Copyright 2000 Federal News Service, Inc.
Federal News Service
March 22, 2000, Wednesday
SECTION: PREPARED TESTIMONY
LENGTH: 4105 words
HEADLINE:
PREPARED TESTIMONY OF MS. MAUREEN ELDREDGE PROGRAM DIRECTOR ALLIANCE FOR NUCLEAR
ACCOUNTABILITY
BEFORE THE HOUSE COMMERCE
COMMITTEE SUBCOMMITTEE ON ENERGY & POWER
SUBJECT - SAFETY AND
SECURITY AT THE DEPARTMENT OF ENERGY
BODY:
Chairman Barton, Representative Boucher, and members of the Committee,
the Alliance for Nuclear Accountability appreciates the opportunity to once
again testify on badly needed efforts to improve the environment and safety
culture at the Department of Energy (DOE).
H.R. 3383 The Alliance for
Nuclear Accountability is a national network of 32 organizations working on
nuclear weapons complex issues. H.R. 3906 For over a decade we have decried the
shoddy environmental and safety practices at DOE. This disregard for
environmental rules H.R. 3907 resulted in the widespread contamination around
the complex. We have pressed for DOE to be subject to the same environmental
Thomas Links laws and requirements as the rest of us, and we concluded that H.R.
3383 neither DOE nor any other agency could be an effective regulator of itself.
The federally appointed Advisory Committee H.R.
3906 on External
Regulation of DOE Nuclear Safety, also concluded that, "Every major aspect of
safety at DOE nuclear facilities - H.R. 3907 facility safety, worker protection,
public and environmental - protection - should be externally regulated...."(1)
We are very pleased that the committee is taking steps to address this
problem. We hope that if the entire legislative package is not possible all at
once, that at least some crucial elements will be addressed in legislation this
year. We need to move towards a more sane regulatory structure for DOE, and take
steps now to start the process. Problems with the National Nuclear Security
Agency
The passage of Title 32 of the Defense Authorization Act for
Fiscal Year 2000, which set up the National Nuclear Security Administration
(NNSA), was a disaster for environment, safety, and health programs. Rather than
move us towards better regulatory oversight of DOE's nuclear weapons program, it
shifted, either through intent or ambiguous legislative language, to a situation
that more closely resembles the bad old days of the Atomic Energy Commission,
than a modern and environmentally sound approach to operations.
I would
like to highlight two major problems with the NNSA structure. These are the
ambiguity regarding DOE's waiver of sovereign immunity and the oversight role of
the office of Environment, Safety, and Health (EH) in the new Administration.
Sovereign Immunity
The federal government faces an enormous
liability in the cleanup of the nuclear weapons complex. DOE estimates that it
has contaminated over 600 billion gallons of groundwater and over 33 million
cubic meters of soil. This contamination came from decades of abuse, in which
there was no external regulation, and DOE and its predecessor agencies claimed
that they had "sovereign immunity" from compliance with environmental laws
enforced by States. In 1992 Congress passed the Federal Facilities Compliance
Act, which originated in this committee, to clarify that DOE was, in fact,
required to comply with State enforcement and regulations.
Sections 3261
of S. 1059 includes qualifying language which casts doubt on the applicability
of the current waivers of sovereign immunity with respect to the NNSA. It
states:
The Administer shall ensure that the Administration complies
with all applicable environmental, safety, and health statues and substantive
requirements.
This qualifying language has raised concerns in State
Attorney General's offices across the country with regards to the sovereign
immunity issues, and we concur with their analysis. We urge the Congress to
amend the NNSA legislation to clarify that State regulatory authority over NNSA
remains intact, and that the waivers of sovereign immunity in place before the
creation of the NNSA also apply to it. Relying on a record of legislative intent
it not sufficient.
Price-Anderson Act Enforcement
In addition to
the sovereign immunity problem, there is serious concern with regards to the
application of EH requirements to the new Administration. A consequence of the
NNSA legislation was to effectively pull the teeth of the already weak efforts
at regulation of safety and health issues from within DOE. The Assistant
Secretary of the Office of Environment, Safety, and Health can no longer
directly issue notices of violations and impose fines under the Price- Anderson
Act for nuclear safety rule violations, to NNSA facilities. The Assistant
Secretary must develop a recommendation to submit to the Administrator of the
NNSA, who then decides upon imposing fines. This situation arises out of
language in Title 32, which prevents non-NNSA personnel from directing NNSA
personnel. (2) This is self-regulation at its worse, as even the limited
independent enforcement authority within DOE is eliminated. The line program,
the very program that has committed the violation, will be asked to fine itself.
