Department of Energy
Observations on Externally Regulating Nuclear and Worker Safety in DOE's Science Laboratories Gao ID: GAO-02-974T July 25, 2002This testimony discusses the Department of Energy's (DOE) plan for external regulation of nuclear and worker safety at its facilities. DOE's position remains essentially unchanged since the 1999 congressional hearing, when the department decided not to move forward on external regulation until cost uncertainties and implementation issues were resolved. Past regulatory simulations and ongoing work by DOE and its potential regulators indicate that the external regulation of the science laboratories would not require prohibitively expensive facility upgrades to be licensable. Further, much of the expected "costs" would likely involve bringing facilities into compliance with DOE's own safety standards. DOE's response to the conference report directive is not a detailed implementation plan. Rather, it is a restatement of its previously stated call for further cost and benefit analyses before making a final decision on accepting external regulation.
GAO-02-974T, Department of Energy: Observations on Externally Regulating Nuclear and Worker Safety in DOE's Science Laboratories
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United States General Accounting Office:
GAO:
Testimony:
Before the Subcommittee on Energy, Committee on Science, House of
Representatives:
For Release on Delivery:
Expected at 10:00 a.m., EDT:
Thursday, July 25, 2002:
Department Of Energy:
Observations on Externally Regulating Nuclear and Worker Safety in
DOE‘s Science Laboratories:
Statement by (Ms.) Gary L. Jones, Director:
Natural Resources and Environment:
GAO-02-974T:
Mr. Chairman and Members of the Subcommittee:
We are pleased to be here today to testify on the status of the
Department of Energy‘s (DOE) plan for external regulation of nuclear
and worker safety at its facilities. Unlike other governmental,
educational, and private sector research and development facilities in
the United States, DOE‘s science laboratories are not regulated or
licensed by external regulators, such as the Nuclear Regulatory
Commission (NRC) or the Occupational Safety and Health Administration
(OSHA), to help ensure safe operations. Instead, DOE and its
predecessor agencies [Footnote 1] have, since 1946, been granted
legislative authority to self-regulate nuclear and worker safety at all
of their facilities, including the science laboratories. The merits of
using external agencies to oversee safety in DOE facilities have been
studied by the department and the Congress for nearly a decade. In
1999, we testified before this Subcommittee that DOE‘s changing
positions and its inability to reach consensus with its likely
regulators had left an uncertain future for the external regulation of
the department‘s facilities. In this context, the conference report
accompanying the Energy and Water Development Appropriations Act for
Fiscal Year 2002 directed DOE to prepare an implementation plan for
shifting regulatory responsibilities for nuclear and worker safety at
its 10 science laboratories to NRC and OSHA. [Footnote 2] DOE submitted
its plan in July 2002. [Footnote 3]
Our testimony today will cover (1) current stakeholder positions on
external regulation, (2) the potential costs and benefits of
eliminating DOE self-regulation, and (3) our preliminary assessment of
DOE‘s implementation plan. Our statement is based on our June 2002
report for the House Committee on Appropriations, [Footnote 4] and an
initial review of DOE‘s July implementation plan.
In summary, Mr. Chairman, DOE has yet to accept the shift to external
regulation of nuclear and worker safety at its facilities. DOE‘s
position remains essentially unchanged since the 1999 congressional
hearing, when the department decided not to move forward on external
regulation until cost uncertainties and implementation issues were
resolved. In contrast to DOE‘s position, both NRC and OSHA continue
their prior willingness to take on new responsibilities if they are
given adequate resources to do so. In addition, the laboratory
contractors that we spoke with”representing most of DOE‘s science
work”were unanimous in their support for external regulation as long as
the department reduces its current level of safety oversight once NRC
and OSHA assume these responsibilities.
Past regulatory simulations and ongoing work by DOE and its potential
regulators indicate that the external regulation of the science
laboratories would not require prohibitively expensive facility
upgrades to be licensable. Further, much of the expected ’costs“ would
likely involve bringing facilities into compliance with DOE‘s own
safety standards. The likely benefits of external regulation have been
widely reported but are less tangible. They include eliminating DOE‘s
inherent conflict of interest in regulating itself, subsequent gains in
public trust, and longer term safety gains. In addition, laboratory
contractors told us that shifting away from DOE safety regulation could
help them improve operational efficiency by reducing their environment,
safety, and health (ES&H) staffs.
