[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                     THE LOW-LEVEL PLUTONIUM SPILL 
                     AT NIST-BOULDER: CONTAMINATION 
                          OF LAB AND PERSONNEL 

=======================================================================

                                HEARING

                               BEFORE THE

               SUBCOMMITTEE ON TECHNOLOGY AND INNOVATION

                  COMMITTEE ON SCIENCE AND TECHNOLOGY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 15, 2008

                               __________

                           Serial No. 110-115

                               __________

     Printed for the use of the Committee on Science and Technology


     Available via the World Wide Web: http://www.science.house.gov

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                  COMMITTEE ON SCIENCE AND TECHNOLOGY

                 HON. BART GORDON, Tennessee, Chairman
JERRY F. COSTELLO, Illinois          RALPH M. HALL, Texas
EDDIE BERNICE JOHNSON, Texas         F. JAMES SENSENBRENNER JR., 
LYNN C. WOOLSEY, California              Wisconsin
MARK UDALL, Colorado                 LAMAR S. SMITH, Texas
DAVID WU, Oregon                     DANA ROHRABACHER, California
BRIAN BAIRD, Washington              ROSCOE G. BARTLETT, Maryland
BRAD MILLER, North Carolina          VERNON J. EHLERS, Michigan
DANIEL LIPINSKI, Illinois            FRANK D. LUCAS, Oklahoma
NICK LAMPSON, Texas                  JUDY BIGGERT, Illinois
GABRIELLE GIFFORDS, Arizona          W. TODD AKIN, Missouri
JERRY MCNERNEY, California           JO BONNER, Alabama
LAURA RICHARDSON, California         TOM FEENEY, Florida
PAUL KANJORSKI, Pennsylvania         RANDY NEUGEBAUER, Texas
STEVEN R. ROTHMAN, New Jersey        BOB INGLIS, South Carolina
JIM MATHESON, Utah                   DAVID G. REICHERT, Washington
MIKE ROSS, Arkansas                  MICHAEL T. MCCAUL, Texas
BEN CHANDLER, Kentucky               MARIO DIAZ-BALART, Florida
RUSS CARNAHAN, Missouri              PHIL GINGREY, Georgia
CHARLIE MELANCON, Louisiana          BRIAN P. BILBRAY, California
BARON P. HILL, Indiana               ADRIAN SMITH, Nebraska
HARRY E. MITCHELL, Arizona           PAUL C. BROUN, Georgia
CHARLES A. WILSON, Ohio
ANDRE CARSON, Indiana
                                 ------                                

               Subcommittee on Technology and Innovation

                    HON. DAVID WU, Oregon, Chairman
JIM MATHESON, Utah                   PHIL GINGREY, Georgia
HARRY E. MITCHELL, Arizona           VERNON J. EHLERS, Michigan
CHARLIE A. WILSON, Ohio              JUDY BIGGERT, Illinois
BEN CHANDLER, Kentucky               ADRIAN SMITH, Nebraska
MIKE ROSS, Arizona                   PAUL C. BROUN, Georgia
LAURA RICHARDSON, California           
BART GORDON, Tennessee               RALPH M. HALL, Texas
                 MIKE QUEAR Subcommittee Staff Director
      RACHEL JAGODA BRUNETTE Democratic Professional Staff Member
        MEGHAN HOUSEWRIGHT Democratic Professional Staff Member
         TIND SHEPPER RYEN Republican Professional Staff Member
           PIPER LARGENT Republican Professional Staff Member













                            C O N T E N T S

                             July 15, 2008

                                                                   Page
Witness List.....................................................     2

Hearing Charter..................................................     3

                           Opening Statements

Statement by Representative David Wu, Chairman, Subcommittee on 
  Technology and Innovation, Committee on Science and Technology, 
  U.S. House of Representatives..................................     8
    Written Statement............................................     8

Statement by Representative Phil Gingrey, Ranking Minority 
  Member, Subcommittee on Technology and Innovation, Committee on 
  Science and Technology, U.S. House of Representatives..........     9
    Written Statement............................................    10

Prepared Statement by Representative Harry E. Mitchell, Member, 
  Subcommittee on Technology and Innovation, Committee on Science 
  and Technology, U.S. House of Representatives..................    11

Prepared Statement by Representative Laura Richardson, Member, 
  Subcommittee on Technology and Innovation, Committee on Science 
  and Technology, U.S. House of Representatives..................    11

                               Witnesses:

Dr. James M. Turner, Deputy Director, National Institute of 
  Standards and Technology, U.S. Department of Commerce
    Oral Statement...............................................    12
    Written Statement............................................    14
    Biography....................................................    23

Dr. Charles L. Miller, Director, Office of Federal and State 
  Materials and Environmental Management Programs, U.S. Nuclear 
  Regulatory Commission; accompanied by Dr. Elmo E. Collins, 
  Regional Administrator, Region IV Office, U.S. Nuclear 
  Regulatory Commission
    Oral Statement...............................................    23
    Written Statement............................................    25
    Biography....................................................    29
    Biography for Elmo E. Collins................................    30

Dr. Kenneth C. Rogers, Former Commissioner, U.S. Nuclear 
  Regulatory Commission
    Oral Statement...............................................    30
    Written Statement............................................    32
    Biography....................................................    43

Discussion.......................................................    46

              Appendix: Answers to Post-Hearing Questions

Dr. James M. Turner, Deputy Director, National Institute of 
  Standards and Technology, U.S. Department of Commerce..........    70

Dr. Charles L. Miller, Director, Office of Federal and State 
  Materials and Environmental Management Programs, U.S. Nuclear 
  Regulatory Commission; accompanied by Dr. Elmo E. Collins, 
  Regional Administrator, Region IV Office, U.S. Nuclear 
  Regulatory Commission..........................................    74

Dr. Kenneth C. Rogers, Former Commissioner, U.S. Nuclear 
  Regulatory Commission..........................................    78


THE LOW-LEVEL PLUTONIUM SPILL AT NIST-BOULDER; CONTAMINATION OF LAB AND 
                               PERSONNEL

                              ----------                              


                         TUESDAY, JULY 15, 2008

                  House of Representatives,
         Subcommittee on Technology and Innovation,
                       Committee on Science and Technology,
                                                    Washington, DC.

    The Subcommittee met, pursuant to call, at 11:07 a.m., in 
Room 2325 of the Rayburn House Office Building, Hon. David Wu 
[Chairman of the Subcommittee] presiding.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                            hearing charter

               SUBCOMMITTEE ON TECHNOLOGY AND INNOVATION

                  COMMITTEE ON SCIENCE AND TECHNOLOGY

                     U.S. HOUSE OF REPRESENTATIVES

                     The Low-level Plutonium Spill

                     at NIST-Boulder: Contamination

                          of Lab and Personnel

                         tuesday, july 15, 2008
                          11:00 a.m.-1:00 p.m.
                   2325 rayburn house office building

I. Purpose

    On June 9, 2008, researchers working at the National Institute of 
Standards and Technology (NIST) facility in Boulder, Colorado were 
working with a small sample of plutonium when some of the sample 
spilled from its container and contaminated the lab and personnel. 
Contamination spread to other areas of the building, and a small amount 
of the material was washed away in the lab sink. The purpose of this 
hearing is to examine the causes of the incident and the subsequent 
response to the situation by NIST employees, and to discuss 
improvements to environmental, health, and safety practices at NIST.

II. Witnesses

Dr. James Turner is the Acting Director of the National Institute of 
Standards and Technology (NIST).

Dr. Charles Miller is the Director of the Office of Federal and State 
Materials and Environmental Management Programs at the U.S. Nuclear 
Regulatory Commission.

Dr. Kenneth Rogers is one of five independent investigators appointed 
by NIST to review the June 9, 2008 plutonium spill and a former 
Commissioner of the U.S. Nuclear Regulatory Commission.

Dr. Elmo Collins is the Regional Administrator of the Region IV Office, 
U.S. Nuclear Regulatory Commission.

III. Brief Overview

          On June 9, 2008, researchers working with a 0.25 gram 
        sample of plutonium noticed that the glass vial had cracked and 
        some of the powder had spilled. Radiological contamination was 
        found on the hands of two people, the shoes of 20 others, and 
        the hallway and office space near the lab. The individuals were 
        decontaminated and given medical tests to determine if any 
        plutonium had been ingested or inhaled. The major health risk 
        posed by the plutonium in this case is an increased long-term 
        cancer risk from internal exposure. The area around the lab was 
        cleaned and the lab itself sealed.

          Nearly one week following the incident, contamination 
        was discovered in a laboratory sink, indicating that some 
        plutonium had been washed down the drain to the municipal sewer 
        system. Additionally, several new individuals were identified 
        as possibly having been exposed to the plutonium and traces of 
        contamination were discovered in other areas of the NIST 
        facility.

          On June 27, NIST reported that sensitive medical 
        tests for multiple individuals had returned results positive 
        for internal exposure to plutonium. Under the advice of 
        radiation health physicians, one individual began prophylactic 
        treatment for exposure; the others are awaiting the results of 
        further tests to determine if treatment is necessary. In total, 
        29 people are receiving these medical tests. However, NIST 
        reports that initial test results show that individuals did not 
        receive medically significant levels of internal radiation 
        exposure.

          The spill likely could have been prevented had proper 
        safety protocols and handling procedures been followed. 
        Documentation provided to the Committee indicates that two 
        individuals working with the plutonium sample--including one 
        directly involved with the accident--had not received the 
        required radiation safety training. Discussions with NIST 
        personnel also revealed that the plutonium was not sealed in 
        its original protective packaging, as it should have been. It 
        is evident from the growing scope of the incident and the 
        inadequate communication between NIST and State and local 
        officials, NIST employees, and others that NIST did not have a 
        comprehensive, practiced emergency response plan in place at 
        the time of the incident.

          NIST relies on supervisors and lab directors to 
        provide safety training to the researchers in their lab and 
        ensure all work is undertaken safely. This system, clearly 
        failed in this case. The FY 2006 Visiting Committee on Advanced 
        Technology (VCAT) report noted a lax culture of environmental, 
        health, and safety (EH&S) at NIST and recommended that NIST 
        management devote more effort to engendering safety among the 
        NIST staff. The Committee has asked for extensive documentation 
        on EH&S practices at NIST and proof of current training for all 
        employees to assess whether this incident reveals a larger 
        problem at NIST.\1\ Thus far, NIST has not provided many of 
        these documents, raising the concern that the lapses in good 
        EH&S practice that contributed to this incident are not 
        isolated.
---------------------------------------------------------------------------
    \1\ Letter sent June 19, 2008 requesting these documents is 
attached.

IV. Issues and Concerns

    While a final account of the incident is forthcoming, initial 
reports that untrained personnel were working with radioactive material 
are troubling. In February 2007, NIST-Boulder applied to the Nuclear 
Regulatory Commission (NRC) to amend their materials license for 
plutonium. As part of the agreement to amend their license, NIST stated 
that personnel handling and working in the area with the nuclear 
material would follow strict training procedures. NIST claims that most 
of the individuals who required the two-hour training received it in 
2007, but no documentation has been provided to show that the 
authorized user on the NRC license received the full eight hours of 
training required. Also, the NRC license lists two authorized users for 
the plutonium, neither of whom were supervising the experiment at the 
time of the incident.
    On the NRC license amendment application, NIST references an 
emergency response plan and a contamination minimization program. NIST 
has not provided these documents to the Committee, but the handling of 
this incident shows poor implementation of both of these aspects of 
proper incident response. It is unclear from the training materials 
provided to the Committee what specific instructions employees received 
to minimize the extent of contamination and what specific steps they 
were to take in an emergency. The fact that radioactive material was 
discharged to the municipal sewer system--though the amount was later 
determined to be insignificant--and was undiscovered until nearly a 
week after the initial incident illustrates that personnel did not 
appreciate the basics of contamination minimization. Similarly, it 
appears that NIST-Boulder does not have a comprehensive, well practiced 
emergency plan. Communication with State and local officials was lax, 
and the lack of communication with employees working at an adjacent 
National Oceanic and Atmospheric Administration (NOAA) facility created 
unnecessary anxiety for those individuals.
    The FY 2006 VCAT report stated:

         NIST has made solid improvements over the years to improve its 
        laboratory safety. . . . However, there are still 
        inconsistencies in application of safety procedures across the 
        laboratories. Safety is a leadership activity that the senior 
        NIST leadership must be actively involved in.

    Although not associated with high-energy radiation, the nuclear 
material involved in this incident still poses a serious health risk, 
as illustrated by the treatment measures currently being taken by at 
least one individual involved. Given that NIST researchers also work 
with material more hazardous than plutonium, health and safety 
practices should not be taken for granted by NIST management. The 
Safety Office at NIST has seen inadequate funding in recent years and 
the safety officers have little authority to enforce safety procedures. 
The lack of oversight of safety by NIST management contributed to this 
incident, and while NIST has engaged outside experts to investigate the 
incident, they must commission an external panel to evaluate EH&S 
practices across all of the NIST laboratories and programs. This is a 
necessary step to ensure safety for NIST employees and the surrounding 
communities.

V. Background

    The small plutonium sample was being used in a research project to 
develop improved radiation detectors for use in applications such as 
anti-nuclear proliferation enforcement, homeland security, and basic 
research. The work was being done in collaboration with Los Alamos 
National Laboratories.
    The spilled plutonium weighed approximately 0.25g and was used as a 
reference material of known radioactivity. The type of radiation 
emitted by this sample is primarily alpha particles, which are easily 
shielded but have significant risks from internal exposure.

Attachment

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Chairman Wu. I want to welcome everyone to this morning's 
hearing. It is not unusual for the Subcommittee to hold 
oversight hearings about NIST. However, events over the past 
six months have revealed some serious flaws in the 
environmental, health, and safety programs at NIST.
    This subcommittee has been the strongest champion of NIST 
in Congress, and its Members have spent a lot of time educating 
our colleagues on the outstanding scientific and technical work 
of NIST employees and the tremendous value of NIST's work. On a 
bipartisan basis, this subcommittee has championed increased 
funding for NIST's scientific and technical activities.
    However, along with scientific and technical excellence, 
NIST needs an equal dedication to safe laboratory and general 
practices. This is especially true at the NIST labs where staff 
routinely work with hazardous materials and high-powered 
equipment such as radioactive material and lasers. In the past 
six months NIST has had at least two significant accidents.
    The first involved the use of laser in Gaithersburg, 
Maryland, and the second was the accidental release of 
plutonium in Boulder, Colorado. Initial investigations revealed 
the same basic issue in both cases; a lack of training for the 
researchers performing the experiments and inadequate 
laboratory safety policies.
    These might sound like minor incidents, but they have had 
medical ramifications for NIST employees, including one person 
who experienced eye damage from the laser and another who 
underwent prophylactic treatment for radiation exposure.
    I am concerned that the laser event did not trigger an 
immediate review of all of NIST's safety training which might 
have prevented the subsequent incident in June. I am also 
concerned that NIST did not act on the Visiting Committee on 
Advanced Technology's, or VCAT's, 2006 recommendation that 
management needed to be more involved in and place more 
emphasis on environmental, health, and safety issues.
    I am also deeply concerned that there did not seem to be a 
sensitivity and appropriate priority placed on communicating 
with the surrounding communities to prevent the dissemination 
of information which might be alarming and which may or may not 
be accurate to the surrounding communities.
    The purpose of today's hearing is not to place blame. It is 
to understand how this situation developed, and what needs to 
be done to instill a culture of safety in the NIST laboratories 
while maintaining scientific excellence.
    I want to thank our outside experts for assisting the 
Subcommittee in its endeavors, and I now would like to 
recognize my friend from Georgia, the Subcommittee's Ranking 
Member, Dr. Gingrey, for his opening statement.
    [The prepared statement of Chairman Wu follows:]
                Prepared Statement of Chairman David Wu
    I want to welcome everyone to this morning's hearing. It's not 
unusual for the Subcommittee to hold oversight hearings of NIST. 
However, events over the past six months have revealed serious flaws in 
the environmental, health, and safety programs at NIST.
    This subcommittee has been the strongest champion of NIST in 
Congress, and its Members have spent a lot of time educating our 
colleagues on the outstanding scientific and technical work of NIST 
employees. On a bipartisan basis, this subcommittee has championed 
increased funding for NIST's scientific and technical activities.
    However, along with scientific and technical excellence, NIST needs 
an equal dedication to safe laboratory practices.
    This is especially true at the NIST labs where staff routinely work 
with hazardous materials and high powered equipment, such as 
radioactive material and lasers. In the past six months, NIST has had 
two significant accidents.
    The first involved the use of a laser in Gaithersburg, Maryland, 
and the second was the accidental release of plutonium in Boulder, 
Colorado. Initial investigations revealed the same basic issue in both 
cases--a lack of training for the researchers performing the 
experiments and inadequate laboratory safety policies.
    These might sound like minor incidents, but they have had medical 
ramifications for NIST employees, including one person who experienced 
eye damage from the laser and another who underwent prophylactic 
treatment for radiation exposure.
    I am concerned that the laser event did not trigger an immediate 
review of all of NIST's safety training which might have prevented the 
accident in June.
    I am also concerned that NIST did not act on the Visiting Committee 
on Advanced Technology's 2006 recommendation that management needed to 
be more involved in, and place more emphasis on, environmental, health, 
and safety issues.
    The purpose of today's hearing is not to place blame; it is to 
understand how this situation developed and what needs to be done to 
instill a culture of safety in the NIST labs, while maintaining 
scientific excellence.
    I especially want to thank our outside experts for assisting the 
Subcommittee in its endeavors.
    I now recognize my friend from Georgia, the Subcommittee Ranking 
Member, Dr. Gingrey, for his opening statement.

    Mr. Gingrey. Mr. Chairman, thank you for calling today's 
hearing to review the details and the causes of the June 9 
spill of plutonium that occurred at the NIST labs in Boulder, 
and of course, you mentioned also the laser accident at 
Gaithersburg.
    First and foremost, I am very thankful that those in 
proximity of the spill have thus far shown no adverse side 
effects from their exposure to plutonium, and of course, as I 
said, the other accident involving the laser. We--it will take 
time. Only time will tell the adverse effects of those two 
incidents.
    That is not to say, however, that the sample containing 250 
milligrams of various plutonium isotopes pose no health or 
safety risks when it was mishandled. I am very disappointed 
that the preliminary investigations of this incident to date 
have revealed not just a stunning lack of preparation but also 
a complete lack of understanding of the potential risks 
involved in the use of encapsulated plutonium samples.
    It appears as though researchers were unaware of the 
potential risks and quickly went forward to obtain and use the 
samples without appropriate precautions in place. Of even 
greater concern, safety protocol was either not in place or not 
properly followed, that would have flagged this acquisition 
ahead of time or insured that proper training and equipment 
were available.
    Mr. Chairman, this incident is absolutely unacceptable. It 
could have been avoided, and it should have been avoided. One 
of the NIST independent reviewers, Dr. Lester Slaback, notes in 
his report, the incident was the inevitable or at least highly 
likely and foreseeable end result of numerous individual and 
organizational failures.
    I do applaud Dr. Turner for recognizing the gravity of the 
problem at NIST, and I am cautiously optimistic that employees 
throughout the agency will also heed this wake-up call.
    However, this incident makes clear that simply having 
safety policies on paper does not ensure that they will be 
adequately executed. And I hope Dr. Turner recognizes, I am 
sure he does, that a fix will not come through onerous safety 
directions from top level officials. Rather, change must 
involve every employee or visiting affiliate at NIST adhering 
to documented safety procedures so that an incident like this 
does not occur again.
    I expect that during the question and answer portion of 
today's hearing we will be able to discuss how NIST can ensure 
that their safety programs, including radiological safety, 
become examples of best practices instead of examples of 
shortcomings and inadequate preparation. Indeed, you know, when 
I think of NIST and what I have learned of NIST and visited at 
Gaithersburg in the time that I have been a Member of this 
committee, I have come to expect the very best of this age-old 
organization that is practically called for in our United 
States Constitution. I mean, it is hugely, hugely important, 
and it is just shocking that this would have occurred.
    The Nuclear Regulatory Commission's investigation of this 
incident is, of course, still ongoing, so I am sensitive to the 
need of the Commission to complete that work before discussing 
their findings. I am thankful, though, that Dr. Miller and 
Dr.--and Mr. Collins have made themselves available to explain 
the NRC licensing requirements, safety guidelines, and process 
for responding to this event. Their expertise and insight will 
be extraordinarily useful to the Committee as we place this 
incident in its proper context and seek ways to improve the 
safety systems at NIST.
    Mr. Chairman, NIST has a scientific legacy of achievement 
for which we are rightfully proud. I think we all agree that 
equal effort must go into safety considerations at NIST. We 
cannot accept a cavalier attitude towards safety. We are not 
using plutonium as if we are trying to send a DeLorean back in 
time like in the film, Back to the Future. There are greater 
safety concerns for which our researches at NIST should be 
prepared, and moving forward this agency should be better 
positioned to implement better training and safety protocols.
    With that, Mr. Chairman, I yield back to you.
    [The prepared statement of Mr. Gingrey follows:]
           Prepared Statement of Representative Phil Gingrey
    Mr. Chairman, thank you for calling today's hearing to review the 
details and causes of the June 9th spill of plutonium at the NIST labs 
in Boulder. First and foremost, I am very thankful that those in 
proximity of the spill have thus far shown no adverse side effects from 
their exposure to plutonium. That is not to say, however, that the 
sample containing 250 milligrams of various plutonium isotopes posed no 
health or safety risks when it was mishandled.
    I am very disappointed that the preliminary investigations of this 
incident to date have revealed not just a stunning lack of preparation, 
but also a complete lack of understanding of the potential risks 
involved in the use of encapsulated plutonium samples. It appears as 
though researchers were unaware of the potential risks and quickly went 
forward to obtain and use the samples without appropriate precautions 
in place. Of even greater concern, safety protocol was either not in 
place or not properly followed. That would have flagged this 
acquisition ahead of time or ensured that proper training and equipment 
were available.
    Mr. Chairman, this incident is absolutely unacceptable. It could 
have been avoided, and it should have been avoided.
    One of the NIST independent reviewers, Dr. Lester Slaback, notes in 
his report that, ``[the incident] was the inevitable (or at least 
highly likely) and foreseeable end result'' of numerous individual and 
organizational failures. I do applaud Dr. Turner for recognizing the 
gravity of the problem at NIST, and I am cautiously optimistic that 
employees throughout the agency will also heed this wake-up call. 
However, this incident makes clear that simply having safety policies 
on paper does not ensure that they will be adequately executed. I hope 
Dr. Turner recognizes that a fix will not come through onerous safety 
directives from top level officials. Rather, change must involve every 
employee or visiting affiliate at NIST adhering to documented safety 
procedures so that an incident like this does not occur again. I expect 
that during the Question and Answer portion of today's hearing, we will 
be able to discuss how NIST can ensure that their safety programs, 
including radiological safety, become examples of best-practices 
instead of examples of shortcomings and inadequate preparation.
    The Nuclear Regulatory Commission's investigation of this incident 
is still ongoing, so I am sensitive to the need for the Commission to 
complete that work before discussing their findings. I am thankful, 
though, that Dr. Miller and Dr. Collins have made themselves available 
to explain the NRC's licensing requirements, safety guidelines, and 
process for responding to this event. Their expertise and insight will 
be extraordinarily useful to the Committee as we place this incident in 
context and seek ways to improve the safety systems at NIST.
    Mr. Chairman, NIST has a scientific legacy of achievement for which 
we are rightfully proud. I think we all agree that equal effort must go 
into safety considerations at NIST. We cannot accept a cavalier 
attitude towards safety. We are not using plutonium as if we are trying 
to send a DeLorean back in time, like in the film Back to the Future. 
There are greater safety concerns for which our researchers at NIST 
should be prepared, and moving forward, this agency should be better 
positioned to implement better training and safety protocols.
    With that, I yield back the balance of my time.

