[From the U.S. Government Printing Office via GPO Access]
SAFETY AND SECURITY OVERSIGHT OF THE NEW NATIONAL NUCLEAR SECURITY
ADMINISTRATION
=====================================================================
JOINT HEARING
before the
SUBCOMMITTEE ON ENERGY AND POWER
and the
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
of the
COMMITTEE ON COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
MARCH 14, 2000
__________
Serial No. 106-105
__________
Printed for the use of the Committee on Commerce
------------------------------
U.S. GOVERNMENT PRINTING OFFICE
64-030CC WASHINGTON : 2000
COMMITTEE ON COMMERCE
TOM BLILEY, Virginia, Chairman
W.J. ``BILLY'' TAUZIN, Louisiana JOHN D. DINGELL, Michigan
MICHAEL G. OXLEY, Ohio HENRY A. WAXMAN, California
MICHAEL BILIRAKIS, Florida EDWARD J. MARKEY, Massachusetts
JOE BARTON, Texas RALPH M. HALL, Texas
FRED UPTON, Michigan RICK BOUCHER, Virginia
CLIFF STEARNS, Florida EDOLPHUS TOWNS, New York
PAUL E. GILLMOR, Ohio FRANK PALLONE, Jr., New Jersey
Vice Chairman SHERROD BROWN, Ohio
JAMES C. GREENWOOD, Pennsylvania BART GORDON, Tennessee
CHRISTOPHER COX, California PETER DEUTSCH, Florida
NATHAN DEAL, Georgia BOBBY L. RUSH, Illinois
STEVE LARGENT, Oklahoma ANNA G. ESHOO, California
RICHARD BURR, North Carolina RON KLINK, Pennsylvania
BRIAN P. BILBRAY, California BART STUPAK, Michigan
ED WHITFIELD, Kentucky ELIOT L. ENGEL, New York
GREG GANSKE, Iowa TOM SAWYER, Ohio
CHARLIE NORWOOD, Georgia ALBERT R. WYNN, Maryland
TOM A. COBURN, Oklahoma GENE GREEN, Texas
RICK LAZIO, New York KAREN McCARTHY, Missouri
BARBARA CUBIN, Wyoming TED STRICKLAND, Ohio
JAMES E. ROGAN, California DIANA DeGETTE, Colorado
JOHN SHIMKUS, Illinois THOMAS M. BARRETT, Wisconsin
BILL LUTHER, Minnesota
LOIS CAPPS, California
James E. Derderian, Chief of Staff
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Energy and Power
JOE BARTON, Texas, Chairman
MICHAEL BILIRAKIS, Florida RICK BOUCHER, Virginia
CLIFF STEARNS, Florida KAREN McCARTHY, Missouri
Vice Chairman TOM SAWYER, Ohio
STEVE LARGENT, Oklahoma EDWARD J. MARKEY, Massachusetts
RICHARD BURR, North Carolina RALPH M. HALL, Texas
ED WHITFIELD, Kentucky FRANK PALLONE, Jr., New Jersey
CHARLIE NORWOOD, Georgia SHERROD BROWN, Ohio
TOM A. COBURN, Oklahoma BART GORDON, Tennessee
JAMES E. ROGAN, California BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois ALBERT R. WYNN, Maryland
HEATHER WILSON, New Mexico TED STRICKLAND, Ohio
JOHN B. SHADEGG, Arizona PETER DEUTSCH, Florida
CHARLES W. ``CHIP'' PICKERING, RON KLINK, Pennsylvania
Mississippi JOHN D. DINGELL, Michigan,
VITO FOSSELLA, New York (Ex Officio)
ED BRYANT, Tennessee
ROBERT L. EHRLICH, Jr., Maryland
TOM BLILEY, Virginia,
(Ex Officio)
______
Subcommittee on Oversight and Investigations
FRED UPTON, Michigan, Chairman
JOE BARTON, Texas RON KLINK, Pennsylvania
CHRISTOPHER COX, California HENRY A. WAXMAN, California
RICHARD BURR, North Carolina BART STUPAK, Michigan
Vice Chairman GENE GREEN, Texas
BRIAN P. BILBRAY, California KAREN McCARTHY, Missouri
ED WHITFIELD, Kentucky TED STRICKLAND, Ohio
GREG GANSKE, Iowa DIANA DeGETTE, Colorado
ROY BLUNT, Missouri JOHN D. DINGELL, Michigan,
ED BRYANT, Tennessee (Ex Officio)
TOM BLILEY, Virginia,
(Ex Officio)
(ii)
C O N T E N T S
__________
Page
Testimony of:
Burick, Richard J., Deputy Director, Los Alamos National
Laboratory................................................. 42
Glauthier, Hon. T.J., Deputy Secretary of Energy; accompanied
by David Michaels, Assistant Secretary, Office of
Environment, Safety, and Health; Glenn S. Podonsky,
Director, Office of Independent Oversight and Performance
Assurance; Eric Figge, Deputy General Counsel; and David
Klaus, Director, Management and Administration, U.S.
Department of Energy....................................... 7
Jones, Gary L., Associate Director, Energy, Resources, and
Science Issues, General Accounting Office.................. 89
Kuckuck, Robert W., Deputy Director for Operations, Lawrence
Livermore National Laboratory, University of California.... 26
Miller, Daniel S., First Assistant Attorney General, Natural
Resources and Environment Section, State of Colorado, on
behalf of National Association of Attorneys General........ 94
Robinson, C. Paul, President and Laboratories Director,
Sandia National Laboratories............................... 31
Van Hook, Robert I., President, Lockheed Martin Energy
Systems, Inc............................................... 49
Material submitted for the record by:
Department of Energy, response for the record................ 124
(iii)
SAFETY SECURITY OVERSIGHT OF THE NEW NATIONAL NUCLEAR SECURITY
ADMINISTRATION
----------
TUESDAY, MARCH 14, 2000
House of Representatives,
Committee on Commerce,
Subcommittee on Energy and Power, Joint with
Subcommittee on Oversight and Investigations,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:10 a.m., in
room 2123, Rayburn House Office Building, Hon. Fred Upton
(chairman, Subcommittee on Oversight and Investigations)
presiding.
Members present Subcommittee on Energy and Power:
Representatives Stearns, Burr, Whitfield, Shimkus, Wilson,
Pickering, Bryant, Markey, and Strickland.
Members present Subcommittee on Oversight and
Investigations: Upton, Burr, Whitfield, Bryant, Stupak, and
Strickland.
Staff present: Tom DiLenge, majority counsel; Kevin Cook,
majority counsel; Anthony Habib, legislative clerk; Sue
Sheridan, minority counsel; and Edith Holleman, minority
counsel.
Mr. Upton. Good morning, everyone. The Congress this
morning is not yet in session. Welcome to a joint hearing
between the Oversight and Investigations Subcommittee and the
Energy and Power Subcommittee. The Congress is not going into
session until 2 o'clock. I would note that my very good friend,
Joe Barton, chairman of the Energy and Power Subcommittee, has
an election in Texas today and he will remain in Texas to vote
and we do not expect him. Unless this hearing goes terribly
long we do not expect him to be here for this hearing. But we
have members from both subcommittees that are here and I would
make a unanimous consent request that all members will be
allowed to enter their opening statement as part of the record.
Without objection so ruled.
Today's hearing will explore what impact the implementation
of the new National Nuclear Security Administration within the
Department of Education may have on the currently centralized
and critical functions of security and safety oversight. This
committee knows perhaps better than any committee in Congress
the extent of the Department's problems in these areas after
having a number of hearings this past year. We have worked
together in a bipartisan fashion to explore and expose these
failings and to urge necessary reforms.
Safety and security oversight has been a consistent and
central theme of our work and the focus of many of these
hearings and other activities. I believe that we have prodded
the Department toward progress in these areas and I expect that
this committee will continue to do so in the future. The newest
challenge for the Department comes in the wake of last year's
spy scandal which revealed much more about the Department's
poor security practices than its failure to prevent one alleged
spy in Los Alamos from compromising our national security. That
scandal and the resulting scrutiny of DOE's security practices
led Congress to create a new semi-autonomous agency within the
Department to manage its nuclear weapon and defense-related
activities.
The new NNSA was conceived of as a way to streamline the
chain of command and improve accountability for security
matters--two reforms that numerous independent reviews from the
GAO to the President's own Foreign Intelligence Advisory Board,
headed by former Senator Rudman, had called for over the years.
I think that we can all agree with these objectives and that
the Department needed to be reformed. But one important
question not addressed in the new law was how semi-autonomy
would work with respect to the independent oversight of safety
and security.
No agency or administration, whatever it is called or
however it is set up, should be immune from independent
oversight of such critical functions. The history of poor
security and safety practices at these sites, however long it
may be, is still recent enough in fact to caution us against
letting the NNSA become a self-regulating entity within the
Department.
Today's hearing will explore some of the questions raised
by the act and the Department's implementation plan,
particularly as they relate to this matter of security and
safety oversight. Although the NNSA is only 2 weeks old, we may
be able to begin exploring whether some of the ambiguities and
inherent conflicts evident in the law and the administration's
implementation plan are already manifesting themselves in on-
the-ground problems in these two areas.
I want to thank all of our witnesses for appearing here
today and will now recognize other members for an opening
statement. Mr. Stearns from Florida.
Mr. Stearns. Thank you, Mr. Chairman. This hearing today is
one of profound importance to our national security. I don't
think this morning you need to go over the allegations of
Chinese espionage and security concerns which surfaced last
year, but rather we should use this forum to highlight the
problem areas that exist and examine all possible solutions.
Last year Congress, as mentioned, passed legislation to
establish the National Nuclear Security Administration, a semi-
autonomous agency within the Department of Energy. This
legislation was designed to streamline and improve security
measures and ensure accountability in our national security
defense facilities.
Even before the NNSA passed, a number of concerns were
expressed by both Congress and the administration. For example,
a number of Commerce Committee members voted against the
National Defense Authorization Act specifically because of this
legislation. So I would hazard to guess something has deeply
troubled them about the language.
Our goal here today, Mr. Chairman, is to assess the
problems inherent within NNSA as it relates to oversight of
safety and security. These are chronic problem areas which have
existed since the Department's creation. We have heard both
Senator Rudman and the GAO refer to a, ``culture,'' in DOE
which seems to espouse a bureaucratic form of elitism and a
resistance to substantive change. Despite our concerns, the
NNSA language is now law and we have seen a number of reforms
set forth by Secretary Richardson to implement the provisions
of this new law.
However, some of these actions such as a, ``dual hatting,''
of current DOE officials into corresponding NNSA port positions
appear to be contrary to the letter of the law. It is possible
though that DOE is finding itself in a Catch-22. DOE appears to
be violating the, ``semi-autonomous,'' intent of the NNSA law
in order to comply with its implementation. The laboratories
themselves are exemplary scientific facilities with some
serious security and environment, safety, and health problems.
Mr. Robinson, Director of the Sandia National Labs, has
referred to the Department, DOE's loaded bureaucracy and micro-
management as a serious problem. But we must remember that
responsibility must fall on the frontline contractor who
manages these facilities on a daily basis. In fact, Mr.
Robinson quoted Senator Rudman's report, which referred to DOE
as a, ``big Byzantine and bewildering bureaucracy.'' I think
this speaks volumes in terms of addressing the designs of a new
NNSA.
Finally, Mr. Chairman, the Commerce Committee has just
released a GAO report detailing the shortcomings in security
tracking, inconsistent rating criteria and development of
corrective actions from security inspections. This hearing is
but one more step in the process. We have an extensive public
record resulting from a number of hearings on DOE restructuring
and lab management practices over the last several years. My
responsibility as a member of the Subcommittee on Energy and
Power is to work to develop legislative solutions to problems
that exist within the agency's and within the committee's
jurisdiction.
So, Mr. Chairman, I look forward to the testimony from our
witnesses today and I am confident that the information will
prove valuable as we move through the process.
Mr. Upton. Thank you, Mr. Stearns. I would recognize the
gentlelady from Albuquerque, New Mexico, Mrs. Wilson.
Mrs. Wilson. Thank you, Mr. Chairman. I thank you for
holding this hearing today. As you know, I have worked with the
nuclear weapons complex in the past, and Sandia National
Laboratory is in my district. I was actively involved in
crafting the legislation last year to implement some common
sense reforms to protect our Nation's nuclear programs from
espionage. Last year the Congress passed both the
reorganization of the Department of Energy and measures to
strengthen the Department of Energy's counterintelligence
program. The legislation creates a semi-autonomous agency
within the Department of Energy with responsibility for the
Nation's nuclear weapons nonproliferation and nuclear reactors
program.
While the Cox report last year and the Rudman report
brought a renewed awareness of the problems in the management
in the Department of Energy, what those reports brought forth
were not new. The Chiles report in 1999, the Drell report in
1990, the Institute for Defense Analysis 3 years ago, and the
Galvin report are only some of the very distinguished and
thoughtful groups that have recommended significant
organizational change at the Department of Energy. Following
the 1999 Cox Report on Chinese espionage, former Senator Warren
Rudman and the President's Foreign Intelligence Advisory Board
came to similar conclusions.
I won't go through what those reports recommended, but I
will include them in my statement in the record. Today a fellow
New Mexican and a former member of this committee, recognizing
that there are serious problems, has again tried to implement
reforms. The fact is that every secretary and assistant
secretary recognizing there were serious problems tries to
implement reforms, and we have had an ever-increasing number of
management overlays within the Department of Energy and more
structures on top of more structures to oversee other
structures. That resulted in literally having overseers oversee
the overseers.
As an example I will cite the review by the Institute for
Defense Analysis which found that many DOE and contractor
officials described Defense Program's oversight as creating an
inverted management pyramid because the number of reviewers
exceeds the number of hands-on workers; for example,
contractors of cited examples where work done by two or three
people becomes the subject of review meetings involving 40 or
more defense program's officials. The fact is that this myriad
of oversight and review did not improve performance. To the
contrary in some cases I would argue that it diminished
performance. It is my view that it is frequently easier to be
the overseer than to be the responsible party. As the overseers
multiplied, the line between oversight and responsibility was
blurred and sometimes disappeared and the frequent result was
that when mistakes were made everyone thinks they are an
overseer and nobody takes responsibility.
I might add, Mr. Chairman, that this duplication of
oversight was also tremendously costly and it is the taxpayers
of this country that pay that cost. That is why I and some
others in the Congress came to the conclusion as a result of
input and conversations with many constituents and others who
understand these things a lot better than I do that it was time
to make some serious management change in the way that the
Department of Energy was structured.
Last year the Congress passed legislation to reorganize DOE
and create a semi-autonomous agency within the DOE. Where are
we now? The DOE initially opposed the implementation of the law
and the opposition was reflected in the President's statement
on signing the law. The President and the Secretary dual hatted
people in the Department of Energy and in the NNSA. Both
actions are contrary to the spirit and the letter of the law.
Following its initial resistance to implementing the law,
the DOE has made some progress and I particularly commend the
Secretary on the nomination of John Gordon to head the NNSA,
and I will work hard to make sure that the legislation is there
to allow him to have the full 3-year term.
While both of these actions are positive, the
implementation plan is inadequate in some respects that deserve
highlighting. The plan continues to confuse lines of authority
that the law was intended to eliminate. The plan anticipates
dual hatting employees. That is clearly in violation of the
Reorganization Act and the plan lacks specificity in many
important respects.
These deficiencies in the implementation plan and the dual
hatting directive tell me--lead me to only one conclusion, and
that is we are in a transitional period at the Department of
Energy. Some activity will take place over the next 9 months,
but the reorganization will be fully implemented by the next
President, whoever he may be.
And so now here we are, here we go again. The Department of
Energy is here with their first round of what I assume will be
many requests to add overseers and undermine the reorganization
and the change that was intended by passing the act last year.
I will resist that change because I think we did something good
last year. We have a national nuclear security that is subject
to all of the environment, safety, and health policies that are
promulgated by the DOE. What we don't have is bureaucrats in
Washington telling a new director of the NNSA and the lab
directors how to do their jobs, out there playing on the field
until it is time for accountability and then they disappear
into the woodwork.
Thank you, Mr. Chairman.
Mr. Upton. Thank you. The gentleman from Kentucky, Mr.
Whitfield.
Mr. Whitfield. Mr. Chairman, thank you very much. I am not
going to make an opening statement.
Mr. Upton. Thank you for keeping things on schedule here.
[Additional statement submitted for the record follows:]
Prepared Statement of Hon. John D. Dingell, a Representative in
Congress from the State of Michigan
Mr. Chairman, I support your effort to take a close look at the
early implementation of the National Nuclear Security Administration, a
``semi-autonomous'' agency within the Department of Energy that was
established over your and my objections in Title 32 of last year's
Defense Authorization. It is perhaps too early to determine whether
fears that this law would recreate the discredited old Atomic Energy
Commission will bear out. However, it is not too early to witness the
fruits of hasty drafting on the part of the Armed Services Committees,
who skirted the normal legislative process and as a result have saddled
the Department with a poorly conceived reorganization plan.
There is little doubt that safeguards and security at the
Department of Energy need improvement, as this committee has observed
in a number of hearings over the years, and as events within the
weapons complex last year demonstrated.
However, this legitimate concern about security was parlayed into a
much more ambitious agenda. In its final form, the FY 2000 Defense
Authorization bill undertook a complete reorganization of the
Department's nuclear weapons complex--including the national
laboratories--in a provision drafted on the last night of the
conference, behind closed doors and never subjected to legislative
hearings. Moreover, Title 32 was included in the defense bill over
objections from Chairman Bliley, myself, the Subcommittee chairman, and
a number of other members of this and other committees of jurisdiction.
It also was adopted over the strong objections of Secretary Richardson
and the Administration. This legislation gives more autonomy and less
oversight to the entities within DOE that have caused the greatest
environmental disaster in the country's history, major health and
safety problems and the security breach that resulted in this
legislation. Often they defied directives from headquarters that would
have avoided some of these problems.
As is often the case, this departure from normal legislative
practice has been achieved at considerable cost. Perhaps the most
glaring problem is ambiguity in the drafting and internal inconsistency
within Title 32, which makes implementation of this provision rather
difficult. Is the dual appointment of Department personnel to the NNSA
permitted? If so, for how many employees and at what levels of
seniority? Do the legal interpretations of the Department's General
Counsel take precedence over those of the NNSA's own general counsel,
or vice versa? I must note that the three laboratory directors who will
appear before us today wholeheartedly endorse this new approach. And
why shouldn't they? Once again, they are in charge, despite their
mediocre--at best--history of dealing with safety, environmental and
security crises.
Mr. Chairman, members of this committee raised these same
questions, and many others, when our colleagues on the Armed Services
Committees rushed to adopt this provision in conference last year. The
resulting uncertainty will doubtless continue to plague both DOE and
the Congressional committees with responsibility for overseeing its
operations for some time to come.
Mr. Chairman, I want to particularly call Members' attention to the
testimony of Mr. Miller of the Colorado Attorney General's Office,
which highlights the serious adverse consequences that certain
provisions of Title 32 may have on the States' ability to enforce
environmental laws and oversee cleanup at DOE nuclear weapons
facilities. Mr. Miller and 43 State Attorneys General are not alone in
calling for legislative changes to protect and preserve existing state
authorities. The National Governors Association and the National
Conference of State Legislatures have also raised serious concerns
about Sections 3261 and 3296 of the National Nuclear Security Agency
legislation and these serious deficiencies should be corrected. I ask
that correspondence from each of these organizations be inserted at the
appropriate place in the record.
Mr. Chairman, I thank you for holding this hearing and look forward
to the witnesses' testimony.
Mr. Upton. Our first panel includes the Honorable T.J.
Glauthier, Deputy Secretary of Energy; and will be accompanied
by Dr. David Michaels, the Assistant Secretary of the Office of
Environment, Safety, and Health; and a frequent member to our
subcommittee, Mr. Glenn Podonsky, Director of the Office of
Independent Oversight and Performance Assurance of the
Department of Energy.
I think as all three of you gentlemen know, it is generally
the practice of the Oversight Subcommittee to take testimony
under oath. Do you have any objection to that?
Hearing none, we also under committee rules allow you to be
advised by counsel. Do you need counsel?
Mr. Glauthier. I think we might.
Mr. Upton. You might?
Mr. Glauthier. We would like to include our counsel being
sworn.
Mr. Upton. If you might, just indicate their names for the
record and then when we swear you in have them stand as well.
Mr. Glauthier. Mr. Eric Fygi, who is the Deputy General
Counsel for the Department of Energy. I think we might include
David Klaus, who is our Director of Management and
Administration and co-chaired the implementation effort within
the Department.
Okay. If you all five would stand up and raise your right
hand.
[Witnesses sworn.]
Mr. Upton. Thank you. You are now under oath. Mr.
Glauthier, your remarks will be made in their entirety as part
of the record. We would like, if we can, to limit your opening
statement to about 5 minutes and the time is now yours. Thank
you.
TESTIMONY OF THE HON. T.J. GLAUTHIER, DEPUTY SECRETARY OF
ENERGY; ACCOMPANIED BY DAVID MICHAELS, ASSISTANT SECRETARY,
OFFICE OF ENVIRONMENT, SAFETY, AND HEALTH; GLENN S. PODONSKY,
DIRECTOR, OFFICE OF INDEPENDENT OVERSIGHT AND PERFORMANCE
ASSURANCE; ERIC FYGI, DEPUTY GENERAL COUNSEL; AND DAVID KLAUS,
DIRECTOR, MANAGEMENT AND ADMINISTRATION, U.S. DEPARTMENT OF
ENERGY
Mr. Glauthier. Thank you, Mr. Chairman. I will abbreviate
my comments, understanding the full comments are in the record.
I do appreciate the opportunity to appear before you today to
discuss the Department's implementation of the National Nuclear
Security Administration Act and in particular how the
Department will address safety and security within the NNSA.
With me today are Dr. David Michaels, the Assistant Secretary
for Environment, Safety and Health, and Glenn Podonsky, the
Director of the Office of Independent Oversight and Performance
Assurance. They have been involved in developing the
Department's implementation plan for the NNSA and can help
answer questions in those areas. And as I mentioned a moment
ago, Mr. Eric Fygi, our Deputy General Counsel, and David
Klaus, who is the Director of our Management Administration,
are both with me as well.
As a starting point I would like to report to the
subcommittee that the NNSA is now in place and as of March 1
over 2,000 Federal employees and over 37,000 contractor
employees have been reassigned to the NNSA. The Offices of
Defense Programs, Naval Reactors and Fissile Materials and
Disposition and Non-proliferation National Security have been
incorporated into the administration. Organization charts,
mission and function statements for the new administration are
in place. Delegations of authority to the NNSA administration
are in place and new positions have been established. The
Department is making significant progress in the effort to fill
the leadership positions of the new administration.
As you know, President Clinton has announced that he
intends to nominate Air Force General John Gordon for the
position of Under Secretary and Administrator of the NNSA. We
look forward to that and hope that that will proceed rapidly.
President Clinton also last week nominated Madelyn Creedon for
the position of deputy administrator of the NNSA for defense
programs. We hope that she as well as General Gordon will be
confirmed by the Senate in the near future. With these
positions filled, the leadership of the NNSA will be in place
and fully operational.
While we are implementing the law the Secretary still has
concerns about how the NNSA was designed in last year's
legislation. Secretary Richardson is seeking new language which
allows the Secretary of Energy to manage all personnel within
the NNSA. This power was provided in the Senate passed version
but was dropped in the conference version bill. The President
and the Congress hold the Secretary of Energy accountable for
his or her actions. At the very least, the law should allow the
Secretary to manage personnel at the NNSA in the fashion he
determines necessary.
Your committee has expressed a particular interest in how
safety and security concerns will be managed at the new
administration. Our objective in this regard has been to
implement the NNSA Act in a manner that continues the
significant progress that the Department has made in these
areas and allows the Department's expertise to be utilized
throughout the full Department.
As you know, the NNSA has been established at a time when
DOE is in the midst of responding to significant challenges
with regard to security. On May 11 last year, Secretary
Richardson directed the most far-reaching security
reorganization in the DOE's history to address heightened
concerns with regard to the security of the nuclear weapons
program. These reforms included the establishment of a new
Office of Security and Emergency Operations that reports
directly to the Secretary and the establishment of a new
Counterintelligence Program for the Department that also
reports directly to the Secretary.
In addition, the Secretary created the Office of
Independent Oversight and Performance assurance, led by Mr.
Podonsky, to provide independent oversight of the effectiveness
of safeguards and security, cyber security and emergency
management policy and to assess the effectiveness of the
implementation of these policies in the field. His office also
reports directly to the Secretary.
The security reforms have led to significant progress in
addressing security issues throughout the Department. We also
have an equally important focus on worker safety and health and
environmental protection. The Office of Environment, Safety,
and Health directly supports the Secretary in the development
of internal environmental, safety, and health policy, including
the National Environmental Policy Act, the management of
corporate programs such as radiation accreditation,
implementation of independent environment, safety, and health
oversight and enforcement of nuclear safety rules under the
Price-Anderson Amendments Act.
The office has led recent initiatives at the Paducah
gaseous diffusion plant and other DOE facilities with regard to
environment and worker safety. The Department's implementation
plan for the NNSA seeks to buildupon these initiatives and to
continue the progress that has been made in addressing safety
and security concerns at all of our facilities.
In this regard I refer also to the principles that guided
the Department's implementation plan, two of which were to
preserve the Secretary's overarching authority and to protect
the environment and health and safety of workers and the
public. The overall responsibility and authority on safety and
security policy in the Department rests with the Secretary. I
can assure you that the Secretary and the entire Department
take this responsibility quite seriously.
As for the role of support organizations, it is important
to recognize that the establishment of the NNSA does not change
the scope of responsibility for the departmental offices that
perform independent oversight and have departmentwide
responsibilities of overall policy in areas such as
environmental compliance, security, and worker safety and
health. Independent oversight offices will continue to review
all DOE sites and activities and report directly to the
Secretary on their findings and recommendations. To be
specific, the Assistant Secretary of Environment, Safety, and
Health and the Office of Independent Oversight and Performance
Assurance will continue to perform their current functions with
regard to all activities in the Department, including those
within the NNSA. Responsibility for the implementation of these
policies rests within the NNSA and its line management
organizations.
Similarly, the primary responsibility for security will be
the responsibility of the program offices and the Office of
Defense Nuclear Security, the Office of Nuclear
Counterintelligence within NNSA. As you may be aware, these are
two positions that are filled by dual hatted officials of the
Department.
The Department already has recognized world class managers
like Ed Curran in counterintelligence and General Gene Habiger
in security. They are already leading the effort to implement
the departmentwide security reforms we all believe are so
essential at this time. These security problems exist across
the complex, not only within NNSA. It is essential to have
consistent and effective policies in place within and outside
the NNSA, the Department's implementation plan dual hats Ed
Curran and General Habiger, because it makes no sense to search
out other people to perform a function they are already doing
so well.
Assistant Secretary Michaels has one dual hat
responsibility within the NNSA, so he can initiate shutdown in
circumstance where a clear and present safety danger exists.
The Assistant Secretary has had such authority throughout the
Department since 1986 and it is appropriate that he continue to
be able to exercise this authority at the NNSA facilities if
needed. That's the only responsibility he has in that dual
hatted position.
Let me give you an example of how the restructured DOE will
respond to safety and security concerns in the future. This is
a real example of how Secretary Richardson and the Department
are responding to the discovery of ground water contamination
at the Pantex plant near Amarillo, Texas. The Department's
initial response to this discovery was taken on March 6, less
than a week after the day that the NNSA was established and of
course only a week ago. It provides an excellent example of how
the Office of Environment, Safety, and Health will be involved
at an NNSA facility such as Pantex in a matter that is
consistent with the NNSA Act.
Let me tell you what we have done. First, the Department
made the determination as to whether the discovery of
trichloroethylene in the Ogollala Aquifer presented such a
serious threat to health and safety that operations at Pantex
should be shut down. This determination, which was made in
consultation of officials at the facility, at the Office of
Defense Programs, and Assistant Secretary Michaels, was that
the facility did not need to be shut down.
Second, Secretary Richardson directed that a team of
experts from our Environmental, Safety, and Health Office go to
investigate the situation and provide a report to the
Secretary. I ``emphasize investigate and report'' because you
should know that ES&H is not going to Pantex to take over the
situation and direct and control what is going to happen. They
are there to provide expertise and advice to the Defense
Program Office and to the Secretary and to the NNSA. We the
senior officials need to know the facts and recommendations.
Third, Secretary Richardson directed experts from the
Office of Environmental Management who are familiar with TCE
contamination to provide Pantex officials the most recent
information and help develop a response plan. Once again those
officials were not there to direct and control the response.
They were there to help develop a response. The responsibility
for the actual corrective action still rests with the Office of
Defense Programs within the NNSA. All of these actions are
appropriate and entirely within the NNSA Act. They also are the
best way to get experts from throughout the Department down to
Pantex to help solve the problem. That's what we need to do
when we are faced with a situation that threatens health and
safety, to help solve the problem.
I appreciate the opportunity to be here today to testify
and would be happy to answer any questions.
[The prepared statement of Hon. T.J. Glauthier follows:]
Prepared Statement of T.J. Glauthier, Deputy Secretary of Energy,
Department of Energy
I appreciate the opportunity to appear before you today to discuss
the Department of Energy's implementation of the National Nuclear
Security Administration Act, and in particular how the Department will
address safety and security at the NNSA. With me today are Dr. David
Michaels, Assistant Secretary or Environment, Safety and Health, and
Glenn Podonsky, the Director of the Office of Independent Oversight and
Performance Assurance. They have been involved in developing the
Department's implementation plan for the NNSA, and can help answer any
questions the Committee may have regarding safety and security
throughout the Department, including the NNSA.
establishment of the national nuclear security administration
As a starting point I would like to report to the Subcommittees
that the National Nuclear Security Administration is now in place and,
as of March 1, over 2000 federal employees have been reassigned to the
NNSA. The Offices of Defense Programs, Naval Reactors, Fissile
Materials and Disposition, and Nonproliferation and National Security
have been incorporated into the Administration. This means over 37,000
contractor employees are under the purview of the NNSA. Organization
charts and mission and function statements for the new Administration
are in place. Delegations of authority to the NNSA Administration are
in place and new positions have been established.
