Updated FY13 Funding Table and List of Report Language/Provisions
Published: Fri, 04/27/12
FY13 Funding Tables
Defense Environmental Cleanup Funding by Site (select sites)
Nuclear Energy (select programs)
Fiscal Year 2013 House Report Language
While the cleanup activities funded under this account are strongly supported by the Committee,
the overall funding levels for cleanup will continue to be constrained. The Committee is concerned by the Department's overall approach to formulating its budget request under these fiscal constraints, concentrating steep reductions at a few sites without a clear description of the workforce and operational impacts. While tough choices may need to be made, EM is responsible for understanding the full impacts of the funding levels it proposes and communicating those impacts so they may be fully considered by the Congress. While existing agreements may have been negotiated in good faith, many depended on highly optimistic funding increases that would have been difficult in any budget environment. In total, these agreements would require spending levels for environmental cleanup of more than $8 billion during peak years, not taking into account the impacts of technical and management challenges that have driven up costs for some activities. Set back by project management failures and propelled forward by an infusion of $6 billion from the Recovery Act, the status of the cleanup effort has now changed significantly. The Committee supports the Department's efforts to update its estimates for completing the cleanup and to provide an accurate accounting to all stakeholders so that a clear, affordable, and attainable path forward can be negotiated at those sites where the current schedule for cleanup will not be met. The Committee is concerned that the Department has not adequately planned for the extended storage of spent nuclear fuel. Further, no information has been provided on how the cancellation of Yucca Mountain will impact settlement agreements for storage of Department of Energy spent fuel. Not later than 180 days after enactment of this Act, the Department is directed to provide a report on the current status and long term storage requirements for extended spent fuel and high level waste storage for the National Spent Nuclear Fuel Program.
The Committee remains concerned about the lack of remediation activity taking place around the country at various Department-sponsored facilities and small sites classified as under the responsibility of the Department. Therefore, the Committee directs the Department to submit detailed action plans on how it intends to remediate these small sites and sponsored facilities. The plan should include a description of the prioritization of these remediation efforts and identify those sites that, in the next two years, can demonstrate new models for site cleanup performed by private sector and third party organizations, such as universities, which could save the Department and taxpayers substantial funds over the traditional agency-led cleanup model and result in a faster cleanup without compromising public safety.
The Committee believes that the Administration's refusal to honor the requirements of the Nuclear Waste Policy Act of 1982 regarding Yucca Mountain has significantly set back this country's nuclear spent fuel and waste management strategy. By unilaterally halting the Yucca Mountain High-Level Waste Geological Repository, the Administration is unable to take responsibility for this nation's spent fuel and high level waste. As a result, the Department's fiscal year 2011 Financial Report shows the estimated liability taxpayers are now faced with to be more than $19,000,000,000, nearly $4,000,000,000 more than a year ago. This liability will likely only grow as the full consequences of the Administration's Yucca Mountain policy become clear. In addition, high-level defense waste in sites across the country now have no disposition pathway, presenting the likelihood that the federal government will have to pay penalties to the states as deadlines for removal are missed. Finally, the credibility of the federal government has been further eroded by the Administration's actions to halt the program and its refusal to request a legislative alternative to current law. The Committee notes that although the Administration's Blue Ribbon Commission recommendations have not been considered in whole or in part by Congress, the Administration requests funding for several of these recommendations in an attempt to shift attention from its Yucca Mountain policy. Several proposed activities would only be necessary as a consequence of the Administration's Yucca Mountain policy, such as efforts to increase the nuclear waste confidence rule past its current 60 years. The Committee rejects all such proposals. Additionally, the bill makes clear that any activities funded from the Nuclear Waste Fund must be in support of Yucca Mountain.
The recommendation includes $25,000,000 for Nuclear Waste Disposal to support the Yucca Mountain High-Level Waste Geological Repository, including $5,000,000 to support local communities who have formally consented to host it. The Committee includes this support in recognition that Nye County, the county which encompasses the Yucca Mountain area, has given its formal consent to host Yucca Mountain. The Committee notes that geological repositories will be needed in addition to Yucca Mountain. If the Congress provides the authority for such repositories, as well as for a consensus-based siting process, the Committee will consider support
for such activities at that time. In the meantime, the bill contains a prohibition on using funds to close the Yucca Mountain license application or to take actions which would irrevocably remove Yucca Mountain as an option for a repository. The Committee recommends $138,716,000 for Fuel Cycle Research and Development, $48,635,000 below fiscal year 2012 and $36,722,000 below the request. Within available funds, the recommendation includes $38,000,000, $22,000,000 below fiscal year 2012 and $21,668,000 below the budget request, for the following Used Nuclear Fuel Disposition activities:
In its fiscal year 2013 budget request for Used Nuclear Fuel Disposition, the Department includes funding for a number of activities relating to programs that would require legislative changes recommended by the Blue Ribbon Commission. To date, the Department has not proposed any such legislation, nor has it proposed any comprehensive nuclear waste management plan different from that set forth in the Nuclear Waste Policy Act. More importantly, Congress has not made any changes to the authorized plan of record, which continues to be Yucca Mountain. Therefore, no funding is provided for the requested activities, including extended storage research and development, activities related to consolidated interim storage, and work in preparation of voluntary siting processes.
