NNSA facilities would
likely overwhelm our staff and put at risk the progress we have
made in regulatory initiatives affecting our current licensees.
Accordingly the Commission respectfully urges the committee
to consider the phased approach to external regulation of DOE
advocated in 1996 by DOE's own Working Group on External
Regulation. We would see an overall gain in public health and
safety only if NRC regulation of DOE were undertaken in a
manner that does not risk diverting the Commission's attention
from NRC's primary mission of ensuring the safety and security
of civilian nuclear facilities.
As I stated at the outset, we believe that a majority of
the technical, policy and regulatory issues identified during
the NRC-DOE pilot program can be adequately resolved within the
existing NRC regulatory framework. Others will require
clarification in statute. We would be pleased to work with the
committee on these provisions.
In conclusion, we appreciate the confidence that this
subcommittee has demonstrated in NRC by introducing H.R. 3907.
We support the bill in spirit but strongly believe that a
phased approach focusing on the less complex and less costly
DOE facilities should be the first step. We stand ready to work
with the committee to identify an appropriately phased
approach. Thank you.
[The prepared statement of Hon. Richard A. Meserve
follows:]
Prepared Statement of Richard A. Meserve, Chairman, U.S. Nuclear
Regulatory Commission
Mr. Chairman and Members of the Subcommittee: It is a pleasure to
appear before you today to discuss the proposal for external regulation
of facilities owned or operated by the Department of Energy, and in
particular to explain the Commission's views on the recently introduced
bill, H.R. 3907, ``External Regulation of the Department of Energy
Act.'' As the Commission previously testified before the House Science
Committee's Subcommittee on Energy and Environment on July 22, 1999,
and before the House Commerce Committee's Subcommittee on Energy and
Power on May 20, 1998, the Commission believes that NRC could be the
sole external regulator of DOE nuclear and radiological safety, if the
Congress determined that such regulation was in the best interests of
the Nation. The Commission also testified that we believe that a
majority of the technical, policy, and regulatory issues identified
during the NRC/DOE pilot program at three DOE facilities can be
adequately resolved within the existing NRC regulatory framework. We
see a path to resolving the remaining issues and we continue to stand
by our previous testimony.
Today we are testifying on a significantly different approach than
that discussed in previous Commission testimony. H.R. 3907 would
require the NRC to assume regulatory jurisdiction over the entirety of
DOE's activities--both defense and non-defense--at one time. The
Commission strongly prefers a multi-phased approach, as former Chairman
Dicus testified to the House Science Committee in July of last year.
Exactly such a multi-phased approach was contemplated by the House
Science Committee last fall in Section 15 of H.R. 1656.
Our concern is that a one-phase approach could divert significant
agency resources from important ongoing regulatory initiatives relating
to current NRC licensees. These initiatives, in areas such as license
renewal, license transfers, a new reactor oversight process, a more
effective license amendment process, and dry cask storage for spent
nuclear fuel, have been urged by Congress and require significant
agency resources to bring to fruition. NRC previously testified that it
could initially regulate the relatively less complex, less costly
facilities of DOE's Office of Energy Research, now the Office of
Science (SC), and Office of Nuclear Energy, now the Office of Nuclear
Energy, Science, and Technology (NE)--and that, subject to receiving
adequate resources, it could then gradually phase in the more complex,
more costly facilities of DOE's Office of Environmental Management (EM)
and the National Nuclear Security Administration (NNSA) over a period
of several years. Assuming responsibility for all DOE nuclear
facilities at one time could overwhelm the agency and place at risk the
critical regulatory initiatives currently underway. Thus, the
Commission does not believe that the approach described in H.R. 3907 is
feasible, even if significant resources were made available. Indeed,
aside from the SC and NE facilities, at this point we would have a very
hard time estimating the necessary NRC resources without further study.
Let me give you an example of the cost associated with a very
complex facility. The NRC now provides regulatory advice to the DOE
concerning DOE's Hanford Tank Waste Remediation Systems project. This
effort includes a resident inspector, who is on site full time, and
significant involvement both by our Headquarters staff and our Center
for Nuclear Waste Regulatory Analyses in Texas. There is no prospect
for an NRC regulatory role until at least 2015 under DOE's current
program, yet NRC's current assistance is costing about $2.4 million
each year. The Hanford project is extraordinarily complex. Nonetheless,
there are many complex DOE EM and NNSA facilities presenting many
challenges, both from a technical and programmatic perspective. Without
a transition period and phased approach, we would have great difficulty
estimating the likely NRC resources required. The immediate assumption
of authority over potentially hundreds of such complex DOE EM and NNSA
facilities would likely overwhelm our staff and put at risk the
progress we have made in regulatory initiatives affecting our current
licensees.
The Commission respectfully urges the Committee to consider the
phased approach to external regulation of DOE advocated in 1996 by
DOE's Working Group on External Regulation. We would see an overall
gain in public health and safety only if NRC regulation of DOE were
undertaken in a manner that does not risk diverting the Commission's
attention from the NRC's primary mission of ensuring the safety and
security of civilian nuclear facilities.
Another issue which is not addressed in the bill is NRC's authority
to regulate safeguards--that is, physical protection and material
control and accounting. We believe that these matters are so integrally
linked to safety issues that it is important for the effectiveness of
NRC's regulatory oversight that safeguards authority be explicitly
included.
As I stated at the outset, we believe that a majority of the
technical, policy, and regulatory issues identified during the NRC/DOE
pilot program can be adequately resolved within the existing NRC
regulatory framework. Others will require clarification in statute. We
would be pleased to work with the Committee on these provisions.
In conclusion, we appreciate the confidence that this Committee has
demonstrated in NRC by introducing H.R. 3907. We support the bill in
spirit, but strongly believe that a phased approach focusing on the
less complex and less costly DOE SC and NE facilities should be the
first step. We stand ready to work with the Committee to identify an
appropriately phased approach.
Thank you Mr. Chairman. We would be pleased to answer any questions
that you and Members of the Subcommittee may have.
Mrs. Wilson [presiding]. Thank you. I understand the other
Commissioners are here for answering of questions and so we
will turn to the Honorable Jerold Mande, Deputy Assistant
Secretary for Labor Occupational Safety and Health
Administration--can you fit that on a business card?
Mr. Mande. No. It's tough. It's hard to read then.
Mrs. Wilson. Thank you.
STATEMENT OF HON. JEROLD R. MANDE
Mr. Mande. Madam Chairman, members of the subcommittee,
thank you for the opportunity to testify this morning on the
important issue of external regulation of worker health and
safety for private sector employees at work sites owned or
operated by the Department of Energy.
This issue is of great interest and importance to OSHA in
keeping with our mission to assure that every working man and
woman in the Nation is provided with safe and healthful working
conditions. We appreciate your keen interest in this matter.
OSHA has undertaken a number of cooperative projects with
DOE to better understand the effect of external regulation on
worker safety. OSHA has completed two recent major pilot
projects at DOE sites. In the summer of 1998 OSHA conducted a
large scale pilot at Oak Ridge, Tennessee, and in January 1999
OSHA conducted a pilot project at the Lawrence Berkeley
National Laboratory in California as part of an ongoing NRC
pilot project at the Berkeley site.
OSHA had three objectives for the pilot projects--one, to
better assess the nature and severity of the site hazards as
well as assess the adequacy of OSHA's standards, training and
staff expertise to address them; two, to assess the potential
impacts of external regulation on the agencies involved and
approximate what would occur on an actual OSHA visit under
external regulatory authority; and three, to provide a forum
for OSHA and NRC to evaluate regulatory interface issues at the
DOE sites.
At both sites OSHA conducted simulated inspections that
included opening and closing conferences with employers and
employees, physical walk-throughs of the work sites to identify
hazards and the preparation and simulation of citations and
proposed penalties. OSHA prepared simulated citations and
proposed penalties for the University of California, the site
contractor and for DOE, the facility owner, even though OSHA
does not currently have legislative authority to enforce
penalties against state or Federal entities. It has been OSHA's
experience however that worker safety and health are best
protected when OSHA has the ability to fine both the facility
owner, who controls the work site, and the contractors working
at the site.
So what did OSHA learn from its pilot activities? Our
overall conclusion is that there are a number of legislative
policy, logistical, and resource issues that must be addressed
for external regulation to be accomplished in an orderly
manner. However, OSHA believes none of the problems and issues
is insurmountable and with careful and coordinated planning
within the Administration and with Congress external regulation
of DOE sites for occupational safety and health is in our
opinion an achievable objective.
The pilot projects demonstrated clearly to OSHA that
external regulation would have a significant impact on DOE's
current operating practices. Today DOE identifies hazards,
often only takes appropriate interim measures and then attempts
to obtain funding to address the hazard's permanence. When the
funding does not materialize, it results in a growing backlog
of unabated hazards.
The OSHA-simulated inspections identified 75 violations at
Oak Ridge and 62 at Berkeley. This number of violations is
slightly higher than average. Injury and illness rates were
also above the national average at these sites. OSHA's review
of the site safety and health programs revealed that DOE and
its contractors have implemented generally good worker safety
and health programs, although the pilots did not find the level
of employee involvement in safety and health issues that OSHA
would expect to find in an excellent safety and health program.
Madam Chairman, you have asked for comments on three
bills--H.R. 3383, H.R. 3906, and H.R. 3907. We have no comment
on H.R. 3383 and 3906, because neither bill appears to impact
OSHA's program.
H.R. 3907, on the other hand, would significantly impact
OSHA. It would transfer to OSHA from DOE regulatory and
enforcement responsibilities relating to matters covered by the
Occupational Safety and Health Act with regard to all
facilities owned or operated by DOE. OSHA and NRC would be
required to enter into a Memorandum of Understanding that would
govern the exercise of our respective authorities over nuclear
safety and occupational health and safety at DOE owned or
operated facilities and transmit that memorandum to Congress by
January 1, 2001. The overall effective date for the transfer of
authority to OSHA from DOE would be October 1, 2001.
OSHA believes that external regulation proposals should be
evaluated based on their likely impact on worker safety. As I
have presented in my testimony, we have been working with DOE
and NRC through pilot projects and other activities to gain a
better understanding about the implications of external
regulation on worker safety and on OSHA's existing programs and
resources.
At this time in light of the numerous unresolved issues
associated with the transition to external safety regulation,
we are not yet prepared to take a position on H.R. 3907.
In closing, Madam Chairman, it is our view that OSHA
regulation of occupational safety and health at DOE sites
should be authorized only if such action would lead to better
protection for workers. A number of studies and advisory groups
have in fact concluded that employees would benefit from
external regulation of occupational safety and health.
The recent pilot projects have reinforced our position that
external regulation is an achievable objective, but OSHA is not
seeking the additional responsibility for enforcement at DOE
sites. The agency has for several years undertaken a variety of
cooperative projects and activities with DOE to prepare for
external regulation. We must reiterate our caution, however,
that if the transition is to be successful, it must be
conducted in an orderly way with reasonable timeframes to avoid
unnecessary disruption to OSHA's other important ongoing
programs and resource requirements, a need to be carefully
assessed. Thank you.
[The prepared statement of Hon. Jerold R. Mande follows:]
Prepared Statement of Jerold R. Mande, Deputy Assistant Secretary of
Labor for Occupational Safety and Health
Mr. Chairman, Members of the Subcommittee: Thank you for the
opportunity to testify this morning on the important issue of external
regulation of worker safety and health for private-sector employees at
facilities owned or operated by the Department of Energy. This issue is
of great interest and importance to the Occupational Safety and Health
Administration in view of the Department of Labor's mission to assure
that every working man and woman in the Nation is provided with safe
and healthful working conditions. We therefore appreciate your keen
interest in this matter.
OSHA has undertaken a number of cooperative projects with DOE to
better understand the effect of external regulation on worker safety.
Before I discuss those with you, however, I want to briefly describe
OSHA's legislative authority at DOE facilities, and to summarize some
of major events and reports on external regulation.
OSHA Jurisdiction at DOE Sites
Section 4(b)(1) of the Occupational Safety and Health Act of 1970
(OSH Act) removes from OSHA's coverage working conditions for which
another Federal agency (or State agency acting under the Atomic Energy
Act) has prescribed or enforced safety and health regulation. This
exemption is designed to prevent the duplication of Federal effort. The
section 4(b)(1) exemption currently applies to DOE.
Most of the workers at DOE sites are employees of private-sector
companies with which DOE contracts or subcontracts. These private
employers are exempt from OSHA enforcement, because DOE has chosen to
prescribe its own safety and health requirements. This was also the
case with DOE's predecessor agencies, the Atomic Energy Commission and
the Energy Research and Development Administration.
In any discussion of external regulation, OSHA is particularly
concerned to ensure that the level of protection we would provide is
equal to or greater than that now provided under DOE coverage. DOE has
adopted most of OSHA's regulations as the foundation for its own
regulatory programs, so many of the substantive safety and health
requirements for DOE contractors are the same as they would be under
OSHA. However, in addition to adopting OSHA regulations, DOE has
developed some occupational safety and health regulations of its own,
such as more up-to-date radiation and chemical exposure standards, as
well as firearm and explosives safety standards. If OSHA were to assume
authority at DOE facilities, we would need to adopt similar
requirements so that employee protection would not be diminished. It is
important to understand that even if OSHA becomes the external
regulator of worker safety and health at DOE sites, that does not make
OSHA the manager of safety and health at the DOE sites. Under the OSH
Act, the primary compliance responsibility still rests with the
contractors and subcontractors, and, to some extent, with DOE as the
site owner, to provide safe and healthful workplaces and to comply with
OSHA's regulations and standards.
Background on External Regulation
OSHA's interaction with DOE has increased since the early 1990s,
when OSHA was engaged in a number of so-called ``Tiger Team'' reviews
of DOE sites. In 1995, the DOE Advisory Committee on External
Regulation of Department of Energy Nuclear Safety issued its report
entitled ``Improving Regulation of Safety at DOE Nuclear Facilities.''
The report concluded that, although DOE could regulate its own
operations, it was not viewed by the public as credible, and therefore
recommended the creation of a system of external regulation.
Specifically, the Advisory Committee noted that OSHA should regulate
all worker protection issues at DOE nuclear facilities, except when
that regulation would significantly interfere with maintaining facility
safety (e.g., if a nuclear chain reaction was possible.) In such cases,
the Advisory Committee recommended that the designated nuclear facility
safety agency, such as the Nuclear Regulatory Commission (NRC) or the
Defense Nuclear Facilities Safety Board, should regulate worker safety
and health issues under the Atomic Energy Act (AEA).
A subsequent DOE working group reviewed the Advisory Committee's
recommendations and concurred with their findings on a number of
issues, including those regarding OSHA. Another report, issued in 1997
by the National Academy of Public Administration, also concluded that
OSHA should have jurisdiction for occupational safety and health, and
made recommendations on a host of policy and implementation issues that
would need to be addressed to effect this transfer.
The Department of Labor and OSHA have previously stated that
external regulation, if authorized, needs to be done in an orderly way
with reasonable time frames. Transition must be implemented without
disruption to OSHA's ongoing programs, and the resource requirements to
address this responsibility need to be assessed.
OSHA/DOE Pilot Projects
OSHA has completed three major pilot projects at DOE sites. In
1996, we completed a pilot project at Argonne National Laboratory. More
recently, in 1998, OSHA conducted a large scale pilot at Oak Ridge,
Tennessee, which included both the Oak Ridge National Laboratory and
the East Tennessee Technology Park, formerly known as the K-25 site.
In January, 1999, OSHA conducted a pilot project at the Lawrence
Berkeley National Laboratory in California. The OSHA activities under
the Berkeley pilot project were incorporated into an ongoing N RC pilot
project that had been underway at the Berkeley site for approximately
one year. Representatives of Cal-OSHA, the OSHA-approved California
state occupational safety and health program, also participated in the
Berkeley pilot project.
OSHA had three objectives for the recent pilot projects:
1. to gain first hand information about both sites, in order to better
assess the nature and severity of the hazards, as well as
assess the adequacy of OSHA's standards, training, and staff
expertise to address them;
2. to assess the potential impacts of external regulation on the
agencies involved and approximate what would occur on an actual
OSHA visit under external regulatory authority; and
3. to provide a forum for OSHA and NRC to evaluate regulatory interface
issues at DOE sites, since both agencies have a potential role
in radiation safety at the sites.
OSHA inspected only 16 individual facilities at Oak Ridge and
Berkeley. The two pilot sites were far too large for OSHA to attempt
wall-to-wall inspections of all the individual buildings and facilities
at the two sites. Thus, we selected a representative mix of operations
to inspect.
At both Oak Ridge and Berkeley, OSHA conducted simulated
inspections to study the potential impacts of external regulation.
These simulated inspections, like actual OSHA inspections, included:
<bullet> opening and closing conferences with employers and employees,
<bullet> physical walk-throughs of the work sites to identify hazards,
and
<bullet> the preparation of simulated citations and penalties.
OSHA also conducted post-inspection informal conferences with DOE
contractor employers and workers to discuss cited hazards, simulated
citations and penalties, abatement methods and time frames, and other
items regarding the inspection.
OSHA prepared simulated citations and proposed penalties for the
University of California, the site contractor, even though OSHA does
not currently have legislative authority to enforce penalties against
State governments and their subdivisions. OSHA also prepared simulated
citations and proposed penalties for DOE, the facility owner, even
though OSHA does not currently have legislative authority to enforce
penalties against federal agencies such as DOE. I would note, Mr.
Chairman, that it has been OSHA's experience that worker's safety and
health are best protected when OSHA has the ability to fine both the
facility owner who controls the worksite and contractors working at the
site.
OSHA also evaluated the safety and health programs at the two
sites. A site's safety and health program is a good measure of
management's commitment and employees' involvement in safety and health
matters at the site. These evaluations were designed to determine
whether DOE contractors have effective systems in place to identify and
control hazards, record safety and health problems, and train
employees.
So, what did OSHA learn from its participation in these pilot
activities? Our overall conclusion from both the Oak Ridge and Berkeley
pilots is that there are a number of legislative policy, logistical,
and resource issues that must be addressed for external regulation to
be accomplished in an orderly manner. However, none of the problems or
issues is viewed as insurmountable; and with careful and coordinated
planning within the Administration and with Congress, external
regulation of DOE sites for occupational safety and health is an
achievable objective.
The pilot projects demonstrated clearly to OSHA that external
regulation would have a significant impact on DOE's current operating
practices due to the existence of legacy hazards. Legacy hazards are
site hazards that have been self-identified by DOE, but not corrected
because of budget constraints. Limitations on available budgetary
resources lead DOE to prioritize its treatment of identified hazards
based on their potential severity and likelihood of occurrence. When
DOE first identifies hazards, it may not be able to correct them right
away. Rather, it will prioritize the hazards, take appropriate interim
measures, and then attempt to obtain full funding to fully address the
hazards permanently. Until DOE eliminates such hazards, they are known
as ``legacy hazards.''
Any move toward external regulation must include a careful
assessment of these legacy hazards, and a plan for abating them. The
cost of correcting legacy hazards is likely to be significant, but it
is important to recognize that these hazards need to be addressed
independent of external regulation and thus should not be considered a
cost of external regulation by OSHA.
The pilot projects also highlighted the fact that OSHA and DOE
evaluate the seriousness of safety and health hazards differently. OSHA
found a number of hazards that DOE would consider a low priority, but
which OSHA would classify as serious. OSHA places greater weight on the
severity of a possible injury or illness in assessing its seriousness.
For example, OSHA considers an electrocution hazard as serious even if
there is a very small chance it would occur. In assessing the same
hazard, however, DOE factors in an estimate of the probability that an
event would occur, assigning lower priority to hazards that it believes
are less likely to occur.
The OSHA-simulated inspections identified 75 violations at Oak
Ridge and 62 at Berkeley. This number of violations is slightly higher
than average for an OSHA inspection. OSHA classified many of the
violations as serious.
OSHA also evaluated the adequacy of its own standards. The majority
of hazards found at DOE sites are addressed by existing OSHA standards
and requirements. A principal exception is the OSHA standard for
ionizing radiation, which needs to be upgraded. Another area where OSHA
may need to work on a new standard for DOE sites is Firearms and
Explosives, which are not specifically addressed by current OSHA
regulations.
OSHA's review of the sites' safety and health programs revealed
that DOE and its contractors have implemented generally good worker
safety and health programs. However, both pilot sites could be
improved. For example, based on OSHA's abbreviated analysis, we do not
believe either site would be eligible for participation in OSHA's
Voluntary Protection Program. VPP participants are a select group of
facilities that have designed and implemented outstanding health and
safety programs.
Key to an excellent safety and health program is employee
participation. The pilots did not find the level of employee
involvement in safety and health issues at these research-related
facilities that OSHA would expect to find in an excellent safety and
health program. Workers were engaged to a degree, but in general,
occupational safety and health is not as integral a part of the site
work as OSHA would require under VPP.
Other areas OSHA identified as needing improvement include: record
keeping discrepancies and the increased integration of subcontractors
into the safety and health program at Oak Ridge, and the need for a
stronger, more visible industrial hygiene program at Berkeley. Injury
and illness rates at Oak Ridge and Berkeley were also above the
national average.
Funding for Pilot Projects and Other Activities
As you know Mr. Chairman, in Fiscal Year 1999, Congress provided
for DOE to transfer $1 million to OSHA to conduct pilot programs and
other activities at DOE facilities. OSHA spent a small portion of these
funds to undertake the pilot project at Berkeley in January, 1999. In
the absence of additional pilot projects for the remainder of the
fiscal year, however, OSHA and DOE mutually agreed to utilize the
remaining funds to undertake other activities that would assist us in
preparing for external regulation.
OSHA used the funds for three projects: development of training
materials for OSHA compliance officers; a study of background
information on ionizing radiation; and a comparison of OSHA's Voluntary
Protection Program (VPP) to that implemented by DOE. We are working
with a contractor to develop materials that will prepare our compliance
staff to effectively deal with issues they will confront if we assume
responsibility for DOE sites. For example, we would like to enhance the
skills and knowledge of the agency's industrial hygienists regarding
radiation.
In addition, OSHA has funded a study of ionizing radiation that the
agency could use to update our radiation safety and health standard.
OSHA's ionizing radiation standard is out of date and needs to be
revised. As an interim measure, OSHA has proposed that any plan for
external regulation needs to include legislation that would allow OSHA
to implement the current DOE or NRC rule at DOE sites as an interim
final standard while OSHA proceeds with rulemaking on a final standard.
This would ensure that workers at DOE sites under OSHA coverage would
not be subject to less stringent radiation regulations under external
regulation by OSHA, until the agency is able to produce a final rule.
OSHA also funded an analysis of the DOE VPP program. The analysis
is expected to highlight the unique aspects of the DOE program and
provide OSHA a basis for developing a policy on the possible acceptance
of DOE VPP sites into the OSHA VPP program under external regulation.
Congress also provided for DOE to transfer $1 million in Fiscal
Year 2000 funds to OSHA. We are currently discussing its use with DOE.
OSHA has proposed to use the funds for full-time positions in the field
and the National Office to deal with enforcement and related issues at
non-Atomic Energy Act DOE sites for which OSHA currently has
jurisdiction, and to evaluate privatized facilities for potential OSHA
regulation.
On July 13, 1999, Assistant Secretary Jeffress sent a letter to
Dr. Michaels at DOE clarifying OSHA's position on safety and health
jurisdiction at DOE-owned sites that are not regulated under the Atomic
Energy Act. OSHA has agreed with DOE that we have jurisdiction for
safety and health enforcement at these facilities. DOE estimates that
more than 9,000 Federal and contract employees at dozens of sites are
covered.
Legislation
Mr. Chairman, you have asked for comments on three bills: H.R.
3383, which would eliminate the exemption from civil penalties for
nuclear safety violations by non-profit DOE contractors; H.R. 3906,
which seeks to strengthen internal security oversight within the
Department; and H.R. 3907, which would establish external safety
regulation over DOE facilities. We have no comment on H.R. 3906,
because it does not appear to impact OSHA's program. Based on our
preliminary review, we also have no comment on H.R. 3383, since it
applies to enforcement under the Atomic Energy Act. OSHA conducts its
enforcement activity under the authority of the Occupational Safety and
Health Act of 1970.
H.R. 3907, on the other hand, would significantly impact OSHA. It
would transfer to OSHA from DOE regulatory and enforcement
responsibilities relating to matters covered by the Occupational Health
and Safety Act of 1970 with regard to all facilities owned or operated
by DOE. OSHA would share these responsibilities with NRC for workplace
hazards that include radiological components. OSHA and NRC would be
required to enter into a memorandum of understanding that would govern
the exercise of our respective authorities over nuclear safety and
occupational health and safety at DOE owned or operated facilities, and
transmit the memorandum to Congress by January 1, 2001. The overall
effective date for the transfer of authority to OSHA from DOE would be
October 1, 2001.
OSHA has not taken a position regarding the desirability of
external regulation. Rather, the agency has engaged in pilot projects
and other activities to gain a better understanding about the
implications of external regulation on OSHA's program and resources. At
this time, in light of the numerous unresolved issues associated with a
transition to external safety regulation, the potential costs of such a
transition to OSHA, and the short amount of time we have had to examine
H.R. 3907, we are not yet prepared to take a position on the bill.
One issue that requires careful review by all parties involved is
resources. In the past OSHA has produced resource estimates for the
assumption of safety and health jurisdiction for the DOE complex. These
estimates need to be updated and refined based on current information
indicating exactly what sites would be transferred. The coverage of
defense-related activities on these sites also needs to be examined, in
light of the broad scope of H.R. 3907. Beyond resource issues, there
are security issues and other matters that need to be addressed.
Finally, we note that H.R. 3907 refers to section 211 of the Energy
Reorganization Act of 1974. On March 14, 2000, the Department of Labor
and the Nuclear Regulatory Commission jointly transmitted proposed
legislation to the Congress recommending that the worker protections in
section 211 be strengthened. A copy of that transmittal is attached to
this testimony.
Conclusion
In closing, Mr. Chairman, it is our view that OSHA's regulation of
occupational safety and health at DOE sites should be authorized only
if such action would lead to better protection for workers. A number of
studies and advisory groups have in fact concluded that employees would
benefit from external regulation of occupational safety and health.
The recent pilot projects have reinforced our position that
external regulation is achievable. While OSHA is not seeking the
additional responsibility for enforcement at DOE sites, the agency has
for several years undertaken a variety of cooperative projects and
activities with DOE to prepare for external regulation, including the
recent pilot projects. We must reiterate our caution, however, that if
the transition is to be successful, it must be conducted in an orderly
way, with reasonable time frames to avoid unnecessary disruption to
OSHA's other important ongoing programs, and resource requirements need
to be assessed.