DOE‘s response to the conference report directive is not a detailed
implementation plan. Rather, it is a restatement of its previously
stated call for further cost and benefit analyses before making a final
decision on accepting external regulation. The conference report
directive did not seek this determination. The DOE response also does
not provide other information specifically requested in the directive,
including reductions in funding and staffing at the department as a
result of external regulation, and changes in statutory language
necessary to make the transition to external regulation. Rather, it
describes the issues that DOE believes must be addressed in order to
consider external regulation at the 10 science laboratories. In our
opinion, DOE has sufficient information and has had ample time to move
forward with the external regulation of its science laboratories. Since
growing evidence suggests that NRC and OSHA have the capability to
oversee DOE‘s science laboratories more effectively and at less cost
than DOE‘s internal staff, moving away from self-regulation could
potentially provide the department and its contractors with
opportunities to free up staff resources for more science mission work.
This would only be true if budgets were held constant; an assumption
that is not certain.
Background:
DOE initially recognized the need for external safety regulation in
1993, when Secretary Hazel O‘Leary announced that the department would
seek external regulation for worker safety. In 1994, legislation was
proposed and hearings held on externally regulating nuclear safety at
DOE facilities. Although no legislation was enacted, DOE responded by
creating advisory groups to help formulate its policies and implement
plans to eliminate self-regulation of nuclear and worker safety in all
of its facilities. To achieve this goal, in 1996, DOE endorsed
recommendations to phase out its self-regulation practices over a 10-
year period. In late 1997, however, DOE took a more cautious approach
when Secretary Federico Peņa embarked on a 2-year pilot program to
simulate regulation by NRC and OSHA at selected facilities. [Footnote
5] Among other themes, these simulations were developed to test
regulatory approaches and determine the cost of moving to external
regulation. Despite NRC and OSHA conclusions from these pilots that
externally regulating DOE‘s science laboratories was achievable,
Secretary Bill Richardson decided not to pursue external regulation,
citing cost and other regulatory uncertainties. In this context, we
reported in 1998 (and again in congressional testimony in 1999 and
2000) that DOE did not have a clear strategy on external regulation.
[Footnote 6] In a subsequent overview report on DOE, we recommended
eliminating self-regulation, among other necessary actions, to help
improve the accountability of the department. [Footnote 7]
Stakeholder Positions Have Remained Unchanged Since 1999:
The positions of DOE and its potential regulators”NRC and OSHA”are
essentially unchanged since the 1999 congressional hearing on the
results of simulated inspections at several DOE facilities. [Footnote
8] As we reported in June 2002, DOE officials told us that (1) the
department‘s current position on external regulation is ’neutral“
because the Secretary has insufficient information on which to base a
decision, (2) another study is needed to develop data on the costs of
moving to and operating under external regulation, and (3) only after
this additional study is completed will a decision be made on whether
to accept external regulation, followed by more time to prepare an
implementation plan.
On the other hand, NRC and OSHA reported to DOE that they are
prepared to begin regulating the department‘s 10 science laboratories
now, given adequate resources to do so. The two safety regulators are
familiar with most of the facilities they would regulate and are
already regulating parts of DOE where the Congress has given them
specific authority. The laboratory contractors that we spoke
with”representing most of DOE‘s science work”were unanimous in their
support for external regulation as long as DOE reduces its current
level of nuclear and worker safety oversight once NRC and OSHA assume
these responsibilities.
Moving to External Regulation Would Likely Be Cost Effective:
Data from past regulatory simulations, and ongoing work by DOE, NRC
and OSHA, show that shifting to the external regulation of science
laboratories would not be prohibitively expensive and would have many
benefits. The cost of upgrading DOE facilities to meet regulator
standards is not certain, but may not be significant for a variety of
reasons: (1) NRC concluded from its simulations that few, if any,
changes to DOE facilities are needed to meet NRC‘s licensing
requirements; (2) NRC stated that it would be flexible in applying its
standards to DOE‘s unique facilities without compromising safety; and
(3) OSHA concluded from its simulations that DOE deficiencies are
similar to levels found in the private-sector. (DOE has already adopted
OSHA-like standards at its facilities.) In addition, we believe that
much of the cost to upgrade DOE‘s facilities would likely be for
bringing those facilities into compliance with the department‘s own
requirements. NRC‘s and OSHA‘s estimates of personnel costs to regulate
the 10 science laboratories are potentially less than DOE‘s
expenditures to regulate itself.