The Committee recommendation includes $25,000,000, $25,000,000 above fiscal year 2012 and $25,000,000 above the request, to continue the Department of Energy's congressionally-mandated activities to continue the Yucca Mountain license application activity. Of this funding, $5,000,000 is available to provide assistance pursuant to the Nuclear Waste Policy Act of 1982 (NWPA) to affected units of government which have formally provided consent to the Secretary of Energy to host a high-level geological repository as authorized in the NWPA.
While the Committee notes that some of the recommendations of the Administration's ''Blue Ribbon Commission'' may have merit, Congress has neither formally considered nor approved them. In addition, the implementation of many of the recommendations would require changes to authorizing statutes. Nuclear waste disposal is too complex of an issue for the Administration to unilaterally develop or implement policy, and the Committee encourages the Administration to take this into account while formulating its fiscal year 2014 budget request.
The Committee notes that Nye County, the unit of local government within which Yucca Mountain is located, has formally notified the Secretary of Energy that it consents to hosting a high-level waste repository. The Administration does not have authorization to begin a ''consensus-based'' approach to selecting the location for the next waste repository, but Nye County's official declaration once again clarifies that the Administration's repeated statements that Yucca Mountain is not a ''workable option'' ignores both the support of the host community and the expressed intent of Congress.
The origins of the Department of Energy are in the Manhattan Project and the development of the first atomic bomb, and the Committee considers the Department's national defense programs, run by the National Nuclear Security Administration (NNSA), to be of critical importance. A key tenet of United States nuclear security policy is the civilian control of these most destructive of weapons. The NNSA, as an entity separate from the Department of Defense, is the embodiment of this tenet. The recommendation is strongly supportive of the President's proposals to increase investments in the NNSA through the following national defense accounts: Weapons Activities, Defense Nuclear Nonproliferation, and Naval Reactors.
The recommendation continues the Committee's strong support for modernization of the nuclear stockpile and its supporting infrastructure. Critical activities are still taking place in facilities built 70 years ago during the Manhattan project as ''temporary'' structures. Each year, our weapons scientists identify new challenges with our existing stockpile which must be addressed to ensure our strategic security. The funding in this recommendation will keep these efforts on track, while improving the transparency and accountability of the Administration's planning for modernization.
The Defense Nuclear Nonproliferation account includes funding for Nonproliferation and Verification Research and Development; Nonproliferation and International Security; International Nuclear Material Protection and Cooperation; Fissile Materials Disposition; and the Global Threat Reduction Initiative. The Committee's recommendation for Defense Nuclear Nonproliferation is $2,276,024,000, $19,856,000 below fiscal year 2012 and $182,607,000 below the budget request. After accounting for rescissions totaling $28,423,000 in fiscal year 2012 and the rescission of $7,000,000 in this bill, the recommendation is $41,279,000 below
fiscal year 2012. The recommendation fully funds the requested level for core nonproliferation activities, including the four-year plan to secure vulnerable nuclear materials around the world. The recommendation for the remaining non-core activities, which includes Fissile Materials Disposition and Domestic Uranium Enrichment Research Development and Demonstration, are reduced from the request.