Only continual pressure from the outside, including media and public interest
groups, will ensure enforcement. Nuclear safety enforcement by continual scandal
is not effective. This is a massive step backwards and must be corrected.
In addition, several of the labs have already indicated that they no
longer feel they must comply with EH rules and requirements, despite DOE's
"duel-hatting" of the Assistant Secretary for EH. We believe it was the intent
of the drafters of this legislation to ensure the autonomy of the NNSA. However,
we strongly oppose the idea of recreating a new office of EH within the NNSA,
which would be at a lower status and report to the Administrator instead of to
the Secretary of Energy. There is already a problem with DOE being self-
regulated, subsuming the EH functions within the NNSA would further compound
this problem. There is one clear solution - the Office of Environment, Safety,
and Health should have authority over all parts of DOE, including the NNSA.
The solutions to the EH problems that have been offered to date are not
enough. Exhortations in the legislation to "ensure that all operations and
activities of the Administration are consistent with the principles of
protecting the environment and safeguarding the safety and health of the public
and of the workforce (Section 3211(c))", provide no guarantee of compliance with
regulations and orders. Legislating Secretarial authority to delegate is not
sufficient. Such an action still leaves the crucial environment, safety, and
health compliance of the entire agency up to the decision of one person, who may
or may not be in place for very long. These issues are too important to leave in
such an uncertain state, dependent on the will of one person.
We urge
you to pass amending legislation that clarifies that the Office of Environment,
Safety, and Health's has full authority over the NNSA with regards to
environment, safety, and health oversight and enforcement, and that the
Price-Anderson Act enforcement program is fully enforceable by EH on NNSA
facilities.
Problems Exist Throughout the Department
Even before
the NNSA came into being there were, and there remain, serious problems in the
weapons complex which result in injuries to workers and contamination of the
environment, seemingly beyond the ability of DOE to correct. Since I last
testified on this subject, the list of accidents and violations has continued
unabated. Just last week five workers at the Los Alamos lab in New Mexico were
exposed to airborne, particulate plutonium, a known carcinogen. On Monday the
Boulder, Colorado, newspaper reported that Rocky Flats workers and managers
violated safety procedures, which increased the risk of nuclear explosions
(criticalities).(3) On March 8th, DOE levied $110,000 in fines
against Westinghouse Savannah River for recurring violations of safety
procedures on equipment design, construction, and installation. In December of
1999, there was an explosion at the Y-12 plant at Oak Ridge, which injured 11
workers. Not only did DOE find that there were "failures at every level of
....(the) management chain", but it also determined that injuries could have
been lessened had proper protective equipment been available for the
personnel.(4) In April of 1999, Lockheed Martin, DOE, and Fluor Daniel were all
fined at the Hanford site for inadequate monitoring of high level waste tanks.
Finally, on March 6, DOE publicly announced what site managers had known for
over 9 months - that the Ogallala aquifer was contaminated with
tri-chloroethylene from the burning grounds at Pantex.
The list of
violations in just one year could fill a textbook. The frequency and severity of
some of these accidents continues to astound me. After over 50 years of nuclear
weapons work, DOE and its contractors still fail to realize that they are
dealing with some of the most dangerous materials on earth, and treat safety
procedures as optional.
The case for external regulation of DOE has been
built over 50 years, and at this point seems, to the general member of the
public, beyond obvious. It cannot be stated more bluntly: DOE cannot regulate
itself. The record of such self-regulation is astounding in its failure.
Political obstacles have prevented the common-sense move towards external
regulation for decades, and we see them developing again in this Congress. We
sincerely hope that this committee will not fall prey to partisan disputes, and
can overcome the political roadblocks to this much-needed reform. We ask, how
many more accidents, injured workers, and contaminated groundwater is needed
before this effort can move forward?