Thank you.
Mrs. Wilson. Thank you--and the Honorable John T. Conway,
the Chairman of the Defense Nuclear Facilities Safety Board.
STATEMENT OF HON. JOHN T. CONWAY
Mr. Conway. Mrs. Wilson and Chairman Barton and other
members of your committee, my pleasure in being with you here
this morning is somewhat tempered with the fact that one of the
bills you propose to make into law would do away with the
organization I represent. So, I would call your attention to
the fact that, I and other members of the board that are here
with me today, the submission that we are making with regard to
the bill and with regard to other matters that this committee
is taking into consideration is the unanimous position of the
board. I am a spokesperson for the board and the other members
are here with me--Dr. Eggenberger, who is the Vice Chairman,
Mr. Joe DiNunno, and Mrs. Jessie Hill-Roberson are here with
me. One other member of our board is on travel previously
arranged prior to the notice to appear here with you.
Mr. Chairman, as I mentioned in my opening statement, my
pleasure with being with you here this morning is somewhat
tempered by the fact that your bill would do away with my
organization----
Mr. Barton. There is good news and bad news.
Mr. Conway. Let me say this. In 1998, November 1998, on the
request of the Congress, our board submitted to the Congress a
very detailed report on the matter that is now before your
committee, and that has to do with the so-called ``regulation''
of DOE's defense nuclear facilities.
You mentioned earlier in your opening remarks that you will
be considering modifications, changes to the bill as it is now
proposed. I would direct your attention to the report that the
board submitted to the Congress, and copies of which have been
made available to your committee. I would suggest that it will
be helpful, I believe, to your staff and to the members as you
consider what, I think, is a very important matter before you.
The statement that I presented to your committee this
morning is pretty much of a summary of the detailed report that
was submitted to the Congress in November 1998. I would ask
that the summary, which has been made available to the
committee, and the detailed report be accepted as part of the
record.
The analysis and what we have submitted in writing to your
committee yesterday, in effect, reviews and summarizes the
duties of the board and the improvements that have taken place
within the DOE in the 10 years that our board has been in
existence. We put in our report what we understand both DOE has
estimated and what NRC has estimated the costs would be to have
full regulation of DOE by NRC. As Chairman Meserve also
mentioned this morning to you, I would suggest you take costs
into consideration and that you, hopefully, would work with
other Members of the Congress and particularly Appropriations
committees in recognizing what the full costs will be both from
the point of view of OSHA and/or the NRC to whatever extent you
decide regulation is appropriate.
As I pointed out in our submission yesterday, we have put
together--we, the members of the board, have put together what
we believe to be an elite group of technical experts. Twenty-
six percent of our technical staff have Ph.D. degrees in
technical fields and of our technical staff, an additional 67
percent have a Master's Degree. We have put together what we
consider to be a very elite group.
I and our staff--I feel that we are somewhat like the
Marine Corps. We have an elite group. Periodically there are
discussions or recommendations to put the Marines into the
Department of the Army, and for the last 4 or 5 years we have
heard various suggestions of taking our staff and putting them
into the NRC. So, as I say, we feel a little somewhat like the
Marine Corps, and we believe we are doing an excellent job.
Improvements can still be made. In the testimony by the
Department of Energy, they acknowledge the improvements that
they believe have been credited to our board. In any event, our
final position has not changed since our report in 1998. We do
not believe that the argument has been sufficiently made,
taking into consideration the various costs and the potential
effect on our national security, but at least we'll let our
report stand for itself and in view of the short time available
to the members here today, I will make myself available
obviously to respond to questions. Thank you, sir.
[The prepared statement of Hon. John T. Conway follows:]
Prepared Statement of John T. Conway, Chairman, A.J. Eggenberger, Vice
Chairman, Joseph J. DiNunno, Member, John E. Mansfield, Member, and
Jessie Hill Roberson, Member, Defense Nuclear Facilities Safety Board
Good morning, Mr. Chairman and Members of the Subcommittee. My name
is John Conway. I am Chairman of the Defense Nuclear Facilities Safety
Board.
In your letter inviting me to testify today, several legislative
proposals that may impact the Department of Energy's (DOE) current mode
of operation were referenced. As an independent Executive Branch
establishment, the Board provides advice and recommendations to the
President and Secretary of Energy regarding public health and safety
issues at DOE defense nuclear facilities. Therefore, I will focus my
testimony today on legislative proposal HR 3907 to establish external
regulation of DOE defense nuclear facilities.
board oversight authority
For those who may be unfamiliar with the statute establishing the
Defense Nuclear Facilities Safety Board (Board) in 1988, a few words
about its nuclear safety duties and responsibilities are in order.
Broadly speaking, the Board reviews operations, practices, and
occurrences at DOE's defense nuclear facilities and makes
recommendations to the Secretary of Energy as necessary to protect
public health and safety. Upon receipt of the Recommendation, the
Secretary must accept or reject it, in whole or in part, and then must
prepare an implementation plan for those portions which are accepted.
The public has a statutory right to comment upon Board recommendations
and upon DOE's responses and implementation plans.
To date, the Board has issued 41 sets of recommendations,
containing 194 individual specific health and safety sub-
recommendations. The Secretary has accepted the first 40 sets of the
Board's safety recommendations thus far, with the exception of two sub-
recommendations which currently are under reevaluation by the Board.
The latest Board recommendation delivered to the Secretary of Energy on
March 8, 2000, is under active consideration by DOE. The Board
recommendations detailed in Annual Reports to Congress range from such
topics as the need to identify and implement adequate health and safety
standards at all DOE sites, major safety improvements needed in the
management of high-level waste tanks at the Hanford Site in the State
of Washington, to classified safety management issues at the Pantex
Nuclear Weapons Plant, Texas.
If, as a result of its reviews, the Board determines that an
imminent or severe threat to public health or safety exists, the Board
is required to transmit its Recommendations directly to the President,
as well as to the Secretaries of Energy and Defense. The Board also
assesses safety management and personnel effectiveness both within DOE
and the various operation and management (O&M) contractor
organizations.
The Board has assembled a small technical staff with extensive
backgrounds in science and engineering disciplines such as nuclear-
chemical processing, conduct of operations, general nuclear safety
analysis, conventional and nuclear explosive technology and safety,
nuclear weapons safety, storage of nuclear materials and nuclear
criticality safety, and waste management. As an indication of the
Board's technical talent, 26 percent of the technical staff hold
degrees at the Ph.D. level and an additional 67 percent have masters
degrees. All technical staff members except interns, possess practical
nuclear experience gained from duty in the U.S. Navy's nuclear
propulsion program, the nuclear weapons field, or the civilian reactor
industry.
The Board's enabling statute requires the Board to review and
evaluate the content and implementation of health and safety standards,
including DOE's Orders, Rules, and other safety requirements, relating
to the design, construction, operation, and decommissioning of DOE's
defense nuclear facilities. The Board must then recommend to the
Secretary of Energy any specific measures, such as changes in the
content and implementation of those standards, that the Board believes
should be adopted to ensure that the public health and safety are
adequately protected. The Board is also required to review the design
of new defense nuclear facilities before construction begins, as well
as modifications to older facilities, and to recommend changes
necessary to protect health and safety. Board review and advisory
responsibilities continue throughout the construction, testing, and
operation of new facilities. In 1991, Congress specified that the
Board's jurisdiction also includes safety oversight of the assembly,
disassembly, and testing of nuclear weapons.
Under the Atomic Energy Act, the Board is authorized to conduct
investigations, issue subpoenas, hold public hearings, gather
information, conduct studies, establish reporting requirements for DOE,
and take other actions in furtherance of its review of health and
safety issues at defense nuclear facilities. These powers of the Board
and its staff all relate to the accomplishment of the Board's mandate
to identify safety problems and recommend corrective actions, and then
to ensure that DOE corrects those problems at defense nuclear
facilities. The Secretary of Energy and contractors at defense nuclear
facilities are required by statute to cooperate fully with the Board.
The following excerpt from a report of the Senate Armed Services
Committee summarizes the rationale for creating an oversight Board:
The committee does not believe that a safety board is a panacea
for all DOE safety problems, or that it can in any way absolve
the Secretary or the Department's contractors of their
fundamental safety responsibilities. In fact, many witnesses
testified that DOE's shortcomings largely reside within the
Department's line management, and that there can be no
substitute for capable and committed line management. What the
Board can do is provide critical expertise, technical vigor,
and a sense of vigilance within the Department at all levels .
. . Above all, the Board must have a primary mission to
identify the nature and consequences of any significant
potential threats to public health and safety, to elevate such
issues to the highest levels of authority, and to inform the
public.
For the past 10 years, this Board has been dedicated to fulfilling the
above stated mission.
improvements in doe health and safety posture
Interpreting the Board's statutory authority, the Court of Appeals
for the District of Columbia stated that the Board is an agency with
action forcing powers.
The Board does considerably more than merely offer advice. It
conducts investigations, which ``has long been recognized as an
incident to legislative power'' delegated to agencies by
Congress. It has at its disposal the full panoply of
investigative powers commonly held by other agencies of
government. The Board formally evaluates the Energy
Department's standards relating to defense nuclear facilities,
and forces public decisions about health and safety.
Each year the Board reports to Congress on its activities and DOE's
progress in improving safety at defense nuclear facilities. In our
Tenth Annual Report to Congress issued in February 2000, the Board
noted significant progress by the DOE in upgrading its safety
management program and practices at defense nuclear facilities. The
record of Board accomplishments in assisting DOE in its safety
practices attests to the efficiency of the Board's structure as
legislated in 1988. Using its action forcing powers, the Board has been
able to help reorient DOE's safety program and to set it on a course
that:
<bullet> Places more reliance on standards that define good practices
and less reliance upon expert-based safety management;
<bullet> Makes work planning and safety planning an integrated process;
<bullet> Treats public, worker, and environmental protection as an
integrated process;
<bullet> Treats radioactive and nonradioactive hazards in an integrated
fashion in establishing controls; and
<bullet> Tailors safety measures to the hazards involved.
In accordance with its statutory mandate, the Board has focused on
enhanced safety management of defense nuclear activities. DOE has
recognized the benefits of such enhancements for all of its hazardous
activities and is extending the enhancement principles and functions
complex-wide. This is being done without the potentially litigious and
confrontational processes that frequently characterize adjudicatory
proceedings under regulatory regimes.
external regulation of doe and h.r. 3907
While many reports have been written about external regulation,
pilots conducted at non-defense facilities, and opinions offered on
this subject, I must emphasize that the Board is the only external,
independent organization that has actually conducted full-time
technical oversight of public and worker health and safety at DOE
defense nuclear facilities. Consequently, the Board frequently has been
called upon by both the legislative and executive branches to share its
collective knowledge gained from 10 years of oversight experience in
DOE's defense nuclear facilities. In fact, the National Defense
Authorization Act for Fiscal Year 1998 directed the Board to prepare a
written report making recommendations to the Congress and answering
specific questions on the pros and cons of external regulation of DOE
defense nuclear facilities as compared to the Board's current
independent oversight authority. We have copies of the report with us
today and ask that the report be made part of the hearing record.
As stated in the report, the Board found no creditable arguments,
either on the grounds of improved safety or cost effectiveness, to
subject the defense nuclear facilities to additional external
regulation. On the other hand, the Board did advise of the potential
for external regulation of nuclear safety adversely impacting our
Nation's national security program. There is nothing that has developed
since our 1998 report to cause the Board to modify its earlier
findings.
the need for additional regulation?
What advantages might accrue from imposing additional regulation on
DOE? One of the previously-used arguments favoring an external
regulator asserts that such a scheme will prevent DOE from repeating
the environmental, safety, and health problems that occurred as a
result of early defense nuclear production programs during the Cold War
era. In fact, many of DOE's present environmental remediation projects
resulted from activities that predated the Federal Facilities
Compliance Act and regulation under a comprehensive body of
environmental laws vigorously enforced by Federal and State agencies.
We believe that an adequate system of checks and balances, both
internal to DOE operations and external to DOE, has been implemented
during the past 15 years which will effectively prevent the recurrence
of past environmental abuses. The Department of Energy today is
required to comply with rules and regulations issued by State and
Federal Environmental Protection Agencies and others including the
Occupational Health and Safety Administration, the Bureau of Mines, and
the Department of Transportation.
Justification for additional regulation is also based on two
suppositions, both of which we believe to be fatally flawed:
1. That it will enhance DOE credibility with the public, and
2. That it will improve safety.
enhance doe credibility?
We suggest the public's trust in DOE will not increase by setting
up another Federal government agency here in Washington, D.C. to
regulate its activities, whether the agency be the Defense Nuclear
Facilities Safety Board or the U.S. Nuclear Regulatory Commission (NRC)
or some combination of the two operating in a formal regulatory manner.
Rather than by having more external regulation imposed upon it, DOE's
credibility will improve by performing its responsibilities in an
efficient and creditable manner. We believe DOE has made notable
progress in upgrading its safety management programs and in cooperation
and openness, particularly in the formation and utilization of local
citizen advisory boards. Trust and credibility are developed at the
local levels, not by layering government agencies.
One must keep in mind that the actual work carried out by the
Government in its nuclear weapons activities is done by contractor
employees, not by federal employees of the DOE. It is DOE's
responsibility to assure that the work is done safely, efficiently and
with full compliance with the environmental laws of the Nation and its
States. In effect, for all intents and purposes and from a practical
point of view, the DOE ``regulates'' the individual contractors doing
the work. DOE has the authority and power to force a site, a facility
or particular job to be curtailed or be shut down.
Do we need to add additional government employees of another
government agency such as the NRC to assure that DOE government
employees are properly enforcing government laws, safety rules and
regulations on contractor management and workers? If so, at what
additional cost?
the cost of external regulation
In 1995, the Advisory Committee on External Regulation of DOE
Nuclear Safety issued a report (generally referred to as the Ahearne
Report) acknowledging that regulation would require additional startup
costs, but asserted that savings will result from having fewer DOE
employees assigned to environmental safety and health issues. In that
report, the NRC advised that if it is to assume regulatory
responsibility for DOE, the Commission would need an additional 1,100
to 1,600 full-time employees and an increase of $150 million to $200
million per year in its budget.
How much of that addition in personnel and dollars cost would DOE
save? I know of no organization, in government or in private industry,
that reduces personnel or response costs when additional regulatory
authorities are imposed on it. The opposite occurs. The Ahearne Report
did not set forth how savings will accrue from its recommendation, nor
did it specify what safety improvements will occur and how.
While there have been many external regulation scenarios studied
during the past six years, the subject of cost to effect an external
regulation scheme keeps surfacing as a significant issue. For example,
the December 1996 Report of the Department of Energy Working Group on
External Regulation contains an estimated cost of the following
external regulation proposal:
All DOE nuclear facilities would transition into full
regulation by the Nuclear Regulatory Commission in a little
over 10 years. In years 1-5, all Nuclear Energy and Energy
Research nuclear facilities and selected Defense Program and
Environmental Management nuclear facilities would become
regulated by the Nuclear Regulatory Commission. This transition
would begin immediately after enabling legislation is passed.
Except for the selected facilities regulated by the Commission,
Defense Program and Environmental Management nuclear facilities
would continue to be regulated by the Department with oversight
by the Defense Nuclear Facilities Safety Board in this first
phase. In years 6-10, all Environmental Management nuclear
facilities would become regulated by the Commission and the
Board would maintain oversight only of Defense Program
facilities. After 10 years, all DOE facilities would be
regulated by the Commission. Remaining Board staff would merge
into the NRC.
DOE's estimated costs to implement this external regulation plan
are shown in the following table.
Table 1--DOE's Costs to Implement External Regulation
[Data as of December 1996--In billions of dollars]
------------------------------------------------------------------------
Best Upper
Cost to Implement Case Case
------------------------------------------------------------------------
Cost during the first 5 years......................... $1.4 $1.8
Cost for year 6 thru 10............................... $1.3 $2.5
Cost beyond 10 years.................................. $1.2 $3.1
-----------------
Total Cost.......................................... $3.9 $7.4
------------------------------------------------------------------------
Both of the DOE cost scenarios offered above reflect the magnitude
of the effort and associated resources needed to implement NRC external
regulation over all DOE nuclear facilities. The economic reality of a
multi-billion dollar venture for this type of external regulation must
be considered in any valid cost/benefit study. We believe that in an
era of shrinking dollars to perform DOE's major missions--weapons
maintenance/ stewardship and cleanup--it would not be prudent to
transfer safety-related responsibilities into a more costly regulatory
structure for questionable fringe benefits.
safety management status today
Under its enabling statute, 42 U.S.C. Sec. 2286 et seq., the Board
has been providing independent oversight of all nuclear activities
impacting public and worker health and safety within DOE's defense
nuclear facilities (i.e., nuclear weapons) complex since October 1989.
While this oversight is not regulation per se, the Board has been
holding DOE nuclear safety to exacting standards under the authority of
the Atomic Energy Act through the advisory and formal recommendation
process governed by statute.
Through a combination of Board actions and the Department's own
upgrade initiatives, the DOE has structured and is administering a much
more effective safety management program than the historical program so
frequently cited as cause for added external regulation. Board
recommendations that have contributed to this outcome include:
<bullet> Recommendation 90-2, Design, Construction, Operation and
Decommissioning Standards at Certain Priority DOE Facilities.
This recommendation caused DOE to critically evaluate its set
of safety-related standards and embark upon an aggressive
program to improve those standards, bringing them into close
alignment with the applicable industry requirements. Thus far,
DOE has issued a comprehensive set of Policy Statements, Rules,
Orders, Guides, and Technical Standards defining expectations,
generally applicable safety requirements and acceptable safety
practices.
<bullet> Recommendation 93-3, Improving DOE Technical Capability in
Defense Nuclear Facilities Programs. This recommendation
addressed the technical competence of DOE in critical safety
positions. DOE's implementation plan in this case created the
first ever DOE-wide technical qualification program. DOE has
established qualification requirements for key personnel, and
acquired new ``Excepted Service'' hiring authority from
Congress to recruit exceptional individuals outside the regular
civil service framework. DOE has formed a Federal Capability
Review Panel, reporting to the Deputy Secretary, for
stimulating recruitment of highly competent individuals and
championing technical excellence in the staff throughout the
Department.
<bullet> Recommendation 95-2, Safety Management. This recommendation
encouraged DOE to build on the successes gained in the other
two efforts and develop safety management programs for its
defense nuclear facilities that integrated public protection,
worker safety, and environmental protection into the work
process. An implementation plan set forth by the Department in
1996 has been steadily and effectively pursued. All contractors
performing high hazard nuclear activities for the Department
are required by regulations and contract terms to establish and
operate to such a safety management system. The system is
marked by:
<bullet> Site-wide nuclear safety requirements, mutually agreed
upon by DOE and contractor(s) as applicable to the work
performed.
<bullet> The establishment by the contractors of manuals of
practices reflecting the requirements established.
<bullet> Safety planning as an integral part of work planning.
<bullet> Safety and hazards analysis with safety measures tailored
to the hazards of the operations involved.
<bullet> Qualification and training of personnel commensurate to
safety responsibilities assigned.
<bullet> Assessments and feedback for improvements performed.
<bullet> Recommendation 98-1, Integrated Safety Management. This
recommendation is directed at closing the loop on these safety
programs by strengthening DOE's ability to find and resolve
safety problems through its independent oversight function. A
formal process has been established with clear lines of
responsibility defined for addressing safety issues identified
by DOE's Office of Independent Oversight. The status of
corrective actions is periodically reviewed by the Chief
Operating Officer and responsible Program Secretarial Offices.
<bullet> Departmental initiatives to upgrade safety management have
included the following:
<bullet> The issuance of Policy 450.5, Line Environment, Safety and
Health Oversight, making self-assessments by the line
organizations a mainline safety responsibility and Policy
450.4, Safety Management System Policy, a complex-wide
commitment to the functions and principles of Integrated
Safety Management.
<bullet> Issuance of DOE N411.1-1A Safety Management Functions,
Responsibilities, Authorities Manual (FRAM), addressing
management's expectations of staff assigned safety
responsibilities.
<bullet> The establishment of a Secretarial level Safety Council
headed by the Deputy Secretary with membership of three
Secretarial Officers (EM, DP and Science) to support the
Deputy Secretary in establishing safety policies and
resolving inter-program safety-related issues and to
develop performance standards to be used to hold federal
personnel accountable for effective and timely
implementation of ISM.
<bullet> The establishment of the Field Management Council to
ensure consistent implementation of DOE policy in ES&H,
safeguards and security, and business management.
<bullet> The establishment of a Safety Management Integration Team
(SMIT), reporting to the Deputy Secretary, for coordinating
and driving the implementation of Integrated Safety
Management throughout the complex.
<bullet> The reorganization and augmentation of the enforcement
functions of both the independent EH Secretarial Office and
the Contracting Officers.
<bullet> Independent management assessments.
<bullet> The revision of Department of Energy Acquisition
Regulations (DEAR) to require every contractor for a major
acquisition involving nuclear materials to describe and
commit to Integrated Safety Management (ISM) in performing
the work. Further, the fee awards for that work are to be
tied to safety performance.
The Board acknowledges that even with these upgrades to the DOE
regulatory structure for safety management, DOE contractors have
experienced some recent mishaps that have placed workers at risk. The
commercial industry is not accident free, either. On the whole,
however, the Department's safety record, complex-wide, compares well
with other hazardous industries.
oversight of the national nuclear security administration
The suggestion has also been made that the new, semi autonomous
National Nuclear Security Administration (NNSA) may insulate the DOE
defense nuclear facilities from scrutiny by environmental, safety, and
health officials at DOE and elsewhere. As to the Defense Nuclear
Facilities Safety Board, let me assure you that after a careful review
of the NNSA's enabling legislation and legislative history, the Board's
power and authority have neither been repealed nor displaced by the
NNSA. Moreover, discussions between the Board and NNSA officials fully
support the continued statutory jurisdiction of the Board.
It has also been suggested that the existing environmental, safety
and health oversight office within DOE no longer has oversight over
NNSA activities. In September of 1998, the Board issued Recommendation
98-1, concerning the effectiveness of the Department of Energy process
to address and resolve the safety issues identified by its internal,
independent oversight organization at the DOE's defense nuclear
facilities. Specifically, the recommendation identification of specific
weaknesses in addressing oversight functions and recommended that the
Department make improvements to identify roles and responsibilities,
issue/dispute resolution, senior management involvement, content of
corrective action plans, tracking reporting, and verification
approaches.
The central safety issue identified by the recommendation was that
the Department needed a clearer, comprehensive, and systematic process
to address and resolve environment, safety and health issues identified
by the DOE's internal Office of Oversight. To implement this
recommendation, the Secretary of Energy committed to take the following
actions:
<bullet> Establish a consistent, disciplined process and clear roles,
responsibilities, and authorities for developing and
implementing responses to identified safety issues.
<bullet> Establish clear directions on the process for elevating
identified safety issues to higher authority for resolution, up
to the Office of the Secretary if necessary.
<bullet> Establish effective tracking and reporting of corrective
action progress.
The Secretary's commitments under this Implementation Plan and all
others remain in full force and effect. Again, let me emphasize that
neither the Secretary's commitment to implement internal oversight
findings nor the Board's continuing oversight of the DOE's defense
nuclear facilities have been repealed or displaced by the legislation
creating NNSA. We are still very much in business.
impact of regulation on national security
The most serious problem with any external nuclear regulation of
DOE's defense program would be a potential for adverse effects on
national security.
To regulate, with or without licensing or permitting authority, is
to control, direct, or govern, coupled with the authority to enforce or
penalize for violation. Regulatory control by an external agency of the
nuclear health and safety aspects of DOE's performance of its defense
mission could permit the regulator to shut down vital facilities,
thereby diminishing the declared primacy of national security by
relieving DOE of a significant portion of its responsibility for the
nuclear weapons program.
In establishing the form and authority of the Board, Congress
deliberated on the matter of oversight versus regulation. While wishing
to ensure better environmental, health, and safety protection than
historically provided in weapons production, Congress elected the non-
regulatory option. National security was an important consideration.
Although there are those who are opposed to the nuclear weapons program
and are concerned about proliferation, Congress and the Administration
still consider our nuclear weapons program as essential to the national
security of this Country and our allies. It is essential that its
deterrent objective not be put into question.
This was ably and successfully explained by government lawyers in
the case of the Natural Resources Defense Council versus the Secretary
of Energy, in the Federal District Court for the District of Columbia
(NRDC v. Pena, 972 F. Supp. 9 (D.D.C. 1997)). Together with emphasizing
the critical importance of the nuclear weapons program to national
security, the court cited ``credibility'' as an important ingredient of
national security, stating that the existence of the nuclear deterrent
had to be believable and that credibility ``depends in large part on
the effective and successful'' conduct of the weapons program. The
court stressed that even a brief disruption of the program would create
a vulnerability and that ``any such vulnerability--and any future
reduction in the credibility of our nuclear deterrent for even a brief
period of time--would be unacceptable . . . Any doubt over the
credibility of our nuclear deterrent would create unacceptable risks in
the event of a future crisis . . .'' The court also contended that any
delay in the conduct of DOE's weapons program ``could have serious
national security implications.''
Delay is a commonly encountered consequence of the regulatory
process. The Atomic Energy Act and the Administrative Procedure Act
require a nuclear regulatory agency to adhere to a formalized process
that can result in adversarial hearings, administrative reviews, and an
opportunity for judicial appeals such that private and special interest
intervener are accommodated. Licensing arenas are often battlegrounds
over legal processes rather than substantive nuclear health and safety
issues, and often result in extensive delays.
Note that the Board is not a regulatory body. It cannot control,
direct, or govern any function, or interfere with the paramount
national security mission. In creating the Board, Congress specifically
chose not to establish another regulatory agency. The choice of
oversight rather than regulation reflected a careful balancing by
Congress of national security interests with the various methods for
promoting improvements in safety at DOE facilities. This is fully
consistent with preserving the semi-autonomous nature of NNSA by
preserving the responsibilities of the Secretary of Energy under the
Atomic Energy Act
The usual enforcement powers of regulators, e.g., denial of license
and fines, are not appropriate for DOE defense activities. Denial of
licenses would stop critical national security activities, and fining
DOE would merely transfer appropriations away from the safety
activities the public is concerned about, thereby making operations
potentially more risky and cleanup activities further delayed.