    Chairman Wu. I thank the gentleman. If there are any other 
Members who wish to submit additional opening statements, your 
statements will be added to the record at this point.
    [The prepared statement of Mr. Mitchell follows:]
         Prepared Statement of Representative Harry E. Mitchell
    Thank you, Mr. Chairman.
    On June 9, 2008, there was an incident at the National Institute of 
Standards and Technology (NIST) facility in Boulder, CO involving a 
plutonium sample spill which contaminated the lab and personnel.
    Today we will examine the causes of this incident and how the NIST 
employees responded.
    According to documentation provided for this committee, two NIST 
employees working with this plutonium sample did not receive the 
required radiation safety training, and this plutonium was not properly 
stored. Furthermore, NIST did not have a comprehensive emergency 
response plan in place at the time of the incident.
    Even more troubling, even though the Committee has requested 
extensive documentation on the environmental, health, and safety 
practices at NIST, NIST has yet to provide many of these documents, 
which raises the concern that lapses that caused the incident in 
Boulder are not isolated.
    I find this deeply concerning. Federal agencies like NIST have 
safety regulations in place for a reason.
    I look forward to hearing more from our witnesses on what we can do 
to improve the environmental, health, and safety practices at NIST.
    I yield back.

    [The prepared statement of Ms. Richardson follows:]
         Prepared Statement of Representative Laura Richardson
    Thank you Chairman Wu for holding this very important hearing 
today, and our witnesses for their appearance. The purpose of today's 
hearing is to examine the causes of the plutonium spill at the NIST 
laboratories in Boulder, Colorado; the response to this spill; and the 
overall status of environmental, health, and safety practices 
(``EH&S'') at NIST laboratories.
    First and foremost let me begin by stating that I was concerned 
when I gained knowledge of this incident. I understand that mistakes 
happen, but what concerns me more than anything else was the subsequent 
response or the lack of an adequate response to the situation. This 
spill opened our eyes to a host of procedures that, had they been 
followed, would have negated the necessity of this hearing. Nonetheless 
here we are. Now let me state this, NIST is an excellent organization, 
with a group of scientist that are the best in the world, so I am 
shocked to discover that EH&S practices do not receive the attention 
they deserve at NIST laboratories.
    When an institution like NIST applies to the Nuclear Regulatory 
Commission for a license to handle dangerous materials like plutonium, 
they make assurances. One of these assurances is that every individual 
who will work with the material, or come in close proximity to the 
material, receives adequate safety training. Furthermore, when NIST 
applied for the license to handle plutonium, the representation was 
made that only two individuals would be allowed to handle the 
plutonium. However, reports indicate that the visiting researcher who 
spilled the plutonium was not one of the individuals designated on the 
NIST application as a handler, he did not receive adequate training, 
his supervisor may not have received adequate training, and the chief 
scientist with the authorization to handle the plutonium was not in the 
room supervising the visiting researcher. In light of these facts it is 
obvious why we are here today.
    Add to this the fact that the administrators at NIST failed to 
inform the elected officials of Boulder, and the neighboring NOAA 
facility (National Oceanic and Atmospheric Administration) of the spill 
leads me to believe that someone might have deliberately attempted to 
hide knowledge of the spill.
    Likewise, the fact that the Visiting Committee on Advanced 
Technology (VCAT) noted the lax culture of EH&S at NIST, and 
recommended that NIST management address this matter, yet this incident 
still occurs, demonstrates sub-standard behavior on the part of the 
NIST administration.
    I know that this hearing will produce results, and I expect the 
administration of NIST to deliver those results. There is NO room for 
compromise when it comes to public safety.
    Mr. Chairman I yield back my time.

    Chairman Wu. I would like to introduce our witnesses, and I 
thank you all for appearing before the Subcommittee today. Dr. 
James Turner, who is the Acting Director of NIST, Dr. Charles 
Miller, who is the Director of the Office of Federal and State 
Materials and Environmental Management Programs at the Nuclear 
Regulatory Commission.
    He is joined from the NRC by Mr. Elmo Collins, who is the 
Regional Administrator of Region IV based in Arlington, Texas. 
Mr. Collins is directly involved in investigating the June 9 
incident at the Boulder Laboratories.
    Lastly, Dr. Kenneth Rogers. Dr. Rogers was asked by NIST to 
provide an independent review, one of several individuals asked 
for independent reviews of the June 9 incident, and to offer 
recommendations, and Dr. Rogers is also a former Commissioner 
of the Nuclear Regulatory Commission.
    As our witnesses know, spoken testimony is limited to five 
minutes, after which the Members of the Committee will have 
five minutes each to ask questions. Your written statements 
will be fully taken into the record.
    And with that, Dr. Turner, if you would, please commence.

  STATEMENT OF DR. JAMES M. TURNER, DEPUTY DIRECTOR, NATIONAL 
   INSTITUTE OF STANDARDS AND TECHNOLOGY, U.S. DEPARTMENT OF 
                            COMMERCE

    Dr. Turner. Thank you very much, Mr. Chairman. Chairman Wu, 
Ranking Member Gingrey, and Members of the Subcommittee, thank 
you for the opportunity to appear before you today to discuss 
the June 9, 2008, incident involving the release of plutonium 
at the National Institute of Standards and Technology, NIST, 
Boulder Laboratory, as well as NIST's environment, safety, and 
health practices.
    Mr. Chairman, I deeply regret the incident. My top priority 
has been, and continues to be, the health and safety of our 
staff involved in this incident. According to the latest 
analysis of the medical testing of the personnel involved, the 
physicians have relayed that the increased overall risk for 
cancer based on dose estimates are so small they don't expect 
there to be any clinically-significant impact on either the 
short- or long-term health of anyone exposed. We will continue 
to provide our personnel with access to top medical care as 
well as we continue testing.
    We have been able to ascertain through numerous interviews 
and reports that the incident involved a guest researcher who 
handled the radioactive source without appropriate training and 
supervision. My written testimony provides further details 
about the incident and the immediate response.
    The researcher handling the source material at the time 
most certainly should have been--should have had the required 
training appropriate to the researcher's work and consistent 
with the commitments made under the NRC license. Partially as a 
result of a lack of this training, actions taken during the 
incident and immediately afterward by the researcher 
exacerbated the extent of the incident and complicated the 
response.
    The incident and the conditions that permitted this 
incident to take place are unacceptable. I pledge to you and 
this subcommittee my personal assurance that we will do what is 
necessary to find the root cause or causes, take appropriate 
actions, and ensure to the best of our abilities that such a 
failure does not occur in the future.
    The Department of Commerce is establishing a blue ribbon 
panel to look broadly at safety and training issues at NIST. 
Also, the Department's Office of Inspector General is 
conducting a broad review of management, training, safety, and 
response operations at all NIST facilities.
    I have welcomed the involvement of external individuals and 
organizations to provide advice, guidance, counsel--tough 
counsel--as to what NIST could have done, can do in the short-
term, and must do longer-term to address shortcomings in our 
safety, training, and emergency response preparedness.
    As a direct result--as a direct follow-up to this incident, 
NIST's senior management has taken a variety of actions 
including requiring that each laboratory director and chief 
officer certify that all staff, employees, and associate have 
in place the required safety training prior to being allowed to 
continue their work. Issuing safety stand-downs, creating new 
lab teams to review hazards in the labs, initiating more 
systematic approaches to eliminating, reducing, or controlling 
the risks of different hazards, including emergency response 
and recovery.
    I have taken several immediate actions, and we are 
conducting our own investigations. I have moved the Office of 
the NIST Safety, Health, and Environment Division into the 
Director's office so that it now reports to the NIST Deputy 
Director, who is our chief safety officer. I have asked my 
staff to revamp NIST's emergency communications procedures. I 
have also designated NIST's Chief Scientist as the Incident 
Response Director in order to provide stronger on-site support 
in Boulder. He is currently on-site leading the effort and will 
be there indefinitely.
    I have traveled to Boulder and plan to return there after 
this hearing. I am attempting to arrange meetings with State, 
county, and local officials during this visit. I have ensured 
that NIST-Boulder issue a stop work order for all radioactive 
materials in use, and a preliminary decision has been made to 
limit the use of radioactive materials in Boulder in the future 
to sealed sources.
    At my request five eminent experts in radiation health 
safety conducted an assessment of the incident. An author of 
one of those reports, Dr. Ken Rogers, is on the panel today, 
and you will hear from him directly on his findings and 
recommendations. Their reports are sobering in their assessment 
of our challenges, and I take their words seriously. Their 
views about our shortcomings confirm my belief of the need to 
focus our efforts on NIST's entire environment, health, safety, 
and emergency response protocols and safety culture to ensure 
that we are measuring up to both the requirements and the 
highest expectations for a world-class organization. I expect 
that these experts will continue to provide insights to me and 
others at NIST in the coming weeks.
    The lack of training provided disturbs me greatly, Mr. 
Chairman. I am committed to making the changes necessary to 
reduce to the maximum extent possible the opportunity for such 
a situation to occur in the future. This includes reevaluating 
our training to make sure it is appropriate, establishing 
testing mechanisms to ensure that training is mastered, and 
creating controls to document training. Our ongoing assessment 
will help us address critical areas for improvement.
    Mr. Chairman, based on the information available at this 
time, this incident was preventable. NIST's culture and 
organizational structure contributed to an environment in which 
line supervisors failed to take adequate responsibility for 
safety issues, and safety personnel failed to assert a 
sufficient level of authority to ensure compliance with 
existing procedures and practices.
    I, again, pledge to you my commitment to improve our safety 
practices, engrain a sustainable safety culture, and thereby 
ensuring the health and safety of our employees and local 
communities. I will report to you regularly and will keep you 
apprised of our findings and projects.
    Thank you, Mr. Chairman. I will be pleased to answer any 
questions you may have.
    [The prepared statement of Dr. Turner follows:]
                 Prepared Statement of James M. Turner
    Chairman Wu, Ranking Member Gingrey, and Members of the 
Subcommittee, thank you for the opportunity to appear before you today 
to discuss the June 9, 2008, incident involving the release of 
plutonium at the National Institute of Standards and Technology's 
(NIST) Boulder Laboratory--as well as NIST's environment, health, and 
safety practices.

Introduction

    Mr. Chairman, I deeply regret the incident that occurred at the 
NIST-Boulder Laboratories on June 9, 2008. First, my top priority has 
been and continues to be the health and safety of our staff involved in 
this incident. I am pleased to report that, according to the latest 
analysis of the medical testing on the personnel involved, the 
physicians are relaying that no significant health risks are expected 
based on the test results to date. I hope the affected individuals and 
their families are encouraged by these test results. The physicians are 
relaying that the estimated doses, and the increased overall risk for 
cancer based on these estimates, are so small we don't expect there to 
be any clinically significant impact on either the short- or long-term 
health of anyone exposed. We will continue to provide our personnel 
with access to top medical care as we continue testing.
    However, the incident raises very serious and significant issues at 
NIST with regard to safety, safety culture, training, and emergency 
response policies, protocols, and NIST's implementation of and 
adherence to them. The incident and the conditions that permitted this 
incident to take place are unacceptable, Mr. Chairman, and I pledge to 
you and this subcommittee my personal assurance that we will do what is 
necessary to find the root cause or causes, take appropriate actions, 
and ensure to the best of our abilities that such a failure does not 
occur in the future.
    The Department has taken a number of steps to ensure that 
independent reviews of NIST training, safety, and response protocols 
are conducted. Multiple investigations of the incident have been 
completed, are underway, or are to be conducted at NIST. These 
investigations include, but are not limited to: (1) the NIST Safety, 
Health and Environment Division (SHED) investigation; (2) the NIST 
Ionizing Radiation Safety Committee (IRSC) investigation; (3) the five 
preliminary individual experts' investigations ordered by the NIST 
Deputy Director; (4) the Department of Commerce (DOC) Inspector General 
(IG) investigation; and (5) the Nuclear Regulatory Commission (NRC) 
inspection. In addition, the need for a blue ribbon panel was 
identified by the Department, at the direction of Deputy Secretary John 
Sullivan, and work has already begun to establish such a panel. In 
addition, on July 1, 2008, Deputy Secretary Sullivan requested that the 
Department of Commerce's Inspector General conduct a broad review of 
management, training, safety, and response operations at all NIST 
facilities. We look forward to working with you as we institute these 
important additional reviews of NIST's safety practices.
    We must be able to assure not just the Subcommittee, but the entire 
NIST family and the communities in which we live and work that NIST not 
only does cutting-edge, world-class research, but that we do so in 
accordance with the highest standards for safety, training, and 
emergency response preparedness. NIST science is renowned for its 
meticulous attention to detail; that same attitude must pervade our 
safety culture.
    I am testifying today on the current status of this incident. We 
have made available information to this committee, our staff, the 
media, the public, and the NRC. This includes our 30-day report to the 
NRC and the reports to us by five individual experts we commissioned. 
We still have much to do and I will continue to keep you apprised of 
our progress as we gather more information.
    Since the incident, NIST leadership in Gaithersburg and Boulder has 
been working to ensure our employees' safety and answer three key 
questions:

        1)  What happened on that day and how did NIST respond?

        2)  How could such an incident occur in the first place? and

        3)  What are we doing to ensure that we have the structure, 
        policies and procedures in place to prevent such an incident 
        from occurring in the future?

    Although we do not have all of the answers to these questions yet--
and I assure you that we will continue to work to get those answers, 
take appropriate actions, and keep you informed--we do know that this 
specific incident was the result of both significant individual and 
systemic failures.

An Overview of the Events on June 9th

    Before I begin with an overview of the events on June 9, let me 
state that the facts that I am about to relay represent NIST's best 
understanding of the facts at this time, based on testimony of those 
with first hand knowledge, and a review of all the evidence available 
to us currently. NIST's and other investigations are on-going, however, 
and we may learn more, or different, facts as we all continue to 
clarify our understanding of what happened.
    Through interviews we have been able to ascertain that the incident 
involved a guest researcher who handled a radioactive source without 
appropriate training and supervision. During the course of this 
handling, the vial cracked and a portion of the approximately one-
fourth gram of plutonium contained in the vial spilled out.
    The affected laboratory and an adjacent lab were sealed off and 
personnel who were identified as working in or near the lab were asked 
to remain in the area and any radioactive material on their clothing or 
bodies was removed. The personnel were also subsequently given bioassay 
tests to determine if any internal contamination occurred. (Since that 
time, several additional personnel identified themselves as having 
potential exposure and have had these tests conducted.)
    External trace contamination was found on some employees, and in 
most cases this contamination was easily removed using soapy water. The 
personnel were sent home with the exception of two individuals who 
evidenced very low levels of contamination on their hands. (These two 
were provided with gloves to wear--to prevent the spread of the 
material--until repeated hand washing eliminated the remaining 
contamination.) NIST radiation safety personnel supervised the testing 
of the adjacent areas leading to other parts of the building, a men's 
restroom and doorways leading out of the building. Some areas of trace 
contamination were discovered and these areas were cleaned and retested 
to ensure they were contamination free. At that time, there was no 
evidence that there had been any contamination aside from those areas.
    The affected laboratory and the adjacent connecting laboratory 
continue to remain sealed off for further testing and remain so pending 
approval of the decontamination process by the NRC.
    As our investigation continued, we conducted subsequent extended 
interviews and discovered trace contamination in other areas. These 
areas, too, were thoroughly cleaned and retested to ensure they were 
free of contamination.

Failures Leading to the Incident

    Mr. Chairman, NIST's safety culture is deficient. Later in this 
testimony I will focus on our policy and system for safety and 
training. Some things are clear:

1) The NRC regulates the use of radioactive materials at all NIST 
laboratories and is investigating the plutonium spill at the Boulder 
Laboratory and NIST's response. Specifically, the NRC is currently 
conducting an inspection that will result in the definitive account of 
the spill and its aftermath.

2) In January 2007, NIST filed an amended Application for Radioactive 
Material, an Addendum to the NRC Form 313, for the purposes of using 
encapsulated plutonium in research. In that amended license, NIST 
committed to do certain things, particularly in the areas of training. 
It appears that we did not meet those commitments. Such a failure is a 
serious breach and must be dealt with accordingly. I must stress that 
at this point our main focus is the health of those affected.
    The researcher handling the source material at the time most 
certainly should have had the required training appropriate to his work 
and consistent with the commitments made under the NRC application. 
Partially as a result of this lack of training, actions taken during 
the incident and immediately afterward by the researcher appears to 
have exacerbated the extent of the incident and complicated the 
response.
    While we cannot necessarily extrapolate from a single incident, I 
am also looking at issues that this incident raises about cultural 
barriers in our environment, health and safety policies and procedures, 
including our training practices, system-wide.

Response Subsequent to the Incident

    Mr. Chairman, I have already taken several immediate actions and we 
are conducting our own investigations and assisting with external 
assessments. I have welcomed the involvement of the NRC, the Department 
of Commerce's Office of Inspector General, and individual radiation 
safety experts to provide advice, guidance and counsel--tough counsel--
as to what NIST could have done, can do in the short-term, and must do 
longer-term to address shortcomings in our safety, training and 
emergency response preparedness. I am moving the NIST Safety, Health, 
and Environment Division into the Director's office so that it now 
reports to the NIST Deputy Director, who is the agency's Chief Safety 
Officer. I have asked my staff to revamp NIST emergency communications 
procedures and we are developing a plan for moving forward which will 
include external input, participation and review.
    In order to provide stronger on-site support to Boulder, I 
designated the NIST Chief Scientist, Dr. Richard Kayser, as the 
Incident Response Director, who took over for the NIST-Boulder 
Laboratory's Director, Dr. Thomas O'Brian, who served as the Incident 
Response Coordinator. I directed Dr. Kayser to be on site in Boulder 
indefinitely leading this effort. His team is developing--and has 
already been implementing portions of--an incident response plan which 
includes continuing to reach out to employees who have any concerns 
about their health, identifying any additional spaces that may need to 
be surveyed, better coordination of outreach and response to the 
Boulder community and other federal, State, and local agencies, and 
Congress, and moving forward on the development of a decontamination 
plan. That decontamination will take place once all the other bodies 
conducting their assessment of the situation no longer need access to 
the lab--and once our decontamination plan has been reviewed and 
approved by the NRC.
    I have traveled to Boulder and plan to return tomorrow. In 
addition, the Chief of the NIST Safety, Health and Environment 
Division, as well as the senior NIST health physicist from Gaithersburg 
have been stationed in Boulder for the past several weeks. Other NIST-
Gaithersburg personnel have also been on-site in Boulder as needed and 
additional personnel have been provided to Boulder by National Oceanic 
and Atmospheric Administration (NOAA) and by the Department of 
Commerce. We will continue to have appropriate resources on site until 
this cleanup is completed.

Results of Internal Investigation

    While we have investigations ongoing, they have at this point 
revealed that the probable cause of the incident was handler error. 
Source material was removed from its secondary containment, and its 
vial broke after contact with a hard surface.
    However, I want to make clear that overall organizational failures 
contributed to this handler error. Specifically:

          Procedures for acquiring source material were not 
        followed as line management was not always aware of source 
        material acquisition.

          Individuals, both those handling source material and 
        those working in the vicinity, were not provided proper 
        training or the necessary information to allow them to evaluate 
        and understand the risks involved.

          Available training was inadequate for the 
        circumstances.

          Lack of an emergency response plan contributed to the 
        potential spread of contamination beyond the spill zone. 
        Employees were neither prepared nor equipped to respond to the 
        situation, and safety personnel were forced to respond as 
        events unfolded, rather than from established protocols.

    NIST's organizational structure contributed to an environment in 
which line supervisors failed to take adequate responsibility for 
safety issues, and safety personnel failed to assert a sufficient level 
of authority to ensure compliance with existing procedures and 
policies. In sum, a culture has developed with respect to safety issues 
that NIST understands must be addressed broadly, beyond this specific 
event.
    Preliminary analysis indicates that multiple organizational 
failures contributed to the incident. Specifically, proper procedures 
were not followed for acquiring a radiation source and line management 
was not aware of the inappropriate handling of the source material. As 
a result, a proper risk assessment was not conducted.
    There were no procedures in place for source handling and 
utilization nor was there an incident response plan or an audit program 
for radiation safety at NIST-Boulder. Our investigation has revealed at 
this point that the scope of the hazardous materials programs expanded 
without reevaluation of the risks involved and without a commensurate 
strengthening of the radiation safety program. As a result, there was 
inadequate infrastructure to support the use of encapsulated sources. 
This clearly shows that we do not have systems in place to adequately 
identify and manage risks as they change. As we move forward and revise 
our safety program, we must integrate risk management into it. We must 
train our personnel so that when they are preparing to perform a task 
or proposing a new process/procedure that they are trained and have the 
resources to: 1. Identify the risks involved; 2. Identify the controls 
necessary to reduce or eliminate those risks; 3. Implement those 
controls; and 4. Monitor those controls to ensure the risks are in fact 
reduced or eliminated. If the fourth step identifies weaknesses in the 
controls or if the risk(s) have changed, our personnel will know they 
must go back to the first step and begin this process again.
    Available training was inadequate and insufficient with respect to 
the number of individuals trained. Existing training requirements were 
ignored by researchers and not identified by safety personnel. 
Specifically, three individuals involved received inadequate or no 
training. We recognize that insufficient/inadequate training or 
training that was ignored, which are examples of management failures. 
We will integrate relevant training, with appropriate measures to 
document and evaluate the effectiveness of that training into our 
revised safety program. We will also include mechanisms to hold 
supervisors accountable for the training of their personnel.
    Use of the posted radiation laboratory as a multi-use laboratory 
accessed by untrained and uninformed individuals contributed to risk, 
which was exacerbated by the lack of an accurate hazard posting on 
laboratory door.
    In general, there was weak engagement by line management in 
overseeing personnel, programs, and safety-related activities. 
Similarly, safety personnel failed to identify and/or address obvious 
safety issues.