The request for the four-year plan continues to decrease as planned, showing progress from the accelerated investments made over the past two years. However, the request proposes further reductions that were not previously envisioned, causing some strategies to appear uncoordinated. In the 2010 Nuclear Posture Review, the Administration recommended enhancing national and international capabilities to disrupt illicit proliferation networks and expanding our nuclear forensics efforts to improve the ability to identify the source of nuclear material used or intended for use in a terrorist nuclear explosive device. The NNSA is now proposing a ''strategic pause'' for the Second Line of Defense program, which installs radiation equipment at borders, airports, and ports, while it considers the future of the program. This decision appears to be driven primarily by budgetary constraints and the Administration's inclusion of a uranium enrichment program within the nonproliferation account. Further, the request proposes funding for nuclear forensics across a variety of programs, instead of integrating those efforts into ongoing nonproliferation activities. While the Committee agrees that the models for executing some of its core nonproliferation programmatic activities should be reviewed for effectiveness, there are substantial concerns regarding the NNSA's ability to evaluate and provide meaningful reports on its own program performance. The Government Accountability Office (GAO) recently investigated program management within the Office of Defense Nuclear Nonproliferation (DNN) and found several problems with its use of performance measures. The GAO reported that the results of some DNN programs appear overstated because DNN measured performance against different targets at the end of year than the ones presented in the budget request. It also investigated the way DNN reports budget execution performance and found the levels of uncommitted balances frequently exceeded thresholds, but the semiannual reports to Congress on uncommitted balances do not specify the amounts by which program balances exceeded the thresholds or explain why the excess balances should not be rescinded, redirected, or used to offset future budget requests. Without measures and reports which would accurately track performance, there is limited information available for evaluating and revising programmatic strategies. Within the amounts provided, the Committee directs the NNSA to contract with an independent entity with recognized expertise in evaluating program effectiveness for a review of DNN performance measures and uncommitted balances report. The entity shall submit a report to the Committee with its findings and recommendations on developing more accurate and meaningful measures of program performance and reports on financial balances.
In the meantime, the Committee notes that the program has made progress in reducing unobligated balances and should proceed with further improvements to program justification and
metrics. The Committee is aware that the program uses and tracks additional metrics in some core programs which may be valuable to decision makers when weighing the merits of resource allocations. The NNSA is directed to expand its metrics in future budget requests to provide additional background on the effectiveness on its programs. The Committee recognizes the potential economic, safety, manufacturing, and grid planning advantages of small modular reactors, and the Committee recommends $114,000,000, $47,000,000 above fiscal year 2012 and $49,000,000 above the request, to provide licensing and first-of-a-kind engineering support for two reactor designs. The recommended amount brings this program's annual average to $90,500,000, the rate necessary to meet the expected total cost of $452,000,000 over five years.
Fiscal Year 2013 Senate Report Language Non-Defense Environmental Cleanup: Small Sites
The Committee recommends $87,831,000. In response to a lack of progress on addressing existing contamination and seismic deficiencies within buildings that are located in heavily used areas at some Department national laboratories, the Department is directed to use additional funding to improve health and safety by cleaning up existing contamination and improving seismic standards of buildings within Department laboratory grounds. The Committee also encourages the Department to explore remediation efforts at small sites which can demonstrate new models for cleanup performed by private sector and third party organizations, such as laboratories and universities, which could save substantial resources compared to the traditional agency-led cleanup model and result in faster cleanup without compromising public safety. The Committee urges the Department to budget for such cleanup models. Section 312 in the bill establishes a pilot program under which the Department may site, construct, and operate at least one consolidated storage facility for spent nuclear fuel and high-level radioactive waste subject to future authorization and appropriation. The Committee provides a $2,000,000 increase in program direction from within available funds to implement this authority. The Committee directs the Department to use $17,700,000 in unobligated, prior year funds appropriated from the Nuclear Waste Fund. The Committee directs the Department to solicit proposals for consolidated storage facilities within 120 days of enactment of this act. In evaluating proposals, the Department should give priority to novel concepts, including consolidated storage facilities proposed to be co-located with potential permanent repositories, given that current volumes of spent nuclear fuel now exceed the statutory limits established in section 114(d) of the