As required by the NNSA Act, the following contractor-operated
national laboratories and nuclear weapons facilities also became part
of the NNSA on March 1, 2000. All of these facilities will report to
the Deputy Administrator for Defense Programs:
Los Alamos National Laboratory, Albuquerque, New Mexico;
Sandia National Laboratories, Albuquerque, New Mexico and
Livermore, California;
Lawrence Livermore National Laboratory, Livermore, California;
the Kansas City Plant, Kansas City, Missouri;
the Pantex Plant, Amarillo, Texas;
the Y-12 Plant, Oak Ridge, Tennessee;
the tritium operations facilities, Savannah River, South
Carolina; and
the Nevada Test Site, Nevada.
The Offices of Defense Nuclear Security and Defense
Counterintelligence also have been established within the NNSA, as well
as the positions of NNSA General Counsel and Deputy General Counsel.
The Nevada and Albuquerque Field Operations Offices have been
transferred into the NNSA, and procedures have been put in place so
that the Field Office Managers at the Oakland, Oak Ridge, and Savannah
River Operations Offices are reporting to the NNSA programs for NNSA
functions.
The Department is making significant progress in the effort to fill
leadership positions at the new Administration. President Clinton has
announced that he intends to nominate Air Force General John A. Gordon
for the position of Undersecretary for Nuclear Security and
Administrator of the NNSA. The NNSA Act specified that the Under
Secretary have a national security and a technical background. A
special search committee appointed by the Secretary to make
recommendations for this position found no better-qualified candidate
for this position than General Gordon--he was at the top of their list.
We believe it is critical that NNSA Administrator not be limited in
focus to the balance of the current Administration, and therefore are
seeking a change in the law to specify the sense of the Congress that
the first Administrator serve for a minimum term of three years, at the
pleasure of the President. This legislative provision would be much
like those providing for the appointments of the Joint Chiefs for a
specified term, at the pleasure of the President. Key leaders of the
Senate Armed Services Committee have indicated that they intend to move
expeditiously on this legislation. A three year appointment is a
serious commitment to making the NNSA Act work in a way that supports
the mission of the Department of Energy. I would like to stress,
however, that this provision would only apply to the first
Administrator, and that all future Administrators would be appointed in
the normal cycles of Presidential appointments as Administrations
change.
President Clinton also has announced his intention to nominate
Madelyn Creedon for the position of Deputy Administrator of the NNSA
for Defense Programs. We hope that she, as well as General Gordon, will
be formally nominated and confirmed by the Senate in the near future.
With these positions filled, the leadership of the NNSA will be in
place and fully operational.
While we are implementing the law, the Secretary still has concerns
about how the NNSA was designed in last year's legislation. Secretary
Richardson is seeking new language which allows the Secretary of Energy
to manage all personnel within the NNSA. This power was provided in the
Senate passed version of the bill, but was dropped in conference. The
President and Congress hold the Secretary of Energy accountable for his
or her actions. At the very least the law should allow the Secretary to
manage personnel at the NNSA in the fashion he determines necessary.
safety and security at the nnsa
Your Committee has expressed a particular interest in how safety
and security concerns will be managed at the new Administration. Our
objective in this regard has been to implement the NNSA Act in a manner
that continues the significant progress that the Department has made in
the areas of safety and security, and allows the Department's expertise
in these areas to be utilized throughout the Department.
As you know, the National Nuclear Security Administration has been
established at a time when the Department of Energy is in the midst of
responding to significant challenges with regard to security at the
Department's nuclear weapons laboratories and production/test
facilities. On May 11, 1999, Secretary Richardson directed the most
far-reaching security reorganization in the Department of Energy's
history, to address heightened concerns with regard to the security of
the Department's nuclear weapons program. These reforms included the
establishment of a new Office of Security and Emergency Operations that
reports directly to the Secretary, and the establishment of a new
counterintelligence program for the Department that reports directly to
the Secretary. In addition, the Secretary created the Office of
Independent Oversight and Performance Assurance, led by Glenn Podonsky,
to provide independent oversight of the effectiveness of safeguards and
security, cyber security, and emergency management policy, and to
assess the effectiveness of the implementation of these policies by the
field. This office also reports directly to the Secretary.
The security reforms have led to significant progress in addressing
security issues throughout the Department. The Office of Security and
Emergency Operations has implemented a number of new security policies,
and additional actions to improve security at the national weapons
laboratories and production/test facilities are at various stages of
development and implementation. Since the Office of Counterintelligence
was established, numerous counterintelligence measures have been
implemented and new counterintelligence personnel designated at
critical field operations offices and laboratories across the
Department. The Office of Independent Oversight and Performance
Assurance has conducted numerous independent reviews of field
facilities, including all the nuclear weapons laboratories. As a result
of these reviews, significant security issues have been identified and
security programs have been enhanced.
The Department has an equally important focus on worker safety and
health and environmental protection. The Office of Environment, Safety
and Health (EH) directly supports the Secretary in the development of
internal environment, safety and health policy including the National
Environmental Policy Act, the management of corporate programs such as
radiation accreditation, implementation of independent environment,
safety and health oversight, and enforcement of nuclear safety rules
under the Price Anderson Amendments Act. The Office has led recent
initiative at the Paducah Gaseous Diffusion Plan and other DOE
facilities with regard to environmental and worker safety.
The Department's implementation plan for the NNSA seeks to build
upon these initiatives, and to continue the progress that has been made
in addressing safety and security concerns at all DOE facilities. In
this regard, I refer you to two of key principles that guided the
Department's Implementation Plan for establishing the NNSA:
Preserve the Secretary of Energy's overarching authority to
establish policy for the Department. The NNSA Act recognizes
the Secretary's responsibility to set policy for the
Department, including the NNSA, and provides that the staff of
the Department may support the Secretary in the development of
such policy. The Department has implemented the Act in a way
that preserves the Secretary's ability to draw upon the
expertise and experience that exists throughout the Department
in the development of such policies.
Protect the environment and the health and safety of workers
and the public. Substantial DOE expertise on worker health and
safety and environmental protection resides in the Office of
Environment, Safety and Health, the Office of Environmental
Management and in other program and support offices that are
not within the NNSA. The Implementation Plan assures that this
expertise, and the capability to provide independent safety
oversight and reviews, will still be available with regard to
NNSA programs.
The overall responsibility--and authority--on safety and security
policy at the Department of Energy rests with the Secretary of Energy.
I can assure you that the Secretary, and the entire Department, take
this responsibility quite seriously.
As for the role of support organizations, it is important to
recognize that the establishment of the NNSA does not change the scope
of responsibility of the departmental offices that perform independent
oversight and have the department-wide responsibilities for overall
policy in areas such as environmental compliance, security, and worker
safety and health. Independent oversight offices will continue to
review all DOE sites and activities and report directly to the
Secretary on their findings and recommendations. To be specific, the
Assistant Secretary for Environment, Safety and Health, and the Office
of Independent Oversight and Performance Assurance will continue to
perform their current functions with regard to all activities of the
Department, including those within the NNSA. Responsibility for the
implementation of these policies rests within the NNSA and its line
management organizations.
Similarly, the primary responsibility for security will be the
responsibility of the program offices and the Office of Defense Nuclear
Security and Office of Nuclear Counterintelligence within the NNSA. As
you may be aware, these are two positions that are filled by ``dual
hatted'' officials of the Department. The Department already has
recognized world class managers like Ed Curran in Counterintelligence
and General Gene Habiger in Security. They are already leading the
effort to implement the Department-wide security reforms that we all
believe are so essential at this time. These security problems exist
across the DOE complex--not only within the NNSA. It is essential to
have consistent and effective policies in place within and outside the
NNSA. The Department's implementation plan ``dual hats'' Ed Curran and
General Habiger because it makes no sense to search out other people to
perform a function they are already doing so well.
Assistant Secretary Michaels has one ``dual-hat'' responsibility
within the NNSA so that he can initiate shut-down in circumstances
where a clear and present safety danger exists. The Assistant Secretary
has had such authority throughout the Department since 1986, and it is
appropriate that he continue to be able to exercise this authority at
NNSA facilities if needed.
Let me give you an example of how the restructured DOE will respond
to safety and security concerns in the future. Unfortunately, it is a
real example--how Secretary Richardson and the Department are
responding to the discovery of groundwater contamination at the Pantex
Plant near Amarillo, Texas. The Department's initial response to this
discovery was taken on March 6, 2000--less than a week after the date
upon which the NNSA was established. It provides an excellent example
of how the Office of Environment, Safety and Health will be involved at
an NNSA facility such as Pantex in a manner that is consistent with the
NNSA Act. Let me tell you exactly what the Department did at Pantex.
First, the Department made a determination as to whether the
discovery of trichloroethylene in the Ogalalia Aquifer presented such a
serious threat to health and safety that operations at Pantex should be
shut down. This determination, which was made in consultation with
officials at the facility, the Office of Defense Programs and Assistant
Secretary Michaels, was that the facility did not need to be shut down.
Second, Secretary Richardson directed that a team of experts from
ES&H go investigate the situation and provide a report to the
Secretary. I emphasize ``investigate'' and ``report'' because you
should know that ES&H is not going to Pantex to take over the situation
and direct and control what is going to happen. They are there to
provide expertise and advice to the Defense Programs Office and the
NNSA, and to report their observations to the Secretary. We, the senior
officials of the Department, need to know the facts and the
recommendations of our experts on how to proceed.
Third, Secretary Richardson directed experts from the Office of
Environmental Management who are familiar with TCE contamination to
provide Pantex Plan officials the most recent information and help
develop a response plan. Once again, the officials at Office of
Environmental Management are not there to ``direct and control'' the
response--they are there to help develop a response. Responsibility for
corrective action rests with the Office of Defense Programs within the
NNSA.
All of these actions are appropriate--and entirely within the NNSA
Act. They also are the best way to get experts from throughout the
Department down to Pantex to help solve the problem. That is what we
need to do when we are faced with a situation that threatens health and
safety--solve the problem.
I appreciate the opportunity to testify on the important issues of
safety and security at the NNSA. I will conclude my statement and
welcome any questions which the Panel may have.
Mr. Upton. Thank you very much. As you know our usual
procedure is that members will be able to limit ourselves to 5
minutes and we will switch back and forth between members as
they appear.
Your written testimony asserts that under NNSA the
independent oversight offices will continue to review all DOE
sites and activities and report directly to the Secretary on
their findings and recommendations. But I have a couple of
questions that were not necessarily cited in your testimony.
Will the oversight offices have the authority to unilaterally
decide to initiate an inspection of a site within the NNSA or
will they have to get NNSA approval?
Mr. Glauthier. No. They will have the authority to decide
when and where to make investigation.
Mr. Upton. And Mr. Podonsky's office again I am sure will
be conducting a no-notice cyber security penetration test on a
regular basis. Will that office be able to do that under NNSA
as well?
Mr. Glauthier. Yes, it will.
Mr. Upton. Because that's very important and certainly one
of the things that we viewed as a number of us went and visited
a number of the labs in January.
Mr. Podonsky, one criticism of the oversight function in
the past has been its reluctance to make specific findings and
get involved in developing or reviewing corrective action plans
and validating closure of those findings. Over the past year
your security oversight office has been doing more of this
hands-on work but a number of us are concerned that under the
new NNSA these activities may again be limited by claims of
undue interference. Indeed, throughout the written testimony of
a number of the witnesses today there seems to be a notion that
your office's role will be more circumscribed, essentially
providing advice to the Secretary only. The GAO's testimony
later on raises that exact issue and notes that DOE's
implementation plan for NNSA is silent on the point.
Do you expect a more limited role for oversight under the
new structure or will you continue to take a more active role
in corrective action planning and follow-up inspections to
ensure the adequacy of the reforms?
Mr. Podonsky. It is our intention, Mr. Chairman, to
continue our role as an extension of the Secretary's office in
which he established us to go out there and not to control or
require, but to report on the activities. To date we have
experienced within the existing NNSA mostly cooperation in this
new approach that the Secretary has allowed us to take in terms
of actually getting involved with corrective action plans and
following those through to closure.
Mr. Upton. So you don't see any problems at all, you think
that you will have unfettered----
Mr. Podonsky. As of right now under this Secretary we feel
very comfortable.
Mr. Upton. Okay. That sort of leads to another question. As
you may know, a number of us are planning to introduce
legislation today that codifies what the Secretary has embarked
upon. Do you know if the administration--I don't know if the
exact language has been shared, but does the Department yet
have a recommendation as to whether they would support this
codification?
Mr. Glauthier. Of course, Mr. Chairman, we don't have the
legislation yet so we can't give you our assurance but we would
be very interested to see it. Our concern is to be sure that we
will be able to carry on the operations in the way that we have
put them down. So we will be watching to look and see if your
legislation is consistent with that.
Mr. Upton. One of our strengths is yes, we do agree that we
have a Secretary that is embarking on this effort. We are
concerned, as I think my colleague from New Mexico has shared
in her opening statement, that in fact under the next President
and the next Secretary that in fact these reforms are kept in
place and not allowed to slip back and therefore the intent of
the legislation is to in fact codify what is being done now so
that we have assurance in the next administration and the one
following that if things don't work out well that we will have
the proper oversight.
Mr. Glauthier. We share your objectives. As you may have
noted in our implementation plan we put forward several
principles at the beginning, many of which had to do with the
continuity of the management reforms and establishing more
accountability within the whole Department for the same sorts
of things.
Mr. Upton. Thank you very much. My time is about ready to
expire. I will let Mr. Stearns--I will yield to Mr. Stearns.
Mr. Stearns. Thank you, Mr. Chairman. Mr. Secretary, you
told us this morning that independent oversight of security and
ESH functions will continue as before, including oversight of
the elements within the new NNSA. That's good news, I think, to
many of us. We agree with you on the need for continued
independent oversight. However, I am not so convinced that the
Defense Authorization Act lets you do that. Can you explain,
please, how this works in light of the language in the law that
specifies employees and contractors in the NNSA, ``shall not be
responsible to or subject to the authority, direction, or
control of any other officer, employee, or agent of the
Department of Energy''?
Mr. Glauthier. Yes, I would be happy to. I will also give
you an initial response and then ask our counsel to add his
thoughts as well.
Mr. Stearns. You are not breaking the law are you?
Mr. Glauthier. We are not. We believe this is well within
the statute.
Mr. Stearns. So you are finessing it.
Mr. Glauthier. The statute gives very explicit authority to
the Secretary to review and examine any of the operations in
the full Department, to have any of his staff do that. The
specific language you cited is a limitation on directing people
within the NNSA from positions outside the NNSA. Both Mr.
Podonsky and Mr. Michaels are operating from positions outside
the NNSA but they have the authority under this legislation to
review any of the operations, to examine what is going on, to
make recommendations to the Secretary about changes and
possible corrective action plans that would be appropriate. We
believe there is no limitation that will affect the operations
of these offices which are staff offices.
Mr. Stearns. Let me ask counsel, do you think you are
finessing it or do you think you have a legal basis to stand
on?
Mr. Fygi. I think my first observation, and I will answer
the way I feel necessary, is that the Deputy Secretary's
response is correct. We are not finessing anything. We are
carrying out a statutory scheme that clearly codifies the
Secretary's authority to monitor the entirety of the
Department's activities through means of his choosing through
policies that he adopts. Those also are statutory elements in
the NNSA Act that are equal in dignity to the one that you
referred to a moment ago.
Mr. Stearns. Mr. Podonsky and Dr. Michaels, do you think
this has made your job harder? Or maybe to ask you another way,
do you think that this law, the language in the law to have
independence and safety of security, do you think it should be
changed?
Mr. Podonsky. To answer your question, the first question
is yes, I think it does make our job more difficult.
Mr. Stearns. Because of the language.
Mr. Podonsky. Because of the lack of specificity of the
language. For example, we have already seen some aberration
with career civil servants who say ``we are now a part of
NNSA,'' we don't know whether we follow advice and counsel in
terms of some of the oversight activities. That's an aberration
I must say, but we are definitely concerned that that doesn't
begin to grow into a wildfire. We do think from an oversight
perspective, and I have not talked to the Deputy Secretary in
detail about this, that there could be some more clarification
to the language. But clearly it is our understanding from the
Secretary and the Deputy Secretary, for the safeguards and
security oversight, that we will continue to provide and report
to the Secretary and the Deputy Secretary on issues and
concerns.
Mr. Stearns. Dr. Michaels?
Mr. Michaels. I would concur entirely with Mr. Podonsky.
Under the current Secretary and Deputy Secretary, flowing down
to General Gioconda, the commitment to environment, safety, and
health is unsurpassed. I feel very comfortable that although we
have heard the same things that Mr. Podonsky has heard in terms
of rumblings that the NNSA is insulated from our oversight, the
law is clear on that regard and we have the full support of the
leadership. I think what is also clear is this statute can be
interpreted different ways and there are obviously people who
interpret differently. My concern is that in the future
administrations it may not be interpreted the same way.
Mr. Stearns. Dr. Michaels, are you saying that you have
also incurred resistance like Mr. Podonsky said?
Mr. Michaels. We heard rumbling that before March 1 we were
told by various career civil servants who said we won't see you
after March 1, but we have made it very clear with the
Secretary and the Deputy Secretary and the head of DP that that
is not the case, that the oversight will continue as planned.
Mr. Stearns. Do you agree with his word, aberrations is
what you said?
Mr. Podonsky. I called it an aberration, yes.
Mr. Michaels. I agree. And I think it will be cleared up
shortly.
Mr. Stearns. Let's get to the heart of it. Is your job
easier or harder since this legislation passed?
Mr. Michaels. Harder.
Mr. Podonsky. I echo that.
Mr. Upton. Thank you, Mr. Chairman.
Mr. Upton. Mrs. Wilson.
Mrs. Wilson. Thank you, Mr. Chairman. As I understand it
from your answers to the previous questions that you continue
to have the authority under the act as written to review
compliance, to inspect, make reports, to make recommendations
to the Secretary without any limitation. Is that correct? Is
there any----
Mr. Michaels. Yes, ma'am.
Mrs. Wilson. Is there any element of oversight that your--
or your definition of oversight that you are in any way
precluded from by the act?
Mr. Michaels. In terms of compliance, yes. The Price-
Anderson program which specifically has orders to contractors
of the NNSA to pay fines, for example: I can no longer sign
documents calling for that. That would be under the
implementation plan. Price-Anderson enforcement actions will be
signed by the Administrator of the NNSA.
Mrs. Wilson. But the NNSA still has to comply with Price-
Anderson and they have that authority; is that correct?
Mr. Michaels. Correct.
Mrs. Wilson. So the mission is achieved with respect to
Price-Anderson, it is just no longer your job, right?
Mr. Michaels. I hope that continues that way, yes. But it
is frankly of concern to me that in the long run we could have
two Price-Anderson programs where we have different objectives
and different policies. I think the implementation plan is
specifically written to ensure that that doesn't happen.
Mrs. Wilson. With respect to the career civil servant that
you referred to and the aberration that you referred to, that
they are lDOC>
[106th Congress House Hearings]
[From the U.S.
that civil servant or in those particular cases, did they work
for you directly?
Mr. Podonsky. No, they did not.
Mrs. Wilson. So they worked for somebody else?
Mr. Podonsky. For the Program Office.
Mrs. Wilson. They were not in your line of command, you
don't have any supervisory responsibility for them at all?
Mr. Podonsky. No.
Mrs. Wilson. They do have a boss, right, presumably within
the NNSA?
Mr. Podonsky. Yes.
Mrs. Wilson. Why should they listen to you if you are not
their boss and they are responsible for implementing the same
law that you are? Doesn't this get back to the same issue of
matrix management that we are trying to get away from?
Mr. Podonsky. Well, the way the Secretary has allowed us to
conduct oversight, ma'am, was to be in a proactive fashion, not
just a whistle blower organization of the past where you just
raised issues and people had to respond with unfunded mandates.
The way the Secretary has allowed us to do oversight is in a
way that was helpful, value added, and the individual that I am
referring to, when did I take it to General Gioconda, and not
in specifics but in generalities, General Gioconda, as the
Acting Defense Programs Assistant Secretary, felt that that was
totally inappropriate for his staff to act that way because
they have found our oversight to be most helpful.
Mrs. Wilson. So we are talking about staff in Washington?
Mr. Podonsky. Staff in Washington.
Mrs. Wilson. Let me make sure I understand you. You
referred to a number of acts and things, NEPA was one of them,
the radiation compliance, the environmental safety and health
rules. Just so that we clarify for the record, the NNSA still
must comply with all of those acts; is that correct?
Mr. Glauthier. Yes, absolutely.
Mrs. Wilson. Thank you, Mr. Chairman.
Mr. Upton. Mr. Bryant.
Mr. Bryant. Thank you, Mr. Chairman. If I might just follow
up with my colleague, Mrs. Wilson's questions, Dr. Michaels,
can you issue a subpoena or notice of violation under the
Price-Anderson Act to any NNSA facility or can you only make a
recommendation to the NNSA Administrator regarding enforcement
action?
Mr. Michaels. I can make a recommendation to the
Administrator. I can issue subpoenas or enforcement orders to
non-NNSA facilities within DOE, but for the NNSA facilities I
would have to ask the Administrator to do such a thing.
Mr. Bryant. Just to follow up on that one, too, do you have
the authority to initiate type A accident investigations at
NNSA facilities or do you have to operate in a recommendation
only mode?
Mr. Michaels. Correct, I no longer have that authority to
initiate. For example, the Y-12 accident that occurred in
December, I was onsite shortly after the accident and I
immediately initiated a type A investigation. I could no longer
do that under current NNSA implementation plans.
Mr. Bryant. Thank you.
Mr. Podonsky, some in Congress and others have suggested
that your office as a function is best performed within the
NNSA itself rather than external to it as the Secretary
proposes to continue. Those with a long memory remember when
your office reported to the responsible line or program
management, the Assistant Secretary for Defense Programs in the
1980's, which I think everyone now agrees was a bad idea and
resulted in conflicts of interest. What is your view on whether
your office could effectively operate within and reportable to
the NNSA and is that something that you would urge us to
consider?
Mr. Podonsky. Having also served in that ``long memory''
that you just described where I reported to the Assistant
Secretary for Defense Programs, which I equate to the previous
NNSA organization, we were competing consistently with
production. Safety was competing with production. It was very
ineffective. That is not a reflection on the nominee, General
Gordon. That is a reflection of priorities of the CEO having to
balance between oversight and mission. And so if in fact we are
inside the NNSA as opposed to external to the NNSA, we feel we
would be very ineffective and history has shown that to be the
case.
Mr. Bryant. Thank you. Mr. Secretary, I have just a few
questions for you. If you could describe the relationships of
the operations offices, your headquarters, into the
laboratories and weapons plants and field sites. The law was
supposed to streamline this chain of command and improve
accountability but it seems as if all guidance must still be
passed through the contracting officials at the operations
offices in order to implementing changes in the contractor run
lab plants.
Mr. Glauthier. We have tried to streamline the management
and make the lines of authority much clearer going back to last
spring, the April announcement that we made, in trying to
clarify the difference between line and staff organizations
within the Department. The offices like Independent Oversight
and Environmental Safety and Health are staff offices who
develop policy for the various programs. The policy then is to
be implemented by the line organizations. So we have tried to
make it clear that the line authority and accountability goes
from the Secretary and Deputy Secretary down through the
organization to Defense Programs, to the field office to the
contractor, and that that chain is a necessary chain for
accountability, responsibility.
The specific example you mentioned of having guidance go to
a laboratory does have to go through the field office because
the laboratory is run by a contractor, and the contracting
officer, who is the field office manager has the legal power to
direct the contractor. We have made sure that those people all
have the appropriate authorities and these responsibilities can
continue.
Mr. Bryant. Let me ask you again. Several of our hearings
last year and even in the Rudman report itself there was
substantial emphasis on the necessity to hold DOE contractors
to more accountability. How has the accountability of the
contractors been improved under the new NNSA arrangement?
Mr. Glauthier. We certainly agree with the need to hold
them accountable and felt that had not been done in the past.
Some of the reports cited earlier have characterized the
previous experience. The NNSA really does not change this. It
sets the accountability clearly. It makes it clear that those
sites, for example, within the NNSA are to report specifically
there. Los Alamos or Sandia, for example, report into the
Albuquerque office and then to the Defense Programs program and
the NNSA Under Secretary up to the Secretary. So that
accountability chain will continue to function and we will
continue to expect results to be reported along those lines.
Mr. Bryant. Thank you, Mr. Chairman, and the balance of my
time I would yield back, what time I have left.
Mr. Upton. The gentleman's time expired prior to that. I
recognize the gentleman from Massachusetts, Mr. Markey.
Mr. Markey. Thank you, Mr. Chairman, very much. You may
know that I opposed the creation of NNSA because it would not
address the environmental health and safety problems
experienced at the national laboratory. Obviously the history
of this whole area is very, very murky. We once had an agency
that was not subject to expert review. It was called the Atomic
Energy Commission, and its legacy is still seen in the
headlines of today in Paducah, Kentucky, and the Ohio
facilities and Hanford, Washington, at the Nevada test site,
Rocky Flats, Savannah River in South Carolina, Los Alamos in
New Mexico. All of these places still reflect the lack of
oversight that the Atomic Energy Commission was subject to,
secret experiments on Americans without their knowledge using
radioactive materials. The NNSA is a step back to the days of
the old Atomic Energy Commission.
Where is the accountability to workers at the labs? Where
is the accountability to the environment that the national labs
will have responsibility of? In your testimony you indicate
that the Office of Environment, Safety, and Health has the
responsibility to investigate and report on problems but not
correct problems at the laboratories under the auspices of the
NNSA. How would this increase the ability of the Department of
Energy to improve environment and safety conditions at the
national laboratories under NNSA control if the responsibility
for corrective action remains with NNSA, semi-autonomous
organization within the Department of Energy?
Mr. Glauthier. Congressman, I don't believe it increases
the ability to do it. What we are trying to do is avoid any
reduction in our authority to do it and it is very important
that we keep the Environment Safety and Health Program at a
level where it is a staff office that we can look at, examine
any of the operations throughout the Department and issue
policies that will come down through the Secretary and the
directions that will be carried out uniformly across all of the
sites. The sites that you mentioned, some of them are within
the NNSA, others are not. It is very important that
environment, safety, and health issues be managed strongly and
consistently at all of those sites.
Mr. Markey. I know you did it somewhere in your opening
statement, but could you summarize the issues that the
Department would like to see corrected?
Mr. Glauthier. Well, the principal recommendation that the
Secretary has made and is working on is to have the authority
added to the legislation for the Secretary to be able to direct
anyone within the NNSA. At this point the statute limits even
the Secretary to only directing the Administrator and then,
through the Administrator, others within the NNSA. That is a
limitation in his authority that does not exist in the other
organizations that were cited earlier in one Rudman Report as
examples of semi-autonomous agencies, and he has asked for and
would like to get that changed.
There are other changes that would make it easier. The
primary one is a broader delegation authority which would
address some of the things that you are talking about. But at
this point we are not asking for any other changes.
Mr. Markey. I agree with you. I think that regardless of
who the Secretary of Energy may be, that they should have the
ultimate responsibility so there is accountability at the
highest level that the public can rely upon to discharge these
very important responsibilities.
I thank you, sir. Thank you, Mr. Chairman.
Mr. Upton. Thank you. Mr. Burr from North Carolina.
Mr. Burr. Thank you, Mr. Chairman, and I thank you and
Chairman Barton for this dual hearing. Welcome, and I apologize
for the tardiness. Today has already started off as one of
those days that we hate up here. I think everybody in the world
is here. Glenn, it is good to see you back.
Let me just ask right from the start. Dr. Michaels, you
have sort of a dual hat in both, but Mr. Podonsky doesn't. Now,
who is best to answer the question why or why not?
Mr. Glauthier. I may be in the best position to give you
that answer. The dual hat that you refer to for Dr. Michaels is
a very narrow and specific one. It is only for the purposes of
exercising shutdown authority over sites. If there is a safety
issue that is so serious we feel it is necessary to have the
operation shut down, he has the authority to make that kind of
direction inside or outside the NNSA. The dual hat gives him
that authority within the NNSA. Everything else he does, the
oversight, the policy development, the recommendations for
corrective actions or changes do not require actually being
within the NNSA. So they continue to operate from the staff
office position, as is the case with Mr. Podonsky.
Mr. Burr. So tell me, if you will, where our safety net is
on the security aspect. If Mr. Podonsky has a concern as it
relates to the safety side, but not having a dual hat doesn't
provide him the type of access that he needs on one side of
this two-part process, then where are we?
Mr. Glauthier. Mr. Podonsky, before the NNSA, did not have
that authority either to direct people within the organization.
That authority really came from the line organizations. So Mr.
Podonsky would investigate and identify problems, identify
corrective actions that were needed and make those
recommendations to the line organization. If the immediate
office is not responsive, then we expect him to raise that
concern up the chain, bring it to me, bring it to the
Secretary. We do have the authority to direct----
Mr. Burr. Prior to this when Mr. Podonsky went into one of
the facilities on a security question he had the authority to
have what he requested produced for him, correct?
Mr. Glauthier. When he requested in terms of information
or----
Mr. Burr. Yes, sir.
Mr. Glauthier. Yes, information requests, and we expect
that still to exist.
Mr. Burr. To expect that still to exist, then why wouldn't
he have the dual hat function where the question was taken off
the table that I have, which we have now insulated these
facilities to where he can make a request but they don't have
to respond to it? He could work through the back channels that
would lead him through the Secretary. I know how demanding the
Secretary's schedule is because I have seen him in the Arab
nations and I have also seen him in back of Vice President Gore
at his victory party last week so he has traveled a lot of
ground in a very short period of time. But we have to go back
through the Secretary to address just a request for information
for Mr. Podonsky to make an evaluation on a security concern he
might have. Tell me the logic behind that road map we have
designed.
