[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
NUCLEAR SECURITY: HAS THE NRC STRENGTHENED FACILITY STANDARDS SINCE
SEPTEMBER 11TH?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON NATIONAL SECURITY,
EMERGING THREATS, AND INTERNATIONAL
RELATIONS
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
APRIL 4, 2006
__________
Serial No. 109-196
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.house.gov/reform
______
U.S. GOVERNMENT PRINTING OFFICE
30-694 WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California
CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California LINDA T. SANCHEZ, California
JON C. PORTER, Nevada C.A. DUTCH RUPPERSBERGER, Maryland
KENNY MARCHANT, Texas BRIAN HIGGINS, New York
LYNN A. WESTMORELAND, Georgia ELEANOR HOLMES NORTON, District of
PATRICK T. McHENRY, North Carolina Columbia
CHARLES W. DENT, Pennsylvania ------
VIRGINIA FOXX, North Carolina BERNARD SANDERS, Vermont
JEAN SCHMIDT, Ohio (Independent)
------ ------
David Marin, Staff Director
Lawrence Halloran, Deputy Staff Director
Teresa Austin, Chief Clerk
Phil Barnett, Minority Chief of Staff/Chief Counsel
Subcommittee on National Security, Emerging Threats, and International
Relations
CHRISTOPHER SHAYS, Connecticut, Chairman
KENNY MARCHANT, Texas DENNIS J. KUCINICH, Ohio
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida BERNARD SANDERS, Vermont
JOHN M. McHUGH, New York CAROLYN B. MALONEY, New York
STEVEN C. LaTOURETTE, Ohio CHRIS VAN HOLLEN, Maryland
TODD RUSSELL PLATTS, Pennsylvania LINDA T. SANCHEZ, California
JOHN J. DUNCAN, Jr., Tennessee C.A. DUTCH RUPPERSBERGER, Maryland
MICHAEL R. TURNER, Ohio STEPHEN F. LYNCH, Massachusetts
JON C. PORTER, Nevada BRIAN HIGGINS, New York
CHARLES W. DENT, Pennsylvania
Ex Officio
TOM DAVIS, Virginia HENRY A. WAXMAN, California
Lawrence J. Halloran, Staff Director and Counsel
J. Vincent Chase, Chief Investigator
Robert A. Briggs, Clerk
Andrew Su, Minority Professional Staff Member
C O N T E N T S
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Page
Hearing held on April 4, 2006.................................... 1
Statement of:
Blumenthal, Richard, attorney general, State of Connecticut;
Danielle Brian, executive director, Project on Government
Oversight; Marvin Fertel, vice president and chief nuclear
officer, Nuclear Energy Institute; and Christopher Crane,
president and chief nuclear officer, Exelon Generation Co.,
LLC........................................................ 65
Blumenthal, Richard...................................... 65
Brian, Danielle.......................................... 73
Crane, Christopher....................................... 105
Fertel, Marvin........................................... 85
Wells, Jim, Director, Natural Resources and Environment, U.S.
Government Accountability Office; Nils Diaz, chairman, U.S.
Nuclear Regulatory Commission, accompanied by Edward
McGaffigan, Jr., Commissioner; and Jeffrey S. Merrifield,
Commissioner............................................... 5
Diaz, Nils............................................... 27
Wells, Jim............................................... 5
Letters, statements, etc., submitted for the record by:
Blumenthal, Richard, attorney general, State of Connecticut,
prepared statement of...................................... 68
Brian, Danielle, executive director, Project on Government
Oversight, prepared statement of........................... 76
Crane, Christopher, president and chief nuclear officer,
Exelon Generation Co., LLC, prepared statement of.......... 107
Diaz, Nils, chairman, U.S. Nuclear Regulatory Commission,
prepared statement of...................................... 30
Fertel, Marvin, vice president and chief nuclear officer,
Nuclear Energy Institute, prepared statement of............ 88
Kucinich, Hon. Dennis J., a Representative in Congress from
the State of Ohio, prepared statement of................... 53
Shays, Hon. Christopher, a Representative in Congress from
the State of Connecticut, prepared statement of............ 3
Wells, Jim, Director, Natural Resources and Environment, U.S.
Government Accountability Office, prepared statement of.... 8
NUCLEAR SECURITY: HAS THE NRC STRENGTHENED FACILITY STANDARDS SINCE
SEPTEMBER 11TH?
----------
TUESDAY, APRIL 4, 2006
House of Representatives,
Subcommittee on National Security, Emerging
Threats, and International Relations,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:05 p.m., in
room 2247, Rayburn House Office Building, Hon. Christopher
Shays (chairman of the subcommittee) presiding.
Present: Representative Shays, Platts, Duncan, Kucinich,
and Van Hollen.
Staff present: Lawrence Halloran, staff director and
counsel; R. Nicholas Palarino, Ph.D., senior policy advisor;
Robert A. Briggs, analyst; Marc LaRoche, intern; Andrew Su,
minority professional staff member; and Jean Gosa, minority
assistant clerk.
Mr. Shays. A quorum being present, the Subcommittee on
National Security, Emerging Threats, and International
Relations hearing entitled, ``Nuclear Security: Has The NRC
Strengthened Facility Standards Since September 11th?'' is
called to order.
This afternoon, the subcommittee continues our oversight of
security standards at civilian nuclear power facilities. Twice
before, we convened to measure the scope and pace of post
September 11th safeguard improvements in and around reactor
sites. Both hearings found some progress, revisited enduring
challenges, and elicited promises of tangible progress.
Today, we take account of those commitments and ask
specifically how the Nuclear Regulatory Commission [NRC], and
the nuclear power industry are maintaining readiness against a
changing threat. One necessary security tool, secrecy, prevents
an open discussion of some particular elements of the design
basis threat [DBT], which sets the threshold of enemies and
capabilities against which reactor sites should be able to
defend.
We will convene a closed session next month to give Members
access to classified material and nuclear safeguard information
supporting the DBT. But the most important part of this
conversation is about public safety, public health, and the
protection of critical infrastructure. It can and should take
place in the open.
At our request, the Government Accountability Office [GAO]
conducted an in-depth examination of the process used by the
NRC to update the design basis threat standard, the industry
response to new security mandates, and the rigor of inspections
and drills used to test security force readiness.
The GAO findings, released today, painted a decidedly mixed
picture of nuclear power security. Substantial improvements
have been made since September 11, 2001, and since adoption of
the new design basis threat in 2003. Buffer zones have been
augmented where possible, barriers have been thickened,
detection equipment installed or upgraded. Protective forces
have been enlarged and armed with new weapons and smarter
strategies.
But according to GAO, it may be too early to claim success
since fewer than half of the 65 NRC-regulated sites have been
tested against a live adversary in what are called force-on-
force exercises. Additionally those tested did not always
perform as well as expected, even in necessarily artificial,
fully noticed drills conducted in broad daylight.
GAO also found that stronger security standards did not
necessarily mean the NRC had sufficiently fortified itself
against the dangers of an overly cozy relationship with the
industry. While still drafting the new design basis threat, the
Commission solicited outside comments, creating the appearance
industry was influencing the threat assessment process with
extraneous cost concerns.
The regulated should never even appear to be able to
dictate security standards to the regulator. But this is more
than a question of appearance. Only the rigor and independence
of the NRC process guarantee the integrity of the product.
Nevertheless, the Commission continues to resist the GAO
recommendation to develop explicit criteria for decisions
altering design basis threat standards. When the reasons for
the NRC decision can only be guessed at, the commission should
not be surprised when their critics see those actions as
arbitrary or the product of undue outside influence.
We know the September 11th terrorists had their sights on a
nuclear reactor. If they had succeeded in causing a radioactive
release by breaching a containment facility with a truck bomb
or draining the water from a fuel storage pool, how would this
discussion be different? That is the conversation we need to
have today.
So we welcome all our witnesses. They are experts, and they
are dedicated to their work. We appreciate that a great deal,
and we look forward to their testimony.
[The prepared statement of Hon. Christopher Shays follows:]
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Mr. Shays. So at this time, let me welcome Mr. Jim Wells,
Director, Natural Resources and Environment, Government
Accountability Office; the Honorable Nils Diaz, chairman, U.S.
Nuclear Regulatory Commission, accompanied by the Honorable
Edward McGaffigan, Jr., Commissioner; and the Honorable Jeffrey
S. Merrifield, Commissioner.
we look forward to the testimony and the response by all
the folks there in terms of the questions that will be asked.
If I could, I know it is a tight seat, and I don't want to
knock over the water again. But I would like you to stand up,
and I will swear you in.
[Witnesses sworn.]
Mr. Shays. We will note for the record that all our
witnesses have responded in the affirmative. Again, we welcome
each of you.
And Mr. Wells, we will start with you.
STATEMENTS OF JIM WELLS, DIRECTOR, NATURAL RESOURCES AND
ENVIRONMENT, U.S. GOVERNMENT ACCOUNTABILITY OFFICE; NILS DIAZ,
CHAIRMAN, U.S. NUCLEAR REGULATORY COMMISSION, ACCOMPANIED BY
EDWARD McGAFFIGAN, JR., COMMISSIONER; AND JEFFREY S.
MERRIFIELD, COMMISSIONER
STATEMENT OF JIM WELLS
Mr. Wells. Thank you, Mr. Chairman.
We are pleased to be here today to discuss the GAO report
on NRC's ability to assure the public and the Congress that
nuclear power plants are capable of defending against a
terrorist attack.
As you know, nuclear power plants were thought to be a
target around the September 11th timeframe, and our sources
believe power plants continue to be a general creditable threat
target today.
Mr. Chairman, the process NRC used to decide on what level
of security they thought was needed was, in our opinion, a
well-defined and generally logical process. However, we did
take issue with how they used some of their staff resources to
gather information from the industry and the public as it
related to the timing of making the decisions about what was to
be in or what was to be out of the final DBT.
For example, some NRC staff, the same NRC staff that was
responsible for assessing the available intelligence and making
recommendations to NRC management was also used to obtain
industry objections and the public. These objections ranged
from such requirements being prohibitively expensive or
excessive in the view that such a threat was coming from an
enemy of the United States, therefore, a responsibility of the
Government and not one for a private company.
The timing of how/when these decisions by the threat
assessment staff on what DBT levels to recommend could create
the appearance of a change being based on industry objectives,
objections rather than an assessment of the terrorist threat.
We believe that the best approach would be to insulate the same
threat assessment staff from such interactions, allowing their
recommendations to be fact-based analysis of the threat instead
of their involvement with policy-level considerations.
We also raised some concerns about the clarity and the
transparency and the discretionary latitude given the
Commissioners and how they cast their votes as to what weapon
or what level of force was to be required in the DBT. The
process that we evaluated in terms of what we saw in developing
the DBT reveals that the Commissioners largely supported the
staff's recommendations, but also they made significant
changes.
Some things were not added, like defense against two types
of weapons, bomb sizes, or quantities of equipment and
explosives that could plausibly be used against a plant. We
spoke with the Commissioners. We examined the voting records.
We accepted the Commissioners' statements that their votes
reflected their policy judgments and their legal authority as
Commissioners.
In voting, the individual Commissioners used differing
criteria, emphasized differing factors, such as the cost or the
practicality of defensive measures. Our concern and our
recommendation was not that the decisions may have been wrong,
but that the criteria that would perhaps help or guide that
would be available to weigh the various possibilities would
assist the Commissioners in their deliberations to approve or
reject the known intelligence or security staff's
recommendation.
Such criteria, to us, would assist in providing more
transparency as well as increasing the rigor and the
consistency of the process in making those decisions. If the
goal is to produce a more credible DBT, we think criteria would
help, especially given that Commissioners come and go.
Mr. Chairman, GAO reported to you in 2004 that we had
fairly significant concerns related to how the NRC was testing
plant security. Two years later, our reaction to NRC's use of
its force-on-force exercise is positive today. We saw
improvements in security, like providing early detection of an
attack, sufficient delay for defensive positions to be
obtained, and improving capabilities of the professional guard
forces to respond appropriately vastly improved over what we
had seen 2 years earlier.
The initiatives that are being put in place and refined as
they go we would characterize as commendable, but still
represent a work in progress. A lot is riding on the quality of
these tests. This type of testing is extremely important to
ensure down the road that public confidence that the plants are
well protected. We saw both good and not so good testing
scenarios, with results that offer NRC and the industry the
opportunity to make improvements.
Mr. Chairman, our bottom-line finding is that the plants'
response and financial investment in the revised DBT following
the September 11th attacks has truly been substantial, in the
billions of dollars. And in some cases, their improvements have
gone beyond what the NRC has required.
Likewise, NRC's significant staff efforts, their orders,
and diligence have clearly raised the security level at the
plants. Having said that, the ability to defend against an
attack is essentially limited to how close the attack turns out
to be to the existing DBT. It remains essential that NRC, the
industry, DHS, and others remain on guard.
At our last testimony, Mr. Chairman, you may recall that we
cited some somewhat challenging working relationships with the
NRC to obtain information in our earlier requests from you.
Today, I'd like to say that the NRC's cooperation has been
excellent, and we appreciate all the senior management
attention that they have given us, and we appreciate the
Commissioners' support in getting the story right.
While we may continue to agree or disagree, we are
impressed with the staff's desire to do a good job. It's no
doubt that you are well aware that NRC faces growing challenges
on many fronts, human capital issues and others, as this Nation
debates the future of nuclear power. A lot is depending on the
quality job that NRC has been tasked to do.
Mr. Chairman, that concludes my short remarks.
[Note.--The GAO March 2006 report entitled, ``Nuclear Power
Plants, Efforts Made to Upgrade Security, but the Nuclear
Regulatory Commission's Design Basis Threat Process Should be
Improved, GAO-06-388,'' may be found in subcommittee files.]
[The prepared statement of Mr. Wells follows:]
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Mr. Shays. Thank you, Mr. Wells.
I think that it is important that you point out, given that
you weren't satisfied with the relationship before, that you
have made it very clear that you are pleased with that
relationship. And that is duly noted and appreciated.
I thank you. I thank the Commissioners for that. That is
the way it should be.
Mr. Wells. Thank you.
Mr. Shays. Mr. Diaz.
STATEMENT OF NILS J. DIAZ
Mr. Diaz. Mr. Chairman, it's a pleasure to be before you
today with my fellow Commissioners; Commissioner McGaffigan,
Commissioner Merrifield.
Commissioner Jaczko and Commissioner Lyons are not here for
different reasons.
Mr. Shays. They wouldn't fit at this table. [Laughter.]
Mr. Diaz. I think they knew that. But they do send their
regrets.
We do appreciate the opportunity to discuss the efforts and
accomplishments of the U.S. Nuclear Regulatory Commission and
its licensees to improve safety and security at nuclear power
plants. Testimony today will focus on the Government
Accountability Office's recent report, and we'll also provide
an update on the status of nuclear power plant security.
The Commission appreciates the efforts of GAO in reviewing
this important topic; the care taken to ensure that the report
is comprehensive, up to date, and accurate; and the
consideration given to NRC's comments. We believe GAO's input
and its criticism are constructive, and we are taking their
recommendations very seriously.
Mr. Chairman, safety, security, and emergency preparedness
at nuclear power plants are synergistically improving. Our
organization and the licensees' organization have changed to
respond to the post September 11th world and did change
rapidly.
The safety and security framework for reactors and
materials is in place. It's tested and being improved
commensurate with the September 11th threat and potential
consequences. The agency's security and research program were
major contributors to the security assessments that were done
and the improvements made.
These programs focused on defining the vulnerabilities and
security needs and then were integrated with operational safety
and licensing priorities, leveraging resources and expertise
with our Federal partners and national laboratories.
We continue to manage and prioritize resources, including
our human resources needs, investing in the present and in the
near future, while exercising appropriate fiscal restraint.
In its recent report, GAO recommended that NRC improve its
process for making changes to the DBT. Additionally, GAO
recommended that the NRC should separate the responsibility of
receiving and considering external stakeholder feedback from
the process of developing the specific threat characteristics
in the DBT. It is important to consider those recommendations
in the proper context.
On February 25, 2002, the NRC supplemented its security
regulations through orders to power reactor licensees imposing
interim compensatory measures informed by information received
from law enforcement and intelligence agencies. The orders were
based on a review which included land, water-borne, and
aircraft threats, for estimating damage, enhancing deterrence,
prevention and mitigation, and reducing potential consequences
to the public.
These measures required power reactor licensees to enhance
security and improve the capabilities to respond to a terrorist
attack, effective August 31, 2002. These orders constituted a
de facto supplement to the DBT by adding appropriate security
enhancements that the NRC deemed necessary in light of the
heightened threat environment and were arrived at with no
industry input.