Nuclear Waste Policy Act for the first repository. The Committee expects that the Department will consider only proposals it receives for the nuclear waste pilot program, and encourages consideration of proposals developed in a cooperative manner with an applying entity and States, local jurisdictions, or affected Indian tribes. The Department should at every step consider the views of the States, local jurisdictions and affected Indian tribes, and should not expend resources to consider sites that are unlikely to achieve support of the host State, local jurisdictions, and affected Indian tribes. The Committee directs the Department to exercise this authority consistent with the recommendations in the Blue Ribbon Commission's final report to the Secretary of Energy. The Committee notes that the Blue Ribbon Commission found that one or more consolidated storage facilities is required regardless of the ultimate location of a permanent repository. The Department currently lacks authority to conduct these activities. The Committee recommends $785,445,000 for Nuclear Energy, including $93,000,000 for safeguards and security at Idaho National Laboratory. In addition, the Committee recommends use of prior year balances in the amount of $17,700,000 for a total budget of $803,145,000. The Committee notes that the Blue Ribbon Commission on America's Nuclear Future submitted its final recommendations to the Secretary of Energy in January 2012. The Committee strongly supports these recommendations, and provides funding in this account for the Department to implement many of them in the short-term. Most notably, the Committee provides both statutory authority and funding for the Department to begin the processes to site, construct, and operate a consolidated storage facility for spent nuclear fuel and high-level radioactive waste. Additionally, the Committee directs the Department to ensure that the public continues to have access to the Blue Ribbon Commission's Web site and all records and documents therein. The Department of Energy's failure to begin disposing of waste on January 31, 1998 has created a liability, based on the Standard Contracts signed by the Department and each utility operating a nuclear reactor. This liability is expected to exceed $20,000,000,000 by 2020, and accruing an additional $500,000,000 for each year after 2020 that the Department has not accepted spent nuclear fuel. Although funding for these liabilities does not come from the Energy and Water appropriations bill, but is rather paid from the Judgment Fund in the Department of the Treasury, it is, in the end, the taxpayers that are severely penalized for the Federal Government's inaction. This is an unacceptable outcome, and now that the Blue Ribbon Commission has provided recommendations, the Committee would be irresponsible in failing to act on them in this legislation. Contractor Support Costs The Committee notes the Government Accountability Office [GAO] has identified Department of Energy contractor support costs as an area where opportunities may exist to reduce costs. Approximately 90 percent of the Department's budget is spent on contractors to carry out its missions and operate its sites nationwide. These management and operating contractors also provide sites' support functions. According to GAO, the cost of support functions at the NNSA and Office of Science sites increased by 10 percent between fiscal year 2007 and 2009. The Department is directed to take actions to manage cost growth in support functions and related costs, and describe ongoing and future efforts to meet GAO recommendations in this area and report to the Committee within 30 days of enactment of this act. Streamlining Security Contracts The Committee is concerned that the Department has duplicative overhead costs in providing protection services for laboratories and sensitive sites around the country. The Committee is concerned that these contracts are not uniformly managed, organized, or staffed, which creates concerns about the safety of the national laboratories as well as fiscal responsibility with taxpayer dollars. In November 2011, the Department's Inspector General recommended that the Department pursue either a master contract, consolidation by region, or Federalizing the protective force to help reduce costs. The Committee directs that no later than 60 days after enactment of this act the Department provide the House and Senate Appropriations Committees a plan to reduce the overhead costs of protective forces at sensitive sites and laboratories which includes one of the options recommended by the Inspector General, or another option that may have equal or greater contracting cost reductions. New Positions The Committee is concerned about the Department's creation of new senior-level positions without advance notification. Such positions necessitate budgetary requirements, and as such the Committee expects in the future to be notified of the Department's plans (including those of the NNSA) to create new senior level position, along with the budget needed to sustain such positions. The Committee provides $65,000,000 for Small Modular Reactor Licensing Technical Support, the same as the budget request. This is the second year of funding for a 5-year program capped at $452,000,000. The fiscal year 2012 bill appropriated $67,000,000. The Committee notes that the budget request level for fiscal year 2013 will require the funding in fiscal years 2014-2016 to be just over $106,500,000 in order to fully fund the program in 5 fiscal years. The Committee urges the Department to set aggressive milestones for this program and the program's industry partners, and develop a strategy to track progress, meet milestones, and hold industry to its commitments.