Timeline Since the Incident

    Mr. Chairman, this section provides a summary of the communications 
and actions taken since the incident occurred.
    Dr. William Anderson, Director of the NIST Electronics and 
Electrical Engineering Laboratory, sent an e-mail to the NIST Chief 
Scientist, Dr. Richard Kayser, and me, at 9 p.m. on June 9th. I did not 
see that e-mail until the following morning. Clearly, e-mail is not 
sufficient in case of emergencies. I understand that on June 10th the 
Director of the Boulder Labs called the City of Boulder to inform them 
of the situation and offered to brief the City on the incident. 
Managers at NOAA, housed in a physically separate building on the 
campus, and the National Telecommunications and Information 
Administration (NTIA), which has people in the same building as the 
affected lab, were also apprised of the situation and offered a 
briefing.
    In this instance, some of the initial outreach was timely; in other 
cases it was not. The lack of a clearly articulated plan with names and 
contacts hampered the efforts by NIST-Boulder staff to inform those who 
must know or needed to know the situation. This is why immediately 
after the incident I directed the NIST Director of Emergency Services 
to develop a notification checklist for Boulder similar to what is kept 
in Gaithersburg. This can be used in an emergency to assure systematic 
notification and not rely on someone remembering something during a 
stressful situation. I will be happy to provide for the record more 
specifics on our emergency notifications procedures.
    The Boulder staff was advised via an e-mail and has continued to 
receive updates as new information becomes available. In addition, on 
June 10th, NIST Congressional and Legislative Affairs notified this 
subcommittee and the staff of the local Colorado Representative and 
Senators of the incident. We have and will continue to provide updates 
as the assessment and investigation continues. In addition, a news 
release was provided to the local news media and posted on the NIST 
external Web site, and the NRC was advised about the incident, within 
the required 24-hour period.
    The NRC arrived at NIST-Boulder for an initial assessment on June 
11th and I dispatched a health physicist from NIST-Gaithersburg to 
assist the Radiation Safety Officer in Boulder.
    As I mentioned earlier, the health physicists initiated the first 
of a series of bioassay tests for personnel either known to have trace 
external contamination or determined to be potentially contaminated, or 
for personnel who self-identified themselves to us as having a possible 
concern for their risk of exposure. Initial tests indicated no evidence 
of significant internal contamination of individuals. More sensitive 
follow-up tests as recommended by the Department of Energy (DOE) 
physicians and radiation experts showed some internal contamination for 
a small number of individuals. But as I mentioned, these results 
support our current understanding that the exposure level is very low 
and will accord no significant health risk to the personnel affected. 
We await additional test results.
    Even more sensitive testing, known as a ``TIMS'' (thermal 
ionization mass spectrometry) test, has been initiated for all 
individuals who potentially have been exposed or who have requested to 
be tested. In addition, several other professionals who entered the lab 
as part of the investigation have been provided tests--which is a 
standard procedure for such radiation workers. These tests are complex 
and require several weeks to receive results. We hope to receive final 
results at the end of this month.
    It is reported to me that on-going interviews on June 12th revealed 
that the guest researcher who had handled the plutonium had walked to 
other parts of the building before being decontaminated. Over the next 
few hours, the potentially affected areas were then surveyed. The 
resurvey showed trace amounts of contamination in one office on one 
desk, a lab notebook on the desk, and the chair associated with that 
desk, that had been used by the affected individual, as well as in a 
stairway leading to the office. As a precaution, the room was sealed 
until more thorough testing and evaluation could be completed. The 
hallway and stairway outside the affected room was surveyed and it was 
reported that no evidence of removable contamination beyond normal 
background was detected.
    NIST provided notice of the new findings to Congressional staff, 
the City of Boulder, the media, the public, the NRC, and the Boulder 
NOAA and NTIA site. We called in and began our first consultation with 
the DOE National Nuclear Security Administration's (NNSA) Radiological 
Assistance Program (RAP).
    Over that weekend, NIST health physicists (part of our safety 
operation) made the initial controlled entry into the sealed lab in 
order to conduct a radiation survey as part of NIST's internal 
investigation. Late Saturday, June 14th, the initial survey revealed 
contamination in the lab sink. It was subsequently learned--through a 
re-interview--that the researcher who worked most directly with the 
plutonium sample washed his/her hands in that sink during the incident, 
a critical fact that had not been initially reported.
    I understand that a NIST-Boulder official contacted the City of 
Boulder's waste water treatment plant manager early on Monday, June 
16th, to alert the city that there was a possible discharge into the 
city waste water system. NIST was not able to quantify the amount of 
the possible discharge at that time.
    As a result of the finding in the lab sink, public notice of the 
discovery that some unknown amount of plutonium was discharged into the 
city waste water system also was made to the DOC Boulder campus, 
Congress, the media, the public and the City of Boulder City Manager. 
The Boulder Director offered to brief the City management, NOAA, and 
NTIA on the incident. All NIST-Boulder staff was invited to a briefing 
on the incident. We also initiated communications with the Department 
of Commerce OIG on the incident.
    NIST worked to develop plans for the DOE RAP team to conduct a full 
radiation survey of the affected lab, to assist NIST's internal 
investigation, and to help determine the upper limit on the possible 
discharge of plutonium through the lab sink into the municipal sewer 
system. A briefing for NTIA staff also was scheduled.
    Our latest information from the medical experts, based on the most 
recent test results, is that personnel with internal plutonium exposure 
are not expected to face significant health risks. As I mentioned, we 
are waiting on the most sensitive test, the TIMS, to confirm these 
findings. I am concerned for the health and safety of our personnel and 
we are getting advice from the best medical experts in the country and 
will do everything we can to ensure that the people affected get the 
best possible medical treatment.

Preliminary Corrective Actions Taken

    First Mr. Chairman, I have ensured that NIST-Boulder has issued a 
stop work order for all radioactive materials in use, and a preliminary 
decision has been made to limit the use of radioactive materials in 
Boulder in the future to sealed sources.
    At my request, five eminent experts in radiation health safety 
conducted an assessment of the incident. They were asked to report 
their initial findings individually directly to me. On July 9th, I 
received the last of these reports. An author of one of those reports, 
Dr. Ken Rogers, is on the panel today and you will hear from him 
directly on his findings and recommendations. I recently received the 
last of these reports and we transmitted them to this committee and 
made them public.
    Their reports are sobering in their assessment of our challenges, 
and I take their words very seriously. Their views about our 
shortcomings confirm my belief of the need to focus our efforts on 
NIST's entire environment, health, safety, and emergency response 
protocols and safety culture to ensure that we are measuring up to both 
requirements and the highest expectations for a world-class 
organization. I expect that these experts will continue to provide 
insights to me and to others at NIST in the coming weeks.

Training Protocols for All NIST Employees

    The lack of training provided disturbs me greatly, Mr. Chairman. I 
am committed to making the changes necessary to reduce to the maximum 
extent possible the opportunity for such a situation to occur in the 
future. This includes re-evaluating our training to make certain it is 
appropriate, establishing testing mechanisms to assure training was 
mastered, and creating the controls to document training.
    Mr. Chairman, let me initially say what our NIST policy is, and 
what it is supposed to be. I will then discuss what we believe we know 
at this time as to how NIST complied with or acts in accord with its 
own policy in this matter.
    It is NIST policy to establish, coordinate, and maintain a 
comprehensive and effective NIST Safety Operational System (SOS) 
consistent with the standards prescribed by Section 6 of the 
Occupational Safety and Health Act of 1970, ANSI-Z10 Occupational 
Health and Safety Management System (OHSMS), and other applicable 
regulations.
    Every manager, employee, and associate in the organization has the 
responsibility for systematically identifying risks, hazards, or 
potentially unsafe situations or practices and for taking steps to 
ensure adequate safety. Emphasis is placed on identification of risks 
and implementation of measures to control those risks. Implementation 
of effective OHSMS programs relies on recognition and adoption of the 
following principles by management, employees, and associates:

        a.  Incidents/Accidents can and should be prevented.

        b.  Line management is responsible for the safe conduct of 
        operations. Management systems can be designed to avoid unsafe 
        acts, unsafe conditions, and incidents/accidents. Individuals 
        are, however, responsible for their own safe behavior.

        c.  Management should establish challenging goals for safety, 
        and take the responsibility to plan and implement actions to 
        achieve the goals.

        d.  The keys to effective line safety performance are 
        management procedures that create a culture of safety, while 
        defining and expecting accountability for results and 
        minimizing hazards. Safe behavior and actions are expected and 
        should be recognized, while unsafe behavior is discouraged and 
        must be promptly corrected. There also must be effective safety 
        oversight to assure compliance.

        e.  One of the functions of the safety staff is to immediately 
        stop any work where safety is questionable. Safety staff should 
        be included in discussions of current and proposed operations 
        to assist with identifying safety deficiencies within those 
        operations and making recommendation to reduce the potential 
        for incidents/accidents. Safety staff should develop safety 
        programs that include documented training for line managers/
        supervisor, employees, and associates.

    However, Mr. Chairman, in reality, the culture that existed at 
least in the laboratory involved in this incident was one in which 
safety was not the highest priority and led to an untrained guest 
researcher, improperly supervised, handling a dangerous radioactive 
source.
    It is NIST policy that upon entrance on duty, new employees must 
attend a general safety orientation session presented by the NIST 
Safety, Health and Environment Division. One of the gaps that we have 
identified is that new associates (e.g., guest researchers from other 
institutions) are not currently required to attend this orientation. It 
is the responsibility of line supervisors to instruct all new or 
transferred appointees (employees and associates) assigned to their 
units, in the occupational safety, health and environmental 
requirements applicable to the specific job, preferably on the first 
day, but in any event during the first week of such assignment. 
Appointees who will be working in a laboratory must be instructed in 
NIST laboratory safety practices and be given a copy of the NIST 
Laboratory Safety Manual by their supervisor.
    New or transferred appointees (employees and associates) who will 
be working in a laboratory or other hazardous environment, (e.g., 
mechanical shops), are to be provided adequate laboratory/shop-specific 
on-the-job training within one month of their employment. We are 
reviewing this requirement which currently would allow an individual to 
work in a lab for 30 days without appropriate training. Since functions 
differ among the laboratories/shops, each laboratory/shop is to develop 
its laboratory/shop-specific safety-training checklist to ensure that 
all safety areas are adequately covered. The laboratory/shop-specific 
safety checklist may be used to document the first month of employment 
safety training requirement. The safety checklist should identify the 
total number of hours necessary to cover all safety areas.
    Line supervisors must ensure that pertinent safety and health 
instructions, relating to conditions and practices that may be 
necessary to eliminate or control specific job hazards, are routinely 
incorporated into regular operating procedures, shop orders, preventive 
maintenance instructions, etc.
    A minimum of four hours of relevant safety training must be 
provided to all employees and associates on an annual basis. Not less 
than quarterly in all non-administrative units (typically including 
laboratory activities; warehousing; trades, craft, maintenance, labor, 
protective, and transportation services; etc.) line supervisors are to 
schedule and conduct a safety awareness meeting with all assigned unit 
personnel, for the specific purpose of discussing safety issues 
pertinent to the unit's operations. Brief written reports of such 
meetings are to be forwarded through the applicable division or office 
chief to the NIST Safety, Health and Environment Division. Where there 
is need for specialized safety training beyond the capability or 
resources of a unit, the scope and method of training is to be 
determined through the coordinated efforts of the unit involved, the 
training personnel, and the safety staff.
    That is the policy. There must be effective controls to flag 
deficiencies, mechanisms such as testing to gauge mastery of the 
training material, and formal documentation of training. Our ongoing 
assessment will help us address critical areas for improvement.

Conclusion

    Mr. Chairman, based on the information available at this time, this 
incident was preventable. Thankfully, the medical experts tell us that 
as of this time there are expected to be no significant health effects 
for the people involved. This incident is a sobering reminder of the 
importance of establishing clear, comprehensive and appropriate safety 
policies and rigorously adhering to safety protocols. As is abundantly 
clear, when we do not approach these matters with the necessary rigor, 
clarity and sense of purpose there can be serious consequences.
    I again pledge to you my commitment to improving our environmental, 
health and safety practices, ingraining a sustainable safety culture 
and thereby ensuring the health and safety of our employees and local 
communities. I will report to you regularly and will keep you apprised 
of our findings and our progress. It is crucial to our ability to 
achieve our mission and ensure our workforce that they have a safe 
working environment.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                     Biography for James M. Turner
    Dr. James M. Turner is the Deputy Director of the U.S. Department 
of Commerce's National Institute of Standards and Technology (NIST). He 
is also carrying out the responsibilities of the Director. (The NIST 
Director position is vacant.) Turner provides high-level oversight and 
direction for NIST. The agency promotes U.S. innovation and industrial 
competitiveness by advancing measurement science, standards, and 
technology. NIST's FY 2008 resources total $931.5 million and the 
agency employs about 2,800 scientists, engineers, technicians, support 
staff and administrative personnel at two main locations in 
Gaithersburg, MD and Boulder, CO. Along with the Department of Energy 
Office of Science, and the National Science Foundation, NIST is slated 
for substantial budget increases for its core research programs under 
the President's American Competitiveness Initiative.
    Prior to joining NIST on April 16, 2007, Turner served as the 
Assistant Deputy Administrator for Nuclear Risk Reduction in the 
Department of Energy's National Nuclear Security Administration. In 
that position, he was responsible for major projects in Russia to 
permanently shut down their last three weapons-grade plutonium-
production reactors. He also worked with foreign governments and 
international agencies to reduce the consequences of nuclear accidents 
by strengthening their capability to respond to nuclear emergencies.
    Prior to that assignment, Turner held several senior management 
posts at DOE concerned with laboratory oversight and with nuclear 
safety and the safeguarding of nuclear weapons both here and abroad.
    He holds degrees in Physics from the Massachusetts Institute of 
Technology (Ph.D.) and Johns Hopkins University (B.A.), and taught for 
five years as an Associate Professor of Physics and Engineering at 
Morehouse College.
    Among other honors, he has received the U.S. Government 
Presidential Rank Award for Meritorious Service, three times received 
the U.S. Department of Energy Exceptional Service Award, and earned the 
Secretary of Energy Gold Award and the National Nuclear Security 
Administration's Gold Medal. Dr. Turner is an active member of the 
American Physical Society, the American Chemical Society, the American 
Nuclear Society, the American Association for the Advancement of 
Science, ASTM, the Council on Foreign Relations, IEEE, Phi Beta Kappa, 
Sigma Xi, and the World Affairs Council.
    Dr. Turner is a native of Washington, DC, is married, and has five 
children and one grandchild. He enjoys doing yoga and Tai Chi. He and 
his wife, Paulette, reside in Olney, Maryland.

    Chairman Wu. Thank you very much, Dr. Turner.
    Dr. Miller, please proceed.

STATEMENT OF DR. CHARLES L. MILLER, DIRECTOR, OFFICE OF FEDERAL 
AND STATE MATERIALS AND ENVIRONMENTAL MANAGEMENT PROGRAMS, U.S. 
   NUCLEAR REGULATORY COMMISSION; ACCOMPANIED BY DR. ELMO E. 
COLLINS, REGIONAL ADMINISTRATOR, REGION IV OFFICE, U.S. NUCLEAR 
                     REGULATORY COMMISSION

    Dr. Miller. Mr. Chairman and Members of the Committee, I am 
honored to appear before you today to discuss the U.S. Nuclear 
Regulatory Commission's role in regulating and inspecting 
radioactive materials facilities. I hope that my testimony will 
be helpful to you in understanding the regulatory framework and 
the oversight of facilities such as NIST and how NRC responds 
to events at these facilities. My written testimony has been 
submitted for the record, and I will use my time this morning 
to highlight some of the key points.
    Following that during the question and answer period, Mr. 
Collins and I would be happy to answer any questions with 
regard to our activities, including the inspection.
    Under the authorities and responsibilities granted by the 
Atomic Energy Act of 1954, as amended, NRC issues licenses for 
use of radioactive material to qualified applicants that meet 
our regulatory requirements. Primary responsibility for safety 
and security of the radioactive material lies with the 
licensees who possess and use the material.
    NRC inspects the users of radioactive material for 
compliance with both safety of the regulations and any 
additional conditions made during the licensing. Perspective 
licensees wishing to possess and use radioactive material must 
submit a license application to the NRC, showing how their 
facility's personnel and program controls meet the regulations 
and protect the workers, the public, and the environment, and 
provide adequate security of the radioactive material.
    Each application is reviewed by NRC technical staff. If the 
regulatory requirements are met, NRC issues a license outlining 
the conditions under which the radioactive material can be 
used. Licensees must request and obtain from NRC a license 
amendment to change its license or its condition. Because of 
the potentially serious consequences that can result from the 
failure to comply with NRC regulations, every licensee must 
conduct its radiation safety program according to the 
conditions of its NRC license, representations made in its 
license application, and NRC regulations.
    NIST is licensed to use solid encapsulated plutonium in 
quantities less than critical mass. Use of the material must be 
done in accordance with explicit procedures. NIST's NRC license 
requires a Radiation Safety Officer, whose role is to ensure 
license conditions are met and radiation safety practices are 
followed. The NIST license also includes a commitment that all 
individuals working with license sources or those who frequent 
areas or license sources are present, shall receive annual 
radiation safety training at a level appropriate for their 
assigned duties.
    It is the responsibility of the licensee's management and 
the radiation safety officer to ensure individuals who access 
these sources or facilities receive appropriate training. NRC 
conducts periodic inspections of licensees to ensure compliance 
with regulatory requirements and license conditions. The 
licensing decision was to assign an inspection frequency at the 
NIST-Boulder facility of every five years because of its 
activities, which are relatively low risk given the small 
amount of radioactive material that the lab is authorized to 
possess and the approved uses of the material within the lab.
    NRC may supplement the periodic inspections with reactive 
inspections. A reactive inspection is a special inspection in 
response to an incident, an allegation, or information obtained 
by the NRC to focus on the sequences of events leading up to 
the incident, the contributing root causes of the event, 
corrective actions taken or proposed by the licensee, and a 
discussion of the regulations applying to the incident, and 
where they were not met. All NRC inspections are documented, 
and the results are provided to the licensee. With the 
exception of some security inspections, they are publicly 
available also.
    Failure to conduct operations in accordance with the 
regulations and licensed conditions can result in enforcement 
action against the licensee or even individuals. NRC's 
enforcement program is built upon a potential or actual safety 
significance and considers program factors such as repeat 
violation, willfulness or disregard for the requirements.
    The June--on June 10, NIST informed the NRC of the June 9 
contamination event. Upon learning of the event, NRC dispatched 
a health physics inspector to the site on June 12, and followed 
that with a senior health physics inspector on the 19th. Upon 
the consideration and the feedback from those inspectors, we 
escalated our inspection activities to a special inspection 
team, and that was dispatched to Boulder on June 30.
    The team's detailed inspection is in progress. Results of 
the special inspection and the team's work will be issued 
within 45 days upon the conclusion of the inspection. On July 
2, we issued a confirmatory action letter (CAL), confirming the 
agreed-upon actions that NIST took and plans to take as a 
result of the event and the order. Pursuant to the CAL, NIST 
has agreed to take a number of actions. Those actions are 
outlined in my detailed written testimony.
    Although we have yet to identify any safety aspects of the 
June 9, event with significant impacts on the worker or public 
health safety, we are continuing our evaluation of the 
circumstances of the event itself and how NIST's programs, 
procedures, and policies contributed to the event. NRC's 
efforts will ensure that if there were violations, NIST will 
develop and implement effective and lasting corrective actions.
    I hope my testimony provides you with an understanding of 
our regulatory role at the NRC, how it fits NIST, and how the 
NRC responds to events at these facilities and the seriousness 
with which we take our duty to protect public health and safety 
in the environment.
    Dr. Collins and I will be pleased to respond to your 
questions. Thank you, Mr. Chairman.
    [The prepared statement of Dr. Miller follows:]
                Prepared Statement of Charles L. Miller

INTRODUCTION

    Mr. Chairman and Members of the Committee, I am honored to appear 
before you today to discuss the U.S. Nuclear Regulatory Commission's 
(NRC's) role in regulating and inspecting radioactive materials 
facilities. I hope that my testimony will be helpful to you in 
understanding the regulatory framework and oversight of facilities such 
as the National Institute of Standards and Technology (NIST), and how 
the NRC responds to events at these facilities. The NRC's work in 
response to the June 9, 2008 event at NIST's Boulder facility is 
ongoing. Mr. Elmo Collins, Regional Administrator for the NRC's Region 
IV office, and the home base for the agency's special inspection team 
for this event, is here with me today to answer any questions about our 
inspection activities up to this point.
    On June 10, 2008, the NRC received a report of a contamination 
event at the NIST facility in Boulder, Colorado. The previous day, a 
junior researcher had broken a glass vial containing one-fourth of a 
gram of plutonium powder. The junior researcher and other individuals, 
working both inside and outside the specific laboratory suite were 
contaminated. The researcher apparently washed his hands to remove the 
plutonium contamination, thus introducing a small amount of plutonium 
into the sewer system. More importantly, analysis confirmed that the 
junior researcher, as well as others, ingested or inhaled some of the 
plutonium.
    The NRC dispatched a health physics inspector to the site an June 
12, who verified that the lab was acceptably isolated for the short-
term. A second health physics inspector was dispatched by NRC an June 
19. NRC's initial assessment of the event and NIST's follow-up actions 
indicated that there was no immediate threat to additional workers or 
to public health and safety. However on the basis of the inspectors' 
observations on-site, NRC management determined that an enhanced agency 
response was needed to ensure that the licensee conducted licensed 
activities safely in the short-term and that further inspection follow-
up was needed to more fully understand the circumstances, causes, and 
licensee actions. Additionally, on June 27, the licensee reported that 
the junior researcher received a potentially significant radiation 
dose. On June 30, a five-member Special Inspection Team (SIT), 
dispatched from NRC's Region IV Office in Arlington, Texas, began 
conducting a more detailed review of the event. I will further explain 
the SIT later in this testimony. The team's inspection is in progress. 
As I will discuss further elsewhere in this testimony, NIST--in 
consultation with NRC--has also agreed to suspend all use of plutonium 
sources pending NRC approval of the resumption of such activities.

NRC REGULATORY FRAMEWORK TO ENSURE SAFE USE OF RADIOACTIVE MATERIAL

    Before I address the specifics related to the NIST license and the 
event, I would like to briefly describe NRC's structure and regulatory 
approach to licensing, inspection, and enforcement. Through the 
Agreement States Program, the NRC shares its regulatory authority to 
license and oversee the use of certain types of radioactive material. 
Although Colorado is one of the 35 Agreement States, NRC retains 
regulatory jurisdiction for NIST-Boulder because it is a federal 
facility. Therefore, this testimony will focus on NRC's program and not 
on the role of Agreement States.

OVERALL FRAMEWORK AND MISSION
    The mission of the NRC is to license and regulate the Nation's 
civilian use of byproduct, source, and special nuclear material to 
ensure adequate protection of public health and safety, promote the 
common defense and security, and protect the environment. The Atomic 
Energy Act of 1954, as amended, grants NRC the authorities and 
responsibilities needed to accomplish this mission. NRC has issued 
regulations that are designed to protect the public and occupational 
workers from radiation hazards. NRC issues licenses for use of 
radioactive material to qualified applicants who meet regulatory 
requirements. The responsibility for safety and security of the 
radioactive material lies with the licensees who possess and use the 
material. NRC inspects the users of radioactive material to ensure 
compliance with both NRC safety regulations and any additional 
conditions imposed during the licensing. Enforcement against licensees 
as well as individuals can be pursued by NRC for noncompliance with 
these regulations and conditions.
    Within NRC, the Office of Federal and State Materials and 
Environmental Management Programs, of which I am the Director, is 
responsible for the development, implementation, and oversight of the 
regulatory framework for industrial, commercial and medical uses of 
radioactive material, uranium recovery activities, and the 
decommissioning of previously operating nuclear facilities and power 
plants. NRC also has Regional Offices which conduct inspection, 
enforcement, investigation, licensing, and emergency response programs 
for radioactive material licensees. NRC currently has approximately 
3,700 licensees for radioactive material, and conducts approximately 
1,200 inspections annually.