Mr. Glauthier. That should not be necessary. We are only 2
weeks into the implementation of this. I think it is
understandable there is some confusion in the field about what
they do and don't have to respond to. Information requests
ought to be something that everyone has to respond to. If they
come from Mr. Podonsky, an information request is part of the
authority that the Secretary has to have his staff offices
investigate any operation within the Department. So we expect
that the new Administrator will ensure that all of the
operations within the NNSA honor those requests and that we are
not going to have to come back on a case-by-case basis and have
appeals to the Secretary. The question about direction really
comes more in the latter area or, should we hope eventually,
than is the corrective action, what are you doing about----
Mr. Burr. At some point in the design you or Secretary
Richardson or some individual looked at this process and you
have these two bodies and you saw Dr. Michaels, who was a very
talented individual who had a responsible job, and you came to
a conclusion that he needs two hats because he needs the
ability to shut down if he comes to this conclusion. Tell me
why you looked at Mr. Podonsky and looked at security and
didn't feel that the same type of accommodation is needed? Is
security not as big of a concern as safety is?
Mr. Glauthier. If we decide that we need to have that we
can put that in place later on. The reason we did it for Dr.
Michaels is the safety and health risks, if they do exist in
such a severe level that they endanger the workers or the
public and we need immediate action, we want to make sure that
he has that authority. Mr. Podonsky doesn't really operate in
the same mode at this point to my knowledge----
Mr. Burr. Safety does not have the--security does not have
the same sense of urgency that safety does?
Mr. Glauthier. We have a safety position that is separate.
General Habiger is dual hatted in fact in the Office of
Security for the NNSA. He has the responsibility for security
policy development and security review of the whole operation
in really the same fashion that Dr. Michaels does for
environmental, safety, and health. The office that Mr. Podonsky
runs is an oversight office that functions in a way more like
an audit group that goes out in great detail on a periodic
basis and looks at operations at individual facilities but is
really--I think the parallel is more the security office that
General Habiger has.
Mr. Burr. I realize the separation of the two and clearly
under that structure General Habiger has access to both sides
of this. I question whether Mr. Podonsky will have the same
type of availability to the resources he needs to do his audit
and, heaven forbid, that he find a serious flaw, has a lengthy
process to go through to acquire the information to make some
final determination.
Mr. Glauthier. Let me give you an initial response and then
ask Mr. Podonsky to also add his thoughts. One of the things we
wanted to do was to be sure that we didn't end up with two
oversight offices, one inside and one outside the NNSA. We
wanted to make sure this system worked. The legislation is not
ideal from our perspective. There was never a hearing on it, as
you know. It was not drafted in a way that we worked
collaboratively on it as we hoped to with most legislation. So
we are trying to make the best of what we have to be sure that
this office can continue in a strong and independent oversight
role and to make sure then it will be able to carry that
function along.
Mr. Podonsky. Congressman, as long as the legislation gets
further crystallized in clarity as to our ability to inspect,
review NNSA without controlling or directing we report back to
the Secretary, we feel that will continue to be effective as we
have become in the last 11 months because of the committee's
interest as well as the Secretary's commitment. Having served
under six previous secretaries, unless the CEO of this
corporation was interested as Secretary Richardson is today and
Secretary Glauthier, it doesn't matter what we found. So we
feel very strongly that the way it is set up now there needs to
be further clarity in the legislation so that the existing NNSA
staff folks won't use that as an excuse as to why not to work
with us.
Mr. Burr. Just two general comments. I realize my time has
run out. One would be I have some degree of confidence that I
believe you will be working under a seventh administration
before too long and we can't feel as confident that the next
Secretary will take security with the same vigor that our
current one has. And it is very legitimate to make some
comments that question the process that went through or did not
go through with this legislation. By the same token it is
justified for us to question the implementation process and
that's in fact part of this hearing.
I thank each of you and I yield back.
Mr. Upton. The gentleman from Illinois, Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman. I am going to follow
up with Congressman Burr and also I came in on the last part of
Congressman Markey's colloquy with you all, and the last couple
of comments that were made deal with the implementation of
legislation that you may not have all been fired up about. The
conversation with Congressman Markey dealt with, I think, a
desire to move some legislation also to correct or move in a
more positive direction that you would feel. Am I correct in
drawing this analysis and can you tell me if the Secretary
wants to change the language of the law to clarify explicitly
as such oversight applied to NNSA as well as the rest of the
complex?
Mr. Glauthier. Secretary Richardson would like a change in
the legislation but he has not asked for that particular
change. What he has asked for is clarity that he--and his
successors--have the authority that they can direct any
employees within the NNSA rather than to only direct them
through the Administrator.
Mr. Shimkus. When a Secretary makes this request, who is he
making this request to?
Mr. Glauthier. He has done it in discussions and in
testimony, testimony 2 weeks ago before the House Armed
Services Committee and in discussions with various leaders of
the Congress.
Mr. Shimkus. I think it would better serve the process if
the Secretary, who is still I think considered somewhat of a
favorite son of the committee, that he would draft some
legislation and get it up here. I think what we are looking for
and--we want to see instead of talk, we want to see some
action. We want to talk over and discuss the language of the
law and if we can get a legislative proposal then we have a
basis. If we are just talking theory, we are not getting down
to the work that needs to be done. If you would pass that on to
the Secretary, I think I am echoing a lot of the sentiments of
probably both committees.
Mr. Glauthier. We appreciate that. We do have specific
language and we would be happy to share that with you and
appreciate any support that could you provide.
Mr. Shimkus. With that I yield back the balance of my time,
Mr. Chairman.
Mr. Upton. Thank you. Just a couple of housekeeping matters
and I think we will move to the next panel. First of all, I
note that our colleague, John Dingell, wanted to be here very
much this morning. We still expect an appearance so I would ask
unanimous consent that all members will be able to keep the
record open and perhaps provide some questions that you might
respond to.
Second, I am told that the Energy and Power Subcommittee is
going to have a hearing on this legislation that is going to be
introduced today next Wednesday. It is my understanding that
the language has been or will be shared with you certainly by
close of business today. If you could just--if we could just
get a comment on a quick turnaround and get some comments and
strenghths and weaknesses, preferably the former, by Wednesday
of next week. I know my colleague Chairman Barton would be most
appreciative of that effort.
Mr. Burr. Mr. Chairman, could I have unanimous consent for
a couple of additional questions?
Mr. Upton. Hearing none, the gentleman is recognized.
Mr. Burr. It is a safe request. I have been told that this
was asked but they didn't write the answer down.
Mr. Podonsky, let me ask you, has anything changed with the
passage of this legislation relative to your oversight
capabilities?
Mr. Podonsky. Yes. I mentioned to one of your colleagues in
a question--I echoed what Dr. Michaels said--is that it has
become more difficult. I think it would be better to
characterize it as increasingly challenging to do effective
oversight.
Mr. Burr. Can you be a little more specific about the term
``challenging''? What challenges has it created?
Mr. Podonsky. Any time we do oversight in the Department it
is difficult to be effective if the people receiving the
inspection don't feel that it is going to be value added. But
now with the legislation there were some aberrations, is the
word I used, or where some career folks were debating whether
or not they needed to be inspected or receive any advice and
counsel from our activity. I mentioned one of the things that
this administration has done; Secretary Richardson and Deputy
Secretary Glauthier has allowed us to do oversight with a
little more value added. We can discuss with the sites some of
the proactive changes that might be taken not with unfunded
mandates but to be--we inspect the entire complex. We have
found that some of the issues that we have found throughout
other sites we can share with the sites that we are inspecting
and actually help them find solutions to their problems.
Mr. Burr. If under this new setup in your oversight role
you ran into a roadblock, somebody refused to supply what you
had requested, what process would you now go through versus
what you went through before to find a solution to it?
Mr. Podonsky. Actually, there are three points in time I
would like to answer that question with. Prior to Secretary
Richardson when we ran into a roadblock I went to my assistant
secretary and hopefully my assistant secretary would take it to
the Secretary. The second point in time was when the Secretary
Richardson moved us as a direct report to he and Deputy
Assistant Secretary Glauthier, if we had any issues
whatsoever--which we have had none so far--we would take it
directly to either one of them. The third point in time is now
within NNSA. It has only been in effect 2 weeks. We only had
this one aberration. I immediately had discussions with Acting
Assistant Secretary for Defense Programs, General Gioconda.
General Gioconda sees us as a very necessary evil, that we
provide his organization some value. So we have good support
there.
Mr. Burr. I have had more people than that describe you
that way. Dr. Michaels, let me just ask you one question. Could
you have shut down a facility without the authority given to
you in the legislative plan?
Mr. Michaels. Previous to March 1, I could. Now, with the
implementation plan, I have my double hat within the NNSA in
order to do the same thing.
Mr. Burr. But without the dual hat you would not have had
the power?
Mr. Michaels. Correct.
Mr. Fygi. The distinction, which goes back to your initial
question of trying to define how the initial cut was made on
dual hats, is that the emergency shutdown authority by its
terms involved direct command authority in a very narrow class
of circumstances, whereas the Glenn Podonsky oversight function
by its terms was never, unlike the emergency shutdown
authority, never codified as including direct command
authority. I think that is the distinction that was one of the
factors that weighed in the Department's judgment how to
initially approach the number of double hats employed.
Mr. Burr. Clearly this legislation was the result of,
originally, security concerns that arose. I hope nobody takes
offense at the questions that try to find the answers as to why
security seems to be in the back seat, yet safety was
recognized in this process as a front seat issue. I am hopeful
that the process will work as smoothly as you see it, and I
hope that if we have an opportunity to clarify it through
legislation that in fact we will exercise that option. I thank
you very much. I thank the chairman.
Mrs. Wilson. Mr. Chairman, if I could ask unanimous consent
to ask a few more questions?
Mr. Upton. Sure, go ahead.
Mrs. Wilson. Thank you, Mr. Chairman. Mr. Deputy Secretary,
I want to know whether there was anyone from the national
weapons labs included in the implementation task force that was
established in October?
Mr. Glauthier. No. There were not any contractors who were
in the actual task force. The task force was made up of Federal
employees. We actually ran or processed--tried to consult with
people in all parts of the operation and had discussions as we
got more of the plan together. We have tried to work with the
offices in this last 2 months where we have gotten the
principals together and our general outlines of the plan that
we published the first of January and as we tried to implement
that tried to work with the different offices.
Mrs. Wilson. I am not sure--I think that answer was no.
Could you clarify it a little bit? Did you consult with or
involve the national nuclear weapons labs in the implementation
task force?
Mr. Glauthier. You asked first about membership about the
task force. They were not members of the task force. In terms
of consulting we consulted with them relatively late in the
process because we started consulting with the management of
the programs, the people who are Federal employees, and then as
time went on we worked out more broadly. So they were consulted
but later in the process than some others were.
Mrs. Wilson. Has the Director of the FBI or Director of the
CIA reviewed your implementation plan?
Mr. Glauthier. We did not send the formal plan, the full
text. I don't know that--I don't believe so.
Mrs. Wilson. Thank you, Mr. Chairman.
Mr. Upton. Well, thank you again, panel, for being here
this morning. Again you may see some questions arise from this
subcommittee from members that are not here.
Mr. Glauthier. Mr. Chairman, could I clarify one last thing
in response to a moment ago about the CIA and the FBI review?
Our representative, Ed Curran, who is our Director of
Counterintelligence, did review this and he is an FBI employee
as you well know; and then the CIA, Larry Sanchez, who is the
head of our Intelligence Program and is the connection to the
CIA, also reviewed that. Larry is an employee of the CIA. So
they were both involved in the review process.
Mr. Upton. Thank you. You are now formally excused. Thank
you.
Panel 2 will consist of Dr. Robert Kuckuck, Deputy Director
of Operations for Lawrence Livermore; Dr. Paul Robinson,
President and Laboratory Director of Sandia; Dr. Richard
Burick, Deputy Director of Los Alamos; and Mr. Robert Van Hook,
President of Lockheed Martin Energy Systems.
Gentlemen, as you know, as some of you have been here
before, it has been a longstanding practice for us to take
testimony under oath. Do any of you have objections to that?
Hearing none, the second part of that question is you are also
entitled under committee rules to be represented by counsel. Do
you have a need to have counsel? Seeing none, if you would
stand and raise your right hand.
[Witnesses sworn.]
Mr. Upton. You are now under oath. As you saw in the
previous panel, your testimony is being made part of the record
in its entirety. If you could limit your remarks to 5 minutes
that would be terrific. Dr. Kuckuck, we will start with you.
TESTIMONY OF ROBERT W. KUCKUCK, DEPUTY DIRECTOR FOR OPERATIONS,
LAWRENCE LIVERMORE NATIONAL LABORATORY, UNIVERSITY OF
CALIFORNIA; C. PAUL ROBINSON, PRESIDENT AND LABORATORIES
DIRECTOR, SANDIA NATIONAL LABORATORIES; RICHARD J. BURICK,
DEPUTY DIRECTOR, LOS ALAMOS NATIONAL LABORATORY; AND ROBERT I.
VAN HOOK, PRESIDENT, LOCKHEED MARTIN ENERGY SYSTEMS, INC.
Mr. Kuckuck. Mr. Chairman and members of the committee, I
am the Deputy Director of Operations at the Lawrence Livermore
National Laboratory. I appreciate the opportunity to address
the committee today concerning the National Nuclear Security
Administration and safety and security oversight at the
laboratories. Our laboratory was founded in 1952 as a nuclear
weapons laboratory. National security continues to be our
central mission.
Livermore is a principal participant in the Department of
Energy stockpile stewardship program, heavily involved in
programs to prevent the proliferation of weapons of mass
destruction and engage in energy, environmental and bioscience
research and development as well as industrial applications of
our core technologies. Our scientific and technological
achievements in support of our national security mission depend
on the conduct of safe and secure and efficient operations of
the laboratory.
The laboratory is committed to doing its part to providing
every employee and the neighboring community with a safe and
healthy environment. Likewise, because of the nature of our
work and the intellectual and physical assets at our site,
attention to safeguards and security is also of paramount
importance. To this end I will very briefly report to you steps
we have taken this past year to ensure that our operations are
safe and secure. I will also provide the basis for my belief
that safety and security for the laboratories will continue to
receive this high priority commitment with the establishment of
the National Nuclear Security Administration.
With this reorganization there is the potential for more
streamlined and integrated management and oversight of safety
and security, clear program direction, and strengthened
accountability. During 1999, LLNL Director Bruce Tarter
testified before this committee on two separate occasions on
the issue of laboratory security. He stated Livermore's
commitment and described our efforts to provide increased
confidence in the security of the laboratory. We have made
substantial progress in many areas: Security program
management, materials control and accountability, physical
security systems, classified material protection and control,
cyber security, and personnel security. In particular, we have
worked expeditiously to address all of the issues that arose in
self-evaluations resulting from the May 1999 inspection by the
DOE Office of Security Evaluations, OSE. As an outgrowth of
these efforts we received an overall satisfactory or green
rating from DOE/OSE in their follow-up inspection December
1999.
We are on target to reach the challenging goals we set in
1999. We have implemented a significantly improved strategy to
protect Livermore Superblock and the special nuclear materials
in it. Our Materials Control and Accountability Program has
successfully closed all previous OSE findings and all safeguard
measurements are now current. In addition, major improvements
have been made in controlling and protecting classified parts.
Furthermore, the laboratory is in full compliance on all
physical security systems and training issues associated with
Livermore's personnel security assurance program have been
addressed. We are rapidly implementing our cyber security
strategy, including steps to address and identify potential
weaknesses in the security of some of our unclassified computer
systems.
In the area of safety we are well into the process of
implementing DOE's safety management system at Livermore and we
are already beginning to experience a reduction in safety
incidents. At the laboratory we have in the past tended to
focus our attention on special hazards associated with high
technology research projects. However, we can and must do
better at preventing the more routine accidents connected with
day-to-day activities. Our ISMS implementation is based on a
set of work standards that were developed in partnership with
DOE's Oakland Operations Office and the University of
California. These work smart standards were accepted and ISMS
implementation began in August 1999. We have set a goal, safety
performance comparable to the best of our peers through top
management leadership; clear roles, responsibilities, and
performance expectations; and accountability.
Training and integrating safety management was competed by
all employees in September. Livermore's implementation of ISMS
is currently under review by a DOE/OAK-appointed verification
team. In December the team completed ISMS verification phase 1A
and 2A, a review of documentation and implementation down to
the directorate level. The verification team was impressed by
laboratory management's enthusiastic support of ISMS and
commitment to safety. They also identified a number of
noteworthy practices that have been implemented. The laboratory
recently completed a short list of items identified in OAK's
acceptance review and submitted its ISMS description to OAK for
final approval. Final verification of the implementation of
ISMS at Livermore will begin this spring.
I briefly reviewed for you the steps we have taken this
past year for a particular reason, to illustrate our commitment
to safe and secure operations at Livermore. These activities
have greatly heightened safety and security awareness among all
laboratory employees. More than ever attention to safety and
security is ingrained in the way that we operate.
With the establishment of the National Nuclear Security
Administration we will continue our strong attention to safety
and security. We will still be governed by the same set of
laws, orders, rules, regulations, and subject to oversight just
as before. These requirements are currently explicitly stated
in our contract and will remain so under the NNSA. However,
with the reorganization there is a potential for continued
improvement through more effective management and oversight of
safety and security at reduced overall costs.
A particularly significant change we face in many
laboratory functions, including safety and security, is a
continually growing amount of external management and
oversight. Effective management and oversight are very
important but it is also important to avoid blurring lines of
responsibility and accountability. Through different lines of
authority we have been at times provided with differing and
sometimes conflicting guidance and directions with varying
interpretations by our overseers. Add to that the multiplicity
of layers of management for each line of authority and a myriad
of oversight functions. We are in a situation where we are need
to improve the efficiency and cost effectiveness of the efforts
spent on management and oversight of safety and security.
The establishment of the National Nuclear Security
Administration can potentially improve the situation in three
related ways. First of all, with this reorganization there is a
potential for more streamlined and integrated management and
oversight of safety and security. Second, there is a potential
for straightforward direction of safety and security management
programs. It is possible to reduce conflicting guidance and
establish clear expectations about performance. Finally, with
clear performance expectations and a single DOE management team
in charge, there is the opportunity for improved
accountability. Effective management depends on accountability.
The Secretary's creation of a Field Management Council that
approves directives to the field, together with a central point
of issuance, the lead program secretarial officer, has already
been a major positive step in this direction. The FMC helps
ensure the coordination and integrated evaluation of directives
and it helps to eliminate overlapping or conflicting
requirements. I am greatly encouraged by the FMC's activities
and would be pleased to see even greater opportunity for
contractors to provide feedback on directors prior to their
issue.
These potentially positive results I have just described
will of course depend on details on how the new National
Nuclear Security Administration will operate as it matures. I
can't predict these details, including those related to the
working relationships between NNSA and the overseers of safety
and security and environmental management. However, streamlined
management, clear program direction, and accountability are all
attributes hoped for from the new NNSA when it was established
by congressional legislation last year. An NNSA with these
attributes combined with an oversight approach and appropriate
checks and balances on implementation of findings would surely
help to strengthen safety and security management at all DOE
national laboratories.
Let me close by saying once again safe and secure
operations are vitally important to Livermore. They underpin
all of our research and development activities and they protect
our employees, our neighbors, and some of our Nation's most
closely held secrets. Our laboratory's operations came under
great scrutiny in 1999. We made upgrades to physical security,
cyber security, and our counterintelligence program to
strengthen these areas, address identified issues and deal with
perceived weaknesses. Also during 1999 we made great strides in
the implementation of DOE's integrated safety management system
at the laboratory. These activities have greatly heightened
safety and security awareness among all laboratory employees.
More than ever, attention to safety and security is
ingrained in the way that we operate. Our attention to safety
and security is not diminished with the establishment of the
National Nuclear Security Administration. In practical terms we
are governed by the same laws, orders, regulations and subject
to oversight as before. However, with this reorganization there
is a potential for streamlined management and oversight of
safety and security, clear program direction, and strengthened
accountability. While details about implementation are
important and need to be resolved, in principle such changes
could have a positive effect on safety and security management
and implementation at the laboratory.
Thank you very much.
[The prepared statement of Robert W. Kuckuck follows:]
Prepared Statement of Robert W. Kuckuck, Deputy Director for
Operations, Lawrence Livermore National Laboratory
opening remarks
Mr. Chairman and members of the committee, I am the Deputy Director
for Operations at the Lawrence Livermore National Laboratory (LLNL).
Our Laboratory was founded in 1952 as a nuclear weapons laboratory.
National security continues to be our central mission. Livermore is a
principal participant in the Department of Energy's Stockpile
Stewardship Program, heavily involved in programs to prevent the
proliferation of weapons of mass destruction, and engaged in energy,
environmental, and bioscience research and development, as well as
industrial applications of our core technologies.
Our scientific and technological achievements in support of our
national security mission depend on the conduct of safe, secure, and
efficient operations at Livermore The Laboratory is committed to doing
its part to provide every employee and the neighboring community with a
safe and healthy environment. Likewise, because of the nature of our
work and the intellectual and physical assets at our site, attention to
safeguards and security is also of paramount importance. To this end, I
will very briefly report to you steps we have taken this past year to
ensure that our operations are safe and secure. I will also provide the
basis for my belief that safety and security at the Laboratory will
continue to receive this high priority commitment with the
establishment of the National Nuclear Security Administration. With the
reorganization, there is the potential for more streamlined and
integrated management and oversight of safety and security, clear
program direction, and strengthened accountability.
safety and security at the laboratory
Laboratory Security. During 1999, LLNL Director C. Bruce Tarter
testified before this committee on two separate occasions on the issue
of Laboratory security. He stated Livermore's commitment and described
our efforts to provide increased confidence in the security of the
Laboratory. We have made substantial progress in many areas: security
program management, materials control and accountability, physical
security systems, classified material protection and control, cyber
security, and personnel security. In particular, we have worked
expeditiously to address all issues that arose in self-evaluations or
resulted from the May 1999 inspection by the DOE Office of Security
Evaluations (OSE). As an outgrowth of these efforts, we received an
overall Satisfactory (Green) rating from DOE/OSE in their Follow-up
Inspection in December 1999.
We are on target to reach the challenging goals we set in 1999. We
have implemented a significantly improved strategy to protect
Livermore's Superblock and the special nuclear materials in it. Our
Materials Control and Accountability Program has successfully closed
all previous OSE findings, and all safeguards measurements are now
current. In addition, major improvements have been made in controlling
and protecting classified parts. Furthermore, the Laboratory is in full
compliance on all physical security systems, and training issues
associated with Livermore's Personnel Security Assurance Program (PSAP)
have been addressed. And we are rapidly implementing our cyber security
strategy, including steps to address identified potential weaknesses in
the security of some of our unclassified computer systems.
Laboratory Safety. We are in the process of implementing DOE's
Integrated Safety Management System (ISMS) at Livermore, and we are
already beginning to experience a reduction in safety incidents. At the
Laboratory, we have in the past tended to focus our attention on
special hazards associated with high-technology research projects;
however, we can and must do better at preventing the more routine
accidents connected with day-to-day activities. Our ISMS implementation
is based on a set of work standards that were developed in partnership
with DOE's Oakland Operations Office and the University of California.
The Work Smart Standards were accepted and ISMS implementation began in
August 1999. We have set a goal--safety performance comparable to the
best of our peers--through top management leadership; clear roles,
responsibilities, and performance expectations; and accountability.
Training in Integrated Safety Management was completed by all
employees in September. Livermore's implementation of ISMS is currently
under review by a DOE/OAK-appointed Verification Team. In December, the
team completed ISMS Verification Phase IA/IIA (a review of
documentation and implementation down to the Directorate Level). The
Verification Team was impressed by Laboratory management's enthusiastic
support of ISMS and commitment to safety. They also identified a number
of Noteworthy Practices that have been implemented. The Laboratory
recently completed a short list of items identified in OAK's Acceptance
Review and submitted its ISMS Description to OAK for final approval.
Final verification (Phase IB/IIB) of the implementation of ISMS at
Livermore will begin this Spring.
oversight by the national nuclear security adminstration
A Commitment to Safety and Security. I have briefly reviewed for
you the steps we have taken this past year for a particular reason: to
illustrate our commitment to safe and secure operations at Livermore.
The activities have greatly heightened safety and security awareness
among all Laboratory employees. More than ever, attention to safety and
security is ingrained in the way we operate. With the establishment of
the National Nuclear Security Administration, we will continue our
attention to safety and security. We are governed by the same set of
laws, orders, rules and regulations and subject to oversight as before.
These requirements are currently explicitly stated in our contract and
remain so under the NNSA. However, with the reorganization, there is
the potential for continued improvement through more effective
management and oversight of safety and security at reduced overall
cost.
Opportunities for Improved Management and Oversight. A particularly
significant change we face in many Laboratory functions, including
safety and security, is a continually growing amount (as measured over
decades) of external management and oversight. Effective management and
oversight are very important, but it is also important to avoid
blurring lines of responsibility and accountability. Through different
lines of authority we have been at times provided with differing--and
sometimes conflicting--guidance, rules, regulations, and/or orders
together with varying interpretations by our overseers. Add to that a
multiplicity of layers of management for each line of authority and a
myriad of associated oversight functions. We are in a situation where
we need to improve the efficiency and cost effectiveness of the effort
spent on management and oversight of safety and security.
The establishment of the National Nuclear Security Administration
(NNSA) can potentially improve the situation in three related ways.
First of all, with the reorganization, there is the potential for more
streamlined and integrated management and oversight of safety and
security. Secondly, there is the potential for straightforward
direction for safety and security management programs. It is possible
to reduce conflicting guidance, rules, regulations, and/or orders and
establish clear expectations about performance. Finally, with clear
performance expectations and a single DOE management team in charge,
there is the opportunity for improved accountability. Effective
management depends on accountability.
The Secretary's creation of a Field Management Council (FMC) that
approves directives to the field--together with a central point of
issuance, the Principal Secretarial Officer--has already been a major
positive step in this direction. The FMC helps insure the coordination
and integrated evaluation of such directives, and it helps eliminate
overlapping or conflicting requirements. I am greatly encouraged by the
FMC's activities and would be pleased to see even greater opportunity
for contractors to provide feedback on directives prior to their issue.
Issues in Implementation Details. The potential results I have just
described depend on details about how the new National Nuclear Security
Administration will operate as it matures. I cannot predict the
details, including those related to the working relationships between
NNSA and the overseers of safety and security (and environmental
management). However, streamlined management, clear program direction,
and accountability are all attributes hoped for from the new NNSA when
it was established by Congressional legislation last year. An NNSA with
these attributes--combined with an oversight approach with appropriate
checks and balances on implementation of findings--would surely help to
strengthen safety and security management at all DOE national security
facilities.
closing remarks
I appreciate the opportunity to address the Committee on safety and
security oversight of the Laboratory and the new National Nuclear
Security Administration. As I have said, safe and secure operations are
vitally important to Livermore--they underpin all our research and
development activities and they protect our employees, our neighbors,
and some of our nation's most closely held secrets. Our Laboratory's
operations came under great scrutiny in 1999. We made upgrades to
physical security, cyber security, and our counterintelligence program
to strengthen these areas, address identified issues, and deal with
perceived weaknesses. Also during 1999, we made great strides in the
implementation of DOE's Integrated Safety Management System at the
Laboratory. These activities have greatly heightened safety and
security awareness among all Laboratory employees.
More than ever, attention to safety and security is ingrained in
the way we operate. Our attention to safety and security is not
diminished with the establishment of the National Nuclear Security
Administration. In practical terms, we are governed by the same set of
laws, orders, rules and regulations and subject to oversight as before.
However, with the reorganization, there is the potential for
streamlined management and oversight of safety and security, clear
program direction, and strengthened accountability. While details about
implementation are important and need to be resolved, in principle such
changes could have a positive effect on safety and security management
and implementation at the Laboratory.
Mr. Upton. Thank you. Dr. Robinson, Paul, welcome.
TESTIMONY OF C. PAUL ROBINSON
Mr. Robinson. Thank you, Mr. Chairman. I did submit a
longer statement. Let me just summarize a few of the key points
and perhaps try and summarize some reactions to the previous
panel.
I think the central question before us all today is what
are the right management principles to invoke for implementing
oversight in the new semi-autonomous agency that has been
created, the National Nuclear Security Administration. I cited
in my testimony a number of major reports that have been
carried out by senior people in the country to examine the
situation at the laboratories and plants. First, the Galvin
Commission in 1995; the 120-day study carried out by members of
the Institute for Defense Analysis in response to the national
defense authorization request; the President's Foreign
Intelligence Advisory Board that completed its work last year;
and the Foster panel, which was created to assess reliability
and safety of the security of the U.S. nuclear stockpile
established by the National Defense Authorization Act in 1999.
All of these people, though tasked with specific agendas, all
found occasion to remark about the level of bureaucracy that
has grown up over time.
Mr. Chairman, I left graduate school and joined one of the
national laboratories in 1967, at that time under the Atomic
Energy Commission. So I have watched the transition over more
than 30 years as we move from the AEC, the Energy Research and
Development Administration, and on to the Department of Energy.
I must say it is easy for me to reflect back on that entire
period of time and see the growth of bureaucracy with almost
nothing to halt the steady and continuous growth.
That is cited in the words I quoted from those expert
panels. I think that the debate we are having here is not as to
whether we should have oversight and management of these
activities. Of course they should be there and it is a Federal
function. But we must come to some agreement on what is
excessive oversight and when does management move from good
management to micro management. I think that is a central theme
and setting the pendulum is a key part of the task you have
taken on. When you spend more and more of your work going
through bureaucratic procedures there is less time devoted to
the mission work. I have seen that expand over time and I think
it has gone too far. It is time--and I looked with great hope
at the legislation for the NNSA as a chance to do just what was
said, of streamlining some of the processes.
Now, I certainly do not want to be put in the position of
blaming any of the individuals in the Department today. I see
no gain in that, no future in that. In fact, I have seen
improvements in recent time as these folks who have come in now
have in fact acknowledged the level of bureaucracy. As Mr.
Glauthier said this morning, in April of last year they indeed
invoked some new procedures to try to cut down on the many
lines of accountability and authority which were a labyrinth
overlapping the Department. That has been seen as a significant
gain. I certainly take no issue with the good gentlemen, Dr.
David Michaels or Glenn Podonsky. I think they are very well
meaning individuals, they want to help and I believe they want
to do more than just write traffic tickets, by analogy, which
often turns out with oversight responsibilities. They would
like to be part of the solution as well.
Unfortunately, over time a lot of well meaning people have
said we want to help and we want to be part of the solution. As
the Galvin Commission said, we have all been getting far more
help that we can usefully use. That is a central part of the
problem. When everybody is in charge no one is in charge. It is
crucial to try to define what are those lines of responsibility
and accountability and we must hold people accountable for the
work.
