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Critics Look to Administration, Senate to Quash NNSA Reform Legislation

By Douglas P. Guarino

Global Security Newswire

The National Ignition Facility at the U.S National Nuclear Security Administration's Lawrence Livermore National Laboratory in California. Democratic lawmakers and others oppose House legislation that would shift some facility policy and oversight duties from the Energy Department to its semiautonomous nuclear agency (U.S National Nuclear Security Administration photo).
The National Ignition Facility at the U.S National Nuclear Security Administration's Lawrence Livermore National Laboratory in California. Democratic lawmakers and others oppose House legislation that would shift some facility policy and oversight duties from the Energy Department to its semiautonomous nuclear agency (U.S National Nuclear Security Administration photo).

WASHINGTON – Labor groups, a federal advisory board and House Democrats are looking to the Obama administration and the Senate to quash House-approved legislation they say could significantly undermine the safety and security of U.S. nuclear weapons laboratories, potentially making them vulnerable to terrorist attacks (see GSN, June 28).

The House approved its version of the National Defense Authorization Act for fiscal 2013 in May. The bill would make several changes affecting how the National Nuclear Security Administration – a semiautonomous agency of the U.S. Energy Department – oversees sites in New Mexico, California and elsewhere that perform key nuclear arms research and production operations.

In one major change, the Energy Department would lose its ability “to make policy, prescribe regulations, and conduct oversight of health, safety, and security in the nuclear security enterprise.” These authorities would shift to the NNSA administrator, who under the bill could create new rules, so long as they are consistent with what critics say are less-stringent regulations established by the U.S. Occupational Safety and Health Administration.

The Energy Department, meanwhile, could only object to an NNSA policy or rule if the Energy secretary submits justification to the congressional Armed Services committees “and a period of 15 days has elapsed since such justification was submitted.”

These changes would “strengthen the autonomy” of the agency, the Republican-controlled House Armed Services Committee’s report on the bill says. Panel members, led by Strategic Forces Subcommittee Chairman Michael Turner (R-Ohio), have said DOE regulation and oversight of the nuclear weapons facilities is too onerous, and is to blame for delays and cost overruns associated with various NNSA projects.

“Not one life-extension program is on track,” Turner, who has complained about delays to various warhead refurbishment and replacement projects, said at a hearing last month. Turner and other GOP lawmakers have also been critical of postponed plans to build along with postponed plans to construct the Chemistry and Metallurgy Research Replacement plutonium facility at the Los Alamos National Laboratory in New Mexico.

Several labor groups and the Defense Nuclear Facilities Safety Board, which oversees safety and security at the nuclear weapons facilities, have raised strong objections to the legislation, however. The White House also rejected it in a statement of administration policy issued prior to the bill reaching the House floor.

Roxanne Brown, assistant legislative director for the United Steelworkers, told Global Security Newswire she was encouraged by the Obama administration’s opposition to the legislation, and by the fact that the Senate did not include similar provisions in its version of the defense bill. “I think that helps us going into the legislative process but we’ll see what happens,” she said.

The White House statement declares the Obama administration “strongly opposes” the legislation. “By lowering health and safety standards for the nuclear weapons complex and reducing requested funding for health, safety, and security, these provisions would weaken protections for workers and the general public,” the statement says.

Brown noted that labor groups backed an amendment to the bill that Representative George Miller (D-Calif.) attempted to offer on the House floor that would have stripped the controversial language entirely. The House Rules Committee did not permit debate on the measure.