LICENSING AND REGULATIONS
    Prospective licensees wishing to possess and use radioactive 
material such as those possessed and used by NIST must submit a license 
application to the NRC showing how their planned facilities, personnel, 
program controls, and equipment meet NRC regulations and protect the 
workers, public, and environment, and provide adequate security of the 
radioactive material. Each application is reviewed by NRC staff 
according to established procedures and criteria, and if the regulatory 
requirements are met, NRC issues a license outlining the conditions 
under which the company or individual can possess the radioactive 
material. In addition, licensees must request and obtain a license 
amendment to alter a license or its conditions.
    As mentioned above, the responsibility for safety and security of 
the radioactive material lies with the licensee. Assignment of this 
responsibility varies from licensee to licensee and facility to 
facility, but is delineated in the license application and license 
conditions. In general, each licensee's environmental health and safety 
(EH&S) officials and management have the responsibility for 
establishing the policies and procedures to ensure safe handling of 
radioactive material and compliance with regulatory requirements; for 
ensuring that those individuals using radioactive material have 
adequate training; and for oversight of the program and users to ensure 
adherence to established policies and procedures. Individuals using 
radioactive material have the responsibility to adhere to established 
policies and procedures, including reporting any deviations or issues 
to Radiation Safety Officer (RSO) and/or management.
    NRC expects licensees to conduct their programs with meticulous 
attention to detail and a high standard of compliance and holds them 
accountable for doing so through inspections and enforcement. Because 
of the potentially serious consequences that can result from failure to 
comply with NRC regulations, every licensee must conduct its radiation 
safety program according to the conditions of its NRC license, 
representations made in its license application, NRC regulations, and 
NRC Orders. Specifically, licensees are subject to NRC regulations in 
10 CFR Part 19, ``Notices, Instructions and Reports to Workers: 
Inspection and Investigations,'' 10 CFR Part 20, ``Standards for 
Protection Against Radiation,'' and other applicable regulations. The 
regulations also specify reporting requirements to inform the NRC of 
significant events, including loss of material, release of material to 
the environment, radiation exposures to workers or the public that 
exceed limits specified in the regulations, damaged sources or devices, 
equipment that fails to function as designed, and leaking sources.
    The following items are the key requirements in NRC regulations 
that must be addressed by applicants before NRC issues a license 
authorizing possession and use of radioactive material:

          Applicants must be qualified by reason of training 
        and experience to use special nuclear material of the types and 
        quantities requested;

          Applicants must have the facilities and equipment to 
        protect health and safety and minimize danger to life or 
        property;

          Applicants must have the procedures to protect health 
        and to minimize danger to life or property.

NRC INSPECTION AND ENFORCEMENT PROGRAM
    NRC conducts periodic inspections of licensees to ensure compliance 
with regulatory requirements and license conditions. To enable NRC to 
apply its resources most effectively to the highest risk activities, an 
inspection priority code from 1 to 5 is assigned to each type of use 
authorized by a license. The priority code equals the normal inspection 
interval in years, with code 1 being the greatest potential risk to the 
health and safety of workers, members of the public, and the 
environment. In the licensing process, an inspection frequency of once 
every five years was assigned to the NIST-Boulder facility because its 
activities are relatively low-risk given the small amount of 
radioactive material that the lab is authorized to possess and the 
approved uses of this source within the lab.
    If there are licensee performance issues, or events, NRC may 
supplement the periodic inspections with ``reactive'' inspections. A 
reactive inspection is a special inspection in response to an incident, 
allegation, or information obtained by NRC (e.g., report of a medical 
event or other federal agency interest). The scope of the reactive 
inspections is normally to focus on the sequence of events leading up 
to the incident, the contributing and root causes of the event, 
corrective actions taken or proposed by the licensee, and a discussion 
of the regulations applying to the incident and if and where they were 
not met. Reactive inspections can focus in on one or several issues, 
using more specialized technical or management expertise than a normal 
inspection, and thus do not necessarily examine the totality of a 
licensee's program.
    All NRC inspections are documented and the results are provided to 
the licensee; with the exception of some security inspections, these 
documents are publicly available. If deficiencies are identified, the 
inspector brings them to the attention of licensee management at the 
exit meeting and also in the cover letter transmitting the inspection 
report or Notice of Violation (NOV). An NOV is a formal notification to 
the licensee that an apparent noncompliance with regulations or 
conditions has been identified. The NOV requires a written response 
including a description of the proposed corrective actions. It is the 
first step in the NRC's enforcement process.
    Failure to conduct operations according to regulations and license 
conditions may result in enforcement action against the licensee as 
well as individuals. This could include more frequent inspections; 
issuance of a notice of violation; imposition of a civil penalty; and/
or an order suspending, modifying, or revoking the license. NRC's 
enforcement program is built around potential or actual safety 
significance, and considers performance factors such as repeat 
violations, willfulness, or disregard for requirements.
    Because of its relevance to today's hearing subject, I would like 
to mention that one of several tools that NRC uses with its licensees 
is a confirmatory action letter (CAL). A CAL documents agreed upon 
actions that the licensee will take to address concerns with their 
activities. These actions can either be permanent or can be on a 
temporary basis to address concerns until a final assessment can be 
made regarding the need for permanent changes. A CAL can also ensure a 
clear understanding of and commitment to necessary actions to control 
and assess an unexpected event. In cases where a CAL is neither 
appropriate nor sufficient to ensure safety, the NRC may issue an Order 
requiring mandatory licensee action.

NIST LICENSE

    Let me now turn to the specifics of the NIST facility in Boulder 
with respect to its license conditions and requirements, as well as the 
event that occurred on June 9, 2008.
    NRC initially issued a Byproduct Material License (No-05-03166-05) 
for the Boulder facility to the Department of Commerce, National Bureau 
of Standards on December 19, 1968. The license has been amended a total 
of 29 times since it was issued. Amendment No. 28 added the special 
nuclear material (e.g., plutonium) to the existing research and 
development license and Amendment No. 25 authorized research and 
development activities on the license using sealed sources. The most 
recent amendment, Amendment No. 29, was issued to NIST on June 22, 2007 
to increase the amount of Iron-55 and limit the amount of Nickel-63.
    NIST is licensed to use solid, encapsulated plutonium in quantities 
less than critical mass. Use of the material must be in accordance with 
procedures. In the case of the NIST plutonium calibration source 
involved in the June 9 event, the material was contained in a glass 
vial. In addition, the glass vial was heat sealed in a plastic bag, and 
the resultant package was heat sealed in a second plastic bag. This 
package, composed of the sealed glass vial and the two heat-sealed 
plastic bags, was in turn placed in a third plastic bag by the NIST 
Radiation Safety Officer.
    The NIST license includes a commitment that all individuals working 
with licensed sources or those who frequent areas where licensed 
sources are present shall receive radiation safety training at a level 
appropriate for their assigned duties. It is the responsibility of the 
licensee's management and RSO to ensure individuals who access those 
sources or facilities receive the appropriate training.
    NIST's license requires an RSO whose role is to ensure license 
conditions are met and radiation safety practices are followed. 
Radiation Worker Training is required for any individual where there is 
a reasonable potential for an individual to receive doses greater than 
100 millirem in a year. This training must be performed by the RSO or 
an appropriately trained designee. The RSO must assure documentation of 
Radiation Worker Training and maintain a list of trained and authorized 
radiation workers. Individuals using special nuclear material must also 
be trained pursuant to the conditions specified in NIST's letter dated 
February 15, 2007. NIST license conditions state that refresher 
training must be provided annually.
    Radiation Worker Training covers fundamental practices and concepts 
in radiation protection, including: (1) basic regulatory requirements 
in 10 CFR Part 20 such as dose limits, posting and labeling, survey and 
monitoring, radioactive material control and security, and incident or 
emergency response; (2) radiation risks and protection strategies such 
as time, distance, and shielding from the source, and contamination 
control; and (3) general and job duty-specific training on the internal 
policies and practices for implementing the radiation safety program.

THE JUNE 9, 2008 NIST EVENT AND RESPONSE
    On June 9, 2008, the NIST RSO was notified that a via] containing 
standard reference material was discovered broken in one of the 
research laboratory suites. The reference material contained plutonium. 
NIST's health physics personnel responded to the area and determined 
that low levels of contamination were spread outside of the laboratory 
suite into the adjoining hallway. The hallway was decontaminated and 
the lab was isolated. Environmental sampling and bioassays and 
urinalyses of individuals affected were initiated.
    On June 10, 2008, NIST's Boulder, Colorado, facility reported the 
plutonium contamination event to NRC. This event resulted in 
contamination of certain areas within the facility and radioactive 
contamination of at ]east two employees.
    Once the initial significance of the event was understood by the 
RSO, NIST's initial efforts were to protect workers and the public. 
NIST restricted access to the lab suite, and began to evaluate the 
extent of contamination to the lab and the potential for exposure to 
workers and members of the public. NIST informed NRC of the event and 
has cooperated with our agency staff and the other regulatory 
authorities in support of inquiries and inspections.
    Upon the initial inspectors' observations and consideration of risk 
significance, complexity, and generic safety implications, NRC 
determined, in accordance with our internal procedures, that a Special 
Inspection Team (SIT) was warranted. The SIT process allows NRC to 
assess an event and its causes and to quickly elevate the NRC response 
if the findings reveal more significant concerns (e.g., an apparent 
release of plutonium that results in an exposure to a member of the 
public or a worker in excess of the allowable limit). As mentioned 
earlier in this testimony, on June 29, a five-member SIT was dispatched 
from NRC's Regional Office in Arlington, Texas, to conduct a more 
detailed review of the event at the Boulder facility. The team consists 
of the Region IV Division Director for Nuclear Materials Safety, a 
Branch Chief, for Nuclear Materials Safety, and three health 
physicists. On July 2, NRC staff executive management met with the SIT 
and determined that additional escalation was not warranted at that 
point in time. The team's inspection is continuing. A report 
documenting the results of the special inspection team's work will be 
issued within 45 days of the team completing their inspection effort.
    On July 2, 2008, NRC issued a CAL to NIST confirming the agreed 
upon actions that NIST took and planned to take as a result of the June 
9 event in order to ensure safety and to adequately evaluate the event 
in a timely manner. Pursuant to the CAL, NIST has agreed to take 
several actions, including: (1) suspending use of the plutonium sources 
pending NRC approval and determination of procedural adequacy for 
safety and procedural compliance; (2) thoroughly determining the 
radiation doses to all individuals potentially exposed by August; (3) 
reviewing and assessing training and procedural adequacy prior to using 
any licensed material; (4) providing NRC, for review and approval, a 
written plan for stabilizing the contamination within the laboratory; 
and (5) obtaining authorized services for the decontamination of the 
facility and NRC approval of the licensee's decontamination plan.
    Although our inspection team has not completed its work and we have 
not finalized our inspection conclusions, the NRC staff is concerned 
about a number of issues. These include: the amount of radiation dose 
received by individuals as a consequence of the event; the amount of 
radioactive materials released into the sewer; the use of procedures at 
NIST's Boulder facility--particularly those related to the handling and 
storage of radioactive material; and the training of the individuals 
performing NRC-licensed activities.

SUMMARY

    In conclusion, Mr. Chairman and Members of the Committee, it is the 
policy of the U.S. Nuclear Regulatory Commission to ensure that 
significant operational events involving reactor and materials 
facilities licensed by the NRC are investigated in a timely, objective, 
systematic, and technically sound manner; that the factual information 
pertaining to each event is documented; and that the cause or causes of 
each event are ascertained; and that corrective actions are implemented 
to preclude recurrence.
    I hope my testimony provides you with an understanding of NRC's 
regulatory role with regard to facilities such as NIST, how the NRC 
responds to events at these facilities, and the seriousness with which 
we take our duty to protect public health and safety and the 
environment.
    Our assessment to this point has not identified any aspects of the 
June 9, 2008 event which would result in significant impacts to public 
and health safety, and we are continuing our investigation into the 
circumstances of the event itself, including whether NIST's programs, 
procedures, and policies may have contributed in some way to the event. 
NRC's efforts will ensure that, if and where violations occurred, NIST 
will be required to develop and implement effective and lasting 
corrective actions.
    Mr. Collins and I would be pleased to respond to your questions.

                    Biography for Charles L. Miller
    Dr. Miller is the Director, Office of Federal and State Materials 
and Environmental Management Programs. Prior to this appointment he was 
the Director, Division of Industrial and Medical Nuclear Safety, in the 
Office of Nuclear Material Safety and Safeguards (NMSS). Prior to that 
appointment, he was the Deputy Director, Licensing and Inspection 
Directorate in the Spent Fuel Project Office, NMSS.
    Since joining the NRC in 1980, Dr. Miller also held a number of 
positions in the Office of Nuclear Reactor Regulation, including: 
Project Manger; Technical Assistant; Section Leader; Project Director, 
Standardization Project Directorate; Project Director, Project 
Directorate I-2; Chief, Emergency Preparedness and Radiation Protection 
Branch; and Deputy Director, Incident Response Operations. He also 
served as the Technical Assistant to former Commissioner Bernthal.
    Prior to joining NRC, he worked for Science Applications 
International Corporation (SAIC) for four years in various nuclear fuel 
cycle and defense activities. He began his professional career at 
Bechtel Power Corporation, where he spent two years working on the 
design of nuclear power plants.
    Dr. Miller received a B.S. degree in Chemical Engineering from 
Widener University, and an M.S. and a Ph.D. in Chemical Engineering 
from the University of Maryland.

                     Biography for Elmo E. Collins
    Elmo E. Collins was assigned as the Regional Administrator for the 
Region IV Office of the Nuclear Regulatory Commission (NRC) in 
September 2007. NRC Region IV is one of four, large regional offices. 
NRC Region IV is responsible for overseeing the inspection of 14 
nuclear power plants in 22 States, overseeing the inspection and 
licensing of medical, academic, and industrial users of radioactive 
materials in Western United States, overseeing the Agreement States in 
implementing the NRC's materials inspection and licensing programs in 
16 of those 22 States, and overseeing the licensing of operators of the 
controls of nuclear power reactors. Mr. Collins, originally from 
Oklahoma, graduated from the U.S. Naval Academy at Annapolis, MD in 
1976.
    Mr. Collins has broad and extensive experience in the nuclear 
industry. He served for six years in the U.S. Navy as a nuclear trained 
submarine officer, serving on the USS Thomas A. Edison (SSBN 610). Mr. 
Collins completed his qualification to serve as engineering officer on 
nuclear powered submarines in May 1980. After leaving the Navy, Mr. 
Collins worked in the commercial nuclear industry as a startup engineer 
with General Electric from 1983 to 1987, receiving certification as a 
Senior Reactor Operator.
    Mr. Collins joined NRC Region I in 1987 as a resident inspector at 
Oyster Creek, where he later became the Senior Resident Inspector. In 
1991, Mr. Collins transferred to NRC Region IV as a Senior Project 
Engineer. In Region IV, he subsequently held positions as Inspection 
Team Leader, Senior Reactor Analyst, Reactor Projects Branch Chief, and 
Nuclear Materials Branch Chief. Mr. Collins was appointed to Senior 
Executive Service in May 2000 as the Deputy Director for the Division 
of Reactor Projects. In February 2003, Mr. Collins was assigned the 
position of Director, Division of Nuclear Materials Safety in Region 
IV. In July 2004, Mr. Collins was re-assigned to NRC Headquarters 
Office of Nuclear Materials Safety and Safeguards (NMSS) in Rockville, 
MD. as the Deputy Division Director for the licensing and inspection of 
the high-level radioactive waste repository at Yucca Mountain. In 
October 2006, Mr. Collins was assigned to the Office of Nuclear Reactor 
Regulation (NRR) as the Director, Division of Inspection and Region 
Support.
    During his career, Mr. Collins has been involved in inspection and 
oversight of nuclear power plants, licensing and oversight of users of 
radioactive materials, and licensing of the high-level radioactive 
waste repository. In NRR, Mr. Collins was responsible for the operating 
reactor inspection and assessment, operator licensing, and operating 
experience programs. Mr. Collins has participated with the 
International Atomic Energy Agency Teams evaluating the performance of 
nuclear regulatory programs and assessment of nuclear plant operational 
safety performance in other countries.

    Chairman Wu. Thank you very much, Dr. Miller.
    Dr. Collins, please proceed.
    Dr. Miller. Mr. Chairman, Dr. Collins is with me today to 
answer any questions that the Committee had but our testimony 
at this time is complete, our oral statement.
    Chairman Wu. Okay. Thank you, Dr. Miller. Dr. Collins, you 
are temporarily spared until the Q and A period.
    Dr. Rogers, please proceed.

 STATEMENT OF DR. KENNETH C. ROGERS, FORMER COMMISSIONER, U.S. 
                 NUCLEAR REGULATORY COMMISSION

    Dr. Rogers. Chairman Wu, Ranking Member Gingrey, and 
Members, because you have already heard a great deal about 
this, I am going to confine my presentation to general findings 
and recommendations. And they are preliminary. They are based 
on one day there and a review of materials that was supplied to 
us at that time and since then.
    There is no uniform system supported at all levels of 
management to nurture and support a culture of safety awareness 
as a high priority in every NIST-Boulder activity. Policies and 
personnel exist at NIST that might have prevented this 
particular mishap, for example, the NIST administrative manual, 
the NIST laboratory safety manual, the Safety, Health, and 
Environment Division, the Division Safety Representatives, and 
the Ionizing Radiation Safety Committee.
    However, safety procedures have not been consistently 
understood, applied, and enforced at both Gaithersburg and 
Boulder. Some parts of the organization appear to have regarded 
safety formalities as interfering with creativity and safety 
activities as somewhat unwelcome competitors for scarce 
resources.
    The Boulder Safety Organization, particularly its training 
activities, has been minimally supported and has had to 
function with inadequate technical and human resources. 
However, there has been some improvement in the last year or 
so.
    There were numerous instances in the evolution of this 
incident in which important information should have been, but 
was not, communicated up one level or down one level or 
horizontally. People failed to ask essential questions. They 
made incorrect assumptions and acted upon them.
    Several persons we interviewed felt uncertain as to how the 
safety organizations were supposed to work and one described 
the safety culture at NIST as dysfunctional. The NIST-Boulder 
Organization has not met a central leadership challenge to 
successfully blend and maintain the enthusiasm of a collection 
of very talented people for cutting-edge research, with a deep 
respect for personal and community safety.
    My preliminary recommendations are as follows: NIST must 
proceed apace with the decontamination, and if necessary, the 
decommissioning of all laboratory areas affected by the spill, 
employing experienced, well-regarded professionals.
    Consistent, open, and clear lines of communication 
providing up-to-date, factual information about the incident 
must be created and maintained to the NIST-Boulder staff and to 
all interested government and concerned public interest 
entities.
    A comprehensive root causes and lessons learned analysis 
must begin immediately and involve experienced, recognized 
experts in such analyses from outside of NIST.
    Use of radioactive material at Boulder should only take 
place in laboratories specifically qualified for such purposes 
in accordance with well-established standards and requirements. 
Room 1-2124 in which the spill occurred did not meet those 
standards.
    A new cost benefits analysis should be carried out that 
includes continuing conducting the research for the detector 
program requiring plutonium or other special nuclear material 
at laboratories well qualified to work with such materials.
    The use of the plutonium sources, CRM 133, 138-1, and 138-
2, that are on site, should not resume in any research at NIST-
Boulder, and alternative, safer sealed sources must be used in 
any further work at Boulder.
    Resumption of the research project should only occur after 
all staff connected with it are thoroughly trained and 
qualified for the safe use of any radioactive or non-
radiological material or equipment to be used in their work.
    The Radiation Safety Officer should be required to 
routinely check on staff compliance with the Safety Procedure 
Hazard Analysis Considerations that he lists in form 364 as 
well as the practices planned and occurring in the relevant 
laboratories.
    A systematic study of all potential and actual hazards at 
NIST should be carried out across the board as soon as 
possible. On the basis of that analysis, a safe practices 
protocol should be developed for the guidance of all users of 
materials and equipment.
    The NIST staff training policies and practices should be 
thoroughly reviewed and modified to correct deficiencies. Staff 
must understand the hazards and their potential consequences of 
every new activity as well as ongoing projects and become 
familiar with staff, with NIST administrative procedures as 
well as the safety requirements related to their work.
    All managers should be held accountable for promoting a 
safety culture within their purviews, and management 
performance reviews should include a consideration of how 
effective they have been in that regard.
    The functionality of the line management relationships at 
NIST-Boulder to NIST-Gaithersburg should be examined as a 
possible contributor to this unfortunate event. The study could 
take place in parallel with the root causes analysis. Lines of 
communication and authority clearly broke down.
    Equally important is an examination of the functionality of 
the relationships between the Boulder Safety Organization and 
the other Groups, Divisions, and Projects at Boulder and 
Gaithersburg. A clear understanding of how those relationships 
are envisioned by NIST's top-level management has not been 
successfully communicated to staff at Boulder and is a serious 
weakness that should be corrected.
    Thank you very much. I am happy to take on any questions.
    [The prepared statement of Dr. Rogers follows:]
                Prepared Statement of Kenneth C. Rogers

Chairman Wu and Members:

    Before joining the U.S. Nuclear Regulatory Commission in 1987 as a 
Commissioner, I spent thirty years in the academic world as a Physics 
professor and as the President of an Institute of Technology.
    During my ten years as a Commissioner, I had numerous occasions to 
visit the NIST Center for Neutron Research. After leaving the NRC, I 
have served, on a pro bono basis, on several review committees for the 
Center. I am quite familiar with the activities and modes of operation 
of the Gaithersburg Center, but until recently, I never had any 
occasion to visit or learn about the work at the Boulder laboratory.
    Sometime during the week of June 9, 2008 I received a call from 
Patrick Gallagher, the Chair of the NIST Ionizing Radiation Safety 
Committee, in which he asked me to serve with a small group of external 
experts to look into the circumstances of the June 9 Plutonium spill at 
the NIST-Boulder Laboratory and to provide comments and recommendations 
for avoiding such an event in the future. I agreed to do so as did four 
other independent experts in nuclear safety. The charge to the group 
was to: identify the causes of the incident and any contributing 
factors; evaluate the NIST response; evaluate the report on the 
incident that will be produced by NIST; and provide to the Deputy 
Director of NIST by June 30 our individual recommendations for 
corrective actions to avoid future incidents and to improve NIST safety 
performance and incident response.
    We all worked from the same documents and testimonies, but we were 
asked not to attempt to produce a consensus report.
    On June 23 and 24 in Boulder we met as a group with ten different 
people for approximately one hour each, and were given copies of 
electronic mail exchanges as well as copies of any documents we 
requested. There was a high degree of openness and cooperation in our 
interactions with the NIST Staff.
    I have given the Committee a copy of my report.
    Because the Committee has already heard this morning about the 
incident itself I will confine my presentation to general findings and 
recommendations.