The potential benefits of external regulation have been widely
reported. A 1996 DOE task force concluded that externally regulating
DOE facilities would improve safety, eliminate the conflict of interest
inherent in self-regulation, achieve consistency with current domestic
and international safety management practices, and gain credibility and
public trust. [Footnote 9]
Potential cost-saving benefits were also noted. For example, the task
force found that seven large contractors regulated by NRC and OSHA
employed substantially fewer staff dedicated to ES&H oversight than did
DOE facilities. More recently, DOE‘s major science laboratory
contractors told us that they could reduce their ES&H staff by up to 30
percent if DOE relinquished its oversight to external regulators. DOE‘s
largest science contractor, Battelle Memorial Institute, [Footnote 10]
reported that it spends one-half to one-third less (as a percent of
total costs) on ES&H in its externally regulated private sector
laboratories. [Footnote 11] DOE found similar results in a recent study
comparing the management of its Lawrence Berkeley National Laboratory
with two other federal agencies that use externally regulated
contractors to manage their laboratories”the National Atmospheric and
Space Administration‘s (NASA) Jet Propulsion Laboratory and the
National Science Foundation‘s (NSF) National Center for Atmospheric
Research. [Footnote 12] Contractors operating these laboratories had
a smaller ratio of ES&H staff to total workers than did DOE‘s Berkeley
laboratory contractor. In addition, with the presence of external
regulators, NASA and NSF were able to rely on far fewer staff to oversee
ES&H responsibilities at their laboratories. For example, while there
was only 1 ES&H staffer out of 23 NASA site office personnel at its Jet
Propulsion Laboratory, there were 5 dedicated ES&H personnel out of 15
at DOE‘s Berkeley site office. [Footnote 13] On average, we found that
DOE dedicated about 30 percent of its site office staff to ES&H
oversight, not including technical staff at the operations offices and
several offices at headquarters.
We found additional support for the benefits of external regulation by
looking at comparable government-owned, contractor-operated science
laboratories in foreign countries. Government and laboratory officials
from Belgium, France, Switzerland, and the United Kingdom told us that
external regulation is valuable and necessary to ensure safety and
public credibility. None of these countries allow their government
agencies to self-regulate nuclear and worker safety in civilian
research facilities. Two countries, France and the United Kingdom, also
use external regulators to oversee parts of their nuclear defense
research and development establishment. The United Kingdom, after
transferring its two nuclear defense research facilities to private
sector contractors, shifted much of the oversight of the facilities to
external safety regulators within a 2-year period. British officials
told us that the shift to external regulation not only increased safety
and improved public credibility but also allowed workers greater
freedom to voice their safety concerns.
DOE‘s Implementation Plan Is Not Focused on Implementing External
Regulation:
DOE‘s implementation plan does not reflect a commitment to external
regulation or provide a clear path to achieving it. The plan does not
present steps to implement external regulation, but instead calls for
more detailed studies and a cost-benefit analysis before the department
decides on external regulation.
The conference report directed DOE to prepare an implementation plan to
externally regulate nuclear and worker safety at the department‘s 10
science laboratories. To prepare this plan, the conference report stated
that the department should assume that NRC would take over regulatory
responsibilities for nuclear safety and OSHA would take over regulatory
responsibilities for worker safety at these facilities. In addition, DOE
should assume that external regulation would become effective beginning
in fiscal year 2004. The plan was to address all details necessary to
implement external regulation, including:
* estimates of additional resources NRC and OSHA would need;
* estimates of corresponding reductions in funding and staffing at the
department;
* specific facilities or classes of facilities for which external
regulation cannot be implemented in a timely manner;
* necessary changes to existing management and operating contracts,
and;
* changes in statutory language necessary to effect the transition to
external regulation.
Contrary to the conference report directive, DOE‘s implementation plan
merely restates its intention to reassess the merits of external
regulation. The costs and benefits of external regulation have already
been studied with favorable results, although the precise costs to
comply with regulator standards at the 10 laboratories will not be
known until the facilities are licensed and inspected. DOE‘s plan notes
that all 10 science laboratories can make the transition to OSHA
regulation within 2 years. Eight of these laboratories report that they
can move to NRC regulation within 2 years; the remaining 2 will take up
to 4 years to move to NRC regulation. However, rather than using this
information to go forward, DOE intends to develop detailed cost and
benefit information on two laboratories and then prepare a go/no-go
decision for external regulation. Assuming that the benefits outweigh
the costs, the plan calls for proceeding in August 2003 to conduct a
detailed analysis at the eight remaining laboratories and determine on
a laboratory-by-laboratory basis if external regulation is cost
beneficial. So, rather than presenting a path forward to implementation,
DOE‘s strategy is to study more before deciding on external regulation.