The Steelworkers concerns are outlined in a May 8 letter in which they ask Senate Armed Services Committee Chairman Carl Levin (D-Mich.) to reject the House legislation, which the group said “effectively eliminates the current DOE specific health and safety standards that provide the means for protections to be implemented at these facilities and also removes the enforcement mechanisms that are vital to ensure worker and public safety…

In a May 16 letter to Levin, the National Council of Security Police said its “concern goes beyond the issues of worker safety expressed by the representatives of … other unions.” The group, which represents members of the guard forces that protect the nuclear weapons sites, said the legislation “is likely to damage security as well as safety…

By removing the Energy Department’s ability to set policy and cutting NNSA administrative staff, the bill “cripples the ability of [the DOE Health, Safety and Security Office] to positively influence security in the nuclear weapons complex and it also drastically cuts the ability of the NNSA administrator’s security staff to manage how the site operations contractors implement security…

 “The [House Armed Services Committee] describes what these groups do as federal micromanagement, but we don’t see it that way,” the letter by the police group continues. “We see their role as ensuring that security isn’t compromised by the shortsightedness of the operations contractors, who under the [House] bill would apparently be empowered to call most of the shots.”

The letter warns that “terrorists would like to attack what we protect,” and suggests that such changes could make it easier for them to do so.

A spokesman for the Senate Armed Services Committee did not comment on the letters.

The nonpartisan Government Accountability Office has also expressed reservations about changing the oversight mechanism at the weapons laboratories. While he declined to comment on the House legislation specifically, Eugene Aloise, GAO natural resources and environment director, told GSN that limiting the Energy Department’s ability to conduct independent oversight of the NNSA sites “just doesn’t make sense.”

Between 2000 and 2007 there were more 50 security violations at the facilities, “35 of which severely impacted our national security,” Aloise said, referring to a period that included a 2006 incident in which a Los Alamos employee removed more than 1,000 pages of classified documents from the facility, among other incidents (see GSN, July 16, 2007).

“Now things seem to be quiet,” Aloise said.

As it is, Aloise said he is concerned the Energy Department’s health and safety office is not independent enough to adequately oversee the NNSA laboratories, and suggested that a hypothetical third entity entirely separate from the department would be a better solution. Having the nuclear agency regulate itself would only make matters worse, he said.

Others, however, back the House legislation, saying they agree that overly onerous oversight practices are today stifling the work of the NNSA laboratories.

“I believe legislation can improve this situation and H.R. 4310 is clearly designed and intended toward this end,” Robert Kuckuck, who served as NNSA principal deputy administrator and director of the Los Alamos National Laboratory during the Bush years, said in written testimony to the House Armed Services Committee last month.

Kuchuck even suggested that the legislation may not go far enough.

“I personally believe that complete separation of NNSA from the DOE may indeed be necessary,” Kuckuck said. “The experience of the NNSA-DOE relationship to date would indicate that ‘semiautonomy’ might be a bridge too far.”

The labor unions see it differently.

In a May 8 letter to the House committee, the American Federation of Labor and Congress of Industrial Organizations cited DOE rules governing the use of beryllium – a toxic metal used to make nuclear weapon components -- as an example of the type of regulations specific to the unique conditions at nuclear laboratories that would be negated by the bill. OSHA regulations allow workers to be exposed to 10 times more beryllium than DOE rules crafted specifically for conditions at the weapons sites, according to the message.

 “DOE weapon facilities have a long history of radioactive and toxic waste contamination and worker exposures that have resulted in thousands of cases of cancer and beryllium disease,” the AFL-CIO letter says, warning against relaxing the existing rules.

The Steelworkers, in their letter, cite DOE Order 851, “which requires [nuclear weapons] sites to have defined, proactive safety and health programs” as an example of another regulation that would be overturned by the legislation. “There is no equivalent OSHA rule,” the letter says, adding that while the Energy Department can order a contractor to immediately correct a hazard, “OSHA can do so only in the most extreme cases.”

Claude Chafin, a spokesman for the House Armed Services Committee, said the panel “has addressed a number of union concerns, including OSHA safety standards and beryllium safety standards.”

Under the legislation, the NNSA administrator would, in limited circumstances, be permitted to establish regulations stricter than OSHA rules. In those cases, the agency would be required to “submit an annual certification to the congressional defense committees regarding why … waivers [of the OSHA restriction] are required.” In the case of operations involving beryllium, the NNSA administrator would be required to set rules that are more stringent than OSHA regulations.