Preliminary Findings

    There is no uniform system, supported at all levels of management, 
to nurture and support a culture of safety awareness as a high priority 
in every NIST-Boulder activity.
    Policies and personnel exist at NIST that might have prevented this 
particular mishap: for example, the NIST Administrative Manual, the 
NIST Laboratory Safety Manual, the Safety Health and Environment 
Division, the Division Safety Representatives, and the Ionizing 
Radiation Safety Committee. However, safety procedures have not been 
consistently understood, applied and enforced at both Gaithersburg and 
Boulder. Some parts of the organization appear to have regarded safety 
formalities as interfering with creativity and safety activities as 
somewhat unwelcome competitors for scarce resources.
    The Boulder Safety Organization, particularly its training 
activities, has been minimally supported and has had to function with 
inadequate technical and human resources. However, there has been some 
improvement in the last year or so.
    There were numerous instances in the evolution of this incident in 
which important information should have been, but was not, communicated 
up one level or down one level or horizontally. People failed to ask 
essential questions. They made incorrect assumptions and acted upon 
them.
    Several persons we interviewed felt uncertain as to how the safety 
organizations were supposed to work, and one described the safety 
culture at NIST as dysfunctional.
    The NIST-Boulder organization has not met a central leadership 
challenge: to successfully blend and maintain the enthusiasm of a 
collection of very talented people for cutting edge research with a 
deep respect for personal and community safety.

Preliminary Recommendations

          NIST must proceed apace with the decontamination and 
        if necessary the decommissioning of all laboratory areas 
        affected by the spill, employing experienced well-regarded 
        professionals.

          Consistent, open and clear lines of communication, 
        providing up to date factual information about the incident, 
        must be created and maintained to the NIST-Boulder staff and to 
        all interested government and concerned public interest 
        entities.

          A comprehensive Root Causes and Lessons Learned 
        analysis must begin immediately and involve experienced 
        recognized experts in such analyses from outside of NIST.

          Use of radiological material at Boulder should only 
        take place in laboratories specifically qualified for such 
        purposes in accordance with well-established standards and 
        requirements. Room 1-2124, in which the spill occurred, did not 
        meet those standards.

          A new Costs/Benefits analysis should be carried out 
        that includes continuing conducting the research for the 
        detector program requiring Pu or other SNM at laboratories well 
        qualified to work with such materials.

          The use of the Plutonium sources CRM 133, CRM 138-1 
        and CRM 138-2 should not resume in any research at NIST-
        Boulder, and alternative safer sealed sources must be used in 
        any further work at Boulder.

          Resumption of the research project should only occur 
        after all staff connected with it are thoroughly trained and 
        qualified for the safe use of any radiological or non-
        radiological material or equipment to be used in their work.

          The Radiation Safety Officer should be required to 
        routinely check on staff compliance with the SAFETY PROCEDURE/
        HAZARD ANALYSIS CONSIDERATIONS that he lists in Form 364 as 
        well as on the practices planned and occurring in the relevant 
        laboratories.

          A systematic study of all potential and actual 
        hazards at NIST should be carried out across the board as soon 
        as possible. On the basis of that analysis a safe practices 
        protocol should be developed for the guidance of all users of 
        materials or equipment.

          The NIST staff training policies and practices should 
        be thoroughly reviewed and modified to correct deficiencies. 
        Staff must understand the hazards and their potential 
        consequences of every new activity as well as ongoing projects 
        and become familiar with NIST administrative procedures as well 
        as the safety requirements related to their work.

          All managers should be held accountable for promoting 
        a safety culture within their purviews, and manager performance 
        reviews should include a consideration of how effective they 
        have been in that regard.

          The functionality of the line management 
        relationships at NIST-Boulder to NIST-Gaithersburg should be 
        examined as a possible contributor to this unfortunate event. 
        This study could take place in parallel with the Root Causes 
        Analysis. Lines of communications and authority clearly broke 
        down.

          Equally important is an examination of the 
        functionality of the relationships between the Boulder Safety 
        Organization and the other Groups, Divisions and Projects at 
        Boulder and Gaithersburg. A clear understanding of how those 
        relationships are envisioned by NIST top-level management has 
        not been successfully communicated to staff at Boulder and is a 
        serious weakness that should be corrected.
        
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
        
                    Biography for Kenneth C. Rogers

OVERVIEW

    I served as a Commissioner of the United States Nuclear Regulatory 
Commission (NRC) for ten years. First appointed by President Reagan for 
a five-year term I was reappointed for a second five-year term by 
President George Bush. Both appointments were subject to Senate 
confirmation. In my capacity as Commissioner, I was deeply involved in 
a wide range of policy issues involving science and technology and 
public policy. I represented the NRC for nearly ten years at the 
National Association of Regulatory Utility Commissioners and was a 
member of their Executive Committee. I have experience in working with 
international organizations in nuclear safety matters; have met with 
legislators of several foreign countries to assist them in formulating 
national policies on nuclear safety, and served on a small 
international group of experts to provide advice for the long-term to 
the Secretary-General of the international Organization for Economic 
Cooperation and Development (OECD).
    In total, I have more than forty years experience in the conduct 
and successful management of scientific, technological and educational 
activities related to technology. I have had direct experience in the 
oversight of nuclear power plants' operations from the standpoint of 
strengthening their safety to the public. I have served on state-wide 
commissions established to promote the public interest in educational 
accountability and in the employment of technology to better serve the 
needs of a state. I have had broad exposure to policy questions 
relating to the control and use of science and technology for the 
improvement of the human condition. I have constantly worked to 
emphasize the necessity of including humanistic aspects in the 
application of technology and have been and continue to be deeply 
interested in the professional education of engineers and scientists so 
as to heighten their concerns in this regard.

DATE OF BIRTH: March 21, 1929

PLACE OF BIRTH: Teaneck, New Jersey, USA

EDUCATION:

Columbia University, NY, NY; 1952-1956, Ph.D. (physics), date of 
        degree: 1956

Columbia University, NY, NY; 1950-1952, M.A. (physics), date of degree: 
        1952

St. Lawrence University, Canton, NY; 1946-1950, B.S. (physics), date of 
        degree: 1950

EMPLOYMENT

Government
2002-2006--Member, National Research Council Board on Assessment of the 
        National Institute of Standards and Technology (NIST) Programs 
        Sub-panel for the NIST Center for Neutron Research

2001-2004--Chairman, Screening Panels for new members of the Advisory 
        Committees on Reactor Safety and Nuclear Waste, U.S. Nuclear 
        Regulatory Commission

2001--Member, External Audit Panel of Energy Research Activities at the 
        Paul Scherrer Institute, Villigen, Switzerland

2000-2001--Chairman, Expert Advisory Group to the U.S. Nuclear 
        Regulatory Commission on The Role and Future Directions for 
        Nuclear Regulatory Research

2000-2002--Reviewer of Proposals to the U.S. Department of Energy in 
        nuclear energy programs: Innovations in Nuclear Infrastructure 
        and Education (INIE) and Nuclear Energy Research Initiative 
        (NERI)

1999-2000--Member, Blue Ribbon Advisory Panel to the Department of 
        Energy to Analyze the Future of University Nuclear Engineering 
        and Research Reactors

1997-1998--The U.S. Member of an international High Level Advisory 
        Group to the Secretary-General of the Organization for Economic 
        Cooperation and Development (OECD) on the Future Role of the 
        OECD Nuclear Energy Agency, Paris, France

1987-1997--Commissioner, U.S. Nuclear Regulatory Commission, 
        Washington, DC

Academic
1999-2002--Member of the Board of Visitors, A. James Clark School of 
        Engineering, University of Maryland

1971-1987--President and Chief Executive Officer, Stevens Institute of 
        Technology, Hoboken, NJ

1971--Provost & Dean of Faculty, Chief Academic Officer, Stevens 
        Institute of Technology, Hoboken, NJ

1998-1971--Head, Department of Physics, Stevens Institute of 
        Technology, Hoboken, NJ

1967-1968--Visiting Research Scientist, Princeton University, Plasma 
        Physics Laboratory, Princeton, NJ

1957-1967--Faculty Member, Teaching & Directing Research Teams in 
        Plasma &Particle Physics, Stevens Institute of Technology, 
        Hoboken, NJ

1955-1957--Research Scientist, Cornell University, Newman Laboratory of 
        Nuclear Physics, Ithaca, NY

Industry
2002-2006--AECL Technologies Inc. Mississauga, Ontario, Canada, 
        Consultant on U.S. Licensing Matters Pertaining to New Reactor 
        design certifications

2000--Nuclear Energy Institute, Washington, DC, Consultant on Nuclear 
        Regulatory Commission Policies and Procedures

1974-1986--Public Service Electric & Gas Co., Newark, NJ, Director & 
        Sole Director Member of Nuclear Oversight Committee

1986-1987--Public Service Enterprise Group, Newark, NJ, Director and 
        Chairman of Membership Committee of the Board of Directors

1973-1987--First Jersey National Bank, Jersey City, NJ, Director

1962-1970--Vitro Laboratories, West Orange, NJ, Consultant

1960-1963--Stanford Research Institute, Menlo Park, CA, Consultant

1962-1963--Grumann Aircraft Engineering Corporation, Bethpage, NY, 
        Consultant

1970-1972--Photochem Industries, Fairfield, NJ, Consultant

HONORS AND AWARDS

President Emeritus, 1987, Stevens Institute of Technology

Honorary Degrees
Doctor of Engineering, 1987, Stevens Institute of Technology

Doctor of Humane Letters, 1983, St. Lawrence University

Awards
Elected Fellow of the American Nuclear Society, 2001

Recipient of the Institute of Electrical and Electronic Engineers 
        Millennium Award Medal, 2000

Senior Member, Institute of Electrical & Electronics Engineers, 1989

Recipient of the first Hudson County (NJ) Humanitarian Award, National 
        Conference of Christians and Jews, 1985

Elected Fellow of the American Association for the Advancement of 
        Science, 1983

Elected Member of the Cosmos Club, Washington, DC, 1975

PROFESSIONAL MEMBERSHIPS

American Association for the Advancement of Science, Member & Fellow, 
        1968-Present

Institute for Electrical Electronics Engineers, Senior Member, 1978-
        Present

American Physical Society, 1954-Present

American Nuclear Society (ANS), Fellow, 1988-Present. Vice Chairman 
        Public Policy Committee and of the Local Sections Committee, 
        2002-Present. Chairman Washington, DC Local ANS Section, 1999-
        2000

Honorary Chairman, PSA '99 (International Conference on Probabilistic 
        Safety Assessment)

Assistant Chairman, Year 2000 Joint American Nuclear Society-European 
        Nuclear Society International Conference, Washington DC, 
        November 2000

The Food Safeguards Council (Treatment of Foods by Ionizing Radiation), 
        Board of Advisors, 1998-Present

National Association of Regulatory Utility Commissioners 1989-1997, 
        Member of the Executive Committee

Sigma Xi (Honorary Research Society), 1954-Present

Sigma Pi Sigma (Honorary Physics Society), 1949-Present

National Science Teachers Association, 1960-1970

American Association of Physics Teachers, 1960-1970

American Association for Higher Education, 1970-1980

American Society for Engineering Education, 1970-1990

Scientists & Engineers for Secure Energy, 1977-1987

NY Academy of Sciences, 1970-1988

Newcomen Society in America, NJ Coordinator, 1975-1988

MOST RECENT PUBLICATIONS AND TALKS

The Past and Future of University Research Reactors, SCIENCE 295, 2217 
        (2002)

Nuclear Power in a Regulatory Environment, Nuclear & Radiological 
        Engineering Graduate Seminar Talk, University of Cincinnati/The 
        Ohio State University, 2002

PUBLICATIONS (prior to 1988)

    Approximately fifty refereed publications in Particle Physics, 
Nuclear Instrumentation, and Plasma Physics and holder of two patents 
on stabilized high electric current arc discharges.

MEMBERSHIPS (prior to 1988)

Appointed
Governor's Commission on Science & Technology (NJ), Chairman, Task 
        Forces on Telecommunications, 1983-1985

New Jersey Governor's Commission on Science & Technology, Commissioner, 
        1985-1987

New Jersey Commission on Academic Accountability in Higher Education, 
        Commissioner, 1979-1980

New Jersey Science & Technology Center, Advisory Board, 1980-1987

Regional Plan Association, Member of the New Jersey Committee, 1982-
        1987

Research & Development Council of New Jersey, 1980-1987

Ex Officio
Association of Independent Technological Universities, President (1976-
        1978), 1972-1987

