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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

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

CHRISTOPHER SHAYS, Connecticut

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

CANDICE S. MILLER, Michigan

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

JON C. PORTER, Nevada

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

CHARLES W. DENT, Pennsylvania

VIRGINIA FOXX, North Carolina

JEAN SCHMIDT, Ohio

——— ———

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

BRIAN HIGGINS, New York

ELEANOR HOLMES NORTON, District of

Columbia

———

BERNARD SANDERS, Vermont

(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

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

JON C. PORTER, Nevada

CHARLES W. DENT, Pennsylvania

DENNIS J. KUCINICH, Ohio

TOM LANTOS, California

BERNARD SANDERS, Vermont

CAROLYN B. MALONEY, New York

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

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

(III)

C O N T E N T S

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

(1)

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

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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

6

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-onforce 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.

7

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.

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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 forceon-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.

29

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-onforce 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 forceon-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

44

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

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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

45

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?

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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——

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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 surfaceto-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

48

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.

49

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.

50

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

51

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-toair 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.

52

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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55

56

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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.

58

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?

59

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-onforce 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

60

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

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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.

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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.

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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

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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.]

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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

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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

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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

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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.

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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 perimVerDate 11-MAY-2000 14:47 Dec 04, 2006 Jkt 000000 PO 00000 Frm 00089 Fmt 6633 Sfmt 6633 D:\DOCS\30694.TXT HGOVREF1 PsN: HGOVREF1
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eters, increasing patrols within security zones, installing new barriers to protect against vehicle bombs, installing additional hightech 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

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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 preVerDate 11-MAY-2000 14:47 Dec 04, 2006 Jkt 000000 PO 00000 Frm 00109 Fmt 6633 Sfmt 6633 D:\DOCS\30694.TXT HGOVREF1 PsN: HGOVREF1
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viously 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

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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.

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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

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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?

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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.

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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

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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?’’

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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.

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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?

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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.

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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.

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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

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sidered 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?

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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 groundtype 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

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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.

128

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 probVerDate 11-MAY-2000 14:47 Dec 04, 2006 Jkt 000000 PO 00000 Frm 00132 Fmt 6633 Sfmt 6633 D:\DOCS\30694.TXT HGOVREF1 PsN: HGOVREF1
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ably 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——

130

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.

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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——

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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.]

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