A House Democratic staffer opposed to the legislation said, however, that these provisions do not adequately address the concerns critics have raised because they do not explicitly preserve the existing DOE rules for beryllium and other high hazard operations. The longstanding DOE regulations were carefully crafted to account for conditions unique to the nuclear weapons sites after the department provided opportunity for affected groups to comment, argued the source, who was not authorized to discuss the matter publicly and requested anonymity.

David Mallino, a consultant for the AFL-CIO Building and Construction Trades Department, added that while the DOE rules carry long-established enforcement mechanisms, such as stiff fines. The House legislation does not adequately specify how NNSA would enforce its new oversight authority, Mallino said. “Standards are only as good as the enforcement mechanism.”

The House authorization bill also calls for a change to how NNSA contractors are governed. The legislation would replace the current, transaction-based system of oversight – under which the government sets detailed requirements for a given contract along with a system to gauge compliance with those mandates – with a performance-based system of oversight – under which the contractors have more leeway in deciding how to conduct their work but can have their payment reduced if there are problems, such as safety or security breaches.

The House Armed Services Committee argued for this change in part by pointing to a February report by a National Academies of Science committee, which it said shows that the detailed, transaction-based oversight system is overly burdensome and is causing significant inefficiencies.

In a recent exchange of letters with the Defense Nuclear Facilities Safety Board, however, Charles Shank, co-chairman of the NAS committee, said the report was not intended to address safety at NNSA’s high-hazard nuclear weapons productions facilities, however. Shank did not specify in the exchange to what facilities the report was applicable.

Shank was responding to the concerns of DNFSB Chairman Peter Winokur, who along with the other members of the oversight panel are opposed to the proposed legislative changes. In a seperate May 10 letter to Senator Ben Nelson (D-Neb.), the board members said the performance-based oversight the House bill calls for “is inappropriate to ensure the safety of complex, high-hazard nuclear operations at defense nuclear facilities…

“For these activities, anything other than transactional oversight is irresponsible and will jeopardize the NNSA mission,” the DNFSB members added. “An effective nuclear safety oversight program involving complex, high-hazard nuclear operations must be relied on to identify and mitigate potential vulnerabilities before serious injury occurs, which requires detailed transactional oversight. The government cannot delegate its responsibility to ensure public and worker safety to its contractors.”

The DNFSB letter also raised concerns with other aspects of the legislation, including those that would require the board to assess costs, benefits and economic feasibility of any safety recommendations that it makes. “This provision would seem to run afoul of judicial decisions holding that a decision on whether adequate protection exists under the Atomic Energy Act cannot be tied to potential costs of safety improvements needed to meet the standard,” the board said, citing decisions by the U.S. Court of Appeals for the District of Columbia Circuit in the case Union of Concerned Scientists v. U.S Nuclear Regulatory Commission in 1987 and 1989.

The Defense Nuclear Facilities Safety Board members also criticized a provision of the bill that would require them to submit draft safety recommendations for DOE review prior to the measures being released publically. “Providing [DOE] an opportunity to influence the content of a recommendation prior to its issuance, in a manner invisible to the public, runs directly contrary to the notion of independence,” the letter says.

In general, the changes proposed in the legislation, “would amount to Congress concluding that NNSA does not need independent oversight,” the DNFSB members said.

Kuckuck, the Bush-era NNSA deputy administrator, praised the committee regarding the portion of the legislation aimed at reforming the safety board.

“I applaud your legislative efforts in attempting to introduce a more consultative nature to the ‘advisory’ function that the DNFSB provides to the DOD/NNSA,” Kunchuck wrote in his testimony. “While I remain somewhat skeptical of substantive success in this challenge, any progress toward improvement of the balance between risk and mission in this function would be an important step.”

Kuchuck said that the safety board, along with DOE and NNSA overseers, had created a “culture of extreme risk aversion, with its consequent monetary and intellectual restraint costs evident throughout” the national laboratories.

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