The interim compensatory measures provided a significant
foundation for the subsequent orders. These enhancements to
security included significantly increasing the numbers of
dedicated security guards with threat response duties,
increased vehicle standoff distances, addition of water-borne
threats, and improved coordination with law enforcement and
intelligence communities, as well as strengthened safety-
related mitigation procedures and strategies and enhanced
background investigation.
Furthermore, on April 29, 2003, the NRC, after soliciting
and receiving comments from appropriate Federal, State, and
industry stakeholders, issued orders supplementing the DBTs and
provided additional details regarding specific adversary
characteristics against which power reactors need to protect.
While the specifics of these changes are sensitive, the
supplements to the existing threat resulted in enhancements
such as increased patrols, augmented security forces and
capabilities, additional security posts, additional physical
barriers, vehicle checks at greater standoff distances,
enhanced coordination with law enforcement and military
authorities, augmented security and emergency response
training, equipment, and communications, and more restrictive
site access control for personnel, including expanded,
expedited, more thorough background checks and enforceable work
hour limits and training for security force personnel.
All these orders required implementation by October 29,
2004, and have been inspected for compliance.
The NRC conducts security oversight to ensure compliance
with its requirements, including baseline inspection programs
and force-on-force exercises. The NRC conducted force-on-force
testing at nuclear power plants since well before the events of
September 11th and has since enhanced the program
significantly.
The force-on-force program is a performance-based NRC
program to physically test and evaluate the site's defensive
strategies concerning the DBT. The GAO report recognized its
value to the continual improvement of security at NRC
facilities. The NRC continues to enhance the programs through
the integration of lessons learned from previous exercises.
Since September 11th, we have conducted force-on-force
exercises, including the pilots and the extended pilots at 53
of the 64 reactor sites, 26 after the full program was started
and 27 in the pilot program and the enhanced pilot program.
Currently, the NRC is also implementing key provisions of
the Energy Policy Act of 2005 that will help augment the
oversight of security for nuclear facilities and materials. For
example, the act authorizes the possession and use of certain
firearms by security personnel. The Commission is very pleased
that many long-sought security-related pieces of legislation
were included in the Energy Policy Act, and we thank the
Congress for its support.
In its recent report, GAO recommended that the Commission
develop explicit criteria for defining what is and is not
reasonable for a private security force to defend against. The
Commissioners' decision regarding final approval of a
supplemental DBT were not arbitrary. The Commissioners'
deliberations and decisionmakings were comprehensive, thorough,
risk-informed, and resulted in effective enhancements of
defensive capabilities of nuclear power plants.
While additional delineations of relevant considerations
might be useful in some circumstances, reasoned judgment within
this and other areas of the Commission's statutory
decisionmaking authority does not require and, in fact, could
be unduly restricted by detailed prescriptive criteria.
Moreover, overly detailed prescriptive criteria could be
detrimental to good regulatory decisionmaking.
GAO's second recommendation focused on the process used by
the Commission to obtain external stakeholder input while
developing the supplemented DBT in 2003. Again, we believe we
needed to act promptly, but deliberately. Issuance of orders is
not and should not be routine, but it was expeditious at the
time.
We agree with GAO that separation of the threat assessment
process and the establishment of the DBT characteristics should
be maintained. Now that the NRC has returned to our normal DBT
review process, wherein we sequentially develop a revision to
the DBT, then seek external stakeholder input, we have fully
addressed GAO's concern.
Mr. Chairman, the Nuclear Regulatory Commission acted
promptly and effectively to integrate increased security at
nuclear power plants with safety and emergency preparedness. We
continue to strengthen our partnership with Federal, State, and
local authorities to provide and integrate the response to
potential threats of nuclear power plants.
Our oversight confirms that licensees have implemented the
requirements and have adequate security, safety, and
preparedness capability to ensure protection of the American
people.
We will be pleased to answer the questions of the
subcommittee.
[The prepared statement of Mr. Diaz follows:]
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Mr. Shays. Thank you, Mr. Chairman.
And I would just note, the other Commission members, when
we ask questions, just jump in as full participants here.
I would like just first to have an explanation of the 27
figure, and you give the 26 plus 27. So maybe, Mr. Wells, I
would like you to respond first just so I have a sense of how
you can reconcile those numbers. I know the chairman can, but
how do you reconcile them?
Mr. Wells. The numbers we used were the reports that were
available based on baseline inspections and force-on-force
exercises that had been conducted since the revised DBT was
implemented in 2003, after October.
I believe the chairman's numbers including going back all
the way to September 11th timeframe years before. Quite
frankly, 2 years ago, when we looked at their old inspection
program, we found a lot of problems and weren't too impressed
with the rigor of that inspection. So we didn't include those
numbers. We only included what they've done since, recently.
Mr. Shays. Would you concur that is the difference of the
numbers, Mr. Diaz?
Mr. Diaz. Not exactly, Mr. Chairman.
The 26 numbers are what we call the numbers of the force-
on-force exercises that were conducted after the security plans
were in place.
Mr. Shays. But not before the design basis threat?
Mr. Diaz. After the design basis threat was established, we
started to conduct pilot programs, which are not exactly the
same as they conducted, but they were force-on-force programs.
Mr. Shays. Right. No, but you do agree that the 27 are
basically from the design basis threat?
Mr. Diaz. No. Yes, from the time that the full program is
started.
Mr. Shays. Right. Right.
Mr. Diaz. Two years before, we had been conducting----
Mr. Shays. So where you might have the disagreements are
that what you did before, you would say is valid, Mr. Wells
would question, and I would probably side more with Mr. Wells
on that. I mean, the design basis threat was, it upped the ante
a bit. You had to meet a stronger standard.
Mr. Diaz. They were very close, sir. They were very close.
Mr. Shays. I hope they weren't close.
Mr. Diaz. No, no. Because----
Mr. Shays. Don't go down that road.
Mr. Diaz. Because the February 25, 2002, orders served as a
very good baseline for the DBT. By the time the DBT was
implemented or was not implemented, by the time we actually
established the orders in April 2003, we commenced with a
series of pilots on force-on-force that actually helped us see
what was the implementation needs, what things needed to be
done.
And in many ways, they did serve a very good purpose of
informing the Commission of the compliance of the licensees so
that there was no compliance issues. We have----
Mr. Shays. I am not saying it was better than nothing, but
it wasn't as good as what happened after you had a design basis
threat. So I am not saying it was useless. I am just saying
what the design basis threat, once you did that, you have done
27. That is the marker we are using.
Mr. McGaffigan. Mr. Chairman, I think it's more important
to focus on where we agree, and Mr. Wells agrees that what
we're doing today in the 27, which is exactly what Congress
asked us to do in the Energy Policy Act; do 1 every 3 years at
each of these sites; 22 a year. It's been a little more than a
year. That's why the 27.
We are doing that. We're doing it well, and we're
continuing to try to make improvements as we bring in, you
know, additional ways to deal with realism. By the way, we
don't do them all in the daytime. We do them at night.
Mr. Shays. Yes. We will talk a little more about it. But
let me just say what I think is the most helpful. What is most
helpful to this subcommittee is as accurate and precise
information as we can get and not trying to win an argument
here.
One of the values, and I appreciate the Commission
understanding that it is helpful to have the GAO at the table
rather than have them come separate and so on; but this isn't a
debate. We are not trying to win arguments. We are just trying
to know the truth, know where our strengths are, where our
weaknesses are.
We are all under oath in this subcommittee because we
really value real accuracy. So, I am not trying to get in any
game here. I just want to know the distinctions.
So, what I am going to carry from that last question is you
did 26 before you had a design basis threat. It was helpful.
Your statement is that design basis, that wasn't all that
different. I think there was some differences.
Mr. Diaz. There are some differences, sir.
Mr. Shays. Yes.
Mr. Diaz. There are some differences.
Mr. Shays. There had to have been. And I know when I am
dealing with the Energy Department as it relates to the
protection of their facilities, when we walk through about four
of those sites, we had some very serious--this is a number of
years ago--about the design basis threat. And frankly, there
were some assumptions that were almost absurd, absurd in that
they didn't look at what we think would be a real issue.
I don't think you are going to be faced with an attack at
every site. I think you are going to be faced with an attack at
one or two sites that will be so well thought out and will take
years to develop. In other words, by developing, having someone
in-house be part of the problem, or maybe two.
Just as an example, without talking about what your design
basis threat is, there is a huge difference between two
insiders and one. Assumption makes the reality of dealing with
it much different.
Let me ask you what role did the industry play in helping
the Commission establish the design basis threat? And let me
say before you answer, it had to have some role. So don't tell
me it didn't have any role. Then we have big problems. Just
tell me how much a role.
Mr. Diaz. Well, sir, the staff, first, worked with
intelligence community and worked with State authorities to
come up with a threat assessment. Once that threat assessment
was established, it was determined at the time that it would be
more expeditious to engage those stakeholders that were
cleared.
Of course, one of our principal stakeholder groups consists
of the licensees, those who are going to have to implement the
DBT, those who are going to have to actually manage the
security forces. And at that time, the staff determined that it
was appropriate to get them involved, to get feedback on what
the DBT was, and they received that feedback.
However, I must say that the deliberations of the
Commission were separate from that. The Commission maintains a
separation with the staff, and we actually have that process in
place.
The staff actually went, prepared it, and then interacted
with the industry, received feedback from the industry, and
then the deliberations of the Commissioners--especially these
three Commissioners, which were actually there and doing the
deliberation--was totally separate from the industry.
Mr. Shays. Wouldn't it be more logical to have established
what you viewed as the design basis threat and then asked the
industry to respond? And I realize that it would be behind
closed doors.
But in other words, rather than their input before,
wouldn't it have been almost better to have their input after?
Mr. McGaffigan. Mr. Chairman, just in terms of the process
we followed, as Chairman Diaz said, in February 2002, we issued
an order with no industry input, based only on law
enforcement----
Mr. Shays. When was that, 2002?
Mr. McGaffigan. February 2002. Within 6 months after
September 11th. And Chairman Diaz, as a Commissioner then,
should take credit because he was the driving force behind
we've got to get this out. Dick Meserve was our chairman at the
time.
We put that out. No industry input. We actually had a few
glitches as a result of that because some of the words were not
precise, and we had to issue some clarifying guidance later in
the year.
In late 2002, we had tasked the staff to come up with a DBT
that could go forward. In January 2003, we took that staff
document, without change, and gave it to the law enforcement,
intelligence, and security agencies of the Government, to all
the States that had NRC facilities in them, and to the industry
for comment.
So, without industry input, we put out a draft document for
comment. At that point, we got input. Twelve of the States came
back and gave us input.
Mr. Shays. Is this for the final DBT that you----
Mr. McGaffigan. This is for the final DBT. I'm talking
January 2nd or 3rd, 2003, heading toward an April decision on
the final DBT.
So the process that we went through was to get as broad
comment as we could from those who had clearances. So, as I
said, all the States----
Mr. Shays. I get the picture here. I understand what you
are saying.
Now let me ask you, Mr. Wells, have you seen that document
that was the earlier document that they were asked to comment
on?
Mr. Wells. Yes, we have.
Mr. Shays. OK. Were there significant changes from that
document, as you recall?
Mr. Wells. The process, as we saw it in January 2003, the
threat assessment staff, based on their assessment of
intelligence, available information, recommended at least in
the five major areas a level of DBT support, number of
attackers, vehicle bombs, weapons, and equipment, and
explosives.
In January 2003, they were also involved in getting input
from the----
Mr. Shays. Who is ``they?''
Mr. Wells. The threat assessment staff were also involved
in task, and they dealt with the industry in comments received
in February 2003, in March 2003, and in April 2003.
Mr. Shays. Well, you confirmed this----
Mr. Wells. They recommended to the NRC management that four
of those categories I just talked about were lowered. Four of
the five were lowered.
Mr. Shays. Right. So----
Mr. Wells. It's a timing issue for us in terms of when the
information was considered, which is recommended.
Mr. Shays. Yes, and what would be good is for us, when we
meet behind closed doors, to walk through those. You know, in
any case, were they strengthened?
Mr. Wells. No, sir.
Mr. Shays. How did the NRC resolve the question of whether
the DBT represents a true reflection of the terrorist threat
and not based on basically what was viewed as practical?
In other words, it may be the design basis threat would be
so impractical as to put the plan out of operation. But if that
is the case, it should be put out of operation. I mean, if, in
fact, the design basis threat is realistic, but not practical,
that tells us something. Do you get the gist of my question?
Mr. Wells. Yes, sir.
Mr. Shays. Let me ask Mr. Merrifield, since you haven't
participated, if you would respond to that question?
Mr. Merrifield. Well, I think part of that question goes to
the heart of the question you asked previously, and that is
regarding the involvement of the industry.
Mr. Shays. Right.
Mr. Merrifield. The fact of the matter is we have a system
in which we place the responsibility for defending the plants
on the utilities themselves. So for the Commission to come up
with a DBT in a vacuum without having an understanding of the
impact operationally at the plants and what those costs would
be would not be appropriate for us as a regulator to regulate
in that way.
So I think it was important for us to have some sense of
what the practicality of that may be and the associated cost.
Mr. Shays. You know, I think that is a very helpful and a
very honest answer. But if you think about it, you could argue
both sides of the equation. If, in fact, the design basis
threat is realistic, but it is so onerous to the operation of
the plant, it is still realistic.
Mr. Merrifield. Well----
Mr. Shays. Let me just finish. So if it is realistic, that
is the threat. And the threat really isn't an issue of whether
or not it is practical. I mean, you may conclude that a
particular plant needs to be shut down because the design basis
threat is realistic--I am being redundant--but you can't defend
it.
Mr. Merrifield. I think there's a variety of elements that
go into the decision that's made by the Commission. The first
thing is taking the information that we derive from our own
staff and from the intelligence community in attempting to
derive what that threat is.
One of the things I think that we reflect on as
Commissioners is the fact much of that information is
subjective in nature. It involves judgment calls by the
intelligence community regarding what they believe are the
capabilities of the adversaries we face, and that salts its way
throughout the early part of that process.
Layer on top of that is the interface between ourselves and
our licensees and the responsibility that we place on them. We
have, in the context of our regulatory authorities, the notion
that there is an enemy of the State, some capability beyond
which is really not the responsibility of our licensees, but in
a free society is placed on local, State, and Federal
Governments.
What we've tried to do as a Commission in a post September
11th environment is to enhance what we're doing with local,
State, and Federal Government to make sure that the
responsibility for defending the plant is seamless. Some
responsibilities under the context of the DBT, which were
imposed on our licensees, but coordinating under the auspices
of DHS with our counterparts in local, State, and Federal
Government to ensure that where the DBT ends off, there are
capabilities out there to respond to those elements outside of
the DBT.
Mr. Shays. Yes, sir?
Mr. McGaffigan. Mr. Chairman, let me just deal with the one
that's the elephant on the table, the aircraft threat. Let's
just take that threat. That was the September 11th threat.
Mr. Shays. Right.
Mr. McGaffigan. Dick Meserve, our former chairman, was
testifying as early as 2002 that we did not think that threat
belonged in a DBT because the weaponry with which you could
defend yourself, either fighter planes armed with air-to-air
missiles or surface-to-air missiles, is not appropriate for a
private sector regulated guard force to have.
We didn't stop there. We then, I think, are unique in
Government today in the relationship we have with NORAD and
NORTHCOM, as they have upgraded their capabilities, we have
imminent threat procedures at these plants. NORAD has high
confidence they can detect the aircraft that are in duress
nowadays diverting from a flight path.
If they can't get an F-16 there, they're on the phone with
our licensees, and our licensees are prepared to put that plant
in the safest configuration possible, which, among other
things. If it's truly imminent, they will scram the reactor so
the reactor is shutting down. There is no further nuclear
energy being produced.
And they'll do various other things. Disperse personnel.
All that sort of thing. The plants are inherently hard,
compared to chemical plants or anything else in our society. So
we think that we have gone for. As Commissioner Merrifield
said, in dealing with the enemy of the state, we don't stop
there.
We work with the appropriate agencies of government. We
have unique relations. The chairman was just at NORTHCOM and
NORAD a few weeks ago with the senior staff to tighten that
relationship. So that's what we do.
The original enemy of the state notion came when we were
licensing--obviously, a previous Commission in the late
1960's--the Turkey Point reactor, which is less than 100 miles
from Cuba, Chairman Diaz's home country, and with whom I'm sure
he'd want me to add he strongly disagrees with Mr. Castro.
[Laughter.]