Independent College Fund of New Jersey, Trustee, 1972-1987

Associated Colleges & Universities of New Jersey, Trustee, 1973-1982

Hudson County Community College Consortium, Trustee, 1972-1976

New Jersey State Chamber of Commerce, Director, 1976-1987

Christ Hospital Foundation, Jersey City, NJ, Trustee 1980-1986

Christ Hospital Foundation, Jersey City, NJ, Vice Chairman, 1980-1986

Hoboken Chamber Orchestra, Hoboken, NJ, Trustee, 1985-1987

Royal Society of Arts (London), 1970-1990

The University Club (of NY), 1972-1987

Other
Cosmos Club, 1975-Present

American Association of University Professors, 1958-1972

American Civil Liberties Union, 1970-1980, 2000-Present

Phi Sigma Kappa, Social Fraternity 1947-Present

                               Discussion

    Chairman Wu. Thank you very much, Dr. Rogers.
    It is traditional at this point for the Chairman to 
recognize himself for the first five minutes of questioning. I 
do so, and I now yield my time to Mr. Udall, the gentleman who 
represents the Congressional District directly affected by this 
spill. He is a Member of the Full Science and Technology 
Committee and Chair of the Space Subcommittee.
    Mr. Udall, please proceed.
    Mr. Udall. Thank you, Chairman Wu, and welcome to the 
panel. I want to thank you, Chairman Wu, for holding this 
hearing today on this incident that occurred in my district in 
Colorado. I am very disappointed, just like the Ranking Member 
and the Chairman, that we are here today. This incident 
shouldn't have occurred in the first place, and I am far from 
satisfied with NIST's response, both initially and as the 
situation has continued to develop. The apparent lack of an 
adequate emergency response plan and clearly inadequate 
protocols for handling toxic materials are just a few or the 
first, I should say, of many serious problems that NIST must 
resolve.
    Now, let me just make it clear. NIST has done great work, 
and I am proud to represent the labs and its employees here in 
Congress. But I intend to see these problems addressed.
    I want to turn my line of questioning, if I might, to Dr. 
Turner. Dr. Turner, the communication from NIST to the public 
and the State and local officials was inadequate. You didn't 
contact the State or county officials until I specifically 
asked you to a week and a half after the incident.
    And I would like to find out more about your communication 
with your employees. The incident occurred on the afternoon of 
June 9, but for some reason NIST and the other Department of 
Commerce employees were not informed until almost 24 hours 
later. That makes no sense. Why did it take so long to inform 
employees about the incident?
    Dr. Turner. Yes, sir. First of all, let me say I fully 
agree with you that our response was inadequate and was one of 
the major failures that we had. There is no question about 
that.
    I have done several things. One, I have directed our head 
of Emergency Services to prepare an emergency notification 
checklist that would apply to Boulder. It would include things 
like State and county officials on it, because I think during 
an event is not the time to have to think about, you know, who 
to call, when to call, and so forth, but to have that checklist 
in front of them so they would know it right away. So we have 
taken that step.
    Also----
    Mr. Udall. Dr. Turner, if I might, let me, I appreciate 
what you are putting in place, but if I could just continue, 
and I would welcome other additional information in that, along 
that line. But I am just curious, why couldn't you just have 
been frank with your employees, even a simple announcement that 
a spill had occurred and that we are going to move to 
understand what happened as soon as possible? That would have 
been helpful.
    Do you have a plan in place if something similar occurs?
    Dr. Turner. Yes, sir. The whole incident was very slow to 
evolve and----
    Mr. Udall. If I could interrupt you one more time. What if 
something happened tomorrow? Do you have a plan in place? A yes 
or no answer would be sufficient.
    Dr. Turner. Yes, sir. We have certainly streamlined our 
communications. I have made, I have directed that changes be 
made in our emergency communications process so that senior 
managers like myself are immediately made aware of situations 
as they occur that warrant our attention.
    Mr. Udall. The reason I ask is that I have heard from a lot 
of constituents in Boulder and those who work at NIST that they 
are not confident that you have fixed all these communication 
and safety problems. And after I hear Chairman Wu mention the 
serious laser incident that occurred in Gaithersburg in 
December, I would have thought that that would have made you as 
the head of the agency aware that critical safety protocols 
were not being followed at the NIST laboratory complex.
    And on that note I would like to request that you provide 
all e-mails between Boulder and Gaithersburg relating to how 
and when employees, the press, and local and State government 
will be notified and what needed to be clarified as you said.
    Dr. Turner. Well, sir, let me answer your question in two 
parts. First of all, one of the ways that we can assure 
ourselves of whether we have fixed the problem or not, is to do 
exercises. And so that is one of the things that we will plan 
to do, and I will play in those exercises to make sure that, 
you know, I am aware of what is going on and what is happening.
    Mr. Udall. That is a yes? You are saying a yes that you are 
going to put that all in place and----
    Dr. Turner. Yes, sir. Absolutely. Because, again, I think, 
as with anything else, the plans are only as good as the 
execution.
    Mr. Udall. Certainly.
    Dr. Turner. And if our execution is flawed, you know, we 
should find that, and if there are flaws in the execution or 
lessons learned, doing an exercise is the venue where you can 
find those things out before you, in fact, are in an actual 
situation.
    Mr. Udall. Let me move to another line of questioning. I 
see my time is going to expire fairly soon.
    I would like to know what you and the rest of the 
leadership at NIST plan to do to restore the trust of the 
employees given, in particular, that I have, since I have 
learned that NIST is already planning to terminate certain 
individuals in response to the incident?
    Now, the investigation isn't even complete, yet it seems 
like you are beginning to assign blame. Do you plan to make any 
personnel changes before the analysis is complete?
    Dr. Turner. Sir, let me first of all, if I could give a 
fairly detailed answer to your question.
    Mr. Udall. I know my time is running out, so maybe a yes or 
no would be----
    Dr. Turner. Well, first of all, there will be no personnel 
actions against anyone until I have had an opportunity to make 
sure that whatever--that the process is fair and consistent.
    Mr. Udall. That is what I wanted to hear. Thank you.
    Thank you, Mr. Chairman, for yielding.
    Chairman Wu. I thank the gentleman and now the Ranking 
Member, Dr. Gingrey.
    Mr. Gingrey. Mr. Chairman, thank you.
    Dr. Miller, let me go back to your testimony if I can. You, 
I think, said that, I think I heard you say that the NRC, the 
Nuclear Regulatory Commission, has inspections about every five 
years or on a five-year basis.
    First of all, I want to know if that is accurate, and when 
the last inspection of NIST-Boulder occurred, and were there 
any deficiencies found at that particular time, and if so, was 
a corrective action plan submitted to NIST-Boulder?
    Dr. Miller. Thank you, Congressman. I guess I would start 
to answer your question in that the five-year inspection 
frequency, we have a graded approach to our inspection 
frequency based upon the--what we consider to be the safety and 
the risk aspects of any licensee using materials. And that 
ranges from: we have inspectors at certain facilities, they are 
on site every day, to a five-year frequency. The quantities and 
material that NIST was authorized to use were considered of low 
safety risk, so the inspection frequency was five years.
    The license by which they were given an amendment to get 
the plutonium was only within the last couple years, and so the 
inspection frequency hasn't triggered to actually go out there 
yet. However, before that NIST had a license with the NRC for 
doing small amounts of work that would not have required us to 
actually do anything other than a telephone type of inspection 
activity.
    So they, when they changed their license, it triggered the 
five-year frequency. So the NRC actually hadn't been to the 
Boulder facility for a large number of years, I think going 
back to some time in the 1990s.
    Mr. Gingrey. In the light of--in light of this incident, 
would you, any of you agree that possibly even with this 
minimal licensee in regard to the amount of nuclear material 
that they would be working with, obviously they don't have an 
active reactor on-site----
    Dr. Miller. Right.
    Mr. Gingrey.--and I can understand that you, your 
explanation of that, but would any of you think that maybe 
every five years was not sufficient? I want you to answer that 
question.
    And then let me ask one last, which I think is particularly 
important in light of what my colleague from Colorado was 
saying in regard to the timeliness of the response of NIST-
Boulder and its Acting Director, you knew about, I think I 
heard you testify that you were aware of this spill on June the 
9th, and that an inspector was actually sent on June the 12th. 
This is an occurrence on Monday, going to the site to inspect 
on Thursday. If I am right on that timeline, that seems a 
little bit slack, if I may say so. Can you explain that for me 
as well?
    Dr. Miller. I will start, and I will let Dr. Collins, who 
was directly involved in dispatching the inspector augment, the 
reporting requirements for an event of this type would require 
that it be reported to the NRC within 24 hours, and this met 
that obligation. So I believe that it was on June 10 that we 
actually learned about it.
    And Dr. Collins can tell you the deliberation that he took 
in dispatching an inspector to the site.
    Mr. Gingrey. Well, yes. You are saying that NIST met the 
24-hour reporting requirement.
    Dr. Miller. Right.
    Mr. Gingrey. Now, what is the requirement for you to 
physically respond to an incident, have somebody on site? Is it 
more than 24 hours?
    Dr. Miller. It depends on the incident, and it depends on 
the travel arrangements, depending upon what we determine we 
need with regard to the response.
    Mr. Gingrey. Well, I would think travel arrangements, you 
know, I can get a flight any time----
    Dr. Miller. Right.
    Mr. Gingrey.--day or night. I might have to wait awhile, 
and you guys probably can attest about----
    Dr. Miller. Dr. Collins can tell you his deliberative 
process.
    Mr. Gingrey.--transportation than I do.
    Dr. Miller. Right. He can tell you his deliberative process 
and how he chose to respond.
    Dr. Collins. After we received notification of the incident 
from NIST on June 10, we based our, I mean, we knew we needed 
to send in an inspector, that we needed some on-site 
confirmation of the circumstances. We based that at the time, 
and that is all we have is the description of the event and the 
extent and the existence of any immediately safety issues 
associated with that event. We would not wait to get an 
inspector on-site to make sure immediate safety issues are 
addressed had they been described to us that day.
    The description we got was that the rooms were isolated, 
that people had been identified, and that NIST had initiated 
actions to ensure that the radiation doses or potential 
radiation doses for those people were determined.
    So that became the basis for our timeline.
    Mr. Gingrey. My time is about expired, Dr. Collins, but I 
would say that since you extended or NRC extended this license 
to NIST to be able to handle this low-level amount of 
plutonium, there had not been a periodic inspection to make 
sure that they were doing the job right, that they were 
adequately trained and following all the protocol, guidelines 
whatsoever. And so what they told you I don't think you, I 
would be reluctant to rely on that, having no track record in 
regard to their prior performance.
    So I am just going to close by saying, you don't have to 
respond but maybe later you can, that maybe your response 
wasn't quite as timely as it should have been.
    Chairman Wu. I thank the gentleman.
    The gentlelady from California, Ms. Richardson, recognized 
for five minutes.
    Ms. Richardson. Yes. Thank you, Mr. Chairman.
    First of all, let me start off with my question to Dr. 
Turner. I am sorry. Dr. Turner. How long have you been Acting 
Director?
    Dr. Turner. I have been Acting Director since around Labor 
Day of 2007.
    Ms. Richardson. Okay. And do you agree with the 
recommendations of Mr. Rogers, Dr. Rogers?
    Dr. Turner. Yes, ma'am, I do. I am in substantial agreement 
with him. I certainly would like to, I would welcome the 
opportunity to discuss it with him further just to make sure 
that we both have a similar understanding, but I have no, I see 
nothing in his report that I would disagree with.
    Ms. Richardson. Do you have the adequate funding to meet 
those recommendations?
    Dr. Turner. We will provide the funding, because safety is 
going to be a priority for us, and that is one of the reasons 
why we moved the Safety Office into the Office to report to the 
Director so that we could make sure that they had the resources 
they needed.
    Ms. Richardson. Who oversees the safety personnel? How does 
the recent reductions in funding for the Safety Division affect 
their duties? And at the time when NIST's funding has been 
increased significantly, why hasn't NIST devoted more resources 
to environmental, health, and safety?
    Dr. Turner. Well, the resources that they, they basically 
have the same situation that all the rest of our labs were in. 
We received a modest increase in fiscal year 2008, which did 
not cover the salaries and raises for all our employees, and so 
that covered--all our employees received the raises that they 
were entitled to, but we had to take some of that out of the 
base programs.
    But, again, I would like to emphasize, though, that one of 
the reasons why I moved the Safety Division to report now into 
the Director's office is to assure that, one, we are aware of 
what their needs are, two, they are properly prioritized, and 
three, again, they have the adequate resources that they need.
    Ms. Richardson. Are all your labs the same?
    Dr. Turner. I am not sure if I----
    Ms. Richardson. In terms of the work that is done. Are all 
of your labs the same?
    Dr. Turner. No. Our labs are quite different and diverse.
    Ms. Richardson. Well, then, will you be evaluating the 
difference in terms of--you said that, first of all, you said 
they all got basically the same amount of money, and so if they 
are not all the same, and if they are all doing different 
duties, shouldn't it be somewhat different?
    Dr. Turner. No. What I meant, what I intended there was, 
that the amount of increase that we received in--we needed 
about $13 million in fiscal year 2008 to cover the increase in 
salaries and wages. We got about $6.5 million. And so everyone 
took some of that out of their base and so that----
    Ms. Richardson. I am not talking about the nuts and bolts 
of if a person received a two percent increase. I am talking 
about if a lab has a difference in terms of its responsibility 
which has been discussed now in this committee, and so if now 
you are doing work that you weren't doing before, have there 
been changes done in terms of your safety personnel for those 
labs appropriately is the question.
    Dr. Turner. Well, first of all, we wanted to impress on all 
of our laboratories that the responsibility of safety, for 
safety starts with line management and that they are 
responsible for that. Each lab has a Division Safety 
Representative.
    Ms. Richardson. Dr. Turner, I apologize. I don't know if 
this is the first time you testified, but as Members we only 
get five minutes to ask questions.
    Dr. Turner. I am sorry.
    Ms. Richardson. So my question is very specific to you. I 
understand safety is important. I understand it all goes to 
line management. I get all that. However, I just asked you the 
question, are all the labs the same? You said, no. If the labs 
are different and if they have different levels of 
responsibility and danger, my question to you is has that now 
been met at this particular lab and any other labs that might 
have a unique situation? And have you appropriated the 
appropriate funds to do so? That is my question.
    Dr. Turner. Yes, ma'am, we have. We have done a hazards 
analysis, and that has been done.
    Ms. Richardson. Okay.
    Dr. Turner. I apologize for that.
    Ms. Richardson. I understand. I understand. When did you 
learn of the incident?
    Dr. Turner. I learned the morning of June 10.
    Ms. Richardson. Okay. What process do you have in place to 
rectify that?
    Dr. Turner. I directed that some changes be made in our 
emergency response capability for communication, that our 24-
hour, seven days a week Emergency Services Office in 
Gaithersburg, if they received a call that should have been 
forwarded to me, there would be a mechanism set up for the 
office to patch them through.
    Ms. Richardson. Are you now going to be notified 
immediately?
    Dr. Turner. Yes, ma'am, I am.
    Ms. Richardson. Okay.
    Dr. Turner. And the important thing is that there is one 
number that anyone needs to remember.
    Ms. Richardson. Okay. My last question is to Dr. Rogers, 
and I think I have got about 15 seconds. You had an opportunity 
to go to this location, do an evaluation. How often would you 
recommend that inspections should incur so that that way we 
don't have this same situation again.
    Dr. Rogers. Well, I don't know how often. Regularly-
scheduled inspections should occur, but it does seem to me that 
the license changes, the changes in the NRC license should have 
triggered an inspection.
    Ms. Richardson. Immediately or within----
    Dr. Rogers. Yes. With the introduction of special nuclear 
material and plutonium sources on-site, even though they were 
small quantities, even though they were in encapsulated form, 
and encapsulated is not a well-defined, technical term, it 
seems to me that there should have been a question about, well, 
now, this is something new. This is really a totally different 
situation from what they were dealing with before in my 
opinion.
    The introduction of plutonium was totally new, and the type 
of source that they were going to use was totally new, and in 
my opinion NRC should have paid more attention to any possible 
changes that were taking place in the laboratory and how those 
materials were going to be used.
    Ms. Richardson. Thank you, sir, and I appreciate your time, 
Mr. Chairman.
    Chairman Wu. I thank the gentlelady.
    The gentleman from Nebraska, Mr. Smith, five minutes.
    Mr. Smith. Thank you. Dr. Rogers, several of your 
colleagues who provided independent reviews to Dr. Turner 
singled out the Radiation Safety Officer for responding 
commendably given the scope of the incident and the shortage of 
resources. How would you characterize the containment and 
cleanup effort by Boulder safety personnel?
    Dr. Rogers. Well, first, let me say that my expertise 
really lies in the general management of nuclear safety of 
organizations. I have a technical background, and I know 
something about these matters, but I would say that I would 
have to really rely on my expert--the expertise of my 
colleagues on whether the specific actions, one-by-one, day-by-
day, minute-by-minute, were the best or were appropriate. It 
seems to me that they were a little slow, they were a little 
confused, but they did get back on track and proceeded in a 
reasonable way once that took place. But it did take a day or 
two.
    Mr. Smith. Okay. Thank you. In your testimony you, I wasn't 
sure whether it was your own words or words of others that you 
said the safety culture at NIST is dysfunctional. Were those, 
was that your characterization?
    Dr. Rogers. That was a quotation. That was not my own 
analysis necessarily, but it was a quotation of one of the 
people involved with safety at NIST.
    Mr. Smith. Involved in safety at NIST and admitted to his 
or her own dysfunction in relation to that?
    Dr. Rogers. That this, that in other words--I think the 
statement has to be interpreted in this way, that there were 
pockets of very, very fine attention to safety at NIST, and 
there were pockets of--where it was just the opposite, that the 
safety organizational people had difficulty getting the 
attention of some of the middle-level managers with regard to 
safety issues with others they found very excellent 
cooperation.
    So I think the judgment of dysfunctional is perhaps to be 
interpreted as not uniformly good.
    Mr. Smith. But the individual did try to raise the issue 
prior to the incident?
    Dr. Rogers. I don't know about that. That was, that came 
out in our interviews with people. I don't know to what extent. 
I think there was a level of frustration.
    Mr. Smith. I mean, if it was self-identified and nothing 
was done about it, that would seem----
    Dr. Rogers. Well, I have to, Congressman, all I can say is 
that I did not have an opportunity to spend enough time to 
pursue it in any depth but really took it to be a signal that a 
hard look has to be taken at safety organization and how it is 
responded to by the researchers at NIST.
    Mr. Smith. But the comment was made that it was 
dysfunctional, and you chose not to look into it further?
    Dr. Rogers. Well, I didn't make any choice on this one way 
or the other. We spent as much time as we had to and available 
to us, and we interviewed ten individuals that day, each for an 
hour. This was something that came out in one of the 
interviews.
    Mr. Smith. More anecdotal in nature?
    Dr. Rogers. Yes.
    Mr. Smith. Okay. Thank you.
    Dr. Miller, back to my previous question. How would you 
characterize the containment and cleanup effort by Boulder 
safety personnel?
    Dr. Miller. Dr. Collins has got a team on site. He can tell 
you the current activities that are going on and how we 
characterize that, sir.
    Dr. Collins. I think the highest priority for the Special 
Inspection Team was to make sure that NRC had a good 
understanding and that the right actions were being taken to 
evaluate the extent of the spread of contamination, understand 
what the situation was, whether or not it was stable, 
understand the radiation doses which could be associated with 
that.
    What we have found to date is while our work is still in 
progress, NIST has reasonably determined the extent of the 
plutonium spill. Rooms which are contaminated have been 
isolated, and we have commitments from NIST in our confirmatory 
action letter to present to the NRC a stabilization plan and 
decontamination plan for approval before those activities 
begin.
    Mr. Smith. Okay. Thank you. Thank you, Mr. Chairman.
    Chairman Wu. I thank the gentleman, and now in the regular 
order it is appropriate to recognize the gentleman from 
Colorado, Mr. Udall.
    Mr. Udall. Thank you, Mr. Chairman. Again, I want to turn 
back to Dr. Turner, and Dr. Turner, I was eager to get a number 
of questions in, and I didn't, to confirm that you will provide 
to use the e-mails that occurred after the incident here to the 
Committee. Will you do that?
    Dr. Turner. Yes, sir. Absolutely.
    Mr. Udall. Thank you. Before I was elected to the Congress, 
I served as the CEO and previous to that the COO of the 
Colorado Outward Bound School. We had some 60,000 days a year 
in the mountains of Colorado, the rivers, and in the canyon 
country, and safety was bottom line, top line, it was 
everything.
    And you have to, as the leader, be ultimately responsible 
for what happens----
    Dr. Turner. Yes, sir.
    Mr. Udall.--even if you aren't in the field yourself, and 
you said this incident is unacceptable, and I wholeheartedly 
agree with that.
    But what do you mean? Are you taking full responsibility 
for what happened?
    Dr. Turner. Yes, sir, I am.
    Mr. Udall. That is terrific. Specifically, where do health 
and safety standards fit in your priorities, and what changes 
are we going to see from your office? The initial reviews I 
think clearly point out that the incident was the result of an 
overall institutional failure----
    Dr. Turner. Yes, sir.
    Mr. Udall.--to properly train employees. That is your 
responsibility.
    Dr. Turner. Yes, sir.
    Mr. Udall. The NIST safety operational system is your 
responsibility. Have you read that document, and how does it 
need to change to reflect the lessons learned in this incident?
    Dr. Turner. Sir, I think there are gaps that certainly are 
evident. There are some things in the operations and safety 
manual that are good, other things are gaps; for example, the 
fact that right now there is a, people have up to 30 days--I 
guess new researchers have up to 30 days before they need to 
get training. We need to close that gap and make that 
appropriate. Then nobody works on anything until they are 
appropriately trained for that.
    So there are a number of things that we are going to do, 
but we also want to take in and have the benefit of the 
evaluations of the outside experts. The Department of Commerce 
is also putting together a blue ribbon panel. The Inspector 
General is also looking as there is feedback that we would get 
from the NRC. So we want to be able to incorporate all that.
    But let me assure you, sir, I, first of all, take 
responsibility for this, and I am determined to fix it.
    Mr. Udall. I also appreciate hearing that, number one, and 
number two, I appreciate when Congresswoman Richardson talked 
about budgets, that you made it clear, I believe you made it 
clear that even though your agency has had some cutbacks, as 
have all federal agencies, that you are going to find the 
dollars, you are going to find the resources.
    Dr. Turner. Yes, sir.
    Mr. Udall. Because there is no excuse to jeopardize----
    Dr. Turner. Yes, sir. Absolutely.
    Mr. Udall. How many safety officials work the Boulder labs, 
and who do they report to?
    Dr. Turner. I don't know the exact number, sir. We can 
certainly get that back to you, but they report to the head of 
the Safety, Environment, and Health Division in Gaithersburg.
    Mr. Udall. Gaithersburg. Why don't they report to someone 
in Boulder? That doesn't really make sense to me as a long-time 
safety officer in my old, my last career. I would encourage you 
to look at changing that as NIST learns from the incident, and 
I would like to also encourage you as I did a few weeks ago to 
respond quickly and directly to requests by my staff and the 
Committee staff. We still haven't received some simple things 
we have requested like a timeline. It has been more than a 
month since the incident.
    Dr. Turner. Yes, sir. Let me just say that, first of all, I 
apologize, you know, if we have been slow in responding, but 
also, I have, I will be leaving for Boulder this evening, and 
one of the things I want to do when I am there is to have a 
discussion about the rules and responsibilities and reporting 
structure that we have for our Site Director out there, because 
quite frankly, I think that was a contributing cause for the 
slowness of our responses, you know, the incommensurate 
responsibility without authority. And that is one of the things 
that we are looking to fix.
    Mr. Udall. That may go to my point about maybe having a 
Safety Officer on the ground in Boulder, but we want to pursue 
that further as you, if you----
    Dr. Turner. But let me just mention, I apologize for, I 
hope, I didn't mean to cut you off, but we do have a Safety 
Office there in Boulder. They report to the Safety Division in 
Gaithersburg.
    Mr. Udall. Who know that NIST has plutonium in the lab 
before the incident? I have heard that some people that work 
there didn't know, and I am just curious why. Did employees 
fully understand what they were dealing with? I know a 
Committee staff member was there a few weeks before, and she 
was in that very room, and she was not aware that that was what 
was being undertaken, that research with plutonium and the 
other materials that were there.
    Dr. Turner. Well, the plutonium was there to do work on 
developing detectors that weapons inspectors could be using, 
and as I understand it, NIST has about, in order of magnitude, 
better capability for those detectors than anywhere else in the 
country.
    But clearly, it was a major failing that there was research 
going on with plutonium in that laboratory, and other people 
doing other business in that laboratory were not aware.
    Mr. Udall. Can I ask that you will get us that information 
for the record when it is available, and we can get the exact 
questions to you after the Committee hearing.
    Dr. Turner. Yes, sir.
    Mr. Udall. Mr. Chairman, I thank you for the time and yield 
back the time I have remaining, which is no time.
    Chairman Wu. I thank the gentleman.
    Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    Dr. Miller and Dr. Collins, if you would, either of you, in 
your testimony you state that the confirmatory action letters 
document mutually agreed-upon corrective actions. How did the 
NRC and NIST come to an agreement on the actions taken through 
the July 2, letter, and how would you characterize NIST's 
cooperation with the NRC since the event?
    Dr. Miller. Dr. Collins will answer that question because 
he was directly responsible in issuing the confirmatory action 
letter to NIST.
    Dr. Collins. We became aware of the need for a confirmatory 
action letter. That is a mechanism we have to put in place 
actions and commitments immediately when we feel they are 
warranted to make sure that the situation is safe and remains 
safe.
    We became prompted to do that the more we became aware of 
what appeared to be broad breakdowns in the procedures and 
programmatic radiation safety program controls at NIST. We 
began our discussions with NIST before the Special Inspection 
Team arrived on site, and after that team arrived on-site and 
began its initial work, we had continuing discussions and were 
able to dialogue face to face with NIST officials to obtain 
their commitments prior to the finalization of that letter on 
July 2.
    Mr. Smith. Okay. Thank you. And Dr. Rogers, other than 
safety training and education, what else do you believe could 
be done to insure that guest researchers certainly fully 
appreciate the implications of their actions?
    Dr. Rogers. Well, supervision certainly is an important 
aspect there of their initial work. A guest researcher is 
someone who comes with high credentials, but it has been my 
long experience that an excellent technical credential does not 
necessarily confer with it, either common sense or detailed 
knowledge that is not involved with the work that is to begin.
    So that it seems to me immediate supervision of any new 
guest researcher by experienced people at the lab would be an 
important addition to training and whatever else you mentioned.
    Mr. Smith. Okay. Did you want to repeat, no, I am just 
joking, what you said earlier.
    And perhaps you kind of answered this partially, but would 
there be any specific recommendations on how to insure that the 
scientists at NIST facilities are adequately prepared for 
dealing with the radioactive sources?
    Dr. Rogers. Well, there is a great deal existing in the way 
of policies, procedures, organizational structures, and so on 
and so forth. They just haven't been used consistently. To me 
the central question is developing an attitude of safety on the 
part of every single person in the place. And that is a very 
big challenge. It is not simply imposing a collection of new 
requirements. It is something that has to come almost 
automatically when people start to work, that they think of 
safety along with whatever else they are doing.
    And in this particular instance it seemed to me that 
elementary questions were not asked. There wasn't sort of a 
sense of intellectual curiosity on the part of key individuals 
that they would understand what it is they were dealing with. 
Maybe not having the training was important, an important flaw 
but also not having an inquiring mind to ask, well, what is 
this stuff I am dealing with? Is it dangerous or not? It is 
plutonium. What is that?
    And these are people with scientific backgrounds that 
should sit down and go and do a little reading before they 
begin working.
    Mr. Smith. Well, I have a memo here that I think would be 
particularly instructive based on what is at stake here, and I 
appreciate the hearing today, and I would assume that most 
folks would understand, especially those with excellent 
credentials would understand the implications of what has 
happened or what could happen.
    So I appreciate that. Thank you.
    Chairman Wu. I thank the gentleman. I understand the 
gentlelady does not have any questions at this point in time.
    Then the Chair recognizes himself for five minutes.
    We are dealing with a situation with, about .25 grams of 
plutonium. Dr. Miller, did I hear you correctly that the terms 
of the license between the NRC and the NIST, and NIST would 
potentially permit NIST to ask for up to any sub-critical 
amount of plutonium?
    Dr. Miller. I don't believe that I said that, Congressman, 
but----
    Chairman Wu. I thought I heard it.
    Dr. Miller.--the terms of the license do have specific 
provisions in them, and I can tell you, I can turn to the 
license and tell you exactly what they are. But they are not 
authorized critical amounts of material.
    Chairman Wu. No. I said sub-critical. I thought you said--
--
    Dr. Miller. But it is less----
    Chairman Wu.--amounts----
    Dr. Miller.--the terms of their license is, there is a 
margin between the terms of their license and what would be 
authorized for criticality. It is not right up to it.
    Chairman Wu. But potentially it could be, it could have 
been a much larger amount of plutonium that was----
    Dr. Miller. The terms of their license not only restrict 
them with regard to the total amount of plutonium they are 
authorized to possess and use, but there is restrictions in the 
license with regard to what each individual source that is used 
can contain. So they could not contain that amount of plutonium 
in any one given source given the terms of the license.
    Chairman Wu. Okay. Well----
    Dr. Miller. The total amount of plutonium that they were 
authorized to possess on that license was significantly less 
than what would be that critical amount.
    Chairman Wu. It is bad enough when we are dealing with .25 
grams. I am concerned about the terms by which the laboratories 
may have multiple sources adding up to significantly more and 
perhaps our staffs can get together to see precisely what those 
amounts----
    Dr. Miller. Yes.
    Chairman Wu.--might add up to.
    Dr. Miller. Yes. And we can certainly answer that 
information. They have that information, and we can tell you, 
you know, why the terms of the license for what they were given 
the amounts that they were possessing.
    Chairman Wu. Thank you, Dr. Miller. And you referred to a 
five-year period of----
    Dr. Miller. Yes.
    Chairman Wu.--inspection. In either, it is either a NIST 
internal rule or an NRC term of the license, I believe that 
there is supposed to be annual trainings for personnel handling 
these materials. Is that correct?
    Dr. Miller. I can, the terms of the license require annual 
training.
    Chairman Wu. Yes.
    Dr. Miller. The terms of the NRC license impose that 
requirement on this through the license.
    Chairman Wu. Okay. Well, Dr. Turner, Dr. Rogers, do you 
have at hand the last time that the personnel involved were 
actually trained?
    Dr. Turner. I can get that for you, sir, but one of the 
things I wanted to mention was that the, all work with 
radioactive sources has been stopped at NIST in Boulder.
    Chairman Wu. Yes. Yes.
    Dr. Turner. Until we get assured that----
    Chairman Wu. I understand.
    Dr. Turner.--we are meeting all the terms of the license.
    Chairman Wu. I understand that you have taken those steps, 
cautionary steps appropriately going forward. I am looking back 
now before this incident, and it is my understanding that there 
was one training in 2007, and that prior to that the prior 
training was in 2005, but no one has records as to the 
intensity, duration, or the content of those trainings. At 
least that is what I have been briefed on, and if you all have 
any contrary information or supplemental information, I would 
be interested in that.
    Dr. Turner. I would be happy to provide it. I saw a list of 
the training. Most of the training was, at least on the list 
that I saw, up to date. There were a few cases, you know, for 
example, the researchers involved in this situation where the 
training had not taken place.
    Chairman Wu. So other folks were up to date, but the 
subject individuals were not up to date?
    Dr. Turner. Yes, sir.
    Chairman Wu. Okay. The consequence of this management 
environment, if you will, there are a couple of things that I 
saw in the train of events which at least to me seem like it 
could have been prevented by adequate training. In one of the 
documents prepared by NIST as a report to the NRC, I believe 
that post-incident a number of the employees decided to stay in 
a hallway and then one person suggested that they take their 
shoes off.
    It is commendable to not, to think about not tracking 
materials around on their shoes, but net, net by taking the 
shoes off, you expose socks and feet to the materials. The 
other one was washing hands over an open drain.
    Dr. Rogers, Dr. Turner, Dr. Miller, do you agree with me 
that those are some of the things that are prevented by 
adequate training and a complete program and culture of 
training?
    Dr. Turner. Yes, sir. I totally agree and also I think the 
assumption of responsibility and leadership on the part of my 
management, as well as having in place a firm, aggressive, 
positive safety culture.
    Dr. Rogers. Well, I quite agree that, you know, elementary 
training would have avoided some of this. Information was not 
conveyed to the person most directly involved with this 
incident, that I would say could have been figured out by that 
individual, but it was not transmitted to that individual.
    So that you had a situation where the guest researcher, who 
was unfamiliar with, one, the laboratory, general 
administrative management requirements of the lab, and two, not 
familiar with the details of the technical aspects of the work 
involving radioactive materials which that person was going to 
be engaged.
    Chairman Wu. Thank you. I see that my time has expired. My 
understanding is that Mr. Udall has a follow-up question.
    Mr. Udall. I do. Thank you, Mr. Chairman, for yielding, and 
before I ask my question, I would ask unanimous consent that a 
letter from the city of Boulder be entered into the record. It 
expresses the city of Boulder's concerns about the incident and 
what they believe should be the path forward.
    Chairman Wu. So ordered.
    [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    