Regulating agencies in general were intentionally chartered to have
no stake in the success of the regulated enterprise. In fact, they can
and do use the threat of shutting down the enterprise to enforce their
goals. But the nuclear weapons program is an inherently governmental
function. The notion that in contentious adversarial proceedings an
external regulator could decide whether DOE may have a license or
certificate to build or operate a nuclear weapons facility gives the
regulator a ready tool to overrule the President and Congress on an
issue of national security.
conclusion
As a direct result of DOE's improved self regulation, coupled with
the Board's independent external oversight, DOE's safety and
environmental protection programs at defense nuclear facilities during
the past decade have been marked by considerable improvement, increased
effectiveness, and minimal disruption to national security missions.
The priority that may have been accorded to mission objectives in the
past has given way to a DOE management philosophy that stresses doing
work safely while competently.
Sections 2 and 3 of H.R., 3907 would deprive the Department of
Energy of its enforcement authority with respect to nuclear safety
which would be assumed by a regulator, the Nuclear Regulatory
Commission, an agency with no responsibility for the security mission.
Regulation by itself cannot assure safety is a maxim long known by
those experienced in hazardous occupations. No outside authority or
organization can be an effective substitute for a competent and
dedicated internal safety organization.
Based on available information and the individual experiences of
Board Members, we conclude that Congress made the correct decision in
1988 when it adopted the recommendation of the Senate Committee on
Armed Services for national security reasons to maintain responsibility
for nuclear safety of DOE defense activities with the Secretary of
Energy and to establish the Defense Nuclear Facilities Safety Board as
an independent advisory agency and not as a regulator.
Mr. Barton. Thank you. Thank you, Mr. Conway.
The Chair will now recognize--Mr. Mande, did you get to
give your testimony?
Mr. Mande. Yes, I did.
Mr. Barton. And Mr. Meserve, you got to give your
testimony?
Mr. Meserve. Yes.
Mr. Barton. Okay. The Chair recognizes himself now for
questions.
My first question is to Mr. Mande. Am I saying that right,
by the way?
Mr. Mande. The ``e'' is actually silent; it is Mr. Mande.
Mr. Barton. Mande.
Mr. Mande. Thank you.
Mr. Barton. Well, that is even easier for me. One syllable
words are much easier than two.
I want to thank you for your constructive testimony. While
my friends at DOE and the policy board talk about the
insurmountable problems, you are pretty straightforward that
you think you could do it, and I want to appreciate your
positiveness.
Could you elaborate a little bit on the experience that
OSHA has had with the pilot projects where you believe that you
could have significant gains in terms of protecting worker
safety if we had external regulation of DOE?
Mr. Mande. Certainly, Mr. Chairman. As you know, we have
done three pilots over 5 years, two of them recently.
In those pilots we were not able to do the full wall-to-
wall inspection of the site that we normally do because of the
site size, but we were able to look at a considerable part of
these sites and look at the activities that were taking place.
One concern that we identified is that today when DOE
identifies a problem, it does what it can under its existing
resources to see that that problem has some type of interim
fix, but often the final fix to the problem must be put off
until DOE is able to seek and get additional funds. If those
funds are not forthcoming, which has happened in many
instances, the hazards become backlogged and abatement does not
occur.
Under OSHA rules, when there is a hazard and workers'
health and safety is put at danger that hazard needs to be
addressed and fixed within a very short timeframe so that
workers are protected. That is one of the major examples of
what would be different between how we work and how DOE works
and it would improve worker safety.
Mr. Barton. Good. Chairman Meserve, you were not quite as
positive in your testimony, but you did think it could be done
if we took a phased approach. Could you elaborate a little bit
on that and how soon you think the NRC could implement some of
the external regulation at certain DOE facilities?
Mr. Meserve. The NRC does feel that it is prepared to
undertake this task if the Congress were to indicate that we
should do it. We certainly have the competence and capability
in our organization to be of assistance in this way.
The problem, as I indicated in my testimony, is that we
have a lot on our plate now in dealing with our civilian
nuclear licensees. These are very important initiatives that we
need to continue to maintain the momentum of our activities. So
this would be the problem with if, at one time, we were to
undertake the entirety of regulation of DOE.
DOE has an immense operation and it would be an immense
burden on the NRC to undertake a regulatory role all at one
time, so we have suggested a phased-in approach. What I would
think might be a sensible way to proceed would be if the NRC
were initially to gradually undertake the regulation of the
Office of Science and NE part of DOE, which is what had
originally been envisioned for us.
It might take 5 years to bring that part of system fully up
to speed--and then after 5 years we might take on some of the
environmental management part of DOE and then after, perhaps at
the end of a second 5-year period, start to look at the defense
facilities.
This is something I think that would require a lot of
effort and planning----
Mr. Barton. If I heard you right, you want to phase it in
over a 10-year period?
Mr. Meserve. That is correct, sir.
Mr. Barton. You don't think your people are a little bit
more open-minded than that, that they could not grasp things,
all these high-powered educated, gung-ho, patriotic people on
your staff? It would take them 10 years?
Mr. Meserve. Well, let me say----
Mr. Barton. Even Congressmen can learn faster than that.
Mr. Meserve. As I am sure you are aware, DOE has an immense
enterprise, and it is a very complicated enterprise.
Mr. Barton. That is one of the problems at DOE.
Mr. Meserve. And it is a problem for us in doing it
quickly.
Let me just say by way of example that we did undertake the
regulatory responsibility over the gaseous diffusion plants.
Congress at that time basically allowed roughly a 5-year period
for us to develop our capacity and regulatory system to be able
to deal with those plants, to work with the licensee, the
certificate-holder in that case, and develop the trained,
capable people to be able to do the job. That went smoothly but
it was because it was a lot of work and planning was undertaken
to enable that to go smoothly.
Our problem is that that was just one of the DOE facilities
and having to undertake possibly the large number of other
facilities all at one time would pose an enormous challenge to
us.
Mr. Barton. Well, I believe you are more challenge-
acceptive than you give your agency credit for, but I
appreciate your testimony.
Mr. Meserve. I appreciate the compliment.
Mr. Barton. I want to ask one final question to Ms.
Sullivan before we recognize Mr. Whitfield. On H.R. 3906, which
would have the Security Office report, in addition to the
Secretary of Energy, directly also report to the Congress, your
agency, your Department opposes that, and as far as staff can
tell, the only reason that you oppose it appears to be because
it also does report directly to the Congress.
Is that right?
Ms. Sullivan. I think our fundamental concern about that
provision is that under basic separation of powers notions, the
President and his immediate subordinates, the members of the
Cabinet, determine what communications should be made to the
Congress and this provision is in tension with that.
On a practical level it creates a potentially adversarial
relationship between the Director of the Office and the
Secretary and the success of that Office has been that the
Director believes that he has the full confidence and the
direct ear of the Secretary to bring problems to his attention
when they are identified.
Mr. Barton. But if we showed you in law all the instances
where there is a dual reporting, would that alleviate the
Department's concern?
Ms. Sullivan. I am sure there are many instances of----
Mr. Barton. Because we have numerous----
Ms. Sullivan. [continuing] of dual reporting. It is the
notion of dual----
Mr. Barton. It is the same office----
Ms. Sullivan. [continuing] reporting focus on differences
of view----
Mr. Barton. We are taking what you did and putting it in
law and the only addition that we really substantively have is
that we require a dual report to the Congress. That--I cannot
believe that Secretary Richardson has a problem with that.
Ms. Sullivan. The fundamental concern is that the
Department of Energy Organization Act gave the Secretary ample
authority to respond promptly without legislative action to an
immediate need to have improved oversight of security.
Mr. Barton. And so if a future Secretary wanted to bury the
Safety Office somewhere back down in the bureaucracy like it
used to be, that is okay with the Clinton Administration?
Ms. Sullivan. I think the concern is that, if a changed
circumstance required some change that we can't now presently
foresee because we do not know what the circumstance is, that
by having a legislative mandate that locks one particular form
in place that makes sense now, we would lack the flexibility to
respond to a new and different circumstance.
Mr. Barton. So you object to the Congress wanting to place
an emphasis on safety and being given timely reports? That is
your objection. You want to keep us in the dark.
Ms. Sullivan. No.
Mr. Barton. Keep the Secretary in the light but keep the
Congress in the dark, so that is why you are objecting to the
bill.
Ms. Sullivan. I think the Congress has ample authority to
obtain information directly from anybody it wants. What we are
concerned about is locking into place a system that is----
Mr. Barton. With an emphasis on safety.
Ms. Sullivan. [continuing] working. The Office of Oversight
focuses on security. In fact, their safety functions have been
left in the Office of Environment, Safety and Health. The
system is working well now and it is working well because the
Secretary was able to create a system that he thinks he needs
to meet the circumstances that exist now, and we believe it
would be desirable to leave him that flexibility in the future
to respond to changed circumstances.
Mr. Barton. All right. Well, thank you for that.
Mr. Whitfield, and then we will go to Mr. Sawyer.
Mr. Whitfield. Thank you, Mr. Chairman. Ms. Sullivan, first
of all, I apologize to all of you for coming in late. I missed
most of your testimony.
What is the position of the Department of Energy? Do they
have an official position on H.R. 3907 at this time?
Ms. Sullivan. Our position on H.R. 3907 is that we do not
support NRC regulation of DOE facilities. The OSHA portion of
it, our concern is the same concern that Mr. Mande identified,
of ensuring an orderly transition.
We believe that orderly transition is already underway.
There are a number of DOE facilities that are already subject
to OSHA jurisdiction, and we are adopting OSHA standards
wherever they apply to the hazards we have at our facilities,
and we are working closely with OSHA already.
Mr. Whitfield. And why does the Department oppose the
transfer of jurisdiction to NRC?
Ms. Sullivan. After an exhaustive study through a joint
pilot program, we identified a number of difficult
implementation problems. The costs were far out of proportion
to the benefits we could identify, and we are concerned that
the phased approach that Chairman Meserve referenced, the costs
of transitioning to the NRC for the simple facilities would
take away from the focus on improving safety at our more
difficult facilities.
Mr. Whitfield. Okay, so cost is one issue that you're
concerned about.
Ms. Sullivan. Cost is certainly an issue.
Mr. Whitfield. You know, the Washington Post has been
writing a series of articles almost nonstop about the Paducah
gaseous diffusion plant. And it's occupied a lot of our time,
those of us who represent Paducah. And Ted Strickland
represents Portsmouth, Ohio, the gaseous diffusion plant there.
And in Paducah alone, the Department of Energy, through its
subcontractors, has spent over $400 million on environment
cleanup. The environmental aspects of that site are so
horrendous, that the impression is that very little, if
anything, has been accomplished there.
And it's difficult for me to understand how you can spend
$400 million and accomplish almost nothing from an objective
standpoint on cleaning up all of the problems there, but still
defend self-regulation in that area.
Ms. Sullivan. Gaseous diffusion plants are under NRC
regulation now. We spent $300 million moving two facilities to
NRC regulation.
Mr. Whitfield. The production is under NRC regulation, but
I'm talking about the site.
Ms. Sullivan. The legacy problems are clearly problems that
need to be addressed. I think the Secretary, through his
request for supplemental appropriations, has indicated the
importance he places on addressing the newly discovered
environmental problems.
I'm not sure that we would agree that nothing has been
accomplished to date. We've been working closely with EPA and
with the Kentucky Environment Department on the cleanup of
those sites.
We are accelerating some of those activities in light of
some of the newly discovered problems.
Mr. Whitfield. I will say that Secretary Richardson has
been responsive. DOE, over a number of years, was responsible
for the production, as well as the offsite environmental issues
until it was privatized a few years ago.
Not only in Paducah--I mean, you could talk about Savannah
River, Hanford, and a lot of other sites around the country,
all of which face some of these same issues.
At Paducah alone, we have over 50,000 drums of contaminated
material just sitting out there. We have Drum Mountain. We have
water levels that are contaminated. We have worker health
problems there.
And the sense is that--and I'm not saying Secretary
Richardson, necessarily, or this Administration, because he has
just come into office, but in the past, the Department has not
been particularly effective through its subcontractors, at
taking care of this issue.
Now, I recognize that it's going to cost a lot of money,
but I think we have to seriously consider other alternatives in
dealing with this issue.
Ms. Sullivan. Mr. Whitfield, on the environmental issues,
the Department has been subject to external regulation for in
excess of 10 years. And the problems you're identifying
indicate that external regulation doesn't solve the very
serious problems the Department has to deal with.
We are making progress, but simply changing the
jurisdiction of the regulator doesn't solve the problem. It
take money, it takes technology, it takes sustained attention,
which we are attempting to devote to the problems now.
Mr. Barton. The gentleman's time has expired. If you want
to make a concluding statement----
Mr. Whitfield. That's okay, Mr. Chairman, I'll let Mr.
Sawyer go ahead.
Mr. Barton. The gentleman from Ohio is recognized for 5
minutes.
Mr. Sawyer. Thank you very much, Mr. Chairman. It must be a
shocking transition to go from jury duty on the one hand, to be
sitting here as a witness on the other, and I hope not to add
to the difficulty of that transition.
Let me go back, though. I think it's probably fair to say
that everybody agrees that the DOE facilities are old, they are
extraordinary in their hazards, and that there are operational
and security considerations that pose some difficulty.
But if for a moment we recognize and accept the bifurcation
of time periods in terms of when DOE was responsible and now in
places like Paducah and Portsmouth, in forward-looking
oversight and regulation, that the NRC has successfully applied
its regulations and standards to the operations of the U.S.
Enrichment Corporation.
Can you tell me why this works at those two places, but
wouldn't work anywhere else?
Ms. Sullivan. If we had all the money in the world, I think
we would all agree that any regulatory system would work. Our
concern is devoting the very substantial management and
financial resources that would be required to develop a whole
new regulatory system for NRC, because they don't have
regulations in place that apply to the kind of facilities we
have.
So they either have to adopt our standards through a long
administrative process, or create a whole new set of standards.
NRC, when it took over regulation of the gaseous diffusion
plants, observed that it felt that they had generally been
operated safely.
So, our concern is devoting enormous resources and not
getting a substantial improvement in safety by simply changing
who's regulating.
Mr. Sawyer. Do you have a sense that the phased-in approach
suggested by the NRC has promise for the future, or is your
discomfort unabated?
Ms. Sullivan. My principal concern about the phased-in
approach is that the costs associated with phasing in NRC
regulation at very simple facilities, the ones that the NRC is
prepared to take on now, would divert resources from the more
complex, more hazardous facilities that DOE would remain
responsible for during the transition phase.
We have tried over the last decade to focus our attention
on a risk-informed basis to address the most serious risks
first. If, instead, we devote all our attention to the easy
ones--the facilities that NRC is proposing to take on first
don't present safety hazards today.
Mr. Sawyer. Mr. Meserve, can you comment on that?
Mr. Meserve. Well, let me say that as Ms. Sullivan has
indicated, there is an enormous range of activities that DOE
undertakes. Some are simple, some are complicated.
We have some experience in regulating DOE facilities in
that we have been involved in regulating spent fuel storage,
for example, various involvements with uranium mill tailings
and the like.
We've been an advisor to DOE in some very difficult
problems they've had at Hanford with regard to their tanks.
We have a different view than the DOE has of the costs
associated with the pilot program. There was a report that we
had prepared on the lessons to be learned from the pilot
program, and I would like to submit it for the record.
Mr. Sawyer. Would that include a detailed description of
how you get from here to there in terms of a 10-year phase-in?
Mr. Meserve. No, sir. We had a pilot program where we
looked at cooperating with DOE at a time when DOE was anxious
to have external regulation. The Advisory Committee had told
DOE that they should have external regulation.
It was a pilot program involving three facilities. And we--
--
Mr. Sawyer. Well, let me ask you, is each facility so
unique that each requires its own plan, or what do we learn
from the pilot experience?
Mr. Meserve. The pilot experience on the facilities we
examined was that the issues associated with them were
manageable, that they could be resolved.
There are some differences in views as to what
appropriately are costs associated with the dual regulation and
what are costs that would have been required in the DOE system
to bring the plants up to snuff with DOE orders, let alone NRC
requirements.
But basically the conclusion of the pilot program was, that
for the facilities we examined, that this was a doable task.
Mr. Sawyer. Thank you, Mr. Chairman. I see my time has
expired.
Mr. Barton. Thank you, Congressman Sawyer. Congresswoman
Wilson?
Mrs. Wilson. Thank you, Mr. Chairman. Mr. Conway, I don't
know whether you've answered this question, but I wanted to ask
it to you anyway. Can you compare or give us some kind of sense
of the health and safety record of the nuclear reactors and the
nuclear programs in the Department of Energy, compared to other
scientific and nuclear operations in either government or
industry?
Mr. Conway. Well, if you talk about the nuclear reactors
under the Department of Energy, you'd have to take into
consideration, the more than 100 Naval ones. The nuclear Navy
has a dual hat. The head of the Navy Nuclear Program also holds
a position in DOE, and they have had an excellent record,
obviously.
Then if you take into consideration, the reactors that have
been operated up at Hanford and also at Savannah River, they
were for production, producing plutonium. And the purpose is
not to produce electricity, although at one of them, up at
Hanford, there was one dual purpose reactor that did produce
electricity that went into the Bonneville Grid.
But when you look at them from a safety point of view,
there have been problems, as the commercial industry has had,
but we have had no deaths whatsoever in the nuclear reactors
operated by the DOE.
Under the old AEC, we had one reactor experiment up at
Idaho Falls in which three individuals were killed, one of whom
had been a sailor assigned to a military reactor, not a nuclear
Navy one; it was an Army reactor program.
But I think when you study the history of the reactor
program in the United States, it has been an excellent,
excellent safety program, notwithstanding Three Mile Island, in
which no one was injured, including the workers. No injured
worker at Three Mile Island, even though it was a meltdown.
So I think this country has an excellent record under the
DOE, and also under its predecessors, including the Atomic
Energy Commission.
Mrs. Wilson. Thank you. I have a question for you, and it's
really based on--without any disrespect to your peers, you kind
of have a unique perspective on this, now being with the NRCC,
but previously having spent a great deal of time looking at the
Department of Energy and particularly at the nuclear weapons
complex.
I wonder, from your perspective, your unique perspective--
--
Mr. Barton. I think you meant NRC, not NRCC. NRCC is the
campaign committee, and I don't think he's on that.
Mrs. Wilson. Did I say NRCC? I'm sorry. I apologize.
Mr. Barton. Let's correct the record. She meant NRC.
There's a big difference.
Mrs. Wilson. I didn't want to judge you by the company you
keep.
From your perspective, what improvements in safety or
health do you think would result or savings in costs, even, not
for the early change in regulation of things that are very
similar to what the NRC does now, but for some of the more
unique Department of Energy operations? What's the advantage
here?
Mr. McGaffigan. I think the fundamental advantage comes
from the openness of our process, and the credibility I think
it would bring with the public.
I think that Mr. Conway----
Mrs. Wilson. I'm not talking about public credibility. I'm
talking about health, safety, and cost. What's the advantage to
making this huge organizational shift?
Mr. McGaffigan. The facilities, as they are operated today,
are generally okay, but they continue to have problems. People
electrocute themselves at Los Alamos and things like that. That
happened just before I came to the Commission.
I think things are tolerated in the DOE system that would
not be tolerated in an NRC system or an OSHA system. DOE has a
tendency to postpone things.
When the gaseous diffusion plants were certified--you heard
the DOE General Counsel say that it cost $300 million. We
sharply disagree with that. But there was a large amount of
money spent, most of it to get the plants to where DOE said
they should have been under the DOE order system.
So the question is, do you want external oversight of DOE.
DOE was in favor of external regulation 4 years ago. Tom
Grumbly used to see a tremendous benefit in having the DOE
facilities treated as if they were private sector facilities
and held to the same sort of standards as private sector
facilities.
Now, that will cost money, and we can't do it all
immediately in terms of the complex defense facilities. We
can't do that any time soon, and we'd have to have a
transition.
At the end, I think you'd have a system that would have
greater credibility because the rules would be enforced as they
existed and as the public understood them. It wouldn't be
orders. It wouldn't be contract provisions; there would be
rules on the books, arrived at by this long process that the
General Counsel talked about, and then enforced by a capable
staff, working directly with the contractors.
One of the issues I think you'll hear from Chuck Shank
about later, the licensee, for the most part, would have to be
the contractor. DOE would have to step back and allow the
contractor to be the licensee. It could simply have contract
clauses telling the contractor that they had to stay in NRC's
good graces. I think you'd have a much more professional DOE
complex if that were the case.
Mrs. Wilson. Thank you. One last question, if I may, to Mr.
Mande.
Does OSHA currently oversee your inspector, have
jurisdiction over any special access programs?
Mr. Mande. By special access?
Mrs. Wilson. I mean, highly classified programs.
Mr. Mande. Let me check. I'll have to get back to you on
that. But I think one of the issues we looked at at Oak Ridge,
for example, was trying to inspect in a classified environment.
[The following was received for the record:]
Yes, we have done inspections of sites that required Q-
security clearance, which is equivalent to top-security
clearance. However, we have not inspected any special access
programs, which are established for safeguarding information
over and above what would be required for a Q-claerance area.
Mr. Mande. In the pilot, it worked fine. But because in the
pilot, DOE knew the inspections were coming, all the
arrangements could be made ahead of time.
One of the concerns that we have, one of the issues that
needs to be worked out is that OSHA's effectiveness depends on
unannounced inspections.
Mr. Conway. Mr. Chairman, if I may, possibly before Mr.
Mande's time, when Admiral Watkins headed up DOE, he entered
into a memorandum of understanding with OSHA. And myself and
the other Board members and our staff interfaced with them,
particularly at Rocky Flats.
Now, that, compared with many other facilities, is what we
would call a ``dirty,'' facility, with buildings highly
radioactive. There are some rooms you cannot go in whatsoever.
And when we were out at Rocky Flats, I remember very
clearly working with the OSHA people who were out there, under
this memorandum agreement. They were very worried. They did not
know the nuclear area, and they indicated to the Board members
and my staff that they were not very keen about going into some
of those places, and I don't blame them. They had not been
trained in that area.
And subsequently, another Board member and myself, Joe
DiNunno, we visited with OSHA representatives here in
Washington to talk about it.
They would tell us they were having a difficult time doing
the commercial work that they were responsible for, because
they did not have sufficient staff and not enough money from
the appropriations.
Mr. Barton. Congresswoman Wilson's question, I think, is
more about security of classified information.
Mr. Conway. And this involved also----
Mr. Barton. As opposed to the dirtiness or the
radioactivity.
Mr. Conway. But also they did not get into any of the
classified work out at Rocky Flats or elsewhere, to the best of
my knowledge.
Mr. Barton. But, Mr. Mande, before we go to Mr. Wynn, you
don't have any doubt that there are staff people in your
organization that can pass a security background check by the
FBI; do you?
Mr. Mande. No, many of us have done that.
Mr. Barton. You can handle classified material, if you are
vetted properly?
Mr. Mande. Yes.
Mr. Barton. Congressman Wynn for 5 minutes.
Mr. Wynn. Thank you, Mr. Chairman. I apologize that I did
not get the opportunity to hear the testimony, and I may be
asking questions that you've covered. If so, please indulge me
because I just have a couple.
It's my understanding that there has been a dramatic drop
in the number of security inspections. This was reported in the
GAO study.
I guess my first question is, is that, in fact, an accurate
description of what has happened, and if so, why?
Ms. Sullivan. I don't believe that that is accurate. If
you're referring to security clearances or inspections of
facilities----
Mr. Wynn. Oversight inspections. So I presume that
encompasses both.
Ms. Sullivan. In fact, the Office of Oversight has been
extremely active since it was reformulated by the Secretary
last year.
I'm not aware of any drop in its inspection activities.
Mr. Wynn. So you say that the GAO report would be
incorrect?
Ms. Sullivan. I'm unfamiliar with the particular GAO report
you're referring to. I'd want to look at it and see if we're
thinking about different things.
Mr. Wynn. Security oversight inspections is what's referred
to in our notes here. Beyond that, I'm sorry I cannot say more.
It kind of caught my aware.
Ms. Sullivan. I'm unaware of any drop. The information that
I have----
Mr. Wynn. Office of Independent Oversight----
Ms. Sullivan. Has been very active. It has been focused
primarily on the weapons labs over the last several months
since the security concerns of last year.
Mr. Wynn. Prior to that, though, had there been a dropoff,
if we go, say, over a 5-year period?
Ms. Sullivan. I don't know the answer to that. The Office
of Oversight previously had both safety--environment, safety,
and security issues all within its jurisdiction.
And so it may have focused in recent years more on the
safety side than on the security side. As reformulated, it's
now focusing exclusively on the security side.
Mr. Wynn. And this reformulation occurred when?
Ms. Sullivan. Last year.
Mr. Wynn. Just when the problems occurred?
Ms. Sullivan. That's correct.
Mr. Wynn. Okay. I understand that the officers in the
security staff have been reduced significantly; is that
correct?
Ms. Sullivan. Not that I'm aware of.
Mr. Wynn. All right, I will----
Ms. Sullivan. In the Office of Independent Oversight? I'll
be happy to check and get back to you.
[The following was received for the record:]
During the mid to late 1990s, the number of Headquarters personnel
that focused on independent oversight of safeguards and security was
gradually reduced from approximately 32 to 17 during various cost
reduction efforts. When the Secretary established the Office of
Independent Oversight and Performance Assurance (OA) in May 1999 as an
independent office focusing solely on safeguards and security and
emergency management, DOE recognized that the number of staff needed to
be increased. To ensure that OA would have the capability to perform
its mission effectively, the DOE took appropriate action to add staff.
At the time it was formed, OA had 17 safeguards and security
professionals, including cyber security. OA currently has 42 Federal
personnel assigned, 22 performing independent oversight functions in
nuclear material safeguards and security. The remaining personnel
perform independent oversight in the areas of cyber security and
emergency management and make up the OA management and administrative
support staff.
Mr. Wynn. Yes, would you check.
Ms. Sullivan. But I would be very surprised.
Mr. Wynn. I guess, generally speaking, there is a concern
about the degree of oversight and whether or not this office
has basically been buried with conflicting missions, which lead
to inadequate oversight.
And that is certainly the suggestion, and if that's not the
case, I would like, you know, kind of a full explanation of
what, in fact, did happen with respect to this office.
Because that's the subject of one the bills, 3906, which I
understand you oppose; is that correct?
