<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:28197.wais]
S. Hrg. 109-432
ORBACH, KARSNER, SPURGEON, AND BERNHARDT NOMINATIONS
=======================================================================
HEARING
before the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
on
THE NOMINATIONS OF RAYMOND L. ORBACH, TO BE UNDER SECRETARY FOR
SCIENCE, DEPARTMENT OF ENERGY; ALEXANDER A. KARSNER, TO BE ASSISTANT
SECRETARY FOR ENERGY EFFICIENCY & RENEWABLE ENERGY, DEPARTMENT OF
ENERGY; DENNIS R. SPURGEON, TO BE ASSISTANT SECRETARY OF NUCLEAR
ENERGY, DEPARTMENT OF ENERGY; AND DAVID LONGLY BERNHARDT, TO BE
SOLICITOR OF THE DEPARTMENT OF THE INTERIOR
__________
MARCH 9, 2006
Printed for the use of the
Committee on Energy and Natural Resources
_____
U.S. GOVERNMENT PRINTING OFFICE
28-197 WASHINGTON : 2006
_________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government
Printing Office Internet: bookstore.gpo.gov Phone: toll free
(866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2250 Mail:
Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON ENERGY AND NATURAL RESOURCES
PETE V. DOMENICI, New Mexico, Chairman
LARRY E. CRAIG, Idaho JEFF BINGAMAN, New Mexico
CRAIG THOMAS, Wyoming DANIEL K. AKAKA, Hawaii
LAMAR ALEXANDER, Tennessee BYRON L. DORGAN, North Dakota
LISA MURKOWSKI, Alaska RON WYDEN, Oregon
RICHARD BURR, North Carolina TIM JOHNSON, South Dakota
MEL MARTINEZ, Florida MARY L. LANDRIEU, Louisiana
JAMES M. TALENT, Missouri DIANNE FEINSTEIN, California
CONRAD BURNS, Montana MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia JON S. CORZINE, New Jersey
GORDON SMITH, Oregon KEN SALAZAR, Colorado
JIM BUNNING, Kentucky
Bruce M. Evans, Staff Director
Judith K. Pensabene, Chief Counsel
Robert M. Simon, Democratic Staff Director
Sam E. Fowler, Democratic Chief Counsel
C O N T E N T S
----------
STATEMENTS
Page
Allen, Hon. George, U.S. Senator from Virginia................... 1
Bernhardt, David Longly, Nominee to be Solicitor of the
Department of the Interior..................................... 13
Bingaman, Hon. Jeff, U.S. Senator from New Mexico................ 3
Cantwell, Hon. Maria, U.S. Senator from Washington............... 2
Karsner, Alexander A., Nominee to be Assistant Secretary for
Energy Efficiency & Renewable Energy, Department of Energy..... 7
Nalley, E. Ann, President, American Chemical Society............. 21
Orbach, Dr. Raymond L., Nominee to be Under Secretary for
Science, Department of Energy.................................. 6
Spurgeon, Dennis R., Nominee to be Assistant Secretary for
Nuclear Energy, Department of Energy........................... 11
APPENDIX
Responses to additional questions................................ 23
ORBACH, KARSNER, SPURGEON, AND BERNHARDT NOMINATIONS
----------
THURSDAY, MARCH 9, 2006
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC.
The committee met, pursuant to notice, at 10:11 a.m., in
room SD-366, Dirksen Senate Office Building, Hon. Pete V.
Domenici, chairman, presiding.
OPENING STATEMENT OF HON. GEORGE ALLEN,
U.S. SENATOR FROM VIRGINIA
Senator Allen [presiding]. The Energy Committee will come
to order. Senator Domenici is tied up in the Budget Committee
right now arguing for various matters that actually have to do
with energy matters in budget. And so, he asked me to chair the
committee. And of course we have Senator Bingaman co-chairing
as well.
We're here this morning to consider the following
nominations for positions within the Department of Energy.
Raymond Orbach, to be Undersecretary of Science; Alexander
Karsner, to be Assistant Secretary for Energy Efficiency and
Renewable Energy; Dennis Spurgeon, to be Assistant Secretary
for Nuclear Energy; and we'll also consider the nomination of
David Longly Bernhardt to be Solicitor of the Department of the
Interior.
I welcome all of you to the committee, and congratulate
each of you for your nominations. I was going to be here anyway
to introduce Mr. Karsner, who I've known for several years.
Especially since he's made Alexandra, Virginia his home. His
wonderful wife Maria is here undoubtedly. There you are. And
their growing family. He has a very impressive record, and
we'll have others make introductions. But, let me just say that
Mr. Karsner has a very impressive record on energy issues. Not
just here in this continent, in this country, but all over the
world. Understanding the importance of renewables, creative
innovations and distribution. His entire life has been one of
looking at global competitiveness, and this is a
competitiveness issue for us. And I think Mr. Karsner's an
outstanding nomination because of his record. Understanding
there are evolving technologies. And we need to also have
private pathways to get those distributed around the country.
The Energy Policy Act, which this committee worked on, the
Advanced Energy Initiative, and the President's recent State of
the Union Address comments, underscore the urgency of greater
energy independence for our economic vitality, competitiveness,
our national security, and also our environmental well being.
Mr. Karsner has so many great attributes and experiences in
all those areas, that I know he's going to be an outstanding
leader for this country. He's also endorsed by--or unanimously
commended, depending on the situation by the National
Federation of Independent Business, the U.S. Chamber of
Commerce, the America Wind Energy Association, the American
Council of Renewable Energy, and the CEO's of some of
Virginia's leading renewable energy firms. And so, I'm very
pleased to have the opportunity to say these words about Mr.
Karsner. And I'm sure later he'll introduce his bride.
With that, Senator Bingaman would you like to make an
opening statement?
[The prepared statement of Senator Cantwell follows:]
Prepared Statement of Hon. Maria Cantwell, U.S. Senator From Washington
Mr. Chairman, thank you for calling this hearing. The Department of
Energy has a vital role to play in our nation achieving energy
independence and providing a path forward to a secure and reliable
energy supply and infrastructure. Further, the Department will have a
major role in advancing America's competitiveness agenda as we seek to
maintain our leadership in science and technology through the
bipartisan Protecting America's Competitive Edge (PACE) Act which I
hope will pass during this session of the 109th Congress. I was pleased
that this Committee was able to pass the PACE-Energy Act just
yesterday.
Dr. Orbach, I want you to know that the State of Washington is
proud to be the home of the Pacific Northwest National Laboratory.
PNNL's research and development portfolio is important to many of the
issues facing this country--ranging from nuclear non-proliferation to
energy R&D to biology and health programs. The Environmental Molecular
Sciences Laboratory is a critical national user facility and is unique
with its instrumentation and capabilities. I was proud to be present
for the dedication of the nuclear magnetic resonance spectrometer early
in my term as Senator.
Dr. Orbach, you are aware of the critical issue facing PNNL with
regard to replacement of its facilities as a result of the need to
clean up the 300 Area. The Hanford clean up is a significant issue for
the State of Washington and it is critical that the Department fulfill
its legal and moral commitment to complete cleanup. It is equally
important that the Department hold true to its commitment of replacing
the critical laboratories that are going to be affected by the 300 Area
clean up. As you know, there is a multi-pronged solution which includes
the Federal government, under your leadership. The State of Washington
is putting up money for the Bioproducts, Sciences, and Engineering
Laboratory (BSEL). The Battelle Memorial Institute, which manages PNNL
for the Department, is continuing to invest in facilities that will be
a part of the solution. I look forward to Department's support in
making the Pacific Northwest National Laboratory an enduring presence
at Hanford long after clean up is completed and the 300 Area is
returned to its natural state.
I also want to recognize Mr. Karsner who is the nominee for the
position of Assistant Secretary for Energy Efficiency and Renewable
Energy. The State of Washington has a very unique in its energy
portfolio with a diverse set of production options and a strong
commitment to energy conservation. The State of Washington is committed
to the utilization of bioproducts as an energy source. In fact, the
Bioproducts, Sciences, and Engineering Laboratory will be a state-of-
the-art laboratory funded by the State of Washington with programs
provided by the Federal Government that will be on the cutting edge of
bioproducts research. The Pacific Northwest National Laboratory makes
important and significant contributions to the Office of Energy
Efficiency and Renewable Energy including the Biomass, Vehicle
Technologies, Hydrogen and Fuel Cell, and Building Technologies
Programs. I invite you to make a visit to the State at your earliest
convenience to see the research programs, not only at PNNL, but in
other parts of the State.
Of critical importance to me is moving our country towards the
development of new technologies that will reduce our reliance on
foreign oil, lead to increased energy efficiency and conservation, and
at the same time preserve our environment. I believe the State of
Washington is very interested in playing a leadership role as we work
toward those goals. I look forward to working with all of the nominees
in achieving our mutual goals of energy independence and energy
security.
Thank you Mr. Chairman.
STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR
FROM NEW MEXICO
Senator Bingaman. Well, Mr. Chairman thank you for having
the hearing. I welcome all the nominees, and am particularly
glad that we are conducting a hearing on the new positions that
we created in last years bill. The Under Secretary for Science
and the Assistant Secretary for Nuclear Energy are both very
important positions. Dr. Orbach and Mr. Spurgeon are two
experienced and highly qualified nominees for those new jobs,
and I'm very glad to see their nominations. I also look forward
to hearing from Mr. Karsner and Mr. Bernhardt, who've been
nominated to fill older, but very important positions in the
Department, in the Federal Government as well.
The Office of Solicitor, to which Mr. Bernhardt has been
nominated, of course is responsible for the interpretation and
application of all legal authority affecting actions proposed
or taken under the Department of the Interior's programs and
operations. So, it's a very important position, and I do have
some questions of Mr. Bernhardt on a couple of pending issues.
Thank you.
Senator Allen. Thank you, Senator Bingaman. Before we have
you all swear in, to give you all some happiness and bring
smiles to your faces. I know many of you all have members of
your family present. And if you would, could you introduce them
to us. We'll proceed in the order in which you're seated at the
table. But, Mr. Orbach if you could--whatever family members or
close friends that have come to watch these proceedings, if
you'd please introduce them to us.
Dr. Orbach. Thank you, Senator Allen. Thank you, Senator
Bingaman. I'd like to introduce, first to the committee me wife
of 49 years. We'll be celebrating our 50th anniversary this
year, Eva.
Senator Allen. Eva please--Eva welcome. Good to have you
here.
Dr. Orbach. And then we've been blessed with three
children. And we have 10 grandchildren. And I'm very pleased to
have our oldest son, David here. And two of our grandchildren,
Grant and Kevin.
Senator Allen. Welcome.
Dr. Orbach. And then we have two very close friends, the
Glatt's, Milton and Barbara Glatt, who we brought with us.
Senator Allen. Okay.
Dr. Orbach. And I would also like to thank Deputy Secretary
Clay Sell, who has come to this hearing--and for all his
support, and also my two senior staff, Jeff Salmon and Todd
Harding. Thank you.
Senator Allen. Thank you, Mr. Orbach. Mr. Karsner. I've
already brought up Maria, but she can stand up if she'd like.
Mr. Karsner. I'm pleased to introduce--first of all, thank
you Senator Allen for the kind introduction. And a belated
happy birthday to you.
Senator Allen. Thank you.
Mr. Karsner. I'd like to introduce my bride, Maria. And our
two kids, Jenny and Caroline. It's their first hearing as well.
Senator Allen. Welcome.
Mr. Karsner. My parents, David and Blanche Karsner, who've
come up from Texas.
Senator Allen. Good to see you all. I know you're proud of
your son.
Mr. Karsner. My cousins who hit the red eye from Minnesota,
Susie, and Bruce, and Rebecca are here.
Senator Allen. Welcome.
Mr. Karsner. And there are so many friends in the room.
But, I would especially like to thank Paul Dickerson and Brad
Wine, who've been a real inspiration through this process.
Thanks.
Senator Allen. Thank you. Thank you for improving the
airline economy as well.
Mr. Spurgeon.
Mr. Spurgeon. Mr. Chairman, thank you. I'd like to first of
all introduce my wife of only 40 years, Carrol Spurgeon. And I
have my two sons here, and my two daughters-in-law. My son
Dennis, his wife Cherine. And my son Scott, and his wife
Monica. I have a daughter Kimberly, but Kimberly lives in
London and could not be with us today. But, I would tell you I
always have her support.
Senator Allen. Thank you. Welcome to all of you all.
Mr. Bernhardt. My wife Gena Bernhardt is here. And my
mother traveled from western Colorado to be here today, Carolyn
Bernhardt.
Senator Allen. Where do you live in western Colorado?
Ms. Bernhardt. I'm sorry, where?
Senator Allen. Yep.
Ms. Bernhardt. In Rifle.
Senator Allen. In Rifle, headwaters of the Colorado River
up in there.
Mr. Bernhardt. It is.
Senator Allen. Pretty country. Almost as pretty as----
Senator Bingaman. It's close.
Senator Allen. Well, thank you all for being here. The
rules of this committee which apply to all nominees require
that they be sworn in in connection with their testimony. So,
if you would all please rise, and raise you right hands. I'll
go through this and then turn it over to you.
Do you solemnly swear that the testimony you're about to
give to the Senate Committee on Energy and Natural Resources
shall be the truth, the whole truth, and nothing but the truth?
Mr. Orbach. I do.
Mr. Karsner. I do.
Mr. Spurgeon. I do.
Mr. Bernhardt. I do.
Senator Allen. You can be seated. Before you begin your
statements, we'll be asking questions that are addressed to
each nominee. And each of you will respond separately. One of
the things, and I hope that you could say--affirmatively say
this, is will you be able to appear before this committee or
other congressional committees to represent the Department, and
respond to issues of concern to the Congress?
Mr. Orbach. Yes.
Mr. Karsner. Yes.
Mr. Spurgeon. Yes.
Mr. Bernhardt. Yes.
They all responded for the record, affirmatively. Second,
are you aware of any personal holdings, investments, or
interests that could constitute a conflict or create the
appearance of such a conflict, should you be confirmed and
assume the office to which you have been nominated by the
President?
Dr. Orbach. My investments, personal holdings, and other
interests have been reviewed. Both by myself, and the
appropriate ethic counselors within the Federal Government.
I've taken appropriate action to avoid any conflicts of
interest. And there are no conflicts of interest or appearances
thereof to my knowledge.
Senator Allen. Mr. Karsner.
Mr. Karsner. My investments, personal holdings, and other
interests have been reviewed. Both by myself, and the
appropriate ethics counselors within the Federal Government.
I've taken appropriate action to avoid any conflicts of
interest. There are no conflicts of interest or appearances
thereof to my knowledge.
Senator Allen. Mr. Spurgeon.
Mr. Spurgeon. My investments, personal holdings, and other
interests have been reviewed. Both by myself, and the
appropriate ethics counselors within the Federal Government. I
have taken appropriate action to avoid any conflicts of
interest. There are no conflicts of interest or appearances
thereof to my knowledge.
Senator Allen. Thank you.
Mr. Bernhardt.
Mr. Bernhardt. Senator, my investments, personal holdings,
and other interests have been reviewed. Both by myself, and the
appropriate ethics counselors within the Federal Government.
I've taken appropriate action to avoid any conflicts of
interest. There are no conflicts of interest or appearances
thereof to my knowledge.
Senator Allen. Thank you. Let me ask you this question.
Have any of you all involved with, or do you have any assets
held in blind trusts?
Mr. Orbach. No.
Mr. Karsner. No.
Mr. Spurgeon. No.
Mr. Bernhardt. No.
The record will reflect that all witnesses answered no.
Each of you now may make a brief opening statement. I encourage
you to summarize your statements if you have prevented--as you
have presented filing for the record. So, we'll have time for
Senator's questions. But, your full statement will be made part
of the record. Dr. Orbach, we'll begin with you. Followed by
Mr. Karsner, Mr. Spurgeon, and Mr. Bernhardt. And I'm going to
turn the gavel over as these statements begin to the chairman
of the committee, Senator Domenici, who has now arrived. And
thank you all so very much. Thank you, Mr. Chairman.
The Chairman [presiding]. Thank you.
Senator Allen. I'll just swing over here, and we'll move
this out of the way.
The Chairman. I very much appreciate it.
Senator Allen. Glad to help.
The Chairman. All right. We're going to start now with each
of you giving your statements. You understand your prepared
remarks will be made part of the record. And keep your
statements as brief as possible. We can start with you doctor.
Good to have you, and we're glad to have an opportunity to put
you back were you are on a permanent basis. Because you've got
a big job ahead.
TESTIMONY OF DR. RAYMOND L. ORBACH, NOMINEE TO BE UNDER
SECRETARY FOR SCIENCE, DEPARTMENT OF ENERGY
Dr. Orbach. Thank you, Senator. Mr. Chairman, Senator
Bingaman. It's a great honor to have been nominated by the
President for this very important new position, and, if
confirmed, I look forward to working with this committee to
carry out the duties of the Under Secretary for Science and to
help Secretary Bodman and Deputy Secretary Clay Sell to carry
forward their vision of science as a core mission, an enabler
of the Department of Energy.
I also want to thank this committee, and your colleagues in
the Congress, for authorizing the position of Under Secretary
for Science in the Department of Energy. The creation of this
position highlights the important role of science and
scientific research at the Department of Energy, and indeed in
the American economy. By authorizing this position, Congress,
and this committee in particular, has given science an even
more important role to play in the development of Department of
Energy's priorities and its mission. Not only through the
Office of Science, but also through all of the Department
programs. There is enormous potential in this visionary change.
The role of science has been recognized by the President,
and his American Competitiveness Initiative. The President's
initiative demonstrates his commitment to strong and continued
U.S. competitiveness through a national effort in basic science
research and education. I believe that in creating the position
of Under Secretary for Science, this committee and the Congress
have pointed to a transformation in the way the Department
pursues and achieves its mission, drawing on the formidable
powers of science.
It is a great honor to have been nominated by the President
for this position. Thank you.
[The prepared statement of Dr. Orbach follows:]
Prepared Statement of Dr. Raymond L. Orbach, Nominee to be Under
Secretary for Science, Department of Energy
Mr. Chairman, Senator Bingaman, Members of the Committee.
It is a great honor to have been nominated by the President for
this very important new position, and, if confirmed, I look forward to
working with this Committee to carry out the duties of the Under
Secretary for Science as listed in Title X of the Energy Policy Act of
2005, and to helping Secretary Bodman carry forward his vision of
science as a core mission of the Department of Energy.
I also want to thank this Committee, and your colleagues in the
Congress, for authorizing the position of Under Secretary for Science
in the Department of Energy. The creation of this position highlights
the important role of science and scientific research at the Department
of Energy, and indeed in the American economy as a whole. By
authorizing this position, Congress, and this Committee in particular,
has given science an even more important role to play the development
of DOE's priorities and the carrying out of our mission--not only
through the Office of Science, but also throughout all of the
Department's programs. There is enormous potential in this visionary
change.
I welcome the opportunity to broaden and deepen the working
relationship between the Department's Office of Science and the
Department's applied programs. We already have had many beneficial
interactions. The Energy Policy Act of 2005 enables us to transform
these relationships, to work much more closely within the Department's
basic and applied programs, and especially to assist the Department's
programs in reducing risk.
The applied programs in the Department--and here I am speaking of
such programs as Energy Efficiency and Renewable Energy (EERE), Nuclear
Energy (NE), and Environmental Management (EM)--have difficult
responsibilities, and there are technical risks and challenges
associated with carrying out their missions. I believe Under Secretary
for Science will play an important role in mitigating these risks with
scientific research.
To accomplish this objective, we at the Department of Energy will
need to fund and perform science that is world-class, science that is
at the far frontier of human knowledge, what I call transformational
science. Transformational science is science that opens entirely new
avenues and methods for solving problems, that gives us revolutionary
new tools for mastering the challenges of our world.
This has been appropriately recognized by the President in his
American Competitiveness Initiative. The President's initiative
demonstrates his commitment to strong and continued U.S.
competitiveness through a national effort in basic science research and
education. I believe the Under Secretary of Science position,
therefore, has been established at a pivotal juncture for this nation,
not only to help assist the applied programs, but to help drive
transformational science.
The challenges that our nation faces, particularly in the pursuit
of energy security and independence, will require such transformational
science in the years ahead. DOE's Office of Science, which I have had
the privilege of leading for the past four years, has been one of the
great sponsors and sources of transformational science over the
decades. It is my belief, and my goal if I am confirmed as the
Department's Under Secretary for Science, that science in general, and
transformational science in particular, will become more central to the
way the Department of Energy accomplishes its mission.
There are other critical roles for the Under Secretary for Science
as well. From boosting science and math education, to advising the
Secretary about the well-being and management of the Department's
national laboratories, the Under Secretary for Science can play a
pivotal role in the future success of the Department's missions.
In short, I believe that in creating the position of Under
Secretary for Science, this Committee, and the Congress, have pointed
to a transformation in the way the Department pursues and achieves its
mission, drawing on the formidable powers of science. It is a great
honor to have been nominated by the President for this position. Thank
you.
The Chairman. Thank you, very much.
Mr. Karsner.
TESTIMONY OF ALEXANDER A. KARSNER, NOMINEE TO BE ASSISTANT
SECRETARY FOR ENERGY EFFICIENCY & RENEWABLE ENERGY, DEPARTMENT
OF ENERGY
Mr. Karsner. Thank you. Mr. Chairman, Senator Bingaman,
it's a great honor to appear before you today as the
President's nominee for the position of Assistant Secretary of
Energy for Energy Efficiency and Renewable Energy. I appreciate
very much the support of Secretary Bodman and Deputy Secretary
Sell. And I am particularly grateful to President Bush for his
confidence in me, coming at a time that he has resolutely
called upon the Nation to address an addiction to oil and
transform the way we power our economy and lead our lives.
My parents, David and Blanche, have been together more than
51 years and they raised four children, born on separate Air
Force bases across three continents. They instilled in us an
appreciation of service above self. Unlike my grandfather, my
brother Fred, my father, and every male Karsner since our
family first immigrated, I have not known the privilege or
honor of wearing the uniform of our country. So, the
opportunity to serve this Nation at this critical juncture is
especially meaningful to my family.
My wife Maria is my partner, my best friend, my soul mate
and is a rock of stability for me. Our children, Caroline Hope,
who is 3 and Jenny Faith, who is 1, are named for their
grandmothers and the timeless aspirations of their values. If
confirmed, nothing would be more meaningful to me, Mr. Chairman
than to contribute to the great cause of America's energy
independence and see all children inherit a healthier, cleaner,
and a freer world. Along with my siblings Danielle, Diana, and
Fred, I want to thank all of my family for their unending love
and support.
I commenced my studies in Political Science and Religious
Studies at Rice University more than two decades ago. At that
time, if you wanted a job in Houston, Texas then chances were
it would be in the energy industry. I became part of a dynamic
company developing, financing, owning and operating Michigan's
first coal and wood waste co-generation independent powerplant.
As a very young man, I was fortunate to gain experience in
coal, biomass, oil and gas projects and exposure to most
aspects of project development, management, and finance,
including contract negotiation, economic and financial
analyses, permitting and construction. As infrastructure
opportunities grew and my own experience deepened, I discovered
an untapped and unlimited enthusiasm for the creativity and
imagination, risks and results of free enterprise.
As the senior development manager at Wartsila and as
managing director of Enercorp, I traveled extensively in China,
Southeast Asia, the Pacific and the Subcontinent, North Africa,
and the Middle East. Working to develop new generation
facilities to power these markets unprecedented economic
growth. Essential to the task was maximizing the value of
international collaboration, and asserting leadership with
multi cultural management, recognizing the forces of global
competition.