    Mr. Udall. Thank you, Mr. Chairman.
    I want to turn to both Dr. Miller and Dr. Turner and ask 
you is there anything in the NIST protocols, anything in NIST 
procedures that would prevent NIST from releasing a list of 
radioactive and hazardous material at the labs to the city of 
Boulder and the public in general?
    Dr. Miller or maybe someone else here would be better 
prepared to answer the question.
    Dr. Miller. From the NRC's perspective traditionally NRC's 
licenses have all been public except for aspects which are 
security matters. Following the events of 9/11, we had to take 
a look at what information would be public and what would not 
be. And to some degree as a result of all that we have not 
publicized those amounts.
    However, that said, we certainly at every turn, the NRC has 
always cooperated with State and local government officials to 
make sure that they are fully informed and have access to that 
information. Colorado itself is an NRC-agreement state. Because 
this is a federal facility, we regulate it, but we have a 
relationship with our State partners in the State of Colorado. 
We certainly would be happy to share any information with them.
    But there is a certain amount of what we are now doing that 
is not made publicly available with regard to these types of 
licenses. And, again, it goes back to national security 
matters, Congressman.
    Mr. Udall. What I hear you saying if there isn't a national 
security concern, and that is important, we all----
    Dr. Miller. Uh-huh.
    Mr. Udall.--acknowledge, then there is nothing that would 
prevent NIST from releasing the list of these radioactive and 
hazardous materials? Depending on the state, depending where 
the activity is occurring.
    Dr. Miller. Yes. I mean, they certainly, certainly the 
local officials should have access to that information. Okay. 
Because of a number of reasons, including their duties as it 
would relate to emergency response.
    Mr. Udall. Uh-huh. Dr. Turner, you care to respond?
    Dr. Turner. Yes, sir. I became aware of the letter this 
morning, and I asked one of my staff in Boulder to see if they 
could arrange a meeting between me and some of the city 
officials so that we could discuss the content of that letter 
and what an appropriate response would be. And also, you know, 
we have had so many missteps because of lapses in 
communication, and I really wanted to make sure that this was 
not another situation where we had a misstep because of a lapse 
of communication. That is why I wanted to meet directly with 
city officials to make sure we had an agreement on exactly what 
was being requested and what an appropriate response would be.
    Mr. Udall. So what I hear you saying is you would be 
willing to consider their request. You want to sit down and 
talk with them. You want to complete your analysis, the various 
reviews that are underway, and I would, and you will consider 
that.
    What I would add is we certainly have a tradition in the 
world of public policy and public information, everything from 
FOIA to other protocols of letting the public know as much as 
we possibly can about materials that could affect the safety or 
welfare or health of the public. And I think in the long run we 
all agree this is, it is better to err on that side than----
    Dr. Turner. Yes, sir.
    Mr. Udall.--to keep these materials hidden from view or 
lessen the awareness that communities may have of those 
materials.
    Dr. Turner. Yes, sir. We want to be a good, responsible 
neighbor to the community that has been so good to us.
    Mr. Udall. Yeah. Well, let me, I want to thank the Chairman 
again for holding the hearing. Let me just end on this note.
    This is a very serious incident. As I have said here today, 
I am very disappointed in the way it has been handled.
    Dr. Turner. Yes, sir.
    Mr. Udall. And I have assurances from you that you are 
going to move with dispatch, that you are going to be----
    Dr. Turner. Yes, sir.
    Mr. Udall.--open and that we are going to find out what 
happened and then we are going to put protocols in place and 
even take a look at the culture in this because----
    Dr. Turner. Yes, sir.
    Mr. Udall.--that may be a part of what has to change, and 
NRC personnel who hear are very well versed in that. But I did 
want to also emphasize the very important work that NIST does, 
how proud we are to have you in our community, how proud we are 
to have so many, all of the scientists and the engineers and 
the great personnel there. And to underline the work you do in 
a whole host of areas that make modern life what it is and the 
important work that was being done in this situation, which is 
to better understand how to prevent proliferation of nuclear 
materials, nuclear weaponry. And we want that work to go ahead. 
We want to understand how we can even be better at analyzing 
and identifying people who are comporting with international 
standards and those who aren't. So that is why it is so 
important to get this figured out and get back on track, 
because that work has to continue.
    Dr. Turner. Yes, sir. Absolutely, and let me just say that 
this has shaken NIST to its core. As you are aware, our 
employees are fiercely proud, as am I, of being NIST employees, 
and this has shaken all of us. I have been personally very 
heartened by the response of our Laboratory Directors. Also I 
met yesterday with the group that represents the researchers as 
well as NIST fellows, and I really, I outlined to them the 
importance of what we are doing and, you know, that we needed 
their help. And I was really heartened by their response, that 
they are taking this seriously and that they are committed, as 
am I, to fixing this.
    Mr. Udall. Thank you, Mr. Chairman, for holding this 
important hearing.
    Chairman Wu. I thank the gentleman from Colorado.
    Mr. Smith.
    Mr. Smith. Yeah. I was just wondering if it would be 
possible for the minority to review the letter. I don't 
necessarily want to object, but if it would be possible for the 
minority to review the letter and then allow for the consent at 
a later time.
    Chairman Wu. Is the gentleman referring to the letter from 
the city of Boulder?
    Mr. Smith. The city of Boulder. Yes.
    Chairman Wu. I would be happy to make the letter available 
to the gentleman, but I believe that without a timely objection 
it is entered in the record. But if you, if the gentleman has 
any concerns about the letter, please enter that into the 
record also.
    Mr. Smith. Well, this is just the first I have seen it, and 
I would like, you know, to review it a little further.
    Chairman Wu. I would be delighted to make the letter 
available to the gentleman.
    Mr. Smith. Okay. Thank you.
    Chairman Wu. I thank the gentleman, and the Chair 
recognizes himself one last time.
    Dr. Turner, you referred to an e-mail notice to you, which 
I believe came in on a Monday night, and then you did not see 
that e-mail until Tuesday morning. E-mail has terrific utility 
in permitting us to time shift our communication, but there is 
some things which I think we all agree, can rise above that and 
need immediate attention. And you have referred to fixing these 
communication systems within NIST.
    Dr. Turner. Yes, sir.
    Chairman Wu. And I am going to ask you just very briefly 
that I assume that this form of e-mail communication for 
exigent circumstances has been replaced by something which for 
all of us in these jobs can reach us 7 by 24.
    Dr. Turner. Yes, sir. That is why there is one number for 
people to remember to call, and that is it.
    Chairman Wu. And that number ultimately winds up at an 
appropriate place in the chains of notification and command?
    Dr. Turner. Yes. It goes directly to our Emergency Services 
Office and then they, in turn, relay the call to, whether it is 
me or whatever the appropriate official is, but there is one, 
the important thing is there is one number to call and then 
they will do the rest to contact us.
    Chairman Wu. Well, this committee, this subcommittee, the 
Full Committee, and the Committee staff will continue to work 
with NIST to make sure that these, that the information is 
reported appropriately, both within NIST, to other agencies, 
and to oversight bodies such as this one.
    Dr. Turner. Yes, sir.
    Chairman Wu. I want to turn back to the laser incident in 
Gaithersburg, and what is troubling to me about the laser 
incident is that I did not know about the laser incident, and 
it appears that no one in an oversight position was aware of 
the laser incident until this plutonium incident came to light.
    Did NIST take any steps to notify its own employees or 
Congress or anyone else about the Gaithersburg laser incident?
    Dr. Turner. Yes, sir. Let me describe the process that we 
have done. One of the things that I did after I became the 
Acting Director was to institute a standing policy at our NIST 
leadership meetings where we begin each meeting with a five-
minute safety topic. Each one of our leaders has to report on 
something, so, again, it is to infuse in them the idea that 
they are responsible, as a line manager for safety. We also, 
for accidents which occur, we also have the Lab Director who 
was involved----
    Chairman Wu. Dr. Turner, I am asking specifically about the 
laser incident in Gaithersburg.
    Dr. Turner. Yes, sir. And the Lab Director who was involved 
gave a presentation to our leadership board because there are 
lasers used throughout NIST, and so that way we are able to 
make sure information is exchanged and also were changes made, 
for example, in the set up at our facility that we shared with 
the University of Colorado, because they had a very similar set 
up. And so that information, lessons learned and information 
sharing resulted in precautions being taken at other 
laboratories as a result of hearing about and learning about 
the causes and the actions taken in the laser----
    Chairman Wu. You are saying that that did occur with 
respect to the Gaithersburg laser incident. It is just that it 
did not rise to the level that there would be any notification 
of this committee or Committee staff?
    Dr. Turner. Yes, sir. If we had a misstep in informing this 
committee, I apologize for that, sir.
    Chairman Wu. Now, these are different devices, but could 
that first incident have had lessons learned beyond laser uses 
that could have helped with the plutonium incident?
    Dr. Turner. Yes, sir. I think this is one of the things 
that we have done. Yeah. We are not looking at this situation 
as a Boulder only. We are looking across NIST because of this. 
We are not looking at this as a radiation safety issue only. We 
are looking at radiation safety, hazardous materials. We are 
also looking at equipment, we are also looking at machinery, 
things which pose risks. You know, we are including that in our 
comprehensive review of safety and safety policies.
    Chairman Wu. Going forward, and Dr. Turner, you have made 
many commitments today to start making changes appropriate in 
procedure and in the culture of safety at NIST. What are your 
expectations about the timeline? What are your expectations 
about appointing appropriate panels in addition to the folks 
that you have already appointed to look into this incident?
    Dr. Turner. Well, first of all, I have made clear to 
everyone that this is a high priority for us. Our highest 
priority. I have also made it clear to everyone that this is 
not a short-term problem. This, you know, changing cultures is 
a long, difficult thing to do as Dr. Rogers referred to. So I 
have made that clear that this is something that we are going 
to be, you know, that is going to be on our radar screens for 
quite some time to come and that I am determined to fix it and 
make it right. And so, you know, people are aware of that. 
People understand the enormity of the challenge that we face 
and our determination to fix it, and I think our colleagues in 
this share that same determination that it get fixed.
    We wanted to make clear. This is not a temporary, fleeting 
issue. This is something that we need to engrain and have 
sustainable.
    Chairman Wu. Dr. Rogers, since you are the one outside 
representative group or Dr. Miller, if you would care to 
comment, to this point in time should we be feeling good about 
the steps that NIST has initially taken to change the safety 
culture, or should we have further concerns or some combination 
of each?
    Dr. Rogers. Well, with respect to NIST it seems to me 
everything I have heard has been very positive, very 
professional. It is going to take some time, and there are 
steps along the way. It does seem to me that Dr. Turner's 
explanation of how NIST is viewing this incident is exactly 
correct, that it is not just a small incident in one 
laboratory. It is a manifestation of an underlying problem that 
needs to be worked on.
    But there is not going to be a quick fix totally. We are 
talking here about a cultural issue. It is not just rules and 
regulations, and culture is something that is engrained in 
people. So that it is going to take some time to be absolutely 
confident, if ever one can be, that this cultural change has 
taken place. But it does seem to me that Dr. Turner's 
explanation of the approach that is being taken is entirely 
correct.
    Chairman Wu. Thank you, Dr. Rogers.
    Dr. Miller. Mr. Chairman, the NRC is very happy to hear Dr. 
Turner's remarks and commitments. However, we were very 
concerned about the nature of this event also. That is why we 
responded in the way that we do.
    As you know from our testimony we have currently suspended 
NIST's authority through the confirmatory action letter to use 
these materials, and we want to be convinced that they have 
these things in place and gain our trust before we are going to 
allow them to renew any use of that.
    But the statements that Dr. Turner has made today and his 
commitments are a beginning, convincing the NRC that NIST is 
serious about doing this. I can assure you that the NRC will 
stay on top of this until we feel comfortable and that they 
have our confidence to renew any use of these materials.
    Chairman Wu. Thank you very much. I want to touch on one 
final topic, because I think we are all agreed, and Dr. Turner, 
I am gratified to hear about the steps that you are taking and 
as we all agree, this is a long-term process of cultural change 
and building in, and educating for appropriate, prompt action.
    I want to as forcefully as I can state in my own quiet way 
that I would be deeply concerned about viewing this situation 
as one where picking out one or a couple of wrong actions and 
one or a couple of wrong actors and then taking punitive steps 
in that direction would be viewed as, ``solving the problem.''
    I think that that is something which would be demoralizing 
to an excellent agency. You might lose good people that way. 
The gentleman from Colorado, Mr. Udall, referred previously to 
employee morale issues. I think that inculcating a culture of 
learning from past mistakes and incorporating lessons learned 
into a changed culture is the hallmark of a good or great 
organization.
    I have certainly appreciated the work that NIST has done 
over many years. I am fond of saying that in economics or in 
science if you can't measure it, it's not real, and NIST helps 
us do that. NIST helps us standardize things, and without your 
good work we would be doing things in faith where we need to be 
doing things in technology or science. Nothing wrong with 
faith. It is just it doesn't necessary move blocks where we 
need to move blocks.
    So this committee, this subcommittee and the Full 
Committee, will continue to work with NIST, with the NRC, and 
with outside review panels for, I believe, a good while to 
come, to insure, Dr. Turner, that you and perhaps your 
successors to come over many years, continue to build a better 
culture of safety in addition to the intellectual and technical 
excellence that you all have clearly built at NIST.
    So as we bring this hearing to a close, I want to thank 
each of the witnesses and Dr. Collins for being here today and 
testifying before the Subcommittee. The record will remain open 
for additional statements from Members and for answers to any 
follow-up questions the Committee may ask, and there will be 
further questions from me and from other Members and from 
Committee staff for you all and the agencies that you all 
represent.
    And with that I thank you very much for being here on this 
very important and very difficult subject. This hearing is 
adjourned. Thank you.
    [Whereupon, at 12:35 p.m., the Subcommittee was adjourned.]
                               Appendix:

                              ----------                              


                   Answers to Post-Hearing Questions




                   Answers to Post-Hearing Questions
Responses by James M. Turner, Deputy Director, National Institute of 
        Standards and Technology, U.S. Department of Commerce

Questions submitted by Chairman David Wu

Q1.  How do you believe an atmosphere developed at NIST where, as you 
stated, ``line supervisors failed to take adequate responsibility for 
safety issues, and safety personnel failed to assert a sufficient level 
of authority to ensure compliance with existing procedures and 
practices''?

A1. Several factors contributed. First, there are many NIST line 
supervisors who take safety seriously. Obviously there are some who do 
not. Some saw it, correctly, as line management's responsibility to 
provide a safe workplace; others believed that it was the Safety 
Division's job to make everyone safe. The Safety Division had not 
always been paid attention to over the years and some in that division 
felt that management did not fully support them. There is some 
justification for this view. Thus they were not assertive in elevating 
concerns.

Q2.  In Dr. Rogers' testimony he stated that Room 1-2124, where the 
spill occurred, did not meet standards and requirements to qualify a 
lab space for use of radioactive materials. Did the management that 
assigned the lab space consider that this research group would be 
working with radioactive materials? When lab space is assigned at NIST, 
how is safety and the adequacy of the workspace considered?

A2. The lack of a rigorous safety culture provided the atmosphere in 
which neither line management nor safety officials took the necessary 
steps to ensure that all appropriate officials knew what approved 
materials were being used in laboratories, whether or not those 
laboratories were appropriate for the materials being used, and what 
training was or was not required and taken by the individuals handling 
the materials and working in the immediate area. If there had been a 
rigorous safety culture at NIST, then precautions to isolate the work, 
to ensure appropriate training and preparedness measures, to restrict 
traffic through and near the area, and to respond to the incident in a 
safe manner should have been in force.
    Once hazards are identified, steps should be taken to reduce the 
risk-before the work begins. These steps could include protective 
equipment, special handling instructions, access controls, work 
procedures, training of all workers, and procedures for emergency 
situations. Line Management, supported by the Safety Division, would 
then take actions to assure that the lab space, including access 
controls, was safe. Line Management is also expected to do 
``walkdowns'' (announced and unannounced) to assure that work is being 
done according to procedures and training and to question the workers 
on their jobs, use of protective equipment, and what they should do in 
an emergency. Line management last conducted a walkdown of Room 1-2124 
in January of 2008 with the Safety Office. Clearly, the reviews 
undertaken and communications between line management and the safety 
division staff were inadequate.

Q3.  Dr. Rogers suggested that performance reviews should hold managers 
accountable for promoting a safety culture within their purview. Since 
safety performance is already a required part of these reviews, how 
will the criteria be changed to make sure it is prioritized and that it 
provides factual and useful information? Please provide the current 
safety related criteria used in performance reviews.

A3. As it currently appears in many employee performance plans, safety 
is one of several activities under a broad critical element. The Chief 
Human Capital Officer has recently been charged with developing a 
separate, stand-alone critical element dealing with safety for all 
performance plans for the 2009 rating year, which begins October 1, 
2008. The new safety critical element will provide incentive and state 
expectations for NIST staff to work safely, raise safety issues and 
concerns promptly, and take appropriate actions to resolve unsafe 
conditions or practices. The safety critical element will also provide 
a basis for holding line managers and employees accountable for 
increased safety awareness and performance through results-based 
measures and outcomes that permit element ratings of exceeds 
expectations, fully successful, minimally meets expectations, or 
unsatisfactory.
    The current safety related criteria vary by position and 
organization. The table, below, contains typical criteria used in 
performance reviews of NIST researchers.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


Q4.  Please provide the Committee with a full account of the laser 
safety incident that occurred in Gaithersburg, as well as a description 
any follow-up activities performed regarding the incident's 
implications for health and safety at NIST.

A4. Laser Incident Overview

          On March 5, 2008, there was an injury to the right 
        eye of a NIST research associate in the Atomic Physics Division 
        of NIST's Physics Laboratory. There were two NIST associates 
        involved in the incident. A third researcher was present in the 
        lab but in another area behind a curtain.

          The injury was caused by a lack of communication 
        between the researchers present that resulted in the 
        associate's exposure to a laser. The second associate was not 
        experienced with the hands on procedures of this experiment and 
        was assisting. Normally, the injured associate performed the 
        entire procedure alone. At an undetermined point the laser was 
        left on when it should have been off. The injured research 
        associate was placing a slide onto a microscope stage and 
        putting a drop of immersion oil onto the objective lens. This 
        NIST associate believed the laser to be off and therefore 
        inadvertently exposed the right eye to the laser without 
        protective eyewear.

          The incident occurred during the conduct of a joint 
        project between the Chemical Science and Technology Laboratory 
        and the Physics Laboratory. The goal of the project is to study 
        certain aspects of mitochondria, which are membrane enclosed 
        organelles found in the cells of most complex life forms. The 
        DNA of mitochondria is distinct from the DNA in the cell 
        nucleus and is inherited exclusively from the mother, which 
        means it can be used to trace maternal lineage far back in 
        time. Optical tweezers are used to isolate individual 
        mitochondria in order to quantify the variation of the genetic 
        information among mitochondria from a single cell.

Remedial Actions Taken in Response to Report on Laser Incident 
        Investigation

          A detailed hazard and mitigation analysis of all of 
        the optical instruments (microscopes) that use Class 3B and 
        Class 4 lasers has been conducted. Revised standard operating 
        procedures have been developed, and, where possible, 
        engineering controls to eliminate the risk of exposure have 
        been implemented.

                --  Each laser system has been inspected to ensure that 
                it is in proper working condition, that laser power 
                levels are as indicated on the devices, and that the 
                laser emission on/off switches are working properly.

                --  A laser curtain has been installed to separate the 
                wet chemistry side of the laboratory from the optical 
                instrumentation side. This separation eliminates the 
                risk of laser exposure to any researcher on the wet 
                chemistry side of the laboratory, and also prevents any 
                researcher from inadvertently walking from the wet 
                chemistry area to the laser area without proper laser-
                safety eyewear.

          Under the recently adopted Health and Safety 
        Instruction for Laser Safety, NIST is working to ensure that 
        all optical instruments that use Class 3B and Class 4 lasers 
        have their own warning light indicating that the lasers are on.

                --  The signs will be prominently displayed so that 
                they can be seen by any operator of a particular 
                instrument during normal use of that instrument.

                --  Standardized signage and warning lights will be 
                prominently displayed to prevent entry into the laser 
                side without proper safety eyewear.

          Interlocks have been installed on all optical 
        instruments where the condenser can be tilted back allowing 
        line-of-sight access to the objective lens. The interlocks 
        shutters or blocks the laser beam when the condenser is tilted 
        back.

          Laser safety inspections have been--and will be 
        routinely--performed by the Group Laser Safety Representative 
        to ensure that necessary laser safety measures and standard 
        operating procedures are in place.

                --  A laser safety inspection will be performed by the 
                Group Laser Safety Representative prior to any new 
                system being put into operation.

                --  A laser safety inspection was made during the 3rd 
                week of April, 2008--and will be made annually--by the 
                Division Laser Safety Representative.

                --  Occasional inspections by the Laser Safety Officer 
                of the Safety, Health, and Environment Division are 
                being scheduled.

Q5a.  When will the Department of Commerce (DOC) appoint the Blue 
Ribbon Panel to perform a review and analysis of environmental, health 
and safety procedures and practices at the NIST labs?

Q5b.  When will they begin their work and how long is the assessment 
expected to take?

A5a,b. The Department of Commerce is working to establish the NIST Blue 
Ribbon Commission on Management and Safety and have it complete its 
work as expeditiously as possible. Attached is a Federal Register 
Notice of the establishment of the Commission.

Q5c.  Also, when will the DOC's Inspector General issue its report on 
NIST management, training, safety and response operations?

A5c. The DOC OIG has requested that inquires regarding their report be 
made to Mr. Dan Bechtel, the Assistant Regional Inspector General for 
the Denver Region, 303-312-7660 or John Bunting, Regional Inspector 
General for the Denver Region, at 303-312-7663.

Q6a.  Prior to the June 9th incident, to whom did the Safety, Health, 
and Environment Division (SHED) report at NIST's Gaithersburg and 
Boulder Facilities?

A6a. SHED reported to the Chief Human Capital Officer.

Q6b.  What have the operating budgets been for SHED and the Boulder 
Safety Office for fiscal year 2004 through fiscal year 2008?

A6b. SHED and the Boulder Safety Office operating budgets for fiscal 
year 2004 through fiscal year 2008 are reflected in the table below:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


Q6c.  How have budgets cuts impacted the number of staff employed by 
these offices?

A6c. The number of staff has remained fairly constant as laboratory 
programs grew, resulting in more work for the staff on hand. However, 
NIST has decided to immediately add seven specialists to work under 
contract for the next six months to supplement NIST's own safety and 
health staff.

Q7.  Committee staff learned that the initial medical tests done on the 
affected personnel to determine if they had received internal exposure 
to plutonium were either incorrectly performed or performed too late to 
give useful results.

Q7a.  Who was initially responsible for ensuring the medical safety of 
these individuals?

A7a. It is always line management's responsibility to ensure medical 
safety.