Ms. Sullivan. We are opposed to it because we believe the
office that the bill provides for exists, has been created by
the Secretary in response to the recent security concerns.
And we don't favor a legislative mandate for that, because
we think the function is already there and working well.
Mr. Wynn. What about the mandate to report to Congress, the
results of oversight inspections?
Ms. Sullivan. Our concern about that is that it has the
potential to establish an adversarial relationship between the
Director of the Office and the Secretary by requiring the
Director to identify points of disagreement he has with respect
to the Secretary's management of the Department, and we don't
believe that's a desirable reporting format.
Mr. Wynn. I'm concerned by that response, I have to tell
you. If there are, in fact, problems with the management that
this office, which is supposed to be independent, uncovers, it
seems appropriate that they would report that to Congress.
That doesn't necessarily have to be adversarial, but I
obviously see how it could be. But the bottom line is, Congress
has a right to have information about potential problems in
this area.
So if we're not going to have independent oversight, then
we ought not have the office. I think we ought to have the
office and so I think we ought to have the right to get the
results of that office's findings.
Ms. Sullivan. Certainly the Congress has the right to ask
the Director of that office to come and report to the Congress
at any time. In fact, Mr. Podonsky, the current Director of
that office, has been before this committee, I believe, as
recently as last week.
I think he believes the strength of the office as it's
presently formatted, is that the has direct access to the
Secretary and that he can bring to the Secretary, the one who
by law is responsible for the management of the Department most
directly, the problems that he thinks need to be addressed. And
he has been doing that and had very favorable supportive
response from the Secretary.
Mr. Wynn. Thank you. Mr. Chairman, I don't have any further
questions.
Mr. Barton. Thank you. We plan to try to keep the hearing
going. Mr. Ehrlich?
Mr. Ehrlich. I will pass, but with one caveat. I just want
to adopt the concerns expressed by my colleague from Maryland.
Mr. Barton. The gentlelady from Missouri, Congresswoman
McCarthy?
Ms. McCarthy. Thank you very much, Mr. Chairman. My major
DOE contractor, Allied Signal, wants to move faster to address
safety concerns and to achieve adequate oversight.
How does the legislation we're discussing today improve
upon the process? Anyone?
Mr. Meserve. Well, I can comment from the perspective of
the NRC on this. Let me say that this is not a task that we
have asked for, but if Congress were to ask us to undertake it,
we would do so.
I think that as Mr. McGaffigan indicated in response to an
earlier question, one of the benefits which I think caused
DOE's own advisory committee to recommend that the NRC
undertake an independent regulatory role in the Department is
that it enable a focused examination of safety issues that
would be undertaken independently of the other pressures that
exist for operations. NRC offers basically a structured,
capable system to monitor the safety of operations and assure
that they continue.
I would anticipate that, if the NRC were to undertake the
responsibility at these sites, there would also be an open
process that we would follow, just as we do at all of our
civilian nuclear sites, so that the public would be fully
involved, the stakeholders would be fully involved. Hopefully
out of that would come increasing confidence that the
operations were safe, that decisions were being made
appropriately and that would end up basically enhancing the
credibility of the entire activity.
Mr. Barton. If the gentlelady would suspend, we have two
votes on the floor instead of one, so unfortunately we are
going to have to recess the hearing.
I would like to get the first round of questioning done and
be able to release this panel, so if there are members here
that have one final question.
Ms. Sullivan. Could I just add in response to Congresswoman
McCarthy's question, that is not a nuclear facility at Kansas
City. NRC would not regulate that facility. We are already
applying OSHA standards to much of the work that goes on at
Kansas City.
Ms. McCarthy. So this bill will not affect them at all?
Ms. Sullivan. It would not change much at all at Kansas
City.
Ms. McCarthy. Would not change much. Okay. We'll talk.
Thanks.
Ms. Sullivan. Thank you.
Mr. Barton. Is that all your questions? Does Mr. Ehrlich or
Mrs. Wilson or Mr. Sawyer have a final question for this panel?
[No response.]
Mr. Barton. Okay. We are going to release you. There will
be written questions in addition to the oral questions that you
have been given.
The subcommittee plans to aggressively pursue changes to
the legislation so that we can go to markup within the next
month, so have your staffs be available for input on that.
Thank you for your participation. This panel is released.
We are going to take a very brief recess. We are going to
reconvene as soon as these series of votes are over with our
second panel. My guess is that is going to be approximately at
12:15, so I would encourage all the panel members on the second
panel to be available, because when I do return I am going to
reconvene with the panel members that are here, so we are in
recess until approximately 12:15.
[Brief recess.]
Mr. Barton. The subcommittee will come to order.
We have a motion on the floor right now by Congressman
Gibbons of Nevada on the point of order on the nuclear waste
legislation. There will be a vote in about 20 minutes, so we
want to start this panel and hopefully get most of your
testimony before we have to go vote.
We want to welcome Mrs. Jones, Associate Director, The
Energy, Resources, and Science Issues in the GAO. We have Dr.
Charles Shank, who is the Director of Lawrence Berkeley
National Laboratory. We have Mr. Robert Van Ness, who is the
Assistant Vice President for Laboratory Administration at the
University of California. We have Ms. Maureen Eldredge, who is
the Program Director for the Alliance for Nuclear
Accountability. We have Dr. David Adelman, who is the Project
Attorney for the Nuclear Program in the Natural Resources
Defense Council. I don't see Mr. Miller.
Mr. Cook. Mr. Chairman, Mr. Miller is over on the Senate
side.
Mr. Barton. Ah--but he is on his way. He is a policy
analyst for the PACE International Union, so we are going to
start with Mrs. Jones.
Your testimony is in the record. We will recognize you for
7 minutes to summarize it and then we will just go right down
the line, then we will have questions.
STATEMENTS OF GARY L. JONES, ASSOCIATE DIRECTOR, ENERGY,
RESOURCES, AND SCIENCE ISSUES, GENERAL ACCOUNTING OFFICE;
CHARLES V. SHANK, DIRECTOR, LAWRENCE BERKELEY NATIONAL
LABORATORY; ROBERT L. VAN NESS, ASSISTANT VICE PRESIDENT FOR
LABORATORY ADMINISTRATION, UNIVERSITY OF CALIFORNIA; MAUREEN
ELDREDGE, PROGRAM DIRECTOR, ALLIANCE FOR NUCLEAR
ACCOUNTABILITY; AND DAVID E. ADELMAN, PROJECT ATTORNEY, NUCLEAR
PROGRAM, NATURAL RESOURCES DEFENSE COUNCIL
Ms. Jones. Thank you, Mr. Chairman. We are pleased to be
here today to provide our views on three bills designed to
improve worker and nuclear facility safety as well as enhance
security for the Department of Energy.
H.R. 3383 would amend the Atomic Energy Act by eliminating
the exemption that allows nonprofit contractors to avoid paying
civil penalties for violations of nuclear safety rules. DOE
argues that the exemption for nonprofit contractors should be
continued. We disagree. DOE said that nonprofit contractors
would be unwilling to put their assets at risk to pay civil
penalties. However, nearly all of these contractors now have
the opportunity to earn a fee, which they generally use to fund
research that they want to do. The fee could also be used to
pay civil penalties.
DOE also said that contract provisions are better
mechanisms than civil penalties for holding nonprofit
contractors accountable. However, DOE has not taken full
advantage of existing contracting mechanisms.
For example, the University of California received 96
percent of its $6.4 million available fee for managing Lawrence
Livermore in fiscal year 1998, even though it had significant
nuclear safety deficiencies resulting in enforcement actions.
This bill directly addresses our suggestion to the Congress
that it eliminate both the statutory and administrative
exemptions from paying civil penalties for violating nuclear
safety rules.
H.R. 3906 legislatively establishes an office independent
of line management that oversees security at DOE facilities and
that reports directly to the Secretary. This office exists now
and currently reports to the Secretary. Then why do we need
legislation?
The simple answer is so that the office and structure will
be permanent and not dependent on the importance future
Secretaries place on security. This has been a problem in the
past. For example, the office was several layers down in the
Environment, Safety and Health organization prior to May 1999
and at one time was in Defense programs.
I also wanted to clarify a point about our report on safety
in the discussion between Mr. Wynn and Ms. Sullivan on the last
panel. Our report noted that over a 5-year period prior to May
1999, there were at least 3 years for one facility where the
oversight office did not do an oversight investigation. Since
May 1999 with the changes the Secretary initiated they have
been doing more regular inspections.
Legislatively establishing that office insulates it from
organizational change and programmatic conflicts and, along
with the annual report to the Congress, helps to ensure prompt
corrective action is taken.
H.R. 3907 would eliminate self-regulation of health and
safety activities at DOE by authorizing NRC to regulate and
enforce nuclear safety and OSHA to regulate and enforce
occupational health and safety for all DOE facilities. This
bill provides a sound basis for continuing the process of
moving DOE in the direction of external regulation.
We, along with others, have reported on DOE's weaknesses in
its self-regulation of environment, safety and health at its
facilities. The results of the pilot program as well as the
extensive interactions between DOE, NRC, and OSHA over the
years showed that external regulation offers benefits and that
external regulators have the flexibility to adjust to unique
DOE facility conditions.
However, the timeframe allowed in the bill for transition
to full external regulation may not be achievable. NRC and OSHA
have experience with some DOE facilities and have studied
others through the pilots. External regulation of these
facilities, which includes small, less complex facilities and
nondefense research laboratories, could be on a faster track.
However, defense facilities were not included as part of the
pilot and they are far more complex than the facilities
studied. Therefore, more time would be needed to study issues
such as the need to maintain security, regulatory costs,
resource and skill needs, and transition methods.
Mr. Chairman, while all three bills have the potential to
improve some aspects of health, safety, and security at DOE
facilities, legislation could only take change so far. In the
final analysis it will require a long-term commitment by DOE,
and quite frankly, DOE has not demonstrated the will nor has
the culture in place to make lasting changes. DOE needs to
focus on aspects of its culture that are barriers to
effectively carrying out its missions in a safe,
environmentally sound, and secure way.
Over the years our work has noted such things as a
complicated organizational structure, poor accountability, weak
oversight of contractors, lack of technically skilled staff,
and resistance to change. Without focusing on these issues, DOE
will not be able to break out of the culture or mindset that
permeates it. Therefore, even with the changes brought about by
these legislative proposals, problems inherent in DOE may
continue.
Mr. Chairman, we look forward to working with you as you
move to mark up these bills.
[The prepared statement of Gary L. Jones follows:]
Prepared Statement of Gary L. Jones, Associate Director, Energy,
Resources, and Science Issues, Resources, Community, and Economic
Development Division, U.S. General Accounting Office
Mr. Chairman and Members of the Subcommittee: We are pleased to be
here today to provide our views on three bills designed to improve
worker and nuclear facility safety and health as well as to enhance
security for the Department of Energy (DOE). Our testimony is based on
our past work on safety, health, and security issues on a wide variety
of DOE programs and activities.<SUP>1</SUP> Let me summarize our views
on the three bills:
---------------------------------------------------------------------------
\1\ See Department of Energy: DOE's Nuclear Safety Enforcement
Program Should Be Strengthened, GAO/RCED-99-146, Jun. 10, 1999).
Nuclear Security: Improvements Needed in DOE's Safeguards and Security
Oversight, (GAO/RCED-00-62, Feb. 24, 2000). Department of Energy:
Uncertain Future for External Regulation of Worker and Nuclear Facility
Safety, (GAO/T-RCED-99-255, Jul. 22, 1999). Department of Energy: Clear
Strategy on External Regulation Needed for Worker and Nuclear Facility
Safety, (GAO/T-RCED-98-163, May 21, 1998).
<bullet> H.R. 3383 would amend the Atomic Energy Act by eliminating the
exemption that currently allows certain nonprofit contractors
to avoid paying civil penalties if they violate DOE's nuclear
safety rules. Last year, we reported and testified on a number
of problems with DOE's enforcement of its nuclear safety
regulations. We suggested that the Congress consider
eliminating both the statutory and administrative exemptions
from paying civil penalties for violations of nuclear safety
rules. This bill directly addresses our concerns.
<bullet> H.R. 3906 would legislatively establish an office of
independent security oversight within DOE that reports directly
to the Secretary. We believe that legislatively establishing an
office, independent from line management, that oversees
safeguards and security across the Department and reports to
the Secretary would insulate it from organizational change and
programmatic conflicts. Since May 1999, DOE's security
oversight office has reported to the Secretary. However, prior
to May 1999, it was several layers down in the organization
and, as a result, oversight findings were not always raised to
top management. The legislation would also require an annual
report to the Congress from that office on the status of its
findings. Requiring an annual report would make the office's
findings more visible and help to ensure prompt corrective
actions are taken.
<bullet> H.R. 3907 would eliminate self-regulation of health and safety
activities at DOE by authorizing the Nuclear Regulatory
Commission (NRC) to regulate and enforce nuclear safety and the
Occupational Safety and Health Administration (OSHA) to
regulate and enforce occupational health and safety for all DOE
facilities. This bill provides a sound basis for continuing the
process of moving DOE in the direction of external regulation.
However, the time frame allowed in the bill for the transition
to full external regulation may not be achievable. NRC and OSHA
have experience with some DOE facilities--smaller, less complex
facilities and nondefense research laboratories. The transition
to NRC and OSHA regulation of these facilities could be
achieved relatively quickly. However, issues associated with
regulating larger defense facilities are more complex, such as
the need for experience with unique activities at weapons
facilities, and would take longer to evaluate and may require
special consideration.
Mr. Chairman, while all three bills have the potential to improve
some aspects of health, safety, and security at DOE facilities,
legislation can only take change so far. In the final analysis, it will
require a long-term commitment by DOE, and quite frankly, DOE has not
demonstrated the will nor does it have the culture in place to make
lasting changes. DOE needs to focus on aspects of its culture that are
barriers to effectively carrying out its missions in a safe,
environmentally sound, and secure way. Over the years, our work has
noted culture barriers such as a complicated, dysfunctional
organizational structure; an unclear chain of command; poor
accountability for program management; weak oversight of contractors;
lack of technically skilled staff; and resistance to change.
DOE has made changes and has activities under way that address some
of these issues. However, it must continue to look at human capital
issues, such as hiring and training to improve the skills of its
employees, the performance measures and incentives systems for
contractors and federal employees to ensure that they reward the
correct behaviors, and clear definition of roles and responsibilities
to eliminate duplication and inefficiencies. Without identifying and
focusing on the barriers to change, DOE will not be able to break out
of the culture or mindset that permeates it. Therefore, even with the
changes brought about by these legislative proposals, problems inherent
in DOE may continue.
Background
Since its creation in 1977, DOE has conducted technically complex
and hazardous activities at its facilities across the country. These
activities include developing, producing, maintaining, storing, and
dismantling nuclear weapons; managing nuclear fuel storage and disposal
sites; operating nuclear reactors; performing research and development
to enhance energy efficiency and to develop innovative nuclear,
renewable, and other energy sources; and cleaning up environmental
contamination from its past weapons production. Besides being
potentially dangerous, some of these activities are highly classified
and require sophisticated security measures. However, in conducting
these activities, DOE has a long history of safety, managerial and
security problems.
DOE is essentially exempt from regulation by NRC for nuclear safety
and by OSHA for worker protection. These exemptions originated from
concerns about national security that characterized DOE's historical
role in nuclear weapons production. The facilities that this
legislation would subject to external regulation are substantial. DOE
maintains 3,500 nuclear facilities at 34 sites in 13 states, covering,
in all, more than 85 million square feet of building space.
Civil Penalties for Nonprofit Contractors
H.R. 3383 would amend the Atomic Energy Act by eliminating the
exemption that allows certain contractors to avoid paying civil
penalties if they violate DOE's nuclear safety rules. The Congress
first authorized civil monetary penalties for violations of nuclear
safety rules in 1988. This gave DOE the authority to impose civil
monetary penalties on its contractors, and on their subcontractors and
suppliers, for violating enforceable nuclear safety rules. However, for
certain contractors, the Congress provided an exemption from having to
pay the monetary penalties, primarily because the contractors operating
DOE laboratories at the time received no fees in addition to their
reimbursable costs and, therefore, had no contract-generated funds
available to pay any penalties assessed. There was concern that these
contractors might leave the research field rather than put the assets
of their organizations at risk if they were subject to paying the
monetary penalties. If DOE identifies violations of nuclear safety
rules at any of the seven contractors and laboratories specifically
named in the law, or their subcontractors and suppliers, DOE cannot
collect the civil monetary penalty.
The exemption from civil penalties has been extended to
institutions that, like other contractors in the business of handling
nuclear materials, receive financial protection or indemnification from
the damages to people and property that may be harmed in a nuclear
accident. The Secretary also was given the authority to determine
whether other contractors that are nonprofit educational institutions
should receive a similar exemption. In 1993, DOE specified by rule that
all nonprofit educational institutions would receive an automatic
exemption from paying the penalties.
In a March 1999 report to the Congress concerning the
reauthorization of the Price Anderson Act, DOE argued that the
exemption for named contractors and nonprofit educational institutions
should be continued.<SUP>2</SUP> Our analysis of DOE's reasoning,
however, raised several questions about the merits of continuing the
exemption:
---------------------------------------------------------------------------
\2\ The Price Anderson Act established a source of funds to
compensate personal injury and property damage from a nuclear accident
and limits liability of private industry for such accidents.
<bullet> DOE argued that universities and other nonprofit contractors
working at DOE facilities would be unwilling to put their
assets at risk for contract-related expenses such as civil
penalties. However, nearly all of the contractors that manage
and operate DOE facilities now have the opportunity to earn a
fee. This fee, which is in addition to reimbursed costs, is
used by the nonprofit contractors to cover certain
nonreimbursable contract costs and to conduct other laboratory
research. The fee could also be used to pay civil penalties if
they were imposed on the contractor.
<bullet> DOE said that contract provisions are a better mechanism than
civil penalties for holding nonprofit contractors accountable
for safe nuclear practices. However, DOE has not taken full
advantage of the existing contracting mechanisms to emphasize
nuclear safety. For example, at the Lawrence Livermore National
Laboratory in California, DOE's main contractor--the University
of California--received 96 percent of its $6.4 million
available performance fee in fiscal year 1998, even though it
had significant nuclear safety deficiencies resulting in
enforcement actions. At best, only about 4 percent of its
performance fee for 1999 was at risk if it did not perform
satisfactorily in the health and safety area.
<bullet> DOE said that its current approach of exempting nonprofit
institutions is consistent with NRC's treatment of nonprofit
organizations because DOE issues notices of violation to
nonprofit contractors without collecting penalties but can
apply financial incentives or disincentives through the
contract. However, NRC can and does impose monetary penalties
for violations of safety requirements, without regard to the
profit-making status of the organization. NRC sets lower
penalty amounts for nonprofit organizations than for-profit
organizations. The Secretary could do the same, but does not
currently take this approach. Furthermore, both NRC and other
regulatory agencies have assessed and collected penalties or
additional administrative costs from some of the same
organizations that DOE exempts from payment. For example, the
state of California assessed and collected $88,000 in
``administrative costs'' from the University of California for
violating state environmental laws at the Lawrence Livermore
and Lawrence Berkeley National Laboratories.
Our June 1999 report on DOE's nuclear safety enforcement program
recommended that the Secretary of Energy eliminate the administrative
exemption from paying civil penalties for violations of nuclear safety
rules that DOE granted to nonprofit educational institutions. The
Department did not implement the recommendation, instead commenting
that the issue of exemption from civil penalties was ultimately one for
the Congress to decide. We also suggested that the Congress consider
eliminating both the statutory and administrative exemptions from
paying civil penalties for violating nuclear safety rules. H.R. 3383
directly addresses our recommendation.
Independent Security Oversight
H.R. 3906 would legislatively establish an independent security
oversight office within DOE that reports directly to the Secretary of
Energy. We believe that legislatively establishing an office,
independent from line management, that oversees safeguards and security
across the Department would insulate it from organizational change and
programmatic conflicts. It would also provide the office with the
visibility in the organization and the authority it needs to ensure
that security problems it identifies are corrected. Since May 1999,
DOE's independent security office has reported to the Secretary.
However, the director of the independent security oversight office has
not always reported to the Secretary. Prior to May 1999, the
independent security oversight office reported to the Office of
Oversight, which in turn reported to the Assistant Secretary for
Environment, Safety, and Health, who reported to the Secretary. At one
time, the oversight office was organizationally placed in Defense
Programs, a line-management program office. As a result of these
organizational placements, oversight findings and recommendations were
not always raised to top DOE management and were sometimes ignored by
the contractors operating DOE's facilities.
The bill also proposes, among other things, that the independent
security oversight office conduct evaluations every 18 months and
conduct follow-up reviews to ensure that corrective actions for
security problems are effective. These provisions of the bill focus on
several issues discussed in our February 2000 report on security
oversight. For example, our report disclosed that during the mid-1990s,
as many as 3 years elapsed between the independent security oversight
office's inspections at DOE's nuclear weapons laboratories. In
addition, we recommended that the oversight office work with the
laboratories in developing corrective actions to ensure that security
problems identified during its inspections were properly corrected. In
recent months, the independent security oversight office has taken
actions on these issues. However, in the past, the emphasis on security
within DOE has varied greatly, and recent improvements may not be
permanent fixes. Required periodic evaluations, follow-up reviews, and
the annual report to the Congress on the status of security at DOE
facilities, as would be required under H.R. 3906, would help to prevent
future backsliding.
External Regulation of DOE Facilities
H.R. 3907 would authorize NRC to regulate and enforce nuclear
safety and OSHA to regulate and enforce occupational health and safety
at DOE facilities. The bill would require that such regulation be
effective by October 1, 2001. By placing DOE facilities under NRC and
OSHA jurisdiction, the bill would continue the process of moving DOE in
the direction of external regulation.
The process of eliminating self-regulation began in 1984 when DOE
facilities first came under federal environmental laws that are carried
out and enforced by the Environmental Protection Agency and the states.
In addition, NRC has worked with DOE to license, certify, and consult
on many different DOE facilities. For example, NRC granted a license to
DOE for operating the TMI-2 Independent Spent Fuel Debris Facility at
the Department's Idaho National Engineering and Environmental
Laboratory. It is also conducting prelicensing consultations with DOE
in other areas, including the high-level waste repository at Yucca
Mountain, Nevada, and a proposed facility for making mixed-oxide fuel.
NRC and OSHA have also conducted simulated inspections at DOE
facilities during recent pilot projects. Aside from these individual
cases, the vast majority of DOE's facilities are not regulated for
health and safety by independent regulators.
We, along with others, have often reported on weaknesses in DOE's
self-regulation of the environmental, safety, and health
responsibilities at its facilities. These weaknesses prompted then-
Secretary of Energy Hazel O'Leary to seek external regulation for
worker safety in 1993. In 1994, legislation was proposed and hearings
were held on external regulation of DOE nuclear safety. In 1995, DOE
created an advisory committee that concluded, ``Widespread
environmental contamination at DOE facilities and the immense costs
associated with their cleanup provide clear evidence that self-
regulation has failed.'' <SUP>3</SUP> In 1996, a subsequent DOE working
group of senior managers concluded that external regulation could
improve safety, eliminate the inherent conflict of interest from self-
regulation, gain consistency with current domestic and international
safety management practices, and improve credibility and public trust.
The advisers recommended that safety and health at DOE facilities be
externally regulated.
---------------------------------------------------------------------------
\3\ See Improving Regulation of Safety at DOE Nuclear Facilities,
Advisory Committee on External Regulation of Department of Energy
Nuclear Safety (Dec. 22, 1995).
---------------------------------------------------------------------------
In 1997, then-Secretary Frederico Pena took a more cautious
approach to external regulation by launching a pilot program with NRC
and OSHA. The pilot program was limited to DOE's nondefense facilities.
The purpose of the pilot program was to test regulatory approaches and
gain insight about the costs of external regulation based on actual
experience. The pilot program began in January 1998 at the Lawrence
Berkeley National Laboratory in California and was completed in June
1998. (OSHA completed an earlier pilot at the Argonne National
Laboratory in Illinois in 1996.) The other NRC pilot program facilities
were at Oak Ridge in Tennessee and Savannah River in South Carolina.
The results of the pilot program, as well as the extensive interactions
between DOE, NRC, and OSHA over the years, show that external
regulation offers many potential benefits, and that external regulators
have the flexibility to adjust to the unique conditions at DOE
facilities.
The current Secretary believes external regulation is not worth
pursuing, contending that costs would likely outweigh the value of
external regulation. His position contrasts sharply with DOE's previous
positions promoting external regulation. His position also conflicts
with the Department's own pilot program results and is inconsistent
with conclusions reached by NRC and OSHA. The results of the pilot
program and the extensive practical experience gained with NRC and OSHA
show that external regulation for the class of facilities studied
improves safety and accountability and is not likely to be
prohibitively expensive.
While the pilot program revealed no major barriers to regulating
the class of DOE facilities studied, none of the pilot sites contained
defense facilities. The pilot did not include DOE's three largest
laboratories--Lawrence Livermore, Los Alamos, and Sandia--which operate
significant defense facilities. DOE's defense facilities are far more
complex than the pilot sites and would likely require more time to
study issues such as the need to maintain security, regulatory costs,
resource and skill needs, and transition methods. For the much simpler
pilot sites, nearly a year was spent planning, conducting and reporting
on the pilot results. DOE's Working Group on External Regulation
recommended several years of experience be gained before bringing in
defense sites under outside regulatory control. Also, complicating any
transition to outside regulatory control is the examination of the role
of the Defense Nuclear Facilities Safety Board, which currently
oversees nuclear safety at DOE's facilities.
Given these complexities, we believe the October 1, 2001, start up
schedule contained in H.R. 3907 for full implementation of external
regulation may not be achievable for DOE's defense facilities.
Transitioning to NRC and OSHA regulation of classes of DOE facilities
in which experience has already been gained, such as nondefense
research laboratories, seems more workable. Then, phasing in NRC and
OSHA regulation of DOE defense facilities could occur over a longer
period of time.
Mr. Chairman, as I discussed initially, all three bills have the
potential to improve some aspect of health, safety, and security at DOE
facilities. However, legislation can only take change so far. In the
final analysis, it will require a long-term commitment by DOE. This
concludes my testimony. We would be happy to respond to any questions
that you or Members of the Subcommittee may have.
Mr. Barton. Thank you, Mrs. Jones. We now would like to
hear from you, Dr. Shank, for 7 minutes. Your statement is in
the record in its entirety.