NNSA Poor Project Management
The Committee is concerned about NNSA's record of inadequate project management and oversight. The Committee is worried that large funding increases will make NNSA more vulnerable to waste, abuse, duplication, and mismanagement if NNSA does not take the necessary steps to address project management weaknesses. All of NNSA's major construction projects exceed the initial cost estimates. For example, the cost of a new uranium facility at Y-12, known as the Uranium Processing Facility, has grown from $600,000,000 to $6,000,000,000--ten times more expensive than originally projected. In addition, most of NNSA's major construction projects are behind schedule. For example, a new facility at Savannah River, known as the MOX Fuel Fabrication Facility, is nearing completion but is 14 years behind schedule. An even greater concern is NNSA's inability to adequately assess alternatives, including the use of existing facilities, before embarking on multi-billion dollar projects. For example, NNSA spent $700,000,000 over the last 13 years to design a plutonium disposition facility at Savannah River only to terminate the project in fiscal year 2012 and determine that existing facilities could meet mission requirements. The Committee is concerned that NNSA has not implemented a number of recommendations made by the U.S. Government Accountability Office [GAO] aimed at improving NNSA's project management that could have avoided project management mistakes. The Committee directs NNSA to implement the following recommendations and report to GAO every 6 months beginning on October 1, 2012 on the status of implementing these recommendations until GAO validates that the recommendations have been fully implemented: (1) NNSA should assess the risks, costs, and schedule needs for all military requirements prior to beginning a life extension program [LEP] and developing realistic cost baselines and schedules that acknowledge identified risks and reflect sufficient contingency for risk mitigation; (2) NNSA should conduct independent cost estimates for all major projects and revise its cost estimating guidance to include reconciling differences between the results of independent and other cost estimates; and (3) NNSA should conduct rigorous analyses of alternatives to justify selected project options. GAO Study on NNSA Project Management Owing to the Committee's ongoing concerns with the effectiveness of and accountability for project management at NNSA, including construction projects and life extension programs, the Committee seeks a root cause assessment of project management. Prior reports from the GAO on individual programs and projects have provided evidence of schedule slips, significant cost growth, reduced scope, and failure to adequately assess alternatives. Many of the risks that contributed to these outcomes could have been or were in fact anticipated early in project design. As GAO has noted in numerous reports, adequate front-end planning and the development of high-quality cost and schedule estimates may help avoid the pitfalls that NNSA's projects have frequently experienced. To assess NNSA's management of projects in the early stages of project design, the Committee directs the Comptroller General to conduct an analysis with recommendations for improvement by May 1, 2013 of (1) the effectiveness of the process by which NNSA conducts analyses of alternatives prior to project starts; (2) how NNSA plans for and executes its projects' design phases prior to the establishment of a cost and schedule baseline; (3) the roles, responsibilities, and accountability of Federal project directors in the early stages of major projects; and (4) the impact of the Defense Nuclear Facilities Safety Board reviews on the cost, schedule, and scope of projects. In each of these areas, the analysis shall consider NNSA's compliance with Departmental orders, directives, and other guidance applicable to project management. The Committee is concerned that NNSA is not communicating changes in cost, schedule, and scope in a transparent and timely manner. For example, a March 2012 GAO study found that NNSA, to avoid more cost increases, would have eliminated certain critical capabilities, such as plutonium-related mission for homeland security and nonproliferation, that were part of the original project scope for the new plutonium facility at Los Alamos. These changes were not communicated to the Committee. The Committee directs NNSA to submit a report every 6 months on October 1 and April 1, with the first report due on October 1, 2012, on the status of major projects, such as construction projects and life extension programs, which are estimated to cost a minimum of $750,000,000. The report shall include, among other things, the name of the project, a brief description of the mission need, a brief summary of project status, the baseline cost or expected cost range and contingencies, expected completion date, scope of work, and an explanation of changes, if any, to cost, schedule, scope, or contingencies. The Committee is concerned about recent findings in a February 2012 National Research Council study that concluded that the overall management relationship between NNSA and its national security laboratories is dysfunctional. The Committee recommends that NNSA and the laboratories identify and eliminate unnecessary bureaucratic functions that affect the quality of science and engineering at the labs and detract from primary mission goals. The elimination of these functions shall not undermine operational goals related to safety, security, environmental responsibility and fiscal integrity. The NNSA shall notify the Committee of the functions that are to be eliminated. According to the National Research Council, many of the bureaucratic problems are within the power of the labs to address or driven by governance strategies that can be changed. The Committee also recommends that NNSA establish a technical advisory committee to resolve technical disputes on science and engineering matters between NNSA and the laboratories.
Fiscal Year 2013 House NDAA Provisions This section would require the Secretary of Defense, acting through the Director of Cost Assessment and Program Evaluation (CAPE) and in coordination with the Administrator for Nuclear Security, to assess the cost of options and alternatives for new life extension programs and new nuclear facilities within the nuclear security enterprise that are expected to cost more than $500.0 million. This section would also require the Secretary of Defense to submit a copy of these cost assessments to the congressional defense committees within 30 days of their completion. Finally, this section would provide the Administrator for Nuclear Security the authority to ask the Secretary of Defense to seek a CAPE assessment on other initiatives of the National Nuclear Security Administration that are expected to cost more than $500.0 million.
The committee expects that an independent cost assessment will increase accountability and inform diligent planning to avoid budget overruns and schedule delays. The committee expects that the Administrator and the Secretary will conduct a cost estimate for upcoming life extension programs, including those for the W78 and W88.