Q7b.  When were radiation health experts contacted?

A7b. At 16:43 a call came into the Office of Safety, Health and 
Environment. At 17:15 the NIST Boulder Radiation Safety Officer, who 
was on annual leave, responded to a message left on his cell phone and 
arrived on campus at 18:00 to provide additional support. The 
Gaithersburg Radiation Health Physicist arrived in Boulder on 
Wednesday, June 12th.

Questions submitted by Representative Phil Gingrey

Q1.  On pages 9 and 10 of your testimony, you list five different 
safety principles that you expect NIST personnel to embrace. These 
include the need for effective safety oversight, requirements that 
safety staff immediately stop questionable work, and that individuals 
are responsible for their own safe behavior. Dr. Turner, can you 
explain to the Committee who you would consider as ``safety staff''? 
Does this include all line management or only those with specific 
safety functions? Where does the responsibility of individual 
researchers and that of ``safety staff'' begin?

A1. Safety staff would include all staff within the Safety, Health, and 
Environment Division (SHED). Their role is to develop NIST-wide safety 
policy and identify the means by which Line Management can show it is 
complying with the policy. SHED also conducts annual site inspections 
as required by 29 CFR 1960 and provides technical assistance and 
support to Line Management in order to anticipate, recognize, evaluate, 
and control hazards in their work areas. Line Management has the 
primary responsibility for safety of work within their facilities.

Q2a.  What functions are performed at the two NIST labs by the Safety, 
Health, and Environment Division?

A2a. Functions performed: Occupational Safety and Health, Radiation 
Safety, Environmental Management, Employee Assistance Program, Fire 
Safety, Continuity of Operations Planning, Safety Engineering and 
Industrial Hygiene.

Q2b.  What is the annual budget for this division, and how many staff 
do they have?

A2b. The annual budget for the Safety, Health, and Environment Division 
in fiscal year 2008 is $5,041.7K and current staffing consists of 23.5 
FTEs, of which there are currently three vacancies.

Q2c.  Do you believe that this division has had the resources during 
the past two years to effectively complete their responsibilities?

A2c. No. SHED has recently assessed its staffing and has submitted a 
prioritized list of additional resources it needs. It is currently 
under consideration by NIST.

Q2d.  Do you believe it is appropriate for this division to be held 
responsible for the safe design and execution of laboratory 
experiments?

A2d. While SHED assists with safety design on individual experiments, 
the line management in the individual labs is responsible for the 
proper design and execution of experiments.

Questions submitted by Representative Mark Udall

Q1.  Please provide the Committee with copies of all of the e-mails 
between Boulder and Gaithersburg relating to how and when employees and 
city, county and State officials would be notified of the incident.

A1. NIST is in the process of complying with this request.

Q2.  Please provide the number of current full-time-equivalent 
employees in NIST-Boulder's Safety Office. To whom does the Boulder 
Safety Office report?

A2. Five employees are in the NIST Boulder Safety Office. The NIST 
Boulder Safety Office reports to the Safety, Health, and Environment 
Division which is headquartered in Gaithersburg, MD.

Q3.  Please provide a list of all radioactive and hazardous materials 
used at the NIST-Boulder facility.

A3. Lists provided to the Committee; deemed too lengthy to print.
                   Answers to Post-Hearing Questions
Responses by Charles L. Miller, Director, Office of Federal and State 
        Materials and Environmental Management Programs, U.S. Nuclear 
        Regulatory Commission; accompanied by Elmo E. Collins, Regional 
        Administrator, Region IV Office, U.S. Nuclear Regulatory 
        Commission

Questions submitted by Chairman David Wu

Q1.  It was noted by several witnesses that no one at NIST seemed to 
appreciate the difference between a sealed source and an encapsulated 
source, which, as Dr. Rogers noted, is not a technical term.

Q1a.  Was the failure to pursue precise information regarding the 
source consistent with the lax manner in which NIST handled these 
materials?

A1a. NIST did not procure the plutonium source in question until 
approximately six months after the U.S. Nuclear Regulatory Commission 
(NRC) approved NIST's license amendment request to use and possess 
special nuclear material of less than a critical mass, including 
plutonium in any solid, encapsulated form. The NRC is still reviewing 
the circumstances associated with NIST's procurement of the plutonium 
sources, including NIST's efforts to verify that the model numbers 137 
and 138 plutonium sources met the conditions of its license. However, 
the NRC preliminarily has determined that NIST personnel did not apply 
the appropriate controls to which NIST committed in its license 
amendment request and which are recommended by the source supplier 
(U.S. Department of Energy New Brunswick Laboratory). Specifically, the 
source supplier asked NIST whether or not the plutonium sources would 
be removed from the outer cardboard tubes in order to conduct the 
subject research. New Brunswick Laboratory staff understood that the 
sources would not be removed from the outer cardboard tubes. The 
supplier cautioned NIST in an e-mail message that if the plutonium 
sources were removed, then the plutonium reference material sealed in 
plastic bags should be considered contaminated and should only be 
handled in a glove box. Similar written information was provided to 
NIST in the form of a material safety data sheet. The NIST-Boulder 
staff did not develop specific handling procedures for the plutonium 
sources, contrary to its commitment to the NRC. At some point after 
obtaining the plutonium sources in October 2007, one or more members of 
the NIST-Boulder staff removed the sources from the outer cardboard 
tubes. On June 6, 2008, NIST researchers removed the two plastic bags 
that contained the plutonium source in question. A glove box was not 
used, nor was a handling procedure or instruction provided for this 
activity.

Q1b.  How do you think this lack of distinction between sealed and 
encapsulated contributed to this accident? Does the definition of the 
term ``encapsulated'' need to be clarified?

A1b. The term ``sealed source'' is defined in 10 CFR Part 30.4, 
Definitions, as ``any byproduct material that is encased in a capsule 
designed to prevent leakage or escape of the byproduct material.'' The 
definition requires the capsule to be designed to prevent contact with 
and dispersion of the radioactive material under the conditions of use 
for which it was designed. The term ``encapsulated'' is not defined in 
the regulations. However, NRC maintains a database, NUREG/CR 5569 
Health Physics Positions (HPPOS), of NRC staff positions on a wide 
range of topics involving radiation protection, including encapsulated 
sources. HPPOS-311 states that certain low energy and low activity 
calibration and reference sources have been confined by using glass 
vials for numerous years. The staff concluded that glass ampoules, 
flame sealed to prevent leakage or escape of its contents, can be 
considered ``sealed sources'' as long as the radionuclide content is 
small and the impact on decommissioning of the facility, if one or a 
few were to fail, is minor. While the NIST event is still under review, 
the NRC's preliminary finding is that the plutonium sources in question 
were unsealed material. This preliminary finding is made based on the 
following: (1) the plutonium material was in a screw top micro-bottle 
specifically designed to allow the material to be readily accessible 
(e.g., poured out of the bottle); and (2) the material content was in a 
configuration such that breakage of the micro-bottle could reasonably 
be assumed to cause more than minor impact on decommissioning of a 
facility. Consistent with our practices in reviewing the circumstances 
surrounding an event or incident, the NRC plans to conduct a review of 
agency guidance relative to this incident to determine whether 
enhancements or clarifications are needed.

Q2.  The NRC learned of the release at NIST-Boulder on Tuesday, June 
10th, and sent inspectors to Boulder on Thursday, June 12th.

Q2a.  What guidelines and requirements does the NRC follow to determine 
when to dispatch inspectors?

A2a. NRC has guidance documents that address the course of action to be 
taken in response to radioactive material incidents. The pertinent 
documents for the plutonium contamination event at NIST-Boulder are 
Management Directive 8.3, ``NRC Incident Investigation Program,'' and 
NRC Inspection Manual Chapter 1301, ``Response to Radioactive Material 
Incidents That Do Not Require Activation of the NRC Incident Response 
Plan.'' Section 06.03 of Manual Chapter 1301 directs regional 
management to evaluate the need to dispatch one or more regional 
inspectors to conduct a special inspection of an incident site. Section 
06.03.c.1. further defines ``immediate dispatch'' to be typically 
within two days of a reported event. In this case, the NIST-Boulder 
licensee discussed the circumstances with Region IV personnel and, at 
the urging of the NRC staff, reported the event to NRC Headquarters 
Operations Center late Tuesday afternoon, June 10, 2008. No on-going, 
immediate safety issues were described on this call with the Operations 
Center. Specifically, the licensee reported that the laboratory was 
isolated, contaminated and potentially contaminated personnel had been 
decontaminated, bioassay on these individuals was initiated, and there 
was no indication that contamination had spread beyond the laboratory 
building. Region IV management reviewed the event information and 
decided to dispatch an inspector to gain first hand knowledge of the 
event and to observe the licensee's response activities.
    Regional management briefed the inspector on Wednesday, June 11. He 
arrived on-site at NIST-Boulder the morning of Thursday, June 12. A 
second inspector was dispatched the following week on June 19. After 
reviewing the preliminary observations stemming from these two 
inspection follow-up activities, in combination with additional 
information obtained from NIST through telephonic briefings, the NRC 
expanded its inspection follow-up to a five-person team, which was 
dispatched to the site on June 29. This is consistent with Management 
Directive 8.3 for operational events of this level of significance.

Q2b.  When NIST first informed the NRC, did they appreciate the 
magnitude of the incident? Was the description of the event presented 
to the NRC accurate?

A2b. NIST first notified a Region IV materials license reviewer of the 
event, which was immediately referred to regional management. NIST 
described the event details that were known at the time, and indicated 
that they were not certain whether the event was reportable. Regional 
management advised NIST to immediately report the event to NRC 
Headquarters Operations Center, which NIST did at 3:11 p.m. EDT on June 
10, 2008.
    The information provided in the initial notification to Region IV 
management and the NRC Headquarters Operations Center was limited. 
However, that information was generally consistent with our preliminary 
observations during the initial on-site inspection. NIST provided 
additional details of the event (e.g., that the associate researcher 
washed his hands in the laboratory sink prior to notifying the 
principal investigator that the source bottle was cracked) to Region IV 
staff as information evolved during the progression of the licensee's 
investigation.
    Although their findings are preliminary, the NRC's special 
inspection team has identified a number of elements required by the 
NIST's license for the possession and use of special nuclear material 
of less than a critical mass that were, in some cases, never developed 
or implemented, or were not adequately implemented. Examples include: 
insufficient training of occupational workers and laboratory 
frequenters; procedures that were never developed or fully implemented; 
security measures that were not implemented; safety modifications that 
were not made to the laboratory where the plutonium sources were stored 
and used; required audits of the radiation safety program that were not 
conducted; not assigning a radiation monitoring device to personnel who 
should have had one; personnel not wearing an assigned radiation 
monitoring device; and inadequate emergency procedures. Additionally, 
the scope of the licensee's efforts to bound the number of people that 
were potentially contaminated and the extent of the spread of 
contamination was insufficient. While the NRC agrees with the findings 
and conclusions of the licensee's Ionizing Radiation Safety Committee 
Initial Report of Plutonium Contamination at NIST-Boulder, other causes 
and contributors of these apparent performance deficiencies are the 
subject of NRC's ongoing special inspection.

Questions submitted by Representative Phil Gingrey

Q1.  Your testimony describes a range of enforcement actions that are 
available to the NRC that apply to a federal laboratory like NIST-
Boulder, including civil penalties.

Q1a.  Can you elaborate on what enforcement tools the NRC has at its 
disposal?

A1a. The NRC's enforcement authority is contained in the Atomic Energy 
Act of 1954, as amended, and the Energy Reorganization Act of 1974, as 
amended. These statutes provide the NRC with broad authority. The 
Agency implements its enforcement authority through Subpart B of 10 CFR 
Part 2 and as reflected in the NRC Enforcement Policy. The NRC 
Enforcement Policy sets out the general principles governing NRC's 
enforcement program and provides a process for implementing the 
agency's enforcement authority in response to violations of NRC 
requirements. The Enforcement Policy applies to all NRC licensees, to 
various categories of non-licensees, and to individual employees of 
licensed and non-licensed firms involved in NRC-regulated activities.
    Because violations occur in a variety of activities and have 
varying levels of significance, the NRC Enforcement Policy contains 
graduated sanctions. Enforcement authority includes the use of Notices 
of Violation (NOVs), civil penalties (current statutory maximum of 
$130,000 per violation per day), Demands for Information (DFIs), and 
Orders to modify, suspend, or revoke a license, Enforcement actions 
against individuals include NOVs and Orders prohibiting the individual 
from participating in NRC licensed activities. The NRC typically does 
not issue civil penalties to individuals. Discretion may be exercised 
in determining the appropriate final enforcement sanction to be taken.
    Based on their safety and regulatory significance, violations are 
categorized into one of four severity levels, with Severity Level I 
being the most significant and Severity Level IV being the least 
significant. Severity Level IV violations are considered very low 
significance in nature and are not considered for escalated 
enforcement. Severity Level I, II, and III violations are considered 
for escalated enforcement and a civil penalty will be considered as 
part of the final sanction. For violations at academic or research 
facilities similar to NIST, a base civil penalty, currently $6500, is 
considered when escalated enforcement action is taken. If a violation 
is considered particularly egregious, an Order modifying, suspending, 
or revoking a license may be issued. In determining the proper sanction 
and severity level, the NRC will consider factors such as (1) was the 
violation a result of a willful act by the licensee or an employee/
contractor of the licensee, (2) was the violation committed by an 
official of the licensee, and (3) is it necessary to increase any civil 
penalty to deter further recurrence of a serious violation.

Q1b.  Can you fine a federal agency or individuals involved in a 
mishap?

A1b. The NRC typically does not issue civil penalties to individuals. 
However, discretion may be exercised in determining the appropriate 
final enforcement sanction to be taken. The NRC has taken escalated 
enforcement actions that included civil penalties against federal 
facilities and research laboratories in the past.

Q1c.  In the past, what type of actions has the NRC taken to respond to 
research mishaps involving small amounts of regulated material?

A1c. Three examples of escalated enforcement taken against licensees 
involving events similar to the event which occurred at NIST are 
summarized below:

          In 1996, the Department of Health and Human Services, 
        National Institute of Health (NIH) was issued a Severity Level 
        III NOV and a $2,500 Civil Penalty for failure to secure from 
        unauthorized removal or limit access to licensed materials that 
        were stored in unrestricted areas. In this case, an increase to 
        the base civil penalty for a Severity Level III violation was 
        not warranted because the licensee took effective corrective 
        action to prevent recurrence of the violation.

          In 2000, Oklahoma State University was issued a 
        Severity Level III NOV without a civil penalty because the 
        licensee willfully used radioactive material in an unauthorized 
        location within the facility and the person using the material 
        was neither properly trained nor authorized to use the 
        material. Although the violation resulted in contamination of 
        areas not authorized for use of the licensed material, no 
        individual exposures greater than regulatory limits occurred. 
        Due to the low safety significance of the incident, this 
        violation would normally have been categorized as Severity 
        Level IV. However, since there was willfulness associated with 
        the violation, in accordance with the enforcement policy, it 
        was categorized as Severity Level III. Although the application 
        of the civil penalty assessment process would have typically 
        resulted in a civil penalty being proposed, the NRC decided to 
        exercise discretion and not assess a civil penalty based on the 
        licensee's effective corrective actions and the fact that the 
        violation involved the use of small amounts of tritium 
        representing a low risk to the health and safety of workers.

          In 2001, a Severity Level I Notice of Violation and 
        an $11,000 civil penalty was issued to Southeast Missouri State 
        University for an event which resulted in a radiation dose to 
        the bone of a contract employee greater than the regulatory 
        limit of 50 rem. In accordance with the Enforcement Policy, 
        this overexposure was categorized as a Severity Level I 
        violation and discretion was used to increase the base civil 
        penalty for a Severity Level I violation by 100 percent because 
        of the particularly poor performance by the licensee.

Q2.  How would you characterize the NRC's role and responsibility in 
oversight of small laboratory research, as compared with facilities 
with nuclear reactors? Does the NRC provide guidance for structuring 
safety regimes in research environments? How do you foster a safe 
operating regime in a complex and dynamic setting where prescriptive 
rules may be insufficient or counterproductive to the underlying 
research?

A2. The NRC regulates all facilities within its jurisdiction based on 
the requirements within Title 10 of the Code of Federal Regulations 
(CFR). Small laboratory research facilities are very different from 
nuclear reactors and are licensed under a different part of these 
regulations. Small laboratory research facilities use small quantities 
of radioactive materials and the magnitude of risk is significantly 
lower than for nuclear reactors. All NRC licensees are required to have 
adequate equipment and facilities to protect the public health and 
safety, and the environment. Additionally, licensees must be qualified 
by training and experience to use the material for the purpose 
requested.
    It is the responsibility of the licensee to foster a safe working 
environment. NRC regulations establish minimum radiation safety 
requirements that are generally performance-based. Licensees have 
flexibility in how to meet these regulations in developing their 
programs and accomplishing their own specific activities. However, NRC 
does provide guidance for applicants and licensees to use in developing 
their radiation safety programs. This guidance is found in the multi-
volume technical guidance document series entitled, ``NUREG-1556: 
Consolidated Guidance About Materials Licenses.'' Each volume in this 
series is tailored to the radiation safety requirements for that type 
of program and use of radioactive material. The guidance provides 
information on all aspects necessary for the safe use of radioactive 
material. For example, NRC's guidance includes information on topics 
such as training, facilities and equipment, radiation safety program, 
safe use of radioactive material, and emergency response. NRC 
radioactive materials licensees are inspected by the agency on a 
routine basis. The frequency of inspections is commensurate with the 
risk to public health and safety posed by radioactive material that 
licensees possess. NRC inspectors review a licensee's program against 
its license, requirements in the regulations, and sound radiation 
safety practices.
                   Answers to Post-Hearing Questions
Responses by Kenneth C. Rogers, Former Commissioner, U.S. Nuclear 
        Regulatory Commission

Questions submitted by Representative Phil Gingrey

Q1.  On pages 9 and 10 of Dr. Turner's testimony, he lists five 
different safety principles that he expects NIST personnel to embrace. 
These include the need for effective safety oversight, requirements 
that safety staff immediately stop questionable work, and, that 
individuals are responsible for their own safe behavior. Dr. Rogers, 
would you describe these principles as a sufficient starting point for 
designing an effective safety program? In your opinion, what are the 
strengths and weaknesses of these policies?

A1. The safety principles that Dr. Turner has listed are all good 
starting points. He particularly emphasized training and specific steps 
that the Safety Staff and Management must follow to build a safety 
culture. He committed to a review of the training requirements that 
will be imposed on new or transferred appointees. He stated that NIST 
is reviewing the time period during which they could work before having 
undergoing laboratory specific safety training, and also the 
development by each laboratory/shop of a safety checklist. The current 
thirty-day period that new employees can work without appropriate 
training is too long in my opinion. These training requirements must 
also apply to visiting researchers who are not NIST employees but are 
afforded freedom to take scientific initiatives at the laboratories.
    One important step that Dr. Turner has taken immediately is to move 
the NIST Safety, Health, and Environment Division so that it now 
reports directly to the NIST Deputy Director. This should elevate the 
status of that Division and give it more authority. I hope that it will 
be a permanent change.
    The organizational structure, which treats NIST-Boulder as if it 
were an integral part of NIST-Gaithersburg with the Boulder Laboratory 
Director having no overall line management authority, may have some 
useful features, but I failed to appreciate what they might be. The 
Director title appears to be largely a ceremonial one. This arrangement 
creates an unnecessary degree of uncertainty particularly in an 
emergency situation. I would recommend that serious consideration be 
given to reviewing and possibly revising the role of the Boulder 
Laboratory Director.
    In short, I believe that Dr. Turner has put in place an action 
program that has the potential for creating a strong safety culture at 
all of NIST, and I see no significant weaknesses. However, its success 
will take time and continuity of leadership committed to emphasizing 
safety in all of NIST's activities will be very important. I understand 
that in the past changes in the NIST Director's office have sometimes 
resulted in a loss of momentum in strengthening the Institute's safety 
commitments. That should not happen again.

Q2.  How would you characterize the effectiveness and applicability of 
NRC's license requirements for small, research-oriented licensees?

A2. In general, NRC's extensive radioactive source material license 
requirements are applicable and have been effective in protecting the 
health and safety of the public and the users of the materials. 
However, there are very many types of uses (approximately two million 
devices use NRC licensed radioactive sources in the U.S.). The 
licensing and oversight of these devices is carried out through NRC 
Regional Offices not the Washington Headquarters. The Regional staff 
required to perform the necessary oversight would be hard pressed to 
inspect and follow up inspections at every single licensee unless a 
strict priority system for these activities is established and 
maintained, and unless licensees conscientiously obey the requirements 
of their licenses. NRC has established such a priority system that 
takes account of the potential as well as actual hazards posed by the 
application of the radioactive material covered by the license. 
However, judgment decisions have to be made in applying the priority 
system and unless the NRC staff involved are well informed as to the 
licensees intentions and capabilities, NRC may not be aware of the need 
to reschedule an on site inspection or to explore more deeply the 
written or verbal information submitted to them relative to the 
license. I believe that lack of timely and complete information at NRC 
was one of the problems that led to the Boulder incident.

Q2a.  Do the requirements and guidelines provided by the NRC 
realistically apply to a dynamic and innovative research setting?

A2a. I believe that they do and can be met without seriously hindering 
the quality of the work and the enthusiasm of the researchers, provided 
a culture of the importance of safety is established and valued 
throughout the organization. However, NRC should take the Boulder 
incident as an indicator that its guidelines should be reviewed for 
precision and clarity. For example, there is too much imprecision in 
the definition of encapsulated sources. Some individuals regarded 
encapsulated as identical to sealed. This led to a false sense of 
safety and was a contributor to the incident.

Q2b.  How would you characterize the NRC's role and responsibility in 
oversight of small laboratory research, as compared with facilities 
with nuclear reactors?

A2b. In my opinion there are really three not two situations that 
should be identified as different: [1.] Small Scale Research, Medical 
and Commercial applications; [2.] Research and Test reactors and [3.] 
Power reactors. The first and the third categories are the most 
difficult regulatory challenges for NRC. The first because of the huge 
number and diversity of licensees and the third because of the large 
amount of nuclear material on site and the vital importance of 
excellent well maintained and highly competent licensee staffs. Close 
(essentially daily) regulatory attention must be maintained. I believe 
that NRC has performed well in discharging its responsibilities in 
situations [1.] and [3.] but needs to continue processes of self-
examination to ensure that its performance is sustained in both of 
these. Situation [2.], Research and Test Reactors, poses a different 
set of challenges to NRC for it is there that an overly heavy 
regulatory hand can be seriously counter productive and stifling. NIST 
has laboratories falling into Situation [1.] at Boulder, and Situations 
[1.] and [2.] at Gaithersburg Center for Neutron Research. While 
imposing licensing requirements appropriate to Situation [1.] across 
the board on Gaithersburg poses no problem, simply carrying over 
without modification, requirements appropriate to Situation [3.] could 
negatively impact the research conducted at the Gaithersburg Center for 
Neutron Research without any appreciable improvement in public health 
and safety.

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