STATEMENT OF CHARLES V. SHANK
Mr. Shank. Mr. Chairman and members of the subcommittee, it
is my pleasure to be here today to give my perspective on the
three bills dealing with environment, health, safety in the
Department of Energy complex.
Our laboratory is located in the hills above the University
of California at Berkeley campus. We are often, because of our
name of Lawrence, confused with our larger sister to the south.
I have more than one bus with visitors arrive looking out,
seeing the San Francisco Bay and asking could we see the Bay
from Livermore?
We are not the Livermore Laboratory. We are a much simpler
laboratory. We have a budget of about $415 million and our
primary mission responsibility is fundamental science with
supporting missions in the environment and energy efficiency.
The regulatory framework for national laboratories is an
important part of their scientific productivity and important
for the employees and important for our ability to protect the
environment. Providing a safe and healthy environment is a
critical responsibility for me as a Lab Director of a national
laboratory.
I am going to confine my remarks today on the H.R. 3907,
which would provide for external regulation of nuclear safety
and occupational health safety at DOE laboratories. I would
like to talk about our experience with both the Nuclear
Regulatory Commission and the Occupational Health and Safety
Commission pilots and then give you some of my more general
views about the proposed legislation.
As you know, we are located right next to the Berkeley
campus and for many years it has mystified me as to why
identical activities carried on at the campus in the laboratory
are regulated by different entities with different standards.
As a consequence, when NRC proposed a pilot project for
external regulation of DOE facilities I quickly volunteered our
institution.
My dream is for a world where work is regulated with
uniform standards independent of the entity that performs the
work. Scientists could be trained with a single set of
expectations for environment, health and safety considerations
throughout the country.
Our NRC pilot took place in October 1997 and in January
1998 with two planning visits and two 1-week simulated
regulation visits. The results of the pilot were encouraging.
NRC found that there were no significant safety findings to
report. The laboratory had an adequate plan to protect the
health and safety for the public, employees and the
environment. The NRC indicated that they would be willing to
issue our laboratory a broad scope license for operation and
that they could carry out their responsibility for our site
with approximately .1 FTE or approximately one person month per
year.
There are, however, serious concerns.
First, would external regulation be layered on top of DOE,
current DOE orders? We fear a world of overlapping and
redundant responsibilities that would make it difficult for us
to do our work.
Who would hold the license? The DOE report on our pilot
indicates that additional people would have to be hired if DOE
held the license. Direct connection between the contractor and
the regulatory agencies I think would be essential for us to be
able to do this properly.
And then who would be responsible for legacy issues? We at
Berkeley have a large facility, the Bevatron, which needs to
undergo a cleanup, and funds have not been allotted for that
cleanup, and in the process of changing regulations it is very
important for us that issues and legacy issues be very
carefully considered.
Finally, who would regulate x-ray units, accelerators, and
other naturally occurring radioactive materials? These would be
new responsibilities that would somehow have to be added to the
NRC capability. Based on our experience with NRC and the
private sector of ES&H staff, we volunteered for a similar
pilot with OSHA.
That effort took place in December 1998 and January 1999.
It again involved two planning conference calls, an 8-day
visit, and all hands meeting with the laboratory staff and our
local labor unions. The visiting team included NRC, DOE, OSHA
and Cal OSHA, and the California Department of Health Services
and the EPA. They reviewed all of our facilities.
The overall conclusion was that the OSHA regulatory
framework could be applied to the Berkeley Lab and that the
laboratory's integrated safety management program is consistent
with OSHA's voluntary protection program, and I would like to
say a very positive word about the Department of Energy moving
to integrated safety management, because I think it has made us
more effective in managing our responsibilities for
environmental health and safety in our laboratories.
As the result of these pilot studies, I believe that
external regulation of the Berkeley Lab is not only possible
but also desirable--however, with a very important caveat, that
this be done with very clear lines of authority and priority
given to risk-aware implementation. This would mean that the
contractors would deal directly with regulatory agencies and
that much of the DOE ES&H infrastructure would be reassigned to
DOE's core mission.
Let me be very clear about this. A layered, redundant
oversight subjecting the laboratories to regulatory oversight
by both DOE, NRC and OSHA would result in a more expensive,
confusing and I believe less effective environmental health and
safety program.
Finally, I would like to make a point that needs to be made
here. The results of the pilot at our laboratory should not be
used to generalize this approach to work performed at all DOE
facilities. Our laboratory is probably the simplest and easiest
of the DOE facilities on which one could do a pilot, and it may
well be that external regulation may not be desirable on
broader sites because of the specialized expertise necessary
for managing the risks and the unique facilities and security
considerations. Thank you.
[The prepared statement of Charles V. Shank follows:]
Prepared Statement of Charles V. Shank, Director, Lawrence Berkeley
National Laboratory
Mr. Chairman and Members of the Subcommittee: It is my pleasure to
be here today to provide my perspective on three bills dealing with the
environment, health and safety of the Department of Energy complex.
Just to reacquaint you, Berkeley Lab is the oldest of the DOE
national laboratories, founded in 1931 and located next door to the
University of California, Berkeley campus. Today we operate on a budget
of approximately $415 million performing research for the Department of
Energy (DOE), other Federal agencies and the private sector. Before
becoming Director of the Lawrence Berkeley National Laboratory in 1989,
I spent 20 years at the AT&T Bell Laboratories, ultimately directing
the Electronics Research Laboratory in Holmdel, New Jersey. In
addition, I now serve as Professor in three Departments at the
University of California at Berkeley, in Physics, Chemistry and
Electrical Engineering and Computing Sciences.
The regulatory framework for the national laboratories is important
for their scientific productivity, the safety of our employees, and the
protection of the environment. Providing a safe and healthy environment
is a critical management responsibility of the Laboratory Directors.
The first bill, H.R. 3383, would eliminate the exemption for non-
profit contractors from paying fines and penalties levied under the
Price-Anderson Act. As the University of California official
responsible for managing my laboratory, I take compliance with the
Price-Anderson Act very seriously. I am proud of the fact that we have
an outstanding record of operating safely and of demonstrating the
utmost concern for the environment.
The University operates the Lawrence Berkeley National Laboratory,
along with the Livermore and Los Alamos laboratories, as a public
service without the desire for financial gain, and has instituted
numerous mechanisms to insure compliance with Price-Anderson and all
Federal and state statutes. The fees paid to the University for their
management activities are derived from support for the laboratories'
scientific programs. Therefore, any additional fees that might be paid
as fines and penalties would be additional ``taxes'' on our research
programs, while not increasing our outstanding level of compliance.
The second piece of legislation, H.R. 3906, would establish a new
Office of Independent Security Oversight within the Department, along
with additional procedures for safeguards and security evaluations. I
want to point out that Lawrence Berkeley National Laboratory performs
no classified research on its site and has no ability to store
classified information on site. We do, however, operate DOE's largest
civilian supercomputing facility, along with managing DOE's Internet
operation, so we do take seriously cyber security and other security
measures appropriate for our site.
My concern with the measures proposed in H.R. 3906 is that it
imposes yet another new layer of bureaucratic management and oversight.
A successful security program requires line management accountability
and employee support. This bill will apply yet another burden on the
scientific programs performed at the laboratories.
Finally, let me turn to H.R. 3907, which would provide for external
regulation of nuclear safety and occupational health and safety at DOE
facilities. I would like first to talk about our experience with
external regulation pilot studies with both the Nuclear Regulatory
Commission (NRC) and the Occupational Health and Safety Commission
(OSHA), and then turn to some more general comments about the
legislation.
As you may know, Berkeley Lab is located adjacent to the University
of California, Berkeley campus, and we share many faculty and students.
For many years, it has mystified me that identical activities carried
out on the campus and at the laboratory are regulated by different
entities, and with different standards. As a consequence, when NRC
proposed a pilot project for external regulation of DOE facilities, I
quickly volunteered our institution. My dream is for a world where
similar work is regulated with uniform standards independent of the
entity that performs the work. Scientists could then be trained with a
single set of expectations for environment, health and safety
considerations throughout the country.
The NRC pilot took place between October 1997 and January 1998,
with two planning visits to the laboratory, two one-week simulated
regulation visits, and a public meeting to seek community input and
comments. The results of the pilot were encouraging. NRC found that
there were no significant safety findings to report, and that the
laboratory had an adequate program to protect the health and safety of
employees, the public and the environment. The NRC indicated that they
would be willing at that time to issue the laboratory a broad scope
license for their operation, and indicated that they could carry out
their responsibility for our site with 0.1 FTE, or approximately one
person-month per year.
There are, however, a number of serious concerns. Would external
regulation be layered on top of current DOE orders? We fear a world of
overlapping and redundant responsibilities that would make it difficult
for us to do our work. Who will hold the NRC license? The DOE report on
our pilot indicates that additional people would have to be hired if
DOE held the license. Who will be responsible for legacy issues? We at
Berkeley Lab have old facilities for which clean-up funds have not been
allotted. Who will regulate x-ray units, accelerators and naturally
occurring radioactive materials?
Based on our experience with the NRC pilot, and the private sector
experience of our ES&H staff, we volunteered to conduct a similar pilot
with OSHA. This effort took place between December, 1998 and January
1999. It involved two planning conference calls, one eight-day site
visit, an all-hands meeting with laboratory staff and meetings with our
local labor unions. The visiting team included representatives from
NRC, DOE, OSHA, Cal-OSHA, the California Department of Health Services
and the EPA. They reviewed all our facilities and programs applying the
concept of simulated regulation and inspection, with comprehensive
safety and health inspections and simulated citations for alleged
violations.
The overall conclusion was that the OSHA regulatory framework could
be applied to Berkeley Lab, and that the laboratory's Integrated Safety
Management program is consistent with OSHA's Voluntary Protection
Program. OSHA did identify 63 simulated citations, for a total
simulated penalty of $57,700 or an average of $916.00 per violation.
They also had a number of issues that would need further attention, but
none of them could be considered significant enough to prevent their
efficient regulation of the site.
As a result of these pilot studies, I believe that external
regulation of Berkeley Lab is not only possible but also desirable,
with the caveat that this is done with clear lines of authority and
priority is given to efficient, risk-aware implementation. This would
mean that contractors would deal directly with regulatory agencies, and
that much of the existing DOE ES&H infrastructure would be reassigned
to the Department's core mission. Let me be perfectly clear on this
point: a layered, redundant oversight, subjecting the laboratories to
regulatory oversight by both the DOE and NRC and OSHA, would result in
a more expensive and confusing ES&H climate.
Finally, I am very concerned that the results of these pilots not
be used to generalize this approach to all the work performed at DOE
facilities. In some cases, such as at weapons laboratories and
production facilities, external regulation may not be desirable owing
to the specialized expertise necessary for managing risks in unique
facilities and security concerns.
Mr. Barton. Thank you, Dr. Shank. We would now like to hear
from Mr. Van Ness on behalf of the University of California.
STATEMENT OF ROBERT L. VAN NESS
Mr. Van Ness. Mr. Chairman, I appreciate the opportunity to
come before the subcommittee to discuss proposed legislation
ending the exemption of nonprofit institutions from civil fines
and penalties for Price-Anderson Act violations.
I have submitted a written statement to the subcommittee
that addresses this, but I would like to spend a few moments on
some key points covered in that statement.
When I appeared before the Subcommittee on Oversight and
Investigations last June, I outlined the measures the
University had taken to implement nuclear safety programs at
the DOE laboratories and the reasons the University is
motivated to protect worker and public safety regardless of
whether there is a financial penalty for failing to do so. All
these things remain true.
Nevertheless, during the hearings last June the University
agreed that the existence of the Annual Performance Management
Fee, a revenue source that did not exist at the time that the
statutory exemption was placed in the Price-Anderson Act, made
it possible to remove the exemption if it were replaced by a
suitably tailored provision that recognized the fiduciary
responsibilities of nonprofit institutions such as the
University.
Our understanding of the discussion at the June hearing was
that the committee was willing to limit any civil penalties for
nuclear safety rule violations to the availability of annual
fee to be used for that purpose. Now our reading of the
proposed legislation is that there would be no limit placed on
the potential financial penalties.
We stand by our commitment of last summer, to be
financially accountable consistent with nonprofit purposes, but
we urge that legislation that reflects the financial needs of
nonprofit contractors be set forward.
There is similar legislation before the Senate that does
establish a ceiling on the amount of financial risk for nuclear
safety violations. That would be preferable to the legislation
being considered by the committee, but the Senate language is
critically flawed in that it fails to recognize that nonprofit
contractors have significant existing unreimbursed costs in
addition to those penalties that are currently being
considered.
This flaw would be remedied by the addition of the words
``the available annual'' to the phrase ``performance fee''--
such language would assure that the sum of unreimbursed costs
from all sources is limited to the nonprofit contractors'
annual performance fee.
The primary reason we seek the limitation for nonprofit
contractors is to meet our fiduciary responsibilities to the
state of California, its citizens, our students and donors. It
is also important to recognize that performance fee paid to the
University or any other DOE contractor in reality diminishes
the scientific effort funded. DOE programs are provided
appropriations that are distributed to fund effort at the
national laboratories. Fee is an element of overhead costs that
is charged to the local program at a laboratory to recover
general and administrative costs of the laboratory.
It is for this reason and not to avoid accountability that
the University has sought to minimize the nature and amount of
federally mandated unreimbursed costs.
The Congress is faced with balancing of interests. How do
you maximize the scientific effort obtained with any
appropriation while encouraging good stewardship on the
contractors who operate the national laboratories? There is no
perfect answer. The University's own solution today is a mix of
idealism and pragmatism. The University takes a fee that it
believes is prudent to assure that it can meet its fiduciary
obligations and then returns the unexpended balance to fund
research at or for DOE laboratories.
We acknowledge the need to be accountable for worker and
public safety. In spite of our commitment to safety, we have
yet to reach perfection. As you mentioned in your opening
remarks, this past Thursday we had a plutonium exposure
incident at Los Alamos involving eight employees. Four of the
eight required treatment. All eight have returned to work. The
DOE is conducting an investigation and the University and the
Laboratory are cooperating fully. We will ensure full support
to the exposed employees as well as prompt implementation of
all corrective actions.
Congress has a difficult task in balancing the interests of
funding science and holding cost-type contractors accountable
as financial accountability is a driver in the amount of fee.
The University strongly encourages the committee to consider a
penalty amount ceiling as recommended in this testimony as a
means of making it possible for nonprofit entities to continue
to be operators of these important national research
facilities.
I thank you for your attention to this matter and I look
forward to answering any questions.
[The prepared statement of Robert L. Van Ness follows:]
Prepared Statement of Robert L. Van Ness, Assistant Vice President for
Laboratory Administration, University of California
Mr. Chairman and Members of the Committee, I am Robert L. Van Ness,
Assistant Vice President for Laboratory Administration for the
University of California (UC). The University operates three Department
of Energy (DOE) laboratories--the Los Alamos National Laboratory
(LANL), the Lawrence Livermore National Laboratory (LLNL), and the
Lawrence Berkeley National Laboratory (LBNL). My responsibilities
include administering the performance-based management aspects of our
contracts with the Department of Energy and conducting oversight of the
administrative and operational activities of the laboratories. I want
to thank the Committee for the opportunity to appear and to testify on
an issue similar to the testimony I provided before the Subcommittee on
Oversight and Investigations last June. I have included a copy of this
previous testimony for the record.
The University is indemnified against public liability under the
Price-Anderson Amendments Act (PAAA), and, as such, is subject to DOE
nuclear safety regulations at the three laboratories. The University is
also one of the entities currently exempt from the civil fines and
penalties under Section 234A (d) of the Act. My testimony will address
the proposed legislation (H.R. 3383) that would eliminate that
exemption.
The University has historically opposed assumption of risk in the
operation of federally-funded research and development centers
(FFRDCs), including non-reimbursement of fines and penalties. Non-
profit governmental entities such as UC do not have the statutory
authority nor financial resources necessary to assume substantial risk
for operating FFRDCs. Indeed, Congress originally included the Price
Anderson exemption for non-profits in recognition that the federal
government would lose access to important non-profit partners in the
management of the national laboratories without some risk allowance. As
federal procurement policy related to FFRDCs evolved in the past 15
years, more costs associated with the maintenance and operation of
these facilities have become unallowable costs. Accordingly, the
Department of Energy recognized the need to address this issue through
the introduction of an annual performance-based management fee to
federal contractors. The UC contract to manage the three national
laboratories was re-negotiated in 1992 and included an annual
performance management fee. The introduction of the fee structure
addressed the risk issues and enabled the University to continue the
public service of managing three national laboratories.
During the Subcommittee on Oversight and Investigations hearings
last June, the University agreed that the performance management fee,
an annual revenue source that did not exist at the time the statutory
exemption was adopted, provided a mechanism by which the exemption for
non-profits could be modified. The availability of a management fee
provides an annual revenue source from which financial penalties can be
exacted for specified misconduct. At the hearing UC also urged the
Committee to limit penalty provisions to the availability of the annual
performance management fee. Expanding a liability provision, such as
that proposed in the current legislation, beyond the availability of
annual fee once again subjects a non-profit to more risk than its
officeholders (e.g., the UC Regents) would find permissible. Absent
such a limitation the University would be unable to meet its fiduciary
obligations to those that support its non-DOE laboratory operations--
the California state taxpayers, students, and donors.
We recommend the Committee consider similar legislative language
currently being considered by the Senate in S. 2162:
SEC. 8. CIVIL PENALTIES.
(a) REPEAL OF AUTOMATIC REMISSION--Section 234A b.(2) of the
Atomic Energy of 1954 (42 U.S.C. 2282a(b)(2)) is amended by
striking the last sentence.
(b) LIMITATION FOR NONPROFIT INSTITUTIONS--Section 234A of
the Atomic Energy Act of 1954 (42 U.S.C. 2282a) is further
amended by striking subsection d. and inserting the following:
`d. Notwithstanding subsection a., no contractor,
subcontractor, or supplier considered to be nonprofit under the
Internal Revenue Code of 1954 shall be subject to a civil
penalty under this section in excess of the amount of any
performance fee paid by the Secretary to such contractor,
subcontractor, or supplier under the contract under which the
violation or violations; occur.'
While the Senate language places a ceiling on the amount of
penalties, it does not provide absolute assurance that sufficient funds
are on hand from annual contract revenues to pay the penalties because
non-profits are exposed to numerous other types of unreimbursed costs.
Consequently, we recommend modifying the language to limit penalties to
the amount of any available annual performance fee. Like all DOE cost-
type contractors, the University is subject to federal reimbursement
limitations for a variety of costs including: environmental and
security penalties; accounting deficiencies; defense costs in certain
actions brought by state and local governments and federal agencies;
defense costs in certain employee grievances; certain liabilities to
third parties; property and other losses under certain conditions;
community relationships, and certain employee compensation expenses.
Federal policies in many of these areas encourage better practices by
contractors, but losses are not totally controllable by the prompt
actions of contractors. For example, federal agencies have interpreted
the Major Fraud Act to preclude 100% federal reimbursement to
government contractors even in cases where the contractor is completely
exonerated.
It is also important to recognize that any annual performance fee
paid to the University or any other DOE contractor, comes at the
expense of funding for the primary scientific mission of the
laboratory. The performance management fee is an element of overhead
cost that is charged to the local research programs at a laboratory to
recover general and administrative costs of the laboratory. Since the
mission of the national laboratories is the conduct of their federally-
funded research programs, the University has sought to minimize the
nature and amount of federally mandated unreimbursable costs associated
with FFRDC operations.
We believe Congress is faced with balancing mutually important
interests. How do you maximize the scientific effort obtained with any
appropriation while encouraging good stewardship from the contractors
who operate the national laboratories? There is no perfect answer. The
University's own solution to date is a mix of idealism and pragmatism.
The University receives an annual fee that it believes is prudent to
protect the non-profit institution against risk and meet its fiduciary
obligations, then returns the unexpended balance to fund research at or
for the UCDOE laboratories.
Last June I testified about the important non-financial factors
that motivate the University and the safety of our nuclear operations
as well as the existing contract tools already available to DOE to
ensure contractor compliance and performance improvement. Our approach
to the amount and use of fee reflects our commitment to the core
motivations of the institution--to expand the base of human knowledge,
to confer knowledge from one generation to the next, to make our
country secure through the application of ideas and science. We are
prepared to continue our record of outstanding service to the nation
and make alterations in the rules surrounding that service so long as
we can meet our core objectives and our fiduciary obligations. We
remain committed to the safety of our workers and the public,
notwithstanding the occasional setback. In that last regard I am
obliged to tell the Committee of an incident last week in which eight
workers were exposed to small levels of air-borne plutonium-238 at Los
Alamos National Laboratory. Four of the eight employees required
treatment. All eight have returned to work. We are working very closely
with DOE and others to take immediate and effective corrective action.
We will ensure full support to the exposed employees.
In summary, we embrace the need to be accountable for worker and
public safety. We applaud the interest of this Committee in balancing
the interests of science with the needs of employees and the general
public to be safe from nuclear and environmental hazards. We recognize
the difficulty you face in achieving a satisfactory level of
accountability from non-profit contractors and understand the intent
behind the proposed legislation. The University strongly encourages the
Committee to consider a penalty ceiling, as recommended in this
testimony, as a means of ensuring that non-profit entities can continue
to be partners with the federal government in the operation of FFRDCs.
Thank you for the opportunity to appear before you.
Mr. Barton. Thank you, Mr. Van Ness. We would now like to
hear from Ms. Eldredge for 7 minutes. Your statement is in the
record in its entirety.
STATEMENT OF MAUREEN ELDREDGE
Ms. Eldredge. Chairman Barton, members of the committee,
thank you for allowing me to testify.
Before I get into the details of my testimony, I just have
to give you the very, very short summary, which is in the past
week and a half there has been no less than five articles on
nuclear safety problems and disasters at DOE sites, and yet the
General Counsel sits here and says they have made tremendous
strides in safety. They have not, and the shortest version of
my testimony that I can give you is we could have OSHA now and
we should do it. We have some concerns about the other things,
but there are pieces that we could move forward with right now.
The Alliance for Nuclear Accountability is a network of 32
organizations. We have a long history of working at DOE nuclear
weapons sites doing watchdog and oversight, and we have
concluded along with numerous external panels and independent
advisory committees that DOE cannot regulate itself and we are
very pleased that this committee is taking steps to address
this problem and hope that we can move forward with at least
part of it this year.
I want to touch briefly on some problems that came up in
legislation last year that made the problem worse. That is the
passage of Title 32 of the Defense Authorization Act which set
up the National Nuclear Security Administration. I will just
highlight two problems with that.
One is the problem of sovereign immunity. I know that the
Attorney Generals have been before you at another hearing
talking about that so I will not spend too much time on it, but
there is some language in that Act that creates some ambiguity
about whether the waivers of sovereign immunity that exist now
at the DOE weapons sites still apply to the NNSA sites, and we
urge you to address that.
Additionally, there is a problem with Price-Anderson Act
enforcement of the nuclear safety rules with regards to the
NNSA facilities. There is a consequence of the Act that now the
Assistant Secretary of Environment, Safety and Health cannot
issue notices of violation or fines directly to the offending
NNSA facility. They have to go through the Administrator of the
NNSA, so essentially the line program that has committed the
violation has to fine itself. This is sort of self-regulation
and it needs to stop, and we urge you to pass legislation that
will both clarify the sovereign immunity issue and ensure that
the Office of Environment, Safety and Health has authority over
all aspects of DOE including the new National Nuclear Security
Administration.
NNSA is not the sole source of the problem however. There
have been and there remain serious problems within the weapons
complex. Last week five workers at the Los Alamos Lab, as was
mentioned, were exposed to plutonium. Rocky Flats workers and
managements were reported to have been violating safety
procedures that prevent criticalities. There have been
explosions at the Y-12 plant in Oak Ridge. The list goes on and
on.
The frequency and severity of some of these accidents
astounds me. After 50 years of nuclear weapons work DOE still
doesn't seem to realize that it is handling some of the most
deadly material known to man.
The case for external regulation has been built over 50
years and it cannot be stated more bluntly: DOE cannot regulate
itself.
We hope the committee will not fall prey to partisan
disputes--I am disappointed that none of the minority is here--
and can overcome political roadblocks to this much-needed
reform.
Mr. Barton. I'll let them know your testimony, I promise.
Ms. Eldredge. Thank you.
With regards to H.R. 3907 we greatly support the concept of
moving to external regulation and we strongly support OSHA as
the regulator, but we do have some concerns about the Nuclear
Regulatory Commission as a regulator which I will touch on
later.
OSHA can be brought in to regulate protection for all
workers with the caveat that it needs sufficient resources,
both funding and personnel, and time to do the job right, and
it is close to criminal that there is little enforcement system
for worker safety rules at DOE that are not part of the Price-
Anderson Act Nuclear Safety Rule Enforcement Program but are
equally vital. This includes the new beryllium rule, which is a
nice rule but it doesn't have any enforcement procedures
attached to it.
For regulation of facility safety we are concerned about
NRC as the regulator and concerned about shifting the
responsibility from one dubious entity to another. The 1995
Advisory Committee, the independent committee that looked at
external regulation, also had difficulties reaching conclusions
on who should be the regulator for nuclear facility safety.
NRC has shown a remarkable ability to push the nuclear
industry interests at the expense of public health. For
example, they have licensed uranium mines in New Mexico even
while acknowledging that the results of these mining operations
would be contamination of the sole drinking water supply for
15,000 people, mostly Native Americans, and currently they are
shifting to a risk-informed regulatory approach which 60
percent of its own staff believe will reduce the margins of
safety at nuclear plants so we have some concerns there.
For our network of 32 organizations, NRC is not the white
hat that will come riding in and save the day. However, this
should not stop us from moving forward with phasing in external
regulation at DOE and looking at pilot projects for who would
be a good regulator and exploring some changes to NRC to make
that a better regulator.
Some specific recommendations for this year: Institute OSHA
regulation for all worker safety requirements. It is simple,
there is precedent and it makes sense. I do not see hardly see
why there is anything more to say about it.
We also recommend amending the Atomic Energy Act to
harmonize it with other environmental statutes. This in
particular refers to citizen suit provisions. They have been
the provisions that have provided access for citizens and the
states to make their regulators accountable and we recommend
that we look at setting up citizen suit provisions for both NRC
and for DOE.
At DOE, the problem is even worse. There are no citizen
suit provisions with regard to the orders, and even within DOE
they said they needed 11 rules to have a good Price-Anderson
Act enforcement program. They have only put out two of them to
date.