Having survived and succeeded in developing from concept to
commercial operations Karachi, Pakistan's first independent
power facility, I came also to experience and understand the
nature and tactics of our present enemy and the threat posed to
the progress of civilized society.
The efforts then were substantially motivated by trying to
provided reliable electricity to developing nations, so that
people could study, women could pursue literacy, refrigerate
vaccines and food, and access even a fraction of the
conveniences we often take for granted. The sum of my
experiences has led me to resolve that energy efficiency is
more than intelligent economics, it is a moral imperative.
Much of Karachi and parts of Sindh were in open
insurrection in those days, under martial occupation, with
terror attacks occurring almost nightly. We had erratic
electric supply, no email, no internet, no cell phones and no
assurances of our safety. But, in spite of the enormity of the
challenge, or perhaps because of it, I was able to manage a
dedicated people of different nationalities and various
perspectives to focus on objectives of measurable progress. And
I hope that will be useful here.
I learned to guide market forces to reasonable risk and
overcome market imperfections and impediments to the free flow
of capital, goods, services, and ideas. I am hopeful that if
confirmed, this perspective will add value in the Department
and the administration.
I believe that success can be defined by enabling
commercial frameworks and free enterprise to accelerate the
development and deployment of new energy technologies. Mr.
Chairman, members of the committee in concluding my remarks I'm
drawn back once again to my father's example. He served this
government all his life, including nearly 25 years in the armed
services. When the Strategic Air Command deployed him for a
year away from our family to a distant land amidst a foreign
people, I was too young to understand what compelled him to go.
But, as we grew older, he made sure that my siblings and I
understood the meaning of his service. He said ``We owe
everything to America, everything, for the right to worship God
in peace, without fear of persecution and for the opportunity
to pursue our dreams, whatever they may be.'' But, he would
always add ``our liberty comes with responsibilities and our
opportunities imply an obligation.''
I am honored to be before you today and if for the
opportunity, if confirmed, to extend my family's legacy of
public service, and to take on the great challenges before us
and the responsibilities for which I've been nominated. Thank
you and I would be pleased to answer any questions.
[The prepared statement of Mr. Karsner follows:]
Prepared Statement of Alexander A. Karsner, Nominee to be Assistant
Secretary for Energy Efficiency & Renewable Energy, Department of
Energy
Committee on Energy and Natural Resources, United States Senate,
March 9, 2006 Mr. Chairman, Senator Bingaman, and members of the
Committee, it is a great honor to appear before you today as the
President's nominee for the position of Assistant Secretary of Energy
for Energy Efficiency and Renewable Energy. I appreciate very much the
support of Secretary Bodman and Deputy Secretary Sell and I am
particularly grateful to President Bush for his confidence in me,
coming at a time that he has resolutely called upon us to address an
addiction to oil and transform the way we power our economy and lead
our lives.
My parents, David and Blanche, have been together more than 51
years and raised four children, born on separate Air Force bases across
three continents. They instilled in us an appreciation of service above
self. Unlike my grandfather, my father, my brother, and every male
Karsner since our family first immigrated, I have not known the
privilege and honor of wearing the uniform of our country. So, the
opportunity to serve this nation at a critical juncture is especially
meaningful to my family.
My wife Maria is my partner, best friend, soul mate and is a rock
of stability for me. Our children, Caroline Hope (who is 3) and Jenny
Faith (who is 1), are named for their grandmothers and the timeless
aspirations of our values. If confirmed, nothing would be more
meaningful to me, than to contribute to the great cause of America's
energy independence and see all children inherit a healthier, cleaner,
and freer world. Along with my siblings Danielle, Diana, and Fred, I
want to thank all of my family for their unending love and support
I commenced my studies in Political Science and Religious Studies
at Rice University more than two decades ago. At that time, if you
wanted a job in Houston, then chances were it would be in the energy
industry. I became part of a dynamic entrepreneurial company
developing, financing, owning and operating Michigan's first coal and
wood waste cogeneration independent power plant. As a very young man, I
was fortunate to gain experience in coal, biomass, oil and gas projects
and exposure to most aspects of project development, project
management, and project finance, including contract negotiation,
economic and financial analyses, permitting and construction. As
infrastructure opportunities grew and my own experience deepened, I
discovered an untapped and unlimited enthusiasm for the creativity and
imagination, risks and results that free enterprise affords.
An opportunity to take part in the promise of a ``new world order''
came when the Rotary Foundation awarded me a graduate fellowship and
deemed me a ``Goodwill Ambassador.'' I arrived in China's booming Pearl
River Delta to live, learn and work amongst the Chinese in the autumn
of 1991. These were historic and interesting times, arriving only weeks
before Chairman Deng Xiaoping's visit to the region during which he
declared China's new economic openness to the West. During this period,
I was drawn to participate intimately in the emergence of Hong Kong's
increasingly democratic processes and elections. My departure came only
hours after witnessing the lowering of the Union Jack over Hong Kong
harbor and, the columns of the Red Army entering the city for the first
time, and what many consider the end of the imperial era. In the
interceding years, as the Senior Development Manager and a Project
Director for Wartsila Power Development, I traveled extensively and
frequently in China, Southeast Asia, the Pacific and the Subcontinent
working to develop new generation facilities to power the region's
unprecedented economic growth. Essential to the task was maximizing the
value of international collaboration, asserting leadership in an
environment of multicultural management, and recognizing the
fundamental character of the formidable forces of global competition.
Having survived and succeeded in developing from concept to
commercial operations Karachi's first independent power facility, I
came also to experience and understand the nature and tactics of our
present enemy and the threat posed to the progress of civilized
society.
My efforts were substantially motivated by the promise of
introducing reliable electricity to developing nations, thereby
providing access to light to read or study, (enabling women to pursue
literacy which had been previously forbidden), as well as creating the
ability to refrigerate vaccines and food, and to access even a fraction
of the conveniences we often take for granted. The sum of my
experiences has led me to resolve that energy efficiency is more than
intelligent economics; it is a moral imperative.
Much of Karachi and parts of Sindh province were in open
insurrection in those days, under martial occupation, with terror
attacks occurring almost nightly. We had erratic electric supply, no
email, no internet, no cell phones and no assurances of our safety. In
spite of the enormity of the challenge--or perhaps because of it--I was
able to manage dedicated people of so many nationalities and
perspectives to focus on objectives of measurable progress. We
synthesized our different points of view to realize a greater vision
and achieved with private risk capital what few believed was achievable
at all.
Philosophically, I learned to constantly question conventional
wisdom about what is in fact possible and to embrace timetables some
might consider too distant and speculative. Pragmatically, I learned to
guide market forces to reasonable risks and overcome market
imperfections and impediments to the free flow of capital, goods,
services, people, and ideas. I am hopeful that if confirmed, my
perspective will add value in the Department and the Administration and
my experience will be applicable to President Bush's determination that
our nation must continue to achieve vital gains towards international
competitiveness, a better global environment, and greater energy
security.
As I focused my life and founded my business exclusively on the
development of new energy technologies, I dedicated myself to
contribute to a safer, cleaner, freer and sustainable future for my
children, their generation, and the generations to follow. I believe
that success will be defined by enabling commercial frameworks and free
enterprise to accelerate the development and deployment of new energy
technologies to address these challenges head on. If confirmed, I will
seek to expand the efforts to more rapidly commercialize and deploy the
under-harvested yield of decades of public sector investment in applied
research and development.
Mr. Chairman, members of the committee, in concluding my remarks, I
am drawn back once again to my father's example. He served this
government all his life, including nearly 25 years in the armed
services. When Strategic Air Command deployed him for a year away from
our family to a distant land amidst a foreign people, I was too young
to understand what compelled him to go. But, as we grew older, he made
sure that my siblings and I understood the meaning of his service. He
said ``We owe everything to America; everything, for the right to
worship God in peace, without fear of persecution and for the
opportunity to pursue our dreams, whatever they may be.'' But, he would
always add ``our liberty comes with responsibilities and our
opportunities imply an obligation.''
I am honored to be before you today and for the opportunity, if
confirmed, to extend my family's legacy of public service, to take on
the great challenges before us and fulfill the responsibilities for
which I have been nominated.
Thank you and I would be pleased to answer any questions you may
have.
The Chairman. Thank you very much.
Mr. Spurgeon.
TESTIMONY OF DENNIS R. SPURGEON, NOMINEE TO BE ASSISTANT
SECRETARY FOR NUCLEAR ENERGY, DEPARTMENT OF ENERGY
Mr. Spurgeon. Mr. Chairman, Senator Bingaman, I am honored
to appear before you today as the President's nominee to be
Assistant Secretary of Energy for Nuclear Energy. Over the past
four decades I have had the opportunity to work on almost every
aspect of the nuclear power business, including uranium
exploration, uranium mining and milling, uranium enrichment,
fuel fabrication, reactor operations, fuel reprocessing and
waste solidification.
My first assignment associated with the civilian nuclear
industry was in 1969 in the Atomic Energy Commission. Those
were exciting times in the nuclear energy field. There was a
great deal of optimism concerning the major role that nuclear
energy would play in our Nation's energy future. However, the
oil embargo of 1973 caused energy prices to spike upward,
people used less electricity in response to the higher prices,
which in turn caused utilities to delay or cancel new
generating stations, many of which were nuclear. Unfortunately,
this was followed by double digit interest rates in the late
1970's that disproportionately affected nuclear plants because
nuclear plants have high capital costs, offset by low fuel
cycle costs.
With the 1979 Three Mile Island reactor accident, the
prospects for nuclear energy in the United States hit a low
point. It has now been three decades since we have seen a new
nuclear reactor ordered in this county. However, the tide is
turning, the clouds have parted and we are at the dawn of a
nuclear renaissance in America. A plentiful, reliable supply of
energy is the cornerstone of sustained economic growth and
prosperity. More and more Americans, including many in the
environmental community, are recognizing that nuclear power is
the only proven technology that can provide abundant supplies
of base load electricity reliably and without air pollution or
emissions of greenhouse gasses. We now have a new generation of
light water reactors that are even safer and simpler to
construct than the very safe and economical reactors in use
today.
President Bush has proposed a visionary initiative in the
Global Nuclear Energy Partnership. This plan, which includes
demonstrating the technology necessary to recycle spent fuel in
a proliferation resistant manner, has the potential to solidify
nuclear energy's current resurgence for decades to come and
ensure it is done in a safe and secure manner.
Mr. Chairman, simply put, America needs more nuclear energy
and, if confirmed, I will do everything in my power to assist
in bringing about the increased use of safe nuclear energy in
the United States and elsewhere for the benefit of mankind and
the environment in which we live.
The Energy Policy Act of 2005 has provided us with some
excellent tools with which to do our jobs. Many of our
farsighted utility executives are preparing for new nuclear
orders and our reactor suppliers are preparing some outstanding
product offerings. These are once again very exciting times to
be in the nuclear energy field.
I am honored that President Bush nominated me for this
position at such an historic time, and I am thankful to have
the trust of Secretary Bodman as well. If confirmed I will have
an opportunity to contribute to a much better energy future for
our children and generations to come. I can think of no greater
legacy to leave.
Mr. Chairman, that concludes my statement. I would be
pleased to answer any questions.
[The prepared statement of Mr. Spurgeon follows:]
Prepared Statement of Dennis Spurgeon, Nominee to be Assistant
Secretary for Nuclear Energy, Department of Energy
Mr. Chairman, Senator Bingaman and members of the committee, I am
honored to appear before you today as the President's nominee to be
Assistant Secretary of Energy for Nuclear Energy. I would like to
introduce and recognize my wife of 40 years, Carrol Spurgeon. When we
began our lives together under an arch of swords at the Naval Academy
chapel we could never have comprehended what an amazing odessy we were
about to begin together. Carrol has been my biggest supporter, and I
have tried to be hers. After raising our three children Carrol went
back to school, was awarded a degree in design, became a licensed
designer and spent 16 years as a contract employee for the CIA. She has
had some very interesting experiences.
Also with me today are my sons Dennis and Scott and my daughters-
in-law Cherine and Monica. My daughter Kimberly lives in London and
could not be here today, but I always have her support.
Over the past four decades I have had the opportunity to work in
almost every aspect of the nuclear power business, including uranium
exploration, uranium mining and milling, uranium enrichment, fuel
fabrication, reactor operations, fuel reprocessing and waste
solidification. My first assignment associated with the civilian
nuclear industry was in 1969 at the Atomic Energy Commission. Those
were exciting times in the nuclear energy field. There was a great deal
of optimism concerning the major role that nuclear energy would play in
our nation's energy future. However, the oil embargo of 1973 caused
energy prices to spike upward, people used less electricity in response
to the higher prices, which in turn caused utilities to delay or cancel
new generating stations, many of which were nuclear. Unfortunately,
this was followed by double digit interest rates in the late 1970's
that disproportionately affected nuclear plants because nuclear plants
have high capital costs (offset by low fuel cycle costs). With the 1979
Three Mile Island reactor accident, the prospects for nuclear energy in
the United States hit a low point. It has now been three decades since
we have seen a new nuclear reactor ordered in this country.
However, the tide is turning, the clouds have parted and we are at
the dawn of a nuclear renaissance in America. A plentiful, reliable
supply of energy is the cornerstone of sustained economic growth and
prosperity. More and more Americans, including many in the
environmental community, are recognizing that nuclear power is the only
proven technology that can provide abundant supplies of base load
electricity reliably and without air pollution or emissions of
greenhouse gasses. We now have a new generation of light water reactors
that are even safer and simpler to construct than the very safe and
economical reactors in use today.
President Bush has proposed a visionary initiative in the Global
Nuclear Energy Partnership. This plan, which includes demonstrating the
technology necessary to recycle spent fuel in a proliferation-resistant
manner, has the potential to solidify nuclear energy's current
resurgence for decades to come and ensure it is done in a safe and
secure manner.
Mr. Chairman, simply put America needs more nuclear energy and, if
confirmed, I will do everything in my power to assist in bringing about
the increased use of safe nuclear energy in the United States and
elsewhere for the benefit of mankind and the environment in which we
live. The Energy Policy Act of 2005 has provided us with some excellent
tools with which to do our jobs. Many of our farsighted utility
executives are preparing for new nuclear orders and our reactor
suppliers are preparing some outstanding product offerings. These are
once again very exciting times to be in the nuclear energy field. I am
honored that President Bush nominated me for this position at such a
historic time, and I am thankful to have the trust of Secretary Bodman
as well. If confirmed I will have an opportunity to contribute to a
much better energy future for our children and generations to come. I
can think of no greater legacy to leave.
Mr. Chairman, this concludes my statement. I would be pleased to
answer any questions.
Mr. Chairman: Thank you, very much. Now we're going to here
from the Interior nominee, David Bernhardt. We're glad to have
you here. Sorry you're out numbered by DOE people, but we're
glad to have you.
TESTIMONY OF DAVID LONGLY BERNHARDT, NOMINEE TO BE SOLICITOR OF
THE DEPARTMENT OF THE INTERIOR
Mr. Bernhardt. I make it up in weight Senator.
Chairman Domenici, Senator Bingaman, I am honored to appear
here today as the President's nominee to be the Solicitor of
the Department of the Interior. I ask for your consent to the
President's nomination.
My interest in working on the diverse issues affecting the
Department of the Interior stems from many personal
experiences. I am from Garfield County, Colorado. Located in
western Colorado, Garfield County is comprised of small rural
communities nestled in the Rocky Mountains. The majority of
land in Garfield County is federally owned. Growing up, I went
hiking, hunting, skiing, and riding on horseback on those
Federal lands.
My personal experiences also add clarity and context to my
understanding of the vital role that the Department of the
Interior plays in providing enjoyment, education, and
inspiration to present and future generations. I still recall
the feelings of wonder and amazement I had as a small child
walking through the cliff dwellings at Mesa Verde National
Park, and climbing into a kiva. The few hours spent at Mesa
Verde did more to stimulate a childhood interest in reading
than months of effort and persistence by my parents and
teachers.
Garfield County's economy was, and remains, closely tied to
activities that take place on Federal lands whether they are
recreational or related to natural resource development. My
hometown of Rifle was once the self proclaimed Oil Shale
Capital of the World, and it suffered a dramatic economic
downturn during the 1980 energy bust. Changing economic
realities and changing Federal priorities impacted both
individuals and the community as a whole for several years.
Rifle regained control of its destiny, and today a dynamic,
vibrant, thriving community exists. I know firsthand that the
decisions made at the Department of the Interior can have
longstanding and very real social and environmental impacts. I
understand the importance of obtaining meaningful input to help
ensure informed Federal decisions.
I've had the privilege of working for Secretary Norton for
the past 5 years. She is an inspiring leader who understands
the law and who is interested in practical solutions that
achieve on the ground results. I worked previously with
Secretary Norton in the private sector as well. During my
tenure at Interior, I've had the opportunity to work on many
complex issues affecting each of Interior's diverse bureaus. I
have a clear understanding of the conflicting legal and policy
issues facing the decision makers within the Department. I've
worked as a member of a small team focused on addressing many
of our long-standing trust challenges. I've negotiated complex
legal settlements and legislative initiatives and have made
recommendations to the Justice Department regarding litigation
positions. I've led the coordination of the Department's effort
to implement the National Energy Policy Act of 2005. And I've
had the responsibility for managing attorneys and other staff
in both the Office of Congressional and Legislative Affairs and
the Office of the Solicitor.
The primary mission of the Office of the Solicitor is to
provide legal support for the goals, objectives, and
responsibilities that are given to the Secretary by the
President and Congress. Since December 2001, the cadre of
talented and dedicated lawyers and staff within the Office of
the Solicitor has been disconnected from the internet. The lack
of internet access, Senator for more than three hundred
attorneys and their support staff impacts the speed of review
and the timing and quality of advice that this office provides
for all activities conducted within the Department.
In closing, my service over the last 5 years has given me
the opportunity to learn some very significant lessons which I
will carry with me into the job of Solicitor. If I receive your
consent to this nomination and am confirmed, I will approach
questions with an open mind. I will actively seek input and
listen to varied views and perspectives to help ensure the
recommendations I will make and the conclusions I will make are
more informed. I will carry out my responsibilities with
dedication and integrity. Thank you for your consideration of
my nomination. I look forward to your questions.
[The prepared statement of Mr. Bernhardt follows:]
Prepared Statement of David Longly Bernhardt, Nominee for the Position
of Solicitor of the Department of the Interior
Chairman Domenici, Senator Bingaman, and Members of the Committee,
I am honored to appear here today as the President's nominee to be the
Solicitor of the Department of the Interior. I ask for your consent to
the President's nomination.
My interest in working on the diverse issues affecting the
Department of the Interior stems from many personal experiences.
I am from Garfield County, Colorado. Located in western Colorado,
Garfield County is comprised of small rural communities nestled in the
Rocky Mountains. The majority of land in Garfield is federally owned.
Growing up, I went hiking, hunting, skiing, and riding on those Federal
lands.
My personal experiences added clarity and context to my
understanding of the vital role the Department of the Interior plays in
providing enjoyment, education, and inspiration to present and future
generations. I still recall the feelings of wonder and amazement I had
as a small child walking through the cliff dwellings at Mesa Verde and
climbing into a kiva. The few hours spent at Mesa Verde did more to
stimulate a childhood interest in reading than months of effort by my
parents and teachers.
Garfield County's economy was, and remains, closely tied to
activities that take place on these Federal lands whether they are
recreational or related to natural resource development. My hometown of
Rifle, Colorado, once the self-proclaimed ``Oil Shale Capital of the
World,'' suffered a dramatic economic downturn during the mid-1980s
energy bust. Changing economic realities and changing Federal
priorities impacted both individuals and the community as a whole for
several years. Rifle regained control of its destiny, and today a
dynamic vibrant thriving community exists. I know firsthand that the
decisions made at the Department of the Interior can have longstanding
and very real social and environmental impacts. I understand the
importance of obtaining meaningful input to help ensure informed
Federal decisions.
I have had the privilege of working for the past five years with
Secretary Norton, an inspiring leader who understands the law and who
is interested in practical solutions that achieve on-the-ground
results. I had the opportunity to work with Secretary Norton in the
private sector, when we both worked at the firm of Brownstein, Hyatt
and Farber, P.C. I initially met the Secretary while serving on the
staff of a Member of the House of Representatives, where much of my
effort was focused on issues that related to the Department of the
Interior.
Since coming to the Department, I held several positions within the
Office of the Secretary including: Special Assistant to the Secretary,
Counselor to the Secretary, Director of Congressional and Legislative
Affairs, and Deputy Chief of Staff. I currently serve as the Deputy
Solicitor within the Office of the Solicitor.
During my tenure at the Department, I have had an opportunity to
work on many complex issues affecting each of Interior's diverse
bureaus. I have a clear understanding of the often conflicting legal
and policy issues facing the decisionmakers within the Department. I
have worked as a member of a small focused team addressing many of our
longstanding Indian Trust challenges. I have negotiated complex legal
settlements and legislative initiatives and have made recommendations
to the Department of Justice regarding litigation positions. I have led
the coordination of the Department's effort to implement the National
Energy Policy Act of 2005. I have also had the responsibility for
managing attorneys and other staff in both the Office of Congressional
and Legislative Affairs and the Office of the Solicitor.
The primary mission of the Office of the Solicitor is to provide
legal support for the goals, objectives, and responsibilities that are
given to the Secretary by the President and Congress. Since December
2001, the cadre of talented and dedicated lawyers and staff within the
Office of the Solicitor has been disconnected from the Internet. The
lack of Internet access for more than three hundred attorneys and their
support staff impacts the speed of review and the timing and quality of
advice this office provides for all activities conducted within the
Department. The loss of connectivity also significantly hampers
employee morale. I recognize these impacts and, if confirmed, will work
to find a resolution to this situation.
In closing, my service over the last five years has given me the
opportunity to learn some very significant lessons which I will carry
with me into the job of Solicitor. If I receive your consent to this
nomination and am confirmed, I will approach questions with an open
mind. I will actively seek input and listen to varied views and
perspectives to help ensure that the recommendations I make, or
conclusions I draw, are more informed. Most importantly, I will work to
ensure the Secretary and her subordinate officers receive unbiased and
intellectually honest advice regarding their options under the law.
If I am confirmed, I will carry out my responsibilities with
dedication and integrity. I will not lose sight of the fact that the
decisions we make at the Department of the Interior have longstanding
impacts on our Federal lands, the communities that surround them, and
our county as a whole.
Thank you, Mr. Chairman, Senator Bingaman, and Members of the
Committee for your consideration of the President's nomination. I ask
for your consent, and I am pleased to answer your questions.
The Chairman. Thank you, very much.
Senator Bingaman.
Senator Bingaman. Thank you, very much Mr. Chairman. Let me
start with a question to Mr. Karsner. There's been a major
concern here in the Congress and elsewhere about the failure of
the Department of Energy to move ahead and adopt, or issue the
necessary standards for a lot of the appliances that we have
legislated requirements for. But, as I understand it, a whole
group of Attorney's General have sued the Department;
essentially trying to insist that you get on with that. Can you
tell us your plan to get this problem solved, and how quickly
you expect to get it done.
Mr. Karsner. Thank you, sir. It is my understanding that a
schedule has been published for the appliance standards that
had been lacking for sometime. And that that schedule
effectively provides a road map and a critical path for
implementing those standards. Which as you point out are long
overdue. I would rate that, of course amongst the highest
priorities if I were to be confirmed. To make sure that that
critical path is being followed. And to the extent that--I had
not been privy to the making of that plan. So, I would intend
to also review it, and to see if there are any gaps in it that
could be shrunk or accelerated.