Mr. Shays. What he would like you to say is he is a citizen
of these United States, and proudly so, and grew up in Cuba.
Mr. McGaffigan. Right. The fact is that to deal with
licensing Turkey Point, we had to assume the U.S. Air Force
would intercept MiGs coming from Cuba.
Mr. Shays. Let me just say I understand, you know, that we
have kind of slipped into the enemy of the United States issue,
and that is a question of whether you incorporate in your
design basis threat the responsibility to include that. And
that is another issue.
The issue that we are not going to resolve, but the issue
that, obviously, we are going to be wrestling with, as you do,
is how much does practicality trump the design basis threat?
That is the bottom-line issue.
Mr. Wells, do you get a sense of what I am asking here?
Mr. Wells. I understand the sense of your question. It's an
appropriate question. The GAO didn't make a value judgment
about that.
Mr. Diaz. Sir, can I----
Mr. Shays. And let me just say, before you respond, that we
have been joined first by Mr. Platts, and appreciate him, from
Pennsylvania and also our ranking member.
And I am going to make sure that I just take care of what
is a technical responsibility of this Chair, and that is ask
unanimous consent that all members of the subcommittee be
permitted to place an opening statement in the record, and the
record remain open for 3 days for that purpose. And without
objection, so ordered.
I ask further unanimous consent that all witnesses be
permitted to include their written statement in the record.
Without objection, so ordered.
And to note for the record that we do have a quorum. We are
legal. OK.
Yes, sir?
Mr. Diaz. Let me go back to the question of, you know, how
do you know that you have the right DBT, which I think is what
you are asking.
Mr. Shays. Right. Right.
Mr. Diaz. You know, I might have to beat our drums or toot
our horns in here, but I want to assure you that since
September 11th, these Commissioners and the entire Commission
was so engaged on the issue of security that each one of us was
continuously aware of what the intelligence that was coming,
how it was being treated, how it was being handled.
Each one of us went and engaged other agencies. The process
that we went through was very, very thorough and very
comprehensive. We do take into account not only the
intelligence threat, but what experts were telling. I
personally went to the Department of Defense, sat down with the
experts, looked at the information.
We made informed decisions. Those decisions that were made
we made collegially. We interact. We bounce things off each
other. This was a period of months in which we looked at
everything that the U.S. Government had available, and I must
say, sir, that we are very thankful that since September 11th,
we got much better information. We got it quicker. We have
tremendous amount of cooperation from other agencies.
We were able to receive information and make decisions that
we believe were directed to protecting the public health and
safety of Americans.
Mr. Shays. Before going to Mr. Kucinich in just 1 second,
what I am interesting in knowing is--I mean, the bottom line is
the staff made a recommendation. Obviously, staff is not always
right. I am tempted to say more, but----
Mr. Merrifield. They serve us all, Mr. Chairman.
Mr. Shays. Yes, they do. But the bottom line is they came
out with a certain recommendation, and in four instances, I
think you testified, Mr. Wells, they were softened. Four or
five?
Mr. Wells. Four of the five.
Mr. Shays. Yes. And so, were you told, ``This was our
recommendation, and now this is our recommendation based on
input?'' So you saw both. And did you question why they had
been changed?
Mr. Diaz. We saw the draft, and we saw the final
recommendation. We went in closed doors with the staff and
asked, you know, what is your best recommendations? What are
the issues----
Mr. Shays. Did you ask them why they recommended it be
reduced?
Mr. Diaz. I don't remember that I asked them why. I
questioned the changes.
Mr. Shays. OK. Well, we will ask you why when we are behind
closed doors.
Mr. Diaz. OK.
Mr. Shays. Just for the record.
Mr. Kucinich.
Mr. Kucinich. Thank you very much, Mr. Chairman, and
members of the subcommittee, to our witnesses.
Mr. Wells, in your summary of what GAO found, ``GAO found
that the process used to obtain stakeholder feedback created
the appearance that changes were made based on what the
industry considered reasonable and feasible to defend against
rather than on what an assessment of the terrorist threat
called for.''
Is this conclusion based on what you would say would be the
culture of the NRC itself in terms of its over-responsiveness
to the cues which industry sends out about what it wants?
Mr. Wells. Mr. Kucinich, we made that conclusion based on
the process that we observed that was used in 2003 to develop
that DBT. It was a timing issue in that DBT.
I would say that the NRC has responded to us that was a
process that they don't normally use. That it was used to
expedite the development of that particular DBT and that they
believe they fixed our recommendation by saying that in the
future they will not use that sequential process, but will
revert back to an individual process step.
Mr. Kucinich. So is it your opinion then that the industry
is not calling the shots with respect to design basis threat?
Mr. Wells. We have no evidence of that. What we say in our
conclusion is because of the circumstances of when the comments
were received and the staff that was used to receive those
comments, it certainly could create the appearance that lest
they could defend otherwise that they were influenced by the
industry.
It's an appearance issue, a conflict of interest concern on
our part.
Mr. Kucinich. Right. Now, Mr. McGaffigan gave the
subcommittee reasons why the private sector should not have to
guard against air attacks on nuclear plants. My question is Mr.
Wells--are there any security enhancements which could be made
at sites to better protect against air attacks?
Mr. Wells. Mr. Kucinich, in an open forum, we are aware of
studies that have been done in a classified arena. But to
discuss those details would be beyond the scope of this
hearing.
Mr. Kucinich. Mr. Diaz, is the Nuclear Regulatory
Commission in contact with the industry with respect to
fortifying reactors against potential air attacks?
Mr. Diaz. The answer is not only are we in contact, sir.
But on February 25, 2002, we ordered the industry to take
measures to mitigate the consequences of large fires and
explosions, including those that could be caused by aircraft
attacks.
The industry was given requirements, timelines. Some of
those, because they were made very quickly, had to be refined.
But the answer is, yes, the industry has been ordered and is
prepared to take those actions necessary to protect the
American people from the consequences of aircraft attacks.
Mr. Kucinich. Are you telling the committee that the NRC
design basis threat includes aircraft attacks?
Mr. Diaz. No, sir. I am not saying that.
Mr. Kucinich. OK.
Mr. Diaz. I am saying that we issued a specific order on
February 25, 2002, that ordered the industry to be prepared,
OK, to deal with the consequences.
Mr. Kucinich. Mr. Chairman, considering that we know that
the September 11th hijackers had initially targeted nuclear
plants, why doesn't the NRC design basis threat include
aircraft attack?
Mr. Merrifield. Can I try that----
Mr. Kucinich. Before you answer that, would it be OK if Mr.
Diaz answered?
Mr. Diaz. Sure. You know, fundamentally, this is an issue
the Commission put a significant amount of thought. It was a
serious issue.
You know, we have responsibility for both safety and
security. We believe that we could deal with the potential
consequences of an aircraft attack in the safety arena, that we
could actually require and did require our licensees to deal
with the consequences.
We do not believe at the time, nor do I believe now, that
we should make licensees responsible for defending, you know,
with aircraft and anti-aircraft or any other measures against,
you know, the anti-aircraft, against the aircraft threat.
Mr. Kucinich. Well, now did Mr. McGaffigan want to add to
that?
Mr. McGaffigan. Just, sir, the design basis threat is a
legal term in NRC regulatory space. It's the threat against
which the licensee has to be able to defend, as opposed to the
enemy of the state concept that Chairman Shays started to get
into, which is the responsibility of the Federal Government.
And that concept has been in our regulatory practice for almost
four decades.
The weaponry required for a licensee to defend against an
aircraft attack--surface-to-air missiles and fighter planes
with air-to-air missiles--that sort of weaponry is entirely
inappropriate for a private sector regulated force to have.
Mr. Kucinich. I don't know that anyone here is suggesting
that the licensees do that. But there was a suggestion earlier
with respect to fortification of the reactors.
Mr. McGaffigan. But, sir, we have, as Chairman Diaz just
outlined, as a result of the February 27, 2002, order--February
25, 2002, order asked licensees to figure out what they can do
to cope with an accident should it occur, should such an attack
occur, with their safety systems, what enhancements can they do
with their safety systems.
As I said in response to Chairman Shays earlier, we can put
the plant, we think with the help of NORAD and NORTHCOM, in the
safest possible configuration that we can place it with a
little bit of warning, and we have procedures in place, tested
procedures in place to do precisely that.
So we think that the combination of our imminent threat
procedures, the inherent hardness of the facility, the
additional thought that licensees have given to this matter
since February 25, 2002, adds up to a very robust capability to
protect the public health and safety.
Mr. Kucinich. Have all the licensees complied with your
communications?
Mr. McGaffigan. Yes, sir.
Mr. Kucinich. If they have all complied, you know, I
understand that nuclear plant owners applying for license
extensions are required to submit a severe accident mitigation
analysis as part of their applications for renewal of their
licenses.
Why doesn't the NRC require a design basis threat analysis
of an aircraft attack in the severe accident mitigation
analysis?
Mr. Diaz. The design basis threat rulemaking will take into
consideration, according to what the comments and what the
process finally ends up, the potential for an aircraft attack,
that we believe that the rulemaking is the right process to be
able to get the right information on the issue, proceed with,
you know, the deliberations that need to take place.
So it will be part of the new consideration of the DBT. And
if, at the time, that is a pathway, then we will take it very
seriously and consider it.
It might very well be that we, at the time, the U.S.
Government will have enough additional protection for aircraft
that added to the defenses that exist at the plant for the
safety systems, you know, we might consider that might not be
adequate. I cannot prejudge what the decision will be.
Mr. Kucinich. Yes, I want to go back to Mr. Wells.
According to the GAO, the NRC, under pressure by the nuclear
industry, overruled staff recommendations in the draft design
basis threat that required a full range of weapons that could
be expected to be used in an attack on a nuclear facility.
My question to you is did the NRC staff recommendations in
the draft design basis threat also include a large aircraft as
one of the weapons that could be used in such an attack, and
did the NRC overrule such a recommendation?
Mr. Wells. The staff did not include an airborne----
Mr. Kucinich. I am sorry?
Mr. Wells. The staff did not include a recommendation for
airborne protection in the draft DBT.
Mr. Kucinich. So the staff never mentioned on staff
recommendations. There is no draft staff recommendation for
aircraft?
Mr. Wells. To include airborne, there were not.
Mr. Kucinich. None? And so, therefore, the NRC didn't
overrule----
Mr. Wells. That's correct.
Mr. Kucinich [continuing]. Because you said such a
recommendation was never made?
Mr. Wells. That's correct. For airborne. For other weapons
and equipment, yes. But not for airborne. It was never included
originally.
Mr. Kucinich. OK. One final comment here, and that is that
the concerns which some of us have is that the industry is
basically leading this dance, and the industry may not want to
spend the kind of money that would be necessary to fully
protect these nuclear reactors.
And that it is up to the NRC to tell the industry what it
ought to do. It is not up to the industry to tell the NRC what
it is willing to do. There is a difference of opinion.
Thank you, Mr. Chairman.
[The prepared statement of Hon. Dennis J. Kucinich
follows:]
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Mr. Shays. I thank the ranking member very much.
Mr. Merrifield. Mr. Chairman, may I respond to that?
Mr. Shays. Sure.
Mr. Merrifield. May I respond to that briefly?
Mr. Shays. Sure.
Mr. Merrifield. I would say I appreciate the comment made,
Congressman Kucinich. I think we take our independence very
seriously. We are willing to issue orders for security. We have
issued very significant, very costly orders for security in a
post September 11th environment.
We certainly, as we listen to stakeholders, whether it's
Congress, whether it's the American people as a whole, or
whether it is the utilities that we regulate, we listen to the
views of a myriad of people who have concerns about these
issues.
But at the end, the members of the Commission, including
the three of us who are here, were sworn to uphold and defend
the interests of this country. And so, we take that mission
very seriously in making an independent judgment as to what we
feel is appropriate, irrespective of whether the industry likes
it or not.
Mr. Kucinich. Mr. Chairman, if I may, in response?
We know the NRC has pulled safety information from its Web
site, restricted access by public interest groups, even tried
to keep inspection and security guard performance information
secret. Sir, with all due respect, I have my own understanding
of the NRC with respect to the conduct of the NRC at Davis-
Besse in Ohio.
So I want to take what you are saying in the spirit that
you are going to do the best job you can. That is how I want to
take it. But I also know that the NRC is under different types
of pressures that some agencies come under when there is
powerful interest groups at work.
So thank you for the job you are doing.
Mr. Shays. Mr. Platts. Thank you, Mr. Platts, for your
patience.
Mr. Platts. Thank you, Mr. Chairman.
I apologize. I need to run to a 3 o'clock meeting, but I do
appreciate the chance to get a couple of questions in.
Mr. Shays. You take your time.
Mr. Platts. Thank you for your continuing oversight of this
issue.
I want to just make sure my understanding, Mr. Wells, in
your testimony here today and your written statement, you have
talked about that appearance of a conflict and that the
industry's input that it was really what was reasonable and
feasible to defend against, as opposed to an assessment that
was based on the realistic terrorist threat. And that there was
an appearance of this.
I don't know if you are able to answer in this session or
when we are in closed session, but besides the appearance, is
there a belief by GAO that is the fact. That it was a decision
based on the reasonable and feasible in the industry's
perspective, as opposed to the good faith terrorist assessment?
Mr. Wells. We have no evidence to support undue influence
by the industry. It clearly was an appearance issue to us that
we believe could be fixed if the threat assessment staff were
just removed from this process.
What we do know factually is what they recommended going
in, after getting industry and other's comments, was lowered
significantly in terms of their recommendation to the
Commission for approval. That's what we know.
Mr. Platts. In being lowered, is it then your opinion that
the lowered standard is not in line with the realistic threat?
Mr. Wells. We did not make an evaluation judgment or were
we asked to decide whether these decisions were correct. So we
just reported on the process that occurred.
Mr. Platts. OK. Thank you.
On the specific issue of the inspections and the force-on-
force exercises, my understanding from the testimony is less
than half, 27 of the 65 have had force-on-force exercises.
Mr. Wells. Thirty-one, 30-some percent. That's correct.
Mr. Platts. OK. This would be a question really to the
Commission members or to you, Mr. Wells. Is there a timeframe
for when all 38 remaining will also have had those exercises?
Mr. Diaz. Yes, sir. They all have to have an exercise
within a period of 3 years. In the next approximately 15
months, they would all--will have conducted force--a new,
complete force-on-force exercise. You miss the fact that we
have been having other not as complete force-on-force
exercises.
Mr. Platts. Right.
Mr. McGaffigan. Excuse me, sir. Could I also add----
Mr. Platts. Sure.
Mr. McGaffigan [continuing]. That one item of our training
requirements for the power reactors is that every shift of
security personnel gets trained annually, which de facto
becomes they do force-on-force exercises at least quarterly.
They have five shifts. They get them done, and there are very
impressive capabilities they have for their own force-on-force
exercises to get ready for our scored force-on-force exercise.
I was at Quad Cities last week. Exelon--you'll have Mr.
Crane later--has chosen to buy its own MILES gear. So they use
this equipment that comes from the military that makes the
exercises much more realistic, even in their own training
exercise. Not waiting for us to show up.
So that's an example, I think Mr. Wells mentioned earlier,
where licensees have gone beyond NRC regulatory requirements.
So our exercises, our scored exercises occur once every 3
years, just as Congress asked us to do in the Energy Policy
Act. But our training requirements require them to do force-on-
force exercises more than once a quarter.
Mr. Merrifield. Well, and just very briefly?
Mr. Platts. Sure.
Mr. Merrifield. In addition, because we have resident
inspectors at the site, they do have the opportunity to also
witness those additional exercises. We don't evaluate those
formally or grade them on them, but obviously we take what we
do from observing those.
Mr. Platts. The requirement that at least once in the 3
years, the force-on-force, is the reason that there are still
38 that have not had that just a manpower issue, being able to
plan and execute those 38?
Because given the environment we are in, the fact that we
are 4 1/2 years after September 11th and still another 15
months perhaps until we get all of them done, it seems like we
would want to be prioritizing that.
Mr. Merrifield. I think, just to clarify one thing, we have
been conducting force-on-force evaluations at the plants pre
September 11th. We've been doing it since probably the mid
1980's or before--early 1990's?
Mr. Diaz. Early 1990's.
Mr. Merrifield. What we've done, however, is we have
reduced the periodicity of those. We used to make sure we had 1
every 7 years. Now we're to 1 every 3 years. We're increasing
the rate of this.
Mr. Platts. Right.
Mr. Merrifield. But I just didn't want to give you the
impression----
Mr. Platts. Also, the assumptions that you are basing those
force-on-force certainly have changed.
Mr. Merrifield. Agreed. That's correct.