Critique of HR 3907 and Specific
Concerns
In general, the Alliance for Nuclear Accountability greatly
supports the concept of HR 3907 in moving DOE into external regulation. In 1995,
the independent advisory committee recommended that DOE be externally regulated,
and supported OSHA as the regulator for worker safety. However, it did not reach
consensus on who the regulator should be for nuclear safety. Unfortunately, with
regards to nuclear safety and regulatory enforcement, neither can we.
Occupational Safety and Health Administration
At a minimum, the
Occupational Safety and Health Administration (OSHA) should be brought in as the
regulator for all protection of workers, with the caveat that it needs
sufficient resources - both funding and personnel, to do the job right. It is
close to criminal that there is little enforcement system for the worker safety
rules at DOE that are not nuclear safety rules, but are equally vital. These
include the new beryllium rule, which is intended to protect workers from
berylliosis, a crippling lung disease, or protection from the many chemical
hazards that exist at DOE facilities. OSHA has the statutory authority to
enforce these rules, however DOE exercises its exemption under 4 (b)(1) of the
Occupational Safety and Health (OSH) Act. This exemption was intended to allow
agencies to enforce the rules themselves. Given DOE's abysmal record of this,
combined with the new NNSA's reluctance to take orders from anyone, it is time
to remove this exemption for DOE and return OSHA's authority.
However,
to do this requires both time and money. It is not sufficient to say that OSHA
will regulate a facility, and then have the nearest OSHA office be hundreds of
miles away, with an extremely limited capacity for effective oversight. DOE will
require sufficient resources to come into compliance. A time frame must be
developed for transitioning to OSHA regulation and for bringing DOE into
compliance. An effective time frame should be on the order of two years, with
sufficient incentives for DOE to actually begin work on compliance now.
Nuclear Regulatory Commission
For regulation of facility safety,
we are concerned about the Nuclear Regulatory Commission (NRC) as the choice of
regulator. Faced with the choice of DOE or NRC as a regulator is a bit like
being faced with death by hanging or death by firing squad. Neither is
particularly attractive and shifting responsibility from one dubious entity to
another is not much of a solution. The 1995 Advisory Committee recommended
looking at either NRC or the Defense Nuclear Facilities Safety Board (DNFSB).
Both of these entities have problems and would need some major structural
changes to be acceptable.
NRC has shown a remarkable ability to push
nuclear industry interests at the expense of public health. It proposed a "below
regulatory concern" (BRC) category for nuclear waste, which would allow such
waste to be treated as if it were not nuclear. Only strong opposition from the
public prevented this step, but NRC generally still supports it. Given the
ongoing trend in radiation standard setting, which finds that previous standards
were not stringent enough, this position is alarming. NRC has licensed uranium
mines in New Mexico even while acknowledging that the result of the mining
operation would be contamination of the sole drinking water supply for 15,000
people, mostly Native Americans. Currently NRC is shifting to "risk-informed"
regulation, which 60% of its own staff believes will reduce the margins of
safety at nuclear power plants. It is also trying to shift to informal
rulemaking, which will reduce the public's access to information and ability to
intervene in the process.
For our network of 32 organizations, NRC is
not the "white hat" that will come in to save the day at DOE. However, that does
not mean that we support giving up on the effort to find an external regulator.
We should move forward, begin phasing in external regulation under OSHA, and
develop tools to evaluate the performance of both NRC and the Defense Nuclear
Facilities Safety Board (DNFSB) as possible regulators. External regulation will
not come overnight, but the challenges we face should not dissuade us from doing
what is right. Both NRC and DNFSB would need some changes to its operations to
be acceptable as a regulator. The DNFSB would need to curtail its activities to
safety issues, rather than commenting on equipment choices and preferred
technology issues, which are unrelated to safety. NRC would need to be subject
to citizen suit provisions and operate from a basis that emphasizes public and
worker safety, rather than growth of the nuclear industry. Exploration of both
options for a regulator should continue, with an eye towards reforms.
Recommendations
The Alliance for Nuclear Accountability urges
the committee to move forward now on a number of actions that may not be the
complete legislative package that we all want, but will be important steps in
the right direction.