Senator Bingaman. I wish you would look at it, as I
understand it, it's a 5-year plan. Obviously, the
administration you're becoming part of here is not going to be
there for 5 years. And we don't know who the new administration
will be. But, if there were a way that you could have a plan to
get these things done while you're on the job, that would be
great. I'm concerned--we're getting toward the end of an
administration here. At least we're nearly 3 years away still,
but setting goals that take us into the next administration, I
think make them less likely that we'll stick with these
schedules. So, I would urge you to reevaluate that if you
would.
I wanted to ask Mr. Bernhardt if he would--we had a couple
years ago--you were then the Director of Office of
Congressional Legislative Affairs. As I understand it, your
view then was that requests from members of Congress, rather
than from committee chairs, were to be handled by the
Department of the Interior under the Freedom of Information
Act. Is that still your view?
Mr. Bernhardt. Senator, my view is that the Department of
the Interior needs to provide full disclosure to members of
Congress, subject to the Department of Justice's guidelines. In
1998, the Chief of Staff for the Secretary of the Interior
promulgated guidance for the Department and stated in that
guidance that we were to treat requests from individual members
under FOIA. Since that time, I've reviewed the Department of
Justice's policies and I think that the 1998 guidance misses a
number of caveats that were contained within the Department of
Justice guidance. And I think that as we move forward with the
disclosure of documents for members requests, I would like to
first consult with your staff as we go forward. But, also, the
Department itself needs to carefully weigh every request and
insure we are meeting the needs of Congress to ensure
harmonious relationships with you and this committee.
Senator Bingaman. Okay. Let me ask about this issue of the
so called impairment standard. As I understand it there's been
controversy over the Department's proposed revision of the
National Park Service Management Policies. A lot of that
controversy has related to this so called impairment standard,
which interprets the management mandate in the National Park
Service Organic Act. That Act directs the National Parks ``to
conserve the scenery and natural and historic objects, and the
wildlife therein. And to provide for the enjoyment of the same
in such manner, and by such means as will leave them unimpaired
for the enjoyment of future generations.'' Then in the 2001
Management Policies there's a statement there--this is another
quote, ``when there's a conflict between conserving resources
and values, and providing for enjoyment of them, conservation
is to be predominant.'' Do you agree with that interpretation
of the 2001 Management Policies and can you tell us how you
would interpret the--this Organic Act as regards to this issue?
Mr. Bernhardt. Well Senator, your statement about the
Organic Act is absolutely correct. That's exactly what the
standard is. The duty of the Park Service is to protect the
parks. And there has been an ongoing discussion on some
management polices. I've not been involved in that, but I know
that a draft went out, and we've received a whole host of
comments. The Park Service is working through those comments
now and whatever policies they come up with at the end of the
day will need to comply with the standard that you laid out in
the Act, sir.
Senator Bingaman. Let me ask about this--my time's up Mr.
Chairman. Go head.
Mr. Chairman: No, proceed.
Senator Bingaman. I wanted to ask you about the Park
Service's proposed new authority for it's employees to solicit
donations to fund the Park Service activities. This proposal
was inconsistent with the guidelines issued by the Solicitor
previously, as I understand it. I would just ask if you have
approved of the Park Service proposal, or the new Departmental
Solicitation Guidelines; is this something you've been involved
in, have you made a judgment on that? Have you signed any
opinion justifying the new interpretation of the relevant law?
Mr. Bernhardt. Senator, I have not been intimately involved
with that, and I haven't issued an opinion in regards to that.
But, I do have an understanding. I don't think that the memos
or the opinion that Solicitor Leshy issued and the current
interpretation conflict. Solicitor Leshy's memo, if you look at
it, makes the argument that there's not explicit authority to
solicit donations. Since 2001 the Office of Legal Counsel has
opined on a very similar statute. And his conclusion was, even
though the authority wasn't explicit, it was implied. And I
think if Solicitor Leshy had had the knowledge of that legal
opinion, that might of informed his decision making
differently, Senator.
Senator Bingaman. Let me ask about one other issue. This is
a subject called RS 2477 claims. I understand that following
the 10th Circuit Court of Appeals decision last year, the
Department is developing a process to look into the validity of
certain claimed RS 2477 rights of way in Utah. Is that correct?
Mr. Bernhardt. Senator, RS 2477 has been one of the most
contentious land use issues in the West. A recent 10th Circuit
Court of Appeals case gives us some additional clarity on that
issue. The Department is reviewing the 10th Circuit decision,
and is determining how best to go forward and implement our
duties.
Senator Bingaman. There was a section in the 1997 Interior
Appropriations Act that included language placing a moratorium
on the ability of the Department of the Interior or any other
agency to develop a final rule or regulation pertaining to
recognition, management, or validity of RS 2477 rights of way,
unless expressly authorized by subsequent Act of Congress. This
language has been interpreted by the Government Accountability
Office to be permanent law. Do you agree with that?
Mr. Bernhardt. That is the GAO's interpretation, Senator.
Senator Bingaman. But is that your interpretation?
Mr Bernhardt. I haven't opined or researched the question.
But, I'd be happy to do that and get back to you on it.
Senator Bingaman. Okay. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator. First of all, nominees I
want to apologize for not being here at the offset. The Budget
Committee is also meeting, and I had to be there for an
amendment regarding ANWR. And it's pretty hard to be both
places. So, I couldn't quite get them to accommodate to this
hearing. So, I thank Senator Allen, and thank you, and in
particular Senator Bingaman.
Let me say to all of you, first I am very impressed with
your statements, your background, and most of all your genuine
enthusiasm for wanting to do a job. And I can't help but say
that the recruitment in getting you to take this job has been
marvelous. I never expected that Clay Sell to be so effective
in getting such wonderful people to be helpful. I think the
fact that we have a great Secretary, and a great--Clay Sell as
his assistant probably has something to do with it. I gather
that--leaving you aside for a minute Mr. Interior, I gather
that there's great enthusiasm on the part of the three of you
to get on with seeing what we can do with the energy dilemma of
our country.
I'm going to start with you, Dr. Orbach. You have a job
that, a few years ago was kind of a mild, little job over
there. It seems now that it's growing. And I want to make sure
that you feel that you have sufficient professional support to
carry out the rather broad new science initiative activities
that you are going to undertake. Do you know of an answer to
that question yet, or will you have to be telling us in the--
down the line how you feel about it?
Dr. Orbach. Mr. Chairman, first of all I have to thank you
for your leadership that created this opportunity. I have
enjoyed my relationship with Secretary Bodman, and Deputy
Secretary Sell enormously. And I feel I have their full backing
for the responsibilities that are contained in the Energy
Policy Act. So, I think I can say that I'm looking forward. It
is a wonderful opportunity. And I believe I have their full
support to carry out this mission.
The Chairman. I'm sorry, please proceed. Would you repeat
what you just said.
Dr. Orbach. Yes, certainly. I said, I believe I have their
full support to carry out this mission.
The Chairman. I did want to say, you kind of particularly
thanked me regarding the office. I wanted to make it clear in
the record that it was Senator Bingaman's idea that you become
an Undersecretary in that job. And I think that was a good
decision. Not that titles make a difference, but it is a very
important position.
I want to ask the second question, it has to do with the
Science Education Enhancement Fund. The Energy Policy Act
created this Science Education Enhancement Fund. I'm not sure
you're even aware of that, are you?
Dr. Orbach. Yes, I am.
The Chairman. All right. It consists of three tenths of a
percent set aside, made available for research, development and
demonstration. We understand that in fiscal year 2006, these
funds are remaining within each office, rather than being
combined into a comprehensive fund. I'm concerned, and I don't
know what your feelings are, that if you fragment it that way
it probably will not achieve the benefits that it might if it
were put together. And then determine where it should go. Would
you follow the intent of that, and how were you going to
integrate--how you were going to implement that?
Dr. Orbach. Well, Mr. Chairman we are currently in the
process of doing a cross cut across both the Department, and
also the laboratories in their educational programs. And one of
the duties that the Under Secretary for Science will have, is
precisely that coordination. And so, if I'm confirmed I will do
as you suggest. Namely to coordinate the education programs
within the Department of Energy.
The Chairman. I have some additional questions, including a
couple on the Genome Program, which you have. Which people
don't even know are in your Department. But, it's a very big
program, and I want to ask something specific. But, I'll do
that for the record.
Dr. Orbach. Thank you.
The Chairman. Let me move over a minute now to Mr. Karsner.
First of all let me thank you for your opening statement. I
really appreciate the depth of your expression of commitment
and why you took this job. And I truly hope that bureaucratic
difficulties you run into, which will be significant. Not
because they're of your making or Secretary Sell's making,
they're just there. But I hope you will bring to that the ideas
you expressed here today. And that was to cut through that and
get some things done.
Is it your opinion that as we look at America's continued
dependance, that efficiency and conversation are as important
as production? They are pillars, co-pillars, in terms of us
reducing our dependance?
Mr. Karsner. Thank you for the compliment, first of all,
Mr. Chairman.
The Chairman. You're welcome.
Dr. Karsner. In balancing efficiency with production, I
think it's easy to say it is as important. In fact, I think
there's a very strong argument to say it's more important in
that it may be easier to achieve efficiency gains in the near
term. And should be at least as much a priority as new means of
production within--when balancing against renewable energy.
The Chairman. And that's what you will seek--that's the
impetus which will be at your back, pushing you as you try to
get this done. That it is that important, is that correct?
Dr. Karsner. That is absolutely correct, sir.
The Chairman. Again, we have some specifics we'll ask you
with reference to the various laws you'll implement, but there
are only a few. And I'll give them to you. Answer them quickly,
so we can confirm you as soon as possible--report you out as
soon as possible.
Let me then move now to you, Mr. Spurgeon. Again, I want to
use the same approach. I'm very--somewhat almost amazed that
you will take this job, and I'm pleased. I heard you talk about
your history way back--Joint Atomic Energy Commission, and I
was wondering how old you were when you first got involved in
nuclear activities?
Mr. Spurgeon. Well, that was 1969, so I would have been 26
years old. In a civilian capacity, I was involved actually a
little before that in a military capacity.
The Chairman. I told Senator Bingaman you looked so young,
you must have been a teenager when you got involved in it. I
was off by 10 years.
Mr. Spurgeon. Well thank you, sir.
The Chairman. Could I just say to you that while everybody
is saying there seems to be a renaissance occurring in nuclear
power--civilian nuclear power. And I'm very proud, I've have a
little bit to do with that. I think the role you are taking
will determine whether it works or not. There is no question
that what happens to the waste, what our plan for that I should
say is. Can we get a plan in place that's creditable even if it
takes an awful long time to implement? Is absolutely
imperative. The longer it takes, the longer that renaissance--
or the closer that renaissance will come to wilting in my
opinion. So, I hope you know you took a big job on.
Also, I would suggest to you that the President's program
for recycling, international program, requires real
coordination. Not only here in America, but in the world. And
I'm sure the Secretary's fully aware of it, and I'm sure you
are. Can I ask you, are you a--have you studied and looked at
the approach that is being recommended for recycling, with the
new technology that will minimize proliferation of plutonium?
Do you follow it, and do you advocate it, and do you think it
will work?
Mr. Spurgeon. Well, I have not seen the details of the
program from a Department of Energy standpoint. I've seen
what's been put out in the public record. The testimony that's
been given concerning it. And the material that's published on
the Department of Energy website. So, I have a general
familiarity with it. Some of the original work in these
alternative processing technologies, were actually initiated by
my group back in 1977. So, for me it's a little bit of a time
warp. I'm going back and looking at some of the fruition of
some of the things that were begun back then to find ways to
process material without separating out the plutonium. So, do I
support it? Absolutely. Do I think it's a great initiative?
Absolutely. Is there a whole lot of heavy lifting to do?
Absolutely.
The Chairman. Mr. Solicitor let me just ask, or tell you
that you made a comment about the internet. And obviously the
problem goes well beyond this hearing. But, might I ask is
there anything that we can do that might alleviate this, so
that I know you're working at trying to get it worked out with
the court. But that seems to leave you in a terrific impediment
for a long time now. Is there anything you have to recommend or
suggest to us that we might do to be helpful?
Mr. Bernhardt. Well Senator, the impact of the internet
shutdown is tremendous. And we, you know, are going through the
litigation pathway and that's going to take a long time. It's
already taken 4 years. Now Senators Dorgan and McCain are
working on some legislation regarding the underlying issue of
Cobell v. Norton. But, I'd be happy to work with your staff and
see if there are other options out there. I think awareness is
the first step. And then we need to look at whether it's
something that Congress ought to examine.
The Chairman. Well, not knowing any more than I know about
it, just being confronted with the statement you have made
here. And what that must mean, permits me to--causes me to say
I'm interested in your beginning to exchange with our staff
what this is all about. I mean a judge has plenty of power, and
he can do what he can within a case. But it would seem to me
that we have to look at the problem that is being generated
well beyond the issues before that court. And that's just a
Senator up here not knowing what judge is. Maybe he'll come
down here and get me, who knows. I would relish talking with
him in any event. But, we wouldn't mind an exchange with our
staff, if the Secretary thinks that's legitimate. We'd like
that to happen.
Mr. Bernhardt. I think she would appreciate that
opportunity greatly, Senator. And I know we would as well.
The Chairman. And my questions that I'm submitting to you
have to do with some Indian water rights issues. Some issues
with reference to reimbursement of Indian legal fees. And also
some issues with reference to settlement of Indian water
claims. You'll have to answer those before you get confirmed. I
don't suggest how you answer them, but answer them nonetheless.
If Senators have any additional questions they need to
submit them for the record by 5 o'clock tonight. And how long
do we want to give them to answer their questions? All right.
If you want--if you want us to send you out of here next
Wednesday to the Senate floor, you have to answer these
questions by Monday night. Okay? If you'll do that we'll
appreciate it. And we thank you very much, and we stand in
adjournment.
[Whereupon, at 11 a.m., the hearing was adjourned]
[The following letter was received for the record:]
American Chemical Society,
Washington, DC, March 8, 2006.
Hon. Pete V. Domenici,
Chairman, Energy and Natural Resources Committee, U.S. Senate,
Washington, DC.
Hon. Jeff Bingaman,
Ranking Member, Energy and Natural Resources Committee, U.S. Senate,
Washington, DC.
Dear Chairman Domenici and Ranking Member Bingaman: On behalf of
the 159,000 members of the American Chemical Society, it is with great
pleasure I write to endorse President George W. Bush's Nomination of
Dr. Raymond L. Orbach to be Undersecretary of Science at the Department
of Energy.
For three years, Dr. Orbach served with distinction as Director of
the Department of Energy's Office of Science. Dr. Orbach managed an
approximately $3.5 billion budget, including 10 non-weapon
laboratories, representing the finest suite of scientific facilities
and instruments in the world, used annually by over 19,000 researchers.
During his tenure, he oversaw a plan for future scientific facilities
development and a strategic plan. Furthermore, in 2004, in conjunction
with the Secretary of Energy, Dr. Orbach initiated a restructuring of
the Office of Science to improve both its efficiency in human resource
management and improve communications and scientific discovery.
Prior to joining the Office of Science, Dr. Orbach was Chancellor
of the University Of California, Riverside. Under his leadership, the
university doubled in size and achieved national and international
accolades, leading the University of California system in educational
opportunities. Dr. Orbach remained an active teacher while at UC-
Riverside, working with postdoctoral, graduate, and undergraduate
students at his laboratory as Distinguished Professor of Physics. He
has participated in over 240 published scientific articles and received
numerous honors around the world, including fellowships from the Alfred
P. Sloan Foundation, National Science Foundation, and John Simon
Guggenheim Memorial Foundation.
As a major part of the President's American Competitiveness
Initiative, the Office of Science will play a central role in ensuring
the continued preeminence of America's scientific and technological
community in the global marketplace. ACS feels Dr. Orbach's appointment
to the position of Undersecretary of Science is crucial to the success
of ACI and the future growth of the Office of Science, and we
enthusiastically endorse his confirmation without delay.
Sincerely,
E. Ann Nalley,
President.
APPENDIX
Responses to Additional Questions
----------
Responses of Dr. Orbach to Questions From Senator Domenici
pace-energy initiative
Question 1. We just reported yesterday out of Committee the PACE-
Energy Act that creates many new authorities for the Department of
Energy to enhance science and math programs. Some of these initiatives
are changes to existing programs, and most of the implementation of the
PACE-Energy Act will be under your purview as Undersecretary of
Science.
Do you think that you currently have sufficient professional and
support staff to implement this Act, and if not, what is your
recommendation for addressing that issue?
Answer. If I am confirmed as Undersecretary for Science, I would
undertake an assessment of the overall personnel needs for the Office
of the Undersecretary. I would also have my staff assess what personnel
would be required to comply with the provisions of PACE, if passed, as
well as the provisions of any other laws that pertain to my potential
duties as Undersecretary of Science. All of these assessments will be
performed under my direction and in consultation with the Secretary and
the Deputy Secretary of Energy, who have indicated their full support.
science education enhancement fund
Question 1. The Energy Policy Act of 2005 created the Science
Education Enhancement Fund, consisting of a 0.3 percent set-aside of
the amount made available to the Department for research, development,
and demonstration. We understand that for fiscal year 2006 these funds
are remaining within each office, rather than being combined into a
comprehensive fund. I am concerned that this fragmented approach will
not produce the greatest benefits to science education programs.
Will you follow the intent of this provision and create a
comprehensive fund for science education?
Answer. We are preparing a crosscut of our education efforts from
both headquarters and through our national laboratories. Our sense
today is that we are already in line with, or exceed, the spending
amounts of the bill. If confirmed as Under Secretary, I would perform
an assessment of the needs of the DOE education effort and work to
ensure the Department's approach to this critical problem is
coordinated and comprehensive.
Question 2. How will you integrate this with the authorizations and
directives in the PACE-Energy Act?
Answer. If confirmed as Under Secretary, I would assess the
situation with respect to the authorizations and directives in the
PACE-Energy Act, should it pass, and I would ensure that the
Department's program is well coordinated and effective.
department's twenty year facility priorities
Question 1. In 2003, during your tenure as Director, the Office of
Science released a plan entitled, ``Facilities for the Future of
Science: A Twenty Year Outlook.'' The Plan includes a priority list of
28 major new facilities and facility upgrades.
Have the Department's priorities among these major proposed
facilities shifted since the release of the report? If so, how have
they changed?
Answer. The Department set its priorities for scientific facilities
in the near-, mid- and long-term based on the importance of the science
they could perform and their readiness for construction. These were
laid out in Facilities for the Future, A Twenty-year Outlook. In that
document we stated that, ``The Twenty Year Outlook represents a
snapshot--the DOE Office of Science's best guess today at how the
future of science and the need for scientific facilities will unfold
over the next two decades. We know, however, that science changes.
Discoveries will alter the course of research and so the facilities
needed in the future. For this reason, the Outlook should be assessed
periodically in light of the evolving state of science and
technology.'' Reviews of the Department's priorities are ongoing and
have resulted, for example, in the movement of the upgrade of the
National Synchrotron Light Source (NSLS II) from the far-term to the
near-term, based on our new assessment of its readiness for
construction.
nas report on genomics facilities
Question 1. A report released last month by the National Academy of
Sciences recommends significant changes to the Department's planned
GTL:Genomics facilities. Since a solicitation for the first of these
facilities is already published, I am concerned that a major
reorganization of this effort will delay construction of the first
facility by a year or more.
Has the Department decided whether to alter its plans for the
GTL:Genomics facilities based on the Academy report's recommendations?
Answer. The Office of Science is carefully reviewing the
recommendations of a major report on its Genomics: GTL program issued
in late February by a distinguished committee empanelled by the
National Academies of Science. The report provided a strong overall
endorsement of the Genomics: GTL program--and its research mission of
systems biology for bioenergy, carbon sequestration, and environmental
remediation--and argued the program should have a ``high priority''
both for DOE and the nation. At the same time, the report took issue
with the GTL program's current plans for four GTL facilities, to be
built in sequence, for (1) protein production, (2) molecular imaging,
(3) proteome analysis, and (4) systems biology. The report argued
instead for a small number of ``vertically integrated'' facilities each
of which would combine in a single ``institute'' all the functions
anticipated for GTL facilities 1 through 4 under the program's current
plan. They proposed each institute be focused on a particular
application (e.g., bioenergy, carbon sequestration, environmental
remediation). The report argued that such an institutional arrangement
would produce more mission-focused and compelling science and was more
likely to yield results relevant to the Department's energy mission at
an earlier date. While a request for proposals has already been issued
on grants.gov for GTL Facility 1 under the current plan, the Office has
found the NAS committee's recommendations sufficiently compelling from
the standpoint of scientific methodology, science management, and
mission focus that it is engaged in a zero-based reevaluation of the
GTL program's current facilities approach and its request for proposals
for GTL Facility 1, with a decision on the path forward expected soon.
Question 2. If so, do you believe the current solicitation for the
first of these facilities can accommodate the changes you may make to
the program?
Answer. The solicitation closes April 11. Once we have completed
our review, we will, if necessary, make any needed changes to the
solicitation and notify possible interested parties as well as post any
new guidance or due dates.
Responses of Dr. Orbach to Questions From Senator Murkowski
fuel cells for rural applications
Question 1. The Department in the past has been supporting research
into the possibility of fuel cells being designed for use in rural,
cold-climate areas like Alaska to convert human waste and garbage
(methane) into electrical power for home use. What is your level of
interest in continuing or expanding such research, given the
Department's budgetary limitations? Alaska's rural villages face
extremely high diesel-generated electricity costs--currently nearly $1
per kilowatt in some areas--and face real waste disposal problems. Such
research offered the promise of solving both issues if cost for small-
scale converter units could be reduced. Any thought on this scientific
merit of this type of research being funded by the Department in the
future?
Answer. The primary support for fuel cell research in the
Department is within the Office of Energy Efficiency and Renewable
Energy (EERE). Current research and development (R&D) activities are
aimed at reducing fuel cell system cost and size and improving the
performance and durability of fuel cell systems for transportation,
small stationary, and portable applications. Most of this research
focuses on advancing polymer electrolyte membrane (PEM) fuel cell
systems, with emphasis in areas such as fuel processing (reforming)
technologies, improved catalyst and membrane designs, and improved air,
thermal, and water management systems. The President's Hydrogen Fuel
Initiative has emphasized fuel cell systems for transportation and both
EERE and the Office of Science are engaged in this work; however, the
Department is well aware of the importance of stationary fuel cells for
rural areas, especially areas that are not served by the grid, which
tend also to experience extreme climates.
If confirmed, I will work closely with the Office of Energy
Efficiency and Renewable Energy on all of its fuel cell research, and
would be happy to discuss this with you after I have reviewed the
status of stationary fuel cells.
dc current technology for rural communities
Question 2. Concerning electricity, in rural Alaska, it is
extremely expensive to run AC power to small, geographically isolated
communities. There is research underway to modernize power converters
to use less capital expensive direct current to get power to such
villages. Would you have any willingness to consider making Department
resources available for research or to perfect or test new DC current
technology to make it more available for rural communities?