One other key point I would mention is the history has not
been a good one. We have watched the number of audits and
oversight visits increase monotonically over time. They only
after the Galvin Commission report put the spotlight on it and
began to decrease somewhat. At that time we had two major
audits or investigations of our lab every single month. The way
these were carried out with the management change from
headquarters, various offices, to the program offices to the
field offices, each one would be worried, gee, what if they
should find something derogatory in that inspection or
evaluation. I know, we will conduct an inspection early. So we
back up 2 or 3 weeks on the calendar before a major inspection
by an oversight group, there would be a preinspection and then
another group working on the chain would say, well, I wouldn't
want my boss to find out that there is a problem, we better
conduct an investigation 2 weeks before that. Over time a great
number of the staff, a lot of the expenditures that were
carried out were to keep up with these audits and oversight
investigations.
A key principle I believe has made an appearance upon the
U.S. industrial scene in recent years. One of the most
important parts of the quality I think it has brought to
American business is that you can't really improve quality
simply by inspecting out defects in a product or activity. You
have got to take proactive efforts to build in quality from the
ground up by the very people who must carry out the work.
That's a theme that I think is vitally important for us in the
laboratories to take to heart, to emphasize, and that I think
comes with streamlining the oversight at the same time. That
will pay much better dividends to the American taxpayers for
the expenditures they invest with us.
The environmental safety and health responsibilities must
be embedded particularly in laboratories with the people who
are there to do the work. An early administration actually
tried to operate the laboratories as if they were a nuclear
power station. Now, there is almost nothing we do that would
resemble a nuclear power station. In fact, if we are carrying
out leading edge research on behalf of the Nation, we almost
never repeat the same activity twice. Research and development
requires you to press the frontier and to try new things. It
doesn't look like a production activity, and so that overlay
never quite worked. But lots and lots of growth and
organizations occurred but what we never called to
accountability for was, was this working out or was it not
working out. That's a key part of what I believe the NNSA was
to accomplish, to put accountability in the people who are in
charge of the mission and of the program's programs, and that I
embraced very thoroughly.
Let me close by mentioning that I attached to this
statement a number of the activities that we have taken, not
because anyone suggested that they should be taken, but because
we knew they were important to carry out our mission in the
best way. I have included an appendix of a wide number of
activities, both in cyber security, which has been the newest
and the major worry within the laboratories, but also security,
environment, safety, and health.
I think as you peruse those you will see the list is
something that could not have occurred by an external
organization at a long distance away making a suggestion of
what should be done to better do the work. These are the kinds
of things that had to arise by the people responsible for
carrying out the work with their own caring about security and
safety to take actions which are effective in raising the level
of both security and safety to protect the lives of our
employees and to protect our communities.
Thank you very much, sir.
[The prepared statement of C. Paul Robinson follows:]
Prepared Statement of C. Paul Robinson, Director, Sandia National
Laboratories
introduction
Mr. Chairman and distinguished members of the committee, thank you
for the opportunity to testify today. I am Paul Robinson, director of
Sandia National Laboratories. Sandia is managed and operated for the
U.S. Department of Energy by Sandia Corporation, a subsidiary of the
Lockheed Martin Corporation.
Sandia National Laboratories is a multiprogram laboratory of the
U.S. Department of Energy (DOE) and is one of the three National
Nuclear Security Administration (NNSA) laboratories with research and
development responsibility for nuclear weapons. Sandia's job is the
design, development, and certification of nearly all of the non-nuclear
subsystems of nuclear weapons. Our responsibilities include arming,
fuzing, and firing systems; safety, security, and use-control systems;
engineering support for production and dismantlement of nuclear
weapons; and surveillance and support of weapons in stockpile. We
perform substantial work in programs closely related to nuclear
weapons, such as nuclear intelligence, nonproliferation, and treaty
verification technologies. As a multiprogram national laboratory,
Sandia also performs research and development for DOE's energy offices,
as well as work for other agencies when our unique capabilities can
make significant contributions.
I am pleased to comment on the important issue of safety and
security oversight of the new National Nuclear Security Administration.
Oversight is an essential function for good management, and when it is
properly implemented it enhances the ability of an organization or
program to perform its mission. The question before us is, What are
sound management principles for implementing oversight in the new
National Nuclear Security Administration? The implementation of the
NNSA presents an opportunity for DOE to correct some of the structural
problems with the oversight function as administered in the past.
I will begin my statement with a brief review of a consensus view
on DOE management and oversight that highlights a need for change. I
will describe some positive trends in how oversight is evolving at DOE,
largely as a result of several high-level studies. I will discuss how
lessons learned from past oversight experiences should influence how we
implement the newest effort--in oversight of cyber-security. I will
also comment on the changes in the DOE management structure proposed by
the Secretary's Implementation Plan for the National Nuclear Security
Administration, including some concerns over ``dual-hatting'' of
various staff functions.
Finally, I have attached an appendix to my statement that lists
some of the many improvements and innovations in security and safety
implemented by Sandia National Laboratories on its own initiative
without directive from DOE oversight offices. It is important for the
Congress to appreciate that the NNSA laboratories are vigorously
proactive in achieving high levels of security and safety, and not only
as a result of DOE oversight.
consensus on the need for change
Several high-level studies have been critical of oversight and
management at the Department of Energy. In 1995, the influential
``Galvin Report,'' (the Secretary of Energy's Task Force on Alternative
Futures for the DOE National Laboratories) found that the GOCO
(government-owned, contractor-operated) concept, the model on which the
laboratories have operated for the last fifty years, had been
irretrievably weakened through unrestrained growth in DOE
micromanagement, rule-making, and excessive oversight.
The DOE system of using GOCOs as Management and Operating
contractors has served the nation in an exceptional way. The original
intent of the GOCO system, from the latter days of the Manhattan
Project, was to provide a means for the government to obtain technical
management and research expertise that is greater than that available
within the federal system itself. A wide variety of reviews, spanning
decades, have concluded that the GOCO concept adds exceptional value to
the nation, and is a preferred research and development model.
Regrettably, the Galvin Task Force lamented the demise of the GOCO
concept in actual DOE practice:
The GOCO system was a promising concept. The Contractors, as
contractors, do yeoman work. The system has been employed for
decades. But in that time it has followed the natural course of
government's proclivity to govern more. The owner wants to take
charge more. Most able goverless willing to listen to your
value. Translation: add more governance. This makes work for
more government personnel, increasing the size of the
operation, increasing still further need for management, ad
infinitum. Congressional policy has significantly driven this
consequence. (Page 53)
The Galvin report was very direct in its criticism of ``excessive
oversight and micromanaging'' by DOE:
The net effect is that thousands of people are engaged on the
government payroll to oversee and prescribe tens of thousands
of how-to functions. The laboratories must staff up or
reallocate the resources of its people to be responsive to such
myriads of directives; more and more of the science-intended
resources are having to be redirected to the phenomenon of
accountability versus producing science and technology
benefits. (Page A-1)
Two years after the Galvin Report, the Institute for Defense
Analyses echoed these concerns in their study for Congress
(commissioned by the National Defense Authorization Act for Fiscal Year
1997), commonly known as the ``120-Day Study'':
The current system can best be described as one in which
everybody reviews everything until everyone is satisfied. The
``process'' is ad hoc, and almost defies description . . .
There is no consensus among all these reviewers and checkers
and checkers of checkers regarding the desired end-state for a
facility. Consequently, each of the organizations that reviews
a document, decision, or process does so from its own
perspective and insists that the facility meet its priority
requirements for safety. (Page ES-1)
Last year's report of the President's Foreign Intelligence Advisory
Board (PFIAB) entitled, ``Science at Its Best; Security at Its Worst,''
referred to DOE as a ``big, byzantine, and bewildering bureaucracy.''
In regard to security performance, the PFIAB found that ``multiple
chains of command and standards of performance negated accountability,
resulting in pervasive inefficiency, confusion, and mistrust'' (page
I). It concluded that ``real and lasting security and
counterintelligence reform at the weapons labs is simply unworkable
within DOE's current structure and culture'' (page 46). The PFIAB's
recommendations, of course, were the basis for the legislation creating
the semi-autonomous National Nuclear Security Administration within the
Department of Energy.
And most recently, the ``Report of the Panel to Assess the
Reliability, Safety, and Security of the United States Nuclear
Stockpile'' (commissioned by the Strom Thurmond National Defense
Authorization Act of 1999), commonly known as the ``Foster Report,''
again called for DOE management reform--with a detectable tone of
exasperation--stressing the need to integrate safety and security into
line management responsibility:
The Department of Energy needs to address the internal
management practices that have repeatedly been cited as
counterproductive to the weapons program by external review
groups, including the Galvin Commission, the 120-Day Study, and
the Chiles Commission . . . The key management principle that
has been urged upon the Department is the integration into line
management of all significant functional responsibilities,
including safety and security. The Department has suffered from
the diffusion of these functions across a range of staff and
line organizations, leading to clouded lines of authority and
blurred responsibility and accountability. (Page 10)
doe's oversight structure needs improvement
Sandia's experience with oversight conducted by DOE over the years
leads me to believe that the Department is making an effort in recent
years to heed the advice of the review panels. In the past, it was not
unusual for various staff offices at multiple levels of the DOE
management structure to exercise overlapping and often redundant
oversight functions. We often found ourselves responding to the demands
of multiple DOE offices on the same or similar issues. Consequently,
the impact on programmatic work was far more disruptive than was
necessary.
At the peak of the Department's environmental, safety, and health
(ES&H) compliance initiative in 1992, we pointed out to DOE that the
audit rate was two assessments per month at Sandia. Inspection teams
visited us from multiple offices at DOE headquarters and field
elements. Inconsistency in results and expectations was a problem. For
example, the environmental protection program at our California
facility was graded as ``excellent'' by one set of examiners, but an
audit six months later by a different group scored it ``marginal,''
even though the program had been improved in the interim. We had great
difficulty dealing with multiple demands and conflicts in
prioritization of action items. For a long while, it seemed as though
some oversight staff within the DOE were simply playing ``gotcha!''
with the organizations on the line performing the mission work of DOE.
Other individuals undoubtedly saw oversight initiatives as an
opportunity to build empires. The record of the Department in those
early years was unfortunate because it created a mistrustful
environment that was counterproductive to mission work.
The Institute for Defense Analyses in its ``120-Day Study'' found
experiences like this to be a widespread and serious problem:
Because of the large number of DOE and external organizations
that have some responsibility for managing ES&H concerns,
defense nuclear facilities are subject to a wide range of
oversight and audit requirements. Facilities are subject to
oversight from their facility representatives, the site or area
office, the operations office, the program-sponsoring
secretariat, other headquarters activities, the DNFSB, and
other federal and state regulators. Often these are
uncoordinated, as there is no central authority below the
Office of the Secretary that can discipline the activities of
the internal oversight elements . . . Many DOE and contractor
officials describe Defense Programs' oversight as creating an
inverted management pyramid, because the number of reviewers
exceeds the number of hands-on workers. For example,
contractors have cited examples where work done by two or three
people becomes the subject of review meetings involving 40 or
more Defense Programs officials. (Page II-14)
Fortunately, the situation is significantly better today that it
used to be. These findings by the Galvin Task Force and the 120-Day
Study helped alert receptive executives in DOE to the problem of
oversight abuses and conflicting management responsibilities. The
insight of DOE field office staff into these problems was also a
catalyst for change, as they pushed back against some of the excesses
that had arisen in various parts of DOE. With no real management
control over autonomous oversight activities within the headquarters of
the Department, serious difficulties had been created for us all--for
the DOE field offices, who are closer to the work and who are charged
with both execution of mission as well as ES&H oversight, for the
laboratories and plants at the end of the chain for DOE orders and
directives, and for DOE itself as it struggled to direct oversight in a
way that would not frustrate the mission.
In successive oversight campaigns for physical security, nuclear
materials control, cyber security, and other issues that gained
attention, DOE has tried to do a better job and move away from the old
dysfunctional pattern of adversarial, redundant, layered authorities
and audit overkill. I believe DOE has learned that successful oversight
is much more than just conducting inspections. The Total Quality
revolution that swept through American industry beginning almost 20
years ago taught us that the old strategy of ``inspecting-out'' defects
does not work in the long term. Rather, you have to ``build-in''
quality right from the outset of the program.
Today, DOE management appears to be more aware of the need to
conduct oversight in a manner that is constructive for the programs.
That means building security and safety directly into program
management (through the programmatic budget process) and into the
cultures of the line organizations, rather than installing an
organizational overlay above line management. Inspections will continue
to be an essential element of the oversight model, but they must be
part of a balanced program that works with, rather than against,
program management. The Institute for Defense Analyses' study cited
this as one of six management principles that DOE should adopt:
There is widespread agreement that ES&H responsibilities, in
order to be properly executed, must be embedded in line
management. Achieving day-to-day safe operations can only be
achieved by the people close to the work, and within a well
understood safety management system. This means giving line
managers the responsibility and authority they need, holding
them accountable, and then letting them do their jobs--with, of
course, appropriate oversight. (120-Day Study, page IV-2)
an example: price-anderson administration
The Department's administration of the requirements of the Price-
Anderson Amendments Act of 1988 is an example of the evolution in
thinking regarding how DOE should perform oversight. Reporting to the
Assistant Secretary of Environment, Safety, and Health (EH-1), the
Office of the Deputy Assistant Secretary for Nuclear and Facility
Safety develops nuclear safety policy for all DOE nuclear facilities
other than Navy nuclear propulsion facilities. The Office of
Enforcement and Investigation (also reporting to EH-1) reviews
potential violations and can assess fines directly against DOE
contractors.
The contractors, understandably, are eager to maintain high levels
of nuclear facility safety performance in order to minimize the
potential for financial penalties. However, in the past, DOE's approach
stressed enforcement without integrating requirements into programmatic
objectives. There was no coordination or adjudication with DOE program
offices. Thus, the Department's policies for nuclear safety performance
could be articulated in terms of measurable performance objectives
within a program budget and schedule. The contractors had little
programmatic guidance and rarely had explicit budget authority for
nuclear safety functions.
DOE appears to be moving toward a more effective approach by
establishing a mechanism for coordinating policy with programs. The
Secretary of Energy's recent action to establish a Field Management
Council was an important step to ensure that policies affecting field
operations are coordinated with the appropriate Lead Program
Secretarial Officers. This process should eventually establish a
clearly understood chain of accountability for nuclear facility safety
performance (and other policy objectives) through program management
hierarchies.
cyber-security needs to be integrated with the mission's programs
The lessons learned from our experience with Price-Anderson and
other oversight areas are useful as the Department considers how to
establish both oversight and management structures for cyber security.
It would be poor practice to establish a cyber-security enforcement
office in DOE that places requirements directly on facilities rather
than holding the line management of the nuclear weapons enterprise
responsible. More than any other area of security, cyber security must
be integrated into the total program. An enterprise-wide solution is
required, comprising the laboratories, production plants, field
offices, and headquarters. Connections between sites offer potentially
exploitable opportunities for foreign nation-state attackers and
increased vulnerability to insider threats. The top management for
national nuclear security programs--specifically, the NNSA
Administrator, the Deputy Administrator for Defense Programs, and the
operations managers--are the only officials with the programmatic scope
to assure that the nuclear weapons complex has an enterprise-level
computer network with both the functionality to support the mission and
the cyber security to meet its rigorous requirements for information
protection.
My expectation is that an appropriation on the order of $360
million over three years will be required to implement effective
enterprise-wide cyber security. The responsibility and the funding must
be placed unequivocally in the hands of the defense programs'
management. The oversight function should critique and support the
management process that is tasked with meeting those cyber-security
objectives, but it must not be allowed to unilaterally usurp the
management process.
changing the doe structure
The Secretary's Implementation Plan for the National Nuclear
Security Administration brings together, as mandated, the closely
related functions of defense programs, nonproliferation programs, and
naval reactors under a single administrator who is an Under Secretary
of Energy. Each of these portfolios will be managed by a deputy
administrator. This realignment should enhance coordination and
communication among these activities. I am also encouraged that the
Secretary's implementation plan permits the NNSA laboratories to
continue to perform work for the DOE science and energy programs, a
relationship that has been of great benefit to the laboratories in the
past.
The field office managers for Albuquerque and Nevada operations
report to the Deputy Administrator for Defense Programs. The operations
managers are the federal management level closest to the actual work
performed at the laboratories and plants. Their boss, the Deputy
Administrator for Defense Programs, is effectively the chief operating
officer of the nuclear weapons complex. The Administrator of the
National Nuclear Security Administration may be thought of as the chief
executive officer.
There has been some criticism that the operations offices and DOE
headquarters have redundant management functions. Recent testimony by
GAO complained that the Secretary's implementation plan ``still puts
the operations office in the chain of command, continuing to blur who
is accountable.'' 1 If confusion exists in the management
functions of headquarters and the field offices, it should be resolved
using the generally accepted management principle of pushing decision-
making to the lowest operational levels possible. The Deputy
Administrator for Defense Programs should not be directly managing the
laboratories and plants. That is a job for the operations managers in
the field. The operations managers are removed from the political
distractions of Washington and they can focus effectively on addressing
the significant challenges of operating the nuclear weapons complex.
These field managers are not autonomous; they are fully accountable to
the Deputy Administrator. I believe that all of the weapons design and
production facilities should be attached to a single field office that
would have day-to-day operating responsibility.
---------------------------------------------------------------------------
\1\ Statement of Gary L. Jones, Associate Director, Energy,
Resources, And Science Issues; Resources, Community, and Economic
Development Division; Government Accounting Office. Testimony before
the Special Oversight Panel on DOE Reorganization, House Armed Services
Committee, March 2, 2000.
---------------------------------------------------------------------------
Abolishing the DOE field organizations (as GAO seemed to advocate)
would require that day-to-day operational decisions be pushed up the
chain of command to a level further removed from direct oversight of
the work. That would be a counterproductive approach to fixing the
redundancy problem and would result in less effective oversight of
operations. If we have redundant management functions in headquarters
and the field offices, the presumption should be to remove the
duplicate functions from the headquarters level.
The management structure outlined in the Secretary's implementation
plan makes good sense in concept, but a few practical problems remain.
The alignment of field elements with the appropriate DOE under
secretary should be improved. In particular, Lawrence Livermore
National Laboratory, one of the three nuclear weapons laboratories,
continues to be managed by the Oakland Operations Office, which does
not report to the Deputy Administrator for Defense Programs. This
situation, and a few other anomalies, should be easy to remedy.
``dual-hatting'' of oversight offices
Many observers have raised concerns about the provisions in the
National Nuclear Security Administration Implementation Plan for
``dual-hatting'' of the support officers for counterintelligence,
security, ES&H, and other staff functions. In my opinion, the
concurrent appointments of these officers and staff in the NNSA and the
Department will tend to perpetuate the earlier problems of confusion
and conflict between staff and management functions.
The support offices for security, counterintelligence, and
environment, safety, and health assigned to the Under Secretary and
Administrator for the National Nuclear Security Administration should
be unique and report exclusively to that official. They are above and
independent of the Deputy Administrator for Defense Programs (and the
other deputy administrators) and his field elements. Assessment
information provided by the support offices to the Administrator will
permit him to direct his deputy administrators to resolve security and
safety issues in their purview in a way that is integrated with mission
objectives. This approach is the proven and accepted method for quality
assurance activities throughout both the nuclear power industry and the
defense industry. This structure is also entirely consistent with the
recommendations of the President's Foreign Intelligence Advisory Board
as expressed in their Memorandum of Clarification on June 30, 1999:
There clearly must be solid CI, intelligence, and security
programs within the new agency. To achieve this, the agency
director must have sufficient staff assigned directly to him/
her to advise on the implementation of CI, security, and
intelligence policy as promulgated by the Secretary.
The Administrator, in turn, will be directly accountable to the
Secretary of Energy, and should be held accountable for acceptable
performance in security, counterintelligence, and environment, safety,
and health. The Secretary may wish to rely on his own separate advisory
staff in these areas to advise him on the security and safety
performance of the NNSA and report back to the Secretary with any
concerns. I believe the PFIAB, in its memorandum, regards this
arrangement as proper:
The Secretary is still responsible for developing and
promulgating DOE-wide policy on these matters, and it makes
sense to us that a Secretary would want advisers on his/her
immediate staff to assist in that vein.
The GAO testimony I cited earlier reported that the DOE Office of
Independent Oversight and Performance Assurance is attempting to modify
DOE orders to ensure that it can place direct requirements on NNSA
elements. Such a move is not desirable and would continue the confusion
of staff functions exercising line management authority, and would be
contrary to the principles outlined by the PFIAB. An audit organization
reporting to the Secretary should do just that--report to the
Secretary. The proper approach is for the Secretary to hold the
Administrator accountable, rather than allowing oversight organizations
to bypass him and exert direct executive control. The 120-Day Study
regarded this practice as a prevalent and unfortunate problem in DOE:
People throughout Defense Programs confuse the power and
influence that comes with being a staff person associated with
a powerful line manager, with line management responsibility
(page ES-2)
As a laboratory director, I have no objection to independent
oversight that is balanced and truly independent. Such oversight can be
very helpful, indeed, essential. However, staff oversight organizations
that can insert themselves into the program management chain with no
accountability or adjudication are no longer truly independent.
It may also be advisable for the Secretary to periodically
commission a fresh set of eyes and minds for oversight activities. In
the current structure, the inspecting offices are permanent
establishments and have a career stake in the status quo. This conflict
of interest would not exist with external review entities, such as
select panels or a ``red team'' combined from other technical agencies.
conclusion
The new National Nuclear Security Administration should be
implemented on sound management principles, including the concepts of
clear lines of management authority, separation of staff and line
responsibility, quality built-in to the program, and appropriate
internal and external oversight. If properly implemented, the National
Nuclear Security Administration can correct the dysfunction caused by
confusion of authorities, adversarial oversight, usurpation of
operational management by staff organizations, and a self-perpetuating
oversight establishment in the Department. The Secretary's
Implementation Plan is a significant first step toward realizing the
vision of an effective National Nuclear Security Administration.
It is my belief that the circumstances in DOE that have been so
strongly criticized by review panels are not the fault of any
individuals, certainly not the people who are in charge or occupy key
positions in the Department of Energy today. As the President's Foreign
Intelligence Advisory Board found, the single most identifiable factor
that led to the current state of affairs was the relentless growth of
bureaucracy. My definition of bureaucracy is when well-meaning, capable
people find it difficult to accomplish their mission responsibilities
because of multiple lines of authority and bureaucratic hurdles that
must be overcome. Unfortunately, that is the state DOE has come to. The
Congressional act to isolate the nuclear weapons, nonproliferation and
verification, and naval reactors programs from the rest of the
Department is an attempt to break as many bureaucratic lines as
possible in order that the new agency can get on with its mission while
achieving high levels of security and safety in a fashion that is
integrated with its program responsibilities.
APPENDIX
sandia national laboratories self-originated security and safety
improvements
The following list illustrates some of the many improvements and
innovations in security and safety implemented on the initiative of
Sandia National Laboratories without directive from DOE oversight
offices or the Defense Nuclear Facilities Safety Board.
Computer Security
Sandia pioneered the three-level network security architecture
that was accepted as the standard configuration for the nuclear
weapons complex in 1999. This architecture includes an
unclassified, non-sensitive external network open to the
Internet and our university and industrial collaborators; an
unclassified internal restricted network accessible only by
personnel with authorized access; and an internal classified
network secured by personnel clearances, strong authentication
systems, encrypted communications, need-to-know groupings, and
hardware/ software isolation from unclassified systems.
At the creation of the Sandia Restricted Network (which
contains sensitive unclassified information), Sandia developed
a restrictive firewall to protect this network from the
Internet. The capabilities of the firewall have been enhanced
through the years to provide greater utility for Sandia's
scientists and engineers while presenting a significant barrier
to unauthorized access from the Internet.
A proxy server for the worldwide web was implemented at Sandia
National Laboratories in 1995 with a set of filters developed
by Sandia that strengthened the firewall by allowing users to
access web pages on the Internet while preventing the automatic
execution of dangerous file types. Filters installed at the
Internet point of connection prevent other sites from
masquerading as Sandia addresses and inhibit other common
attacks.
In 1995, Sandia implemented a network intrusion detection
system using the ``NID'' software developed at Lawrence
Livermore National Laboratory. Sandia is in the process of
replacing NID with an improved commercial package,
``RealSecure'' from Internet Security Systems.
Sandia has recently developed another firewall called ``FTP
Guard,'' which runs on an operating system approved by the
National Security Agency, to protect against file transfers out
of the classified network. FTP Guard is a ``diode'' filter
that, when implemented, will permit users on the Sandia
Internal Secure Network to download unclassified files from an
unclassified network while preventing file transfers in the
opposite direction. FTP Guard has passed multiple independent
technical reviews and is the first system of its kind to be
accredited by DOE. We expect FTP Guard to be implemented on our
production network at an appropriate time in the future.
Sandia, in cooperation with Lawrence Livermore National
Laboratory, Los Alamos National Laboratory, and DOE nuclear
weapons production agencies, developed a secure, high-speed,
intersite network linking the classified networks at each of
the nuclear weapon laboratories and the production plants. This
wide-area network, called ``DOE SecureNet'' was conceived and
designed by the laboratories.
Sandia adopted the Kerberos network authentication protocol
developed at the Massachusetts Institute of Technology.
Kerberos provides strong authentication for client/server
applications by using secret-key cryptography. Sandia developed
an interactive password management system to support our use of
Kerberos by assigning randomly generated alphanumeric, mixed-
case sequences as passwords. We also developed software to
implement Kerberos authentication in the Netscape web browser,
providing secure web access to sensitive unclassified
information on the Sandia Restricted Network. The draft DOE
order on password protection essentially institutionalizes this
security feature pioneered by Sandia. Sandia now uses a secure,
heterogeneous Distributed Computing Environment from The Open
Group, a consortium of vendors, which incorporates the Kerberos
authentication system.
Sandia implemented an Entrust public key infrastructure on its
unclassified restricted network in 1997, enabling secure
exchange of sensitive unclassified documents via encryption and
digital signature within the laboratory and with other DOE
sites.
In 1998, Sandia began a network scanning process (using ISS/
CyberCop) almost a year before the Tri-Lab InfoSec Plan
recommended it.
In 1999, Sandia added SecurID authentication to ISDN dial-up
access to its unclassified networks. A SecurID card provides
strong two-factor authentication.
Sandia wrote security configuration guidelines for classified
and unclassified desktop systems in 1999. Desktop security
models for PCs (Windows), UNIX, and Macintosh systems provide
uniform definition and automated monitoring to reduce
vulnerabilities.
Physical Security
Between 1996 and 1999, Sandia National Laboratories, New
Mexico, installed automated security gates at 24 portals to
control access by pedestrians and vehicles into the
laboratory's technical area. This system improved security by
using magnetic-strip badge readers rather than visual
inspection by security guards, which can be unreliable,
especially during peak traffic times.
In 1998, Sandia spent $500,000 on equipment for technical
security countermeasures, which was not yet required by DOE but
which we felt would increase the reliability of the system. It
is our understanding that DOE plans to require the new
equipment at DOE sites in the next few years.
Three years ago, Sandia National Laboratories, California,
replaced its alarm system using laboratory funding rather than
line item funding. The California site has installed extensive
access control features, allowing owners of limited areas to
grant access to rooms and areas based on need to know. We
intend to install a similar system at New Mexico as funding
permits.
Personnel Security
In 1997, Sandia established an Infraction Review Committee to
process and evaluate security infractions. This committee is
composed of the manager of the security incident management
program, the line manager of the person responsible for the
potential infraction, and the manager of the safeguards and
security topical area involved in the incident. Incidents from
special access programs and sensitive compartmented information
facilities are also reviewed by this committee.
In 1999 Sandia implemented an electronic Foreign National
Request (FNR) System. Web-based and user-friendly, the system
uses a workflow system and parallels the concurrence process to
improve data quality, facilitate approvals, eliminate data re-
entry, and provide users with on-line access to unclassified
data regarding the status of visit requests. Other laboratories
in DOE and DoD have asked Sandia to share these programs with
them.
Security of Nuclear Materials
In 1995, Sandia completed a site-wide plan for disposing
excess nuclear material. Since then, more than 20 metric tons
of accountable nuclear material has been shipped from Sandia,
either for recycling or disposal as waste. The benefits of this
reduction in inventory include reduced vulnerability, lower
protective force costs, and consolidation of material into
facilities specially designed to protect nuclear material.
In 1997, we implemented the Sandia National Laboratories Local
Area Network Materials Accountability System (SNL-LANMAS) to
maintain the laboratory's book inventory of nuclear materials.
SNL-LANMAS tracks nuclear materials in storage and transport
and calculates the radioactivity and decay rates.
Environment, Safety, and Health (ES&H)
Sandia National Laboratories was one of the first Department
of Energy facilities to institute an Integrated Safety
Management System, and did so before it was mandated.
Sandia developed automated risk management tools that assist
in the identification, evaluation, and control of hazards;
generation of safety-basis documentation; maintenance of
safety-critical building systems; and tracking of safety and
security issues. These tools include the following modules:
Primary Hazard Screen module is a series of successive
question sets that link work hazards to program
requirements, recommended work controls, and training
guidance in the ES&H Manual covering all work activities.
Hazard Analysis module contains scenario templates and
more detailed analysis question sets related to low-hazard
facilities and operations.
NEPA/ADM module is a checklist for determining actions and
project documentation required for compliance with the
National Environmental Policy Act.
Maximo database automatically schedules maintenance of
safety-critical building structures, systems, and
components in terms of priority and frequency.
Sandia Issues Management System database supports tracking
of safety and security issues and corrective actions, and
roll-up for reporting to executive management.
Sandia developed a Chemical Information System, which is a set
of networked chemical management databases supported by a field
team of inventory specialists. We connected the local fire
station on Kirtland Air Force Base to this system so that
firefighters can determine what chemicals may reside in Sandia
buildings when they respond to emergencies. The Chemical
Information System includes the following elements:
Chemical tracking database allows tracking and
inventorying of bar-coded chemical containers from purchase
to disposal.
Material safety library has more than 60.000 Material
Safety Data Sheets available on-line for managers and
personnel to use in understanding and controlling chemical
reactions and exposures.