This section would amend the National Nuclear Security Administration Act (50 U.S.C. 2401) by adding a new section that would require the Administrator for Nuclear Security to establish a system of governance, management, and oversight of management and operating contracts of the National Nuclear Security Administration (NNSA). The system established by the Administrator would be required to: (1) Include clear and auditable performance-based standards related to both mission effectiveness and operations of the contractor; (2) ensure that governance, management, and oversight of the contract is conducted, when applicable, pursuant to national and international standards and best practices; (3) recognize the respective roles of the Federal Government in determining performance-based objectives and the contractor (particularly contractors running a Federally Funded Research and Development Corporation) in determining how to accomplish such objectives; (4) conduct oversight based on outcomes and performance-based standards and not detailed, transaction-based oversight; and (5) include measures to ensure the Administrator has accurate and consistent data to manage and make decisions across the nuclear security enterprise. The Administrator would be allowed to exempt certain areas of governance, management, and oversight from the requirements of this system if the Administrator submits an annual certification of such exemption to the congressional defense committees that includes a description of why such exemption is needed. This section would also require the Administrator to ensure that each management and operating contract of NNSA includes robust mechanisms for ensuring the accountability of the contractor and that the Administrator exercise such mechanisms as appropriate to ensure high-level performance by the contractor.
Further, this section would require the Administrator to ensure that any oversight activity performed by any Federal agency on a management and operating contract of the NNSA is conducted in accordance with the system established pursuant to this section. If the Administrator were to determine that a Federal agency is not conducting oversight activities in accordance with the system, this section would require the Administrator to notify the congressional defense committees of such activity within 30 days of such determination.
Finally, this section would require the Administrator to submit a report by January 15, 2013, and each year thereafter until 2016, to the congressional defense committees that includes a description of each instance during the previous year in which an agency of the Federal Government used a procedure, standard, or process of governance, management, and oversight of a contract of the NNSA that is not a procedure, standard, or process that conforms to national or international standards or industry best practices. The report would also be required to include a description of why each such procedure, standard, or process was used instead of a national or international standard or best practice. Finally, the report would include a description of any oversight activities by any agency of the Federal Government that occurred during the previous year that the Administrator considers duplicative or unnecessary.
This section would amend the National Nuclear Security Administration Act (Public Law 106-65) to require the Administrator for Nuclear Security to establish policies and procedures for the regulation and oversight of health, safety, and security of the nuclear security enterprise. In conjunction with a provision the committee includes elsewhere in this title that would strengthen the autonomy of the NNSA, this section would transition the authority to make policy, prescribe regulations, and conduct oversight of health, safety, and security in the nuclear security enterprise from the Department of Energy (DOE) to the National Nuclear Security Administration (NNSA).
First, this section would amend section 3231 of the National Nuclear Security Administration Act (50 U.S.C. 2421) to require the Administrator for Nuclear Security to establish policies and procedures to ensure the protection of special nuclear material, sensitive physical assets, and classified information in the possession of the NNSA. The Administrator would be required to establish procedures to ensure any significant problems related to security are promptly reported.
Second, this section would amend section 3261 of the National Nuclear Security Administration Act (50 U.S.C. 2461) to ensure that the Administrator is the responsible authority for ensuring and overseeing NNSA compliance with all applicable health and safety requirements. For non-nuclear operations, the Administrator would be required to ensure that NNSA complies with all applicable occupational safety and health standards promulgated pursuant to section 6 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655) and that compliance and oversight of such standards is conducted in accordance with best industry and Government practices and with the performance-based system of governance, management, and oversight established pursuant to a provision included elsewhere in this title. The Administrator would be limited from establishing or prescribing any order, rule, or regulation regarding occupational safety and health unless such order, rule, or regulation is pursuant to standards resulting from section 6 of the Occupational Safety and Health Act of 1970. For nuclear operations, this section would require the Administrator to prescribe appropriate policies and regulations to ensure that risks to the health and safety of the employees of NNSA and its contractors, as well as the general public, are as low as practicable and that adequate protection is provided. The Administrator would be required to ensure that compliance and oversight of such policies related to nuclear operations