Answer. The primary support for distributed energy and the electric
grid is within the Office of Energy Efficiency and Renewable Energy
(EERE) and the Office of Electricity Delivery and Energy Reliability
(OE). The ``DC Microgrids'' activity supports work to consider powering
neighborhoods entirely on direct current (DC). A high-voltage DC line
would interface with the rest of the grid through high-tech DC-to-AC
converters. DC systems are less vulnerable to power quality issues,
they also allow distributed generation equipment to be connected
directly with the microgrid without using DC-to-AC converters at the
power source. The converter technology needed to interface these DC
microgrids with the AC power grid should become cost-effective soon. A
future possibility is to use a loop of high-temperature superconducting
wire to carry the DC current. This power loop would isolate customers
from electrical system disturbances and provide superior power quality.
The Office of Electricity Delivery and Energy Reliability and the
Office of Science are supporting activities in the area of
superconductivity.
Responses of Dr. Orbach to Questions From Senator Bingaman
pace bill
Question 1. The Committee approved S. 2197, the Protecting
America's Competitive Edge Act-Energy, on March 8. If confirmed, will
you and your staff be willing to provide the Committee with timely and
open technical advice on questions on the bill that we might have as it
moves through the legislative process?
Answer. If confirmed as Undersecretary for Science, I commit to
answering the Committee's requests for technical information on the
PACE-Energy Bill on a timely basis, to the best of my ability.
Question 2. The PACE bill contains a section authorizing a graduate
fellowship program that will eventually fund a pool of up to 1,000
Ph.D. students in the mission areas of the Department. If fully funded,
this program will affect up to 20 percent of the Ph.D.s awarded in the
physical sciences. Do you believe that the Department can effectively
administer such a program?
Answer. The Administration is the process of evaluating the
provisions in S. 2197, the Protecting America's Competitive Edge
through Energy Act of 2006 (PACE Act). The Office of Science and other
DOE offices have a long history in grants management, administering
fellowship programs, and peer review of such programs. Our national
laboratories also have extensive related experience and currently host
thousands of graduate students doing research at their facilities
through both grants and contracts with colleges and universities and
through direct scholarship programs of their own.
translational science
Question 3. How can the applied energy programs benefit more
directly from the long-term and high-risk research carried out in the
Office of Science? What do you mean by ``translational'' science?
Answer. In my written statement for this hearing, I referred to
``transformational'' science, which produces discoveries that
fundamentally change the way we think and creates totally revolutionary
technologies that leapfrog existing ways of doing business.
``Translational'' science is an overarching term encompassing the steps
that must be taken to move or ``translate'' scientific knowledge from
the laboratory bench to its ultimate applications. It is very important
to have strong interactions between the technology offices and the
Office of Science (SC) in planning major research focus areas. These
activities should engage all levels of management and involve the
scientific and technology communities. Major new focus areas for the
Department include nanotechnology, the hydrogen economy, solar energy
utilization, and advanced nuclear energy systems. In each case, SC and
the DOE technology offices have collaborated on planning and execution
to ensure that there is excellent and continuous information flow
between basic and applied research. Goals are to establish programs
within SC that not only provide the scientific foundations for new and
improved technologies but also look to the future to transformational
science breakthroughs.
sc and nnsa laboratories
Question 4. A key mission of. the NNSA laboratories is to ensure
that our nuclear stockpile is safe and reliable. The NNSA relies on the
laboratories' science and engineering campaigns to push the leading
edge of weapons physics. How will you ensure that the NNSA laboratories
take part in the Office of Science research programs so that their
science and engineering campaigns remain at the cutting edge?
Answer. Although the Office of Science funding to the NNSA
laboratories is a small part of their overall budgets, it is an
extremely important part. Funding comes from many of the programs in
the Office of Science and helps to support world-class work in
condensed matter and materials sciences, chemistry, heavy-element
physics and chemistry, biology, modeling and computing, and much more.
Several of the Office of Science user facilities reside at NNSA
laboratories including the new Center for Integrated Nanotechnologies,
which is due to start initial operations this year. Siting Office of
Science research at the NNSA laboratories benefits both organizations.
It provides the opportunity for the Office of Science to take advantage
of the unique facilities and infrastructure at the NNSA laboratories
and it provides the opportunity for the NNSA laboratories to attract
and retain staff in some of the Nation's most outstanding basic
research programs. This synergy ensures that NNSA laboratories will
continue to play an important role in Office of Science research
programs.
next generation science facilities
Question 5. I am concerned about our national leadership in
building the next generation of high energy physics machines such as
the International Linear Collider or Rare Isotope Accelerator. Knowing
that such efforts must be international in scope due to costs, what
will you do to ensure the United States builds the next generation of
these machines?
Answer. In our planning in the Office of Science, reflected in the
President's FY 2007 Budget Request and in our five-year budget recently
submitted to Congress, I have given high priority to maintaining U.S.
leadership in high energy physics and nuclear physics. I have a strong
personal commitment to this goal.
In the FY 2007 Budget Request, funds for R&D for the International
Linear Collider (ILC) double over the FY 2006 appropriation to $60
million. In our five-year budget, the core budget of our High Energy
Physics (HEP) program rises to accommodate increased R&D spending for
ILC in the out-years. In 2005, the Department of Energy formally
expressed interest in the possibility of hosting the ILC at Fermilab.
We have made major strides in achieving new levels of international
cooperation on science--including substantial cost-sharing--during our
multilateral negotiations on the ITER project, and we are ready to
apply these well-learned lessons to our efforts on the ILC. I am also
conscious that a project of the ILC's magnitude and costs will require
strong support from Congress if it is to be realized, and there are a
number of major milestones in the administration's own decision-making
process that must be passed before we can move beyond the R&D stage. I
look forward to working with the Chairman and with Congress to ensure
that the United States takes the steps necessary to maintain leadership
in this critical scientific field.
Even with the doubling of funding for basic research in the
physical sciences over the next ten years announced by the President in
his State of the Union address, we are compelled to balance our
commitments to specific programs in light of the Nation's priorities.
The Rare Isotope Accelerator (RIA) as originally envisioned would
be an extremely capable facility but with an estimated cost of $1.1
billion, and it would not be a truly international project like the
ILC. I believe we can maintain leadership in nuclear physics via an
alternate path with a somewhat scaled-down, but still world-class, rare
isotope facility.
We are exploring the possibility of starting design and
construction on a more limited reaccelerated exotic beam facility
around the end of this decade. In the near-term, funding would be
provided to develop research capabilities at both domestic and foreign
facilities so that the U.S. research community is fully engaged and in
the forefront of nuclear structure and astrophysics studies and
prepared to fully utilize the U.S. exotic beam facility when it would
come into operation. Moving forward, DOE will solicit guidance from the
National Academy, the Nuclear Science Advisory Committee, and the
scientific community. We believe this path forward is the optimal one,
given the costs and the Nation's priorities.
laboratory directed research and development
Question 6. How will you manage the Laboratory Directed Research
and Development Program and ensure that the Congress will support this
important program in the long-term?
Answer. The Laboratory Directed Research and Development (LDRD)
program will continue to be effectively managed by the Department
through LDRD policies and procedures that provide a strong oversight
role for the Department while supporting the laboratories' needs to
pursue innovative projects. The Department continually reviews its
policies and procedures to ensure they provide the necessary
requirements for effective DOE management and the framework to allow
for cutting-edge research and development at the laboratories. DOE also
monitors its policies and procedures to ensure compliance with any
Congressional direction related to the LDRD program. Some of the key
requirements of the current LDRD policies and procedures include: DOE
review and approval of an annual LDRD program plan and maximum LDRD
funding level for each laboratory; DOE concurrence on each proposed
LDRD project prior to work being started; and an annual LDRD report
provided by each laboratory.
While Congress had several concerns in the past about different
aspects of the LDRD program, it has also recognized the value of the
LDRD program and the benefits of the research to DOE and the Nation.
The Department is committed to work with Congress as new issues or
concerns arise regarding the LDRD program to ensure effective
stewardship of the taxpayers' dollars.
research and development portfolio
Question 7. Under Secretary Moniz oversaw the development of a
series of reports in 1999 laying out an integrated DOE research and
development portfolio. A similar report was called for in section 994
of the Energy Policy Act of 2005. While the new report is not due until
August 8, 2006, its preparation will require a significant effort,
comparable to that for the 1999 reports. If confirmed, will you take
the lead for this analysis and ensure it is carried out in a timely
manner?
Answer. If confirmed as Under Secretary I will co-lead this effort
with the Under Secretary for Energy and will ensure that the report is
delivered to Congress in a timely manner. The Department of Energy has
engaged in a very detailed planning and analysis process since the
passage of the Energy Policy Act to meet the requirements of section
994 and other key provisions of the Act. This process has four major
foci: a group of outside experts are reviewing the DOE R&D portfolio
using a structured process; an internal group of DOE analysts is
developing a methodology to assess the DOE R&D portfolio in an
integrated manner; the Department is preparing a new Strategic Plan for
public review in the Summer of 2006 that will emphasize the
interrelationships between DOE's basic and applied research programs;
and DOE's FY 2008 budget review process is being structured in a way to
incorporate the previously discussed three elements to ensure that the
goals and strategies of the Energy Policy Act, including section 994,
are implemented in a timely manner.
Response of Dr. Orbach to Question From Senator Akaka
science and math education
Question 1. I am pleased to see that in your testimony you have
indicated that one of the crucial roles for your position is to boost
science and math education. Given that we are losing our scientific and
technological advantages to India, China, and other countries, what
measures are you going to take to encourage our youth to enter the
fields of math and science?
Answer. If confirmed as Under Secretary, I would take this as a
significant mission of my office. The Office of Science's Workforce
Development for Teachers and Scientists program has developed a grade-
school to grad-school plan for support of career enhancements in
science and engineering. The first of these efforts are the Middle
School and High School Science Bowls. These events have about 17,000
students participating in various academic, scientific, and engineering
events and competitions that culminate in national events here in
Washington with participants from all around the nation. These events
are rewarding and exciting for the many students involved.
Our national laboratories have numerous programs to support
regional school science and math activities. Most of these activities
are organized out of the national laboratory education offices. As a
few examples, there are national laboratory workshops for science
teachers, very popular ``Science Saturday'' lectures for local high
school and middle school students, and an extensive array of mentor-
intensive research internships for high school through graduate school
students. The laboratories have also prepared some wonderful web-based
teaching materials for elementary and secondary school students and
teachers. The President's FY 2007 budget request triples the number of
teachers in this program to a total of 300.
Possibly the most effective approach we are using is to bring
teachers of science and math to our labs for extended summer research
experiences where the teachers are transformed from teachers of science
into ``teacher-scientists.'' These teachers through their connections
to and support from the national laboratory scientific communities
serve as both leaders in their schools for science and math and also as
inspirations to their students.
Response of Dr. Orbach to Question From Senator Cantwell
funding request for fy 2007 for the capability replacement laboratory
(physical sciences facility) for the pacific northwest national
laboratory (pnnl)
Question 1. Dr. Orbach, I understand that the Department of
Energy's FY07 budget has no funding in the Office of Science for
continued construction of the 300 Area replacement laboratories. I also
understand that the recent decision regarding the construction of the
replacement laboratories causes an impact on the clean up of the 300
Area. Could you please give me an explanation of why there was no
budget request in the Office of Science; and whether the impact of the
clean up of the 300 Area was taken into account when these budgets were
formulated?
Answer. In the Deputy Secretary's December 15, 2005, approval of
the preliminary baseline, the completion of PNNL's departure from the
300 Area was extended 15 months from October 2009 to March 2011. The
extension will not affect the overall completion for the 300 Area
cleanup scheduled for 2015 and greatly reduces the risk of interruption
of Office of Science, National Nuclear Security Administration (NNSA),
and Department of Homeland Security mission activities at PNNL.
As a result of the extension, major construction activities will
commence in FY 2008. For FY 2007, NNSA, under its Defense Nuclear Non-
Proliferation Research and Development program is requesting
Preliminary Engineering and Design funding of $3,700,000 and
construction funding of $4,220,000 for site preparation and long-lead
procurements.
Response of Dr. Orbach to Question From Senator Salazar
science and political pressures
Question 1. Director Orbach, I am impressed when a nominee to a
science-related position boasts strong research credentials. It takes a
scientist, I believe, to fully understand the importance of keeping
politics out of science. I think you will agree with me that our
researchers and scientists should not face repercussions when their
experiments yield results that are politically inconvenient, nor should
they be pressured to manipulate their results. Can I be assured that
you will not tolerate political manipulations of science in the fields
you oversee? What steps will you take and what policies will you
implement to guarantee that DOE's researchers and scientists are
insulated from political pressures?
Answer. The political leadership at the Department understands the
importance of maintaining the integrity of science. We depend upon
unvarnished research results to make critical decisions on which basic
research paths to pursue and to determine the pathway for more applied
research. I can assure the Congress that this tradition will be
maintained at the Department of Energy.
Responses of Dr. Orbach to Questions From Senator Wyden
doe role in renewable energy and other technology development
Question 1. Senator Gordon Smith and I are very interesting in
accelerating the growth of the ``Green Energy'' technology and service
businesses in Oregon. Do you have any perspectives on how we might
partner with DOE labs and programs, especially in the renewables and
materials research areas to make this happen?
Answer. The term ``green power'' or ``green energy'' generally
refers to electricity supplied in whole or in part from renewable
energy sources, such as wind and solar power, geothermal, hydropower,
and various forms of biomass. Increasingly, electricity customers are
being given electricity supply options, either as retail power markets
open to competition or when their regulated utilities develop green
pricing programs. About 50% of retail customers in the United States
now have an option of purchasing a green power product directly from
their electricity supplier. DOE's National Renewable Energy Laboratory
(NREL) operates and maintains the Green Power Network (GPN), which
provides news and information on green power markets and related
activities. The GPN maintains a website (http://www. eere.energy.gov/
greenpower/index.shtml) that provides up-to-date information on green
power providers, product offerings, consumer protection issues, and
policies affecting green power markets. It also includes a reference
library of relevant papers, articles, and reports. For more information
on partnering with DOE laboratories on green power, I would refer you
to DOE's Office of Energy Efficiency and Renewable Energy and to DOE's
National Renewable Energy Laboratory. Many of the Office of Science
laboratories perform work in materials sciences; however, the thrust of
the research is not as closely tied to green energy as is that of NREL.
Question 2. In a UCLA oral-history interview that you gave in 1998,
you said that you considered yourself a ``Roosevelt Democrat'' because
your parents got government jobs after the Depression. What do you see
as the role of the federal government in job creation today? Can you
cite any examples of DOE-funded technology development or technology
transfer projects that have spawned new businesses and created jobs?
Answer. The Department has a long history of significant
contributions that have contributed to the Nation's competitiveness
while spawning new industries and creating jobs for Americans. I am
proud of that history and look forward to creating the tools and
facilities and funding the research that not only will spur our
economic development, but advance U.S. energy and national security. In
the future, DOE research holds the potential to create exciting new
industries in genomics, advanced computing, advanced materials, fusion,
nuclear energy, and a myriad of other exciting possibilities.
Office of Science research investments have led to such innovations
as the Nobel Prize-winning discovery of new forms of carbon, non-
invasive detection of cancers and other diseases, improved computer
models for understanding global climate change, and new insights on the
fundamental nature of matter and energy. I would like to submit more
detailed information for the record.
[The information follows:]
DOE Role in Renewable Energy and Other Technology Development
Some examples of DOE advances include:
Pioneering the Human Genome Project
The Office of Science initiated the Human Genome Project in 1986.
It also developed DNA sequencing and computational technologies
that made possible the unraveling of the human genetic code and
published a complete draft of the DNA sequence of the human genome in
2001.
This historic undertaking to discover the genetic blueprint of
human beings will enable scientists to identify more genes responsible
for diseases and develop new diagnostic and treatment possibilities.
Now the Office of Science is harnessing the biotechnology
revolution to develop clean energy and repair damage to our environment
through the Genomes to Life Initiative.
Enhancing National Security
The Office of Science has funded research leading to technologies
that make our lives safer in many ways. These include:
<bullet> neutron detectors that can identify concealed nuclear
weapons and land mines and are used for arms control and
nonproliferation verification;
<bullet> new holographic computerized imaging technology that
identifies hidden weapons, even non-metallic ones, through the
clothing of airline passengers;
<bullet> smoke detectors that sense smoke by detecting changes in the
ionization of the air; and
<bullet> advanced sensors that can detect explosives, narcotics, and
chemical and biological agents--and many other innovations that
will contribute to homeland security.
Improving Energy Security
The Office of Science has contributed to improved energy savings
through several discoveries, including:
<bullet> lithium batteries that offer high-energy storage capacity
and an environmentally benign alternative to the harmful lead
used in conventional batteries;
<bullet> new and improved metals, plastics and other composite
materials used in military hardware and motor vehicles; and
<bullet> superconducting wires that can lead to more efficient types
of power generation, transmission, and electrical devices--and
thereby save energy and reduce emissions.
<bullet> In addition, the Office of Science's research into fusion
energy is poised to pay big dividends. Scientists are figuring
out the way the sun and stars produce their energy--and that
can have broad applications for mankind, since fusion power
holds important promise as a clean, inexhaustible energy
source.
Advancing Nuclear Medicine
The Office of Science and its predecessor agencies have been
pioneering the field of nuclear medicine since the 1940's.
Researchers probably never anticipated when they started smashing
atoms and protons in accelerators that their science their very basic
research on matter--would eventually give us remarkable life-saving
technology. Yet thanks to this rich legacy of research, doctors today
rely on nuclear medicine to diagnose, evaluate and manage many types of
disease.
Virtually all hospitals, as well as many clinics and private
doctors' offices, perform nuclear medicine tests and scans. In fact,
about 13 million nuclear medicine procedures are performed each year
(or 35,000 each day) on patients here in the U.S.
Nuclear medicine is used to help patients with heart disease,
cancer, lung disease, abdominal pain and gastrointestinal bleeding,
thyroid disorders, epilepsy, infections and dementia. It also helps
patients at risk of or recovering from strokes and at risk for stress
fractures.
One of every three hospital patients in the U.S. benefits from
nuclear medicine. About 10,000 cancer patients are treated every day
with electron beams from linear accelerators.
Detecting and Diagnosing Medical Conditions
Many of medicine's most powerful diagnostic tools incorporate
technology that physicists originally developed to explore the
fundamental nature of matter. Magnetic resonance imaging (MRI), for
example, is based on the principles of nuclear magnetic resonance, a
technique used by researchers to obtain chemical and physical
information about molecules.
The Office of Science is responsible for key advances in MRI,
positron emission tomography (PET), and single-photon emission computed
tomography (SPECT), which permit noninvasive and improved detection and
diagnosis of medical conditions.
With PET and SPECT imaging, scientists now are making vital
contributions to medical science's understanding of the molecular
mechanisms of disease and the search for new treatments. Their current
medical research priorities include drug addiction and substance abuse,
aging and degenerative diseases, and the biology of tumors that may
lead to more effective cancer therapies.
Treating Blindness--and Other Neurological Disorders
The Office of Science is now sponsoring research and development of
an artificial retina, which can restore sight in blind patients with
macular degeneration, retinitis pigmentosa, and other eye diseases. The
research is being conducted at the Doheny Eye Institute, University of
Southern California, in collaboration with North Carolina State
University, Second Sight LLC, and five DOE national labs--Argonne,
Lawrence Livermore, Los Alamos, Oak Ridge, and Sandia.
The artificial retina is a device that captures visual signals and
sends them to the brain in the form of electrical impulses. The device
is a miniature disc that contains an array of electrodes that can be
implanted in the back of the eye to replace a damaged retina.
Visual signals are captured by a small video camera in the
eyeglasses of the blind person and processed through a microcomputer
worn on a belt. The signals are transmitted to the electrode array in
the eye. The array stimulates optical nerves, which then carry a signal
to the brain.
The technology that is being developed in the artificial retina
project may be applied not only to the treatment of blindness but in
the general field of neural prostheses. It may be adapted to help
persons with spinal cord injuries, Parkinson's disease, deafness, and
almost any other neurological disorder.
Expanding the Frontiers of Discovery
The Office of Science funded the research that led to one of the
great intellectual achievements of the 20th century--and 13 Nobel
Prizes: the discovery of all but one (the electron) of the most
fundamental constituents of matter, namely quarks and leptons, which
confirmed the Standard Model--physicists' current theory of matter and
the forces of nature.
The Office of Science supported the 1996 Nobel Prize-winning
discovery of a new form of carbon, known as ``Bucky Ball,'' which is
spurring a revolution in carbon chemistry and may lead to a profusion
of new materials, polymers, catalysts, and drug delivery systems.
Now the Office of Science is underwriting research to solve the
mystery of ``dark energy,'' perhaps responsible for the remarkable
recent finding that the expansion of the universe is accelerating,
rather than slowing due to gravity as expected.
sound science
Question 1. What are your views on the science of global climate
change? Do you side with the National Academy of Sciences in their
consensus-based report that climate change is a problem in the United
States or with the Administration's party line that we need more
research in this area before taking action?
Answer. The Administration and I consider global climate change a
serious scientific and energy technology challenge. We are investing in
the science to better understand both natural and human-induced
climatic change and variation. Furthermore, we are investing in
research to develop new energy technologies that will increase our
energy security and reduce impacts on the Earth's environment. This
includes research investments in fusion and conventional nuclear
energy, ethanol and hydrogen energy, solar energy, and technologies for
carbon sequestration.
______
Responses of Mr. Karsner to Questions From Senator Domenici
energy independence
Question 1. What do you believe are the most important things we
can do to move toward a significant lessening of our dependence on
foreign sources of energy? Please be specific.
Answer. The most important things we can do to move toward
significantly lessening of our dependence on foreign sources of energy
include: 1) Enhancing the strategic policy environment with sufficient
longevity, consistency, and visibility to regularly enable and further
attract private sector capital for alternative fuels and technologies
that can be sustained, predictable, and quantifiable; 2) Strengthening
focus on private sector planning and deployment of available fuel
alternatives to petroleum (and vehicles that can readily accept such
fuels) by obtaining from market participants quantifiable escalating
ramp rates for a nationwide plan of deployment. 3) Maximizing the
leveraging role of the Federal procurement policy, addressing barriers
to long-term purchase agreements and ensure that the agencies across
the government are informed, unified, and as positive as possible.
Because the infrastructure and means of production, distribution,
and delivery of alternative fuels and the vehicles that use them
already exist, require relatively minor modifications, are reasonably
economic (despite the present subscale business model), and will only
improve with policies enabling durable market penetration and growth,
it is of primary importance to objectively quantify the rate and costs
of both planned and potential implementation. We must transform our
transportation fleets to more efficient market compatible designs that
reduce demand for petroleum, while moving rapidly towards multi-fuel
vehicles, plug-in hybrids, and fuel diversification, as the President's
Advanced Energy Initiative has called for.
building standards
Question 2. If confirmed, will you take the actions necessary to
assure that this section is carried out?
Answer. If confirmed, I intend to take the actions necessary within
my authority to carry out this section of the Energy Policy Act of 2005
and other sections for which this office would have responsibility.
energy savings performance contracts
Question 3. Please tell the Committee what you believe would be an
appropriate timetable for implementing the ESPC program and how the
Committee might assist you in removing any barriers to implementation
perceived by the Department.
Answer. The ESPC program is important for rapid, durable, and
significant gains in our Nation's energy efficiency. If confirmed, I
would look forward to working with you to see that barriers to
implementation are addressed and removed at the earliest date
practicable, so that these valuable gains can be harvested.
Response of Mr. Karsner to Question From Senator Craig
Question 1. Within two weeks of your confirmation, would you be
willing to discuss with the Committee a timeline for implementing loan
guarantee provisions for renewable energy technology authorized in the
Energy Policy Act of 2005?