Legislative Changes
I. Institute OSHA
Regulation for all Worker Safety Requirements
Currently, even within the
non-NNSA parts of DOE, compliance with EH requirements in areas other than
nuclear safety, such as OSHA requirements, chemical safety rules, and the new
beryllium rule, is entirely voluntary. There are no penalty provisions for these
rules, as exist for nuclear safety rules under the Price-Anderson Act. This is
absolutely unacceptable. If the legislative challenges facing HR 3907 prove too
steep, we urge the committee to excerpt section 4 as an amendment on its own.
Some modifications include providing for baseline reviews of DOE compliance and
a two-year time frame to move into OSHA enforcement. There is precedent for this
in the transfer of enforcement authority to EPA for CERCLA and RCRA programs in
1985. In addition, the OSH Act has authority for radiological hazards already,
and could be to cover combined radiological and non-radiological hazards in the
absence of a second external regulator.
II. Amend the Atomic Energy Act
to Harmonize it with Other Environmental Statutes.
The lack of citizen
suit provisions in the AEA eliminates one of the most effective tools available
to States and the public for ensuring agency accountability.
The 1995
Advisory Committee on External Regulation recommended that citizens be allowed
to sue DOE and its contractors to comply with applicable statutes and
regulations. We recommend that the citizen suit provision also be extended to
the NRC. The ability of citizens and States to bring suit under the Clean Water
Act and other statutes has been responsible for ensuring much of the compliance
within agencies and corporations we see today (example of State suing,
particularly Texas?). It allows states to enforce regulations and protect its
citizens by challenging the regulators when it sees the need. Setting up the
same type of citizen suit provisions on the NRC would go a long way towards
making it a more acceptable and accountable regulator.
Within DOE, the
problem is even worse. Not only are there no citizen suit provisions with
regards to DOE orders, many of those orders are not even enforceable under DOE's
own rulemaking procedures. In fact, DOE hasn't even issued all the safety rules
that would provide additional enforcement authority under Price-Anderson. It has
finalized only two of the 11 rules it said it needed, and USA Today on March 20
explores the possibility that industry pressure has prevented the rules from
proceeding.(5) Until DOE is externally regulated, one positive step that can be
taken now would be to require DOE to issue all orders pursuant to the
Administrative Procedures Act notice and comment. This would allow citizen suits
to proceed under the requirement that the agency must follow its own orders.
This would not address the issue of making contractors more accountable, as they
would not be subject to citizen suits under this law. However, even this small
step forward would be welcome.
B. Administrative Changes
A.
Require DOE to Meet OSHA Reporting Standards.
At OSHA, one can log onto
a web site and see a list of violations at a facility, and their ultimate
disposition. OSHA also requires a log of on the job injuries and illnesses.
There is no reason this can't happen at DOE. Already DOE has the Operation
Reporting Program System (ORPS), in which incidents and events are shared with
DOE for significant safety and health items. In addition it has the Computerized
Accident and Incident Reporting System (CAIRS), which is similar to the OSHA log
of on the job injuries and illnesses. I have included with my testimony a copy
of the OSHA web site page, and the results of a search for accidents involving
trichloroethylene. OSHA provides the ability to search by a variety of terms,
and lists all accidents that match, as well as providing detailed information
about the accident and fines imposed.(6) By contrast, most DOE sites do not
provide easy public access to its ORPS reports. Only at the Los Alamos National
Lab (LANL), due to the persistence of determined individuals, are ORPS reports
posted on a database, and even that is not easy to find on their web site unless
you know it is there. It is buried six screens deep under Environment, Safety,
and Health "services" rather than in the "databases" section. Information from
the CAIRS reports, which is relevant to OSHA, is not available to the public.
Other accident and incident data exists in databases that are not only closed to
the public, but closed to many workers as well.(7) The basic infrastructure is
in place for DOE to report accidents, which could easily be converted to
OSHA-style reports and open to public access. This is important information for
both the public and the workforce, and should be made available as a tool to
further contractor and agency accountability. It would not require a legislative
change to make this happen, just a decision by DOE to be more open about its
mistakes.
B. Clarify and Invest the Environmental Protection Agency with
Standard Setting Authority
Protracted fighting between EPA and NRC over
standard setting for nuclear issues, such as Yucca Mountain,
and reactor decommissioning, have resulted in few, inconsistent, standards. This
is untenable. EPA is the agency charged with protecting public health and the
environment, and should be given the sole responsibility for standard setting.