Finally, administrative changes that could be made right
away and wouldn't even require legislation, and that is
requiring DOE to meet OSHA reporting standards. They have the
data. They have it on data base, but they will not put it out
for the public to access. They could do it easily and they
should.
In conclusion, we urge you to move forward with this effort
at external regulations, whichever pieces that you can.
Fundamentally, DOE as a self-regulating entity cannot persist
without seriously compromising safety and health. After 50
years of environment and safety disasters, it is time to bring
DOE into the future. Thank you.
[The prepared statement of Maureen Eldredge follows:]
Prepared Statement of Maureen Eldredge, Program Director, Alliance for
Nuclear Accountability
Chairman Barton, Representative Boucher, and members of the
Committee, the Alliance for Nuclear Accountability appreciates the
opportunity to once again testify on badly needed efforts to improve
the environment and safety culture at the Department of Energy (DOE).
The Alliance for Nuclear Accountability is a national network of 32
organizations working on nuclear weapons complex issues. For over a
decade we have decried the shoddy environmental and safety practices at
DOE. This disregard for environmental rules resulted in the widespread
contamination around the complex. We have pressed for DOE to be subject
to the same environmental laws and requirements as the rest of us, and
we concluded that neither DOE nor any other agency could be an
effective regulator of itself. The federally appointed Advisory
Committee on External Regulation of DOE Nuclear Safety, also concluded
that, ``Every major aspect of safety at DOE nuclear facilities--
facility safety, worker protection, public and environmental
protection--should be externally regulated . . .'' <SUP>1</SUP>
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\1\ Advisory Committee on External Regulation. Improving Regulation
of Safety at DOE Nuclear Facilities, December 1995.
---------------------------------------------------------------------------
We are very pleased that the committee is taking steps to address
this problem. We hope that if the entire legislative package is not
possible all at once, that at least some crucial elements will be
addressed in legislation this year. We need to move towards a more sane
regulatory structure for DOE, and take steps now to start the process.
problems with the national nuclear security agency
The passage of Title 32 of the Defense Authorization Act for Fiscal
Year 2000, which set up the National Nuclear Security Administration
(NNSA), was a disaster for environment, safety, and health programs.
Rather than move us towards better regulatory oversight of DOE's
nuclear weapons program, it shifted, either through intent or ambiguous
legislative language, to a situation that more closely resembles the
bad old days of the Atomic Energy Commission, than a modern and
environmentally sound approach to operations.
I would like to highlight two major problems with the NNSA
structure. These are the ambiguity regarding DOE's waiver of sovereign
immunity and the oversight role of the office of Environment, Safety,
and Health (EH) in the new Administration.
Sovereign Immunity
The federal government faces an enormous liability in the cleanup
of the nuclear weapons complex. DOE estimates that it has contaminated
over 600 billion gallons of groundwater and over 33 million cubic
meters of soil. This contamination came from decades of abuse, in which
there was no external regulation, and DOE and its predecessor agencies
claimed that they had ``sovereign immunity'' from compliance with
environmental laws enforced by States. In 1992 Congress passed the
Federal Facilities Compliance Act, which originated in this committee,
to clarify that DOE was, in fact, required to comply with State
enforcement and regulations.
Sections 3261 of S. 1059 includes qualifying language which casts
doubt on the applicability of the current waivers of sovereign immunity
with respect to the NNSA. It states:
The Administer shall ensure that the Administration complies
with all applicable environmental, safety, and health statues
and substantive requirements. (emphasis added)
This qualifying language has raised concerns in State Attorney
General's offices across the country with regards to the sovereign
immunity issues, and we concur with their analysis. We urge the
Congress to amend the NNSA legislation to clarify that State regulatory
authority over NNSA remains intact, and that the waivers of sovereign
immunity in place before the creation of the NNSA also apply to it.
Relying on a record of legislative intent it not sufficient.
Price-Anderson Act Enforcement
In addition to the sovereign immunity problem, there is serious
concern with regards to the application of EH requirements to the new
Administration. A consequence of the NNSA legislation was to
effectively pull the teeth of the already weak efforts at regulation of
safety and health issues from within DOE. The Assistant Secretary of
the Office of Environment, Safety, and Health can no longer directly
issue notices of violations and impose fines under the Price-Anderson
Act for nuclear safety rule violations, to NNSA facilities. The
Assistant Secretary must develop a recommendation to submit to the
Administrator of the NNSA, who then decides upon imposing fines. This
situation arises out of language in Title 32, which prevents non-NNSA
personnel from directing NNSA personnel.<SUP>2</SUP> This is self-
regulation at its worse, as even the limited independent enforcement
authority within DOE is eliminated. The line program, the very program
that has committed the violation, will be asked to fine itself. Only
continual pressure from the outside, including media and public
interest groups, will ensure enforcement. Nuclear safety enforcement by
continual scandal is not effective. This is a massive step backwards
and must be corrected.
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\2\ Section 3213 (a) STATUS OF ADMINISTRATION PERSONNEL. ``Each
officer or employee of the Administration, in carrying out any function
of the Administration''
(2) shall not be responsible to, or subject to the authority,
direction, or control of, any other officer, employee, or agent of the
Department of Energy.
(b) STATUS OF CONTRACTOR PERSONNEL. ``Each officer or employee of a
contractor of the Administration, in carrying out any function of the
Administration, shall not be responsible to, or subject to the
authority, direction, or control of, any officer, employee, or agent of
the Department of Energy who is not an employee of the Administration,
except for the Secretary of Energy consistent with section 202(c)(3) of
the Department of Energy Organization Act.
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In addition, several of the labs have already indicated that they
no longer feel they must comply with EH rules and requirements, despite
DOE's ``duel-hatting'' of the Assistant Secretary for EH. We believe it
was the intent of the drafters of this legislation to ensure the
autonomy of the NNSA. However, we strongly oppose the idea of
recreating a new office of EH within the NNSA, which would be at a
lower status and report to the Administrator instead of to the
Secretary of Energy. There is already a problem with DOE being self-
regulated, subsuming the EH functions within the NNSA would further
compound this problem. There is one clear solution--the Office of
Environment, Safety, and Health should have authority over all parts of
DOE, including the NNSA.
The solutions to the EH problems that have been offered to date are
not enough. Exhortations in the legislation to ``ensure that all
operations and activities of the Administration are consistent with the
principles of protecting the environment and safeguarding the safety
and health of the public and of the workforce (Section 3211(c))'',
provide no guarantee of compliance with regulations and orders.
Legislating Secretarial authority to delegate is not sufficient. Such
an action still leaves the crucial environment, safety, and health
compliance of the entire agency up to the decision of one person, who
may or may not be in place for very long. These issues are too
important to leave in such an uncertain state, dependent on the will of
one person.
We urge you to pass amending legislation that clarifies that the
Office of Environment, Safety, and Health's has full authority over the
NNSA with regards to environment, safety, and health oversight and
enforcement, and that the Price-Anderson Act enforcement program is
fully enforceable by EH on NNSA facilities.
problems exist throughout the department
Even before the NNSA came into being there were, and there remain,
serious problems in the weapons complex which result in injuries to
workers and contamination of the environment, seemingly beyond the
ability of DOE to correct. Since I last testified on this subject, the
list of accidents and violations has continued unabated. Just last week
five workers at the Los Alamos lab in New Mexico were exposed to
airborne, particulate plutonium, a known carcinogen. On Monday the
Boulder, Colorado, newspaper reported that Rocky Flats workers and
managers violated safety procedures, which increased the risk of
nuclear explosions (criticalities).<SUP>3</SUP> On March 8th, DOE
levied $110,000 in fines against Westinghouse Savannah River for
recurring violations of safety procedures on equipment design,
construction, and installation. In December of 1999, there was an
explosion at the Y-12 plant at Oak Ridge, which injured 11 workers. Not
only did DOE find that there were ``failures at every level of . . .
(the) management chain'', but it also determined that injuries could
have been lessened had proper protective equipment been available for
the personnel.<SUP>4</SUP> In April of 1999, Lockheed Martin, DOE, and
Fluor Daniel were all fined at the Hanford site for inadequate
monitoring of high level waste tanks. Finally, on March 6, DOE publicly
announced what site managers had known for over 9 months--that the
Ogallala aquifer was contaminated with tri-chloroethylene from the
burning grounds at Pantex.
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\3\ Katy Human. Reports: Flats Broke Safety Rules. Boulder Daily
Camera, March 20, 2000.
\4\ Dr. David Michaels, Assistant Secretary for Environment,
Safety, and Health. DOE News Release, February 24, 2000.
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The list of violations in just one year could fill a textbook. The
frequency and severity of some of these accidents continues to astound
me. After over 50 years of nuclear weapons work, DOE and its
contractors still fail to realize that they are dealing with some of
the most dangerous materials on earth, and treat safety procedures as
optional.
The case for external regulation of DOE has been built over 50
years, and at this point seems, to the general member of the public,
beyond obvious. It cannot be stated more bluntly: DOE cannot regulate
itself. The record of such self-regulation is astounding in its
failure. Political obstacles have prevented the common-sense move
towards external regulation for decades, and we see them developing
again in this Congress. We sincerely hope that this committee will not
fall prey to partisan disputes, and can overcome the political
roadblocks to this much-needed reform. We ask, how many more accidents,
injured workers, and contaminated groundwater is needed before this
effort can move forward?
critique of hr 3907 and specific concerns
In general, the Alliance for Nuclear Accountability greatly
supports the concept of HR 3907 in moving DOE into external regulation.
In 1995, the independent advisory committee recommended that DOE be
externally regulated, and supported OSHA as the regulator for worker
safety. However, it did not reach consensus on who the regulator should
be for nuclear safety. Unfortunately, with regards to nuclear safety
and regulatory enforcement, neither can we.
Occupational Safety and Health Administration
At a minimum, the Occupational Safety and Health Administration
(OSHA) should be brought in as the regulator for all protection of
workers, with the caveat that it needs sufficient resources--both
funding and personnel, to do the job right. It is close to criminal
that there is little enforcement system for the worker safety rules at
DOE that are not nuclear safety rules, but are equally vital. These
include the new beryllium rule, which is intended to protect workers
from berylliosis, a crippling lung disease, or protection from the many
chemical hazards that exist at DOE facilities. OSHA has the statutory
authority to enforce these rules, however DOE exercises its exemption
under 4 (b)(1) of the Occupational Safety and Health (OSH) Act. This
exemption was intended to allow agencies to enforce the rules
themselves. Given DOE's abysmal record of this, combined with the new
NNSA's reluctance to take orders from anyone, it is time to remove this
exemption for DOE and return OSHA's authority.
However, to do this requires both time and money. It is not
sufficient to say that OSHA will regulate a facility, and then have the
nearest OSHA office be hundreds of miles away, with an extremely
limited capacity for effective oversight. DOE will require sufficient
resources to come into compliance. A time frame must be developed for
transitioning to OSHA regulation and for bringing DOE into compliance.
An effective time frame should be on the order of two years, with
sufficient incentives for DOE to actually begin work on compliance now.
Nuclear Regulatory Commission
For regulation of facility safety, we are concerned about the
Nuclear Regulatory Commission (NRC) as the choice of regulator. Faced
with the choice of DOE or NRC as a regulator is a bit like being faced
with death by hanging or death by firing squad. Neither is particularly
attractive and shifting responsibility from one dubious entity to
another is not much of a solution. The 1995 Advisory Committee
recommended looking at either NRC or the Defense Nuclear Facilities
Safety Board (DNFSB). Both of these entities have problems and would
need some major structural changes to be acceptable.
NRC has shown a remarkable ability to push nuclear industry
interests at the expense of public health. It proposed a ``below
regulatory concern'' (BRC) category for nuclear waste, which would
allow such waste to be treated as if it were not nuclear. Only strong
opposition from the public prevented this step, but NRC generally still
supports it. Given the ongoing trend in radiation standard setting,
which finds that previous standards were not stringent enough, this
position is alarming. NRC has licensed uranium mines in New Mexico even
while acknowledging that the result of the mining operation would be
contamination of the sole drinking water supply for 15,000 people,
mostly Native Americans. Currently NRC is shifting to ``risk-informed''
regulation, which 60% of its own staff believes will reduce the margins
of safety at nuclear power plants. It is also trying to shift to
informal rulemaking, which will reduce the public's access to
information and ability to intervene in the process.
For our network of 32 organizations, NRC is not the ``white hat''
that will come in to save the day at DOE. However, that does not mean
that we support giving up on the effort to find an external regulator.
We should move forward, begin phasing in external regulation under
OSHA, and develop tools to evaluate the performance of both NRC and the
Defense Nuclear Facilities Safety Board (DNFSB) as possible regulators.
External regulation will not come overnight, but the challenges we face
should not dissuade us from doing what is right. Both NRC and DNFSB
would need some changes to its operations to be acceptable as a
regulator. The DNFSB would need to curtail its activities to safety
issues, rather than commenting on equipment choices and preferred
technology issues, which are unrelated to safety. NRC would need to be
subject to citizen suit provisions and operate from a basis that
emphasizes public and worker safety, rather than growth of the nuclear
industry. Exploration of both options for a regulator should continue,
with an eye towards reforms.
recommendations
The Alliance for Nuclear Accountability urges the committee to move
forward now on a number of actions that may not be the complete
legislative package that we all want, but will be important steps in
the right direction.
Legislative Changes
A. Institute OSHA Regulation for all Worker Safety Requirements.--
Currently, even within the non-NNSA parts of DOE, compliance with EH
requirements in areas other than nuclear safety, such as OSHA
requirements, chemical safety rules, and the new beryllium rule, is
entirely voluntary. There are no penalty provisions for these rules, as
exist for nuclear safety rules under the Price-Anderson Act. This is
absolutely unacceptable. If the legislative challenges facing HR 3907
prove too steep, we urge the committee to excerpt section 4 as an
amendment on its own. Some modifications include providing for baseline
reviews of DOE compliance and a two-year time frame to move into OSHA
enforcement. There is precedent for this in the transfer of enforcement
authority to EPA for CERCLA and RCRA programs in 1985. In addition, the
OSH Act has authority for radiological hazards already, and could be to
cover combined radiological and non-radiological hazards in the absence
of a second external regulator.
B. Amend the Atomic Energy Act to Harmonize it with Other
Environmental Statutes.--The lack of citizen suit provisions in the AEA
eliminates one of the most effective tools available to States and the
public for ensuring agency accountability. The 1995 Advisory Committee
on External Regulation recommended that citizens be allowed to sue DOE
and its contractors to comply with applicable statutes and regulations.
We recommend that the citizen suit provision also be extended to the
NRC. The ability of citizens and States to bring suit under the Clean
Water Act and other statutes has been responsible for ensuring much of
the compliance within agencies and corporations we see today (example
of State suing, particularly Texas?). It allows states to enforce
regulations and protect its citizens by challenging the regulators when
it sees the need. Setting up the same type of citizen suit provisions
on the NRC would go a long way towards making it a more acceptable and
accountable regulator.
Within DOE, the problem is even worse. Not only are there no
citizen suit provisions with regards to DOE orders, many of those
orders are not even enforceable under DOE's own rulemaking procedures.
In fact, DOE hasn't even issued all the safety rules that would provide
additional enforcement authority under Price-Anderson. It has finalized
only two of the 11 rules it said it needed, and USA Today on March 20
explores the possibility that industry pressure has prevented the rules
from proceeding.<SUP>5</SUP> Until DOE is externally regulated, one
positive step that can be taken now would be to require DOE to issue
all orders pursuant to the Administrative Procedures Act notice and
comment. This would allow citizen suits to proceed under the
requirement that the agency must follow its own orders. This would not
address the issue of making contractors more accountable, as they would
not be subject to citizen suits under this law. However, even this
small step forward would be welcome.
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\5\ Peter Eisler. Safety Over a Barrel. USA Today, March 20, 2000.
---------------------------------------------------------------------------
Administrative Changes
A. Require DOE to Meet OSHA Reporting Standards.--At OSHA, one can
log onto a web site and see a list of violations at a facility, and
their ultimate disposition. OSHA also requires a log of on the job
injuries and illnesses. There is no reason this can't happen at DOE.
Already DOE has the Operation Reporting Program System (ORPS), in which
incidents and events are shared with DOE for significant safety and
health items. In addition it has the Computerized Accident and Incident
Reporting System (CAIRS), which is similar to the OSHA log of on the
job injuries and illnesses. I have included with my testimony a copy of
the OSHA web site page, and the results of a search for accidents
involving trichloroethylene. OSHA provides the ability to search by a
variety of terms, and lists all accidents that match, as well as
providing detailed information about the accident and fines
imposed.<SUP>6</SUP> By contrast, most DOE sites do not provide easy
public access to its ORPS reports. Only at the Los Alamos National Lab
(LANL), due to the persistence of determined individuals, are ORPS
reports posted on a database, and even that is not easy to find on
their web site unless you know it is there. It is buried six screens
deep under Environment, Safety, and Health ``services'' rather than in
the ``databases'' section. Information from the CAIRS reports, which is
relevant to OSHA, is not available to the public. Other accident and
incident data exists in databases that are not only closed to the
public, but closed to many workers as well.<SUP>7</SUP> The basic
infrastructure is in place for DOE to report accidents, which could
easily be converted to OSHA-style reports and open to public access.
This is important information for both the public and the workforce,
and should be made available as a tool to further contractor and agency
accountability. It would not require a legislative change to make this
happen, just a decision by DOE to be more open about its mistakes.
---------------------------------------------------------------------------
\6\ To conduct an accident search, go to http://www.osha.gov/
oshstats/ and click on Accident Investigation Search.
\7\ To access LANL's ORPS reports, go to http://drambuie.lanl.gov/
esh7/Finals/. LANL's homepage is www.lanl.gov.
---------------------------------------------------------------------------
B. Clarify and Invest the Environmental Protection Agency with
Standard Setting Authority.--Protracted fighting between EPA and NRC
over standard setting for nuclear issues, such as Yucca Mountain, and
reactor decommissioning, have resulted in few, inconsistent, standards.
This is untenable. EPA is the agency charged with protecting public
health and the environment, and should be given the sole responsibility
for standard setting. While we are often not happy with EPA's
standards, and consider them too weak, they are a far cry from NRC. For
example, NRC's standard for exposure to the general public would result
in a lifetime risk of premature cancer death of one out of every 300
people <SUP>8</SUP>. That is shocking and shameful. The nuclear
industry should be subject to the same standards and risk levels as
other industries, and EPA should be the regulator in that regard.
---------------------------------------------------------------------------
\8\ GAO. Nuclear Health and Safety: Consensus on Acceptable
Radiation Risk to the Public is Lacking. GAO/RCED-94-190. September
1994.
---------------------------------------------------------------------------
C. Set Up Limited NRC Regulation as a Test.--There are several
possible activities within DOE sites that could be considered as test
cases for NRC regulation and licensing, beyond the pilot projects
already conducted. These include the Low Level Waste Dumps at DOE
sites, and possibly reactors like the Fast Flux Test Facility (FFTF) at
the Hanford site. Currently, DOE's LLW landfills do not even approach
NRC's standards, and are a clear threat to the groundwater at many
sites. There are already a clear set of standards and infrastructure in
place, including delegated state programs. Finally, many of DOE's LLW
dumps are de facto illegal hazardous waste/Resource Conservation and
Recovery Act (RCRA) dumps, due to DOE's inability to properly track and
characterize its waste. If the FFTF were restarted, it should be
licensed and regulated by NRC, and meet modern safety standards.
Specific facilities at DOE should be reviewed and considered for NRC
regulation. However, NRC should be prevented from going to informal
rulemaking that could subvert the intent of better, more accountable,
regulation.
conclusion
In conclusion, the Alliance for Nuclear Accountability strongly
urges the committee to move forward with at least some parts of an
external regulation program for DOE as soon as possible. The creation
of the National Nuclear Security Administration has resulted in a
number of problems for the protection of the environment, worker
safety, and public health. These can be partially addressed by
legislative remedies and amendments to the NNSA act. Fundamentally, DOE
or NNSA as self-regulated entities cannot persist without seriously
compromising safety and health. After 50 years of environmental and
safety disasters, it is time to bring DOE into the future.
addendum:
The Committee asked for input on two other bills, HR 3383 and HR
3906. With regards to HR 3383, we strongly endorse this bill and urge
you to proceed with it without delay. It strains credulity that the
sole enforcement mechanism available to DOE for nuclear safety
violations cannot be used against the University of California (UC),
one of the largest contractors in the weapons complex. UC has the
contracts for the weapons laboratories, which are the source of many
serious accidents and will be the source of many future problems. These
labs are in ongoing operations with some of the most hazardous material
known to humanity. They are now subject to fines and penalties for
security program violations. Surely the protection of the American
public and nuclear workers from radiation hazards deserves as much.
We have no opinion on HR 3906 at this time.
[GRAPHIC] [TIFF OMITTED] T4001.001
[GRAPHIC] [TIFF OMITTED] T4001.002
[GRAPHIC] [TIFF OMITTED] T4001.003
Mr. Barton. Thank you, and I want to say in defense of the
minority that is not here, we do have a pending bill on the
floor that is a subcommittee bill, so that many of the
subcommittee members on the minority side would be here if it
were not for the fact that they were engaged in the debate on
the floor.
I would now like to hear from Dr. Adelman for 7 minutes.
Your testimony is in the record in its entirety.
STATEMENT OF DAVID E. ADELMAN
Mr. Adelman. Thank you, Chairman Barton and members of the
subcommittee for giving me the opportunity to testify today.
My remarks will focus on external regulation of the
Department of Energy. I want to commend Chairman Barton and the
other subcommittee members for introducing H.R. 3907, which
represents an important step toward reforming the DOE
regulatory system.
And I urge you to continue to work toward developing a
comprehensive bill that will fully address the many complex
issues raised by shifting to external regulatory oversight of
DOE.
As this subcommittee is well aware, self-regulation is
unique to DOE and has been an unqualified failure. DOE's
deficient self-regulation has resulted in the largest
environmental cleanup in history, over 10,000 individual sites
at which toxic or radioactive substances were improperly
abandoned or released directly into the environment, millions
of cubic meters of contaminated soil and groundwater, at a
total remediation cost of almost $200 billion.
Moreover, chronic lapses in compliance with environmental,
safety, and health regulations continue at DOE sites as
evidence by the recent revelations of failed regulatory
compliance at DOE's Paducah, Kentucky facility, which has led
to a major DOE investigation and Congressional hearings; major
accidents, including two fatalities and more than $2 million in
environmental and safety fines at DOE's Idaho site; and recent
findings of inadequate safety standards at Los Alamos,
Livermore, and Savannah River by the Defense Nuclear Facilities
Safety Board.
Clearly, DOE's self-regulation is not working. After
reviewing DOE's regulatory record, it is no wonder that its
Advisory Committee on External Regulation, which was composed
of government, nuclear industry, and NGO representatives, found
that the severe problems with DOE's approach to safety have
their roots in DOE's unique regulatory history and current
regulatory framework, and that essentially all aspects of
safety at DOE's nuclear facilities and sites should be
externally regulated.
This subcommittee's efforts to develop legislation to end
DOE's self-regulation is therefore extremely important,
particularly in light of Secretary Richardson's untimely and
regressive decision in February 1999 to abandon external
regulation of DOE facilities.
There are, however, several critical issues that should be
addressed before the proposed legislation proceeds: First,
public participation, including citizens suits, should be
integral to external regulation of DOE.
Citizen suits have been important for over two decades. It
was a citizen suit in 1984 that required DOE to comply with
environmental, health, and safety regulations, and more
recently it was a citizen suit brought by several workers at
Paducah that exposed the problems at DOE's Paducah facility.
Public scrutiny enforcement is essential to agency
accountability, particularly where, as here, state and Federal
agencies will be enforcing laws against another government
entity. Furthermore, making itself fully accountable to the
public is the only way that DOE will restore its credibility.
Second, the National Nuclear Security Administration must
be subject to external regulation. As the DOE's own advisory
committee found, the only area of DOE operations that arguably
should be exempt from external regulation is nuclear explosive
safety.
Indeed, virtually all of the information that is relevant
to the safe operation of DOE facilities will not be classified.
In any event, the NRC has well established procedures and
experience with handling classified information.
Therefore, there is no basis upon which to treat NNSA
facilities differently than other sites in the nuclear weapons
complex.
Third, with some 34 sites containing 3500 nuclear
facilities, the transition to external regulation will take
time. Consultations with each of the agencies and review of
existing reports and pilot projects will be essential to
identifying a reasonable transfer period.
However, establishing a deadline or series of deadlines for
transferring regulatory authority will be essential to ensuring
that it is successful and timely.
The importance of external regulation of DOE cannot be
overemphasized. As DOE itself concluded in 1996, external
regulation is an essential element of completing the move from
DOE's historical self-regulated status, which has been
variable, costly, and inconsistent, to a stable, efficient, and
predictable safety environment.
I appreciate your giving me the opportunity to testify
today, and would be pleased to answer any questions.
Mr. Largent [presiding]. Thank you, Dr. Adelman. We
understand our last witness is still tied up in a Senate
hearing, and with unanimous consent, we will allow Mr. Miller
to submit his testimony for the record.
[The prepared statement of David E. Adelman follows:]
Prepared Statement of David E. Adelman, Project Attorney, Natural
Resources Defense Council, Inc.
Chairman Barton, ranking minority member Hall, and members of the
Subcommittee, my name is David Adelman. I am a project attorney with
the Natural Resources Defense Council (``NRDC''), a national non-profit
environmental organization with over 400,000 members and a staff of
about 190 scientists, attorneys, resource specialists, and support
staff. I am the project attorney for NRDC's nuclear program, which for
over twenty-five years has actively worked to address serious
environmental, health, and safety problems at the Department of
Energy's (``DOE'') nuclear weapons production complex.
Thank you for allowing me to address the issues related to external
regulation of environment, health, and safety at DOE's facilities.
There are three central issues I will address in my testimony. First,
DOE's self-regulation of environment, safety, and health, continues--
after more than fifty years--to be plagued by deficiencies, chronic
violations, and accidents. Second, fundamental regulatory reform is
necessary to ensure that the environment, worker health and safety, and
public health and safety are adequately protected and that public
confidence in DOE is restored. Third, for a new regulatory regime to be
effective and credible, citizen participation--particularly citizen
suits--must be at the heart of the new regime.