Answer. If confirmed, I would be willing and available to discuss
at any time the loan guarantee provisions for renewable energy
technology. However, I will need to acquaint myself with the
Department's institutional perspective on specific timelines for
implementation of this provision of the Energy Policy Act. Should I be
confirmed and establish myself within the Department, I will endeavor
to relate to Congress the best information available to me as to
specific timelines at the earliest possible date.
Responses of Mr. Karsner to Questions From Senator Murkowski
Question 1. Mr. Karsner: What are your feelings about finding money
in DOE's budget in the coming year to promote geothermal energy? Just
in my state of Alaska there are several geothermal projects that may
well make economic sense, but there is still insufficient resource data
to pinpoint the resource--DOE never fully finishing its geothermal site
assessments in Alaska that you have finished for most of the rest of
the country. With the Department's budget calling for ending all
funding for geothermal, what is your position on the importance of
geothermal energy and will you work with Congress to fund promising
geothermal projects, if money would be restored to the budget to
further geothermal projects?
Answer. I do not have sufficient knowledge to comment on the
internal budgeting processes of DOE at this time, but if confirmed, I
would be pleased to work with Congress in general and more fully review
this issue with your office in particular. Geothermal energy is an
important source of clean, reliable, domestic production of electricity
and like other sources of renewable generation bearing these
characteristics it should be maximized within the national portfolio to
the extent it is technologically feasible and economically viable.
Question 2. In last year's Energy Policy Act, all forms of ocean
energy (tidal, current, wave and thermal) were authorized for grant
assistance and authorized for federal purchase credits. I can find no
indication in the Department's budget of interest in promoting research
to further ocean energy's potential? What is your opinion of the future
of ocean energy and will you as the assistance secretary support ocean
energy research in the future?
Answer. My personal opinion of ocean and tidal energy is based upon
the limited exposure I have had to these technologies in the private
sector. I believe enormous potential exists for the manifestation of
ocean and tidal energy in greater scale, dependent upon siting
conditions and project design parameters. Projects are currently
proceeding in Europe and the Far East that may provide useful, market-
based benchmarks as to the magnitude of the present opportunity. If
confirmed, I will endeavor to understand the Administration's position
on Federal funding and support of ocean energy research and the present
state of the industry's evolution and timeline toward economic
viability, and provide an informed response.
Question 3. On the subject of wind, the President's proposed '07
budget includes a small increase in federal funding to support wind
turbine research and grants. The Department used to have a program
where you would make grants available for the construction of working
units to test the efficiency of new wind turbine designs. While wind is
becoming a more mature technology, still as Congress considers
withdrawing wind from eligibility for the production tax credit, it
will be vital for turbines to become even more efficient so they can be
cost competitive with other electrical generation technology. Would you
support restitution of a modest technology development grant program
for wind devices?
Answer. In general, support for technology development grants for
wind devices depends upon many specific factors relating to the
particular device in question, including (amongst others): the specific
intended use of the device, the actual and projected market demand or
need of such a device, the net economic benefit of such a device over
comparable devices, and above all, the significance of the projected
benefit to the public for use of public funds. If confirmed, I would
consider programs in this context.
Question 4. Concerning small-scale hydroelectric development, there
are many creeks in this nation and lakes that could fuel small hydro
power plants, those generating less than 10 megawatts of power, if
there was some economic assistance available to defer design or
construction costs. What is your attitude toward a possible revolving
loan program or grant assistance program to facilitate small hydro
development?
Answer. I am interested and supportive of the expansion and broad
diffusion of clean, renewable, domestic distributed sources of energy,
including small and micro-hydropower. If confirmed, I am hopeful that
market-worthy funding mechanisms, with some degree of shared risks can
be considered to facilitate a reliable pattern of growth for such
sources.
Question 5. And I would like to hear your views on the federal role
in development of closed-loop biomass power. The Energy Bill last year
provided grant assistance for biomass developments, but the Department
has shown no signs yet of attempting to implement that grant program.
As assistant secretary what is your level of interest. in attempting to
facilitate biomass electricity projects nationwide?
Answer. If confirmed as assistant secretary, I would maintain my
present, high level of interest in attempting to facilitate biomass
projects nationwide. My personal view on the Federal role in the
development of biomass power is that stable, predictable, long-term
policies must be in place to attract and regularize capital formation
for beneficial sources (like biomass) that are substantially viable.
This is consistent with my view on the Federal role for all forms of
renewable power generation.
Responses of Mr. Karsner to Questions From Senator Smith
Question 1. Section 1802 of EPAct 2005 called for a study of the
energy efficiency programs and how energy should be measured. The study
is due by August 2006 and I am concerned that it may not get done in a
timely manner.
Answer. I share your concerns for energy efficiency and, if
confirmed, I shall endeavor to meet the obligations in a timely manner.
Question 2. What is the status of the study? Has DOE contracted
with the National Academy of Sciences? If DOE has not moved ahead with
this study, what are the reasons? What will DOE do in the next few
months to get this study done on time?
Answer. I am not privy to the details surrounding this study or the
actions taken by DOE regarding this matter. If confirmed, I will be
pleased to work with your office upon investigating the status of this
study.
Question 3. Attached is a letter I recently received from a State
Representative expressing concern about the Department's schedule for
promulgating the guidance for cellulosic ethanol facilities. I share
Representative Smith's concerns about the timeframe. Can you please
respond to the issues raised in the attached letter? Please let me know
how quickly the Department can promulgate rules and procedures for the
renewable fuels standard as it related to cellulosic ethanol.
Answer. I appreciate your sharing the content of this letter with
me and I empathize with the developer's concerns and the need to remove
any lingering uncertainty relative to these provisions and guidance. At
this time, I cannot respond with any authority to the legal questions
raised and under review by the Department, nor am I able to ascertain
or speak for the Department's present rate for promulgation of rules
and procedures for the renewable fuels standards. If confirmed, I
assure you that your inquiries, those of Representative Smith, and the
outstanding issues affecting the developer's project risks shall be
addressed with respect and sensitivity to Oregon Ethanol's financial
closing and construction timetable.
Responses of Mr. Karsner to Questions From Senator Bingaman
femp and renewable energy purchase program
Question 1. Will you commit to fully supporting the Federal Energy
Management Program and the renewable energy purchase program within the
Department?
Answer. I am not fully aware of all of the details surrounding this
program but I fully support the objectives of the Federal Energy
Management Program as I understand them.
renewable energy production tax credit
Question 2. How important is renewable energy production tax credit
to promoting greater use and development of renewable energy resources?
Answer. At present, the renewable energy production tax credit is
critically important to the investment decisions of developers and
equity investors currently responsible for funding renewable energy
resources and facilities. Greater use of renewable energy occurs, as
more installed capacity becomes available. The Production Tax Credit
(``PTC'') is not the exclusive method for promoting these ends and it
is rarely used as a policy tool outside the United States.
Question 3. Do you support the extension of the renewable energy
production tax credit?
Answer. Yes, presently I do. My continuing support of a PTC as a
primary policy stimulus is relative to the probability of satisfying
the greater need to devise durable, predictable, long-term, strategic
policies that persist without interruption and enhance the rate of
investment, deployment, availability, and use of renewable energy
technologies. If confirmed, I shall continue to stress the need for
continuity and predictability in revenue forecasting in order for
clean, domestic sources of renewable energy to grow at the fastest rate
possible.
solar america initiative
Question 4. It is my understanding that, within the Solar America
Initiative, the national laboratories will only play a supporting role
in research, and that they will not be directly tied to any one
industry-led team. If confirmed, will you please ensure that national
laboratories, such as Sandia, can directly participate in industry-led
teams, through CRADAs or other intellectual property sharing
arrangements, to further the overall technical success that the
industry hopes to achieve?
Answer. Regrettably, I have no knowledge about the internal
deliberations of DOE and the formative details of the Solar America
Initiative. I am aware of the value of industry-led partnering and
public-private partnerships in cases where the contractual structure
assures fair and mutual benefit. If confirmed, I shall investigate how
such arrangements may add value in this context.
Question 5. If confirmed, will you ensure that the overall
management of the program will be at the DOE Headquarters' level and
that participation will be open to all National Laboratories based upon
technical merit?
Answer. If confirmed, I will investigate the details of the program
in question and determine the definitive structure and location of the
overall management of the program and evaluation criteria for
participation.
Response of Mr. Karsner to Question From Senator Akaka
Question 1. As you may know, renewable energy is an extremely
important issue for me, because Hawaii is currently very dependent on
oil for its energy. I believe that renewable energy holds the key to
Hawaii's energy future, and that is one of the reasons why I proposed
the Hawaii Energy Study last year that was enacted in the Energy Policy
Act of 2005. In your view, what needs to be done to ensure that the
energy needs of Hawaii are adequately evaluated and addressed?
Answer. I share your view that renewable energy can and should be a
key element of Hawaii's energy future. My personal view is that a
coordinated effort, from the ground up, including municipal, county,
state, and federal governments and key stakeholders, including, but not
limited to the public utilities, transport sector, and private sector
would be essential to evaluate and address the energy needs of Hawaii's
unique community, geography, and environment. Moreover, if successful
in transforming its energy economy, Hawaii could be viewed as a
valuable policy microcosm and incubator for the Nation at large. The
probability of success will depend on the degree of consistent and firm
local and state leadership. If confirmed, I would be pleased to support
such leadership and planning to the extent of my authority allows me.
Responses of Mr. Karsner to Questions From Senator Salazar
Question 1. The National Renewable Energy Laboratory (NREL) in
Golden, Colorado, is the Department of Energy's premiere national
laboratory for renewable energy and energy efficiency research and
development. NREL funding in FY07 is projected to increase from $161.6
million (the FY06 appropriation) to $175.5 million under the
President's budget request submitted to Congress last month. This
proposed budget increase represents an important first step in the
right direction, but we can and must do better. In December, I joined
over 30 members of the Senate to support full authorized funding for
the renewable and energy efficiency programs in the energy bill.
Providing NREL with the resources it needs will lead our nation to
greater energy independence and security.
If confirmed, what steps will you take to ensure that funding for
NREL will be protected in the Department's FY08 budget request?
Answer. It seems clear that the administration views the importance
of NREL in a similar vein, as President Bush recently became the second
President to personally visit NREL since it became a national
laboratory. I have not been privy to the internal deliberations of DOE
and the Administration's budget formulation for the forthcoming FY'08
budget request. It is my understanding that they are moving towards a
planned completion in the next six weeks. If confirmed in a timeframe
to have an impact on the FY'08 budget planning cycle, I shall
investigate the detail of NREL's funding and look forward to working
closely with your office regarding this and other NREL concerns.
Question 2. We are at a critical juncture in our efforts to develop
a sustainable plan to achieve energy independence in the 21st Century.
The country can ill-afford more job cuts at NREL, now or at any time in
the next two decades. Do you agree with my assessment that we must
substantially increase our investment in renewable energy and clean
energy technologies to reduce our dependence on foreign oil?
Answer. Yes, I agree that substantial increases in investment in
renewable energy and clean energy technologies are necessary to reduce
our dependence on foreign oil. The investment and the growth in
investment is presently, appropriately led by private sector capital,
which at the current rate increasingly dwarfs the public sector
expenditure towards this objective. Therefore, we must be mindful of
continuously cultivating and encouraging private sector investment
growth to meet such national objectives as reducing our dependence on
foreign oil and utilizing the public sector investment in renewable
energy to maximize its benefits, efficacy, relevance, and impact.
Question 3. In a 2004 election statement, you described the
Production Tax Credit (PTC) as ``the essential component of growing and
expanding emissions-free electricity generated from wind, solar, and
biomass.'' Will you support a five-year extension of the PTC for
renewable energy?
Answer. I affirm that the PTC was in 2004, and remains today, the
essential component of growing and expanding emissions-free electricity
generated from wind, solar, and biomass in the United States. However,
it is not an exclusive component, or necessarily the most ideal
component, particularly given the consequences of its historically
erratic implementation. If confirmed, I would be pleased to be part of
an open dialogue on the future role and attributes of the PTC.
Question 4. Section 141 of the Energy Policy Act of 2005 requires
the Secretary of Energy to report to Congress on each new or revised
energy conservation standard, which the Secretary has failed to issue
by its statutory deadline. In its report, the DOE committed to issuing
at least one new or amended standard for all products in the `backlog'
no later than June 2011. I appreciated your commitment today to making
this a priority. What steps will you take expeditiously to issue new
standards for the 18 products now in the backlog?
Answer. Unfortunately, I have not had sufficient exposure to DOE's
internal processes as yet to comment on the backlog that has accrued.
If confirmed, I shall review this matter to uncover what, if any, steps
may be taken in compliance with the rules of procedure, to assure
timely issuance.
Question 5. In December, DOE and EPA announced an Energy Efficiency
Action Plan to spur investment in efficiency by electric and gas
utilities. If confirmed, will this Action Plan be a priority for you?
When will the Department implement this Action Plan?
Answer. If confirmed, I would look forward to reviewing the Energy
Efficiency Action Plan released last year, and understanding how it has
been internally managed at DOE and the timetable for implementation. In
general, I view energy efficiency as a priority for the Nation,
particularly at a time of war. If confirmed, my management priorities
shall emphasize significance of impact in achieving durable energy
efficiency gains.
Question 6. What are your plans, if any, to get ``green building''
research and technologies into the marketplace?
Answer. This field has not been part of my professional experience
and therefore requires more listening than direction at the outset.
Like other new technologies, there remains the challenge of conforming
to demands of the existing marketplace, including, pricing and costs,
strength of warranty and serviceability, qualifications and licensing
of installers and other professionals, consistent availability of
products and services, aesthetics and performance characteristics, and
public knowledge and acceptance. If confirmed, I would look forward to
having a more detailed understanding from perspectives inside DOE, the
labs, and industry as to the state of green building research and
technologies and work together regarding plans for accelerating market
penetration.
Responses of Mr. Karsner to Questions From Senator Wyden
Question 1. As part of the bipartisan agenda for Oregon that
Senator Gordon Smith and I announce each Congress, we have called for
promoting efforts to bring green energy technology and companies to
Oregon. According to your bio, you are ``a leading advocate for
alternative energy solutions.'' How would you advise Oregon and other
states interested in promoting green energy technologies as a strategy
for economic development accomplish this goal? What can the Federal
government do to assist this type of initiative?
Answer. Most of my professional experience advocating alternative
energy solutions has been in the context of international development,
and I am still familiarizing myself with the many state policies and
programs that are being pursued and considered. I am aware that Oregon
and other states are already acting decisively in promoting green
energy technologies as a strategy for economic development and these
efforts are quite commendable.
Many states are accomplishing measurable and substantive progress,
which has been evidenced by the extraordinary growth rates in wind,
solar and other renewable technologies. Undoubtedly, more could be done
to continue the evolution of market maturation and potentially
accelerate this trend. For example, local and state governments could
be encouraged to identify and quantify their market objectives for
sustained, long term procurement of clean energy products and services
with greater precision. In a similar vein, multi-year solicitations of
term and tenure that would allow considerations of merit for job
creation, training, facility development, and such other benefits that
may accrue with greater stability of revenue forecasting could be
devised for use in several jurisdictions.
Educating and training of procurement officials, qualified
installers, and service and maintenance personnel is also lagging
product growth and technology maturity and is a requisite for economic
integration of these new technologies. These are but a few of the
concepts and policies that are too numerous to list, but that are part
of the growing national dialogue on expanding these technologies.
With respect to the economic development initiatives of the
respective states, the Federal government has a limited, but important
role in convening, stewarding, and diffusing best practices, and where
appropriate and authorized, undertaking shared risks. There may exist
other roles for the Federal government, particularly through its
procurement practices, as well as the role these domestic, reliable,
and agile technologies play in securing homeland defense. If confirmed,
I would be pleased to interact with your office to explore the
possibilities in this regard.
Question 2. The Washington Post recently reported on how states are
pursuing their own energy efficiency standards for appliances and other
products because the Federal government has failed to take steps
required by law. Do you agree that states should be able to step in to
fill the gap when the Federal government is leaving a regulatory
vacuum?
Answer. I did not read the article you cite as the basis of the
question and therefore cannot comment on its contents directly. It is
certainly a situation that requires attention. If confirmed, I would
treat appliance standards as a priority.
Question 3. The Washington Post recently reported that the Bush
Administration ``has not decided if it should implement some new rules
for appliance energy efficiency standards or update some old ones, for
example, even though legal deadlines have passed for numerous
appliances.'' How do you defend the Energy Department's failure to take
these legally required actions? If you don't defend them, what would
you do to prevent this dereliction of legal duty if you are confirmed?
Answer. I am not privy to the internal deliberations of DOE and I
cannot authoritatively speak for the Administration on this matter or
the veracity of the article cited. To my knowledge, the Department has
published a schedule detailing the precise plan for implementation of
the outstanding appliance energy efficiency standards. If confirmed, it
is my intent to examine the detail of this schedule and fulfill all the
duties for which I would be responsible, and of course, remain in
compliance with the law.
Question 4. Do you support a permanent extension of the renewable
energy production tax credits provided by the Energy Policy Act of
2005?
Answer. I am eager to have an open dialogue with Congress, as well
as stakeholders on the renewable energy production tax credits,
including their duration. My support of a PTC as a primary policy
stimulus is relative to the probability of satisfying the greater need
to devise durable, predictable, long-term, strategic policies that
persist without interruption and enhance the rate of investment,
deployment, availability, and use of renewable energy technologies. If
confirmed, I shall continue to stress the need for continuity and
predictability in revenue forecasting in order for clean, domestic
sources of renewable energy to grow at the fastest rate possible.
Question 5. What do you see as the federal government's role in
scaling up the production of green buildings, especially the types of
buildings that dominate fast growing areas of the country like tract
housing, shopping centers, schools, airports and speculative office
buildings?
Answer. This field has not been part of my professional experience
and therefore requires me to become better acquainted with the details
of the issue. Like other new technologies, there remains the challenge
of conforming to demands of the existing marketplace, including,
pricing and costs, strength of warranty and serviceability,
qualifications and licensing of installers and other professionals,
consistent availability of products and services, aesthetics and
performance characteristics, and public knowledge and acceptance. If
confirmed, I would be pleased to work with your office on the
possibilities for stimulating greater scale in the production of green
building and greater efficiency in the built environment.
Responses of Mr. Karsner to Questions From Senator Akaka
science and math education
Question 1. I am pleased to see that in your testimony you have
indicated that one of the crucial roles for your position is to boost
science and math education. Given that we are losing our scientific and
technological advantages to India, China, and other countries, what
measures are you going to take to encourage our youth to enter the
fields of math and science?
Answer. If confirmed as Under Secretary, I would take this as a
significant mission of my office. The Office of Science's Workforce
Development for Teachers and Scientists program has developed a grade-
school to grad-school plan for support of career enhancements in
science and engineering. The first of these efforts are the Middle
School and High School Science Bowls. These events have about 17,000
students participating in various academic, scientific, and engineering
events and competitions that culminate in national events here in
Washington with participants from all around the nation. These events
are rewarding and exciting for the many students involved.
Our national laboratories have numerous programs to support
regional school science and math activities. Most of these activities
are organized out of the national laboratory education offices. As a
few examples, there are national laboratory workshops for science
teachers, very popular ``Science Saturday'' lectures for local high
school and middle school students, and an extensive array of mentor-
intensive research internships for high school through graduate school
students. The laboratories have also prepared some wonderful web-based
teaching materials for elementary and secondary school students and
teachers. The President's FY 2007 budget request triples the number of
teachers in this program to a total of 300.
Possibly the most effective approach we are using is to bring
teachers of science and math to our labs for extended summer research
experiences where the teachers are transformed from teachers of science
into ``teacher-scientists.'' These teachers through their connections
to and support from the national laboratory scientific communities
serve as both leaders in their schools for science and math and also as
inspirations to their students.
Question 2. As you may know, renewable energy is an extremely
important issue for me, because Hawaii is currently very dependent on
oil for its energy. I believe that renewable energy holds the key to
Hawaii's energy future, and that is one of the reasons why I proposed
the Hawaii Energy Study last year that was enacted in the Energy Policy
Act of 2005. In your view, what needs to be done to ensure that the
energy needs of Hawaii are adequately evaluated and addressed?
Answer. I share your view that renewable energy can and should be a
key element of Hawaii's energy future. My personal view is that a
coordinated effort, from the ground up, including municipal, county,
state, and federal governments and key stakeholders, including, but not
limited to the public utilities, transport sector, and private sector
would be essential to evaluate and address the energy needs of Hawaii's
unique community, geography, and environment. Moreover, if successful
in transforming its energy economy, Hawaii could be viewed as a
valuable policy microcosm and incubator for the Nation at large. The
probability of success will depend on the degree of consistent and firm
local and state leadership. If confirmed, I would be pleased to support
such leadership and planning to the extent of my authority allows me.
nuclear safety
Question 3. As a member of the Committee of Homeland Security and
Governmental Affairs, I have become very familiar with the issue of
nuclear safety. I am concerned by the potential safety risks that might
be associated with the security of our nuclear power plants. As the
Assistant Secretary for Energy, what plans do you foresee in the future
that will assist in ensuring the safety of our nuclear facilities?
Answer. The U.S. Nuclear Regulatory Commission (NRC) is responsible
for ensuring the safety and security of nuclear power plants. I would
note that as the Chief Operating Officer responsible for two nuclear
facilities, I was responsible for safety, security and operations
during a time period before and after September 11, 2001. As such, I
was responsible for leading the security upgrades that were put in
place after September 11, 2001. From that perspective as well as the
overall record of the U.S. nuclear industry, I would conclude that
nuclear plants are among the safest and most secure facilities in the
country.
______
Responses of Mr. Spurgeon to Questions From Senator Domenici
performance measures
Question 1. The Department of Energy is engaged in a comprehensive
strategy that would lay the foundation for expanded use of nuclear
energy in the U.S. and the world by demonstrating and deploying new
technologies that recycle nuclear fuel, significantly reduce waste, and
address proliferation concerns.
What performance measures do you think would be appropriate to
ensure meaningful progress and successful implementation of this
comprehensive strategy?
Answer. My approach to the management and execution of this
comprehensive strategy for global use of nuclear energy will utilize
knowledge and experience I have gained working in the Federal
government and industry and directly apply them to this broad
international program. While I am not yet at DOE, if confirmed, I will
establish performance measures for the technology demonstration phase
that are consistent with meeting the goals established by the President
and Secretary Bodman for the Global Nuclear Energy Partnership. If I am
confirmed, I will provide an initial set of performance measures that
are aggressive, but achievable, and would support the objectives of the
Global Nuclear Energy Partnership and expand the use of nuclear power
that is proliferation resistant. These measures would provide the
roadmap by which DOE would complete the research on the technology and
be prepared to proceed with the engineering scale demonstrations.
nuclear power renaissance
Question 1. The United States is significantly behind many other
nations in its pursuit of modern nuclear power.
What suggestions do you have for ways to revitalize U.S. innovation
and manufacturing capability to support the nuclear power renaissance?