Mr. Platts. Because of what happened on September 11th, and
not just September 11th, but throughout the 1990's with the
different major terrorist attacks against our Nation.
Mr. Merrifield. That's absolutely right. What is different
about the new ones that we're taking a look at is, No. 1,
they're better exercises. We use a MILES gear, as Commissioner
McGaffigan has mentioned. We test them harder. We test them
with more elements. So it's a better exercise now.
But I just didn't want to leave the impression in the
record that we somehow invented force-on-force 3 years ago
because we've been doing this for many, many years.
Mr. Platts. Right. Mr. Chairman.
Mr. Diaz. And there is one key fact is that----
Mr. Shays. Excuse me. You may be the chairman, but you
still have to use the mic. [Laughter.]
Mr. Diaz. Thank you, Mr. Chairman.
One key fact is that the way these exercises have been
distributed among the industry is that 31 out of 32 licensees
have experienced one exercise or another. So they all have been
exposed to it, OK?
So that means that in their security culture, they have
been exposed to it. They have seen it. They know what it is.
They know what the requirements are. They actually are then
capable of taking these experiences from one plant to the
other, and I think that is a very favorable fact.
Mr. Platts. Let me get one other quick question, I
apologize in having to run. That regarding the frequency of the
inspections. Mr. Wells, in your testimony, you talk about that
they have improved their force-on-force, for example, by
conducting inspections more frequently at each site.
So does that mean some sites have had more than one force-
on-force exercise while others are still waiting?
Mr. Wells. In the past, these exercises were conducted in a
different form but were done once every 8 years. They've
escalated that to once every 3 years. I do want to point out
that's still an aggressive schedule. These things are big
deals. They're very expensive to conduct. And it's going to be
a challenge for them to complete all these in time.
Mr. Platts. So I want to make sure I am not
misinterpreting. There has been no facilities that have had a
second force-on-force in the 3 years before others have had
their first?
Mr. Wells. With the exception, if they perform a force-on-
force, and the licensee performs poorly or there is unanswered
questions about their ability to protect, they will schedule a
second, repeat exercise.
Mr. Platts. OK.
Mr. Wells. They'll keep going back to that same plant until
they get it right.
Mr. Platts. OK.
Mr. Diaz. We have done that, Congressman. We had one plant
that did not meet standards, and we scheduled immediately
another force-on-force within 3 months, went back. And then
that time, they were ready.
Mr. Platts. Glad to hear that, and--yes?
Mr. Merrifield. Yes, I just want to add one thing I think
goes to your previous question. One additional enhancement that
hasn't gotten on the record today is the quality of the
adversary force.
Prior to the changes that we made, they used to use
personnel at the plant as the adversary force or from other
individuals who work for the utility. Today, the adversary
force is made up of individuals typically who have special
forces background, delta force background.
These are very highly capable, very motivated individuals
who truly want to test what these plants are doing, and we
believe that's a real enhancement to the quality of the overall
exercises.
Mr. Platts. Well, maybe that actually raises; so they are
employees of NRC?
Mr. Merrifield. No, they are not. They are actually----
Mr. Platts. Or they are still contracted?
Mr. Merrifield. They are contract employees.
Mr. Platts. But not from the industry participant?
Mr. Merrifield. No, they are not employees of the industry,
not from the utility.
Mr. McGaffigan. They are from industry. I mean, we can get
into this. NEI contracts with these folks. Wackenhut provides
the people. They take them from across the industry. So guards
volunteer for this duty. We have a substantial force of people
to draw from in order to staff each exercise, as Mr. Wells
talks about.
We make sure that there's no undue influence. There's a
bunch of conflict of interest requirements that we have imposed
that we believe adequately protect against a conflict of
interest there.
But the fact is that these people are much better than
anything we had before, and we're managing any conflict of
interest issues we think very adequately. There's no ``Keystone
cop'' routine when they are at a site that Wackenhut happens to
have the security force at.
Mr. Platts. Knowing I am going to be even later now for my
meeting that you keep raising additional thoughts. Is there any
consideration to NRC that volunteer actually being engaged to
be NRC's own team so you avoid even the possible appearance of
that conflict, that they are NRC employees who are fully
dedicated to this responsibility?
Because given how often you are doing them and they are
going to continue to do them, it would seem natural that you
would have your own in-house team.
Mr. Diaz. No, sir. We are not giving serious consideration
to that because we actually run this adversary forces in many
ways. We provide the scenarios. We provide the qualifications.
We provide the requirements. We do the scheduling.
We believe that it's critical for these facilities to
maintain a distinct separation between what would be an
external component to their plants and the safety of the plant.
We want safety and security to be integrated in the plant so
that they could work together synergistically and actually do a
better job together than they can do if they are independent of
each other.
Mr. Platts. But it sounds like that the team actually
carries out what NRC devises as a plan of attack that they are
going to go through in their exercise?
Mr. Diaz. That is correct.
Mr. Platts. OK. I apologize that I need to run out. Final
thought?
Mr. McGaffigan. I'm the Democrat on the Commission, sir,
and it's a resource issue partly. You can ask NEI later what
they pay annually, but it's millions of dollars, I think close
to $10 million a year to keep this force in shape. And it
didn't strike us--we thought we could get the same benefit
without adding those employees.
Furthermore, we think there is a benefit. These people are
going to rotate off of the adversary force back to their
licensee, and they can bring the knowledge that they gained as
these folks are the best people that attack the nuclear plants
on the face of the Earth. They'll bring that knowledge back to
their site----
Mr. Shays. I am going to cutoff this discussion only
because I think you have made the point well.
I am going to have to speak before the Rules Committee
sometime soon, and we are not dismissing you yet because I want
to just get to one other area, and that is criteria.
Mr. Platts. Mr. Chairman, I appreciate your patience with
my exchange----
Mr. Shays. See, the problem was, you were to come back and
relieve me. And now you are going to be late there. So I am
getting screwed on both ends here. [Laughter.]
But the questions were great.
Mr. Platts. All the more my apologies, Mr. Chairman.
And my thanks to the Commissioners, Mr. Wells, to all of
your efforts and testimony here today. Thank you.
Mr. Shays. Thank you. They were good questions. Thank you
for coming.
I am going to have the professional staff ask questions. I
would like one Commissioner to answer, not three, on this so I
can get through, unless the answer does need additional
magnification. And I have focused on criteria.
Mr. Halloran. There is the lingering dispute between the
GAO and the Commission about the question of criteria for
decisionmaking about the DBT standards. That your testimony
makes statements to the effect that detailed and restrictive
criteria could be detrimental to the Government and could
overly limit your discretion.
But in one sense, that is the easy case. That is not
necessarily what was recommended. Let me ask first, what kind
of criteria were you recommending; to the extent you can talk
about that out loud--and are there precedents for it elsewhere
in other regulatory settings that you have seen?
Mr. Wells. We did not recommend or specify a specific
criteria. We assumed that the NRC would develop their own
criteria. So their concern about anything being unduly
prescriptive would be up to them to decide what type of
guidelines and in terms of what factors should be considered,
the types of weight that may be given to those factors.
We have found throughout government, where decisionmakers
have been asked to consider risk management and make informed
decisions based on risk considerations, that there's been great
value in guidelines that are available to the decisionmakers
that lay out all the various factors and provide some weight to
them to assist them in having a very defensible transparent
reasons why the decisions were made one way or the other.
We found that rigor improved the consistency of how
decisions were made, coupled with the fact that they were semi-
annually reviewing these DBT recommendations. So the process is
ongoing, happens frequently, and we just found value in having
the written guidance that we believe NRC should develop
themselves.
Mr. Diaz. I respectfully disagree with that conclusion, and
the reason is that the Commission has very straight means in
which to make decisions. We receive information. We interact.
Anything that will come and put a rule, what it would do is
we will start paying more attention to the staff, paying more
attention to what the criteria are than what the circumstances
are, what additional information is. I think this is a
deliberative body that meets frequently----
Mr. Shays. Let me just interrupt a second and get through
this. One of the questions I might have asked, is it possible
to have criteria? And then logically it is.
It seems to me you are almost interviewing someone for a
job without having some basic standards and requirements you go
through. You seem to interpret the criteria maybe because you
follow so many regulations. We are not saying that it limits
you that you only have the criteria that you establish. You
might add or subtract to the criteria as you work this process
through.
But when you interview someone for a job, you know what you
are looking for. You have certain things on your list. You know
what the job entails. Then you look for that match.
And you just don't do it subjectively and sit down and say,
``Oh, he seems like nice guy.'' And all of us say, ``Oh, yes,
let us hire him.'' And that is kind of the feeling I get.
Mr. McGaffigan. Mr. Chairman, just so you know that we're
not a phalanx here. I have advocated for the GAO position
internally. I believe we tried in 2003 to come up with criteria
briefly. We didn't agree. We don't agree on the criteria.
We tried more recently. In the last semi-annual threat
assessment, the Commission response to the last semi-annual
threat assessment, I again proposed criteria, and we didn't
reach agreement. I personally believe we should have criteria.
But our two attempts at arriving at criteria failed.
Mr. Shays. Let me just see, I would think you would have
criteria and then add to it or subtract to it. But you would
have some basic criteria that you would follow. It seemed very
logical to me. I would, if I had been on the Commission, would
have supported you.
No, I mean, I appreciate you pointing that out. We don't
all agree in Congress. You don't all agree on the Commission.
If you all came with one voice here, I would be pretty unhappy
about it.
I at least would like to know that you are debating that.
That is a healthy thing. And I guess what I would say to you is
I hope you keep at it until you feel you can find some
agreement.
It is not locked in stone, you know, chipped in stone. I
would think you would constantly re-evaluate the criteria.
Do you mind, gentlemen, if we go on? I usually say is there
anything we should have asked that you wished we had, but I
don't want to know that. [Laughter.]
Yes, I already spilled water on you. That is good enough.
Mr. Merrifield. Mr. Chairman, I know you want to get
through this question, but I would like to just fill something
in.
Mr. Shays. Sure.
Mr. Merrifield. Because we confronted this when we had our
meeting with the GAO staff, and they asked us how we went
through our decisions. And I think we can go into more detail
on this when we have a closed session.
Part of this is ultimately like the decisions that you make
as a Member of Congress, judgment calls. It's based on the
myriad of information you have available to you.
When we met with the GAO staff, they said, well, in coming
up with the DBT, can you give us the list of documents you used
to make your decision? And part of my answer was I've been a
Commissioner for 7 1/2 years. I've had access to thousands of
pages of highly classified documents.
I made visits to all 103 nuclear power plants in the United
States and, indeed, half the nuclear power plants in the world.
I visited with colleagues in any number of agencies. I met with
well over 100 Members of Congress since I've been a
Commissioner. Those are the kind of things that you use to make
an informed decision.
Now my disagreement in terms of Commissioner McGaffigan, in
terms of having a set of criteria is I think the Commissioners,
each of us as independent Commissioners, has to have some of
those criteria in our own minds, as you do when you are making
a decision on immigration reform or other things.
Commissioner McGaffigan will tell you, he and I have some
very vigorous discussions about these issues, which I----
Mr. Shays. You know what I am sensing, though? You are a
Commission that has to dot your ``i's'' and cross your ``t's.''
So I think you tend to think of criteria as almost being a
restriction. I would think it would be a basis if in the end
you decide to override a criteria, then there would be an
explanation that you would be able to give.
But my sense is you all should keep working at that because
I have a feeling that if someone analyzing a business structure
would say, you know, this is very doable.
Yes, on a bill, I don't follow the same criteria for every
bill. I use what I call my ``community meeting test.'' If I
can't explain it at a community meeting, I better not do it,
you know?
But it is a criteria, you know? And so, if someone says,
``Why don't you go to the Paris air show,'' and I talk to my
staff about it. They say, ``Hey, boss, you are not on the
aviation committee. You are not even on transportation. I don't
think it meets your test.''
I mean, there are certain things that I would think you
would have, and I would think you would be able to even write
them down collectively.
Mr. Merrifield. Well, Mr. Chairman, I certainly agree with
you. That internal decisionmaking is the same way you do, we
all have decision criteria that we use. I mean, I'm very proud
of the fact that when my staff tries to gauge where I am on an
issue, they're going to be able to understand with about a 98
percent accuracy what I intend to do because I use those very
same kind of criteria.
I think there is a concern about the Commission as a whole
being locked into a single set of criteria, when each one of
the five of us brings our own value judgments.
Mr. Shays. OK. I am going to have to get the last word,
which is the privilege of the chairman.
I hope that you take seriously the recommendation or
concern of the GAO and that you continue to debate this and
that you continue to evaluate whether you could come up with a
criteria that would make sense. It then gives us the benchmark
to which to evaluate as well.
I think it would provide for a meaningful discussion. So I
realize there is disagreement here, and that is the way we will
leave it, but at least you know where we are coming from.
Thank you. You have been a very responsive panel, and I
thank you very much for that.
And thank you all.
We are going to get onto the next one, and if you would
stay standing, I will swear you in.
We have the Honorable Richard Blumenthal, the attorney
general of the State of Connecticut and, for the public record,
a close friend. We have Danielle Brian, executive director,
Project on Government Oversight. We have Mr. Marvin Fertel,
vice president and chief nuclear officer, Nuclear Energy
Institute. And we have Mr. Chris Crane, president and chief
nuclear officer, Exelon Generation Co.
Mr. Chris Crane? Yes. Oh, I am sorry if I said it
incorrectly. It is Mr. Chris Crane. Stay standing.
I don't always get to swear in the attorney general of the
State of Connecticut. So this is a real privilege.
[Witnesses sworn.]
Mr. Shays. Note for the record, all four have responded in
the affirmative.
And I just want to note for the record, we have Mr. Duncan
from Tennessee, who has been a wonderful member of this
subcommittee. And we might be able to persuade him to chair
this subcommittee if I have to go to the Rules Committee, but
we will see how that works out.
The Honorable Richard Blumenthal. Dick, it is wonderful to
have you here, and thank you for your outstanding service, and
thank you for serving in your capacity as attorney general. You
do a terrific job.
STATEMENTS OF RICHARD BLUMENTHAL, ATTORNEY GENERAL, STATE OF
CONNECTICUT; DANIELLE BRIAN, EXECUTIVE DIRECTOR, PROJECT ON
GOVERNMENT OVERSIGHT; MARVIN FERTEL, VICE PRESIDENT AND CHIEF
NUCLEAR OFFICER, NUCLEAR ENERGY INSTITUTE; AND CHRISTOPHER
CRANE, PRESIDENT AND CHIEF NUCLEAR OFFICER, EXELON GENERATION
CO., LLC
STATEMENT OF RICHARD BLUMENTHAL
Mr. Blumenthal. Thank you very much, Congressman Shays, Mr.
Chairman, members of the subcommittee.
First of all, let me thank the chairman, Congressman Shays,
for his real courage and conviction on this issue, his
continuing oversight, and his recognition about the importance
of openness, increasing the amount of information available to
the public on this issue. Because what's at stake here, as much
as anything, is the credibility of this process.
And so, I want to first thank him for his enormous
contribution on that score and just say that----
Mr. Shays. I would just like to point out to the rest of
the panelists, you do not need to do this. This is a
Connecticut thing. It has been all taken care of. So we will
get right to the point there.
Mr. Blumenthal. And he's my Congressman.
I also want to say that nothing I have to say here
questions the good motives and dedication of the panel that
preceded me or anyone else involved in the Nuclear Regulatory
Commission. We do have differences, as the chairman pointed
out. And on those differences, I think that I'm going to rely
principally on my written testimony. But I think credibility
will depend on having criteria.
Very clearly, there need to be criteria, particularly for
the selection of weapons. The decision to drop, for example,
two of the weapons that were recommended by the staff, as
reported by the GAO, calls into question seriously and severely
the credibility of the entire process, as do other apparent
failings, such as the complete failure to involve potential air
attack, particularly from the larger kinds of aircraft that
could pose a threat at places like Indian Point, which is very
much of concern to me, the Indian Point power plant being
located so clearly and closely to the large part of
Connecticut's population.
An air attack is not simply a speculative or imaginary kind
of occurrence. It is a clear and present danger. The idea that
there is a distinction between enemy of the state and design
basis threat that justifies excluding air attack seems
completely unrealistic and unfounded.
I believe that the NRC must be required to give more
reliance to the security experts, homeland security experts,
people who are objective and independent of this process rather
than nuclear power plant operators.
As the GAO report very pointedly observes, weapons were
removed from the DBT after the nuclear operators were consulted
and after they submitted their views on the feasibility and
cost and said that, ``Certain kinds of adversary
characteristics would be prohibitively expensive.''