is in accordance with the performance-based system of governance, management, and oversight established pursuant to a provision included elsewhere in this title. This section would delay full transition of authority with regards to nuclear safety until October 1, 2013, and would require the Administrator to submit a report to the congressional defense committees by March 1, 2013, on an implementation plan and cost-benefit analysis for transitioning the policy, regulatory, and oversight authority for nuclear safety from the Department of Energy to the NNSA. In its February 2012 Phase I report on "Managing for High-Quality Science and Engineering at the NNSA National Security Laboratories," the National Academies of Science recommended "that the NNSA, Congress, and top management of the Laboratories recognize that safety and security systems at the Laboratories have been strengthened to the point where they no longer need special attention. NNSA and Laboratory management should explore ways by which the
administrative, safety, and security costs can be reduced, so that they not impose an excessive burden on essential science and engineering activities." In its 2009 report, the bipartisan Congressional Commission on the Strategic Posture of the United States found that "the regulatory burden on the laboratories is excessive and should be rationalized," and "that burden imposes a significant cost and less heavy-handed oversight would bring real benefits." The Commission continued, "This conclusion is backed up by some real data. One recent external assessment of NNSA laboratories...found a very high cost of compliance with federal safety and security requirements--approximately 15 times as much as for companies of similar complexity (recognizing also some important differences in some of the functions of those companies). Some other data is available from a pilot program conducted by the NNSA at the Kansas City Plant in 2006 and 2007. Under this program, the plant was exempted from essentially all DOE regulations and additional oversight changes were made. An external audit documented significant savings. Extending this approach throughout the complex is feasible." In response to a request from the Secretary of Energy, the National Laboratory Directors Council (consisting of DOE and NNSA national lab directors) submitted a white paper in May 2011, identifying 18 policies and practices the NLDC deemed "most burdensome." The NLDC stated that the DOE rule regarding occupational health goes "significantly beyond the Occupational Safety and Health Administration (OSHA) standards and incorporates standards that were not
designed to be regulatory in nature. It has not been demonstrated that the rule has improved worker safety at DOE facilities since its adoption; however, the cost to implement and maintain the requirements that go beyond the OSHA standards have significantly increased costs...Therefore, it is recommended that the rule be revised to implement only OSHA standards. This action would align DOE facilities with U.S. industry, academia, and other federal facilities such as the National Institute of Standards and Technology." The Strategic Posture Commission recommended this action as well, saying in its 2009 report: "the commission recommends that the Administrator should issue no regulations concerning occupational health and safety but should depend on the Occupational Safety and Health Administration for both regulations and oversight." Based upon these and other reports, the committee believes that the lines of authority, responsibility, and oversight for health, safety, and security within the nuclear security enterprise are unclear, duplicative, and inefficient. The committee believes that safety and security must remain a paramount concern for the NNSA, but notes that, as in military operations, duplicative and confused lines of authority and responsibility often lead to less effective outcomes. The committee believes this section, coupled with other provisions included elsewhere in this title, would streamline redundant functions, and lead to more effective and more efficient oversight of these important matters.
This section would require the Administrator for Nuclear Security to submit a report to the congressional defense committees before the Administrator releases any final request for proposals for competition of any contract to manage and operate a facility of the National Nuclear Security Administration. The report would be required to include a cost-benefit analysis of the competition that includes the expected costs and cost savings resulting from the competition; a description of any disruption or delay in mission activities or deliverables resulting from the competition; a description of any benefits of the proposed competition to mission performance or operations; and an assessment of how the competition complies with the Federal Acquisition Regulation regarding Federally Funded Research and Development Centers, if applicable. This section would also require the Comptroller General of the United States to submit a review of the Administrator's report to the congressional defense committees within 90 days of the Administrator submitting any report pursuant to this section. The requirements of this section would apply to any request for proposals that is released by the Administrator during fiscal years 2012-17. This section would require the Administrator for Nuclear Security and the Secretary of Energy to ensure that the methods for certifying and overseeing nuclear safety at defense nuclear facilities of the National Nuclear Security Administration (NNSA) and the Department of Energy's Office of Environmental Management use national and international standards and nuclear industry best practices, including probabilistic risk assessment, for parts, equipment, and systems for which sufficient data exists to support such methods.