Answer. If confirmed as Assistant Secretary for Nuclear Energy, my
highest priority will be to work with industry on achieving new nuclear
plant orders. With the efforts of the Administration and industry over
the last few years and the incentives for new nuclear generation
provided by the Energy Policy Act of 2005, I believe we will see new
plants built in the U.S. over the next few years. I also believe that
as industry moves forward with new plants, U.S. businesses will follow
with the innovation and the domestic industrial base that is needed to
support a new generation of plants. That said, I recognize that there
are areas in which government and industry need to work together to
encourage additional manufacturing capability, such as with large-
forgings which are presently only available through overseas suppliers,
and also with respect to the need for increased numbers of trained and
qualified personnel to support new nuclear plant construction (welders,
pipe fitters, boilermakers, etc.). If confirmed, I look forward to
working with Congress and industry to ensure that the nuclear
manufacturing base in the U.S. is adequate to support building of new
nuclear plants.
Response of Mr. Spurgeon to Question From Senator Craig
meeting on ngnp
Question 1. Within two weeks of your confirmation, would you be
willing to discuss with the Committee a side-by-side comparison of all
program plans for the Project described in Section 641 of the Energy
Policy Act of 2005, including the plan recently reviewed by the NERAC
as well as the Idaho National Laboratory's NGNP Project Plan, to
include best available estimates thru Project completion comparing
critical decision timelines, RFP timelines, NRC milestones, in-kind and
cost share assumptions, and annual budget estimates?
Answer. I recognize that the Next Generation Nuclear Plant is an
important priority of the Energy Policy Act of 2005, and if confirmed,
I look forward to meeting with you to discuss a side-by-side comparison
of program plans for the project. I would propose to proceed with such
a discussion after I have had an opportunity over the first few weeks
to travel to Idaho and meet with the Idaho National Laboratory on the
project. It is my understanding that the Department has tasked the
Idaho National Laboratory to serve as the project manager for the Next
Generation Nuclear Plant. As such, a meeting with the laboratory is
needed in order to more fully understand the status of the research and
planning associated with the development of a reactor system that could
be used for electricity and hydrogen production.
Response of Mr. Spurgeon to Question From Senator Thomas
uranium
Question 1. While I understand that the uranium stockpile is dealt
with in the Office of Environmental Management at the Department of
Energy, I presume that your nomination to the Assistant Secretary
position is indicative of an ability to speak with authority on all
issues related to nuclear energy. I would like you to explain the
Department's position on the sale of government uranium stockpiles.
This is an important issue to me given the significant and growing role
of the uranium mining industry in my home-state of Wyoming. Will you
support the use of DOE uranium stockpiles as a strategic reserve for
national energy security purposes, instead of using them to raise
relatively small amounts of money for DOE projects and the U.S.
Treasury? Do you support our domestic mining industry's efforts to
provide competitive supplies of uranium to cover existing and future
demand without Federal interference in the marketplace?
Answer. The Office of Nuclear Energy should strive to foster all
sectors of the nuclear industry, including uranium mining. From a
personal perspective, from 1977 through 1985, I was an executive with
UNC, which was one of the largest independent uranium mining companies
in the United States. We operated a subsidiary, Teton Exploration
Drilling, which was headquartered in Casper, Wyoming.
To ensure a secure and reliable supply of uranium in the United
States, I believe the nation needs a competitive domestic mining
industry today and in the future. I am pleased that the uranium
industry has started to rebound over the last several years with the
price of uranium increasing to levels not seen since the late 1970s as
the market adjusts to worldwide demand.
If confirmed, I will closely monitor the Department's activities
with respect to its natural uranium stockpiles, including those
instances in which the Government intends to introduce its inventory
into the marketplace.
Responses of Mr. Spurgeon to Questions From Senator Bingaman
gnep and gen iv
Question 1. The Department of Energy is proposing the Global
Nuclear Energy Partnership Program, GNEP, as well as the Generation IV
reactor program. Both involve large capital outlays for reprocessing
plants, fast burner reactors, and high temperature gas cooled reactors.
Can you please provide the committee with the overall cost estimates
and timing of each of these facilities proposed to be built within the
GNEP Program and the Generation IV reactor Program?
Answer. While I am not presently working at DOE, if confirmed, I
would be pleased to provide information on the anticipated cost of the
GNEP technology effort and its relationship to the Generation IV
nuclear systems initiative. If I am confirmed, my goal will be to
ensure prudent achievement of cost and schedule milestones through the
rigorous implementation of best project management practices.
university reactor and engineering program
Question 2. The President's budget request for fiscal year 2007
proposes to zero out the university reactor and engineering program.
Can you please provide me with what costs will be left to the
university reactor programs in terms of student training as well as
fuel costs normally provided under this program that the university
communities must now bear?
Answer. While I am not familiar with this issue yet, if confirmed,
I pledge to get back to you with more information on the impact to the
universities from the proposed termination of the University Reactor
Infrastructure and Assistance Program. As a personal note, my own
thesis on design studies for a high flux research reactor at
Massachusetts Institute of Technology was funded through an Atomic
Energy Commission grant.
university reactor and engineering program
Question 3. The Department's budget request for fiscal year 2007
states that industry can now pick up the costs of training future
students and university reactors. Has the Department received any
express statement from industry that it is doing so?
Answer. While I do not know whether industry has expressed its
intention to provide additional assistance to university nuclear
engineering programs, if confirmed, I pledge to examine this issue more
closely and get back to you with an answer.
Responses of Mr. Spurgeon to Questions From Senator Akaka
nuclear safety
Question 1. As a member of the Committee of Homeland Security and
Governmental Affairs, I have become very familiar with the issue of
nuclear safety. I am concerned by the potential safety risks that might
be associated with the security of our nuclear power plants. As the
Assistant Secretary for Energy, what plans do you foresee in the future
that will assist in ensuring the safety of our nuclear facilities?
Answer. The U.S. Nuclear Regulatory Commission (NRC) is responsible
for ensuring the safety and security of nuclear power plants. I would
note that as the Chief Financial Officer for a licensed nuclear
facility, I was responsible for safety, security and operations during
a time period before and after September 11, 2001. As such, I was
responsible for leading the security upgrades that were put in place
after September 11, 2001. From that perspective as well as the overall
record of the U.S. nuclear industry, I would conclude that nuclear
plants are among the safest and most secure facilities in the country.
science and math education
Question 1. I am pleased to see that in your testimony you have
indicated that one of the crucial roles for your position is to boost
science and math education. Given that we are losing our scientific and
technological advantages to India, China, and other countries, what
measures are you going to take to encourage our youth to enter the
fields of math and science?
Answer. If confirmed as Under Secretary, I would take this as a
significant mission of my office. The Office of Science's Workforce
Development for Teachers and Scientists program has developed a grade-
school to grad-school plan for support of career enhancements in
science and engineering. The first of these efforts are the Middle
School and High School Science Bowls. These events have about 17,000
students participating in various academic, scientific, and engineering
events and competitions that culminate in national events here in
Washington with participants from all around the nation. These events
are rewarding and exciting for the many students involved.
Our national laboratories have numerous programs to support
regional school science and math activities. Most of these activities
are organized out of the national laboratory education offices. As a
few examples, there are national laboratory workshops for science
teachers, very popular ``Science Saturday'' lectures for local high
school and middle school students, and an extensive array of mentor-
intensive research internships for high school through graduate school
students. The laboratories have also prepared some wonderful web-based
teaching materials for elementary and secondary school students and
teachers. The President's FY 2007 budget request triples the number of
teachers in this program to a total of 300.
Possibly the most effective approach we are using is to bring
teachers of science and math to our labs for extended summer research
experiences where the teachers are transformed from teachers of science
into ``teacher-scientists.'' These teachers through their connections
to and support from the national laboratory scientific communities
serve as both leaders in their schools for science and math and also as
inspirations to their students.
renewable energy
Question 1. As you may know, renewable energy is an extremely
important issue for me, because Hawaii is currently very dependent on
oil for its energy. I believe that renewable energy holds the key to
Hawaii's energy future, and that is one of the reasons why I proposed
the Hawaii Energy Study last year that was enacted in the Energy Policy
Act of 2005. In your view, what needs to be done to ensure that the
energy needs of Hawaii are adequately evaluated and addressed?
Answer. I share your view that renewable energy can and should be a
key element of Hawaii's energy future. My personal view is that a
coordinated effort, from the ground up, including municipal, county,
state, and federal governments and key stakeholders, including, but not
limited to the public utilities, transport sector, and private sector
would be essential to evaluate and address the energy needs of Hawaii's
unique community, geography, and environment. Moreover, if successful
in transforming its energy economy, Hawaii could be viewed as a
valuable policy microcosm and incubator for the Nation at large. The
probability of success will depend on the degree of consistent and firm
local and state leadership. If confirmed, I would be pleased to support
such leadership and planning to the extent of my authority allows me.
nuclear safety
Question 1. As a member of the Committee of Homeland Security and
Governmental Affairs, I have become very familiar with the issue of
nuclear safety. I am concerned by the potential safety risks that might
be associated with the security of our nuclear power plants. As the
Assistant Secretary for Energy, what plans do you foresee in the future
that will assist in ensuring the safety of our nuclear facilities?
Answer. The U.S. Nuclear Regulatory Commission (NRC) is responsible
for ensuring the safety and security of nuclear power plants. I would
note that as the Chief Operating Officer responsible for two nuclear
facilities, I was responsible for safety, security and operations
during a time period before and after September 11, 2001. As such, I
was responsible for leading the security upgrades that were put in
place after September 11, 2001. From that perspective as well as the
overall record of the U.S. nuclear industry, I would conclude that
nuclear plants are among the safest and most secure facilities in the
country.
______
Responses of Mr. Bernhardt to Questions From Senator Domenici
ocs leasing and royalties
Question 1. In S. 2253, we direct the Secretary of the Interior to
lease parts of the 181 area as soon as practicable, but in no case
later than one year from the date of enactment. Can you assure me that
the Interior Department will comply with this statutory deadline?
Please explain.
Answer: If S. 2253 is enacted, the Interior Department will work
expeditiously to comply with it. Although The Minerals Management
Service would have primary responsibility for implementation of this
legislation, if I have the privilege to be confirmed, I will work to
ensure MMS receives the legal support it needs to promptly move forward
according to the statutory timeframe.
Question 2. Please discuss the process for completing the 5-year
leasing plan on the Outer Continental Shelf. Specifically, can you tell
me whether the Department of the Interior is permitted to remove areas
from the Final 5-Year Plan that have been included in the Draft
Proposed 5-Year Plan, and if the Department has done that before?
Answer. In terms of process, the next phases of completing the 5-
year offshore leasing program for 2007-2012 are (1) analysis of
comments received on the draft proposed 5-year program; (2) development
and publication of the proposed 5-year program, accompanied by a draft
environmental impact statement (EIS); (3) consideration of comments on
those documents; (4) publication of a preliminary final 5-year program
that is submitted to Congress, together with a final EIS; and (5)
adoption of the final 5-year program.
The Department can remove areas from a draft proposed 5-year oil
and gas leasing program and has done so in the past. In addition, the
Secretary may make changes on a sale-by-sale basis after a Final 5-year
oil and gas leasing program is adopted. In the case of the 1992-1997
Program, both the draft proposed program and the proposed program
contained a sale in either Navarin Basin, Norton Basin, or St. Matthew-
Hall in Alaska. No sale was included in the Final Program. For the
1987-1992 Program, the proposed program included an ``acceleration''
provision, that if there was a significant discovery in a frontier
area, the next sale could occur on a 2-year rather than 3-year cycle.
This provision was not included in the final program. In addition,
after the 1992-1997 5-year program was approved, the Secretary modified
the area to be offered in Sale 181.
Question 3. In a series of New York Times articles, the issue has
been raised as to whether the Federal Government is receiving all
applicable royalties with respect to oil and gas leases on Federal.
submerged lands. Do you wish to comment regarding the nature and merits
of these claims?
Answer: I understand the representatives of the Minerals Management
Service have presented to the Congress their response to the various
New York Times articles. If I have the privilege to be confirmed as
Solicitor, I will work to ensure that the Solicitor's Office will
continue to assist the MMS in ensuring that Federal oil and gas lessees
on the Outer Continental Shelf pay all royalties owed to the government
for oil and gas produced from their leases.
Question 4. Additionally, will you keep this committee apprised of
any resolution of any current disputes with respect to royalty
payments?
Answer. Yes. I would like to work with your staff to ensure that
the Committee is adequately advised to assist in the Committee's
oversight of MMS' royalty enforcement and collection functions.
Question 5. Further, will you please forward to my staff any
relevant, non-privileged documents with respect to this dispute?
Answer. Yes. I understand this question to refer to question number
3 above. The Department is in the process of responding to requests for
documents from other Congressional committees related to the
allegations in the New York Times articles and specific royalty
litigation matters, and I will work with your staff to find a means to
ensure that the Committee receives the materials it wants.
cape wind
Question 1. In Section 388 of the Energy Policy Act of 2005,
Congress grants the Department of the Interior primary authority over
alternative energy on the offshore (renewable energy). Can you comment
with respect to the schedule for all environmental studies to be done
on the Cape Wind project off of the Massachusetts coast?
Answer. It is my understanding that in September of 2005, Cape Wind
Associates submitted an application to the MMS for leases, easements or
rights of way under section 388 of the Energy Policy Act of 2005, for
purposes of constructing a wind energy project located in Federal
waters 4.7 miles offshore of Cape Cod, Massachusetts. This is the first
project of its kind in Federal waters, and the first application filed
pursuant to Section 388.
The Minerals Management Service has determined that to comply with
the requirements of the National Environmental Policy Act, an
Environmental Impact Statement is necessary. The MMS is currently
negotiating a Memorandum of Agreement with Cape Wind Associates for
purposes of designating a contractor to assist in the preparation of
the EIS as authorized by CEQ regulations at 40 CFR 1506.5(c). It is my
understanding that the Memorandum of Agreement is expected to be
finalized shortly. Following that, the MMS plans to issue a Notice of
Intent to Prepare an EIS, seeking public comment for scoping purposes
and to identify issues that will be needed to be addressed in the EIS.
That comment period will last 45 days, and the EIS process will begin
shortly thereafter.
indian trust obligations
Question 1. Mr. Bernhardt, the Cobell v. Norton litigation has been
a big black eye for the Department of Interior and, from my
perspective, has impaired the Department's ability to be successful in
the administration of its other duties. One example of this is the
Department's refusal to provide funding for Pueblo attorneys' fees in
the Aamodt case. This would be the first time since 1974 that funds for
that purpose have not been provided. More generally, I am frustrated
with this Administration's response to the New Mexico Indian water
rights settlements.
Why has the Department refused to disburse funds to pay for Pueblo
fees associated with the Aamodt case?
Answer. I have visited with Associate Deputy Secretary Cason
regarding this matter. He has advised me that he is working to meet
with persons in New Mexico to find a satisfactory outcome to this
matter. The United States was required to pay over $7 million to the
Cobell plaintiff's attorneys. It is my understanding that the
Department does not budget for potential contingent liabilities, and I
understand that in many years a variety of the Department's bureaus pay
attorney fee awards. In this instance, I understand that the Department
used several sources of funds to pay the fee award. The Bureau of
Indian Affairs contributed $3 million, including $2 million from an
account that is used to reimburse tribal attorneys' fees.
Question 2. In general, do you feel that the Cobell litigation has
impaired the Department's ability to fulfill its trust obligations to
the Indian nations?
Answer. Over the last ten years, the Cobell litigation has
proceeded down a pathway that few could have envisioned, when it was
filed. The full impact of this litigation on other priorities for
Indian County may not be well recognized. While the budgetary impact is
obvious to all of Indian County, I believe the challenges presented
with this litigation have demanded the focus and effort of the
Department's most senior management, which has meant that that senior
decision makers have not been able to give all of their time and
attention to other pressing priorities within Indian Country.
Question 3. How has the expense of the Cobell litigation impacted
the budgets of programs you are responsible for administering?
Answer. The litigation has had a profound effect on the Department,
including the budget for Indian programs. In terms of programs I am
personally responsible for, as I mentioned in my testimony before this
Committee, the employees in the Office of Solicitor have been
disconnected from the Internet since December 2001. This lack of access
constitutes a serious loss in productivity which, I believe, has a very
significant cost to the Office of the Solicitor each year. For over
four years, over three hundred attorneys have been unable to
communicate with their client representatives, other federal attorneys,
or the public via email. The Office of the Solicitor has been unable to
utilize internet-based tools to conduct research, such as the
Committee's web site, improve training, or create efficiencies.
The inability to utilize the internet impacts the speed of review
and the timing of advice the office provides on everything it does. The
failure to provide real time support may ultimately result in decisions
and actions by the Department's bureaus that are not legally
supportable and subject the Federal Government to liability. Moreover,
I believe the loss of connectivity significantly hampers employee
morale by fostering an environment where attorneys are literally not
``plugged in'' to important communications as they occur, hampering
retention and recruitment.
Question 4. Do I have you assurance that you will make the New
Mexico Indian water rights settlements a priority?
Answer. Yes. Senator, I personally recognize how important
addressing these longstanding claims can be to both the economy and
future of Indian and non Indian communities within New Mexico. If I
have the privilege of being confirmed, I look forward to working with
you and your staff on this important issue.
bureau of indian affairs employees accidents
Question 1. Mr. Bernhardt, I believe you are aware that a number of
Bureau of Indian Affairs employees in New Mexico have been involved in
vehicle accidents, while driving Bureau of Indian Affair vehicles,
during work hours while intoxicated, that have resulted in the
unfortunate deaths of private citizens. I know you're aware that the
Bureau of Indian Affairs and Department have been working to complete a
new policy related to Driving While Under the Influence. And I hope you
know that I had written the Department and copied the BIA requesting
that that new policy be published by the end of February.
Do you know the status of that new policy?
Answer. It is my understanding that the Bureau of Indian Affairs is
working hard to revise its policy on this matter and hopes to have a
final policy issued by the end of this month.
By way of background, on January 18, 2006, the Department issued a
new Departmental Manual Chapter on Discipline and Adverse Actions,
which included a new Table of Offenses and Penalties for the entire
Department. This new table includes a specific charge of ``Operating a
Government vehicle/aircraft while `under the influence of alcohol' with
a penalty that ranges from a 30 day suspension to removal for a first
offense and removal from service for a second offense. The previous
Table of Offenses did not include this charge. Instead, it contained
the charge ``unauthorized use and/or possession of alcoholic beverages
while on Government premises (or vehicle)'', which included a penalty
that ranged from a written reprimand to a 30-day suspension.
Question 2. If you are confirmed as Solicitor it will fall upon
your office to defend the agency against claims that could result from
future accidents involving Department employees who may drink and drive
and get in these accidents.
Answer. That is correct. The Office of the Solicitor and the
Department of Justice are responsible for addressing such claims.
Question 3. I would like your commitment that you will impress upon
the Secretary the importance of getting this policy updated NOW, so a
year from now I am not hearing about Bureau of Indian Affairs or other
Department Employees who have killed other motorists during work hours
and are being allowed to continue to work for the Department, as has
happened in the past. Can I get that commitment from you?
Answer. Yes. As noted in my response to your first question on this
subject, the Department has issued new policies regarding sanctions for
the operation of government vehicles and aircraft while under the
influence of alcohol. Additionally, I have spoken to Associate Deputy
Cason who is updating BIA policy in this regard. Senator, I assure you
that I will work to ensure that these matters are taken seriously, and
that the revised penalties are vigorously enforced.
hydropower licensing
Question 1. EPAct reformed the Federal Power Act's hydroelectric
licensing provisions by providing for an expedited trial-type hearing
on disputed issues of material fact and allowing any party to offer
alternative conditions. The resource agencies (Interior, Commerce, and
Ag), in consultation with FERC, issued an interim final rule on
November 17, 2005. However, just one month later, American Rivers filed
suit in Washington State's western district, challenging the interim
hydro rule on the grounds that it applies to pending licensing
proceedings and was issued without notice and comment.
Why did the agencies issue an interim final rule rather than go
through the traditional notice and comment period?
Answer. I believe the Departments of Agriculture, the Interior, and
Commerce decided to publish Interim Final Rules, effective upon
publication, for the following reasons described in our Federal
Register notice.
The regulations were published as interim final rules with request
for comments, and without prior notice and comment, under 5 U.S.C.
553(b)(A) and (B). Under section 553(b)(A), interpretative rules and
rules of agency procedure or practice, like the regulations in these
interim final rules, do not require a notice of proposed rulemaking.
Moreover, under section 553(b)(B), the Departments for good cause found
that prior notice and comment were impracticable and contrary to the
public interest. Section 241 of the EPAct requires the Departments to
promulgate these rules jointly, in consultation with FERC, within 90
days of enactment of the statute. It would not have been possible to
meet that deadline if the Departments had to publish a proposed rule,
allow the public sufficient time to submit comments, analyze the
comments, and publish a final rule, especially given the need for
interagency coordination at each step of the process. In addition to
meeting the statutory mandate, the Departments found that it was in the
public interest to promulgate these regulations promptly, so that (a)
parties in hydropower license proceedings could avail themselves of the
new trial-type hearing right and alternatives process established in
EPAct and (b) delays in the FERC licensing process could be avoided or
minimized.
Question 2. What is the status of the litigation? What impact, if
any, has it had on the ability of stakeholders to use the new rule?
Answer. The American Rivers v. DOI case is pending before the U.S.
District Court for the Western District of Washington. By court order,
the Department of Justice has until March 15th, 2006 to file a motion
to dismiss this action. On March 1, 2006, a second lawsuit was filed in
the U.S. District Court for the District of Columbia, Public Utility
District No. 1 of Pend Oreille County v. DOI. This action challenges
the validity of the Department's regulations. Here, in contrast to
American Rivers, which asserts that the regulations apply too broadly
to pending applications, the PUD asserts that the regulations do not
apply broadly enough and should extend to licensees, such as the PUD.
To date, the litigation has had no impact on the ability of
stakeholders to use the new rule. The Department is currently
processing several trial-type hearing requests and will be conducting
its first hearing this summer.
Question 3. Is it possible for the rule to be finalized earlier--
perhaps sometime this year?
Answer. Yes. The interim final rule that was published on November
17, 2005 is in effect. The Department did ask for comments in its
notice of November 17, 2005 and stated that it would consider revising
the Rule within 18 months of its effective date based on comments
received as well as the initial results of implementation.
other hydro questions
Question 1. EPAct's hydroelectric licensing provisions direct the
Secretary to give ``equal consideration'' to such factors as energy
supply; distribution; cost and use; flood control; navigation; water
supply; and air quality when adopting a condition or prescription under
Section 4(e) or 18 of the Federal Power Act. The provisions also permit
an applicant or other party to propose alternative conditions/
prescriptions.
The resource agencies' interim final hydro rule was issued on
November 17, 2005. Although EPAct clearly requires the Secretary to
demonstrate equal consideration with ``any'' condition or prescription
it submits under Section 4(e) or 18, the interim final rule is
ambiguous as to whether the Secretary must show equal consideration to
the various power and non-power factors if no party has proposed an
alternative.
Do you believe that the Department must only consider the impacts
of a condition or prescriptions on the specified power and non-power
factors when an alternative is proposed?
Or do you believe that the statute requires these factors always be
considered by the Department in issuing a condition or prescription
under Section 4(e) or 18?
Answer. I realize this is an important issue though I have not
formed a specific conclusion at this time. The Department is looking
into this matter. I would be happy to discuss this matter with you or
your staff once I have fully studied the issue, but before reaching a
final conclusion or opinion.
Question 2. Will the Department clarify this question in a revised
rule?
Answer. The Department is now in the process of reviewing the
comments submitted. No decisions have been yet been made on how to
proceed, although revision of the existing rule is one means by which
more clarity could be provided.