I agree with the GAO that this situation created, ``created
the appearance that changes were made based on what the
industry considered reasonable and feasible to defend against
rather than an assessment of the terrorist threat.''
Again, credibility is at stake here, and the public not
only demands and needs, but also deserves credibility in this
process, which would include prescriptive criteria, detailed
criteria on what should be involved in this process.
I want to emphasize that there needs to be greater emphasis
on the potential threats posed by spent nuclear fuel pools. The
presence of such pools is a real factor in Indian Point and at
Millstone. Some of them are housed in structures that are
comparable to the kind of pools that we swim in rather than the
ones we store nuclear fuel in.
The hardening of the domes encasing the plants may be
deemed adequate, although I'm not necessarily conceding they
are. But certainly the spent nuclear fuel deserves and needs
greater protection.
And I want to emphasize also the importance of protection
for whistleblowers. We are engaged right now in a specific case
that involves a whistleblowing complaint and then a
retaliation. I've asked, as recently as last week, the NRC to
investigate in their annual assessment, I've asked them to
investigate.
I think the NRC must provide protection for whistleblowers
and investigate whenever whistleblowing kinds of allegations
are made, and there are indeed indications of retaliation. Only
yesterday I called on the NRC to immediately investigate the
source and extent of radiation contamination at Indian Point.
Last week, the plant operators admitted that radiation
levels in wells as close to 50 yards of the Hudson River were
three times the allowable levels for drinking water.
Environmental threats have to be the subject of NRC attention
as well, and certainly Indian Point has posed them.
Let me just conclude, and I know that your time is short,
Mr. Chairman, and I appreciate your staying this long. Conclude
by saying that the kinds of attack that may be made in the view
of many experts has been gravely underestimated. The potential
for multiple terror cells or different kinds of weapons or
larger scale attack all seem to have been underestimated in the
design basis threat that has been in use so far.
So, I hope that this committee will begin to persuade the
NRC and, if necessary, compel it to think outside the box,
think of threats that have not been considered before, air
attacks, air exclusion zones, the kinds of threats posed by
traffic in Long Island Sound--LNG tankers that may be part of
energy projects--all need to be assessed and considered.
Thank you.
[The prepared statement of Mr. Blumenthal follows:]
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Mr. Shays. I thank the gentleman very much. And frankly, I
wish I had gotten into the issue of spent fuel, particularly
with the Commission because I do agree with you. It is a good
way to describe it, being like a house for a swimming pool.
Ms. Brian.
STATEMENT OF DANIELLE BRIAN
Ms. Brian. Chairman Shays, thank you for inviting POGO to
testify at this important hearing. It's clear you share many of
the same priorities as POGO across the board--security at
nuclear power plants and at the nuclear weapons complex,
excessive Government secrecy, whistleblower protections. I
think your subcommittee is doing the most important work in the
Congress, and I think it's important to recognize that. And
you're not my Congressman.
The GAO report that you Commissioned is shocking and
confirms what POGO has been alarmed about for the past 3 years.
It detailed the inappropriate influence of the nuclear industry
on the NRC's design basis threat process. They essentially get
two bites of the apple.
The nuclear industry is allowed to lobby the NRC security
staff to lower the security standards recommended to the
Commission, and then the NRC Commissioners removed weapons that
were recommended despite that lobbying, including what we
understand included the two weapons in question were RPGs and
50-caliber rifles with armor-piercing rounds. Because industry
claimed it was too expensive for them to protect against such a
threat.
The result of this process is a completely unrealistic DBT
that reflects not what intelligence estimates dictate, but
instead what industry is willing to pay for. Because of the
lowering of these security standards, at one site the GAO found
some or all of the attackers during the force-on-force were
able to enter the protected area in each of the three exercise
scenarios.
At another, the mock attackers were able to destroy three
out of four targeted components. At another site, they didn't
even include spent fuel pools among the targets to be
protected.
It should be understood these failures occurred even though
there remain significant artificialities in the tests in the
first place. They are still scheduled and announced 8 to 12
weeks before they occur, giving the security force ample time
to prepare. Furthermore, the GAO found the security force can
tell within minutes at what time the test will begin.
Counter to what we were hearing in the last panel, while I
certainly agree these tests are far better than they were when
we first started talking about this a few years ago, the GAO
also found that the controllers, who are essentially the
referees in these tests, were sometimes volunteers from the
plant, just like we had seen before, who had no security
experience at all. And they're the people who essentially get
to decide who was living or dying in a particular exchange.
At approximately half the sites, the mock attackers and
security force they are testing are employed by the same
company, Wackenhut. Whether those tests are honest or not, how
can the public have faith in a system with such an obvious
conflict of interest?
Even with these weaknesses, the GAO also found evidence of
behavior that some might call cheating. In one case, a site
employee made motions that may have alerted the security
officers to the targets the adversaries would be trying to
reach that evening. Now imagine, these are the tests where they
know the GAO is watching them.
Just last year, several years after the September 11th
attacks, NBC News asked the Nuclear Energy Institute spokesman
about Mohammed Atta's plans to target what is now believed to
have been Indian Point. His reaction? He said he'd never heard
of Mohammed Atta.
The impact of this ostrich-like approach to the homeland
security needs of our country permeates the nuclear community,
both the industry and its regulator, the NRC. Perhaps the most
important evidence that the NRC remains in denial is their
decision to require nuclear power plants to protect only
against a handful of terrorists. This decision is based on the
assumption that only one terrorist cell acting alone would
attack the plant.
There is no explanation why the NRC continues to come to
this conclusion, despite historical evidence that multiple
cells of terrorists were used collectively on September 11th.
The GAO points out that the Department of Energy, an agency
which we've both had some problems with as well, but they still
do a lot better on this than the NRC has. They're relying on
the same intelligence as the NRC when determining their DBT.
In comparison, however, the DOE requires their facilities
to protect against an attacking force about three times that
required by the NRC and against the very weapons rejected by
the NRC. Their security is also provided by a private force. I
think it's important to dispel the myth that private forces
can't be asked to do more than they are. The difference,
however, in the two agencies' processes is that the DOE does
not have an industry lobbying them to lower their standards.
It's important to recognize the two steps--as you said
before, so I won't repeat them--that there essentially is the
threat assessment staff and then the Commission that is
reducing the weapons. But the thing that really alarms us is
that these RPGs that are of particular concern to us are very
available.
As we wrote to Commissioner Diaz on February 22nd, we
raised our concerns that the Commission decided not to protect,
we believe, against these weapons. Despite the fact that during
a special forces mission in West Africa last year, Pentagon
officials found that an RPG could be purchased for less than
$10 on the weapons market and were available in large
quantities in a matter of hours.
This is equally true in South Asia. Pentagon officials have
told POGO that getting shipments of RPGs into the United States
would be surprisingly easy.
I wanted to emphasize a final quote from the GAO that
removal of these weapons from the revised DBT was significant
because of the strength of the NRC staff's intelligence
analysis supporting their inclusion. I'd like to include a copy
of the letter we wrote to Chairman Diaz with our concerns about
this.
It's also important to recognize that this is a problem
that's easy to fix. In an unclassified film created by the
Department of Energy named ``Systems Under Fire,'' they outline
the relative ease with which RPGs can destroy traditional
barriers. They also show a relatively inexpensive defensive
measure, predetonation screens, that the industry should be
required to adopt, which would effectively mitigate the
lethality of these weapons.
The NRC Commissioners watered down the original staff
proposed security standards based on the belief they can only
ask of the nuclear industry what can be expected of a private
security force, but we really believe this is backward logic.
Security professionals should determine the security threat
and then determine what is required to meet that threat. If it
is concluded that private forces cannot adequately protect the
facilities to the standards set by the intelligence community,
then it is the Government's job to step in at industry's
expense.
Mr. Shays. We did a second round. I think we need to close
you down here in a second.
Ms. Brian. Yes. I can----
Mr. Shays. That is a term that the--``close you down'' is
not a good term.
Ms. Brian. OK. I'll just conclude by saying our concern is
that there is no one accepting the responsibility of making
that leap between the DBT and what is actually required. I want
to point out that I have great respect for a lot of the
security staff at the NRC and Commissioner McGaffigan in
particular. And I think they're coming at this with really
honest efforts, but it's tremendous pressure that they're
receiving as well.
[The prepared statement of Ms. Brian follows:]
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Mr. Shays. Right. Thank you very much.
I am hoping I can hear everyone testify before I have to
go.
Mr. Fertel.
STATEMENT OF MARVIN FERTEL
Mr. Fertel. Thank you, Chairman Shays, members of the
subcommittee.
In my testimony today, I would like to make three points.
First, the growing need for electricity supply, energy
security, and the concern over global warming has led to a
resurgence of the interest in nuclear energy.
Second, in response to the question, are our Nation's
nuclear plants more secure than they were before September
11th? I would say the answer is a resounding yes, and I think
the GAO actually says that, too. Over the past 4 1/2 years, the
industry has made substantial and significant improvements to
an already-strong security.
Finally, the nuclear energy industry recognizes that the
spectrum of possible threats facing the Nation can be larger
than the NRC's design basis threat for nuclear power plants.
And because of that, we've led efforts, under the auspices of
the Department of Homeland Security, to assess the potential
vulnerabilities of our critical infrastructure to a broader
spectrum of threats and to coordinate Federal, State, and local
resources to complement and supplement plant security in the
face of such threats.
With regard to my first point, according to the projections
from the U.S. Energy Information Administration, even with a
strong commitment to efficiency and conservation, our Nation is
expected to need 45 percent more electricity by 2030. Much of
this new electricity supply will be needed in the form of
large-scale baseload generation. The only realistic
alternatives to significantly increasing baseload generation
are coal and nuclear energy.
The Congress recognized the need for a diverse energy
portfolio and the importance of nuclear in that portfolio in
the Energy Policy Act of 2005. That bill is having its intended
impact. Nine companies are pursuing actions toward building
between 12 and 19 new nuclear plants in the United States, and
we expect that the new nuclear power plants will become
operational within about a decade.
Let me turn now to security. When I was here just over 18
months ago, I testified that nuclear power plants are the most
secure commercially owned facilities in the country. That
remains true today because we have continued to work to meet
the NRC requirements, satisfy our own performance expectations,
and most importantly, through DHS, enhance integration with
Federal, State, and local authorities responsible for providing
security to our Nation's critical infrastructure.
Specifically, over the past 4 1/2 years, we have improved
our security in several steps. The first step was what the
Commission talked about that occurred on September 11th. Just 4
months later, in February 2002, the NRC again increased
security requirements in several areas.
The industry, complying with the NRC orders, instituted
additional measures, such as extending or fortifying security
perimeters, increasing patrols within security zones,
installing new barriers to protect against vehicle bombs,
installing additional high-tech surveillance equipment, and
strengthening security coordination with local, State, and
Federal agencies.
Following the completion of its top-to-bottom review and
its study of the potential threats to nuclear power plants, the
NRC issued three orders in April 2003. One order revised the
DBT, further increasing plant security requirements.
In addition to modifying the DBT, the NRC also issued
orders that enhanced training and qualifications for security
officers and improved access control and established work hour
limits. We estimate the cost across our 64 sites of this
additional security since 2001 is now over $1.2 billion.
Since the September 2004 hearing before this subcommittee,
we have implemented NRC's approved security plans at each site.
We've completed the physical improvements at each site as
required by the DBT defined by the NRC.
We've conducted 27 NRC-observed force-on-force drills, and
we can play with those numbers if they are still confusing, and
also hundreds of such drills as part of the industry's
programmatic security training program. We've been a national
leader working with the Department of Homeland Security by
completing 22 risk assessments and 20 comprehensive reviews for
nuclear power plants.
Given all we have done and although the GAO identified some
areas for improvement, we are very pleased that GAO also agrees
with what the industry has been saying; that nuclear power
plants have made substantial security improvements after
September 11th.
As my final point, I want to emphasize that security at
nuclear power plants does not end with what the NRC requires,
nor with what plant operators can provide to protect our
Nation's critical infrastructure. Industrial and commercial
facilities must integrate their security with local, State, and
Federal forces. The industry recognizes that there is a
spectrum of potential threat; some less, some greater than the
capabilities of our or any other private sector plant security
program.
Recognizing this fact, the industry has provided national
leadership and is the first industrial sector to participate in
the Department of Homeland Security's Risk Assessment and
Management for Critical Asset Protection [RAMCAP] program and
its comprehensive review program. Twenty-two sites have gone
through RAMCAP, and 20 nuclear plant sites have already
completed the comprehensive reviews. We expect to complete all
of them by July 2007.
These DHS programs represent areas where significant
enhancements to security can be achieved for nuclear plants and
for all the other sectors of the critical infrastructure. This
subcommittee can be instrumental in furthering programs like
this, and we would encourage the subcommittee to support DHS in
its effort to complete these activities for the entire critical
infrastructure.
In closing, we are pleased that the GAO agrees that our
security has been greatly improved. We look forward to
fulfilling our responsibilities and continuing to work with
governmental agencies, such as GAO, DHS, and the NRC, as well
as Congress, to ensure that our facilities remain the most
secure facilities in the Nation's critical infrastructure.
Thank you.
[The prepared statement of Mr. Fertel follows:]
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Mr. Shays. Thank you, Mr. Fertel.
Mr. Crane. Thank you.
STATEMENT OF CHRISTOPHER CRANE
Mr. Crane. Chairman Shays and subcommittee members, I am
Chris Crane, president and chief nuclear officer of Exelon
Nuclear, and I am pleased to be here today to continue on with
what Mr. Fertel provided as to what the industry has done, but
give you more specifically what's happened in our company,
Exelon.
Exelon Generation is the largest owner and operator of
commercial nuclear power plants in the United States. We own
and operate 17 reactors in 10 States--Illinois, New Jersey,
Pennsylvania. In addition, we provide the management and
operating assistance for three reactors in New Jersey that are
owned by Public Service Enterprise Group [PSEG].
Exelon is extremely proud of our operating performance. Our
plants are among the best in the world in terms of capacity
factor and outage management. We are even more proud, however,
of our safety record. Our highest duty is to protect the safety
and security of our workers and the people who live within the
communities around the plants that we operate.
As a result of the NRC revised security requirements,
Exelon Nuclear invested $140 million capital improvements for
the physical security upgrades at our plants. In addition, we
have greatly increased the staffing of our security forces, but
the contracts----
Mr. Shays. Mr. Crane, I am going to just interrupt you for
a quick second.
I have to go before the Rules Committee. We are going to
keep going. I am going to have Mr. Duncan chair, and I am going
to ask Mr. Van Hollen, if he doesn't mind, to chair if Mr.
Duncan has to leave. And then I will come back.
Then, if you would, if you would have counsel ask some
questions as well? And I hope I will be able to get back in
time to ask the questions I want.
Sorry to interrupt, but I just wanted to make clear what we
are doing.
Mr. Crane. As I was saying, we, as a company, have invested
over $140 million in capital improvements and our physical
security upgrades at the sites. In addition, we have greatly
our staffing of our security forces, with our contract forces
expanding by 84 percent and our corporate security
organization, which provides the oversight and strategic
development and coordination of our security plans, increasing
by 20 percent.
In 2001, our security-related operating costs were
approximately $44 million. This year, we expect to spend $90
million for security.
All Exelonsites have complied with the NRC requirements
regarding infrastructure improvements, training requirements,
and access authorization. As part of the NRC's effort to
confirm continued compliance with these security standards, the
Commission conducts routine inspections that have been
discussed here today.
This year alone, we have conducted multiple exercises at
all the facilities. We conducted multiple sites at all of our
facilities. We have had two force-on-force drills that were
discussed about previously last year, and by the middle of this
year, we'll have two additional that will be completed.
While security at the commercial nuclear plants in the
United States has improved greatly since 2001, performance
issues can and do arise with security personnel. As these
issues arise, they are addressed systematically and
objectively.
As I noted earlier, Exelon assumed the responsibility last
year of the management of the PSEG's Salem and Hope Creek
reactors. The shift came in an aftermath of an inadequate
force-on-force exercise at the Hope Creek project or the Hope
Creek site, which was referenced earlier in the GAO report and
has been referenced by different panelists here today.
As our first order of business, we installed the Exelon
defensive strategy model at the site, investing approximately
$40 million that's above and beyond the $140 million we've
previously spent in capital improvements. We also increased the
security force by approximately 40 percent in 2005. And as a
result of these efforts, Salem and Hope Creek successfully
passed the evaluated exercise, and we consider that a great
success.