The bill, H.R. 3907, that the Committee members have introduced is
a clear step in the right direction in reforming the DOE regulatory
system, and I urge you to continue to work towards developing a
comprehensive bill that will fully address the many complex issues
raised by transitioning from the current state of DOE self-regulation
to external regulation by the Occupation Safety and Health
Administration (``OSHA''), the Nuclear Regulatory Commission (``NRC''),
and the Environmental Protection Agency (``EPA''). Such legislative
action by Congress is all the more important in light of Secretary
Richardson's reversal of the Department's December 1996 decision to
submit legislation to Congress on external regulation. There are,
however, several critical issues that must be addressed before the
proposed legislation proceeds, including:
(1) ensuring that there is adequate funding--DOE estimates it spends
about $1.5 billion annually on safety and health regulation;
<SUP>1</SUP>
---------------------------------------------------------------------------
\1\ Department of Energy, Report of Department of Energy Working
Group on External Regulation 3-11 (1996) (hereinafter ``DOE Working
Group Report'').
---------------------------------------------------------------------------
(2) developing plans to ensure that the external regulators have the
personnel necessary to provide competent oversight;
(3) adding a provision to the legislation granting citizens the right
to bring enforcement actions;
(4) making it explicit that the National Nuclear Security
Administration is also subject to external regulation; and
(5) affording adequate time for a smooth and efficient transition from
DOE self-regulation to external regulatory oversight.
i. the failure of self-regulation at doe facilities
Under current law, DOE is a largely self-regulating agency pursuant
to the Atomic Energy Act. That is, as a general rule, the DOE is not
subject to regulation and oversight by any external administrative
entity. Instead, it is responsible for regulating its own activities in
regard to worker and public health and safety and in regard to most
types of environmental discharges of radioactive materials. The
relatively new Defense Nuclear Facilities Safety Board can make
recommendations to DOE on safety issues; but these recommendations are
non-binding, and the Board has no regulatory power over DOE's
activities.
This self-regulation scheme is utterly unique to the Department of
Energy. The American legal system has, in every other context I can
think of, soundly rejected the concept of self-regulation. Except as
regards the DOE, our legal system correctly rejects the notion that an
entity with a mandate for production can effectively ensure, without
outside assistance, that this production mandate will not overwhelm or
supersede the need to protect the environment and human health and
safety. The exceptional nature of the DOE regulatory system is all the
more astonishing in that the production of nuclear weapons involves
producing, handling, managing, and disposing of some of the most
dangerous substance known to humankind.
If we view the DOE experience as an experiment in whether self
regulation can work, it is clear that the experiment has been an
unqualified failure. The statistics are stark. Nuclear weapons
production at DOE facilities has resulted in the largest environmental
cleanup in the world, involving more than 100 facilities located in
more than 25 states, an annual budget of almost $6 billion, and
conservative estimates of total cleanup costs of approximately $200
billion.
To date, DOE has identified over 10,000 individual sites at these
facilities where toxic or radioactive substances have been improperly
abandoned or released directly into soil, groundwater, or surface
waters. Under current estimates, nuclear weapons production in the
United States has resulted in the contamination of more than 79 million
cubic meters (21 billion gallons) of soil and 1.8 billion cubic meters
(475 billion gallons) of groundwater--in comparison, the Exxon Valdez
spill involved the release of 11 million gallons of oil. In addition,
DOE manages more than 24 million cubic meters (6.4 billion gallons) of
hazardous or radioactive wastes generated by past and ongoing nuclear
weapons production.
Moreover, despite efforts to improve the regulation of activities
at DOE sites, serious incidents and lapses in health and safety
regulation continue to occur. At DOE's Paducah, Kentucky, uranium
enrichment plant, evidence was recently uncovered of alleged illegal
disposal of radioactive and hazardous wastes and chronic failure to
comply with basic environmental and safety regulations, such as
inadequate employee monitoring, widespread contamination in the plant
cafeterias, and failure to identify and cordon off hazardous areas.
Compounding these problems, in 1998 DOE determined that the Paducah
contractor had illegally retaliated against a worker who had raised
significant safety concerns.
Similar lapses and violations are pandemic at many other DOE
facilities. At DOE's site in Oak Ridge, Tennessee, an explosion in
December 1998 involving hazardous materials injured 11 workers and was
blamed on weak safety standards. In July 1998, DOE's Oak Ridge
contractor was fined more than $400,000 for illegal dumping of
radioactive and hazardous wastes in a local landfill and widespread
mislabeling of wastes. And in 1995, DOE's Oak Ridge contractor was
found to have withheld information about significant radiation
exposures of workers and to have falsely claimed that numerous test
results of radiation exposure for workers were negative.
At DOE's Idaho National Engineering and Environmental Laboratory,
DOE fined its own contractor $22,000 in August 1999 for problems with
waste containers, unreliable emergency notification systems, and
failure to correct adequately prior safety violations. Weak
environmental and safety programs at DOE's Idaho site have led to three
major accidents, including two fatalities, and more than $2 million in
fines for missing cleanup deadlines, hazardous waste violations, and
accidents that exposed workers to unsafe levels of radiation. These
violations have included falsifying safety records, such as in October
1997 when DOE fined its Idaho contractor $55,000 for falsifying records
that testing of nuclear reactor safety systems had been conducted when
in fact these crucial tests had not been performed.
DOE's Hanford, Washington, facility, which is the site of the most
costly, dangerous, and technically challenging cleanup actions, also
continues to suffer from poor environment, health, and safety
oversight. In April 1999, for example, DOE and its contractors were
fined for inadequate monitoring of several Hanford storage tanks
containing high-level nuclear wastes, which store some of the most
hazardous materials found in the DOE complex. Indeed, the long-standing
deficiencies of self-regulation are a tradition at Hanford, where in
1959 DOE identified significant leaks in single-shell high-level waste
tanks, but because of production pressures continued to build them
until 1964 and to introduce wastes into them until 1980--causing
millions of cubic meters of groundwater and soil to become
contaminated.
The major production and research sites, i.e., Los Alamos,
Livermore, and Savannah River, are no different. In 1999 the Defense
Nuclear Facilities Safety Board found health and safety regulation at
these facilities to be seriously deficient--last summer, for example, a
major fire occurred at Los Alamos involving plutonium. Putting this in
a broader context, in a 1993 internal Department review found that
``DOE facilities . . . have been averaging around 64,00 reportable
items of non-compliance with OSHA standards per year over the past two
years.'' <SUP>2</SUP> It is therefore clear that DOE self-regulation
continues to fail to protect the environment, worker health and safety,
and the public.
---------------------------------------------------------------------------
\2\ Advisory Committee on External Regulation of U.S. Department
of Energy Nuclear Safety, Improving Regulation of Safety at DOE Nuclear
Facilities 12 (1995) (hereinafter ``Advisory Committee Report'').
---------------------------------------------------------------------------
In its December 1995 report, DOE's Advisory Committee on External
Regulation, which was composed of a broad range of government
officials, nuclear industry representatives, and stakeholders,
identified the same kinds of ``symptoms'' that DOE environment, health,
and safety regulation have been and are seriously flawed:
<bullet> Poor safety practices have and continue to cause major
problems, such as extensive contamination of sites throughout
the DOE complex and historical exposure of workers and local
populations to large releases of radioactive materials.
<bullet> The public and government officials believe that fiscal and
personnel resources are not being effectively used in
undertaking the stabilization, decommissioning, and cleanup of
DOE facilities.
<bullet> The public and government officials fundamentally distrust
DOE.
<bullet> DOE's workers are profoundly frustrated by the ``regulatory
morass that often impedes rather than aids'' their efforts.
<bullet> DOE activities continue to be plagued by non-compliance with
safety requirements.<SUP>3</SUP>
---------------------------------------------------------------------------
\3\ Advisory Committee Report at 14.
---------------------------------------------------------------------------
The Advisory Committee concluded that the root causes of these
problems were the following:
<bullet> the built-in conflict of interest between safety and mission
under self-regulation;
<bullet> a legacy of secrecy that has historically shielded DOE's
operations and activities from outside view;
<bullet> lack of stability in safety management and policy;
<bullet> lack of management accountability and inadequately coordinated
regulatory and oversight functions;
<bullet> redundant, confusing safety requirements; and
<bullet> lack of balance in addressing hazards.<SUP>4</SUP>
---------------------------------------------------------------------------
\4\ Advisory Committee Report at 14-15.
---------------------------------------------------------------------------
In concluding, the Advisory Committee found that ``[t]he severe
problems the Committee has identified with DOE's approach to safety
have their roots in DOE's unique regulatory history and current
regulatory framework.'' Advisory Committee Report at 15. It was with
these factors in mind that the Advisory Committee concluded that
``essentially all aspects of safety at DOE's nuclear facilities and
sites should be externally regulated.'' Id. at 2.
In NRDC's view, the profound problems of radioactive and toxic
contamination and failed worker health and safety protection throughout
the nuclear weapons complex provide all the evidence necessary to
conclude that self-regulation has failed. We must ensure that this does
not occur again, and we must start by rejecting the self-regulation
system that allowed it to occur. As DOE itself concluded in 1996,
``[e]xternal regulation is an essential element of completing the move
from DOE's historical self-regulated status, which has been variable,
costly, and inconsistent, to a stable, efficient, and predictable
safety environment. DOE Working Group Report at 1-1.
ii. self-regulation undermines doe's credibility
The environment and human health and safety were not the only
casualties of DOE's self-regulation. DOE's credibility with the
American public has suffered nearly as much damage as the soil and
groundwater polluted by the nuclear weapons complex. Many DOE
administrators have acknowledged this loss, observing in one case that
DOE's credibility could not be sold if it were listed as a blue-chip
stock on Wall Street.
Public confidence in DOE continues to be extraordinarily low. Many
of the sources of this credibility crisis lie in DOE's scheme of self-
regulation. For years the Department told the public that its
operations were safe and clean, that it was taking care of the
environment and human health and safety, and that there was nothing to
worry about. The truth, of course, turned out to be much different than
that, and as a result the public feels betrayed and lied to. It is
unreasonable to expect the public to trust the DOE to police itself
effectively when its operations have caused such profound harm and its
operations continue to be plagued by environment, health, and safety
incidents and violations.
At a November 1993 speech on risk management at the National
Academy of Sciences, then Assistant Secretary Thomas Grumbly expressed
the point aptly when he said: ``Sometimes credibility means giving up
control.'' This is one of those cases. For the public to have
confidence in the safety and effectiveness of DOE's activities, DOE
must release regulatory control to an independent body. As DOE recently
acknowledged, ``DOE's credibility will be enhanced by the open process
inherent in external regulation and the public perception that DOE will
be complying with generally applicable and widely accepted
requirements.'' DOE Working Group Report at 1-2. In short, external
regulation is a necessary and essential step DOE must take to overcome
its legacy of environmental mismanagement and failed protection of
human health and safety.
iii. citizen participation is a necessary component of effective
external regulation
DOE's Advisory Committee on External Regulation concluded that in
order to have a credible and effective regulatory system, citizens must
have the right to active involvement in its implementation. DOE
Advisory Committee Report at 6, 27-29. Citizen participation takes
different forms at each stage of the regulatory process, but the most
critical component is the right to bring citizen suits. Similarly,
states must also have a central role in the new regulatory scheme,
including the right to enforce DOE's obligations under external
regulation. Id. at 29-30. Further, it is essential that any external
regulator of DOE be given the power to impose administrative penalties,
such that challenges to such penalties would have to go through an
administrative process at OSHA or NRC before being resolved by the
Department of Justice--and citizens and states would have opportunities
to intervene in these adjudications.
An effective regulatory system must perform at least three
conceptually distinct functions. First, it must set standards and
requirements under which the regulated entity will operate and under
which licensing decisions will be made. Second, it must administer the
licensing system. Third, it must enforce the obligations that are
imposed on licensees either as conditions attached to licenses or under
generally applicable regulations. Certain principles must apply across
these three regulatory activities; in particular, the external
regulator must operate independently of the regulated entity and the
regulatory regime must be transparent to the maximum extent
practicable. And the public must be provided with not just the
conclusions reached (``yes, the facility is safe'') but also with the
basic information and analyses supporting such determinations. The
long-standing closed structure of the DOE regulatory regime is a major
reason why the public views it with such distrust.
Accordingly, any legislation mandating external regulation should
make it clear that under established principles of administrative law,
citizens will have the right to participate in the notice-and-comment
rulemaking process and to seek judicial review of the adequacy of
standards once they have been promulgated. Citizens should also have
the right to participate fully in all licensing proceedings and to seek
judicial review of all licensing decisions. Finally--and most
importantly--for external regulation to be effective and credible, the
public must have the right to bring citizen suits in federal court to
enforce applicable regulations.
As this Subcommittee no doubt knows, citizen suits have a long and
effective history as a method of enforcing federal law. Their most
familiar and obvious role is in the body of federal environmental laws
enacted since 1970, which rely in significant part on citizen suits as
an enforcement mechanism. But citizen suits have a long pedigree in the
Anglo-American legal system, dating back 600 years and including such
actions as the citizens informers' action and qui tam action. They are
critical because federal agencies with authority to enforce laws often
lack the fiscal resources or the political will to rein in violators.
Experience has shown that it can be particularly difficult for state
and federal agencies to enforce laws against other government agencies.
Moreover, citizen suits often achieve the desired enforcement objective
without the need for a full, drawn-out lawsuit.
In addition to their unique effectiveness, full public
participation and citizen suits should be integral to the external
regulation of DOE in order to address DOE's lack of credibility with
the public. By opening the doors of the regulatory process to citizens,
DOE would be in a position to win back an important measure of
credibility it has lost. Much credibility would flow from the DOE
demonstrating to citizens that it is prepared to be held accountable by
citizens for its obligations under the law.
iv. legislating the transition to external regulation of doe facilities
For more than a decade, NRDC has been a strong proponent of
external regulation for the Department of Energy. However, making the
transition from self-regulation to regulation by several external
entities must be done carefully. The DOE nuclear weapons complex is
comprised of 16 major sites and more than a hundred smaller ones
containing 3,500 nuclear facilities and extending over 2.1 million
acres. The NRC has estimated that it could need as many as 1100 to 1600
more staff members and $150-200 million annually to regulate nuclear
safety at DOE facilities. Advisory Committee Report at 41. DOE
estimates that its current annual expenditures on safety and health are
$1.5 billion, which suggests that NRC's cost estimates are likely not
unreasonable. Accordingly, it will be essential to provide both
adequate funding to the NRC and OSHA to take over responsibility for
regulating DOE and sufficient time for the transition from DOE self-
regulation to NRC, OSHA, and EPA external regulation. Further, given
that DOE has projected that such a transfer could take more than five
years, complete transfer of regulatory authority to OSHA and NRC by
October 1, 2001, is almost certainly too ambitious.
There are two issues that are of critical importance to the
proposed legislation. The first is that the Atomic Energy Act should be
amended to afford adequate public involvement--particularly citizen
suits--which I have discussed in the preceding section. The second is
that it should be made explicit in the legislation transferring
regulatory authority that both DOE and the National Nuclear Security
Administration (``NNSA'') will be subject to external regulation. The
only area of DOE operations that the DOE Advisory Committee determined
should not be subject to external regulation was ``nuclear explosives
safety.'' Advisory Committee Report at 34. Specifically, external
regulation should not apply to the safety of the nuclear explosive
device itself. ``However, all aspects of operations with nuclear
explosives other than nuclear explosives safety . . . should be subject
to external regulation, and the regulator would have access to the
information necessary to determine whether nuclear explosives
operations conformed to safety standards.'' Id.
Most of the information that is relevant to the safe operation of a
facility, including safety systems and siting plans, will likely be
unclassified. And, in any event, the NRC has both experience with and
procedures for handling classified information. See 10 C.F.R. Parts 10,
11, 73, and 95. Indeed, the NRC has licensed facilities with important
national security functions, including the naval reactor fuel facility
at Erwin, Tennessee. Therefore there is no reason to exclude NNSA
facilities from the external regulation being proposed for DOE; to the
contrary, the long history of failed self-regulation mandates that
external regulation of activities within the nuclear weapons complex
include all NNSA facilities.
In a closely related matter, it is also critical that the
legislation from last session creating the NNSA be amended to protect
existing state authority to impose and enforce environmental
regulations at NNSA facilities. Specifically, Sections 3261 and 3296 of
Title XXXII of the Fiscal Year 2000 Department of Defense Authorization
Bill should be clarified. NRDC is concerned that the language ``all
applicable environmental, safety, and health statutes and subsequent
requirements'' and ``all provisions of law and regulations in effect
immediately before the effective date of this title'' could be
interpreted as referring only to federal laws and regulations. However,
the Federal Facilities Compliance Act of 1992 explicitly waived federal
sovereign immunity and required the federal government to adhere to
state environmental regulations when cleaning up hazardous,
radioactive, and mixed hazardous and radioactive wastes at federal
facilities. Like all other federal facilities, NNSA sites should
subject to state laws governing the cleanup of hazardous and
radioactive wastes. As the National Governors' Association, National
Conference of State Legislatures, and others have recognized, it is
essential that this ambiguity in the NNSA legislation be rectified.
There are several additional changes in the proposed legislation
that should be considered. First, NRC regulatory authority is currently
limited to hazards from source, special, and byproduct material, but
does not include other sources of radiation (i.e., accelerator-produced
radiation or materials and naturally occurring radioactive materials)
or non-radiological hazards, all of which are regulated by DOE under
Section 161(i)(3) of the Atomic Energy Act. Such gaps in NRC regulatory
authority under the Atomic Energy Act should be closed as part of any
legislation to transfer regulatory authority to the NRC. Second,
external regulation of nuclear safety and worker health and safety
should not be limited to OSHA and NRC; rather, where a state can
demonstrate that it has the capacity to regulate DOE operations,
regulatory authority should be delegated to the state in which the
facility is located. Third, to minimize jurisdictional conflicts, NRDC
strongly endorses the use of a cooperative approach by the regulatory
agencies based on designation of a ``Lead Agency,'' just as occurs
under the Superfund Act, for specific elements of decommissioning and
cleanup activities. See Advisory Committee Report at 26.
v. conclusion
As I hope my testimony demonstrates, the question of external
regulation of the Department of Energy is of profound importance. We at
NRDC believe that the DOE will be unable to make further progress on
any of the daunting issues facing it until the Department fixes the
systematic and corrosive problems caused by an inadequate, insular,
secretive regulatory regime. The public simply will not trust DOE
claims that it has corrected the deficiencies in its regulatory
oversight--which have led to countless violations and accidents and
resulted in the largest and most costly environmental cleanup in the
world--until DOE is made an accountable agency. The sponsors of this
legislation deserve significant credit for proposing a bill that, while
needing several critical modifications, moves in the right direction by
seeking to end the era of DOE self-regulation.
Fortunately, considerable thought and effort have been dedicated to
addressing how to make the transition from DOE self-regulation to
external regulation by NRC, OSHA, and EPA. The 1995 report of DOE
Advisory Committee on External Regulation is particularly useful, as
well as the 1996 DOE Working Group Report. In addition, prior to
Secretary Richardson's untimely rejection of external regulation in
February 1999, both OSHA and the NRC were working with DOE to develop
concrete plans for making the transition to external regulation, which
also provided important information on and insight into how to
structure the transition to external regulation. These pilot projects
should be revived and a dialogue reopened with Secretary Richardson to
revitalize DOE's efforts to move towards external regulation.
Thank you again for giving me the opportunity to testify today. I
would be pleased to answer any questions.
Mr. Largent. Ms. Jones, I'd like to ask you a question,
first, if I could. Do you believe that the security oversight
in the Department of Energy will be improved or at least
protected from future erosion if the Office of Independent
Oversight is established in statute?
Ms. Jones. I think here that your term, protected from
future erosion, is a good way of putting it. I think our
testimony notes that one of the benefits of legislatively
establishing this office is so that there isn't backsliding by
the Department.
We have noted that this office was several layers down
within ES&H in 1999, and it was even part of a programming
division earlier than that.
So I think that's the one benefit of this legislation is
that it will elevate it and keep that elevation.
Mr. Largent. Okay. Dr. Adelman, I was looking at your
testimony, and you talked about the necessity of having an
independent oversight of DOE. And it said--hold on here just a
second--you made a point in your testimony that for DOE to
regain public confidence, it must give up regulatory control to
an independent body.
But your statement is really at odds of that of Mr. Conway
who claimed that external regulation will have no effect on
DOE's credibility with the public.
How do you explain such a difference of opinion there
between yourself and Mr. Conway?
Mr. Adelman. Well, I'm not sure that I can explain his
opinion, but certain from the perspective of public interest
groups that have worked on these issues for a long time,
transferring regulatory oversight, making it more transparent,
allowing fuller public participation is an essential ingredient
to DOE regaining its confidence with the public.
And this is something that NRDC and many other groups have
been promoting for over a decade now. And DOE, until relatively
recently, was very supportive of it.
Mr. Largent. Why do you think DOE has changed tactics in
terms of being opposed to this now?
Mr. Adelman. It's a question that we have. They're claiming
right now that there are a number of institutional barriers
that could potentially make the transfer more difficult.
However, it's hard to imagine that those sorts of
considerations like harmonizing NRC's regulations with DOE's,
having to integrate current DOE safety and health regulations
weren't something the Department was aware of in 1996 when it
chose to undertake significant movement toward external
regulation.
So, as far as we're concerned, we haven't heard any
substantive reasons for them to reject external regulation at
this time.
Mr. Largent. But they are rejecting external regulation.
Mr. Adelman. Apparently.
Mr. Largent. Yes. Ms. Eldredge, I wanted to ask you a
question about the Defense Board, and the question is, do you
have any concerns or do you believe that the Defense Board may
have become too close to the national security mission it's
trying to regulate?
Ms. Eldredge. The problem with the two options for
regulators that were put out in the 1995 committee and in other
reports is that it has looked at the NRC and the Defense Board,
both of which have problems. You might say NRC is too close to
the nuclear industry which it regulates, and I think the
Defense Board suffers from the same problems in terms of its
relationship to DOE.
That being said, it also has a tremendous amount of
expertise that NRC lacks with regards to some of the weapons
programs. So, we haven't really made a conclusive decision on
which way we'd rather go with them.
It's been our problem to date, but we do think that what
ever happens, both need to maintain and support the technical
expertise of the Defense Board, and perhaps one of the thoughts
had been moving them somehow into the NRC structure. Also do
some reforms on NRC or the Board, whichever the direction went,
in terms of their openness to the public, their citizen suit
provisions, and their behavior as a regulator to make them more
accountable.
Mr. Largent. Dr. Shank, I wanted to ask you a question. You
talked about H.R. 3906 imposing yet another new layer of
bureaucratic management and oversight.
Since the Office of Independent Oversight already exists at
DOE, isn't your lab already subject to the oversight of that
office?
Mr. Shank. Yes.
Mr. Largent. So how would H.R. 3906 impose, ``yet another
new layer of bureaucratic management and oversight?''
Mr. Shank. I think the question that I'm concerned about is
that it applies to all entities of the DOE. In a laboratory
like ours, in which we do not perform classified work, this
entity does apply to that.
I feel that it is an additional burden that our science
programs must bear, and anytime I have a chance to speak out
against that, I will.
Mr. Largent. And do you feel like the cost, regulatory
cost, exceeds the benefit?
Mr. Shank. Well, if you do not have an issue with national
security, adding a burden on science performed in DOE
laboratories, especially laboratories like ours which are open
to the world, it is an additional cost with no benefit
whatsoever, as far as I can see.
Mr. Largent. Well, I guess the only issue that I would like
to raise is that it seems to me that we've transferred a lot of
technology to China, for example, some of it openly, some of it
clandestinely, that on the face of it, didn't seem to have
national security implications.
But, in fact, the application of that technology was
transferred to where it is a national security risk.
So how can you say that one particular type of research
would not potentially, if transferred and into the wrong hands,
have risks to our national security?
Mr. Shank. I think there are different ways of looking at
this. The nature and character of work that goes on at our
laboratory is very similar to the type of work that goes on at
universities across the country, at other businesses across the
country.
We have to weigh our openness in science with the benefits
that we gain. We support about 2 percent of the world's
science. We cannot operate and be effective in the world,
unless we have the ability to interact.
We benefit more than we lose by interacting with the
world's scientific community.
A third of the people at our laboratory are not American
citizens. They provide an enormous positive input to our
scientific programs, in building businesses in the United
States.
I think that if we focus and look inward and cut ourselves
off from the scientific community with excessive zeal, we will
no longer be the partners of international scientific
consortia, and we will have less to learn from the rest of the
world.
Mr. Largent. I guess what we're trying to seek to find here
is some sort of balance.
And, of course, I believe that's the key to life, is
finding some sort of balance, as opposed to swinging from one
extreme to another.
And the issue really is, how can we provide--you mentioned
in your response that there are a lot of ways to look at this.
And I think that one of the ways that this committee and
this subcommittee has to look at it, first and foremost, at the
highest priority, has to be from a national security
perspective. That's the way we have to look at it.
I think that's the fundamental responsibility of the
Federal Government, is to provide for the safety and security
of our constituents.
And so the question is, how do we do that in the least
intrusive way, the least regulatory way, and still allow for
the communication that is necessary for scientists to be able
to communicate with one another to forward their projects and
research, and at the same time, ensure that we're protecting
the national security interests that we have?
Unfortunately, so often here at the Federal level, we are
forced into a one-size-fits-all mandate that doesn't fit the
research that's being conducted at your facility very well, but
actually helps protect us in other facilities.
I'm just wondering if you have ideas or thoughts on ways
that we can build this legislation in such a way that we are
protecting national interests and security, in the least
regulatory and burdensome way?
Mr. Shank. I think the focus should be on the work. It
should not be on who does the work.
I think that if the work is done in universities and at
laboratories, that's where the focus ought to be, on what it
is, what the topic of the work is.
I think that placing a burden on science at DOE
laboratories, and disconnecting us from the scientific
community, will inevitably put us in such a position that we
will not have anything to secure.
Mr. Largent. At this time, I will yield to my colleague
from Florida, Mr. Stearns.
Mr. Stearns. The Federal witnesses claimed 1 year is not
enough time to transition to external regulations. And the NRC
asked for ten, so I guess what's the difference and what's the
discrepancy and what do you think? Ms. Eldredge?
Ms. Eldredge. I do think 1 year is too short. It's a rather
big task to shift this over.
In talking to some of the DOE people I have spoken to
around the laboratories, they thought for a transition to OSHA,
a 2-year timeframe was reasonable and certainly could be
accomplished, and that was at the Defense labs.
In the case of NRC, I think 10 years is rather excessive.
You can almost graduate from high school in that amount of
time.