Responses of Mr. Bernhardt to Questions From Senator Bingaman
Question 1. At your hearing, you said that the Department is
reviewing how to implement the decision of the U.S. Court of Appeals
for the Tenth Circuit in Southern Utah Wilderness Alliance, 425 F.3d
735 (10th Cir. 2005). Do you expect this review to lead to the
formulation of a rule within the meaning of the Administrative
Procedure Act, 5 U.S.C. 551(4) (i.e., ``an agency statement of general
or particular applicability and future effect designed to implement,
interpret, or prescribe law or policy or describing the . . .
procedure, or practice requirements of an agency . . .'')?
Answer. After reading the Tenth Circuit's opinion, rendered in
September 2005, I believe Secretary Norton felt that the Tenth Circuit
provided a well-reasoned, detailed, and comprehensive opinion, which
addressed a number of important questions, and she is determined to
faithfully follow the law as described by the Tenth Circuit. I do not
expect the Department of the Interior's implementation of this decision
will result in the formulation of a rule.
Question 2. Section 108 of the FY 1997 Interior Appropriations Act
states that
``No final rule or regulation of any agency of the Federal
Government pertaining to the recognition, management, or validity of a
right-of-way pursuant to Revised Statute 2477 (43 U.S.C. 932) shall
take effect unless expressly authorized by an Act of Congress
subsequent to the date of enactment of this Act.'' 110 Stat. 3009-200.
Do you agree that section 108 prohibits any ``final rule or
regulation . . . pertaining to the recognition, management, or validity
of a right-of-way pursuant to Revised Statute 2477'' from taking effect
``unless expressly authorized by an Act of Congress subsequent to''
September 30, 1996?
Answer. I do not believe that the Department intends to take any
action that constitutes a final rule or regulation pertaining to the
recognition, management, or validity of a right-of-way pursuant to R.S.
2477. Like Secretary Babbitt's Interim Policy of January 1997, which
was issued after the passage of Section 108, if any guidelines for
implementation of the legal principles established in the SUWA case are
made, I would expect that they would be statements of policy.
When determining whether the Department or a bureau has issued a
binding rule or regulation or ``merely a statement of policy,'' we are
guided by two lines of inquiry set forth by the Circuit Court of
Appeals for the District of Columbia:
One line of analysis focuses on the effects of the agency action,
asking whether the agency has (1) imposed any rights and obligations,
or (2) genuinely left the agency and its decision makers free to
exercise discretion. The language actually used by the agency is often
central to making such determinations. The second line of analysis
focuses on the agency's expressed intentions. The analysis under this
line of cases looks to three factors: (1) the agency's own
characterization of the action; (2) whether the action was published in
the Federal Register or the Code of Federal Regulations; and (3)
whether the action has binding effects on private parties or on the
agency. The Wilderness Soc'y v. Norton, 434 F.3d 584, 595 (D.C. Cir.
2006).
At this time, I believe and anticipate that any policy guidance the
Department issues in the near term will leave agencies and decision
makers free to exercise significant discretion on this matter and will
not impose binding rights or obligations on private parties or any
bureau or agency of the Department. I expect that the Department's
intent to issue guidance rather than a rule is likely to be expressed
in any associated documents.
Question 3. Do you believe that the Department can use is
``Disclaimer of Interest'' regulations to process R.S. 2477 fights-of-
way claims?
Answer. Yes. Authorized by Section 315 of the Federal Land Policy
and Management Act, a disclaimer of interest is simply an assertion
that the United States' ownership interest in certain lands has
terminated or never existed. The Bureau of Land Management's Disclaimer
of Interest regulations are published at 43 C.F.R. 1860. Among the
United States' interests in land that might have terminated is a public
right of way accepted under R.S. 2477.
The SUWA case declared that the BLM did not have primary
jurisdiction over R.S. 2477 claims such that its determinations would
bind courts. I agree with that statement, but note that it does not
affect the Secretary's authority under Section 315, which is discussed
at length in response to the comments received on our proposed
regulations. This makes sense to me because a disclaimer of interest
does no more than estop the United States from asserting a claim; it
does not purport to bind the courts. Moreover, in my opinion, while the
SUWA case did not directly address this question, it did impliedly
accept the validity of federal disclaimers of interest to R.S. 2477
rights of way. See 425 F.3d at 769, n.20.
Question 4. In a meeting with Colorado County Commissioners, Kit
Kimball, Director of External and Intergovernmental Affairs at the
Interior Department, recently stated that the Department was developing
a new process to determine the validity of R.S. 2477 right-of-way
claims. A memorandum she circulated stated that ``BLM, applying state
law, can make an informal determination regarding the validity and
scope of any right of way, which it will then use for planning
documents, signage decisions, etc. Bureau could also initiate an
informal determination if necessary for internal planning or
administration purposes.''
(a) How will these ``informal determinations'' be made?
(b) What will be the standard of proof?
(c) Who will bear the burden of proof?
(d) Will the public be given notice and interested persons
afforded an opportunity to present comments, data, views, and
arguments?
(e) Will the process apply only to lands managed by the
Bureau of Land Management or to the National Park System, the
National Wildlife Refuge System, and other lands managed by the
Department of the Interior?
Answer. Senator, my answer to this question is based on my current
understanding of the contemplated process. The Bureau of Land
Management (BLM), the U.S. Fish and Wildlife Service (FWS), and the
National Park Service (NPS) are all involved in developing this process
and there are policy choices and options left to be decided.
The SUWA decision holds that title to R.S. 2477 rights of way
``passes independently of any action or approval on the part of the
BLM'' and that BLM does not have ``authority to make binding
determinations on the validity of the rights of way granted'' by R.S.
2477. Ultimately determining who has title to a right of way is
therefore a judicial, not an executive, function.'' Nonetheless, the
court recognized that ``[t]his does not mean that the BLM is forbidden
from determining the validity of R.S. 2477 rights of way for its own
purposes. The BLM has always had this authority.'' See SUWA, 425 F. 3d
at 757. I believe this is what Mrs. Kimball meant by ``informal
determinations.''
With respect to your questions, the following answers are based on
an informal process as I believe it is envisioned by the Department:
(a) The informal determination would be guided by state law
to the extent it is consistent with the purposes of R.S. 2477,
looking to whether any proposed improvements to a road are
reasonable and necessary under state law. It will also look to
whether the right of way was ever abandoned. Even if a right of
way is determined to be valid, BLM would retain its duty and
obligation to protect the underlying and surrounding federal
resources from unnecessary and undue degradation.
(b) The standard of proof would be that set out in the SUWA
decision, ``preponderance of the evidence.'' See SUWA, 425 F.3d
at 750.
(c) With respect to the burden of proof, if BLM receives a
request from a county to improve or otherwise alter the status
quo of a road, the burden of proof will be on the claimant. See
id. at 768-69. Alternatively, during its own planning process,
a BLM office may need to make an informal determination without
any specific request from a county. In that case, there would
be no party ``seeking to enforce rights-of-way against the
federal government'' on whom to impose a burden of proof, but
BLM will nonetheless be guided by the principle that doubts are
to be resolved in favor of the government. See id.
(d) The public and interested persons will be given notice
and extensive opportunities for comment before any
determination is made. Data, views, and comments that are
relevant to the application of the SUWA standards would be
welcomed.
(e) There may be times when NPS or FWS may need to make such
a determination for the lands they administer and most of the
process they will utilize may likely be similar. I understand
that NPS and FWS are just beginning to explore how they will
handle these matters as they arise in the future. The
Department has had far more R.S. 2477 claims arise with respect
to lands administered by BLM than those administered by either
NPS or FWS. I am aware of no reason why that should now change.
There will likely be a few differences in the way those principles
apply in practice to more sensitive lands, however. For one thing,
units of the National Park System and National Wildlife Refuge System
have been ``reserved for public uses,'' and therefore no rights of way
could have been established under R.S. 2477 after the date of the
reservation for any park unit or refuge area established prior to the
repeal of R.S. 2477 in 1976. See SUWA, 425 F.3d at 784. Moreover, it
may be that previously established rights of way in those areas are
more likely to have been abandoned.
Finally, and perhaps most importantly, in my opinion, the standard
of care that federal land managers must apply on those sensitive lands
is high. As both the Tenth and the Ninth Circuits recently have
recognized, land managers are to take reasonable steps to ensure that
the use of roads within federal land does not violate the federal
landowners' duty to protect the surrounding and underlying lands, even
if the roads are valid rights of way. See id. at 747; Hale v. Norton,
No. 03-36032 (9th Cir. Feb. 9, 2006). This derives from the legal
premise that ``the easement holder must exercise its rights so as not
to interfere unreasonably with the rights of the owner of the servient
estate.'' SUWA, 425 F.3d at 747.
Question 5. How will an ``informal determination'' of an R.S. 2477
claim's validity affect the Department's ability to protect natural and
cultural resources that could be harmed by road work on a fight-of-way?
Answer. As discussed above, the Department's obligation and right
to protect natural and cultural resources on the lands it manages
remains even if a valid right-of-way crosses that land. An informal
determination that a claim is valid would not change that; for that
matter, neither would a determination that a right-of-way is valid
under a disclaimer, Quiet Title action, or Title V or other right-of-
way unrelated to R.S. 2477. Moreover, agency review and approval for
construction activity other than routine maintenance is required under
the analysis in SUWA v BLM.
An informal determination that a right-of-way exists would mean
that the surface management agency would have to work in consultation
with the holder of the right-of-way, rather than unilaterally. I
believe working in consultation with local governments is good policy
in any event, so even this impact should be minimal. As the court said
in SUWA, ``Both levels of government have responsibility for, and a
deep commitment to, the common good, which is better served by
communication and cooperation than by unilateral action.'' 425 F.3d at
748.
Question 6. How will the road maintenance agreements mentioned in
Ms. Kimball's memorandum impact BLM's authority to regulate or
eliminate motor vehicle use on roads and routes that are subject to the
agreement where the restriction or closure is necessary to protect
natural and cultural values?
Answer. The BLM's legal authority to protect natural and cultural
resources comes from statute and regulation and would not be impacted
by road maintenance agreements. I believe, however, that the BLM's
practical ability to protect those resources will be enhanced by the
use of road maintenance agreements. I understand that road maintenance
agreements, using various titles, have been used by the BLM for many
years, through many administrations. They do not establish any
permanent, binding rights to the road. Their purpose is only to allow
the parties to preserve the status quo on a road through routine
maintenance. If the BLM contemplates severely restricting the use of a
road, a road maintenance agreement would not be appropriate. Likewise,
if a county wishes to improve a road or use it beyond the current
status quo, a road maintenance agreement would not allow it to do so
without prior consultation with the BLM.
I expect that the road maintenance agreements that will be used in
the future will recognize that, as discussed in my answer to Question
#5, the BLM retains its right and duty to protect natural and cultural
resources on the surrounding and underlying land. I believe that by
creating an agreed-upon method for consultation on such matters, in
many cases road maintenance agreements will improve the BLM's ability
to regulate motor vehicle use on roads. I also expect that the
agreements will allow the BLM to remove a road from an agreement's
coverage if necessary. If the county felt that these restrictions
violated its valid R.S. 2477 rights, it would either have to convince
the BLM through the informal determination process that such rights
exist, or, failing that, bring suit under the Quiet Title Act.
Question 7. How do you reconcile these road maintenance agreements
with title V of the Federal Land Policy and Management Act?
Answer. Title V of the FLPMA authorizes the Secretary ``to grant,
issue, or renew rights-of-way'' on public lands for certain purposes.
43 U.S.C. Sec. 1761. Road maintenance agreements, as discussed above,
have been used for many years for a very limited, and very different,
purpose. Road maintenance agreements, far from granting any rights of
way, explicitly declare that they do not have the effect of granting or
determining the existence of any such rights. Rather, they simply allow
a county to perform routine maintenance on a road that the BLM desires
to keep open for its own purposes.
Road maintenance agreements would apply to existing roads on public
lands where BLM chooses to use them. For existing roads, BLM can
maintain them using its own resources or agree for the counties to
maintain them. Neither choice by BLM requires any permission under
Title V of FLPMA.
Where a county or other applicant seeks either a new right of way
or to improve or otherwise expand upon an existing claimed R.S. 2477
right-of-way for which BLM has made an affirmative nonbinding
determination, Title V would require a new authorization. Road
maintenance agreements do not apply to this latter situation.
the fundamental purpose of the national park system
Question 8. The Department, in its Management Policies for the
National Park Service, has taken the position that the National Park
Service Organic Act, 16 U.S.C. 1, requires that, ``when there is a
conflict between conserving resources and values and providing for
enjoyment of them, conservation is to be predominant.'' NPS Management
Policies, Sec. 1.4.3 at 12 (2001).
Do you agree with that interpretation of the Organic Act?
Answer. In a February 15, 2006, statement, the Deputy Director of
the National Park Service stated that when there is a conflict between
the protection of resources and their use, conservation will
predominate, while taking appropriate steps, including scientific study
and public involvement, to resolve the concerns. The Organic Act, with
respect to the purpose of the National Park System, states the
``purpose is to conserve the scenery and the natural and historic
objects and the wildlife therein and to provide for the enjoyment of
the same in such manner and by such means as will leave them unimpaired
for the enjoyment of future generations.'' The language quoted in the
question is from the 2001 Management Policies, which used the term
``conservation is predominant'' for the first time.
I understand that similar words and concepts, however, appeared as
an interpretation of the Organic Act in policy statements as early as
1918 and have been reiterated fairly consistently through the years.
While such policy statements are consistent with the Organic Act, the
talented and dedicated attorneys within the Office of the Solicitor
have been unable to locate a single case, Solicitor's Opinion, or
statute that specifically states that as a matter of law the Organic
Act requires, ``when there is a conflict between conserving resources
and values and providing for enjoyment of them, conservation is to be
predominant.'' Several cases note, however, an overarching goal of
resource protection, based on the Organic Act's prohibition against
impairment or park resources.
In the statement referred to above, Deputy Director Steve Martin
testified before the Congress that, in working on the draft policies,
the National Park Service set forth the following guiding principles:
<bullet> Comply with current laws, Executive Orders, and regulations,
<bullet> Prevent impairment,
<bullet> Be responsible for key authorities and decision making,
<bullet> Emphasize consultation and cooperation with local, State,
and Federal entities,
<bullet> Pursue the best contemporary business practices and
sustainability,
<bullet> Encourage consistency across the system--``one'' National
Park System,
<bullet> Use NPS legacy goals, cooperative conservation and civic
engagement as guides,
<bullet> Improve the tone so there is no misunderstanding about the
NPS's commitment to appropriate use and enjoyment, including
education and interpretation, of park resources, while
preventing unacceptable impacts,
<bullet> When there is a conflict between the protection of resources
and their use, conservation will be predominant, while taking
appropriate steps, including scientific study and public
involvement, to resolve the concerns, and
<bullet> Pass on for the enjoyment of future generations all park
resources in as good or better condition.
I believe these principles are also consistent with the Organic
Act.
soliciting donations for the national park service
Question 9. At your hearing, you indicated that the National Park
Service's proposed order permitting its employees to solicit donations
was supported by a Department of Justice opinion. That opinion appears
to be based upon clearly distinguishable circumstances. Moreover, the
Justice Department has indicated that the issue must be considered in
light of each agency's unique circumstances and authorities.
How do you reconcile the legislative history of the National Park
Service's authority and Congress's decision to charter a separate
Foundation to solicit gifts for the Park Service with the very
different circumstances before the Justice Department? Please provide
the Committee with your analysis of the Park Service's authority.
Answer. In my opinion, any donation policies that are developed by
the National Park Service must inspire public confidence, demonstrate
integrity, and ensure impartiality. It is my understanding that the
National Park Service envisions very limited solicitation by its
employees. I understand that revisions to Director's Order #21 are in
draft and the comment period on those revisions closed on December 5,
2005. Over 1,000 comments on the draft were received.
As I mentioned at the hearing, I was not involved in the
development of those revisions. Therefore, I have not exhaustively
analyzed this issue. If I have the privilege to be confirmed, I would
expect to have the opportunity to review the policies before they are
issued in a Director's Order. In the interim, I would be pleased to
give this issue greater study and consult with you or your staff before
the Office of the Solicitor reviews and clears any final proposal.
Since receiving your question, and after a very preliminary
examination, I have found nothing in the history of the National Park
Service's authorities that suggests there is, in law, a prohibition on
solicitation by National Park Service employees. In his legal writings
on this issue, one of my predecessors wrote only that such authority
was not explicit on the face of the statute. The legislative history of
the act that established the National Park Foundation indicates that
the Foundation was established not because Federal employees could not
solicit, but rather so that donors would ``not be subject to the
restrictions and limitations that usually accompany a gift made
directly to the Government itself.'' [House Report No. 623, 90th
Congress] House Report 623 does not mention the issue of solicitation
at all in its justifications for the need for the Foundation. It does,
however, focus on the authority the Act provides in allowing for a
broad range of donations and allowing the Foundation to determine its
own investment policy and to acquire property for donation to the
National Park System.
The National Park Foundation's predecessor, the National Park Trust
Fund Board, was established in 1935 by the Act of July 10, 1935 (49
Stat. 477). That Act makes no mention of solicitation at all. The
website of the National Park Foundation includes a page entitled ``A
Tradition of Philanthropy for National Parks'' that mentions many
important donations to the National Park System prior to the
establishment of the National Park Foundation and even the National
Park Trust Fund Board. So far, I have found nothing in the law to
suggest that those early donations were not made in concert with or at
the suggestion of employees of the National Park Service.
As I stated above, the National Park Service has received many
comments on the draft revisions and understands the concerns its own
employees have expressed with the revisions. I expect there will be
changes made to the draft before it is finalized, and I look forward to
discussing this issue with you or your staff in the future.
energy corridors
Question 10. Section 368 of the Energy Policy Act of 2005 directed
various agencies, including the Department of the Interior, to
``designate, under their respective authorities, corridors for oil,
gas, and hydrogen pipelines and electricity transmission and
distribution facilities on Federal land in the eleven contiguous
Western States.''
In your opinion, does this language require the Department to
designate energy fight-of-way corridors over or across units of the
National Park System, and if so, what is the statutory authority
allowing for these corridors?
Answer. Senator, I have not been presented with this question in
the past, and to my knowledge, it is not a question that has been
reviewed by the Office of the Solicitor. Given the desire to provide
you a timely response, I have developed an initial view: Section 368
does not necessarily require the Department to designate energy right-
of-way corridors over or across units of the National Park System
(NPS). Section 368 directs the Secretary, using her existing authority,
to designate corridors for oil, gas, and hydrogen pipelines and
electricity transmission and distribution facilities on Federal land in
the eleven contiguous Western States. ``Federal land'' is not defined
by section 368 or by the Energy Policy Act. It appears that energy
corridors may avoid NPS lands entirely if the Secretaries of
Agriculture, Commerce, Defense, Energy, and Interior so decide.
The Department of Energy and Department of the Interior have
published a notice of intention to conduct public scoping meetings on
the subject of corridor designations. This notice appears in the
Federal Register at 70 FR 56647 (Sept. 28, 2005).
Moreover, I am not presently aware of other existing authority to
permit oil and gas pipelines across NPS lands. The Mineral Leasing Act
excludes such rights of way on NPS lands, 30 U.S.C. 185(b)(1), and the
NPS appears to lack any such statutory authority.
Question 11. Section 1221 of the Energy Policy Act provides for the
siting of electric transmission facilities. Subsection (h)(6) of that
section provides that if any agency denies a necessary federal
authorization the President has authority to overturn (or uphold) that
decision. However, subsection (j) specifically removes the National
Park Service from this provision:
``(j) RELATIONSHIP TO OTHER LAWS.--(1) Except as specifically
provided, nothing in this section affects any requirement of an
environmental law of the United States, including the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)
``(2) Subsection (h)(6) shall not apply to any unit of the
National Park System, the National Wildlife Refuge System, the
National Wild and Scenic Rivers System, the National Trails
System, the National Wilderness Preservation System, or a
National Monument.'' (Emphasis added.)
Do you agree that this section prevents the President from
approving the siting of electric transmission facilities within a unit
of the National Park System?
Answer. Under the terms of subsection (j)(2), the President's
authority under section 1221(h)(6) to review the denial of, or failure
to take timely action on, an application for a Federal authorization
does not extend to a Federal authorization for use of lands in a unit
of the National Park System.
cobell case
Question 12. The Cobell v. Norton litigation has been ongoing for a
decade now. The court has held that the United States has failed to
meet its obligations to hundreds of thousands of individual Indians.
This case and the accounting efforts currently being performed are
costing the federal government over $100 million annually.
Will settlement of this litigation be a priority for you? Do you
have any thoughts on how it should be settled?
Answer. Yes. I believe resolving this litigation should be a
priority for the Solicitor, and if I have the privilege to be confirmed
I would make it a top priority. A legislative resolution could address
the issue of accounting, and perhaps other issues that are important to
Indian Country and United States.
comity between the department and congress
Question 13a. At your hearing, you acknowledged the need to give
due weight and sympathetic consideration to requests from Members of
Congress for information. You also said, in your statement, that you
``understand the importance of obtaining meaningful input to help
ensure informed Federal decisions.'' If confirmed
Will you consult with the Committee on significant matters within
your responsibility prior to finalizing your actions?
Answer. Yes. I will consult with the Committee on significant
matters within my jurisdiction prior to final actions.
Question 13b. Will you give the Committee advance notice of any
decision to modify the Department's legal position in pending
litigation or any decision to modify, withdraw, or reverse a
Solicitor's Opinion on matters within the Committee's jurisdiction?
Answer. Yes. If I have the privilege to be confirmed, I will
consult with the Committee prior to modifying, withdrawing, or
reversing a Solicitor's Opinion on any matter within the Committee's
jurisdiction. I will also consult with your staff to ascertain
particular areas of focus in which the Committee is interested and work
with the Committee to ensure that you are informed of decisions to
modify our position in pending litigation.
Question 14. Are there any Solicitor's Opinions that you think need
to be revisited? What Solicitor's Opinions do you expect to review
during the remainder of FY 2006 and FY 2007? Please provide a list.
What criteria will you use in determining whether an opinion should be
modified, withdrawn, or reversed?
Answer. No, I have no plans at this time to review any Solicitor's
Opinions. If I am specifically asked to review a particular opinion by
the Secretary or the Secretary's subordinate officers, or legal matters
arise which necessitate my review of previous Solicitor's Opinions, I
will evaluate such matters on a case-by-case basis. I have not
developed a defined set of criteria to determine if an opinion should
be modified. However, changes in statute or a new court decision could,
theoretically, be events that lead to the examination of an existing
opinion.
consultation with indian tribes
Question 15. Will you consult with an affected Indian Tribe before
modifying or withdrawing a Solicitor's Opinion that affects that Tribe?
Answer. Yes. When appropriate, I will consult with an Indian Tribe
before modifying or withdrawing a Solicitor's Opinion that directly
affects that Tribe.
Question 16. Will you consult with an affected Indian Tribe before
settling litigation that affects that Tribe?
Answer. Yes. When appropriate, I will consult with an Indian Tribe
before settling litigation that directly affects that Tribe.
Responses of Mr. Bernhardt to Questions From Senator Akaka
native hawaiians
Question 1. Public Law 103-150, commonly referred to as the
``Apology Resolution,'' was signed into law in 1993. In summary, the
resolution apologizes to Native Hawaiians on behalf of the people of
the United States for the overthrow of the Kingdom of Hawaii on January
17, 1893, and calls for reconciliation between the United States and
Native Hawaiians.