As a part of the Energy Policy Act of 2005, Congress
directed the NRC to conduct formal rulemaking to review its
design basis for the commercial nuclear facilities. Clearly,
the Commission, as stated previously, must continue to assess
the threat facing the nuclear plants for possible changes.
In conducting this assessment, we recommend that the
Commission should continue to closely coordinate with the
Department of Homeland Security and Federal intelligence and
law enforcement agencies. In addition, the Commission, in
evaluating these potential changes to design basis threat, must
keep in mind the different delineations between the
responsibility of the plant owners, those of law enforcement,
and for the Federal Government.
While Federal law requires plant owners to protect against
various potential threats, the law also considers many threats
to be outside the scope of the licensee's responsibility and
instead relies on law enforcement and the military to protect
against these certain threats.
Mr. Chairman, Exelon is committed to safe operations of our
plants and providing strong security and emergency planning
programs. We have devoted significant financial and personnel
resources to ensure that our sites are in full compliance with
the NRC requirements.
We have established high performance expectations for our
security forces. We continue to work closely with the NRC and
Federal, State, local enforcement to ensure that we have fully
integrated a plan to respond to security events at our site.
I'd like to thank you again for the opportunity to provide
this input and would welcome any questions you may have.
[The prepared statement of Mr. Crane follows:]
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Mr. Duncan [presiding]. Well, thank you very much, Mr.
Crane. You have certainly been an informative panel.
I will say something that I have told other people at
times. Chris Shays is not my Congressman either, Ms. Brian, but
I will tell you that--and Mr. Blumenthal, if he doesn't already
know this, should know this--that Chris Shays is one of the
most active and one of the finest chairmen that we have in this
Congress today.
I don't always agree with him, and he would be very proud
to tell you that I don't always agree with him probably. But at
any rate, he does an outstanding job, and this hearing is
another example of that.
I told him I have a whole host of appointments starting at
3:45, which was 5 minutes ago. So I am not really going to ask
any questions except for this.
What percentage of our energy now is generated by nuclear
power? I am sure Mr. Crane or Mr. Fertel can tell me.
Mr. Crane. Greater than 20 percent.
Mr. Duncan. Well, and what I am getting at, I had read
something similar to that, and I have also read, though, that
some other countries like France and Japan and Sweden and some
others, they have--I believe I read that some country has as
high as 70 percent.
Can you tell me anything about that? What percentage some
of those other countries?
Mr. Fertel. I think France is up around 70 percent,
Congressman Duncan, and I think one of the former East Bloc
countries actually is close to 80 percent.
Mr. Duncan. Oh, really?
Mr. Fertel. Yes. I think 20 percent in our country, we'd
like to see more. But to be honest, it's still the largest
program in the world. The nuclear program in this country is
bigger than the French and Japanese programs combined, and
they're the second and third largest programs.
So in number of plants and output, we are actually very
large. In percent of our total electricity supply, we're still
the second largest, but only 20 percent.
Mr. Duncan. Well, I was a lawyer and a judge before I came
to Congress, and I am not a nuclear expert by any means. And I
will say this. I have always said and believe that anybody can
improve.
I hope I am a better Congressman now than I was 5 years
ago. This is my 18th year. I hope I am better now than I was 5
years ago. And if I am here 5 years from now, I hope I am
better then than I am now.
And we should all strive to get better, and I hope that the
nuclear industry takes very seriously, and I believe they will,
the recommendations or suggestions of the GAO.
On the other hand, I do know from reading that the nuclear
industry in this country is one of our most highly regulated
industries, even at this point, and that this industry is
probably more highly regulated in this country than in any
other country. And saying that, I will make it very clear to
tell everyone that I have no connection whatsoever, even
remote, to the nuclear power industry.
So, you know, my father told me many years ago about
something else. I don't even remember what he was talking
about. He said everything looks easy from a distance. And it is
real easy to criticize, I can assure you, on almost anything.
But you know, I know, too, common sense would tell you that
the nuclear industry would be the most concerned about a
terrorist attack because you are talking about losing whopping
amounts of money if they had a plant that was attacked and
closed down.
Now I heard a speech by Secretary Chertoff a few months ago
in which he said it is not possible to protect against every
conceivable harm at every place at every moment. So, what we
have to do, we have to do what is reasonable, what is
practical, yet we can't sacrifice the good to try to achieve
the perfect. I mean we could shut the whole country down, and
we wouldn't have any nuclear concerns or any other, you know,
but that makes no sense whatsoever.
So I think the nuclear power industry, frankly, is doing a
great job. I am sure that there probably were people at the NRC
who were offended to hear that the nuclear power industry had
too much influence over them because they say that their report
is based on contributions from Federal, State, and local
officials, all kinds of stakeholders, and everybody who has
really much of an interest at all.
But I am going to go to those appointments, and I am going
to turn this over to Congressman Van Hollen for any questions
he has. And then I understand the staff is going to ask some
questions.
Thank you for taking over.
Mr. Van Hollen [presiding]. Well, thank you. Thank you, Mr.
Duncan. And let me also thank our witnesses.
Unfortunately, I, too, have a group waiting back in my
office. I apologize. I missed the first panel because the
Government Reform Committee, another subcommittee had a hearing
as well.
I just have two questions. The first question is for Mr.
Fertel and Mr. Crane. With respect to the analysis of the
vulnerability of nuclear power plants to an air attack, we know
from investigations by the 9/11 Commission and others that was
one of the scenarios envisioned by the September 11th
attackers.
Putting aside the question of who is responsible for
dealing with that issue, would you agree that is a
vulnerability in the system that needs to be addressed, or is
that something that is, in your view, such a low probability we
shouldn't worry about it?
Because as of right now, we haven't done much about that as
a Nation. We have sort of been pointing fingers as to who is
responsible for addressing the issue rather than tackling the
issue.
Mr. Fertel. Just a response to that. First of all, from a
pure technical study standpoint, the NRC has done studies, and
I'm sure they can brief you in their secret session.
The industry did studies that we don't hold secret. We
hired the Electric Power Research Institute shortly after
September 11th to look at a 767-400, a relatively large plane,
one that constitutes more than 80 percent of the aircrafts
flying in this country and had it hit containment structures
where the fuel is, had it hit spent fuel pool structures, and
had it hit dry cask storage.
And they did it as an analysis to maximize the impact, and
what we found was we wouldn't get a release of radiation with
that particular scenario.
Now National Academy of Sciences looked at things and said,
well, if the plane was bigger, and the plane flew faster, you
get a different outcome, no question. The plane doesn't hit it
just right, you get a different outcome.
So what we concluded was that the robustness of the
structure is really pretty good unless you have a really
marvelous hit on the structure. A very, very bad day at the
plant with a lot of people dead that work there, but as far as
a release, we didn't get it from a relatively sophisticated
analysis. This was $1 million worth of engineering computer
runs.
You weren't here for the first panel, Congressman, but
Commissioner McGaffigan and others talked about the actions
they have taken. They've taken actions with NORAD and with the
military to do a number of things as far as trying to protect
the air space around nuclear plants, imminent threat procedures
at all of Mr. Crane's plants.
His control room has been trained on basically shutting the
plant down if they're told by NORAD something happens or a
plane is off course. They don't have to know it's a terrorist
plane. They've also been trained on other actions they could
take to try and put the plant in the safest condition it could
be in if there was something that happened.
So there have been a lot of actions taken by the Nuclear
Regulatory Commission. Studies are still being completed right
now looking at things like that at the plants. What's not being
done is what you said, which is, you know, putting surface-to-
air missiles at every plant.
And we would say that things like that come out of these
comprehensive reviews that I mentioned. The comments made by
Danielle and the attorney general say that there are threats
bigger than the DBT. We don't question that. Of course, there
are. There's threats smaller than the DBT, too.
But there are bigger ones, and what the Department of
Homeland Security is doing is looking at a spectrum of 16
threats, many of them larger than ours, much larger, and many
of them smaller. And they are looking at airplanes and figuring
out what they should be doing for particular sites.
Mr. Van Hollen. Thank you.
Does anyone else have a comment on that question?
Mr. Blumenthal. Only, Congressman, that if I understood the
response correctly, it was that, yes, we should be looking at
the potential for aircraft attack, despite a study or a number
of studies that perhaps show that it can be exaggerated. But
clearly, it is a threat in places like Millstone or Indian
Point, given the vulnerability of the structures there.
And I think maybe equally important, and certainly the non-
engineers, the citizens among us will appreciate this point,
this fear is a very real one for people who live near the
plants. And that includes people who live within a 50-mile
radius, which is the zone that's regarded at risk, which
includes a third of the population of Connecticut, when it
comes to Indian Point and even larger if you consider
Millstone.
Mr. Van Hollen. Right. No, thank you on that point.
I think that you are right. This is clearly an area that we
need to move forward on more aggressively. There is no doubt
about that. Both in terms of the physical protection of the
plant areas, but more important in terms of the interception.
Let me just ask, if I could, Ms. Brian, most of the
testimony today is focused on nuclear power plants. There was
this investigation that was done last fall with respect to
nuclear research reactors at different universities around the
country and the ability of people to get easy access to those
research facilities.
And after that, there was discussion about, you know, how
we need to tighten up on security. And I don't know if you have
had an opportunity, or if any of the other members of the
panel, but if you have had an opportunity to look at what has
been done, whether it is adequate, and if not, what more we
should be doing?
Ms. Brian. Yes. Well, I am familiar with that. That was an
ABC investigation.
And the one thing that was a little confused by that
investigation was not all research reactors really are the
same. Many of them have such small amounts of nuclear material
that they're not of great consequence.
There are some, however, though, that are of greater
consequence than the power reactors that we're talking about
here. It's actually weapons-grade highly enriched uranium. And
while one reactor doesn't have enough to make a bomb, two
would.
And one of the things that we've been talking about--in
fact, we're going to be testifying tomorrow before Armed
Services on the subject--is that those reactors--I'm sorry--
those facilities are regulated by the NRC. And while they do
have a higher standard of security than they do for the power
plants, it's not as high as the standards of the Department of
Energy for exactly the same materials.
And I think it's one of these weird bureaucratic, ``Well,
it's another agency, even though it's the same material'' kind
of thinking. And we're in the process of working with the
Department of Energy to rethink shouldn't they be taking over
responsibility and dramatically increasing standards?
There is also a real question, why do the universities need
to have HEU at all?
Mr. Van Hollen. Right. I understand that the GAO is taking
a look at security at the research reactors as well, and we are
looking forward to their report on that. My understanding is
research reactors, yes, you have some with more highly enriched
uranium, which is actually potential bombmaking material. But
even those that are less highly enriched have the potential for
use in some kind of dirty bomb with a conventional explosive.
So I mean, to your knowledge, and I must I happened to be
channel surfing, I think--and I saw some of the expose on that.
And people were just able to walk right up and get access to
these plants. Has action been taken, to your knowledge, to
better protect those areas and bring it up to some of the
standards?
You say that we don't meet the same standards as the DOE
does. What actions have been taken with respect to those
university sites since that report?
Ms. Brian. To my understanding, the Government hasn't
changed any of its standards at all. That's something that each
university is dealing with. But I think it's very appropriate
for the Government to set higher standards.
Mr. Fertel. I can't attest to exactly what NRC as to
research reactors is doing, Congressman. But submit questions
to them because they have taken actions to increase security at
not only commercial nuclear plants, but at research reactors
and at other facilities that they regulate.
Mr. Van Hollen. Good. Well, we will do that. And again,
thank you all for your testimony here this afternoon. And I
apologize as well.
If we could just recess until 4:15, I guess Congressman
Shays will be back.
Thank you all.
[Recess.]
Mr. Shays [presiding]. In my 12 years as chairing a
subcommittee, I have never adjourned it, and I apologize for
having that happen. There is always a first.
I will just catch my breath and have counsel ask some
questions, and then I want to jump in.
Mr. Halloran. Thank you.
Let us talk about the issue raised by the attorney general
in terms of the security of spent fuel pools. Why isn't that a
more explicit element of the DBT in your view?
Mr. Blumenthal. I'm sorry. Could you----
Mr. Halloran. Sure. You raised the issue of security of
spent fuel pools and their limited protection structures and
other vulnerabilities. And it doesn't seem to be an explicit
aspect of the DBT now. And I am wondering, in your experience,
why that is, and what might be done to mitigate that risk?
Mr. Blumenthal. You know, I have to apologize that I don't
know the reason why it is not included in the DBT. It may well
be that, and I think this response may be anticipated from
others on the panel, that it is regarded as a problem that was
supposed to be solved through another means. That is through
transfer of that spent fuel to other locations, more secure
locations. In fact, locations where the security was
anticipated to be like night and day compared to what exists
now.
The present facilities are temporary, putting ``temporary''
in several layers of quotes. But they are, nonetheless, for the
foreseeable future likely to be there. And I think also there
are probably technical reasons that perhaps the engineers have
minimized the dangers.
But the fact of the matter is that breaching the security
and creating an environment that will permit a release of
radioactive material is a real danger, and there's been
virtually no attention to it, at least so far as the design
basis threat is concerned.
Ms. Brian. Mr. Halloran, if I could add, the spent fuel
pools are actually a part of the DBT. Our understanding is they
are one of the targets.
The concern that we share with the attorney general,
though, is that there isn't enough attention placed on the
kinds of things that could happen like the kinds of weapons
that could be used against them, as well as aircraft, and the
consequences of those, which were very well discussed in the
previously mentioned National Academy study.
Mr. Crane. OK. Again, to reaffirm that last statement. The
spent fuel pools are targets that are protected by the weaponry
in the DBT.
So they're drilled on. They're tried to get access to
during the adversary forces. They're a part of it. What is not
part of it, which is not part of the DBT--it's beyond the
capability, as previously said--to protect against the
airliner.
Now the NRC has taken actions, and we've all complied with
the actions, and this is the confusing point. It is the actions
have not been taken under the DBT. They've been taken under
safety guidelines and regulations that have been issued.
We have to do certain things with our spent fuel. We have
to move it in a certain location. We have to have or are
heading toward having capacities for different coolant sources
being added. I want to make sure I don't get into safeguards
information. But there is a significant amount of work that's
being done.
We would like to have the repository open to further move
the amounts of used fuel. But right now they are safely and
adequately stored. There are actions that the industry has
taken at the direction of the NRC to have further defense and
depth in contingencies available. But I think we're confusing
what the DBT is and what the DBT isn't and how we protect the
spent fuel pools.
Mr. Shays. I don't understand what you just said. What are
we confusing?
Mr. Crane. Asking why the spent fuel pools are not
protected under the DBT.
Mr. Shays. But explain your comment, ``we're confusing.''
What are we confusing?
Mr. Crane. The guidelines that the NRC has issued that
takes the defense and depth actions on the spent fuel pools
were issued as guidelines under safety aspects, not under
security.
Mr. Shays. And but your testimony would also be that it is
part of the DBT?
Mr. Crane. As the DBT, we protect the spent fuel pools
against the armament and the forces that are prescribed in the
DBT.
Mr. Shays. Right. Not what?
Mr. Crane. The airplane.
Mr. Shays. Right. That is because we have said that is part
of the Federal Government's responsibility?
Mr. Crane. That's correct.
Mr. Fertel. Maybe just to add a little more. Commissioner
McGaffigan is sitting here, and maybe he can figure out how
some of what they do that isn't safeguards so they can get out
more because he's very good about doing that. But the NRC is
doing and actually has completed independent assessments of
every plant's spent fuel pool, looking at what could happen
under very bad days.
In parallel, but also independently, the industry did its
own assessment of those. Danielle referred to the National
Academy study. The National Academy study, which is a
classified document, does recommend two particular remedial
things you should do to deal with a bad day with spent fuel
pools.
Mr. Halloran. Excuse me. Those studies were done under the
safety rubric, though, not the security side of the house. Is
that what I would understand?
Mr. Fertel. They were done as part of requirements that the
NRC imposed to look at what would happen to the spent fuel pool
under airplane attacks and other things like that. It was not
specific to a threat.
The actions the NRC has taken have looked at improving
safety in those situations. And basically, the NRC has taken
actions in one case that satisfies one of the two NAS
recommendations, and the industry has proposed action that
would satisfy the second case. And we think NRC is reviewing
that to see if they'll approve it.
So, to be honest, the spent fuel pools are a target set as
part of what you look at to protect. So while they're not ``in
the DBT,'' the DBT is applied to them, and you've got to
protect them successfully against it. And second, for things
that's beyond the DBT, that's been looked at very aggressively
by the NRC in site-specific independent studies. And every
plant is taking action to improve the safety of the spent fuel
pool.