Chemical exchange service supports the redistribution of
surplus chemicals for reduction of existing inventories and
new chemical purchases.
In 1997, Sandia established a database for construction safety
inspections. This item was cited as an ``area of excellence''
in the DOE laboratory appraisal report for that year. In
addition, we implemented a safety incentive program which
rewards subcontractors for safe performance of job duties.
Education and Training for Security and Safety
Sandia created a suite of interactive training courses on the
Sandia internal web site for security and ES&H. This
computerized training system provides flexible delivery options
and automated record-keeping of training compliance. User-
friendly modules with test questions include initial and
refresher courses on general security, computer security,
classification and document control, ES&H awareness, and
general employee radiological training. The Training and
Educational Development System database is a course management
software application that lets management assign, track, and
enforce course completions for all personnel.
Programmatic Security Research and Development
In addition to the security actions listed above, security
technologies pioneered by Sandia include a wide range of security
concepts, systems, and components proposed and developed in the
national interest.
In 1999, Sandia National Laboratories developed the world's
fastest encryptor chip called the ``SNL Data Encryption
Standard (DES) Application Specific Integrated Circuit
(ASIC).'' It is the fastest known implementation of the DES
algorithm, a mathematical transformation commonly used to
protect data by cryptographic means. The device encrypts data
at more than 6.7 billion bits per second, 10 times faster than
any other known encryptor.
Activated denial concepts are used to convert benign
operational working environments into unfriendly ones upon
detection of an adversary attack. Activated denial technologies
developed by Sandia and used throughout the DOE include smoke
dispersal systems, aqueous foams, and sticky and rigid foams.
Explosives detection of vapors or particulates is an area
where Sandia now holds multiple patents. We are providing
licenses to industry to commercialize walk-through detectors of
molecules of explosive compounds, suitable for use in airports.
Architectural surety is a concept developed at Sandia as a
response to the Oklahoma City bombing in April 1995. It applies
multi-level surety principles developed in the nuclear weapons
program to the design of civil structures. These principles can
be applied to many civilian situations that involve high
consequences (e.g., air travel, storage of spent nuclear fuel,
critical infrastructures). A graduate course in architectural
surety has been taught in cooperation with the University of
New Mexico's Civil Engineering Department, and other
universities are developing partnerships with Sandia to offer
courses in architectural surety.
Sandia National Laboratories develops technologies for safely
disabling terrorist bombs. Every year, in cooperation with the
FBI, Sandia conducts advanced training for bomb squads of
police departments, emphasizing the science, technology, and
practice of bomb disablement. We entered this work on our own
initiative because our expertise in chemical explosives and
detonation systems for nuclear weapons could be applied to this
important public safety issue.
In 1996, Sandia National Laboratories installed a suite of
security systems at a high school to demonstrate the
application of technologies appropriate for school security and
safety. The school reported a 90 percent decrease in vandalism
and theft and a 75 percent decline in fights on campus. Since
then, Sandia has advised administrators at more than 100
schools nationwide. In cooperation with the National Institute
of Justice, we have made available, as a public service, a
manual entitled, ``The Appropriate and Effective Use of
Security Technologies in U.S. Schools.'' This manual is
downloadable from the DOE and Department of Justice web sites.
Mr. Upton. Thank you.
Dr. Burick, welcome.
TESTIMONY OF RICHARD J. BURICK
Mr. Burick. Thank you, Mr. Chairman. I am Deputy Director
of Operations at Los Alamos. I am pleased to have the
opportunity to comment on the oversight of the safety and
security and the new National Nuclear Security Administration.
We share with you a deep interest in the successful
implementation of the NNSA.
This morning I have three key points to make and I would
like to summarize my written testimony. First, at Los Alamos
ES&H and security are important elements of our goal of
operational excellence, founded on total organizational
commitment rather than on a particular oversight structure.
Second, the creation of the NNSA offers an opportunity that
should be used by the DOE to create a more effective oversight
system, improve the match between requirements and resources,
and resolve ambiguities in past arrangements. We support
independent oversight. It has been helpful in the past.
However, a real caution: Audit functions should not set
policy. That is the responsibility of the line organization.
And the third point is the laboratory will cooperate with the
Department of Energy and all of its elements, including
auditing and oversight functions as the DOE implements the law
establishing the NNSA.
And now some points on operational excellence and safety
and health. A performance objective of our management and
operations contract with the University of California is to
achieve operational excellence. As the Deputy for Operations, I
am the institutional champion of this goal. The goal of
continued improvement in security in the ESH, as expressed in
our laboratory, is our 6 zeros and is espoused by our director
John Brown: Zero in juries and illnesses on the job; zero
safeguards and security violations; zero injuries and illnesses
off the job; zero environmental incidents; zero ethics
incidents; and zero people mistreatment incidents. The
laboratory is currently responding very well to these clear and
simple goals.
Los Alamos is a safe place to work and getting safer all of
the time. In 3 years under integrated security management the
laboratory rating of OSHA recordable injuries has been reduced
by a factor of 2\1/2\. By this measure our safety record is
approaching world class in our peer group of high tech
industries. If we maintain or improve our current OSHA rates,
the average worker at Los Alamos during their career will not
experience an injury related from work either on or off the
job. Under ISM's guiding principles of management, commitment,
and worker involvement and safety, we believe that the change
to the NNSA will not affect our progress and safety. We will
continue to welcome the help of DOE reviewers in improving our
ISM system and in doing work safely.
Now, on the environment. The laboratory continues to
improve its compliance with environmental rules, remediate
contaminated sites, and reduce the environmental impact of our
current operations.
Strict observance of Federal and State environmental
standards has helped us to reduce the accumulation of legacy
waste, accelerate site cleanup, and earn the trust of our
neighboring communities. Our environmental efforts recently
earned the laboratory three ``Green Zia'' awards from the State
of New Mexico and a satisfactory rating in environmental
compliance with the DOE in October 1999.
Assisted by new technology, the laboratory continues to
shrink the number of contaminated locations onsite. The
laboratory has started to move some legacy waste offsite to
permanent disposal with 17 shipments last year to the Waste
Isolation Pilot Plant. For this purpose we received DOE and EPA
certification of our noninvasive waste characterization system,
the first such certification in the DOE complex. Under our
waste minimization program we have reduced routine hazardous
waste, mixed low level waste and low level waste all by roughly
two-thirds. Waste water outfalls of the laboratory had been
consolidated from 141 in 1993 to 21 today, facilitating
treatment, monitoring, and permitting.
And now on security. In 1999 the laboratory was subjected
to unprecedented pressure regarding security. Led by the
efforts of recently strengthened security, counterintelligence
and cyber security teams, we received a satisfactory grade on
the December 1999 security audit by Mr. Podonsky's
organization, DOE-OA. In addition, we have started a program to
adopt the highly successful principles underlying integrated
safety management to our safeguards and security program. The
University of California recently appointed Security Chief
Terry Owens and a permanent security panel chaired by retired
Admiral Tom Brooks to drive security improvements within the
laboratory. Under the direction of the DOE's new security
office we have witnessed an unprecedented level of
communication and cooperation between the Department and field
activities.
The Department also shows better understanding of the
connection between security mandates and the overall cost of
operations. Los Alamos is predominantly a defense programs
facility, but we do a significant amount of classified work for
other agencies and DOE offices. Because work would be more
effective under uniform policies, consideration could be given
to ensuring that common security practices are adopted and
implemented across the range of DOE and NNSA activities.
Participation of the Albuquerque field office has been
valuable in reviewing and developing our security program. We
expect this cooperation with the field office to continue under
the new NNSA. We have also seen a corresponding improvement in
relation with the Department's oversight program. The reviews
conducted last year by the Office of Independent Oversight and
Performance Assessment were professional and helpful in meeting
our security goals.
Cyber security. The laboratory director has appointed an
Internal Information Security Policy Board headed by the
principal director of--the deputy director of the laboratory to
work with the technical experts, improve--provide a coherent
info-set plan based on the best available information. A
prototype installation at the laboratory provided key input to
the 3-year cyber security plan. For approximately $60 to $90
million over 3 years the plan would equip the classified
network with computing terminals having no capability for
recording on removable media. It would upgrade both classified
and unclassified networks and implement the necessary
administration activities. A supplemental appropriation would
be very helpful for rapid implementation of this plan and we
ask for your support.
In conclusion, transfer of DOE's atomic energy defense
activities to the new NNSA offers opportunities, challenges and
problems. The creation of the NNSA is an opportunity to create
a more efficient and effective oversight system. Needed
improvements include less micro-management, a smaller
regulatory structure, fewer unfunded mandates, fewer
conflicting priorities, and better coordination and budget
rules between programs. A very unfortunate outcome would be for
the NNSA to create more layers of bureaucracy and multiple
voices of conflicting oversight.
The NNSA should adopt the principles of integrated
management that are proving effective in our laboratory. These
include line management responsibility for safety and security,
clear and unambiguous roles of responsibility, and balanced
priorities among operation, safety, and security. From our
perspective the key to effective oversight is the cooperative
approach. We intend to be fully responsive to whatever
structuring emerges.
Thank you very much.
[The prepared statement of Richard J. Burick follows:]
Prepared Statement of Richard Burick, Deputy Director, Los Alamos
National Laboratory
introduction
Mr. Chairman, I am pleased to have the opportunity to testify
before this joint hearing of the Subcommittee on Oversight and
Investigations and the Subcommittee on Energy and Power of the House
Committee on Commerce. We have a deep interest in the successful
implementation of the National Nuclear Security Administration (NNSA)
and appreciate your interest in the issues associated with this
subject.
I have three key points to make today:
ES&H and security are important elements of our goal of
operational excellence founded on total organizational
commitment rather than on a particular oversight structure.
The creation of the NNSA offers an opportunity that should be
used by the DOE to create a more effective oversight system,
improve the match between requirements and resources, and
resolve ambiguities in past arrangements.
The Laboratory will cooperate with the Department of Energy
and all its elements, including auditing and oversight
functions, as the DOE implements the law establishing the NNSA.
We believe we will be consulted as issues arise and believe
such involvement will assist the effectiveness of that
implementation.
operational excellence
A performance objective in our management and operations (M&O)
contract with the University of California (UC) is to achieve
operational excellence. This was a strong message from the University
when they selected John Browne in 1997 as Laboratory Director, and
drove the leadership structure he set up and the people he selected for
those posts. As his deputy for operations, I am the institutional
champion for this goal.
Performance measures for the Laboratory were formalized in the 1992
M&O contract, breaking new ground in DOE relationships. The message on
operational excellence was reinforced in the five-year M&O contract
signed in 1997 through a special assessment on Laboratory performance
in the areas of safety, environment, and community relations. At the
end of two years (October 1999) the Secretary of Energy could elect to
terminate the Los Alamos M&O contract for inadequate performance. We
worked hard and passed that test.
The goal of continued improvement in security and ES&H is expressed
throughout the Laboratory in these terms:
In meeting the moral imperative not to injure people or the
environment while accomplishing our mission, and the business
imperative to meet the environment, safety, and health requirements of
the contract between the University of California and the Department of
Energy, the employees, contractors and guests of the Los Alamos
National Laboratory will strive to have:
ZERO injuries and illnesses on the job
ZERO safeguards and security violations
ZERO injuries and illnesses off the job
ZERO environmental incidents
ZERO ethics incidents
ZERO people mistreatment incidents
The Laboratory is responding well to these clear and simple goals.
Safety and Health
Los Alamos is a safe place to work, as measured by the OSHA metric
of Total Recordable Injuries (TRI). A third-party review confirmed that
our implementation of OSHA metrics was consistent with that in use in
private industry.
In three years, our TRI rate has been reduced from a rate of 5.88
to 2.34 per 200,000 work hours for all work by our employees and on-
site contractors. Less than half of the recordable injuries were
serious enough to result in a lost workday. The TRI reduction by a
factor of 2.5 is a solid achievement and substantially exceeds contract
objectives, but does not represent our desired goal of 2.0 by October
of this year. At that point, our TRI will be ``world class'' in our
peer group of high-tech industries.
To put the numbers in perspective, a TRI rate of 3 corresponds
approximately to one work-related recordable injury per worker's
career. When the goal is reached, a worker will have a reasonable
prospect of suffering no work-related lost-day injury or illness over a
work lifetime. This is the sense of ``zero'' incidents. It's the same
goal you have in your household: no injuries--a desired endpoint, not
always achieved, but always a goal. From the industry comparison, we
know that our target rates are achievable.
Our approach is to engage the Laboratory top-to-bottom through a
process we call Integrated Safety Management (ISM). The implementation
and associated change in the safety culture of the institution are
based on a commitment to improving the safety performance of the
Laboratory. In this way we share the safety goal of the best industries
in this country.
The first guiding principle of our ISM system is management
commitment and worker involvement in safety. The Laboratory Director
endorsed ISM in December 1996 and since then the commitment has grown
through all layers of management to support the safety of the workers,
the public and the environment. What began as a contract objective has
grown into a cultural change.
With recent changes in structure and management, the potential
existed to disrupt ISM. However, throughout these changes our safety
performance continued to improve. ISM is a quality management system
focused on safety rather than a response tailored to a particular
oversight structure. On this basis we believe that the DOE
reorganization will not slow progress, and if handled well, will
enhance progress in safety.
Part of keeping the ISM system on the path to improvement is an
effective assessment function. Self-assessment focus and results are
often featured during the weekly management meetings with division
directors, and findings from external audits are discussed whenever
received. Thorough self-assessment and cooperative engagement with
external reviewers helps improve our safety performance and strengthen
line management's responsibility for safety, one of the ISM guiding
principles.
We have developed an excellent working relationship the various DOE
audit teams. Our sound relationship is evidenced in the excellent
interactions with the teams who performed the two-year Special
Assessment, ISM Phase I and II verification, and the EH2 assessment of
ISM Implementation at LANSCE Division in October 1999. All of the teams
found the Lab supportive of their work. After review for factual
accuracy, the Lab accepted the observations of the teams and
established a formal structure to manage corrective actions. We will
continue to welcome the help of DOE reviewers in improving our ISM
System and in doing work safely.
Environment
The Laboratory continues to improve its compliance with
environmental rules, remediate contaminated sites, and reduce the
environmental impact of current operations.
Compliance--To ensure compliance, the Laboratory undergoes
assessments, audits, investigations, measurements, and so forth that
are both extensive and intensive, much of which is self-conducted and
self-reported. Our self-monitoring has been accompanied by increasingly
stringent applications of standards by external auditors. For example,
treatment, storage, and disposal of hazardous waste is inspected by New
Mexico State Environmental Department (NMED) auditors and held to a
high standard of labeling and containment.
Strict observance of federal and state environmental standards has
helped us to reduce the accumulation of legacy waste, accelerate site
cleanup, and earn the trust of our neighboring communities. The federal
Environmental Protection Agency (EPA) and the NMED hold us to a high
standard and we routinely share our data and self-reported issues with
them. This has helped build the belief that we share a common goal of
minimizing environmental impact. Our environmental efforts recently
earned the Laboratory three ``Green Zia'' awards from the State of New
Mexico and a ``satisfactory'' Laboratory rating in environmental
compliance from the DOE in October 1999.
A regulatory milestone was passed when the DOE issued a Record-Of-
Decision (ROD) approving the Laboratory's Site-Wide Environmental
Impact Statement. The Laboratory will publish an annual report on
compliance with the terms of the ROD.
Environmental remediation--At Los Alamos, the number of potentially
contaminated sites is approximately 2,100. Much of the site evaluation
work has been completed; as a result, many sites have been found to
require no further action. At many of the remaining sites, expedited
cleanup has been completed or has begun. A small percentage of sites
will require more extensive remediation, lasting through about 2009.
Technological advances continue to make progress toward more cost-
effective cleanup. A new in-situ vitrification method is being tested
at the Laboratory's old plutonium site (DP--site; TA-21) to immobilize
buried waste. Although this technique might provide an economical
alternative to excavating and reburial, its applicability may be
limited to sites meeting a fairly narrow set of criteria. Another
environmental restoration project has excavated over 19,000 cubic yards
of high explosives and barium contaminated soil and debris from a
legacy site using remote/robotic equipment.
The Laboratory has started to move some legacy wastes off-site to
permanent disposal. The Laboratory delivered the first waste packages
to the Waste Isolation Pilot Plant (WIPP) on March 25, 1999. By the end
of the fiscal year, 17 shipments were made to WIPP. For this purpose,
we received DOE and EPA certification for our non-invasive, precise
characterization system and demonstrating a rigorous Quality Assurance
program--the first such certification in the complex.
We have since increased our work in this program to provide
assistance to Rocky Flats and Idaho sites to help enable them to ship
waste and we have been tasked to lead the DOE Complex in developing a
National Transuranic Waste Certification Program.
Prevention--A goal of operational excellence is that facility
operations should be sustainable indefinitely with no environmental
degradation.
The Lab continues to extend its air and ground water monitoring
network to ensure accurate characterization of the Lab's environmental
health. As our environmental surveillance becomes more thorough and the
technology more advanced, areas of concern continue to be found. Each
concern is shared with appropriate regulatory authorities and with
neighboring communities that might be affected.
The Laboratory has made substantial documented progress in reducing
environmental impacts. For example, since 1993 the Laboratory has
reduced routine hazardous waste, mixed low level waste, and low level
waste all by roughly two-thirds. Wastewater outfalls have been
consolidated from 141 in 1993 to 21 now, facilitating treatment,
monitoring, and permitting.
Technology can make key contributions to minimizing future
operational impacts. Recently, Los Alamos developed the Advanced
Recovery and Integrated Extraction System (ARIES), an environmentally-
clean method to reduce ``pits'' (weapons plutonium cores) from
classified form to unclassified storable form. Last year, ARIES
successfully demonstrated operation on a variety of excess pits.
Development of this and related technologies will be absolutely
essential for future nuclear production operations.
Security
In 1999 the Laboratory was subject to unprecedented pressure from
security audits, assessments, and evaluations coming in at a rate of
about one per week, including 18 DOE-Headquarters team visits, 5
University of California visits, 12 congressional team/committee fact-
finding visits, 2 visits of the President's Foreign Intelligence
Advisory Board and staff, 9 formal audits, 7 investigations, and 14
force-on-force security exercises. The Laboratory was fortunate to have
in place strengthened security, counterintelligence, and cyber security
teams started by the Laboratory Director two years ago. We received a
``satisfactory'' grade (the highest score) on the December 1999
security audit by DOE-OA and were told that our nuclear materials
control and accounting program was now the best in the complex.
The Laboratory was successful in meeting the commitment made last
year to solve some very complex security problems. Efforts will
continue. We are in the midst of an aggressive program to adopt the
highly successful principles underlying Integrated Safety Management to
the safeguards and security program. We are confident that this
approach will make significant strides in reinforcing the
accountability of all of our employees in meeting their security
responsibilities.
Management and Oversight--The University of California recently
appointed Terry Owens, an experienced manager for security; and a
permanent security panel headed by retired Admiral Thomas Brooks to
provide guidance and advice to the University on all security related
activities at UC's National Laboratories. These appointments
demonstrate the University's efforts to continue to drive security
improvements within the Laboratories.
Much of our recent success has been built on a foundation of
collaboration and cooperation with the Department. We are seeing
significant and far-reaching signs of improvement in the Department's
management and oversight of the security program. Under the direction
of the DOE's new security office, we have witnessed an unprecedented
level of communication and information sharing between the Department
and the field activities. We are being asked for our opinion on policy
decisions and it is evident that our input is considered.
Perhaps most important, the Department is putting into place a
direct connection between security funding and the policy and
requirements that drive much of the cost of carrying out our security
responsibilities. We have also seen strong evidence of a more active,
hands-on involvement on the part of the DOE Headquarters staff. They
are talking with our staff, visiting our facilities, looking closely at
our operations, and gaining a clearer understanding of the scope and
complexity of our security challenges. In short, we are working
together to solve the issues that have dominated the public debate of
the past year, and the result is a much stronger security program that
better reflects the demands of our complex operations and the
increasingly sophisticated threats we face.
We are encouraged by the recent changes and look forward to
continued improvements to correct some of the long-standing management
issues that have hindered the development of a ``best-in-class''
security program within the Department. In the past, these issues have
included unreconciled priorities among different elements of the
Department and requirements added without resources. Our recent
experience indicates that the Department is working to resolve these
problems.
While our Laboratory is predominately a Defense Programs facility,
we do a significant amount of classified work for other agencies and
DOE offices. Since task execution would be more effective under uniform
policies, consideration should be given to ensuring that common
security (and safety) practices are adopted and implemented across the
range of DOE and NNSA activities.
The advent of the NNSA offers the opportunity to review the role of
the Operations Offices. Our experience with the Albuquerque Operations
Office has been beneficial, their participation in our security program
is valuable to us, and we rely on them in vetting new or modified
operations and changes to our internal policies and procedures. We
expect this cooperation to continue in the NNSA.
We also realize that there have been some concerns raised over the
issue of independent oversight of security activities within the NNSA.
Along the same lines as the improvements in the security management
program I noted earlier, we have also seen a corresponding improvement
in the Department's oversight program. The reviews conducted last year
by the Office of Independent Oversight and Performance Assurance were
professional and helpful in meeting our security goals. We were invited
to share our concerns with them and given the opportunity to explain
our policies and procedures. We worked closely with the auditors to
ensure our security program was well understood and accurately
characterized by the audit team. Based upon their approach, we were
largely in agreement with their final report and fully supported the
recommended corrective actions. As a result, the respective viewpoints
of top managers within the Laboratory and the Department on ment person
of our security program are largely in harmony. We have a clearer
understanding of the expectations the Department has for improving our
program, and they have a better understanding of the complexity of our
security challenges.
Cyber security--Up until about a year ago, information security
depended heavily on individual responsibility from those entrusted with
that information. After the vulnerability of classified computer data
to compromise by the insider became an issue a year ago, a DOE-wide
effort was launched immediately to enhance cyber security. Drivers
included security training stand-downs, the Defense Program
Laboratories 9-Point Action Plan, the Secretary's 6 cyber security
enhancement mandates, the DOE Office of Independent Oversight and
Performance Assurance findings, the DOE Counterintelligence Office
findings, and DOE Notice 250.2 on foreign national access to DOE cyber
systems. All of the stated or implied requirements were translated into
actionable items, prioritized, and implementation started. Classified
data is now thoroughly protected against wholesale compromise by the
insider as well as from outside. However, some of the measures are
temporary or far from state of the art.
The Laboratory Director has appointed an internal Information
Security (infosec) Policy Board, headed by the principal deputy
director, to work with our internal technical experts as well as
external groups such as the Defense Program Lab infosec organizations
and provide a coherent infosec plan based on the best information
available. The board will be able to negotiate sound standards and to
advise the Laboratory on implementation. Our experience with Integrated
Safety Management shows that performance standards set with broad
involvement of technical experts is important to effectiveness.
A prototype system highly secure against deliberate subversion was
installed for evaluation in one area of the Laboratory. The system
comprises a central computer in a secure room with secure links to user
terminals that have no provision for recording output on removable
media. The users say productivity as well as security is enhanced.
This prototype provided key input to the Laboratory's three-year
cyber security plan. For approximately $60-90M total over three years,
the plan would equip the classified Red network with computing
terminals having no capability for recording output on removable media,
upgrade both classified and unclassified network protection, and
implement supporting administrative activities. This is a very basic
proposal that provides much of the benefit of more complete solutions.
The urgency to enhance cyber security has driven the Laboratory,
the Defense Program complex, the Department, the Administration, and to
some extent the Congress (as in the current year authorization
legislation) to work in parallel, each with some variation on the
threat concept and priorities for response to different challenges such
as insider versus outsider attack and protection of classified versus
sensitive information. After twelve months of this, it is probably time
for a more coordinated government-wide approach. A threat spectrum
should be defined (with the understanding that it evolves
continuously), plans should be made with the best technical advice to
respond to the threat (again, recognizing the rapid pace of change),
priorities and budgets should be agreed to, and funds provided.
Given the high priority of improving security advocated by the
Administration and Congress, it was disappointing to see so little
fiscal year 2000 funding appropriated for enhancements. At the
Laboratory, we cannot unilaterally redirect significant program funds
for such a purpose. However, we were able to take some funds out of
administrative accounts to make some key investments. A supplemental
appropriation could be very helpful for rapid implementation, and we
ask for your support.
concluding remarks
Transfer of DOE's atomic energy defense activities to the new
National Nuclear Security Administration offers opportunities,
challenges, and problems.
The creation of the NNSA is an opportunity to create a more
efficient and effective oversight system. Many of the observations of
the congressionally chartered 1997 study 1 on DOE by the
Institute for Defense Analysis are still relevant today. Needed
improvements have been told and retold many times and include less
micromanagement, a simpler regulatory and oversight structure, fewer
unfunded mandates, fewer conflicting priorities from headquarters, and
better coordination and budget rules between programs. A very
unfortunate outcome would be for the creation of the NNSA to lead to
simply more layers of bureaucracy and multiple voices of conflicting
oversight.
---------------------------------------------------------------------------
\1\ The Organization and Management of the Nuclear Weapons Program.
Institute for Defense Analysis (March 1997)
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The NNSA should adopt the principles of integrated management that
are proving effective in our Laboratory. These include line management
responsibility for safety and security, clear and unambiguous roles and
responsibilities, and balanced priorities among operations, safety, and
security. We understand that an issue of concern is the role of the
established DOE oversight functions vis a vis the NNSA, specifically
the authority and reporting chain of the safety and security oversight
offices. From our perspective, the key is retaining a cooperative
approach. We expect to work through the implementation with DOE/NNSA,
address the concerns as they are identified, and in the end be fully
responsive to the structure as implemented.
Mr. Upton. Thank you.
Mr. Van Hook.
TESTIMONY OF ROBERT I. VAN HOOK
Mr. Van Hook. Mr. Chairman, I appreciate the opportunity. I
am responsible to the Department as the M&O contractor for the
Y-12 production facility. I want to leave you with two bottom
lines messages which I will return to several times. Safety and
security are line responsibilities. They not governed by
oversight, they are not governed by auditing, they belong to
the line.
Second, requirements must be balanced with available
resources. In this case I have defined resources as both
personnel and funding, and I will touch on those a couple of
times. Our mission and support of stockpile stewardship is the
manufacture of safe, secure, and reliable components for the
nuclear weapons complex. Specifically we process and store
highly enriched uranium, lithium, and our specialty materials
and we are responsible for the surveillance of secondaries.
Ensuring the safety of our work force and the public and
maintaining the highest security for the strategic materials
and information we utilize are key to our success.
At Y-12, like the other sites, we are on a continuous
process of changing our safety culture from an experience based
behavior to a standards based behavior. Again we consider
safety to be a line responsibility. In our case we have joined
integrated safety management with a labor management initiative
called I Care, We Care to drive individual awareness and
accountability for safety, including that of surrounding
workers.
Security at Y-12 is focused primarily on material
production since we are the highly enriched uranium storage
facility. However, personnel security, classified information,
cyber security and proprietary information are included in our
program. At Y-12 we employ a layered approach to security to
detect, delay, interrupt and defeat any adversary. We have been
tested and evaluated many times in our 58-year history and at
no time has this physical security been defeated.
I will comment briefly on our modernization program that
includes a fiscal year 2001 line item construction start for
the enriched uranium storage facility which when completed will
significantly enhance both security and safety of personnel and
special nuclear materials. Before March 1 of this year Y-12
executed mission work primarily for Defense Programs. Contract
oversight was provided by Oak Ridge Operations Office through
the Office of Science with a memorandum of understanding with
defense programs. Safety and security oversight was performed
by Oak Ridge operations or the specialty inspections you heard
about this morning. The Secretary of Energy had also
established a process whereby the requirement changes from
safety and security as they flowed down to our site would flow
through the Assistant Secretary of Defense Security programs
thereby assuring that an attempt is made to balance
requirements with available resources.
On March 1 of this year, as NNSA was established, while our
line responsibilities continued to be largely in support of DP,
the Office of Security and Emergency Management and the Office
of Environment Safety and Health will now have working
relationships that are particularly important to our
operations. Those with respect to ES&H remain roughly the same
since we have defined relatively clear roles between the line
and the staff as it relates to ES&H responsibility.
Prior to implementation of NNSA, Defense Programs worked
with Security much in the same way as it did with ES&H. The
Office of Security and Emergency Operations developed
departmental policy and provided oversight and assessment.
Security was a line function of DP. With the implementation of
NNSA the picture changes slightly with the Office of Security
now setting policy, providing direction as well as funding and
conducting oversight assessment.
I believe that it is going to be particularly important to
establish the ground rules for the relationships between
programmatic DP offices and the Office of Security to ensure
one clear message is sent from headquarters and received in the
field. Balancing requirements with resources, again funding and
personnel, will require very close attention to avoid getting
at cross purposes over what work is to be performed. New
requirements should be developed and coordinated with the
program offices prior to being implemented in the field.
It is also particularly important to define the safety and
security standards, have these clearly communicated so we know
the expectations to which we are being measured. Y-12, like
other weapons programs sites, is suffering from aging
facilities and a severe shortage of highly trained personnel.
Consistent direction from DP and the Office of Security for the
use of DP resources must allow us to effectively apply limited
funding and personnel. We cannot execute requirements coming
from these two customers if the requirements are not fully
coordinated at headquarters before they are sent to the field.
As is generally the case, the devil is in the detail and the
success of NNSA is going to depend in large measure of
establishing these appropriate working relationships between
NNSA and its parent, DOE.
Thank you.
[The prepared statement of Robert I. Van Hook follows:]
Prepared Statement of Robert I. Van Hook, President, Lockheed Martin
Energy Systems, Inc.
Mr. Barton, Mr. Upton, and distinguished members of the
subcommittees, thank you for the opportunity to testify on the very
important topic of Safety and Security Oversight of the newly
established National Nuclear Security Administration (NNSA). My name is
Bob--Van--Hook and I am President of Lockheed Martin Energy Systems
(LMES) which is the M&O contractor for the Department of Energy at the
Y-12 Plant in Oak Ridge, Tennessee.