In 1999, public consultations were held in Hawaii between
representatives from the Departments of the Interior and Justice and
Native Hawaiians. On October 23, 2000, the Departments released a
report about the public consultations with recommendations for
additional steps in the reconciliation process.
The reconciliation process is an incremental process of dialogue
between the United States and Native Hawaiians to resolve a number of
longstanding issues resulting from the overthrow of the Kingdom of
Hawaii. The Department of the Interior has had the lead in this process
as the agency that deals with indigenous peoples within the United
States' jurisdiction. I look forward to working with you on the
reconciliation process. I would like to know your thoughts regarding
the continuation of this important process between Native Hawaiians and
the United States.
Answer. I too look forward to working with you on the
reconciliation process. I firmly believe in the importance of
continuing to work together on the relationship of Native Hawaiians
with the Federal government.
Question 2. The Hawaiian Homelands Recovery Act (Public law 104-42)
authorized the transfer of non-ceded federal property to the Department
of Hawaiian Home Lands (DHHL) as compensation for the use of 1,200
[acres] of DHHL lands by the United States for the Lualualei Military
Communications Field. A Memorandum of Agreement dated August 31, 1998,
signed by Secretary Bruce Babbitt, identified non-ceded federal
property for transfer to DHHL, including the Waipahu FCC Monitoring
Station. A letter of agreement dated November 3, 2000, signed by
Assistant Secretary John Berry for Secretary Babbitt established that
the Waipahu FCC Monitoring Station, valued in 1989 at $16.9 million,
was not available for transfer to DHHL and a credit in that amount was
due to DHHL. As the author of Public Law 104-42, I am interested in
implementing the act and ensuring that this matter is appropriately
resolved. I would appreciate your thoughts regarding the current status
of this situation and how you propose we move forward to resolve this
matter.
Answer. I recognize that this is a very important issue to you and
to your state. It is my understanding that, as new surplus property
becomes available in Hawaii, the recently appointed Director for the
Office of Hawaiian Relations, working with the General Services
Administration, will notify the State and Department of Hawaiian Home
Lands to implement Section 2 (a)(ii) of the MOA. This will be done in
order to satisfy the credit of $16.9 million through the conveyance of
Federal surplus property.
compact of free association
Question 1. P.L. 108-188, the Compact of Free Association
Amendments Act of 2003, provides $30 million in annual funding for
Compact impact assistance to be shared between the State of Hawaii,
Guam, the CNMI, and American Samoa. While this funding is a positive
step forward, it does not begin to reimburse the affected jurisdictions
for the costs associated with FAS citizens. Since 1997, when Hawaii
began reporting its impact costs, the state has identified more than
$140 million in costs associated with FAS citizens. In 2002, the State
of Hawaii expended more than $32 million in assistance to FAS citizens.
In 2003 alone, the state spent approximately $9.77 million to provide
Medicaid services without receiving any federal matching funds. This
represents a dramatic increase from $6.75 million in the state FY 2002.
Funds are currently allocated for five years based on a one-time
census.
As demographics shift more rapidly than is reflected in the census,
how will you work with the Office of Insular Affairs (OIA) and the
affected jurisdictions to ensure that affected jurisdictions are being
appropriately reimbursed.
Answer. I have not worked on this issue in the past. If I have the
privilege to be confirmed, I would like to work with your staff and the
Assistant Secretary of Policy Management and Budget to determine if we
can find an acceptable resolution to this important issue.
Question 2. Since 2004, all federal agencies are required to report
to DOI regarding their services in the RMI and FSM in order to avoid
the duplication of benefits.
What consideration does the Department give to these reports in
determining the division of Compact Impact aid, and, if the Department
currently does not use the reports as a factor in its determination,
would you consider developing a way to incorporate these reports into
your calculation of the distributed funds?
Answer. I do not have any personal knowledge of the degree of
consideration given to these reports. I have been informed that Public
Law 108-188 requires that the allocation of the $30 million compact
impact assistance program be based solely on a census of freely
associated state citizens in the U.S. territories and the state of
Hawaii. I would welcome the opportunity to work with you or your staff
to explore all options and solutions available to the Department of the
Interior and you to develop a way to incorporate these reports into the
decision making process.
Question 3. The 2003 Amendments contain several new measures that
need to be implemented, and this task will fall largely to the OIA
staff based in Hawaii that monitor grant assistance, trust funds, and
administer Compact Impact funds.
How will the Department ensure accountability with respect to the
implementation of provisions in the new Compact, particularly with
regard to the administration of grants?
Answer. Senator, I believe accountability is very important. I am
not personally familiar with this specific issue; however, I welcome
the opportunity to discuss the issue with you or your staff. I have
been informed of the following points:
Grant Assistance. Through its Hawaii-based staff, the Department
ensures accountability by (1) analyzing compliance with the terms of
current grants, (2) reviewing annual sector grant proposals for the
next fiscal year, and (3) recommending an allocation of funding for the
next fiscal year that reflect changes in relative need and priorities.
The joint economic committees, including both United States and
Micronesian representatives, consider the above analyses and
recommendations and set sector grant amounts.
The Hawaii office provides on-site oversight of Compact programs,
requires the timely submission and review of required financial and
program reports, and works with the inspector general and GAO to
identify and resolve problems.
Trust Funds. Public Law 108-188 provided that independent
corporations be established in Washington, D.C. to house the respective
trust funds for the Republic of the Marshall Islands and the Federated
States of Micronesia. Membership on the respective governing trust fund
committees includes representatives from both the United States
Government and the two freely associated states. The Hawaii office has
no duties with respect to the trust funds.
Compact Impact Funds. The Hawaii office administers the Compact
impact grant to the State of Hawaii. Impact grants to Guam and the CNMI
are administered from Washington.
alcatraz contract
Question 1. It is my understanding that on January 6, 2006, the
Park Service received guidance from the Department of Labor advising
the Park Service that the terms of the Alcatraz contract, which are
principally for providing ferry transportation services to Alcatraz
Island in San Francisco, CA, are subject to coverage under the
McNamara-O'Hara Service Contract Act. Is the Department of the Interior
willing to delay awarding the contract until the Department of Labor
issues its ruling?
Answer. The National Park Service received the Department of
Labor's letter on January 19. The letter states that the Department of
Labor has received a request to make a determination concerning the
applicability of the Service Contract Act (SCA) to the Alcatraz
contract, and asks for NPS's reasons for not including the SCA in the
contract. NPS is now in the process of preparing a response, having
asked the Department of Labor for an extension of time until March 31,
2006. This extension has allowed the Department of Labor and the
Department of the Interior to better understand each other's
interpretation of the relevant laws, including not just the SCA but
also the NPS Concessions Management Improvement Act of 1998.
With respect to the award of the Alcatraz contract, it is my
understanding that the contract cannot be awarded before early May
because of the 60-day Congressional notification required by the NPS
Concessions Management Improvement Act. If there has not been a
resolution of the SCA applicability issue by that time, the National
Park Service does not believe that it is necessary to delay awarding
the Alcatraz contract because the proposed contract requires the
concessioner to comply with all applicable laws, which would include--
if subsequently determined--the SCA. However, the National Park Service
has the ability to then delay the award of the contract if it chooses.
The award of the contract, moreover, will allow the public to benefit
from the new concession contract. The solicitation and selection of the
new concessioner was upheld in an opinion issued by the Court of
Federal Claims on March 6, 2006.
the office of solicitor
Question 1. What is your view of the role of the Solicitor within
the Department?
Answer. I view the role of the Solicitor as being the chief legal
officer of the Department. In that capacity, the Solicitor serves as
the principal legal advisor to the Secretary and is responsible for all
legal work in the Department, except that delegated to the Office of
Hearings and Appeals, the Inspector General, the Legislative Counsel,
and the Justices of the American Samoa.
Question 2. What is your approach to management? What actions do
you anticipate with respect to personnel?
Answer. The Office of the Solicitor has many talented and
outstanding employees. If I have the privilege to be confirmed, I will
look for opportunities to improve operations. I hope to re-establish
connection to the Internet. I believe that the Office generally needs
to maximize the resources that we have available to us by improving
training for staff, increasing our capacities to engage in
collaborative legal processes that are less litigation focused, and to
improve automation practices.
Overall, if I have the privilege to be confirmed, I anticipate few
personnel changes. Like any organization with several hundred people,
there are always some individuals entering or leaving the Office at any
given time. Moreover, the Office faces a period where many individuals
are soon going to be eligible to retire, so the Office must focus on
succession planning.
Question 3. Do you believe that career employees at the Department
should be able to answer technical questions of the Committee and its
staff without pre-approval by political appointees at the Department?
If so, will you communicate this view to all employees of the
Solicitors Office?
Answer. I believe that career employees at the Department should be
able to answer technical questions of the Committee and its staff
without pre-approval by the Department's political appointees. However,
in accord with the Departmental Manual, the employees must coordinate
with appropriate career attorneys in the Department's Office of
Congressional and Legislative Affairs. If I have the privilege to be
confirmed, I will communicate this view to all employees within the
Office of the Solicitor.
coalbed methane report
Question 1. Section 1811 of the Energy Policy Act of 2005 requires
the Department to enter into an arrangement with the National Academy
of Sciences to undertake a report relating to water and coalbed methane
production. The NAS report is due back to the Secretary and the
Administrator of EPA within 12 months after the date of enactment of
EPACT, and the Secretary and the Administrator are to report to
Congress within six months after receipt of the NAS report. Can you
provide me a time-line for entering into the arrangement with the
National Academy of Sciences regarding this report?
Answer. I understand that the Energy Policy Act of 2005 (Act)
contains a number of Congressional mandates, many of which have
specific deadlines for completion or implementation. In fact, the Act
directs the completion of more than 80 tasks by the Department over a
period that spans from 45 days to 10 years. Additionally, the
Department acts as a cooperating agency on approximately 19 tasks for
which other Federal agencies have lead responsibility. The Energy
Coordination Council, which was established by the Secretary shortly
after the Act's enactment, is responsible for coordinating and tracking
the various tasks assigned to the Department under the Act in order to
ensure their timely completion. I am advised that the Bureau of Land
Management has contacted the National Academy of Sciences (NAS) to
discuss the report required under Section 1811 of the Act. Those
discussions are focused on developing appropriate parameters for the
report and determining the extent to which available data may be used
in developing the report. While I cannot provide you with a time line
for entering into agreement with the NAS for completion of the report,
I will make certain that you continue to be informed of our progress in
this regard.
Responses of Mr. Bernhardt to Questions From Senator Thomas
Question 1. I understand that on January 6, 2006, the National Park
Service received guidance from the Department of Labor advising the
Park Service that the terms of the Alcatraz contract, which are
principally for providing ferry transportation services to Alcatraz
Island in San Francisco are subject to coverage under the McNamara-
O'Hara Service Contract Act. Please provide the Committee with the
reasons why the Department of Interior believes the Service Contract
Act does not apply to the Alcatraz contract.
Answer. The National Park Service received the Department of
Labor's letter on January 19. The letter states that the Department of
Labor has received a request to make a determination concerning the
applicability of the Service Contract Act (SCA) to the Alcatraz
contract, and asks for NPS's reasons for not including the SCA in the
contract. NPS is now in the process of preparing a response, having
asked the Department of Labor for an extension of time until March 31,
2006. This extension has allowed the Department of Labor and the
Department of the Interior to better understand each other's
interpretation of the relevant laws, including not just the SCA but
also the NPS Concessions Management Improvement Act of 1998.
I am informed that the position of the National Park Service may be
based upon the following points:
<bullet> Congress has directed the Secretary to ``utilize concessions
contracts to authorize a person, corporation, or other entity
to provide accommodations, facilities, and services to visitors
to units of the National Park System.'' 16 U.S.C. Sec. 5952.
<bullet> Concession contracts are like leases or licenses authorizing
the private sector to provide services to park visitors, not
like Federal procurement or service contracts.
<bullet> Congress indicated its intent that NPS concession contracts
``do not constitute contracts for the procurement of goods and
services for the benefit of the government or otherwise.'' See
NPS Concessions Management Improvement Act of 1998 (``1998
Concessions Act'') and its legislative history, especially S.
Rep. No. 202, 105th Cong., 2d Sess. 39; accord, H.R. Rep. No.
767, 105th Cong., 2d Sess. 43 (1998).
<bullet> Consistent with the 1998 Concessions Act and the
longstanding NPS position, the NPS promulgated regulations in
2000 to make clear that ``[c]oncession contracts are not . . .
service or procurement contracts within the meaning of
statutes, regulations or policies that apply only to federal
service contracts or other types of federal procurement
actions.'' 36 C.F.R. Sec. 51.3.
The Departments of the Interior and Labor are currently in
discussions examining how best to interpret their respective laws to
effectuate Congressional intent.
Question 2. Please provide the Committee with the reasons why the
Department of Interior is unwilling to delay the award of the new
Alcatraz contract until after the Department of Labor rules on the
applicability of the Service Contract Act to the Alcatraz Contract.
Answer. The National Park Service received the Department of
Labor's letter on January 19. The letter states that the Department of
Labor has received a request to make a determination concerning the
applicability of the Service Contract Act (SCA) to the Alcatraz
contract, and asks for NPS's reasons for not including the SCA in the
contract. NPS is now in the process of preparing a response, having
asked the Department of Labor for an extension of time until March 31,
2006. This extension has allowed the Department of Labor and the
Department of the Interior to better understand each other's
interpretation of the relevant laws, including not just the SCA but
also the NPS Concessions Management Improvement Act of 1998.
With respect to the award of the Alcatraz contract, it is my
understanding that the contract cannot be awarded before early May
because of the 60-day Congressional notification required by the NPS
Concessions Management Improvement Act. If there has not been a
resolution of the SCA applicability issue by that time, the National
Park Service does not believe that it is necessary to delay awarding
the Alcatraz contract because the proposed contract requires the
concessioner to comply with all applicable laws, which would include--
if subsequently determined the SCA. However, the National Park Service
has the ability to then delay the award of the contract if it chooses.
The award of the contract, moreover, will allow the public to benefit
from the new concession contract. The solicitation and selection of the
new concessioner was upheld in an opinion issued by the Court of
Federal Claims on March 6, 2006.
Responses of Mr. Bernhardt to Questions From Senator Salazar
Question 1. I understand the Department of the Interior has been
working to create a process to define local governments' rights and
responsibilities in maintaining rights of way which fall under RS 2477.
As you know, the RS 2477 issue has been a major point of contention
among federal land managers, private property owners, and local and
state officials in our home state of Colorado.
Please give a brief description of the process, as it exists in the
Department's current draft.
Answer. As a native of rural Colorado myself, I am well aware of
the longstanding contentiousness surrounding R.S. 2477. The Tenth
Circuit Court of Appeals recently noted, ``the definition of R.S. 2477
rights of way across federal land, which used to be a non-issue, has
become a flash point, and litigants are driven to the historical
archives for documentation of matters that no one had reason to
document at the time.'' SUWA v. BLM, 425 F.3d 735, 742 (10th Cir.
2005). I believe that Secretary Norton read the Tenth Circuit's opinion
and is determined to faithfully follow the law as described by the
Tenth Circuit.
I believe the Secretary other Department policy makers are looking
to utilize approaches that seek to find consensus wherever possible by
encouraging cooperation and communication between the Federal
government, local governments, and the public. However, the Secretary
has not issued any policy statement to date, and the Department has not
completed the development of the process described in your question. I
understand that the National Park Service, U.S. Fish and Wildlife
Service, and the Bureau of Land Management are developing processes to
implement the principles laid out in the SUWA v. BLM decision.
In general, I believe the Department is considering plans to apply
the standards laid out by the Tenth Circuit in SUWA v. BLM, recognizing
this will mean that the actual decisions regarding the validity and
scope of R.S. 2477 rights of way will mainly be guided by state law.
Where the parties agree that the status quo is appropriate for a given
set of roads, they may wish to enter into road maintenance agreements
that will allow routine maintenance. I expect that where an informal
determination of a claim is necessary, the burden will be on the
claimant, if any, to show by a preponderance of the evidence that the
right of way claim is valid. Moreover, even though neither approach
would create permanent binding rights, I expect that the Department
would seek public comment before finalizing either a road maintenance
agreement or a nonbinding determination.
Question 2. What sort of notice does the Department intend to offer
interested stakeholders, including federal land managers other than BLM
staff, private property owners, local and state officials about this
process?
Answer. Again, I do not believe the details of the process have
been finalized, but I believe the public will be afforded notice and an
opportunity to comment before any final nonbinding determination is
made or any route is covered by a road maintenance agreement. If a
route across land managed by an Interior Department bureau also crosses
private land or land managed by another government entity, I expect the
bureau would also give notice specifically to that land manager or
owner.
Question 3. Will there be opportunity for public comment?
a. In what form?
b. When and for how long?
c. How long will potential claimants have an opportunity to
appeal the implementation of this process?
Answer. I do not believe that any particular pathway has been
prescribed, and I expect that the details of the form of comment may
differ depending on what information the decision maker needs in order
to make a fully informed decision under the circumstances. At the very
least, I believe it would include publication of the contemplated
action on the bureau's website and in local news outlets, as well as
the specific notice to affected landowners. If a decision is
straightforward and related only to one or a small number of roads, it
may be reasonable for the time for comments to be short. For larger and
more contentious proposals, the time and format for comments would be
longer.
Due to its nonbinding nature, an adverse informal determination may
not, by itself, create a final agency action subject to appeal. If,
however, the adverse determination led to an action such as closure of
a claimed right of way, I expect the usual statutes of limitation would
apply.
Question 4. What form of assurances does the Department intend to
offer to private property owners whose lands may be subject to disputed
RS 2477 claims?
Answer. I expect that the Department will direct bureaus to develop
safeguards to ensure that their implementation of these principles does
not infringe on the rights of private landowners whose land may be
crossed or abutted by claimed rights of way. I do not believe that the
Department plans to make any administrative determination regarding an
R.S. 2477 right of way on private lands. Moreover, because our informal
determinations are not afforded deference by courts, any determination
we make regarding a right of way are only for planning purposes on land
we manage, and should have no effect on private property. In order to
minimize the risk of disputes, however, ideally land managers would
seek to directly give notice to any such landowners. I expect the
Department will also seek to make available to private property owners
and the public maps and other information in its possession that may
help a landowner assess the validity of a claim regarding his or her
property.
Question 5. As you know, in the Southern Utah Wilderness Alliance
v. BLM opinion, the 10th Circuit cited the 1996 appropriations
provision that prohibits the Department from issuing final rules
governing RS 2477:
No final rule or regulation of any agency of the Federal
Government pertaining to the recognition, management or
validity (emphasis added) of a right-of-way pursuant to Revised
Statute 2477 (43 USC 932) shall take effect unless expressly
authorized by an Act of Congress subsequent to the date of this
Act [Spet. (sic) 30, 1996].
The only information that I have seen regarding the new processes
under consideration by the Department specifically refers to ``validity
and scope determinations for administrative purposes.'' Do you agree
that the Department is prohibited from implementing these new
procedures unless expressly authorized by Congress? If not, why not?
Will you provide the specific legal basis for your position to the
committee in writing?
Answer. I do not anticipate the Department's potential actions will
involve a final rule or regulation prohibited by that provision. When
determining whether the Department or a bureau has issued a binding
rule or regulation or ``merely a statement of policy, we are guided by
two lines of inquiry'' set forth by the Circuit Court of Appeals for
the District of Columbia:
One line of analysis focuses on the effects of the agency
action, asking whether the agency has (1) imposed any rights
and obligations, or (2) genuinely left the agency and its
decisionmakers free to exercise discretion. The language
actually used by the agency is often central to making such
determinations. The second line of analysis focuses on the
agency's expressed intentions. The analysis under this line of
cases looks to three factors: (1) the agency's own
characterization of the action; (2) whether the action was
published in the Federal Register or the Code of Federal
Regulations; and (3) whether the action has binding effects on
private parties or on the agency.
The Wilderness Soc'y v. Norton, 434 F.3d 584, 595 (D.C. Cir. 2006).
I believe that any policy guidance the Department issues on this
matter will leave agencies and decisionmakers free to exercise
significant discretion, and will not impose binding rights or
obligations on private parties or any bureau or agency of the
Department. The Department's intent to issue guidance rather than a
rule will be expressed in any associated documents.
Question 6. The Southern Utah Wilderness opinion holds that the
Department of the Interior has no authority to determine the legal
validity of an R.S. 2477 claim?
Do you agree that this is one holding of that decision?
Do you agree, therefore, that a road maintenance agreement entered
into between BLM and a county government does not mean that the R.S.
2477 claim of that county has any legal validity? That maintenance
agreement doesn't make the R.S. 2477 claim any stronger or any weaker
than it was the day before the maintenance agreement was signed,
correct? The maintenance agreement is irrelevant to the ultimate legal
validity of the county's R.S. 2477 claim, right? And, in the same way,
BLM could refuse to enter into a road maintenance agreement with a
county, and that refusal would also leave the county's legal claim to
an R.S. 2477 right of way unimpaired, correct?
Answer. SUWA holds that title to R.S. 2477 rights of way ``passes
independently of any action or approval on the part of the BLM'' and
that BLM does not have ``authority to make binding determinations on
the validity of the rights of way granted'' by R.S. 2477. 425 F.3d at
754, 757. Nonetheless, the court recognized that ``[t]his does not mean
that the BLM is forbidden from determining the validity of R.S. 2477
claims for its own purposes. BLM has always had this authrority.'' Id.
at 757.
I agree with your analysis of the effect of a road maintenance
agreement on the validity of an R.S. 2477. I do not believe that the
entering into, or refusing to enter into, a road maintenance agreement
will have any effect on the ultimate question of ownership of any
interest in a road. In fact, my understanding is that road maintenance
agreements will explicitly state that they do not affect the ownership
of any interest in the subject roads, and do not prejudice the right of
the county to subsequently assert R.S. 2477 rights of way or the right
of the BLM to assess or defend against any such assertion.
Question 7. In a footnote, the Southern Utah Wilderness opinion
refers to a memorandum from the Secretary of the Interior stating that
BLM can make non-binding administrative determinations of RS 2477
rights where there was ``a demonstrated, compelling, and immediate need
. . .,'' while leaving the final determination of such rights to the
courts. Do you agree that any administrative determinations of RS 2477
rights made by BLM or any other federal agency are ``non-binding?''
Answer. Yes. As the SUWA court noted, these administrative
determinations are useful for an agency's own planning purposes, and
while they may ``be of use to [a] court'' should the issue arise in
litigation, they are not binding on courts. See 425 F.3d at 757.
Question 8. Rep. Mark Udall prepared a letter to Secretary Norton
(attached) with a series of questions about the Department's R.S. 2477
determination process. To my knowledge, Mr. Udall has not received a
response from the Secretary's office. In your current capacity, have
you reviewed and prepared a response to Mr. Udall's letter? What is the
status of the Secretary's response to Congressman Udall's letter?
Answer. I and a number of other staff from the Department have
carefully reviewed Congressman Udall's letter. In my opinion,
Congressman Udall's letter was very helpful. As part of our normal
correspondence process, I believe the Department will respond to the
Congressman's letter. I am also informed that the Office of
Congressional and Legislative Affairs has arranged a meeting between
Congressman Udall's staff and Department personnel to discuss in person
the Congressman's views on this subject. Similarly, we have received a
number of helpful letters from representatives of private property
owners, local governments, and groups such as Earthjustice, The
Wilderness Society, and the Southern Utah Wilderness Alliance itself. I
have personally spoken to representatives of several of these groups.
Their comments and perspectives have also been appreciated.