Mr. Halloran. That leads then to the question about enemy
of the United States and of what real relevance or practical
meaning that standard would have if, as was testified earlier,
it was a standard crafted with a particular situation in mind.
Maybe it was from Cuba.
In the terms of designing the DBT, what does it really mean
when we are dealing with threats crafted by non-state actors,
trans-national characteristics, they are not supported by the
power of the state? One guy training to fly an airplane did a
lot of damage, several guys. And so, of what real relevance is
that standard today?
Mr. Blumenthal. If I can take a crack at the answer first?
That's the problem with the distinction, that it has little, if
any, relevance today. Maybe it did in the cold war setting,
where the major threat was a missile or an airplane coming from
the Soviet Union and threatening a designated target. But
today, an enemy of the state is not coming from outside our
borders necessarily, but inside.
And the distinction, as I indicated earlier, I think is
decreasingly relevant, if it has any meaning at all today. And
I think the kind of distinctions which I have to admit, I
didn't follow the last answer--to say that it's not in the DBT,
but it is covered by the DBT. I think that kind of--and I don't
question the veracity, the truthfulness of it. But I think that
kind of distinction indicates the lack of relevance that this
kind of attempt to use outmoded concepts has in this new world
that we've occupied for the last 5 years.
Ms. Brian. If I could just make two points? One is if you
think about an attack happening, how is a security officer
supposed to figure out whether they're an enemy of the state or
not? When are they going to say, ``This isn't my problem?''
I mean it's so impractical in the extraordinary fast
timeframe this is all happening, the chaos. It's a ridiculous
concept to me. And then, in reality, the----
Mr. Shays. Ms. Brian, I am not fully following. Be more
specific. What is a ridiculous concept?
Ms. Brian. The idea that the security officers are required
to make a distinction between they are to protect against
certain types of actors, but not others. How are they supposed
to figure out whether the person who's coming in with a gun is
an enemy of the state or not?
Mr. Shays. No, see, I happen to agree with a lot of your
positions, but I think that is stretching it a bit. And if I am
wrong, then you can correct me.
But, and I do agree with Mr. Blumenthal about the
relevancy. But if, in fact, we are not going to say to the
operators of a plant that they have to defend against an
airplane coming in.
But it does raise the point, maybe you would, unless we
decide, for instance, with spent fuel, which I happen to agree
with Attorney Blumenthal that spent fuel is a huge risk outside
the dome, outside the protective cover--I would then say, well,
you know, it is the responsibility of the operators to protect
it better.
So I guess I am kind of in between here, and I may even ask
the Commissioner to step back and help me, walk me through
this. So, which by the way, I appreciate that you would stay
and listen to this other panel. It speaks well.
I think we had some folks from GAO and others who stayed,
and that is appreciated as well.
Ms. Brian. If I could clarify my point? The aircraft is not
the only thing that is eliminated from what the private
security forces are required to protect because of this
standard.
Mr. Shays. Give me an example that you would think----
Ms. Brian. The other weapons that we're concerned about
that are not being included are considered weapons that are
used by enemies of the state.
Mr. Shays. Maybe Mr. Fertel or Mr. Crane, you could----
Mr. Fertel. Let me, first of all, Danielle--and I think you
don't mean it the way I'm hearing it, too. The officers are not
either counting the number of people attacking or asking what
their weapons are to see whether they're going to fight them.
They're going to fight them if they attack the site with
whatever they come with.
So I don't think there is a distinction that they're not
going to fight me because they think I'm an enemy of the state,
but they will fight you because they think you're not.
I personally would agree, this is personal, that the enemy
of the state is probably an artifact of a different era. But
for the same reason, I think that you need to think about what
we've been discussing differently, too. Since September 11th,
this Nation has done a lot, including standing up DHS--and
whether it's standing on both legs very firmly is probably in
the eye of the beholder--creating a director of national
intelligence, and doing a lot to try and protect our Nation.
Before that happened, NRC was kind of alone doing what it
does, and I think that they have done a very good job since
September 11th in making a lot of changes----
Mr. Shays. I don't know if you are answering the question,
though, that we were discussing?
Mr. Fertel. Well, the question was do we believe there's a
distinction between enemy of the state or not, and that's what
I'm addressing. Do I have the question right, Mr. Chairman?
Mr. Shays. Yes, but I am thinking particularly of should it
be the responsibility of the operators to provide a hardened
target for spent fuel?
Mr. Fertel. Yes, OK. I didn't think we were focused only on
spent fuel, but if we want to start with spent fuel. We have a
hardened target for spent fuel.
Mr. Shays. No, but--well, you do and you don't.
Mr. Fertel. No, we do. And I'd love to be able to have the
NRC or us brief you on that, OK? They are not sitting out there
by themselves. You weren't here, Mr. Chairman, for at least
some of the discussion that went on during the Q&A.
Mr. Shays. Sure.
Mr. Fertel. I mentioned, and NRC has done their own study,
so they can share theirs. But theirs is secret, and ours, we've
made public. We've done studies right after September 11th that
looked at a 767 hitting the spent fuel pools and a 767 hitting
dry cask storage.
And you can go to a bigger airplane, a faster speed, but
this was a pretty big plane. It's 80 percent of the air flights
we have in this country. And the outcome was there was no
release of radiation. There was a very bad day on the plant.
There was a lot of damage. There was a lot of----
Mr. Shays. The spent fuel that is at Indian Point, is that
under the dome?
Mr. Fertel. Spent fuel at Indian Point is almost impossible
to hit, to be honest.
Mr. Shays. No, that is not what I asked. Is it under the
protected dome?
Mr. Fertel. It is because it's a pressurized water reactor.
It is in a building next to the containment. It's not in
containment. It's not in there, no. But it is below ground, the
pool itself.
Ms. Brian. It has one exposed wall, though. It's not
entirely----
Mr. Shays. Yes. And I understand. It is on the side of the
hill. So it would be harder to hit. But----
Mr. Fertel. I mean, there's a reality and a theoretical
reality to some of these things, and I'm not pooh-poohing where
something could happen. What I'm telling you is that has been
looked at. NRC has also done these independent studies, which
looks at what you can do to protect it, and those studies have
been completed. So there has been a lot done looking at spent
fuel pools, and appropriately so.
My point is beyond spent fuel pools. It goes to this
question of enemy of the state and what's the responsibility of
the commercial operator?
Mr. Shays. The reason why spent fuel was on the table was
that it is our biggest fear is that it becomes a target for an
enemy of the state. That is why it was on the table.
Mr. Fertel. I understand that.
Mr. Shays. OK. You wanted to finish your point?
Mr. Fertel. Yes, my point, sir, is that whether it's an
enemy of the state in the conventional definition that the NRC
has always had, or maybe in what people believe today, which is
just some really bad terrorists that are trying to get us, the
response of the private sector ought to be what it's capable of
doing, and we shouldn't pretend it can do more. It can't shoot
down airplanes.
And what we really need to do is what I think DHS has
embarked upon, which is to look at threats that are much bigger
than our DBT and to look at threats that are smaller and to
risk inform and threat inform how they bring integrated
resources to support whatever you have. And that is going on.
Mr. Shays. It seems logical what you say what the industry
is capable of doing. But there is an assumption that the design
basis threat will protect the plant and, therefore, the public.
That is the assumption.
So the assumption is that whatever is required, the plant
will be protected. What the inference of your comment is that
if it is not capable of doing it, then we don't require it to
do it. Therefore, it is not part of the design basis threat.
That is the inference of your comment.
Mr. Fertel. Our understanding of the design basis threat--
and you have a Commissioner here, so he can give you theirs--is
that the design basis threat is what the NRC holds licensees
accountable at a high assurance to ensure that they can defend
against.
It is not the full spectrum of threats. It is not the most
credible threat necessarily. It could be bigger or smaller than
the most credible threat. But it is what they believe licensees
need to be able to with high assurance win at. And we believe
there is threats that go beyond that.
Mr. Shays. Right.
Mr. Fertel. And that those need to be dealt with not
necessarily because it's an enemy of the state, but because as
a country right now we are standing up a system that's
attempting to protect our whole critical infrastructure. Not
just nuclear plants, but everything else, and how do we do
that?
And to be honest, I think DHS is moving down a responsible
road maybe too slowly.
Mr. Shays. Well, definitely too slowly.
Mr. Fertel. Yes, I would agree.
Mr. Shays. Maybe Mr. Blumenthal, you could jump in in just
1 second. But what the inference to the public is that a design
basis threat meets the threat. Therefore, you are protected.
And the inference from your statement is the design basis
threat meets the capability of the industry at a particular
site to do what it is capable of doing, but it doesn't
necessarily meet the threat.
Mr. Fertel. I'd say it just slightly different. If it's my
words, I'd say it's what the NRC has decided that the industry
individual licensees must meet with high assurance of winning.
They decide it. We don't decide it. They do.
Mr. Shays. Yes. How do you react to this dialog, Mr.
Blumenthal? Mr. Blumenthal, I would like you to respond to what
you are hearing being said.
Mr. Blumenthal. Well, you know, I was just looking through
some of my notes about what Chairman Diaz said.
Mr. Shays. So you were taking notes? You weren't just
sitting there. [Laughter.]
Mr. Blumenthal. Let me react in this way. If someone had
predicted on September 10, 2001, that the two buildings of the
World Trade Center would not only be hit, but would come down,
there would have been a lot of engineers who would have said,
``No way. You can hit them 10 different times, 10 different
ways, and they will stand, and people will exit them.''
If you had said somebody flying an aircraft is going to try
to hit a nuclear plant in Pennsylvania or the Pentagon, they
would have said, ``No way. But even if they do, they won't do
damage.''
And I guess the question is not whether a terrorist can hit
a spent fuel pool. Certainly, we know that is possible. The
question is, first, can they be stopped? And second, what
damage will be done?
And my own military experience leads me to think that kind
of attack should prompt action on all fronts. That is from the
plant operator, who should design it not just to withstand what
is a couple of studies in terms of prediction of damage, but
should be designed to be as damage proof as possible under all
circumstances. And I don't think we have any assurance that the
plant operators have been required to build as strongly and
hardly as possible.
And of course, the military, the Federal Government has an
obligation, too. You want a belt and suspenders type of
approach here. You don't want to just say, well, that is the
Federal Government's responsibility, or the nuclear plant
operator ought to build it so that it can withstand attack no
matter what. Both ought to be focused on this problem.
I just think that's one reason why this distinction is
artificial and outmoded and unrealistic.
Ms. Brian. If I could make a point that may clarify my
vision of why I think this is ridiculous?
Mr. Shays. Sure.
Ms. Brian. This attack, if it were to happen, the tests
have shown there are sort of 3 to 8 minutes, very fast. Quick.
You either win or you lose. And it also takes, studies have
shown or tests have shown, about an hour and a half or 2 hours
to get a SWAT team, get them together, assembled, put all their
equipment on, brief them, get them there.
There's this giant gap, and the gap is essentially created
by this distinction of enemy of the state. I'm not suggesting
that the people at the plant are going to say, ``I'm not going
to fight.'' But the point is the things they're no longer
required to protect against is because it's been deemed an
enemy of the state type weapon or method.
And that's a distinction that I think we have this cavern
of time, which I understand DHS is theoretically shrinking, but
that's a huge cavern that I think is the Government's
responsibility to do something about if industry isn't being
asked to do it.
Mr. Fertel. Just on Danielle's statement. Part of the
comprehensive reviews that DHS is doing is looking at exactly
what she's referring to. They are looking at the threat
spectrum at every plant, and basically, they have a series of
16 big threats they look at.
Then they're looking to see if they thought that a ground
assault, which is what you're referring to, of a large force--
which is one of their--in fact, a lot of their threats are very
large forces--was likely in that area, they're looking at what
they would have to do to help prevent it, to help you identify
it sooner because these things don't happen overnight.
The experts are going to be doing surveillance and
everything else. They're actually sitting down and thinking
through if my site was one where they thought that could
happen, what would they be giving local law enforcement to
state, and what would they be setting up to protect the site
not when it's attacked, but to give them early warning that
you're under surveillance and stuff like that? And then to
think about attack and take-back.
Another study that we did, and it goes to Danielle's
statement, if you lose. This was at a request for us to take a
look at a ground assault that actually won and was able to get
into the plant, was able to cause a release of radiation. And I
wouldn't profess that this is a good outcome, but the outcome
is not nearly as dramatic, at least in death, as one normally
hypothesizes.
What it found was there would be two prompt fatalities, and
we can make this available to the subcommittee, if you'd like,
Mr. Chairman. And there would be about 100 latent cancers over
the long term, which would not statistically change the cancer
rate in an area.
And this was done for a real plant situation with a
population that was relatively large around it. It was not a
specific plant. We were not asked to try and do it for a
specific plant so that people could get scared. It was putting
together a couple of situations. We'd be more than glad to
share it.
I'm not at all professing that's an acceptable outcome.
What I'm trying to point out is that the consequences of some
of these things I think are much greater in people's mind than
potentially in reality, though we should make sure it never
happens.
Mr. Shays. When we meet, is it next month? Do you have a
hearing schedule? When we have our hearing in May behind closed
doors, what would be the questions that you would want to ask,
Mr. Blumenthal and Ms. Brian, if you were me in those hearings?
Ms. Brian. OK. I would love you to ask the Commissioners if
they think that everything is being reasonably asked of
industry because I don't believe the Commission----
Mr. Shays. Well, I could ask that in open forum. Give me
something exciting to ask.
Ms. Brian. Well, ask them why they are not protecting
against weapons that we know terrorists use all the time.
Mr. Blumenthal. I'd like to know what weapons have been
eliminated, what specific weapons have been eliminated and why.
What additional weapons, apart from the recommendations as to
what should be considered, what additional weapons staff has
considered as relevant to that kind of attack and why they
haven't even been considered by the staff?
And what studies have been done by them, not by the
industry, but by the Nuclear Regulatory Commission that show we
shouldn't be worried about spent fuel pools and why they're
sufficiently protected?
Mr. Shays. When they had the general concept in the
Department of Energy on the design basis threat, when we were
there, we had concern that they were focused too much on
someone getting in and out.
September 11th answered that question. A lot of people
don't care if they go up with whatever. In other words, they
don't care if they die in the process of causing a real
catastrophe.
So, Mr. Fertel and Mr. Crane, you would agree that the
design basis threat, based on that, had to go up significantly.
Correct?
Mr. Crane. Yes, I agree, and it did.
Mr. Shays. Now the other issue was whether you had, there
is a huge difference between whether you had one insider or
two. Obviously, I could carry it to extremes. I mean, I happen
to believe when you cut taxes, you generate economic activity.
But obviously, if you got rid of all taxes, that is carrying it
to the extreme.
So I could carry this to the extreme. But I happen to
believe it is very likely you would have more than one insider.
Would you agree that with every inside person the task becomes
much more difficult, and especially depending on who the
insider would be and what capacity?
Mr. Crane. I think that you can come up with scenarios that
could create tougher situations, and that's why we have to
depend on more than just the guard force to ensure that the
insider threat is minimized--through constant behavioral
assessments, through different psychological tools. Members of
our staff that have that critical knowledge have an enhanced
inspection characteristic and behavioral assessments done on
them, and their background evaluations are reviewed more
frequently.
So the answer is yes. You could come up with scenarios that
could make it very tough. The guard forces, the guard force,
they are very well trained. But we have other administrative
tools to ensure that does not happen.
Ms. Brian. Congressman, if you could also ask them about
the number of attackers they are protecting against?
Mr. Shays. Well, that was the other issue when we were
looking at Y-12.
Ms. Brian. Right.
Mr. Shays. We felt originally that they were
underestimating the number of people potentially who could, and
when they increased the numbers, obviously, it became a much
more difficult challenge for them.
What I would also want to know is obviously everything that
they changed from staff to once they interacted. And we can be
very candid publicly our reaction as to whether we felt that
this was influenced too much by the concept that I know is
legitimate. But that also can be carried to an extreme, and
what is the industry capable of doing?
What I am left with in this hearing, and maybe you could
react to it? I am left with a feeling that I had come to this
hearing thinking that the design basis threat was pretty much,
if we met it, we could pretty much protect a facility.
I am leaving with the view that the design basis threat is
a logical thing to do to maximize our capability to respond to
an attack, but even if we meet it, it is no guarantee that we
have protected the plant because it may be in some plants that
it is simply not practical to do everything you need to do to
fully protect it.
That is where I want to kind of have a dialog behind closed
doors as to whether that happens at all or whether it happens,
you know, often. Because obviously we can't ask you to do
something you can't do.
But it seems to me that the threat has to be realistic,
whatever it is. And then the chips fall where they may. And I
am wondering, and maybe I could ask you, Commissioner, to just
step up for this? If you didn't mind, just pulling a chair up?