Y-12 supports the Stockpile Stewardship Program through the
manufacture of secondaries and other weapons components from uranium,
lithium, and other specialty materials for the U.S. Nuclear Weapons
Complex. Y-12 is responsible for surveillance of secondaries and serves
as the principal U.S. repository for highly enriched uranium. Y-12 also
supports DOE's Office of Nonproliferation and Nuclear Security and the
Office of Intelligence through our National Security Program Office. In
1997, the Congress established the National Prototype Center at Y12 to
provide access to technologies developed in the manufacture of nuclear
weapons to other government agencies and the private sector.
Manufacture of SAFE, SECURE, and RELIABLE components for the
Nuclear Weapons Complex is the mission of Y-12. Ensuring the safety of
our workforce and the public, and maintaining the highest security for
the strategic materials and information we utilize are key to our
success. The workforce at Y-12 performs thousands of operations daily,
many of which are with radioactive and hazardous industrial chemicals,
and a rigorous safety program is essential to these operations. DOE has
embraced Integrated Safety Management (ISM) as the philosophy for its
safety culture, and each DOE site is implementing this process as the
preferred approach to work planning and execution. Key to this process
is worker involvement in the planning, hazard identification,
execution, and feedback components of any task.
Y-12 has developed the ISM program and is in the continuous
implementation phase. We, like other DOE sites, are in a culture change
process in which we are shifting our workforce behavior from an
experience-based behavior to a standards-based behavior. This is a slow
and difficult process because it is human nature to behave as you have
learned through experience on the floor and not to turn to new
processes and outside knowledge to assist you in your daily work
practices. Although it happened in a non-nuclear operation, we had a
recent unfortunate example at Y-12 where dependence on past experience,
and not reaching out for additional assistance, caused a serious
accident with worker injuries. As a result of this accident, we are
redoubling our efforts to effect ISM implementation in all work at Y12.
In spite of this accident, the safety record at Y-12 has continued
to improve over the past few years. In 1999, job related reportable
injuries have decreased by 10%, lost workday rates were down 25%, and
lost workday away rates were down 12%. Exposure to hazardous chemicals
and radioactivity has been minimized through engineered systems to
protect the worker. LMES has augmented ISM with a unique management-
labor initiative on safety, ``I Care--We Care.'' The I Care--We Care
Program provides a process for employees to submit safety and health
issues including near-misses, suggestions and concerns to management
for resolution without fear or retaliation or retribution. It is the
teaming between management and labor that is the key to assuring
industrial safety. We are utilizing both ISM and the ``I Care--We
Care'' processes to drive for individual awareness and accountability
for safety, including that of surrounding workers.
One of the principal drivers in the Y-12 Modernization Program is
to further engineer safety into the processes required to support the
production of nuclear weapon components in order to reduce our
dependence on personnel protective equipment. This will significantly
reduce the risk of worker and public exposure.
Security at Y-12 is focused primarily on material protection.
However, personnel security, classified information, cyber security,
and protection of intellectual property (including proprietary
information) are included in our security program. Specifically, Y-12
is responsible for reducing site vulnerabilities against the DOE-
defined threat and ensuring cost-effective safeguards and security
programs for the protection of:
Category 1B through 4D Special Nuclear Material, measured in
metric tons, which are protected from theft, diversion, and the
threat of radiological sabotage.
Classified information, including well over 100,000 classified
parts and over a million classified documents.
Government property including a number of one-of-a-kind,
irreplaceable objects, difficult to replace and no longer
manufactured machine tooling, as well as a billion dollars
worth of other Government property.
Over 4,000 contractor and government employees.
In addition to the protection of strategic materials and vital
government information and property, Y-12 is responsible for
safeguarding some of this country's most sensitive information.
Rigorous implementation of the DOE Personnel Security Assurance Program
(PSAP), a human reliability program; Special Access Programs (SAP) for
particularly sensitive projects, and special program requirements for
those with access to compartmented intelligence information, is used to
control and protect information related to these high-risk programs.
At the Y-12 site, LMES employs a layered approach to security
through a combination of procedures, delay barriers, detection systems,
access controls and a highly trained protective force to detect, delay,
interrupt and defeat a determined adversary threat. Our security has
been tested and evaluated on many occasions through our 58-year
history, and at no time has our security been defeated.
Prior to March 1 of this year, Y-12 executed programs primarily for
Defense Programs, with programmatic direction through a supporting DP
organizational element, the Albuquerque Operations Office. Contract
oversight was provided by the Oak Ridge Operations Office, working for
the Office of Science through a Memorandum of Understanding with
Defense Programs. Safety and security oversight of our performance was
performed by ORO on behalf of DOE-HQ offices of Security and Emergency
Management and Environment, Safety, and Health.
On March 1, the NNSA was established and it contains the major
program sponsors of Y-12 work--Defense Programs, Nonproliferation and
National Security, Materials Disposition, and the Office of
Intelligence. While our line responsibilities are largely in support of
DP, the Office of Security and Emergency Management and the Office of
Environment, Safety and Health will have working relationships that are
particularly important to the operations of Y-12.
In the ES&H area, the working relationships should remain roughly
the same since Defense Programs and Environment, Safety and Health have
had relatively clear roles and responsibilities in DOE. Defense
Programs has the line responsibility for safety in the operations of
its facilities, and ES&H establishes departmental policy and provides
oversight and assessment of ES&H issues at the DP sites.
The Secretary of Energy has also established a process whereby ES&H
requirement changes flow down to DP sites through the Assistant
Secretary for Defense Programs--thereby ensuring that an attempt is
made to balance requirements with available funding. This has been
particularly important in the recent era of tight budgets and aging
facilities where every dollar has multiple demands.
Working with DOE, we have developed risk prioritization techniques
to help identify how the annual appropriated budget would be utilized
to maintain a high level of commitment to the safety of our workforce
as we execute the required work. The process involves identification of
both safety and programmatic needs followed by a rank ordering of this
integrated listing to determine how far each year's budget can be
stretched. Important safety issues are addressed first, but there are
always improvements in infrastructure related to safety that have to be
worked incrementally from year to year.
The Office of Security and Emergency Management was established in
DOE by the Secretary to increase emphasis on security in the DOE
complex following identification of security concerns at several DP
sites. During a September 1999 inspection of Y-12 Security conducted by
the Department of Energy's Office of Independent Oversight (OSE), the
security posture of the site was determined to be in a ``marginal''
condition, primarily because of our inability to conduct a full
inventory of special nuclear material. A full inventory can not occur
until the final stages of enriched uranium operations are restarted. We
are currently working to a funded resource loaded schedule that
provides for full restart in the late spring of 2002.
Since that inspection, a number of corrective actions,
improvements, and enhancements have been accomplished. A DOE Special
Security Survey completed on March 3, 2000, recognized the improvements
and progress that had been made and will issue a site rating later this
month. During this Special Survey, a significant number of the findings
from the OSE inspection were validated for closure. We are confident
that our security posture has improved and that the Special Security
Survey rating will reflect that.
Recent security enhancements and improvements that have been put in
place at Y12 include:
Vehicle access to the Y-12 Protected Area has been reduced by
more than eighty percent, and vehicle searches have been
significantly enhanced.
Physical access and detection systems have been strengthened
and/or improved throughout the Limited and Protected Areas of
the plant.
Protective Forces have been increased nearly twenty-five
percent, and many have been more strategically deployed to
counter emerging threats.
An effective partnership has been formed among DOE, LMES, and
the recently selected DOE-Oak Ridge security contractor,
Wackenhut Services, Inc., who assumed selected major program
responsibilities for security at Y-12 on January 10, 2000.
A Personnel Evaluation Board has been scheduled to review in
advance any adverse employment action being considered against
any individual in a security sensitive program.
Foreign National visitors or assignees are strictly controlled
in accordance with pre-approved security plans.
The Y-12 Modernization Program currently includes an FY 2001
construction start for the HEU Materials Facility which, when
completed, will significantly enhance both the security and safety of
Special Nuclear Materials.
Prior to implementation of the NNSA, Defense Programs worked with
Security much the same as it did with ES&H. The Office of Security and
Emergency Operations (SO) developed departmental policy and provided
oversight and assessment. Security at DP sites was a line function.
With the implementation of NNSA, the picture changes with SO setting
policy, providing direction as well as funding, and conducting
oversight and assessment. It is going to be particularly important to
establish the ground rules for the relationship between the
programmatic security office and SO to ensure one clear message is sent
from DOE-HQ and received in the field. I believe the line has to own
security just as the line owns safety and program.
Balancing requirements with resources (funding and personnel) will
require very close attention to avoid getting at cross-purposes over
what work is to be performed. New requirements should be made based on
changes in threat, or where significant enhancements in technology have
been made. As new requirements are placed on field elements, these
requirements should be fully developed and coordinated with the program
offices prior to placing in the field. It is also important to clearly
define security standards, and communicate to the field so that
performance can be measured against these expectations.
Y-12, like other DOE weapons program sites, is suffering from aging
facilities and a severe shortage of highly trained personnel. Layoffs
and attrition have taken a toll, and lack of funds for new hires has
caused a serious critical-skills shortage. Consistent direction from DP
and SO for the use of DP resources must allow the weapons complex to
efficiently apply limited funding and personnel. We do not have the
necessary people with the appropriate skills to execute requirements
coming from these two customers if these requirements are not fully
coordinated at DOE-HQ before they are sent to the field.
I believe establishing the NNSA is the right thing to do for this
country. It separates Defense Programs and related National Security
Programs from other unrelated DOE functions. As is generally the case,
``the devil is in the detail,'' and the success of the NNSA will depend
in a large measure on establishing appropriate working relationships
between NNSA and the parent DOE.
Mr. Upton. Perfect. Five minutes on the nose. As we did
before, members will have 5 minutes to do questions.
Mr. Kuckuck, Dr. Robinson, Dr. Burick, do you all support
having Mr. Podonsky's office remain involved in corrective
action plan development as it has been lately? Is that a wise
thing for us to continue?
Mr. Burick. We believe it is, Mr. Chairman.
Mr. Upton. That's the answer that we want to hear----
Mr. Burick. I say that in all sincerity. As you know, we
have had some problems at Los Alamos in past years,
particularly in some areas. Mr. Podonsky and his team have made
some suggestions that we have followed. Unfortunately, many
times the funding that backs up the suggestions isn't there and
that has been problematic for us.
Mr. Upton. I want to get to that in just a moment. Dr.
Robinson.
Mr. Robinson. Let me say I think it is important the way
that it be done. It should not be an independent
responsibility, but it must be enjoined with the program office
and program responsibility. We at the laboratories stand at the
far end of this, often whip-sawed in several directions at
once. If Mr. Podonsky's organization comes up with an idea and
a positive suggestion, I believe he should get agreement with
that with the program offices and then let us have one set of
standards by which we will be held accountable.
Mr. Upton. Mr. Kuckuck.
Mr. Kuckuck. I would support that. My comments would be
along with the latter part of Dr. Robinson's, that I think the
moving goal line or the agreed upon standards is probably
paramount to us being able to effectively move forward.
Mr. Upton. One of the things, Dr. Burick, you reference
having the funding necessary to react to the problem. I noticed
that in the written statements I think both Sandia and Los
Alamos talked about cyber security funding. What is your
estimate in terms of what each of you are going to need?
Mr. Burick. Our current estimate, Mr. Chairman, is based on
the system that you saw when you were in Los Alamos in January.
We believe somewhere between $60 to $90 million over a 3-year
period would be sufficient for us to take our 2,000 classified
computers, put them in a safe and secure environment where
there would be no chance of any recordable media being
downloaded by a single individual. The central computer system
would be housed in a vault which would be subjected to two-man
rule. Both of those people would then be enrolled in PSOW.
Mr. Upton. Dr. Robinson, in your statement you indicated
you thought Sandia would need nearly four times as much.
Mr. Robinson. We have developed a program working together.
Sandia has the responsibility to make the links that operate
between each of the sites and to the production plants. That's
why our expenditures are somewhat higher. I am happy to say the
three laboratories working together have developed a common
information security plan together over this period. I think
the total among all our labs is $360 million over 3 to 4 years.
Mr. Upton. So that's for all, not just--I had the
impression that was just for----
Mr. Burick. What I quoted you, Congressman, was what it
would take to do onsite at Los Alamos with our 2,000 computers,
not the inner laboratory links that Dr. Robinson is talking
about.
Mr. Upton. I am glad we cleared that up. I thought it was
just Mrs. Wilson's district that was looking for such a large
infusion of needed dollars for sure.
Who is responsible for dealing with the environmental
contamination at your sites and does the answer depend on
whether the contamination resulted from past or current
activities? This is probably a question that we should have
asked the earlier panel with its involvement of NNSA, but whose
responsibility is it?
Mr. Robinson. The operating contractor for Sandia
Laboratory for the first 43 years was AT&T Corporation. When
Martin Marietta, now Lockheed Martin, took over from them,
there was clear demarcation of problems that occurred before
that that fell to the previous arrangement. Problems since then
are Lockheed Martin-Sandia Corporation responsibilities.
Mr. Upton. Mr. Van Hook.
Mr. Van Hook. We have an EMI contractor in addition to the
M&O contractor that operates Y-12. For the currently generated
material the defense program contractor has the responsibility
for the legacy material. M&I, in this case Bechtel Jacobs has
the responsibility.
Mr. Upton. Thank you.
Mr. Stupak, are you ready or do you want me to come back?
Mr. Stupak. Go ahead.
Mr. Upton. Mrs. Wilson.
Mrs. Wilson. Thank you, Mr. Chairman. This is kind of an
administrative matter from the beginning. Did any of you on
this panel have to have your testimony cleared by the
Department of Energy or the Office of Management and Budget?
Mr. Robinson. The tradition for laboratories throughout my
history, which is more than 30 years, is we prepare remarks
based on our role as laboratory directors and they are not
cleared by the Office of Management and Budget or DOE. So no
one affected my testimony.
Mrs. Wilson. Thank you.
Mr. Van Hook. If I could comment, I at least and I assume
the others as well had it scanned for classification issues.
Mrs. Wilson. I understand. Were any of you as lab directors
or those of you who are deputy directors, if you have knowledge
of your director's involvement, were any of you involved in the
task force on the implementation plan for the NNSA?
Mr. Burick. To my knowledge we were not at Los Alamos.
Mr. Robinson. We were not.
Mr. Kuckuck. We were not to my knowledge at Livermore.
Mrs. Wilson. Thank you. Dr. Burick, I have some questions
about cyber security that arises from your testimony and from
the chairman's questions. You noted that there is a significant
lack of funding for cyber security at Los Alamos. Have you made
the case or did you develop the budget to request increases in
funding for cyber security and, if so, what was the response
for such requests?
Mr. Burick. Yes, we have. We have developed a budget
request for this year's supplemental and I believe it is
working its way through both the House and the Senate side.
Mrs. Wilson. Was that supplemental included in the
administration request or was it over and above?
Mr. Burick. I believe it was over and above, Congresswoman.
Mrs. Wilson. Thank you. Paul, I had a couple of questions
for you that kind of arose from your testimony. The GAO
testified earlier in March about the DOE Office of Independent
Oversight and Performance Assurance wanting to modify DOE
orders so it could place direct requirements on NNSA elements.
I wonder if you would comment on whether you think that is
desirable, that change.
Mr. Robinson. I believe it is not appropriate for staff
organizations to define policy. They can certainly suggest
policy, but there needs to be a coming together, a resolution
and an agreement as to what policies will be followed instead
of getting many sets of policy directions which has been the
history in the past.
Mrs. Wilson. There are some folks who want to look at the
role of the Nuclear Regulatory Commission with respect to the
NNSA and the national laboratories. In your view, particularly
you, Paul, since you are the guy at Sandia, would the NRC
enforcement of nuclear safety responsibilities positively or
negatively impact environment, safety and health at your
laboratory?
Mr. Robinson. If I could generalize your question a little
more, there is also an organization, Defense Nuclear Facility
Safety Board, that carries out a similar function as the NRC
does over nuclear plants. The Defense Nuclear Facility Safety
Board carries that over the nuclear weapon production
community. So we have such a role. I think I may be unique
among the laboratory directors. For several years I have been
in favor of external regulation, both bringing the OSHA, EPA,
NRC as appropriate, to carry out regulations of our site. But I
made that with one condition, that we would then remove the
internal regulation and the very large number of people
involved in that activity who are in the Department of Energy
today. If that were not to occur, it would only make our life
worse and I think we would require much higher expenditures for
what would not be an appreciable gain.
Let me give you an example about safety statistics. If you
look at the laboratories as a whole, our laboratories in
particular, against the National Safety Council statistics of
what other industries, comparable industries do, we are far
better in performing safety. Fewer incidents, fewer fatalities,
fewer days away cases for our employees. If you had external
regulation you would measure us against a national yardstick to
say how we are doing. What is being done internally by the
Department, there is no yardstick. The yardstick is constantly
moving. The more you improve the more you should be expected to
improve. Now, I embrace the goals of zero incident, zero
facilities. But there comes a level of diminishing returns and
costs, and we have got to set what is reasonable as standards.
Mrs. Wilson. Thank you, Mr. Chairman.
Mr. Upton. Mr. Stupak.
Mr. Stupak. Thank you, Mr. Chairman. I apologize for being
late. My plane was late and I got in later than I thought, but
I really did want to talk to this panel so I am glad I made it
in time for that.
Dr. Burick, if I may, I read your testimony and that of the
other witnesses today and, quite frankly, I don't have a clear
sense of how this new autonomous agency is going to work and
how the Secretary is going to make sure that the DOE's
environmental and health and safety standards and legal
commitments are being carried out. It took us a long time to
get Defense Programs to even admit that there were such
problems. The DOE area offices protected the weapons
laboratories and production facilities from any effective
supervision from headquarters and, frankly, I think they were
part of the problem. Not surprisingly in your testimony today
the laboratories which have a long history of refusing to take
direction from DOE think we should go back to letting some
variation of the area offices run things.
Having said that, we were provided a report here, and I
would like to make it part of the record, Mr. Chairman, by Mr.
Frank Rowsome, DP 45. It is dated February 28, 2000. I just
received it late last night. But with unanimous consent I would
like to have it----
Mr. Upton. Without objection.
[The information referred to follows:]
INSERT OFFSET FOLIOS 1 TO 22 HERE
Mr. Stupak. I want to read a little bit of it and I will
ask a question about it. His background to this report, Mr.
Rowsome says, ``Over a decade ago safety professionals were
brought into DOE to change the safety culture and safety
requirements by triggering resentments among the weapons
professionals. They had the opposite of the intended effect.
Line management of the nuclear weapons program as these
professionalizing safety assurances, complacency, self-
satisfaction, and resistance to questioning; the premises of
the program are overriding the systematic search for safety
weaknesses.''
He goes on to say he recommends follow-up studies and
corrective actions are suggested in this report. In addition to
a reappraisal of safety programs, a major overhaul of safety
requirements is needed to correct the problems identified.
Mr. Rowsome on page 3 in a section which is entitled ``What
is going wrong with DP's safety basis documents?''--it is a
question he has that is on page 3. I would like you to look at
the top of page 4. I believe you have that there in front of
you. ``A close reading of the report indicates that the
deficiencies are so serious and so widespread that the safety
bases documents failed to meet their intended purpose. DOE
cannot rely upon such safety bases to discover and correct
safety problems that might have escaped detection and
correction by other means. These safety bases are failures at
strengthening the assurance of safety. It is worth noting that
all of these safety bases documents have been reviewed and
approved by DOE's Albuquerque operations office. Elements for
defective safety bases among AL nuclear safety reviewers has
been well-known within the circle of competent safety basis
professionals who have had occasion to read the documents in
question.''
On top of the next page it says, ``I have yet to find--''
this is Mr. Rowsome now--``I have yet to find a culture in any
DP line management office at headquarters, AL, or AAO that
consistently maintains as a matter of principle what safety
issues should be fully aired, analyzed, documented and exposed
to the light of day wherever and whenever they are found.''
So I think this refers correctly to you on page 2 and 3 to
Los Alamos. My question is what is your response? How is this
new agency going to handle concerns that Mr. Rowsome pointed
out without some type of oversight?
Mr. Burick. Congressman, I would submit that many of the
things you are discussing are what I would refer to as
necessary documentation and paperwork. I will say that we have
launched an aggressive attempt to update many of the
authorization agreements which we have. I would also tell you
that about 3 to 4 years ago Los Alamos went through some life
altering experiences. We had four very serious accidents at Los
Alamos which caused us to launch integrated safety management
programs. Safety is not a matter of just having paper in place,
it is a matter of having the culture of safety embedded in
every worker's mind. We have done that. We feel with our
integrated safety management program and the rates that I
talked about today of our OSHA requirements shows that we have
dramatically increased the awareness of every worker at Los
Alamos.
So having a document of authorization to do an experiment
is important because it lays out the principles by which you
will do your work. But much more important is having each
individual worker coming in every morning and thinking to
himself, what am I going to do that will either hurt myself, my
colleagues, or my surrounding community.
Mr. Stupak. Do you think this document which I have read
quite a bit from is inaccurate? It is dated February 28, which
is 2 weeks ago.
Mr. Burick. I believe the documents that this gentleman was
reviewing, and I haven't had a chance to review the entire
report, were some dated authorization agreements that we are in
the process of updating at the current time.
Mr. Stupak. The report just down on page 5 there it says,
``Even after acknowledging in December,'' and then the bottom
third of the page, the last full paragraph, Mr. Rowsome says,
``Even after acknowledging in December 1999 that the hazard
analysis report for the W-76 weapons dismantlement and
inspection program was too severely flawed to allow it to be
approved as it was, first line management in SASDAL insisted
upon stripping the W-76 safety evaluation report written by its
safety basis review team of the findings of serious scope
limitations in the W-76 hazard analysis report and some safety
problems in the W-76 operation itself. The participants in the
year long review of the safety of the W-76 were removed as
authors of the report of their work and the tasks assigned to
nonparticipants in the review.''
It goes on in here that as you--the final report was
released it was so heavily censored and changed that it wasn't
even a viable report, according to Mr. Rowsome.
Mr. Burick. Congressman, I am not familiar with that
report. I believe that was put together with our Pantex
colleagues on the dismantlement program and I am not intimately
involved with that.
Mr. Stupak. Mr. Chairman, I know my time has expired. We
did get this late last night. I think this is one area that we
still have to explore. I think the culture that we are trying
to change still exists.
Thank you.
Mr. Upton. Thank you.
Mr. Burr.
Mr. Burr. I think Mr. Stupak's on to something on this
line. Let me just suggest to all of you, I think the question
we are here to explore is does it take external oversight to
achieve and maintain the internal cultural change that so many
have realized there was a need to go through. GAO in their
assessments that result in brief talk about this decade and the
problems that have existed, specifically at Los Alamos and
Lawrence Livermore, and they raise a very valid question, and
that is the internal process within DOE was so flawed in their
evaluation that in reports on the same item they could range
from marginal to excellent and at Lawrence Livermore from
marginal to far exceeds expectations, and that there was no
systematic way to approach the way that we use to evaluate
safety and safeguards. So it facilitated quite a few changes.
All three of your facilities were very gracious hosts to
various members of this committee, and for that I am thankful.
But let me ask you a few very pointed questions. Yes or no,
do you view that Mr. Podonsky's oversight role has changed with
the National Nuclear Security Administration or not?
Mr. Kuckuck. No, sir, I don't.
Mr. Robinson. I have not seen the change.
Mr. Burick. I have not.
Mr. Burr. You haven't seen the change and we are 2 weeks
into this. Do you envision his role changing?
Mr. Burick. I would see a similar role that he has played
in the past.
Mr. Robinson. I would certainly believe there should be a
role of both external oversight as well as strong line
management. I think you should have both.
Mr. Burr. Nobody views the NNSA as barring an oversight
role?
Mr. Robinson. No.
Mr. Kuckuck. No.
Mr. Burr. Do any of you believe that your labs have the
ability to refuse any request that Mr. Podonsky and his team
might make of the labs?
Mr. Burick. I don't believe we do.
Mr. Robinson. I probably would rather answer that for the
record, but on the face of it nothing obvious.
Mr. Kuckuck. I would have the same opinion.
Mr. Burr. That would be?
Mr. Kuckuck. That we would not refuse.
Mr. Burr. Is there anybody that would object to Mr.
Podonsky being a dual hat employee like Dr. Michaels?
Mr. Robinson. I think my own experience--and we have dual
hatted people in the laboratories--dual hatting can be
successful but it will not be successful unless there is
agreement by the involved parties as to what the roles are.
Mr. Burr. Clearly if there is no belief on your part that
NNSA bars oversight or that you would be in a position that you
would refuse a request by Mr. Podonsky or his team, then the
only thing the dual hatting does is clarifies or codifies to
some degree the belief that there is a security oversight role
for NNSA by dual hatting it.
Mr. Robinson. But I wouldn't want the dual hatting to lead
to unilateral setting of policy by Mr. Podonsky and his group.
Mr. Burr. Clearly the GAO report was very critical of the
fact that even once we realized the security and safeguards
problem and the oversight teams went in with some degree of
responsibility, that their mandate fell short and GAO referred
to it as that they did not formally validate or verify the
corrective actions and certify closure of the findings. In
other words, they had the authority to go in and say here is
the problem, here is what we suggest the solution to be, but
they didn't even have the power to say what you have adopted
will work or that you ever implemented it. Is GAO correct?
Mr. Robinson. I think there is a confusion as to what is
implemented. If Mr. Podonsky's organization--and I take this
theoretically because I don't know that it is happening exactly
this way--if he comes in and does the investigation and says,
gee, I don't like the way that is going, I suggest that you fix
it in the following manner, here is how I want you to fix it,
and then comes back later and says, you didn't fix it the way I
told you to, I would say that would be an unacceptable
procedure under the NNSA, that Mr. Podonsky should have a set
of standards that are agreed upon, here are what we are going
to all meet.
Mr. Podonsky can assess us with respect to those. I think
it appropriate for him to make suggestions but suggestions are
different than dictating how the solution will be carried out.
There is a role for the people who must operate the site to
have their input. There is a role for the line management of
the NNSA to decide whether this corrective action is the right
one or whether it is the wrong one.
Mr. Burr. I don't think any member would disagree with the
participation from the labs on the solution and the
implementation. I think that the GAO has pointed out that they
are lacking accountability on the part of the oversight body at
determining whether this was ever completed and therefore it
then falls back into an independent status within the labs. I
have got here the 15 largest nuclear safety violations, shared
to some degree by Los Alamos and Lawrence Livermore with some
big ones. Dr. Burick at Los Alamos, fire at CMR. DOE finally
fined Los Alamos in 1998 $112,000 for the nuclear safety
violations as it related to that fire. But I think there also
seems to be--or seemed to be--life after the changes we went
through--seemed to be a managerial neglect for safety at the
CMR facility. I guess I would ask you why so many problems
there and are they corrected?
Mr. Burick. Congressman, that facility is one of the most
antiquated, very maintenance intensive, and we have had a
number of issues where we have not had the proper resources to
correct those problems. We believe that it is safe and
operating, but we operate it in what I would call in limited
mode and currently have plans for replacing that facility to
help with our pit production program, the W88 pit production at
Los Alamos. I would say that was a facility that was built in
the 1950's to not to today's standards. The work arrangements,
the instrumentation, et cetera, is not adequate to maintain all
of the facilities up to the latest requirements.
Mr. Burr. But if you had the authority and the security and
the safeguards oversight level, that they couldn't let you stop
at some point without solving the problem, in this case an
antiquated building, many hurdles, so that if you had a DOE
oversight entity that went back to DOE and said we can't sign
off on what they are going to do, they can't do what we are
requiring them to do or what we have agreed is the answer in
the partnership, doesn't that give you another pressure point
to make sure that the resources are allocated?
Mr. Burick. Yes, sir, it does. Resources have to meet
requirements we believe very strongly.
Mr. Burr. My point would be that the outside oversight
views them the right way and could be a facilitator to the
solutions of the common problems that you run into and not
always the bogey man that we make it up to be.
Dr. Kuckuck, Lawrence Livermore exposed five workers to
radioactivity during a waste processing activity. They found
that the radioactive alarms in the building had been turned
off. Clearly there is an oversight responsibility that we have
to make sure is in place to make sure that the internal culture
in your facility or another facility does not allow something
as arbitrary as that to happen. Would you agree?
Mr. Kuckuck. I don't disagree with you at all. We have
moved beyond that culture level at the laboratory.
Mr. Burr. You also have suggested that you have no reason
to question it. I have reason to believe that we are all headed
in the same direction. I think that what we are here today to
try to determine is what degree of accountability can we both
agree on should stay in place to make sure that this changing
culture does not revert to the culture of the 1980's or early
1990's and the horrific problems that we had with security and
with worker safety.
I would close with a conclusion of the GAO, Mr. Chairman.
It said that the Independent Oversight Office was not formally
involved in the corrective actions for the problems found
during this inspection in 1990. The Independent Oversight
Office began to work with the laboratories during the
development of corrective action plans and conducted follow-up
reviews, but still does not require and does not formally
validate and verify the corrective actions and certify closure
of the findings.
I believe that it is important that we both hold the same
belief that we have not only identified a problem but found the
correct solution and in fact implemented that solution, and in
the hopes that we will reach that I look forward to working
with the chairman.
I thank you.
Mr. Upton. Mr. Strickland.
Mr. Strickland. Thank you, Mr. Chairman. In the past
defense programs has tried to make the Environmental Management
Office responsible for managing waste and decommissioning at
some of its facilities. Environmental management with the
support of the Secretary's office has tried to stop this
practice. My question is this, under the new agency will your
facility pay for the costs of managing all of its own waste,
the waste that it produces out of your budget? Could you answer
yes or no or whether or not you know? We can start with--and go
down the table, please.
Mr. Kuckuck. I believe that that responsibility is coming
to the defense programs in the next year or 2 and by definition
it will be part of our mission with our budget, I believe.
Mr. Robinson. That's my understanding. Currently generated
waste is the program responsibility. Legacy wastes are covered
by another office in budget.
Mr. Burick. That is our understanding also, Congressman.
Current waste generated under our weapons program would be DP's
responsibility or NNSA's responsibility. The legacy waste is
the environmental----
Mr. Strickland. So any newly generated waste would be your
responsibility and would be paid for from your budget?
Mr. Burick. Correct.
Mr. Strickland. Now, in the event that you have a facility
that is being decommissioned or dismantled or closed, what is
your understanding of who has the responsibility to pay for the
work that would be involved with that?