The plan did respond in part to other information in the conference
report directive. For example, the plan addressed the first requirement
by providing information developed by NRC and OSHA on costs and their
additional staffing needs. However, DOE‘s plan did not provide the
statutory language that would be required for moving to external
regulation. Rather, it listed the issues where changes to the statutory
language are needed, and gave September 2002 as the date to begin this
work, with no completion date provided.
In our view, DOE has sufficient information and has had ample time to
move forward on external regulation. Support for this decision comes
from years of DOE-NRC interactions in many departmental areas, as well
as simulations conducted by NRC and OSHA in the 1990s, and more recent
laboratory reviews by the department‘s task force.
In conclusion, Mr. Chairman, shifting to external regulation eliminates
DOE‘s inherent conflict of interest and should allow DOE and its
contractors to redirect ES&H resources to other science mission
priorities. In our view, the issue is not ’should“ DOE shift to
external regulation of its science laboratories, but ’how.“ Any further
DOE analysis should detail the steps and timetable necessary to fully
implement external regulation as required in the conference report.
Mr. Chairman, this completes my prepared statement. I would be happy to
respond to any questions you or other Members of the Committee or
Subcommittee may have at this time.
Contacts and Acknowledgments:
For future contacts regarding this testimony, please contact (Ms.) Gary
Jones at (202) 512-3464. Individuals making key contributions to this
testimony included Gary R. Boss, Charles T. Egan, Thomas J. Laetz, and
Michael S. Sagalow.
[End of section]
Footnotes:
[1] DOE‘s predecessor agencies are the Atomic Energy Commission and
Energy Research and Development Administration.
[2] H.R. Rep. No. 107-258, Oct. 30, 2001, at 109-110.
[3] Department of Energy, Implementation Plan For External Regulation
of Non-Defense Science Laboratories, (July 1, 2002).
[4] U.S. General Accounting Office, Department of Energy: Observations
on Using External Agencies to Regulate Nuclear and Worker Safety in
DOE‘s Science Laboratories, GAO-02-868R (Washington, D.C.: June 26,
2002)
[5] These facilities included all or part of the Lawrence Berkeley
National Laboratory in California, the Oak Ridge National Laboratory in
Tennessee, and the Savannah River Site in South Carolina. OSHA
participated in the California and Tennessee sites and had previously
conducted a pilot program at DOE‘s Argonne National Laboratory in
Illinois.
[6] U.S. General Accounting Office, Department of Energy: Clear
Strategy on External Regulation Needed for Worker and Nuclear Facility
Safety, GAO/RCED-98-163 (Washington D.C.: May 21, 1998); and U.S.
General Accounting Office, Department of Energy: Uncertain Future for
External Regulation of Worker and Nuclear Facility Safety, GAO/T-RCED-
99-269 (Washington D.C.: July 22,1999).
[7] U.S. General Accounting Office, Department of Energy: Fundamental
Reassessment Needed to Address Major Mission, Structure, and
Accountability Problems, GAO-02-51 (Washington, D.C.: Dec. 21, 2001).
[8] External Regulation of DOE Facilities: Pilot Project Results,
Hearing before the Subcommittee on Energy and Environment of the
Committee on Science, House of Representatives, Serial No. 106-29, July
22, 1999.
[9] Report of Department of Energy Working Group on External
Regulation, DOE/US-0001, December 1996, p.1-1.
[10] Battelle Memorial Institute is DOE‘s management and operating
contractor for the Pacific Northwest National Laboratory, and manages
Brookhaven National Laboratory (in partnership with the State
University of New York at Stonybrook), and for the Oak Ridge National
Laboratory (in partnership with the University of Tennessee).
[11] Battelle has also concluded that the aggregate hazards associated
with the R&D activities at these institutions cannot account for these
cost differences.
[12] DOE Best Practices Pilot Study, Berkeley Lab, LBNL/PUB-865,
February 2002.
[13] We were not able to disaggregate department staff overseeing
environmental issues from those involved in safety and health.
[End of section]
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