And if your colleagues are disappointed they aren't here to
give a different view, you could tell them they could have
stayed, if that is not too fresh.
Mr. McGaffigan. I was the designated Commissioner.
Mr. Shays. Good. Well, then that is super. Thank you.
Then we will assume that you are speaking for the
Commission. Did you hear my last basic point?
Mr. McGaffigan. Yes.
Mr. Shays. Yes, maybe you could respond to it?
Mr. McGaffigan. Sir, I think it's permeated the hearing
today. Clearly, there are threats that go beyond the design
basis threat. I talked earlier about the aircraft threat and
what we have done with NORAD.
Mr. Shays. Yes, but let us get rid of the airplane.
Mr. McGaffigan. But I also think that the comprehensive
reviews, although they're paper exercises to some degree, show
that the capability of our guard forces, which is really
extraordinary. I'd encourage you to visit Millstone or Indian
Point. Or as I said, I was at Quad Cities last week. They are
pretty extraordinary forces.
I'll give you unclassified numbers. There are 8,000 guards
at approximately 64 sites. That means 125 per site. That means
about 25 per shift on average. There are some sites that have
more, some that have less. So you're attacking a site that has
25 people armed with AR-15s and other sort of weapons, lots of
ammunition in prepared positions that you have taken on.
I would argue that our regulatory requirement is high
assurance that during an exercise they can defend against the
DBT. I think they have extraordinary capability against beyond
DBT ground-type assaults and that the capability degrades
gracefully, and it isn't a matter that if you have--and we've
tested it at one site.
I mean we'd like to have more industry volunteers, and I'll
put in that plug right now. But one site we tested 2X, and the
site did just fine. Against twice the size of the force. That
particular site had no targets that's destroyed. They destroyed
twice as many guards.
We think that would happen more frequently. It is hard, the
industry always is wary of the regulator in terms of allowing
us to explore beyond regulatory threats. But I say I think it
degrades gracefully.
And then for the extraordinary threats like the aircraft,
we do two things. We work with NORAD, and we invoke our safety
authorities, whether it's a spent fuel pool or a core. We
assume the worst, and say, OK, what can you guys do now to
mitigate it, to prevent anybody offsite from being hurt?
Mr. Shays. What I think what we may end up having to do
that might make industry very uncomfortable. I am going to say
to you that I happen to think ultimately the environmental
movement, to which I feel very close to, is ultimately going to
have to decide whether we want global warming or nuclear
generating power plants in addition to conservation.
I think that it is going to be whether we are going to be
competitive with the rest of the world as they end up with
nuclear plants on a generating plants. I mean, I happen to
believe that we are going to have plants in this country, and I
vote to send it to Yucca Mountain.
But I am uncomfortable with having plants until we decide
what we do with spent fuel. I don't like the idea, I think we
are very vulnerable leaving them onsite. So I have some
discomforts.
But it seems to me that we almost need to have another way
to grade every plan and say this is the extent to which the
design basis threat is feasible and logical. I believe that we
have made a decision to lower the design basis threat because
it is not practical to meet what may, in fact, be a very
realistic threat.
I believe that is true. Obviously, that is debatable. But I
think that there are scenarios that would almost be impractical
for a plant to have prepared for 24 hours a day. But I believe
also that the design basis threat gives people a sense that if,
in fact, we need it, whatever that is, that people feel we are
protected. And I don't think we are because I think we do
compromise it.
So then the issue to me is, should there be another way to
which we then inform at least, if not publicly, those
decisionmakers that this plant isn't as well protected and can
never be as well protected as this plant because it is
impractical to do all the things that we have to do at this
plant?
And then have a private dialog in particular about what
that means. Is this something that ever happens in dialog----
Mr. McGaffigan. Mr. Chairman, in terms of looking at new
plants, the Commission last summer, when I was off the
Commission briefly waiting to be reconfirmed, did make a
decision that we would ask for a so-called target set analysis
of each of the new designs as part of our process.
We believe that the target set is the set of equipment that
you have to take out in order to lead to core damage or to--we
were focused on the core or to spent fuel damage. The more
complicated, the larger the target set, the more the terrorist
has to do to succeed, the less the probability of the terrorist
succeeding.
And a lot of that can be built into the design, and I
believe it's already built into the design of each of the new
reactors--the AP1000, the Economic Simplified Boiling Water
Reactor, and the EPR, the European Pressurized Reactor, or
whatever they're calling it in the United States these days.
They have a different title.
The evolutionary power reactor. Part of their marketing in
the United States is to delete ``European'' and put in
``evolutionary.''
But each of those, each of those reactors is from a point
of view of terrorist attack, we believe, going to be much safer
and more secure than the current generation of reactors. Not
that the current generation isn't secure, but one of the policy
statements the Commission issued a long time ago is that when
we embark on a new generation of reactors, they will be both
safer and more secure than the current generation of reactors.
We think that will be the case. So, we'll have to be behind
the doors that the details of those analyses they're going to
give us, but we'll be happy to share those with the Congress,
you know, and convince you that these are very secure
facilities that are being proposed by the industry.
Mr. Shays. And I am exposing my ignorance here, which I do
quite often, but I do learn from it. Do we grade every nuclear
power-generating plant on a scale of whatever to be able to
compare its vulnerability versus another one?
Mr. McGaffigan. We do not, sir.
Mr. Shays. That to me seems--what?
Mr. McGaffigan. We have studies and these comprehensive
reviews----
Mr. Shays. But I think you know where I am going. Before
you answer, I would just tell you where I am going. Where I am
going is, obviously, that would have to be kept very
confidential because you then don't want to expose it to the
adversaries.
But if the logic is that someone goes to the weakest
target, what is the weakest one? And some have to be weaker
than others. And if they are not weaker, maybe their
consequence is greater if--just hold on 1 second. You will get
your chance.
The consequence may be even worse. I mean, maybe one plant
isn't as vulnerable, but if it is hit in an effective way, the
consequence is far greater than the weaker plant, if you get my
gist here?
But it would seem to me that we would grade every plant, we
would know how each one. And if, in fact, the design basis
threat doesn't really meet the actual threat, but what we are
capable of meeting, if that is my suspicion and it is right,
then it would seem to me we would have to have some way to say
this is the vulnerability at this plant?
Mr. Fertel. Yes, Mr. Chairman. Commissioner McGaffigan
referred to it, and I did in my testimony. DHS is on that path.
That's exactly what this RAMCAP program does, but not just for
nuclear plants, it does it for LNG facilities. It's going to do
it for chemical plants. It's going to do it for all the
critical infrastructure sectors.
And what they do is they go out and they have a spectrum of
16 threats, and you should have them come in and tell you what
they're doing.
Now they don't necessarily say this is a credible threat
and this is a noncredible threat. They look at all of them, and
they ask for the worst-case consequences for each of those. Not
a very sophisticated engineering analysis, more qualitative.
But they have a methodology they use that gives them pretty
good data and probably for nuclear plants gives them the best
data because there's been so much done at those plants.
Their intent, and they've got to get to execution, they're
doing the things now. Their intent was that they would then
have a matrix for all of the critical infrastructure. So my
nuclear plant, Danielle's chemical plant, attorney general's
LNG facility. And they would look at these 16 threats.
Mr. Shays. I don't think you would want to be associated
with an LNG. [Laughter.]
Mr. Blumenthal. I'm taking it in the spirit that it was
offered.
Mr. Fertel. It was inclusiveness.
Mr. Blumenthal. He's not giving me ownership.
Mr. Fertel. What they would be doing is they would be
saying that for threat A, we think there's a high likelihood
that may occur in our country. And they would look and they'd
say, OK, threat A has very low consequence for my facility, but
high consequence for Danielle's.
They would then look and say do we feel we're adequately
protected as a Nation? Not as her as a separate entity, but
with what she's doing at her plant and what the Federal
Government and State and local are going to do, what else do
they need to do to enhance the margin of security?
That's the effort that they're on, and it's a combination
of this RAMCAP, plus what Commissioner McGaffigan referred to
on comprehensive reviews. That is the closest thing to what
you're discussing, but it's not ranking nuclear plants among
nuclear plants. It's ranking nuclear plants within the
infrastructure. And some nuclear will be high risk you need to
deal with, and some will be very low risk.
Mr. Blumenthal. If I can just interject, as a non-expert,
as just a----
Mr. Shays. Why don't you just say as an unbiased person?
Mr. Blumenthal. As a country lawyer.
Mr. Shays. OK. Yes, right. [Laughter.]
Mr. Blumenthal. You know, as I listen to all of the
terminology and the reports about studies and the consideration
of threat levels and all the rest of it, I'm struck by the need
to have perhaps some agency other than the NRC doing these
security assessments. And maybe it should be the homeland
security agency.
But one of my main reasons for being tempted by that
outcome is the account from the GAO, which I think is
absolutely stunning that the design basis threat was redefined
because the industry objected to the expense of it being
responsible for protecting against certain weapons. It, in
effect, persuaded the NRC to redefine this design basis threat
because of its needs, financially and otherwise.
And you know, the security of our nuclear plants maybe is
too important for the Nuclear Regulatory Commission to be
responsible for performing or assuring.
Mr. Shays. I would tend to agree, especially if we start to
see more of them, more plants.
Mr. Blumenthal. And I want to----
Mr. Shays. You will get that in----
Mr. Blumenthal. I realize that it may seem like a novel or
dramatic idea, but----
Mr. Shays. I don't think it is novel, actually.
Mr. Blumenthal. Not novel?
Mr. Shays. No. Not novel.
Mr. Blumenthal. Well, that gives me some assurance.
[Laughter.]
And I didn't suggest that it was entirely novel, but novel
for the----
Mr. Shays. In this room, it seems novel right now, yes.
Mr. Blumenthal [continuing]. Congress to consider doing.
But certainly where the lack of transparency, which, again, the
GAO highlighted. Where you have lack of transparency and
apparent possible over-involvement of the industry, you would
want a different agency to be making these decisions.
Mr. Shays. Right. I hear you.
Yes, Commissioner?
So now we are going to close up.
Mr. McGaffigan. Two points. One is in response to your
original question, the ranking. Rankings, just if we did safety
rankings of the 103 plants, it would depend on the
configuration of the plant at any given point in time, and it's
the same in security.
So one plant may be more secure than another at time X and
not be more secure at time Y, depending on what else is
happening at the plant at the same time. So it's a complicated
thing.
To the extent that we can, we do provide NORAD and
NORTHCOM--and we can talk to you about this in a classified
meeting--our list of things they should focus on, and we give
them plant status on critical parameters so that they can
better assign their resources. We do that. We've done that
already. We've been doing that for years.
On the issue of independence of the Nuclear Regulatory
Commission, all I can say, sir, is that our staff is a very
professional group of folks. They are not lapdogs of the
industry or wholly owned subsidiaries of NEI.
I have personally had no ties to this industry throughout
my life. I'm a 30-year civil servant. I worked for Jeff
Bingaman for 14 years. I was a Foreign Service officer for 7
years. I have never collected a check except from Harvard,
CalTech, and the Federal Government, U.S. Treasury. And most of
our staff is exactly that way.
Some Commissioners have ties to the industry. I think
that's a different--they bring a perspective. And you benefit--
we are an independent regulator. We are the watchdog.
I wish, one thing, sir, if you're ever working on the title
of the Nuclear Regulatory Commission, I wish we were called the
Nuclear Safety and Security Commission because ``regulatory''
has such a negative connotation in our society, and most
other----
Mr. Shays. Well, names do matter. We do have the Patriot
Act.
Mr. McGaffigan. Yes, I know. Names do matter. And most
other regulatory bodies on the face of the Earth have
``safety'' in their title, and we, unfortunately, have
``regulatory,'' which brings with it all those negative
connotations.
We are an independent body. We call the shots, the balls
and strikes, as we see them. These folks are put through their
paces that are our licensees in both safety and security.
Mr. Shays. I hear you. Now I understand why they allowed
you to stay. [Laughter.]
Mr. Crane.
Mr. Crane. I just have to----
Mr. Shays. I don't mean allowed, asked you to stay.
Mr. Crane. I just have to respond to a couple of comments.
Mr. Shays. Sure.
Mr. Crane. First of all, I think most regulatory agencies
have stakeholder interface meetings and conversations, and I
think it's a critical part to make sure you hit the mark when
the regulation comes up.
The NRC did afford a small section of the industry that was
a working group to be able to look at the feasibility of what
could be done not only in the timeline of what could be done or
what reasonably we had to protect ourselves again.
Probabilities came into our feedback.
We are not an industry that is overly driven by profits,
and we have not been pushing back overly hard. We have spent
over $1.2 billion. There are 16 sectors in the United States,
and show one other sector that's put anywhere near that money
into it and voluntarily done this and expedited it.
At our company alone, we've spent over $140 million in a
very short period, a 1-year period of time, $140 million, and
we increased our operational expenses by 100 percent. We didn't
go ask for handouts from Congress. We didn't ask for handouts
from Homeland Security.
We are dedicated to protecting our people. We are dedicated
to protecting our assets. If we cut a corner in our industry,
billions of dollars of value of our shareholders are lost
immediately. So to portray us as being able to push back on the
regulator and we're driven by money is totally false.
Mr. Shays. No. And that extreme statement would be false.
But having been in this business of Government for 30 years,
you do have competing interests.
And I think that the issue is to what extent do you want to
protect yourself? And I think that is where you would have an
industry that might think 10 years, but maybe not think of the
30-year case, or the 30-year storm or whatever. So I think it
is somewhere in between.
I think people have been, frankly, pretty respectful of
your industry and here as well. And let me just say I would
like to end this hearing, if I could, by allowing each of you
to make any point that you think, question that we should have
asked that we didn't or any point that you want to put on the
record before we adjourn.
And maybe I will start with you, Mr. Blumenthal, and give
Mr. Crane a chance to think about it.
Mr. Blumenthal. Well, my point is going to be very brief
because I have to catch a plane to be back in Connecticut for a
commitment. So I'm willing to defer. I yield my time, as the
saying goes in Congress.
Mr. Shays. OK. Ms. Brian.
Thank you, sir.
Ms. Brian. I would just want to add that----
Mr. Blumenthal. Excuse me for interrupting. I really do
want to thank you, Mr. Chairman, for having this hearing, which
I think has really been very useful and important.
Mr. Shays. Thank you.
Mr. Blumenthal. As well as your subcommittee and for all
the great work you're doing.
Mr. Shays. Thank you very much. You know what? Why don't
you just feel free to leave right now? Honestly, because I am
just going to go down. So, thank you so much.
Mr. Blumenthal. Thank you.
Mr. Shays. Travel safe.
Yes, ma'am?
Ms. Brian. I only wanted to add the reminder that in the
process that this took place, where the staff was able to work
with industry and come up with some changes in their
recommendations, other people aren't allowed in that process
because only very few people have the clearance and the
capacity.
So those of us on the outside are allowed to submit
comments, but we're blindfolded because we're commenting on
things that we're not allowed to know about.
Mr. Shays. Thank you.
Mr. Fertel.
Mr. Fertel. I think the thing I would encourage, Mr.
Chairman, is for you to be briefed by DHS on what they're doing
more broadly to protect the critical infrastructure. I think it
goes to the heart of the some of the issues and concerns you've
raised.
Mr. Shays. Well, I hope this won't shock you, but I have
more faith in the NRC than I do in DHS. So----
Mr. Fertel. It doesn't shock me, and again, I'm not trying
to defend them. But I'm just saying they are doing something.
Mr. Shays. In fact, let me say this to you--a lot more
confidence. So that tells you where I am at.
Mr. Fertel. But you helped create them, so we should try to
make them effective.
Mr. Shays. No, and there will be a point in time where they
will get better and better and better. But you know, I am still
trying to sort out Katrina. We didn't want them to stand by,
watching FEMA fail. We wanted them to be proactive and help
FEMA.
Mr. Crane. That was going to be my same comment on anything
you could do for us with DHS to expedite, it would be helpful.
Mr. Shays. OK. Great. I think you all have been wonderful
witnesses.
And I am going to note for the record the NRC has evidently
made a greater effort to be cooperative with our people that
look at them, which is I think Ms. Brian's request, and I think
that is a positive thing.
But, Ms. Brian, we need organizations like yours to be
speaking out and raising concerns, and we thank you for that.
And we appreciate the work of the industry. So thank you all
very much.
Ms. Brian. Thank you, Chairman.
Mr. Shays. Thank you, Commissioner.
This hearing is adjourned.
[Whereupon, at 5:15 p.m., the subcommittee was adjourned.]