And I think a better timeframe might be five, but that's
just off the top of my head. I think that what most needs to
happen is that there has to be a time line and some
requirements to be met, so that they don't turn around in 5
years and say, oh, well, we haven't quite started yet, and give
us another 5 years.
Mr. Stearns. If they want 10 years, they might want more.
Ms. Eldredge. Right, they might want 20 Mr. Stearns. Yes,
20, yes. Ms. Jones?
Ms. Jones. Mr. Stearns, from our testimony, while I can't
give you a magic number in terms of how long it's going to
take, we did feel it would take longer than the time period
provided in the legislation.
And the one point on that was that we were concerned about
the defense facilities. They were not part of the pilot
program, so while NRC and OSHA do have some interest and
understanding of them, we believe that more study was needed.
And one way that you might want to go, as you move forward
in having NRC and OSHA regulate the non-Defense facilities, is
to pilot one of the large Defense facilities to give you more
information about some of the issues like national security
concerns, costs, those kinds of things.
Mr. Stearns. Anyone else like to comment? Dr. Adelman?
Mr. Adelman. I would agree that 1 year is a very short time
period within which to transfer full regulatory authority over
to NRC, and even OSHA.
I think that there are a few things to keep in mind: The
importance of a timeline is obviously essential, but also
focusing on different stages of the transfer.
One of the things that I think we view as most significant
here is that if you shift regulatory authority over to NRC, it
doesn't mean that the key date is when that regulatory
authority actually transfers. A lot is going to happen prior to
that, and a lot of improvements, we hope.
So, establishing a time line with clear goals and an open
process is really what should be focused on.
Mr. Stearns. Yes, sir, Dr. Shank?
Mr. Shank. As I pointed out in my testimony, even at a
simple facility like the Lawrence Berkeley National Laboratory,
there are many open issues that need to be resolved that are
not resolved in this legislation in terms of who holds the
license, whether there is going to be duplicative regulatory
oversight; whether legacy issues are addressed and how they can
be funded and who will be responsible in the future for those
legacy issues.
There is enormous complexity, even for a simple facility
like ours to go forward with this.
Mr. Stearns. Do you think 5 years is sufficient?
Mr. Shank. I would take the judgment of the NRC.
Mr. Stearns. Which is 10 years.
Mr. Shank. I have no way--they talked about a three-step
program, each one taking 5 years, if I recall in the testimony.
Mr. Stearns. That would give you 15, a three-step program
at 5 years apiece.
Mr. Shank. Yes.
Mr. Stearns. Anyone else? Mr. Van Ness?
Mr. Van Ness. I'd like to focus on the two defense
laboratories with respect to this matter. The regulatory
climate for the two defense labs has changed considerably for
the better in the years since they supported external
regulation before the DOE Advisory Committee on External
Regulation, chaired by John Ahearne.
The factors that drove support for that concept revolved
around the issue of disparate, multiple, and oftentimes
conflicting regulatory directions from DOE, which was causing
confusion, high cost, and a dangerous lack of focus regarding
improvement of ES&H.
Since then, two major initiatives have been implemented
which are now embedded in our organizations, as well as in our
contracts, and these are work-smart standards, a process for
determining what standards should be used to govern our work
from an ES&H perspective, and integrated safety management, an
approach that incorporates ES&H into the work, using a set of
key principles and functions.
The work-smart standards process engaged the DOE in the
laboratories in collectively identifying the work, the
associated hazards, and appropriate controls in a manner that
many of the conflicting regulatory directions derived from the
standards were and are being resolved.
The applicable standards are now more clearly defined, more
clearly identified, and agreed to by both DOE and the labs. The
work-smart standards sets are now being effectively managed by
a formal change control process at the laboratories.
Integrated safety management has, in fact, taken hold at
the laboratories, and is proving to be an excellent vehicle for
doing work safely. It's been embraced by our workforce, because
it's rational, it's flexible and it's site-specific.
The results of ISM are evident in the significant
performance improvements of the labs over the past few years,
and in the success of integrated safety management verification
teams that have been conducted by DOE during this past year.
In fact, a very important issue now is that we sustain the
initiatives and improvements that have taken hold since the
mid-1990's so that critical cultural changes brought on by ISM
continue. It is essential that the momentum that now exists
around ISM be sustained and that approach be allowed to mature.
Changing at this juncture to yet another regulatory approach
could put that at serious hazard.
It is important also to note that none of the external
regulation pilot projects----
Mr. Stearns. Mr. Van Ness----
Mr. Van Ness. Yes?
Mr. Stearns. Are you answering the question?
Mr. Van Ness. Yes, I believe I am.
Mr. Stearns. The question is----
Mr. Van Ness. I am telling you that for weapons
laboratories I don't think at any time the external
regulation----
Mr. Stearns. So you favor 10 years? You favor 10 years?
Mr. Van Ness. I don't think that you should address
applying external regulation to the weapons laboratories. I
think the changes that have occurred----
Mr. Stearns. So you don't want to apply anything to that?
Mr. Van Ness. [continuing] at DOE are very effective.
Mr. Stearns. You don't want to apply anything to them? In
other words, are you advocating a 5-year, 2-year, 10-year or--
--
Mr. Van Ness. No, I am advocating that you not apply
external regulation to the weapons laboratories because the
system that have been put in place since the mid-nineties are
in fact working and we are seeing an improved safety situation
at those laboratories----
Mr. Stearns. So you cannot, you cannot transition to
external regulation in that case?
Mr. Van Ness. I am saying that would be an unwise thing to
do.
Mr. Stearns. No matter what time was provided?
Mr. Van Ness. Yes.
Mr. Stearns. All right. Thank you, Mr. Chairman.
Mr. Largent [presiding]. At this time I would like to ask
unanimous consent to enter the attached report by CRS into the
record. This report addresses direct reporting from Executive
agencies to Congress and also at this time recognize the
gentleman from Ohio, Mr. Strickland, for questions.
[The information referred to follows:]
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Mr. Strickland. Thank you very much.
Ms. Eldredge, you stated that several of the DOE labs
believe they no longer have to comply with DOE environmental,
health and safety rules because they are under a new security
agency.
Could you talk more about why you----
Ms. Eldredge. It comes under the problem that has been
talked about a lot of dual hatting that the Assistant Secretary
for Environment, Safety and Health is now dual-hatted to be
also for Environment, Safety and Health under the new National
Nuclear Security Administration.
However, the laboratories are not comfortable with this,
and some Members of Congress are not either, and one of the
results that is very clearly out there, from a legal
perspective, is the Price-Anderson Act enforcement of nuclear
safety rules. Normally under the rest of the Department if the
Office of ES&H finds a violation they issue a notice of
violation and they subject the violating DOE entity to fines
directly. They have that delegated authority from the
Secretary.
Now they no longer have that delegated authority with
regards to the NNSA, so if they find one of the weapons sites
to be in violation they can put together their whole package
but it is a recommendation, it is no longer a penalty, and make
that recommendation to the Administrator of the NNSA, and then
he or she would then have to impose a fine on the violator,
so--and it creates a different kind of loop.
You no longer have that kind of independent oversight that
they had in the past. That is one piece of it. The other piece
of it is that the Office of Environment, Safety and Health also
has a number of rules and recommendations with regards to other
non-nuclear safety issues. Unfortunately there is no
enforcement program for them like there is for Price-Anderson,
but they are still important rules for workplace safety and
worker safety.
This includes the new beryllium rule and there has been
some indication--I do not have anything in terms of a real
smoking gun on this--but there is some indication from some of
the statements made in lab directors' testimony and some of
what we are hearing from the labs. They do not believe that
they need to take orders from the Office of Environment, Safety
and Health, that they can create their own safety plans.
Mr. Strickland. Well, Dr. Michaels has said to us recently
that he no longer has the authority to issue notices of
violations or to impose fines under Price-Anderson to the DOE
weapons complex----
Ms. Eldredge. Correct.
Mr. Strickland. [continuing] that he can only recommend, as
you say. Under that scenario, do you think it is worthwhile to
pass legislation that would cover the nonprofit contractors?
Ms. Eldredge. Regarding the fines for nonprofit contractors
I definitely think the legislation is worth passing. It is sort
of ridiculous that the contractor that has the contracts for
the sites where we are going to have ongoing weapons work, it
is going to continue into the foreseeable future, they are not
cleaned up sites where people hope will be closed and walked
away from in a couple decades, are not subject to the same kind
of penalties and fines as all the other sites are, so I think
that piece definitely needs to be corrected and support the
legislation this committee has to do so.
The piece about whether the Office of ES&H would get to
enforce those fines once they were allowed I think needs to be
also corrected in additional legislation.
I am not sure that the bill that you have right now would
cover that problem.
Mr. Strickland. Okay, and one final question. You say that
you don't know who the external regulator for nuclear issues
ought to be. Congress probably is not going to establish a new
regulatory agency for DOE so would you give us your best
recommendation?
Ms. Eldredge. That is a challenge. It is something we have
been struggling with for a long time. Various advisory
committees have also struggled with who would be the best
regulator.
The two names that pop up most frequently are the NRC and
the Defense Nuclear Facilities Safety Board. Neither of them is
perfect.
As I mentioned earlier, if we were going to go with either
of those, we would recommend reforms to those bodies, one of
which would be citizen suit provisions so that we can hold
whoever becomes the regulator accountable for their regulatory
actions, and that would be both for the public and for the
states, to be able to use that tool, which has been very
effective with other environmental statutes.
With regards to my best recommendation, I think I will have
to get back to you on that. We probably would be able to come
up with some sort of merged entity of NRC and the Defense Board
with a package of reforms that would be more acceptable than
just a hand-off right now.
Mr. Strickland. Okay, and a final question then, and if
each of you would respond.
All of you seem to agree that there should be some phase-in
of external regulation. You believe there should be external
regulation. The proposed legislation would not allow for phase-
in. Do you think an all-or-nothing approach is feasible and you
could just give me a yes or no answer to that.
Ms. Jones. I think the NRC and OSHA said on the first panel
that it would not be feasible to do in a year. That is one of
the reasons that we said in our testimony that we felt a phase-
in was more appropriate, so that there would be more experience
on some of the issues that NRC and OSHA were not familiar with.
Mr. Shank. As I have mentioned, I believe it is not
feasible to do it without a phase-in. There are many issues of
who holds licenses, what the legacy issues, how those things
are corrected. There is enormous complexity.
We have had pilots at a simple facility like mine. I
believe that more complex facilities will unravel even more
difficulties, so the answer is no.
Mr. Strickland. Thank you.
Mr. Van Ness. I would agree that it is not feasible and as
I said before I think there have been changes that one should
take account of with regard to whether you do this at all.
Mr. Strickland. Thank you.
Ms. Eldredge. I think we should give them more time in
terms of phasing in and perhaps a two-step program with OSHA
being able to move a little faster than the NRC parts of it.
However, I do think whatever legislation gets passed needs
to have a date certain for that transfer, because if it is just
a multistep process with pilot projects we might not ever get
there, so we need to make sure that there is a date certain and
then give them a step-wise way to get there.
Mr. Adelman. We would also support a phased-in approach.
The approach that is part of the DOE working group that phases
it in with facilities that are most similar to the types of
facilities that NRC is already regulating certainly makes sense
and we would support that.
In terms of a specific dateline I think that so long as the
process is open and the public is involved in the transfer of
authority from DOE to NRC and that there is a strict set of
deadlines built into the legislation, that is certainly
something we would support.
Mr. Miller. I apologize, Mr. Strickland. I was just at the
hearing you were at a little while ago. I apologize to Mr.
Barton for being late.
I would just offer you this, that at the Portsmouth Gaseous
Diffusion Plant in Paducah which both had takeover OSHA
authority effective July 1, 1993, basically there was just a
pre-assessment that was done by Martin Marietta at that time
that identified the noncompliance events and we went to work on
OSHA regulation immediately, so I don't see any need for any
delay.
Ostensibly the Department of Energy is already supposed to
be having its contractors comply with OSHA and since an order
was issued in 1983 they have already had to be OSHA-compliant,
so what is the difficult leap of turning on the switch in this
Congress to commencing immediately OSHA regulation of DOE
facilities?
There is no justification for a phase-in approach because
they are already supposed to be there.
Now there may be some catch-up costs involved and I do not
think anybody should think this is a cost-free transaction, and
at Portsmouth and Paducah we saw roughly a $30 million shall we
say retrofit to come into compliance with the orders DOE had
already had in place but there is no need for phase-in on OSHA.
That can start September 30 of this year if we pass legislation
and OSHA had the money so that they were not stuck with an
unfunded mandate, and so from our perspective the phase-in has
to deal with the NRC and the certification and licensing, not
OSHA.
I see no reason for any delay in moving forward on OSHA
regulation.
Mr. Strickland. Thank you, sir.
Mr. Stearns [presiding]. I thank the gentleman.
Anyone on this side of the aisle who would like to ask
questions?
[No response.]
Mr. Stearns. Okay. Mr. Miller, we previously had by
unanimous consent made your opening statement part of the
record and the only question I was going to ask is just your
phasing in of external regulations dealing with what you just
talked about, with OSHA since they are already in place, so I
think you answered that adequately.
I don't think without any further questions from members I
think--we appreciate the panels' patience with us going back
and forth to vote, and Chairman Barton is on the floor right
now in debate so he could not be here, but again we appreciate
your testimony.
The committee is adjourned.
[Whereupon, at 1:25 p.m., the subcommittee was adjourned.]
[Additional material submitted for the record follows:]
Prepared Statement of Richard Miller, Paper Allied-Industrial, Chemical
& Energy Workers Union
I am Richard Miller, a Policy Analyst for the Paper, Allied-
Industrial, Chemical & Energy Workers Union (``PACE''), which, amongst
its membership of 320,000 at oil, paper, chemical, pharmaceutical and
cement factories, includes 6,500 hourly workers at 11 Energy Department
(``DOE'') nuclear facilities, including Portsmouth, Paducah, Oak Ridge
K-25, Mound, Hanford, INEEL, WIPP, Brookhaven, Grand Junction, Argonne-
East and Argonne-West.
PACE, through it predecessor OCAW, was a member of the Advisory
Committee on External Regulation and the NAPA Forum on OSHA-DOE
Transition Issues. Outlined below are the key points in our testimony:
<bullet> DOE is the only federal agency whose facilities are exempt
from regulation by the NRC for nuclear safety and by OSHA for
worker protection. DOE has been justifiably criticized for lax
enforcement of its regulations, and today lacks a robust
program of self regulation. A prompt and orderly transition to
OSHA regulation is feasible and can be accomplished this year.
<bullet> The experience at Portsmouth and Paducah offers a key
lesson: enforceable rules will require DOE to spend money
on transition ``catch up'' costs.
<bullet> PACE supports external regulation, provided certain
protections are put in place so that workers would not be worse
off than they are today. These include:
<bullet> requiring NRC (or the DNFSB with enforcement authority) to
adopt OSHA's worker participation processes so that worker
concerns can be better addressed;
<bullet> retaining DOE's corporate health and safety oversight
functions, so regulators don't end up as de facto safety
managers;
<bullet> requiring full time ``site residents'' for both OSHA and
NRC inspectors at major DOE facilities and circuit riders
at smaller sites;
<bullet> Eliminate the non profit exemption for fines and penalties
under the Price Anderson Act;
<bullet> Clarify existing state legal authority over National Nuclear
Security Agency (NNSA) facilities to assure full enforceability
of environmental laws and compliance agreements.
1. DOE's Internal Oversight is Inadequate and There is no Prospect for
Reform
Although DOE has a highly professional and competent health and
safety staff in its Office of Environment Safety and Health (EH),
decisions made at the top levels of the DOE have allowed its modest
system of self-regulation to wither to the point of near invisibility.
Three successive Energy Secretaries have eliminated the ``independent''
health and safety site representatives program. EH is noteworthy for
its attention to after-the-fact investigations of fatalities, major
near misses, and media attention to evident health and safety breaches.
With the exception of recent work at Paducah and the other gaseous
diffusion plants, DOE's system of self-regulation is more myth than
reality.
After 12 years of trying, DOE's EH Office of Enforcement has only
managed to adopt 2 of 11 nuclear safety regulations required under the
Price Anderson Act Amendments of 1988 (``PAAA''). This poor performance
is not due to a lack of trying by EH, nor due to a lack of
Congressional oversight by this Committee. Rather it reflects a
perverse system wherein the internal regulators at EH have to obtain
the permission of the various line programs (Energy Research, Defense,
Science, Nuclear Energy, and Environmental Management) and headquarters
elements (General Counsel, Field Management) to carry out Congressional
directives to regulate health and safety. DOE's practice of obtaining
consensus from all Department elements on the content of rules further
assures lowest common denominator decisions--or no decision at all.
Finally, the revolving door between senior DOE managers and contractors
has further undercut efforts to build a robust internal accountability
system.
DOE's PAAA Enforcement Program--although limited by a staff of 6
inspectors to cover the entire DOE complex--demonstrates how safety is
enhanced when a program is given even a few teeth. Recently, the
prospect of Price Anderson enforcement action motivated one DOE
contractor to stop radiation related work until continuous airborne
radiation monitors were properly functioning. Absent an accountability
device that would translate to the contractor's bottom line, worker
protections would have been postponed until it was convenient. The PAAA
staff size is not due to resource shortages or lack of FTEs. Rather its
size reflects the length of the political leash it has been given by
the DOE leadership, and the degree to which it's enforcement actions
will be tolerated without contractors generating a major political
backlash.
Most DOE field offices avoid oversight and rely upon contract
provisions to drive accountability. This sounds appealing on its
surface, however, DOE's understandable desire to get work done more
quickly and at lower cost has resulted in competing priorities
(productivity vs safety) which tends to make workers the victim.
Reductions in award fees alone have not proven to be a powerful enough
motivator to assure contractor compliance with nuclear safety rules,
largely because there is no practical way to measure every action a
contractor takes--or doesn't take--and translate it into a fee
calculation.
DOE has placed its management and integrating contractors in the
position of overseeing their fixed price subcontractors' health and
safety programs at the same time they are driving them for ever greater
costs savings. Where economic incentives are in potential conflict, the
absence of an independent third party ensures that accountability
suffers. DOE's panacea for safety woes--Integrated Safety Management--
is simply a process to plan work up front. It is a complement to
external regulation--not a substitute.
Lastly, the DNFSB has been largely absent from of Environmental
Management sites except where criticality concerns prevail. Their role
has been constrained and could be considerably expanded.
2. A Pathway to External Regulation
Numerous advisory panels have recommended that DOE should no longer
self-regulate worker and nuclear facility safety. The only question is
how to get it done.
Step one: immediately legislate OSHA regulation of all DOE and NNSA
sites. This would not be a burdensome transition, because DOE has
ostensibly required its contractors to be OSHA compliant under the
terms of its contracts and Orders since 1983. As such, DOE would not be
subjected to any new rules. OSHA would need to update some of its rules
to cover occupational radiation protection, and perhaps firearms and
explosives safety. Although DOE-OSHA pilots at Oak Ridge, Berkeley,
Argonne East demonstrated that there were no major obstacles to
shifting to OSHA regulation, all of the parties were also on their best
behavior perhaps making it seem easier than it will be in reality.
Step two: require DOE and NRC (or DNFSB with enforcement capacity)
to establish a plan, schedule and budget to assume control over nuclear
activities (except nuclear explosives) at DOE facilities. Hazel O'Leary
proposed NRC authority over new facilities and case-by-case decision
making over which existing facilities would be covered. Congress needs
to establish a schedule for decision making to assure a case-by-case
approach would not result in interminable delays.
Key considerations before moving forward include:
<bullet> Dedicating a percentage of DOE's budget for OSHA staff and
program costs, so that DOE regulation doesn't become an
unfunded mandate on a small agency that is already underfunded.
<bullet> Having OSHA provide some transitional relief on facility
upgrades and abatement actions
<bullet> Authorizing DOE to sign up for multi year abatement actions
with OSHA or NRC
<bullet> Where there are mixed (radiation/non radiation) hazards and
one regulator declines to take enforcement action, provide
authority for the other regulator to assert its authority.
<bullet> In agreement states, federal OSHA presence is located many
miles away and can only respond after the fact to accidents.
For than reason, we recommend full time OSHA site residents at
major DOE facilities (Hanford, INEEL, Oak Ridge, etc)
3. Several Lessons Learned from the External Regulation of the Gaseous
Diffusion Plants
The 1992 Energy Policy Act mandated OSHA and NRC regulation of the
DOE's uranium enrichment plants that were leased to the United States
Enrichment Corporation (``USEC'') in Portsmouth, Ohio and Paducah,
Kentucky. The USEC operations are basically chemical plants that
process a very corrosive chemical with radiological properties: uranium
hexaflouride.
Prior to the commencement of OSHA regulation on July 1, 1993,
USEC's M&O contractor, Martin Marietta, performed a self assessment of
OSHA non compliance items, totaling approximately 12,000 items at
Portsmouth and 4,000 items at Paducah. Repairs entailed installation of
machine guards, providing fall protection by installing guard rails on
working surfaces, updating electrical circuits, upgrading heat stress
protections and providing mobile breathing air units <SUP>1</SUP>.
Estimated cost for the upgrades was $40 million. These expenditures
would, if funded, have been required under Admiral Watkin's order that
all DOE facilities come into full compliance with all OSHA
requirements.
---------------------------------------------------------------------------
\1\ UE OSHA Spending Plan, Martin Marietta Utility Services, May
1994, UEO-1030
---------------------------------------------------------------------------
A major dispute arose at Paducah over OSHA's enforcement authority
for mixed radiation/chemical hazards. The dispute arose out of OSHA
citations for uranium hexaflouride gas releases in 1993 related to
violations of OSHA regulations governing emergency response, training
and alarms. USEC and Martin Marietta maintained that OSHA had no
jurisdiction over mixed chemical/radiation hazards. Rather, they argued
that this responsibility rested with exclusively with DOE (and NRC once
it took over) because the chemical release had radiological properties,
and claimed that for OSHA to assert such jurisdiction amounted to dual
regulation. The matter was ultimately settled, but the issue by no
means disappeared.
The 1996 USEC Privatization Act required OSHA and NRC to enter into
a Memorandum of Agreement delineating their respective jurisdictions.
The MOA was modeled after the one OSHA and NRC executed for boiling
water reactors. That MOA gave NRC responsibility for anything related
to radiation, and left OSHA with jurisdiction over industrial and
construction types of hazards. Regrettably, our concerns that OSHA
retain some jurisdiction over mixed hazards were not heeded, and NRC
assumed full responsibility for mixed hazards.
The OSHA-NRC jurisdiction question resurfaced in 1998 at the
Portsmouth, Ohio plant when NRC failed to act on worker concerns that
radiation dose records were not being properly counted and our local
union turned to OSHA for assistance. As it turned out, management was
administratively ``assigning'' radiation doses in hundreds of cases by
pinning a dose badge on the wall, scanning it, and then arbitrarily
assigning that dose to workers. OSHA issued a citation, but USEC
maintained in settlement discussion that OSHA was exceeding its
jurisdiction by goings into NRC's turf.
While the enforcement matter was ultimately settled (USEC agreed to
reconstruct doses for a 3 year period), a major policy question needs
to be resolved in any external regulation regimen: (a) will there be a
primary regulator where there are mixed hazards, and (b) what happens
if the primary regulator fails to enforce and the other regulator
determines that there is a mixed hazard violation and issues a penalty?
In our view, if one regulator fails to act, then the other regulator
should have the discretion to exercise their authority (provided it is
not inconsistent with the first regulator's license conditions). This
question should be resolved in any legislation directing that OSHA and
NRC enter into a new Memorandum of Agreement. What works for allocating
responsibilities at boiling water reactors, may not work at DOE sites.
Adapting to NRC regulation has been a longer and more expensive
process than OSHA transition. First, NRC had to certify the existing
operations. NRC compliance costs were estimated to exceed $100 million
at Paducah alone. Certification required a 2,300 page application,
which was rejected by NRC the first time. The net result of this
regulatory effort, however, was a more rigorous and arguably safer
basis for operations. NRC also required the Paducah plant to make an
estimated $21 million in seismic upgrades because of its location on a
seismic fault. To its credit, NRC has accommodated USEC's seismic
upgrade schedule by granting waivers because of unforseen obstacles.
4. NRC Needs to Implement the OSHA Procedures Related to Worker
Involvement in Inspections and Enforcement Actions
NRC has not been ``worker friendly'' in its approach to oversight
and regulation. NRC made it clear from day one at Paducah that their
job is to interact with management and they are not in the business of
taking concerns from workers and resolving them. NRC excludes workers
from any role in walk around inspections, outbriefings, or enforcement
actions.
When NRC started examining issues at Paducah this summer, they
never consulted with the local union health and safety reps on issues
that required scrutiny, nor did they include them in the investigation.
Ironically, DOE's EH Oversight Team included the designated safety
representative to be in the morning outbriefs, solicited comments on
draft reports, and sought cooperation in identifying issues of concern.
While NRC has procedures to encourage stakeholder input at the
national level, this is more related to public safety than worker
safety.
The NRC's approach stands in contrast with OSHA which targets its
resources to resolving legitimate worker safety and health concerns.
OSHA solicits worker input during inspections, by including worker
representatives in the entry briefing, walkaround inspections, and the
exit briefing. Workers can participate in OSHA enforcement proceedings,
and they are provided as a matter of course with copies of findings
and, if issued, copies of citations.
NRC would be viewed more favorably as a worker safety regulator if
it followed the OSHA procedures. As such, we recommend that legislation
require NRC to follow the OSHA procedures outlined at 29 CFR Part 1903
when regulating at DOE facilities.
5. Non Profit Fines and Penalties
We support HR 3383. There is no reason that non-profit contractors
who are receiving a fee should not be subjected to fines and penalties
for nuclear safety violations under the Price Anderson Act Amendments.
These same institutions are subject to fines and penalties from other
environmental regulatory agencies, and if NRC were regulating these
institutions, they would be similarly subject to fines and penalties.
Indeed, when the OSHA-DOE pilots were underway at two non profit
contractors, there was no discussion that this would take place on the
condition that these non profits would be exempted from OSHA or NRC
fines and penalties.
6. Assure that States Retain Authority at NNSA to Enforce Environmental
Laws
The National Association of Attorneys General recently sought
legislative clarification regarding states' authority to regulate and
enforce against NNSA facilities. We support their request for
legislative relief to preclude NNSA facilities from asserting sovereign
immunity.
We would be pleased to answer any questions you may have.