While we are often not happy with EPA's standards, and consider them too weak,
they are a far cry from NRC. For example, NRC's standard for exposure to the
general public would result in a lifetime risk of premature cancer death of one
out of every 300 people(8). That is shocking and shameful. The nuclear industry
should be subject to the same standards and risk levels as other industries, and
EPA should be the regulator in that regard.
C. Set Up Limited NRC
Regulation as a Test
There are several possible activities within DOE
sites that could be considered as test cases for NRC regulation and licensing,
beyond the pilot projects already conducted. These include the Low Level Waste
Dumps at DOE sites, and possibly reactors like the Fast Flux Test Facility
(FFTF) at the Hanford site. Currently, DOE's LLW landfills do not even approach
NRC's standards, and are a clear threat to the groundwater at many sites. There
are already a clear set of standards and infrastructure in place, including
delegated state programs. Finally, many of DOE's LLW dumps are de facto illegal
hazardous waste/Resource Conservation and Recovery Act (RCRA) dumps, due to
DOE's inability to properly track and characterize its waste. If the FFTF were
restarted, it should be licensed and regulated by NRC, and meet modern safety
standards. Specific facilities at DOE should be reviewed and considered for NRC
regulation. However, NRC should be prevented from going to informal rulemaking
that could subvert the intent of better, more accountable, regulation.
Conclusion
In conclusion, the Alliance for Nuclear
Accountability strongly urges the committee to move forward with at least some
parts of an external regulation program for DOE as soon as possible. The
creation of the National Nuclear Security Administration has resulted in a
number of problems for the protection of the environment, worker safety, and
public health. These can be partially addressed by legislative remedies and
amendments to the NNSA act. Fundamentally, DOE or NNSA as self-regulated
entities cannot persist without seriously compromising safety and health. After
50 years of environmental and safety disasters, it is time to bring DOE into the
future.
Addendum:
The Committee asked for input on two other
bills, HR 3383 and HR 3906. With regards to HR 3383, we strongly endorse this
bill and urge you to proceed with it without delay. It strains credulity that
the sole enforcement mechanism available to DOE for nuclear safety violations
cannot be used against the University of California (UC), one of the largest
contractors in the weapons complex. UC has the contracts for the weapons
laboratories, which are the source of many serious accidents and will be the
source of many future problems. These labs are in ongoing operations with some
of the most hazardous material known to humanity. They are now subject to fines
and penalties for security program violations. Surely the protection of the
American public and nuclear workers from radiation hazards deserves as much.
We have no opinion on HR 3906 at this time.
Appendix 1 - OSHA
Searchable Database for Accidents
1 Advisory Committee on External
Regulation. Improving Regulation of Safety at DOE Nuclear Facilities, December
1995.
2 Section 3213 (a) STATUS OF ADMINISTRATION PERSONNEL. --Each
officer or employee of the Administration, in carrying out any function of the
Administration--
(2) shall not be responsible to, or subject to the
authority, direction, or control of, any other officer, employee, or agent of
the Department of Energy.
(b) STATUS OF CONTRACTOR PERSONNEL. --Each
officer or employee of a contractor of the Administration, in carrying out any
function of the Administration, shall not be responsible to, or subject to the
authority, direction, or control of, any officer, employee, or agent of the
Department of Energy who is not an employee of the Administration, except for
the Secretary of Energy consistent with section 202(c)(3) of the Department of
Energy Organization Act.
3 Katy Human. Reports: Flats Broke Safety
Rules. Boulder Daily Camera, March 20, 2000.
4 Dr. David Michaels,
Assistant Secretary for Environment, Safety, and Health. DOE News Release,
February 24, 2000.
5 Peter Eisler. Safety Over a Barrel. USA Today,
March 20, 2000.
6 To conduct an accident search, go to
http://www.osha.gov/oshstats/ and click on Accident Investigation Search.
7 To access LANL's ORPS reports, go to http://drambuie.lanl.gov/.
esh7/Finals/. LANL's homepage is www.lanl.gov.
8 GAO. Nuclear
Health and Safety: Consensus on Acceptable Radiation Risk to the Public is
Lacking. GAO/RCED-94-190. September 1994.
END
LOAD-DATE: March 28, 2000 