The committee notes that the nuclear safety assessment and certification methods used by the Office of Environmental Management and the NNSA for proven systems have lagged behind more modern methods used by the nuclear power industry and the Nuclear Regulatory Commission. The highly prescriptive and deterministic methods used by the Office of Environmental Management and the NNSA have resulted in highly complex systems of engineered controls when more modern safety assessment and certification methods, such as probabilistic risk assessment, may result in much simpler systems with equally robust safety margins when sufficient data exists to support such methods. The committee expects the Office of Environmental Management and NNSA to consult with the Nuclear Regulatory Commission to understand and leverage lessons learned from the development and application of modern safety assessment and certification methods in both nuclear power reactors and other civilian nuclear facilities. The committee notes that these methods may not apply to one-of-a-kind parts, equipment, or systems. This section would clarify the role of the Administrator for Nuclear Security and reinforce the semi-autonomous nature of the National Nuclear Security Administration (NNSA) by amending various sections of the National Nuclear Security Administration Act (50 U.S.C. 2401), the Atomic Energy Defense Act (50 U.S.C. 2501), and the Department of Energy Organization Act (42 U.S.C. 7131). This section would clarify that the Administrator is responsible for all programs, policies, regulations, and rules of the NNSA. This section would further clarify that the Secretary of Energy may disapprove any action, policy, regulation, or rule of the Administrator if the Secretary submits justification for such disapproval to the congressional defense committees and a period of 15 days has elapsed since such justification was submitted. This section would also clarify that the Administrator has complete authority to establish and conduct oversight of policies, activities, and procedures of the NNSA without direction or oversight by the Secretary, and establish that the Secretary's authority to administer, enforce, or oversee the activities of the NNSA would be limited to the disapproval authority described above, unless otherwise specifically provided by law. This section would also amend several statutes to transfer authority for certain activities from the Secretary to the Administrator. In its 2009 report, the Congressional Commission on the Strategic Posture of the United States recommended making NNSA a fully autonomous agency reporting to the President through the Secretary of Energy. The Commission recommended following the example of the Federal Energy Regulatory Commission (FERC), which reports to the Secretary of Energy, and for which the Secretary only has the authority to comment on and not disapprove FERC's budget. Also in 2009, a study by The Henry L. Stimson Center, "Leveraging Science for Security: A Strategy for the Nuclear Weapons Labs in the 21st Century," was highly critical of both the Department of Energy (DOE) and the NNSA. The Stimson Center Task Force concluded that the choices for reform were clear, either "initiate an extensive overhaul of DOE/NNSA to achieve intended agency autonomy" or "create a new independent agency with the institutional mechanisms and oversight in place to achieve the envisioned transformation and fully leverage the taxpayer's investments." Ultimately, the Task Force "strongly recommend[ed] creating a fully independent agency...the Task Force proposes fully severing NNSA and its Federally Funded Research and Development Centers, including the Nevada Test Site, from DOE." The committee agrees with these and other recent assessments that the degree of autonomy intended by the National Nuclear Security Administration Act has not been achieved. This section would strengthen the autonomy of NNSA and reinforce the intent of the legislation.
Fiscal Year 2013 NDAA Directive Report Language In the November 2011, special report, "Management Challenges at the Department of Energy," the Inspector General (IG) of the Department of Energy wrote that the Department's environmental remediation program costs "and related requirements are the result of individual, site-specific negotiations between the Department and Federal and state regulators." The Inspector General noted that modifying the agreements resulting from these negotiations "would be a very costly and time-consuming process and would, understandably, be extremely unpopular with a variety of constituencies," but also added that "the current strategy may not be sustainable." The Inspector General suggests that the Department of Energy "should consider revising its current remediation strategy and instead address environmental concerns on a national, complex-wide risk basis," and, "looking at the program holistically, fund only high risk activities that threaten health and safety." The committee also recognizes the difficulty and challenges posed in fully transitioning to such a paradigm, but believes further consideration of the idea may be warranted. Therefore, the committee directs the Assistant Secretary for Environmental Management to provide a briefing to the House Committee on Armed Services by October 31, 2012, on prioritization of environmental cleanup efforts at the Department of Energy. The briefing should include a description of how the Department currently prioritizes cleanup efforts and the costs, benefits, and challenges of transitioning to the complex-wide risk basis recommended by the Inspector General. The committee expects the Assistant Secretary to consult with the Inspector General to fully understand and evaluate the IG's proposal.
Elsewhere in this title, the committee describes the well-documented problems related to governance, management, and oversight of the nuclear security enterprise. Based upon these concerns, the committee directs the Administrator for Nuclear Security, in coordination with the Secretary of Energy, to submit a report to the congressional defense committees by December 1, 2012, on the findings and recommendations contained in: (1) the National Academies of Science report, "Managing for High-Quality Science and Engineering at the NNSA National Security Laboratories;" (2) the National Laboratory Directors' Council's (NLDC) May 31, 2011, white paper to the Secretary of Energy, "NLDC Prioritization of Burdensome Policies and Practices;" and (3) the Department of Energy's Office of the Inspector General (IG) special report, "Management Challenges at the Department of Energy," for the IG's findings that pertain to the National Nuclear Security Administration. The report should include, for each individual finding and recommendation contained in the documents: the views of the Administrator and the Secretary on the finding or recommendation; a determination by the Administrator and the Secretary on whether action will be taken to address the finding and recommendation; if a determination is made to take action on a finding or recommendation, a description of implementation actions to be taken to address the finding or recommendation; and, if a determination is made to take no action on a finding or recommendation, an explanation of why no action will be taken. The report should also include a detailed list of actions to be taken, the responsible parties for carrying out the actions, and the timeline for when these actions will be accomplished. The report should also contain a list of proposed actions Congress could take to address the findings. |
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