Mr. Van Hook. At the Y-12 facility, the defense programs
has to support the surveillance and maintenance of an abandoned
facility until such time that it can be put in a condition that
is acceptable to EM. And there is no agreement at the present
time on what acceptable really means. So there is a continuing
cost associated with surveillance and maintenance of an
abandoned facility until that point that you can reach
agreement with EM that they will accept it and take it into
that budget category.
Mr. Strickland. So in terms of the maintenance----
Mr. Van Hook. Continues DP supported until you hit that
point at which you could agree.
Mr. Strickland. Would that include cleanup that would be
involved in such----
Mr. Van Hook. There is a certain level of cleanup that is
required by the program, in this case defense programs, prior
to it meeting the acceptance criteria of EM.
Mr. Strickland. If you could help me understand, where does
the criteria for an acceptable level of cleanup come from?
Mr. Van Hook. EM, which is not always agreeable to DP.
Mr. Strickland. I guess perhaps you can't answer this, but
a question that is a relevant one and important one, who pays
the perhaps billions that it would take to clean up the
facility?
Mr. Van Hook. There is a defense environmental management
fund associated, as you well know, with the nondefense--I am
not using the right terms--environmental funds. I don't think
that it is practical to expect that the Defense Programs
account is going to be able to cover that bill nor for the
moment can the EM account cover the bill. It is going to take
some creative thinking to deal with these legacies,
particularly as we abandon.
At Y-12 we are reducing our footprint from 6 million square
feet of production space to something barely under 2 million.
That means there is 4 million square feet of buildings that are
in the process of being abandoned; not in the sense that you
are walking away from them, but you have to conduct
surveillance and maintenance to ensure that they are in a safe
standby condition.
Mr. Strickland. I guess my response and your answer is
independence is fine until we come up against this huge major
responsibility for cleanup and then independence may not be so
attractive. Is that consistent with your thinking?
Mr. Van Hook. It is not clear today. I don't see how the
NNSA is going to make it any more clear or less clear.
Mr. Robinson. I could comment because there is actually
some progress going on in this area. Sandia operates in two
major sites, Albuquerque, New Mexico, and Livermore,
California. I am pleased to say our laboratory in Livermore
this year completed all cleanup activities. We have no facility
or spaces that are on an environmental list. This is the first
DOE site for that to happen.
We expect the next site within the DOE that will be taken
off any environmental watch list is our Albuquerque facility. I
am pleased to say that the EM people have continued to provide
the funding for us to carry out that work. So in some cases
things do work and we are getting it cleaned up.
Mr. Strickland. I guess just one quick final question would
be--and I would like your opinion here. Is this an area where
there needs to be further specific clarification of
responsibility and obligation?
Mr. Van Hook. If there is an opportunity that NNSA is going
to inherit for a long, long time S&M, then very definitely we
need a clarification.
Mr. Strickland. Do the others of you feel that way?
Mr. Burick. I would agree with Mr. Van Hook's statement.
Mr. Robinson. For the complex as a whole I would agree as
well.
Mr. Strickland. Thank you, Mr. Chairman. No further
questions.
Mr. Upton. I don't know if--Heather?
Mrs. Wilson. Mr. Chairman, I ask unanimous consent to ask
two additional questions.
Mr. Upton. Without objection.
Mrs. Wilson. It is not unusual for folks to read the same
report and see different things in it. I guess maybe I did when
I read the GAO report and read it as being critical of the
Department of Energy and the oversight functions and a lack of
consistent standards, the need to improve closing of findings,
the lack of a comprehensive tracking system, none of which has
to do with the labs but the Department of Energy.
I just kind of wondered from your perspective as lab
directors trying to deal with these inconsistencies. I look at
these tables on page 15 of the report where in this particular
example they cite you have four different oversight bodies
coming in all at the same time year at the same time giving you
different conclusions about what is right and wrong.
How do you deal with that as a management perspective when
you have got four different groups of guys coming in and saying
that this is what you need to do and 2 months later someone
else comes in and says you need to do something different ?
Mr. Robinson. I cited in my testimony in an earlier time,
not under this administration, where groups would come in and
survey the same activities. One would find it exceptional and
another would find it marginal, coming later in time and after
it had improved from the first time. It has been confusing in
the least to laboratory management.
Mrs. Wilson. Is that why you don't want to see oversight
have direct management responsibilities because of those lack
of clear standards and--help me with an English word here--
conflicting reports at the same time from different oversight
bodies?
Mr. Robinson. There needs to be a coming together and an
agreement as to what the standards are. The processes to do
that have not been working effectively in the Department in the
past.
Mrs. Wilson. One final question for--with respect to Los
Alamos. Dr. Kuckuck, what would be the effect of making Los
Alamos subject to Price-Anderson civil penalties--I'm sorry----
Mr. Burick. We are both from the University of California,
so we could both answer that.
Mrs. Wilson. I apologize.
Mr. Kuckuck. I was focusing on Los Alamos. I am sorry,
would you ask me once again?
Mrs. Wilson. Either of you could answer it. Livermore would
be affected by it as well as I understand--the effect of making
Los Alamos or Livermore subject to Price-Anderson civil
penalties?
Mr. Kuckuck. That's really a question that the university
would have to answer. The university has always operated these
laboratories on a no gain, no loss philosophy, not-for-profit.
For them to be able to deal with fines there would have to be
some accomodation they would have to work out. I wouldn't want
to speak to the university and what they would do for them.
They might have a different perspective.
Mr. Burick. I would say, Congresswoman, we would not
welcome civil penalties. We are currently exempted from that.
Don't forgot the main principle is that we don't want to hurt
any of our workers. That's the underlying principle. So the
Price-Anderson would be an additional complication to managing
the laboratories. The basic premise that we don't want to hurt
people when we do our work is what would bother us more than
anything, as it does today.
Mrs. Wilson. Thank you, Mr. Chairman.
Mr. Burr [presiding]. The gentlelady's time has expired.
Any members seeking additional time? Hearing none, the chair
would like to ask one additional question. Chairman Barton will
introduce legislation today that--Chairman Bliley I understand
will introduce legislation today that would basically codify
into law into Mr. Podonsky's office--that's what I get for
listening to Mr. Upton as he walked out and was trying to tell
me this question. Let me just ask all of you to comment on your
feelings as it relates to Mr. Podonsky's oversight role being
codified into law.
Mr. Kuckuck. To the degree that I understand what that
means, the role that he has now?
Mr. Burr. The role that he has today.
Mr. Kuckuck. I am not sure I understand the full
consequences of what that means, but does that change the
conditions on the university and the laboratory to respond to
his findings?
Mr. Burr. I would only make a personal observation, given
the answers that all of you have given relative to your comfort
level and cooperative spirit with Mr. Podonsky, I would think
that your answers would probably be it shouldn't phase us, that
it should be a continuation of what we currently have going on.
Mr. Kuckuck. We accept the statutes above the contract and
so anything that is codified into law would become something
that we would comply with. I don't feel like I am answering
your question.
Mr. Burr. I guess I was looking for a more personal
observation on the part of the representatives of the labs. Are
you comfortable with us codifying Glenn Podonsky's current
position into law?
Mr. Robinson. I am going to quote a statement made earlier:
The devil is often in the details. Certainly the inspection and
evaluation role, which is the original title of Mr. Podonsky's
office, I would not hesitate to say yes, that should exist. If
you codify it into law it is acceptable to me. I understand
there is a question of members of Mr. Podonsky's organization
wanting to have an additional role in defining policy. I think
I might have some difficulties with that. I would like to see a
coming together in an agreement on a single source rather than
having these many multiple sources of policy generation.
Mr. Burr. I believe it would be safe to say that this
legislation would not empower them to play a policy role.
Mr. Robinson. I would support that.
Mr. Burick. I would be comfortable with that, Congressman.
Mr. Van Hook. I would be comfortable but I would like to
offer a comment and that is that in my experience with Mr.
Podonsky's activities, including his follow-up which we have
experienced, the responsibility for developing the corrective
action plan, the responsibility for closing the corrective
action plan and in fact fixing the issue is the line
responsibility. It is not Mr. Podonsky's responsibility. His is
to come back and take a look and see if in fact you did the
things that you said you were going to do. We make a commitment
to DP that we are going to do the following, whatever that
happens to be, and then they come for some observations that
Podonsky's organization has given us, but he is not responsible
for the closure. He is responsible to just come back and have a
look and see if we did in fact do the things you said you were
going to do. Belongs to the line.
Mr. Burr. I thank all of you and would remind you that's
one of the criticisms that GAO made in that report, is that he
is not responsible for closure.
Mr. Van Hook. He shouldn't be.
Mr. Burr. I am not lobbying one way or the other, but----
Mr. Van Hook. You do not get the accountability if the
oversight group is responsible.
Mr. Burr. Clearly we are intending to codify Glenn
Podonsky's position and hopefully that legislation will move
with the support of not only the laboratories but the
Department of Energy. I would like to take this opportunity to
thank each one of you and I know that you have come quite a
distance. It certainly is good to see all of you again. We look
forward to the next encounter.
The Chair would adjourn the second panel and would call up
the third panel. In our third panel today we have Mr. Gary
Jones, Associate Director of Energy, Resources, and Science
Issues of the General Accounting Office; Mr. Dan Miller, First
Assistant Attorney General, Natural Resources and Environmental
Section of the State of Colorado.
Ms. Jones, I apologize. I introduced you as Mr. Jones.
Ms. Jones. No problem. It happens all the time, Mr.
Chairman.
Mr. Burr. It is the custom of the Oversight Committee that
all witnesses be sworn in and have the opportunity to have
counsel. Do any of you have counsel who will be with you?
Ms. Jones. No, sir.
[Witnesses sworn.]
Mr. Burr. Thank you very much. Ms. Jones, the chair would
recognize you for the purposes of an opening statement.
TESTIMONY OF GARY L. JONES, ASSOCIATE DIRECTOR, ENERGY,
RESOURCES, AND SCIENCE ISSUES, GENERAL ACCOUNTING OFFICE; AND
DANIEL S. MILLER, FIRST ASSISTANT ATTORNEY GENERAL, NATURAL
RESOURCES AND ENVIRONMENT SECTION, STATE OF COLORADO, ON BEHALF
OF NATIONAL ASSOCIATION OF ATTORNEYS GENERAL
the status
of our security program are largely in harmony. W
today to provide our observations on improving security
oversight within DOE and security issues related to the newly
established National Nuclear Security Administration, or NNSA.
While DOE has made a number of improvements to security
oversight, our February report to this committee discussed
areas where it could be further strengthened. For example, DOE
needs a comprehensive system to track how all safeguards and
security problems at its facilities are addressed.
While DOE's Office of Security and Emergency Operations
maintains a centralized management information system, it is
not comprehensive and it is not directly accessible by the
security staff at DOE's area offices and laboratories.
Centralizing all information on security problems and their
solutions and providing access to area office and laboratory
safeguards and security staff would help these staff avoid
similar problems and improve their safeguards and security
programs.
DOE could also make improvements to its processes for
taking corrective actions on security problems to ensure that
they are corrected in an economic and efficient manner. DOE's
insependent security oversight office does not independently
validate or verify corrective actions or certify that the
action taken has addressed the problem identified. Therefore,
that office has no assurance that the problems are adequately
corrected and closed.
Finally, ratings of safeguards and securities activities
should be consistent among the various organizations within
DOE. This has not been the case. For example, in 1998, Los
Alamos received ratings that ranged from marginal to excellent.
In 1996, Lawrence Livermore received ratings that ranged from
marginal to far exceeds expectations. This inconsistency can
send a mixed or wrong message to policymakers and managers.
This inconsistency results in part from organizations' use of
different criteria and the timing of the ratings. DOE has
changed the safeguards and security performance rating criteria
for the year 2000 contracts for two labs. This could result in
more consistent ratings in the future for those laboratories.
How does NNSA fit into the security picture? Although it
was established to correct longstanding management and security
problems, we have two concerns about how security management
and oversight will be implemented for NNSA. First, there may be
duplicate and/or overlapping security functions between DOE and
NNSA. The Director of NNSA'S Office of Defense Nuclear Security
is the same individual that is responsible for DOE's Security
Office. It is called dual hatting. We believe that it is
contrary to the intent of the law that NNSA be distinct from
DOE. Further, it is not clear how officials responsible for
both NNSA and DOE activities cooperate. A CRS analysis noted
that for counterintelligence, both DOE and NNSA have authority
to develop policy and procedures. This raises the possibility
that two sets of policies and procedures could be implemented
at a DOE facility like Savannah River that perform both DOE and
NNSA missions.
Second, significant questions remain about how the security
oversight organization will oversee NNSA operations. The
implementation plan states this organization will remain in
DOE, review all DOE and NNSA security activities, and report
its finding and recommendations to the Secretary. How the
recommendations are handled, however, is not fully discussed.
The independent oversight office has raised concerns that
unless directed by the Secretary, NNSA is not required to act
on their recommendations. Mandating that NNSA address their
recommendations, however, could set up a relationship which
would be inconsistent with the provisions of the act that
prohibits NNSA personnel from being subject to the authority,
direction, or control of DOE staff.
Mr. Chairman, a timely implementation of our
recommendations for improving security oversight and clarifying
the roles and relationships of security organizations in DOE
and NNSA will be important. Changing the culture may be more
difficult. NNSA will be made up of DOE and contract employees
that have worked in a DOE culture that has led to many security
problems. For a newly created NNSA to be more effective, it
must break out of the culture and mindset that permeates DOE.
Otherwise security problems inherent in DOE may continue at
NNSA.
Thank you, Mr. Chairman.
[The prepared statement of Gary L. Jones follows:]
Prepared Statement of Gary L. Jones, Associate Director, Energy,
Resources, and Science Issues, Resources, Community, and Economic
Development Division, United States General Accounting Office
Mr. Chairman and Members of the Subcommittees: We are pleased to be
here today to provide our observations on the Department of Energy's
(DOE) and the National Nuclear Security Administration's (NNSA)
security programs to protect against theft, sabotage, espionage,
terrorism, and other risks to national security at its facilities. As
you know, the Congress established NNSA on March 1, 2000, as a semi-
autonomous agency within DOE with responsibility for the nation's
nuclear weapons, nuclear nonproliferation activities, and naval
reactors programs. NNSA was established to correct long-standing
management and security problems at DOE's nuclear facilities. Our
testimony today focuses on (1) oversight of safeguards and security
programs at DOE and (2) security issues with NNSA. Our testimony is
based on our numerous reviews of security at DOE--in particular, our
recently issued report to the full Committee entitled ``Improvements
Needed in DOE's Safeguards and Security Oversight''--and testimony
presented earlier this month before the House Armed Services Special
Oversight Panel on Department of Energy Reorganization.1
---------------------------------------------------------------------------
\1\ See Nuclear Security: Improvements Needed in DOE's Safeguards
and Security Oversight, (GAO/RCED-00-62, Feb. 24, 2000) and Department
of Energy: Views on DOE's Plan to Establish the National Nuclear
Security Administration, (GAO/T-RCED-00-113, Mar. 2, 2000).
---------------------------------------------------------------------------
In summary, Mr. Chairman, sound management and independent
oversight of security at DOE's nuclear facilities is critical to ensure
that security problems are identified, raised to the attention of the
highest levels in DOE, and corrected. DOE has recently made a number of
improvements to its security oversight. However, our February report to
the Committee discussed several areas where security oversight could be
further strengthened. In particular,
DOE needs a comprehensive tracking system for safeguards and
security findings at its nuclear facilities,
all security findings and/or problems identified need to be
fully analyzed and appropriately closed, and
safeguards and security ratings should be consistent among the
various security organizations within DOE.
In addition, as security responsibilities shift, it is not clear
how DOE's oversight at nuclear facilities will relate to the newly
created NNSA. Specifically,
while NNSA was to be distinct from DOE, the security office
within NNSA may have duplicative and overlapping functions with
DOE's security office, and
significant questions remain about how the DOE security
oversight organization will oversee NNSA operations.
We recognize that NNSA's creation, as outlined by DOE's
Implementation Plan for NNSA, is an evolving process. However, we
believe the best time to address past problems is when the organization
and systems are being laid out for the first time, before commitments
to old ways harden. Timely implementation of our prior recommendations
for improving security at DOE and clarifying the role of DOE security
organizations, such as NNSA, will be important. Changing the culture
may be more difficult. NNSA will, at least initially, be made up of DOE
and contractor employees that have worked in a DOE culture that has led
to many security problems. For the newly created NNSA to be more
effective, it must break out of the culture and mindset that permeates
DOE. Otherwise, security problems inherent in DOE may continue in NNSA.
background
DOE has numerous contractor-operated facilities and laboratories
that carry out various DOE programs and missions. The laboratories
conduct some of the nation's most sensitive activities, including
designing, producing, and maintaining the nation's nuclear weapons;
conducting efforts for other military or national security
applications; and performing research and development in advanced
technologies for potential defense and commercial applications. Because
of these sensitive activities, these facilities--especially the
laboratories--are targets of foreign espionage efforts.
Security concerns and problems have existed at many of these
facilities since they were created, and recent years have been no
different. In 1997, DOE's Office of Security Affairs issued a report
that rated safeguards and security at some facilities and laboratories
as marginal and identified problem areas that included physical
security and accountability for special nuclear
material.2,3 In April 1999, all computer networks
(except for those performing critical safety or security functions) at
the laboratories were shut down because of concerns about inadequate
security. During that same month, we testified before this Committee on
numerous long-standing safeguards and security problems, including
ineffective controls over foreign visitors, weaknesses in efforts to
control and protect classified and sensitive information, lax physical
security controls, ineffective management of personnel security
clearance programs, and weaknesses in tracking and controlling nuclear
materials.4 In December 1999, a scientist at the Los Alamos
National Laboratory was indicted on 59 felony counts of mishandling
classified information. The scientist was accused of transferring files
from Los Alamos' secure computer system to computer tapes, most of
which cannot be accounted for. The Secretary of Energy has taken
several steps to improve security at DOE's facilities, including
restructuring the headquarters safeguards and security organization,
appointing a ``Security Czar,'' elevating the security oversight
organization to report directly to the Secretary, upgrading computer
security, and instituting counterintelligence measures.
---------------------------------------------------------------------------
\2\ See Status of Safeguards and Security for 1996 (Jan. 27, 1997).
3 The Office of Security Affairs is a DOE headquarters
organization whose functions include establishing safeguards and
security policies and providing advice and assistance concerning
safeguards and security programs.
\4\ See Department of Energy: Key Factors Underlying Security
Problems at DOE Facilities, (GAO/T-RCED-99-159, Apr. 20, 1999).
---------------------------------------------------------------------------
To a larger extent, to resolve organizational and managerial
weaknesses that have been identified by ourselves and others as the
causes of these security problems, several options for reorganizing DOE
have been proposed and studied. For example, in June 1999, the
President's Foreign Intelligence Advisory Board proposed a semi-
autonomous nuclear agency within DOE with a streamlined management
structure and field operations. On October 5, 1999, the President
signed the National Nuclear Security Administration Act, which was
included in Public Law 106-65. This act created NNSA, a separately
organized agency within DOE. In January 2000, DOE issued its
Implementation Plan to create NNSA. As envisioned by the law, the
Implementation Plan calls for three program offices within NNSA--
Defense Programs, Defense Nuclear Nonproliferation, and Naval Reactors.
The Plan also sets up a statutorily required security support office--
the Office of Defense Nuclear Security. Overall, the Statute and
Implementation Plan establish a structure quite similar to DOE's.
DOE has overall responsibility for a security program that
effectively protects against theft, sabotage, espionage, terrorism, and
other risks to national security at its facilities. DOE has policies
and procedures to protect its facilities, classified documents, data
stored in computers, nuclear materials, nuclear weapons, and nuclear
weapons components. The operating contractors at DOE's facilities are
responsible for implementing these safeguards and security policies and
procedures. To ensure that these policies and procedures are followed
and implemented, DOE's field operations offices and the Office of
Independent Oversight and Performance Assurance (the Independent
Oversight Office) provide oversight of the effectiveness of safeguards
and security policy and its implementation. These offices play a
critical role in the early detection of safeguards and security
problems and can play a major role in the timely resolution of those
problems.
DOE's field operations offices are the line organizations
accountable for evaluating the laboratories' safeguards and security
activities. The operations offices are required to conduct an annual
survey of the adequacy of the operating contractors' safeguards and
security programs. The Independent Oversight Office provides oversight
of laboratory safeguards and security activities from DOE's
headquarters. The Independent Oversight Office is an ``independent''
oversight organization that is separate from the line management
structure and conducts safeguards and security inspections of DOE
facilities and issues reports. The Independent Oversight Office reports
directly to the Secretary of Energy.
improvements needed in doe's security oversight
In February 2000, we reported to this Committee that DOE's
oversight of security at its national laboratories needs improvements.
Specifically, improvements are needed in DOE's security management
information system, corrective action process, and performance rating
activities.
Security Management Information System
DOE's Office of Security and Emergency Operations--DOE's
headquarters safeguards and security policy organization--maintains a
centralized management information system to track and monitor
safeguards and security findings and the related corrective actions.
However, findings developed between 1995 and 1998 by DOE's Independent
Oversight Office are not included in this system nor are findings and
recommendations developed by us and other outside organizations, such
as congressional committees and special review teams. In addition, the
system is not directly accessible by security staff at DOE's area
offices and the laboratories. Each laboratory has developed its own
information system containing data on findings that relate to their
laboratory. As a result, information about problems at one location is
not available to security staff at other locations. DOE's centralized
security management information system would be of more value if it
contained information on all security findings. Such information would
help them avoid similar problems and improve their safeguards and
security.
Corrective Action Processes
DOE requires that the laboratories conduct a risk assessment, a
root cause analysis, and a cost-benefit analysis as part of their
process to correct safeguards and security problems found by DOE's
oversight activities. These analyses help to ensure that safeguards and
security problems are corrected in an economic and efficient manner.
Despite their importance, these assessments and analyses have not
always been conducted. For example, at the Los Alamos National
Laboratory, we found that root cause analyses had been performed for
only about two-thirds of the security findings we reviewed. Risk
assessments and cost-benefit analyses had not been performed for any of
the Los Alamos National Laboratory findings we reviewed. The Los Alamos
National Laboratory began requiring root cause analyses in 1998, and,
according to laboratory officials, began requiring risk assessments
since we completed our review. Formal cost-benefit analyses are still
not conducted. As a result, Los Alamos National Laboratory cannot
determine whether correcting a security risk is worth the cost of the
corrective action.
In addition, the Independent Oversight Office is not required to
and, in the past, has generally not worked with the laboratories to
develop corrective action plans for its safeguards and security
findings. Also, this office is not required to and has not been
formally involved in validating the corrective action, verifying that
the problem was corrected, and certifying that its findings were
closed. During the past year, the Independent Oversight Office has
worked with the laboratories to develop corrective action plans and has
conducted follow-up reviews of its findings that are being corrected,
validated, verified, or closed by the operations offices. However, the
Independent Oversight Office still has not become involved in
validating and verifying corrective actions and certifying that
findings are closed. Therefore, the Independent Oversight Office has no
assurance that the problems were adequately corrected and closed.
DOE Performance Ratings Activities
From 1994 through 1999, DOE's nuclear laboratories have received
many different assessments of the effectiveness of their safeguards and
security programs. For example, in 1998 Los Alamos National Laboratory
received ratings ranging from marginal to excellent depending on the
DOE organization conducting the assessment. Likewise, in 1996 Lawrence
Livermore National Laboratory received ratings ranging from marginal to
far exceeds expectations. This inconsistency can send a mixed and/or
erroneous message to policy makers and managers. At least partially,
this inconsistency results from various organizations' use of different
criteria and the timing of the rating. DOE has changed the rating
criteria for the year 2000 safeguards and security contract performance
rating. These changes could decrease rating inconsistency in future
years.
security issues with nnsa
Now I would like to discuss security issues related to NNSA. NNSA
was established as a semi-autonomous agency that was to be distinct
from DOE. To clearly show the separation of NNSA management from DOE's
organization, the Act laid out chains of command in both DOE and NNSA
that would insulate NNSA from DOE management and decisionmaking, except
at the level of the NNSA Administrator. This is because the
Administrator is under the immediate authority of the Secretary. We
have two concerns. First, the Implementation Plan fills numerous key
positions within NNSA with DOE officials--thus, these officials have
DOE and NNSA responsibilities and have been dubbed ``dual-hatted.''
Second, the relationship of the existing DOE organization that provides
safeguards and security oversight to NNSA is unclear.
Dual-hatted Positions
The Implementation Plan calls for dual-hatting of virtually every
significant statutory position, including the Deputy Administrators for
Defense Programs and Nuclear Nonproliferation. In addition, the
Director of NNSA's Office of Defense Nuclear Security will also be a
dual-hatted position.5 The Implementation Plan explains that
the ``dual-hatted'' positions were established to ensure consistent
policy implementation and to ensure seamless DOE and NNSA responses to
emergencies. However, in our view, officials holding similar positions
concurrently in DOE and NNSA is contrary to the legislative intent
behind the creation of NNSA as a separate entity within DOE. Moreover,
to reinforce the two separate channels of management, the Act states
that no NNSA officer or employee shall be responsible to, or subject to
the authority, direction, or control of any DOE officers or employees
other than the Secretary and the Administrator.
---------------------------------------------------------------------------
\5\ Other dual-hatted positions include the Directors of the Office
of Defense Nuclear Counterintelligence, the Office of Emergency
Operations, the General Counsel and Deputy General Counsel, and Field
Office Managers in charge of the Oak Ridge, Savannah River, and Oakland
offices.
---------------------------------------------------------------------------
Whether DOE and NNSA have dual-hatted managers or not, the
Implementation Plan does not clearly define how officials that are
responsible for both NNSA and DOE activities will operate. Furthermore,
whether NNSA security officials will establish their own set of
policies and procedures or use existing DOE security policies and
procedures is not clear. A Congressional Research Service memo
commented that, in some areas, such as counterintelligence, both DOE
and NNSA have authority to develop policy and procedures. This raises
the prospect of two different sets of security policy and procedures,
DOE's and NNSA's, being implemented at DOE's facilities that perform
both DOE and NNSA missions.
security oversight of nnsa
Significant questions remain in the Implementation Plan's
discussion of the role of the Independent Oversight Office. The
Implementation Plan states that this oversight organization will remain
in DOE. According to the Implementation Plan, the Independent Oversight
Office will review all DOE and NNSA sites and activities and will
report its findings and recommendations to the Secretary. How the
recommendations are to be handled by NNSA, however, is not discussed.
The Independent Oversight Office has raised concerns that, unless
specifically directed by the Secretary, NNSA is not required to act on
oversight findings and recommendations and thus might take no action.
The Independent Oversight Office is attempting to change DOE Order
470.2, ``Safeguards and Security Independent Oversight Program,'' to
require NNSA to correct safeguards and security problems identified
during its inspections. However, depending on how the order is changed,
this could set up a relationship which would be inconsistent with the
provisions in the Act that prohibit NNSA personnel from being subject
to the authority, direction, or control of any DOE staff other than the
Secretary and the Administrator. In addition, while amending the order
may require NNSA to act on findings and recommendations from the
Independent Oversight Office, it will not fix the same problem for
other oversight offices, such as the office that oversees environment,
safety, and health.
The day-to-day working relationship between the Independent
Oversight Office and NNSA is also unclear. For example, the Independent
Oversight Office inspects DOE facilities and when safeguards and
security problems are found, works with the operating contractor at the
facility in developing a corrective action plan. DOE's Implementation
Plan provides no guidance on whether such relationships between
oversight organizations and NNSA should continue to exist.
In summary, DOE's Implementation Plan establishes a framework for
the creation of NNSA and its security program, but it is not really a
detailed roadmap and significant questions remain about the
relationship between NNSA and DOE's security organizations.
Our work on DOE's oversight of safeguards and security was
performed from June through December 1999, and our work on the
establishment of NNSA was performed during February 2000 in accordance
with generally accepted government auditing standards. Mr. Chairman,
this concludes my testimony. We would be happy to respond to any
questions that you or Members of the Subcommittees may have.
Mr. Burr. Thank you, Ms. Jones.
Mr. Miller, you are recognized for your opening statement.
TESTIMONY OF DANIEL S. MILLER
Mr. Miller. Thank you, Mr. Chairman. I am here today on
behalf of Ken Salazar, the Colorado Attorney General. Mr.
Salazar serves as the cochair of the Environment Committee of
the National Association of Attorneys General. Today I would
like to address a couple of provisions in the legislation
creating NNSA that may impair a state's ability to ensure
facilities under the NNSA's jurisdiction comply with State
environmental laws. The section that we are particularly
concerned about is section 3261. This language in the section
states in part, ``The Administrator shall ensure the
administration complies with all applicable environmental,
safety, and health statutes and substantive requirements.''
Although this language sounds pretty broad at first blush,
States are concerned that Federal courts applying the doctrine
of sovereign immunity will construe it very narrowly. To see
how that might happen we can look at the Supreme Court in
Hancock v. Train in a 1976 decision that interpreted the 1970
Clean Air Act's waiver of sovereign immunity. Before 1970
Federal agencies were encouraged but not required to comply
with the Clean Air Act. Congress determined that this voluntary
system wasn't working and in 1970 amended the act and to
require Federal agencies to comply with the law, and in
particular they added the following language, ``that each
department, agency, and instrumentality of the Federal
Government shall comply with Federal, State, interstate and
local requirements respecting control and abatement of air
pollution to the same extent that any person is subject to such
requirements.''
The State of Kentucky sought to compel several Federal
facilities, including the Department of Energy's Paducah
nuclear weapons plant, to obtain the State air quality permit.
Under Kentucky's law the permit was the exclusive means to
ensure compliance with substantive air quality requirements.
The Supreme Court held that the language that I just quoted
did not obligate Federal agencies to obtain State permits. The
Court said that section 118 of the Clean Air Act did not
provide that Federal agencies must comply with all requirements
but merely applicable requirements. The Court also stated that
the word ``requirements'' as used in section 118 meant only
substantive, not procedural requirements such as permits or
enforcement mechanisms. Consequently, the Court held that
Kentucky could not require the Federal agencies to obtain air
quality permits.
In reaching this result, the Court read section 118 to
include the word ``applicable'' when it doesn't appear in this
statute and it created a distinction not present in the Clean
Air Act between procedural and substantive requirements. So now
reconsider the language. Under it the Administrator must ensure
compliance only with applicable statutes and substantive
requirements. In response to a potential State enforcement
action the NNSA would certainly argue that only Federal
statutes are applicable, not State statutes, that it must
comply only with the statutes and provisions themselves and not
with any implementing regulations, and that under the decision
in Hancock v. Train the NNSA does not have to comply with any
nonsubstantive requirements, including any permits or
administrative orders or other administrative enforcement
mechanisms.
Our concern that section 3261 would be interpreted to
impair existing State authority over NNSA facilities is
heightened by a savings clause in the NNSA legislation, section
3296. That section states, ``Unless otherwise provided in this
title, all provisions of law and regulations in effect
immediately before the effect of this title that are applicable
to functions of the Department of Energy shall continue to
apply to the corresponding functions of the administration.''
Because of the introductory phrase ``unless otherwise
provided in this title'' this section could be interpreted to
imply that other provisions of Title 32 such as 3261 do limit
the application of preexisting law to the functions of the
administration. Otherwise there would be no need for that
phrase. States raised these concerns last fall but because of
the status of the legislation and the process no amendments
were made. There is quite a bit of legislative history
indicating that it was not the intent of the sponsors or the
drafters of this legislation to in any way impair State
authority. That is reflected in the Florida Base and the
Congressional Record.
However, we are still concerned, States are concerned that
because of the extreme clarity that Federal courts require in
waivers of sovereign immunity, the Federal court in reviewing
section 3261 would simply look to the statutory language and
not consider the legislative history. Therefore, the only way
to address this problem is to amend the legislation to clarify
that it does not impair State authority. We have some language
that we have drafted and presented to you that we believe would
be effective in maintaining the intent of the Congress that
facilities under the jurisdiction of the NNSA continue to be
responsible to comply with State environmental laws.
[The prepared statement of Daniel S. Miller follows:]
Prepared Statement of Daniel S. Miller, First Assistant Attorney
General, Colorado Department of Law, on Behalf of Ken Salazar, Attorney
General of Colorado and Co-Chair, Environment Committee of the National
Association of Attorneys General
Good morning. My name is Dan Miller. I am a First Assistant
Attorney General in the Colorado Department of Law. I am here today on
behalf of my Attorney General, Ken Salazar, who serves as co-chair of
the Environment Committee of the National Association of Attorneys
General (NAAG). NAAG has for many years taken an active role in working
with Congress to ensure the safe management and cleanup of the federal
facilities, including those managed by the Department of Energy. Today,
I want to address provisions in the National Nuclear Security Agency
legislation that may impair states' ability to ensure the NNSA
facilities comply with environmental laws. I would like to submit for
the record several letters, including one signed last fall by 43
Attorneys General, opposing these provisions. I would also like to
submit a legal memo analyzing the same provisions.
Five decades of nuclear weapons production have created the worst
environmental contamination problem in the United States. DOE estimates
that it has contaminated over 600 billion gallons of groundwater, and
that over 33 million cubic meters of soil will require remediation. In
1998, DOE estimated that it would cost around $147 billion to address
this environmental legacy. I use the word ``address'' rather than
``clean up'' because much of the contamination will not be cleaned up.
Instead, the best we can hope for is to contain the contamination. This
containment will require careful maintenance and monitoring for
hundreds or, in some cases, thousands of years.
The main reason the costs of cleaning up the weapons complex are so
high is that there was virtually no external regulation of the weapons
complex for over four decades. Even though Congress passed laws as
early as 1970 to subject federal agencies, including DOE, to the same
environmental requirements as private parties, the federal agencies
have been able to avoid or delay having to meet such requirements by
exploiting a legal loophole known as ``sovereign immunity.'' Reduced to
its basics, this doctrine provides that states may not regulate the
federal government unless Congress waives the government's sovereign
immunity in legislation. And any legislation waiving the government's
immunity is construed very narrowly. It was not until 1992, with the
passage of the Federal Facility Compliance Act, in which your Commerce
Committee played an important leadership role, that states obtained
adequate authority to ensure oversight of DOE's hazardous waste
management activities.
And that brings us to the problem with the legislation creating
the NNSA. Section 3261 of S. 1059 contains language that may be
interpreted to narrow existing waivers of sovereign immunity in federal
environmental laws. The section states, in part:
The Administrator shall ensure that the Administration complies
with all applicable environmental, safety, and health statutes
and substantive requirements.
Although this language sounds broad, states are concerned that
federal courts, applying the doctrine of sovereign immunity, will
construe it very narrowly. To give an example of how this might happen,
let's look at the waiver of sovereign immunity in the 1970 Clean Air
Act that was the subject of the Supreme Court's 1976 decision in
Hancock v. Train. Before 1970, federal agencies were encouraged, but
not required, to comply with the Clean Air Act. Congress determined
that this voluntary system was not working, and in 1970 amended the act
to require federal agencies to comply by adding the following language:
Each department, agency, and instrumentality of . . . the
Federal Government . . . shall comply with Federal, State,
interstate, and local requirements respecting control and
abatement of air pollution to the same extent that any person
is subject to such requirements.
The state of Kentucky sought to compel several federal facilities--
including DOE's Paducah nuclear weapons plant--to obtain a state air
quality permit. Under Kentucky's law, the permit was the exclusive
means to implement substantive air quality requirements. The federal
agencies refused, arguing that section 118 of the Clean Air Act did not
obligate them to obtain state permits.
The Supreme Court agreed with the federal agencies. The Court noted
that section 118 did not provide that federal agencies must comply with
``all . . . requirements to the same extent as any other person.''
Instead, the court said, ``section 118 states only to what extent--the
same as any person--federal installations must comply with applicable
state requirements; it does not identify the applicable requirements.''
The Court agreed with the federal agencies' argument that the word
``requirements,'' as used in section 118, meant only substantive
requirements, not ``procedural'' requirements, such as permits or
enforcement mechanisms. Consequently, the Court held that Kentucky
could not require the federal agencies to obtain air quality permits.
In reaching this result, the Court:
Read section 118 to include the word ``applicable'' modifying
``requirements,'' when the word ``applicable'' did not exist in
section 118.
Created a distinction not present in the Clean Air Act between
``procedural'' and ``substantive'' requirements.
Now re-consider the language of section 3261. Under it, the newly
created Administrator of the NNSA must ensure compliance only with
``applicable'' statutes and ``substantive'' requirements. The NNSA
would certainly argue that only federal statutes are ``applicable'';
that it must comply only with the provisions of statutes themselves,
not with any implementing regulations; and that, under the decision in
Hancock, the NNSA does not have to comply with any ``non-substantive''
requirements, including permits or administrative enforcement
mechanisms, such as orders.
Our concern that section 3261 will be interpreted to impair
existing state authority over NNSA facilities is heightened by a
savings clause in section 3296, which states:
Unless otherwise provided in this title, all provisions of law
and regulations in effect immediately before the effective date
of this title that are applicable to functions of the
Department of Energy specified in section 3291 shall continue
to apply to the corresponding functions of the Administration.
Because of the introductory phrase ``[u]nless otherwise provided in
this title,'' this section could be interpreted to imply that other
provisions of Title 32 do limit the application of pre-existing law to
the functions of the Administration. Otherwise, there would be no need
for the phrase.
States raised these concerns last fall, but because the NNSA
provisions were inserted at the time of conference, there was really no
chance to amend them. During the floor debates on the Defense
authorization bill, the authors of the NNSA provisions made clear that
they did not intend to impair state regulatory authority over NNSA
facilities, or to exempt the NNSA from any environmental obligations.
While the states appreciate this expression of legislative intent, we
remain concerned that, because of the extreme clarity that federal
courts require in waivers of immunity, a federal court reviewing
section 3261 will simply look to the statutory language, and will not
consider the legislative history. Thus, we ask your subcommittees to
correct this situation by amending the NNSA legislation to clarify that
it does not adversely impact state regulatory authority over federal
facilities.
The only way to ensure that existing state authority over NNSA
facilities is not impaired is to amend the NNSA legislation. This could
be done by striking sections 3261 and 3296, and inserting the following
language:
The Administrator shall ensure that the operations and
activities of the Administration are executed in full
compliance with all provisions of local, state and federal law,
including, but not limited to, regulations, rules, orders,
permits, licenses, and agreements relating to environmental,
safety and health matters. Nothing in this Title shall be
construed to limit, modify, affect, or otherwise change any
local, state or federal environmental, safety or health law,
including any waiver of federal sovereign immunity in any such
federal law, or any obligation of the Administration or the
Department to comply with any such local, state or federal law.
These amendments would ensure that NNSA facilities remain subject
to state environmental oversight. They would effectuate the
Congressional intent to require the NNSA to comply with environmental
laws. And, they would not expand state authority beyond its existing
bounds.
The facilities that will be transferred to the NNSA pose a
significant potential for environmental harm. Several are on the
National Priorities List under CERCLA, and DOE estimates that cleaning
up and decommissioning these sites alone will cost tens of billions of
dollars. Additionally, these facilities will continue to generate and
manage significant quantities of hazardous and radioactive wastes in
the future. Given the existing problems at NNSA facilities, and the
potential for additional problems at those facilities in the future, we
must ensure that these facilities continue to be subject to state
environmental regulation. While we continue to move forward in cleaning
up, we need to maintain the nation's momentum--and prevent unintended
roadblocks in the path of cleanup. We strongly urge you to enact
legislation that makes the amendments described above.
Mr. Burr. Thank you, Mr. Miller. The Chair would recognize
Mr. Stupak for questions.
Mr. Stupak. Thank you, Mr. Chairman. Mr. Chairman, just a
couple of questions for Mr. Miller, if I may, and then Ms.
Jones if I have time. Mr. Miller, I am sure that the State
attorneys general have raised these concerns with the Congress
and the DOE. What has the response been to your draft
legislation?
Mr. Miller. At this point I don't believe that we have
transmitted our draft legislation to the DOE. The response we
got last fall, as I indicated when we initially raised the
concerns, not having proposed a solution at that time, was that
the language that I referred to here in the statute did not in
fact impair State regulatory authority. What we are asking here
is to basically eliminate section 3296 and to substitute a
couple of different sentences for that current language of 3261
that would clarify that Congressional intent.
Mr. Stupak. So since last fall that hasn't been to the DOE?
Mr. Miller. No, it has not.
Mr. Stupak. Do you plan on doing that to get their comments
on it before you submit it?
Mr. Miller. We certainly could.
Mr. Stupak. That would be helpful if you are serious about
the legislation to help the process along to get their input.
You have heard today a lot of promises from DOE about how
Secretary Richardson is going to assure that the environment,
health, and safety issues will be taken care of. Does that
satisfy your concerns, what you heard today?
Mr. Miller. I believe most of those remarks related to the
internal oversight within the Department of Energy, and in a
letter that 43 attorneys general sent last fall regarding this
legislation they did express concerns about the continued
viability of the Department's internal oversight of its nuclear
safety issues. Secretary Richardson's reorganization plan
addresses some of those concerns but I believe there is still
concern that the statutory language limiting his ability to
delegate authority and his lack of direct response--oversight
of the employees of NNSA still cause some concerns. The
testimony earlier today didn't really address our primary
concern which was to make sure that the States maintain their
existing authority to implement their air quality, water
quality, and hazardous waste laws at facilities under the NNSA
jurisdiction.
Mr. Stupak. Have you through any correspondence or
communication with DOE that these assurances of both States
rights to take look at the health, safety, and welfare and
their water and workers, have you had any assurances from DOE
or any communication back and forth asking for assurances that
these concerns that you have raised will be satisfied when they
are reorganized and get this new quasi-agency up?
Mr. Miller. We have not received any correspondence from
DOE on the States as far as I am aware. I have not received any
correspondence from DOE regarding--other than the transmittal
of the implementation plans.
Mr. Stupak. But nothing to really address your concerns?
Mr. Miller. Nothing to address our concerns, no.
Mr. Stupak. Ms. Jones, how do you guarantee secretarial
control of the new agency in this situation?
Ms. Jones. Secretarial control in what situation.
Mr. Stupak. Well, the Secretary has proposed that the head
of this new agency have a 3-year term, which actually gives him
more job security than the Secretary. Can you explain why an
official with a guaranteed term needs to take direction from a
Secretary who can be fired at any time? So my question is how
would you guarantee secretarial control that may sort of point
out that Mr. Richardson has proposed, Secretary Richardson? How
would the secretarial control proposed in the new agency work
in this situation?
Ms. Jones. I think the 3-year term for the position was put
in so there would be some continuity. That way when you tried
to make changes or management reforms--both security as well as
other kinds of management issues--you have some kind of
continuity. As you pointed out--quite rightly so--the
Secretary's term over the past 25 years averages about 2\1/2\
years. But I think the legislation is written such that the
Secretary does have purview over the Administrator. So even if
that Administrator is there for a longer period of time I don't
see a disconnect there.
Mr. Stupak. Can the Administrator be removed for cause or
is he free, he or she free from any kind of accountability?
Ms. Jones. I am not sure, Mr. Stupak, of the answer to
that. I will be happy to try to provide that for the record.
[The following was received for the record:]
The National Nuclear Security Administration Act provided
for the appointment of an Under Secretary of Energy for Nuclear
Security. The Under Secretary was designated to serve as the
Administrator of the National Nuclear Safety Administration.
The President will make the appointment with the advice and
consent of the Senate. As an appointed officer in the executive
branch, the Under Secretary will serve at the pleasure of the
President, and can be removed by the President for
unsatisfactory performance or other reasons.
Mr. Stupak. We have talked a little bit about trying to
change the culture of DOE and the labs and to take safety more
seriously. How do you do that just by putting a new Secretary
in there or I shouldn't say a Secretary--new Administrator to
change that culture?
Ms. Jones. To be quite honest I don't think that you can
just by changing the organizational structure. You have to have
strong leaders. First of all, you have to make a culture
change. I am not sure that when we saw the implementation plan,
we were impressed that DOE had accepted the fact that they
needed to make a culture change. I think that even if you go
back to the Rudman report, they were the ones that suggested
that you might have this organizational structure change, but
they also stated that you cannot legislate a culture change. So
you have to follow that with strong management and strong
leadership to identify the kind of cultural aspects that have
been barriers to accomplishing the mission and then go after
those cultural aspects.
Mr. Stupak. One more if I may. Under the current law, what
is there to prevent any employee of the new agency to refuse to
take any direction from a DOE employee and demand that the
Secretary personally give such direction to the Administrator,
who has the option of carrying out or not carrying out a
directive?
Ms. Jones. I think we have raised some concerns about the
dual hatting as well as the oversight organizations because of
the specific wording of the law.
Mr. Stupak. Dual hatting, we are not talking about that.
What is there to make sure that the option of carrying out
directives are going to be done?
Ms. Jones. I think the law needs to be clarified in that
regard.
Mr. Stupak. In what way clarified?
Ms. Jones. The part of the law that talks about no DOE
person shall have authority, responsibility, direction or
control over NNSA staff. I think that, as DOE witnesses said
earlier, they were focusing specifically on direction and
control. There are other words as part of that too: authority
and responsibility. I think that language needs to be clarified
to make sure if you have an oversight organization, you know
what their roles and responsibilities are.
Mr. Stupak. Thank you, Mr. Chairman.
Mr. Burr. The gentleman's time has expired. The Chair would
recognize the gentlelady, Mrs. Wilson.
Mrs. Wilson. Thank you, Mr. Chairman. Mr. Miller, section
3296 of the NNSA Act states that, ``unless otherwise provided
in this title, all provisions of law and regulations in effect
immediately before the effective date of this title shall
continue to apply to the administration.''
How much clearer can you get that those are the laws of
that apply?
Mr. Miller. The problem with that section is the
introductory phrase, ``unless otherwise provided in the
title.'' we are concerned that section 3261, which says that
the Administrator shall ensure the administration complies with
applicable environmental safety and health statutes and
substantive requirements in light of a long line of prior
Supreme Court decisions will be interpreted very narrowly, to
mean that the administration does not have to comply with
permits, regulations, administrative orders or statutes that
are deemed not to be applicable. It certainly is
counterintuitive reading of the language but that is pretty
much the conclusion that I have come to having read the Supreme
Court decision in Hancock v. Train and the Department of Energy
v. Ohio. Mrs. Wilson. Let me make sure that I understand this,
that it is your view that 3261 read in conjunction with the
paragraph that I read to you in 3296 makes different rules for
the NNSA than it does for the Department of Energy?
Mr. Miller. We are concerned that it would be read by the
NNSA's attorneys to do that and that there is a reasonable
chance that a Federal court hearing a case involving a dispute
between the State trying to apply its environmental laws to the
NNSA would side with the NNSA's interpretation. I think that
section 3296 would be a very different matter if it did not
have the introductory language ``unless otherwise provided in
this title.'' It seems to me that language only needs to be
there if there is another provision in title 32 that somehow
does limit the application of existing laws to the NNSA. That
is exactly what we are concerned that section 3261 does.
Mrs. Wilson. Let me ask this again so I can get some
clarification on this. Is it your view that the Department of
Energy--I am not a lawyer, thank goodness--is it your view that
the Department of Energy, that it is likely that a Federal
court would decide differently if it were under the Department
of Energy than it would under the NNSA?
Mr. Miller. Yes. I think that a State trying to apply State
environmental laws at a DOE facility not under the jurisdiction
of the NNSA would clearly be subject to those environmental
laws to the extent of the existing waivers of immunity and the
Clean Air Act, RCRA, and Clean Water Act. But with the NNSA we
have this new section, section 3216, that could be read as a
specific waiver of immunity applying to facilities under the
NNSA's jurisdiction and because of its wording it could be
interpreted very narrowly in light of existing Supreme Court
case law.
Mrs. Wilson. I am not sure I agree with your
interpretation, but I would forgo continuing that line of
questioning here. I would like to ask a question--maybe it is
really with respect to this issue of the 3-year timeframe. It
is something that is just for clarification at this point, less
a question than a statement; that if there is a change given a
term of service to the first director of the NNSA, that is
still subject to the pleasure of the President just like the
Chairman of the Joint Chiefs is so that the concept is not that
we pass this law and whoever gets that job has it no matter
what he does and no matter what happens for the next 3 years,
but that there is the same kind of concept for the Chairman of
the Joint Chiefs that would be for this first director of the
NNSA. And in that sense it is not much different than any other
appointees in that respect.
I will yield back the balance of my time.
Mr. Burr. The gentlelady's time has expired. The Chair
would recognize Mr. Strickland for questions.
Mr. Strickland. Thank you, Mr. Chairman. Mr. Miller, I was
intrigued by your testimony and impressed by the fact that so
many attorneys general had expressed their concern, having a
large DOE facility in my district and having some awareness
that in the past it has been the State that has been the
impetus for identifying problems and pushing toward
remediation. The language that you are suggesting seems so
reasonable and such an accurate way to deal with your concern.
But based on your knowledge of the history of environmental
problems at DOE facilities, could you just elaborate, if you
would, as to why you think it is imperative that the States
retain their authority to regulate and enforce?
Mr. Miller. Certainly. As the committee is no doubt aware,
the production of nuclear weapons in this country over the last
50 years has led to the largest environmental contamination
problem in the United States. The Department of Energy
estimates that it will cost over $147 billion to address the
environmental contamination caused by the last 50 years. We
believe that one of the main contributing factors to that
stupendous price tag is the fact that there was no external
oversight of the Department of Energy and its predecessors
during that whole time essentially. Until 1992, with the
passage of the Federal Facilities Compliance Act, States really
did not have effective oversight of DOE's waste management
activities. Unfortunately, it was by that time most of the
nuclear weapons production had pretty much been shut down.
We think that clearly external State oversight is going to
be beneficial to the environment and to the Department and the
government in the long run in terms of making sure that DOE
complies with the environmental laws in the first place and, if
nothing else, a lesson that we learned is that it is cheaper to
do it right the first time.
I might also add that the Department of Energy has long
exhibited a reluctance to comply with external State oversight.
Even after RCRA was passed in 1980 DOE argued that it didn't
apply to its own facilities. It lost that argument in a 1984
decision, Leaf v. Hodell. After that we tried to promulgate a
rule defining that that would basically exempt all of their
mixed radioactive and hazardous wastes from the reach of RCRA
jurisdiction and after some pretty extensive comments by States
and environmental groups withdrew that rule. Then subsequent to
that time they pretty much ignored RCRA's requirements to treat
their mixed waste land proposal restriction standards,
necessitating some specific statutory amendments that were
included in the 1992 Federal Facilities Compliance Act. They
have a pretty long history of trying to avoid external
regulation. If it came down to an argument between the State
and NNSA as to whether the State could apply its environmental
laws, we are concerned that that history would be repeated.
Certainly from the attorneys' perspective if there is an
argument available to you, you pretty much have to make it. I
believe that the Federal attorneys would argue that the State
environmental law does not apply to the NNSA in light of
section 3261.
Mr. Strickland. Thank you. And I agree that this language
is essential. I see no reason why we should hesitate to take
your concern seriously.
Ms. Jones, I have a question regarding the Administrator. I
don't know if you can help me more fully understand or at least
understand your perspective, but if my understanding is correct
DOE is now suggesting that the first Administrator be given a
3-year term but that that 3-year term not necessarily apply to
following Administrators, but only to the first Administrator
and then thereafter the appointment would follow the usual
normal cycles of Presidential appointments once an
administration changes and so on. Is that your understanding
and, if so, is that something that you think is a wise
approach?
Ms. Jones. Mr. Strickland, I am not sure what the proposal
has been. If that is their proposal, I might want to suggest
that we look at the future. In other words, if we are going to
have the first term run for 3 years, I am not sure that that
should switch back and then go by the administration from then
on out. I think one of the things that we have described in the
past is the need for change. The need for culture change is a
very long process and that a continuity would help in that
process. So I think some thought should be given to continuing
to have a specific term that maybe would span administrations
for the Administrator of the NNSA.
Mr. Strickland. I was not here but I have been told that
DOE testified earlier today that the establishment of the NNSA
has made their job more difficult. I am interested in your
opinion. Do you think you would agree with them on that
conclusion or not?
Ms. Jones. I think the two gentlemen that made those
comments were the oversight--the leaders of the two oversight
organizations, both ES&H as well as Security. I think our
testimony raises some concerns about clarities in terms of
defining roles and responsibilities.
Mr. Strickland. I am not even sure I understand this
question well enough to ask it. I have gotten a little help
here, but the question that I have been given is why is it
advantageous to have two separate channels of management and do
you think this is a wise approach?
Ms. Jones. I would take the question to mean two different
channels of management, NNSA and Department of Energy. I think
that is what the law has set up. I believe that NNSA was
created to try to streamline an organization that was felt to
be a little out of control in terms of the amount of
bureaucracy. I am not sure that is what NNSA did. It seems that
DOE was just cloned and the same organizational structure was
moved over to NNSA. So I don't think it really accomplished the
objectives it was laid out to do.
Mr. Strickland. One of the concerns that I have and I don't
know whether this would be impacted by what is being suggested
here or not, but that at my facility in Ohio we currently have
an ongoing investigation of health hazards and medical problems
that existed and so on. That is under the authority of DOE. I
am wondering if having two channels of management, for lack of
a better phrase, would at some point in the future interfere
with the appropriate cooperation and sharing of information,
and so on, that could arise out of such a need for such a
thorough and extensive and historical as well as
contemporaneous set of medical circumstances that could be
harmful to workers. Do you understand what I am saying?
Ms. Jones. Yes, sir, I do. I think that is a very good
question. I think as someone else said, the devil is in the
details in terms of how the NNSA will be implemented and its
relationship with the Department of Energy. I think those are
very important issues that need to be decided as it is moved
forward and as the structure is more defined.
Mr. Strickland. Thank you. Thank you, Mr. Chairman. No
further questions.
Mr. Burr. The gentleman's time has expired. The Chair would
recognize himself. Ms. Jones, your answer on DOE cloning
themselves, I would remind you cloning is illegal. Therefore,
that is not what they have done. But certainly it does resemble
it.
Ms. Jones. I apologize, Mr. Chairman. I am sorry.
Mr. Burr. Let me ask you under the new structure of NNSA,
what assures us now that problems are going to be solved?
Ms. Jones. What assures us now that the problems are going
to be solved? I am not sure there is an assurance. I think we
have to look forward and see how this is going to be
implemented. As I said earlier in response to another question,
just setting up a new organization is not going to affect the
culture change that I think we have all talked about today.
Mr. Burr. Help me just a minute. How can one person--I will
use your terminology--see a cloning of DOE and how can three
lab directors look at something and see a streamlined process?
Ms. Jones. I think that is a very good question. You would
have to ask them.
Mr. Burr. In GAO's assessment of not only the history that
you had seen, the cultural problem, I think we would all agree
that we have done a lot to identify some of the problems. There
have been some steps that have been taken to change the
culture. We are not there yet and I think the lab directors, if
they were still here and some of them are--would probably agree
with that statement. What in the creation of the NNSA assures
us without--if we don't apply the continuing oversight that we
have had up to this point assures us the completion of the
cultural change, no reversion to the problems that GAO has
found in the past? Anything?
Ms. Jones. I think that at this point in terms of the way
that the NNSA has been defined, I don't see that assurance
being provided.
Mr. Burr. Nothing in the implementation plan that has
suggested?
Ms. Jones. It is not all that different from the
organization that we saw as DOE.
Mr. Burr. We just call it something different. Let me ask
you on the contract evaluation because the GAO made a very
specific and I think important observation, and that was that
on any given area you could find a rating on a certain site's
performance that might be marginal 1 day and above expectations
the next day depending upon who did it and that there was a
varying degree of I guess parameters that whoever chose. And
certainly through some of the security problems that we found,
we found Glenn Podonsky doing a report that found marginal, if
not unsatisfactory ratings at the same time DOE internally in
their contract evaluations gave certain sites exceptional
ratings. Is there an opportunity for us to consolidate these
evaluations in any way that we are not currently exercising
today?
Ms. Jones. I think that is a good question. I think one
thing that we have also supported is strong line management as
well as a strong independent overseer. So from that standpoint
I think that you would want the line management to continue
what they are doing to assure security is being met and you
would still want Mr. Podonsky in his role as an overseer. What
our testimony is and our report talked about, however, is let's
look at the criteria that is underlying all of these different
evaluations and see if we can't bring that criteria closer
together.
For example, you mentioned the contract evaluation on
safeguards and securities. Basically the kinds of criteria that
we used were very quantifiable, such as the number of
corrective action plans were done on time. That doesn't really
get at are we really improving safeguard and security programs.
I know that at least at Livermore and Los Alamos they have
changed the criteria for 2000 and they are, at least for 75
percent of the safeguards and security piece of that contract
evaluation, relying on the Operations Office evaluations well
as Mr. Podonsky's office. That is not the case in other
locations.
Mr. Burr. Okay. I look over here at Dr. Burick, who is
still with us, and I think about the site that he talked about
and where they had had a safety problem, a fire, and his
admission that to solve that problem is a resource problem. We
have to build a new facility. No matter what we implement we
can't be assured of 100 percent safety. They are doing what
they can in the interim stage. And I guess the question is if
we all use the same criteria would the likelihood be that the
resources would be there sooner to solve the problem? I think
what you just said is the answer, is we stand a better chance
if we get everybody using the same criteria.
Ms. Jones. I think we stand a better chance but the point
that was made earlier too is that resources are finite and the
Department is faced with environmental issues, as Mr. Miller
has pointed out, as well as security concerns and other
problems. So I think there is a better chance, yes.
Mr. Burr. Let me just make one general statement. I think
the lab representatives that were here supported what Mr.
Podonsky's oversight role has been and would be in the future
and stated no difference. I think to some degree they differed
a little bit from their testimony. I would take their answers
to the question versus their testimony. I would think that GAO
sees what Mr. Podonsky does is an important thing to continue
based upon your evaluation.
Ms. Jones. Yes, sir, M Ms. Jones. Than
Mr. Burr. Mr. Miller, let me ask you. Forty-three State
attorney generals signed a letter. That letter basically said
they were concerned as NNSA went through about the environment,
safety, and health operations of facilities. Have you read
anything in DOE's implementation plan or heard anything in the
hearings today that alleviates your concerns?
Mr. Miller. No, sir, I have not.
Mr. Burr. Okay. Let me take this opportunity to--the Chair
would ask unanimous consent to enter a number of documents into
the record: The statement of the ranking member, Mr. Dingell,
and I think various documents that have been shared with both
the majority and minority, National Governors' Association,
National Conference of State Legislators, the State of
Washington Office of the Governor, as well as Mr. Strickland's
statement. Any objections? Hearing none, so ordered.
[The information referred to follows:]
INSERT OFFSET FOLIOS 23 TO 40 HERE
Mr. Burr. Let me take this opportunity to thank our third
panel, to thank GAO for a very thorough report for this
committee, to also thank the committee members for their
knowledge and willingness. Hopefully next week we will take
your concerns under consideration as we move forward with the
legislation as we will the concerns that were expressed by the
laboratories, by the Department of Energy, and by those who
have commented up to this point. I think it is safe to say that
the efforts of the committee, the efforts of the Department of
Energy and I think the efforts of the labs are all headed in
the same direction, and that is to make sure that the cultural
changes that have started are continued and that solutions to
the problems are not only found and eliminated but that we
don't create new ones in the future. It is my hope that we will
accomplish this great task. I thank this third panel.
This hearing is adjourned.
[Whereupon, at 1:23 p.m., the joint subcommittee was
adjourned.]
[Additional material submitted for the record follows:]
Response of the Department of Energy to Question from the Committee on
Commerce
Question 1: Do you have any objection to clarifying the
language of the NNSA in the manner set forth in H.R. 4288 so we
can be certain that in the future there will be no question
about the preservation of state enforcement and oversight
authorities9
Answer 1: On June 9, 2000 the Department of Justice
provided views to the House Armed Services Committee, which
proposed an amendment in the nature of a substitute to H.R.
4288. The Department of Energy concurs with the Department of
Justice's proposal and recommends that any legislative action
conform to the Department of Justice's proposal. Attached is a
copy of the Department of Justice's letter.
INSERT OFFSET FOLIO 41 HERE
INSERT OFFSET FOLIO 41 HERE