My name is Dan Guttman, My work address is 1155 15^th Street, N.W., Suite 410; telephone no. 202-638-6050; email: dguttman@ari.net. Thank you for the opportunity to appear before you today. I appear on my own behalf as a citizen, but draw from experiences I have been privileged to have shared in matters related to the panel’s charge.

This Committee’s work raises three questions, the importance of which extends well beyond the formal terms of the panel’s contractual commitment to the Nuclear Regulatory Commission ("NRC"):

(2) Why did the NAS – an entity with essential responsibility for vouchsafing the

The terms of the NRC referral to the NAS, and the NAS's acceptance of these terms, confirm that the NRC and the NAS believe that the primary issues here are technical -- i.e., the amount and/or quality of radioactive materials that can, in the abstract, harm humans and their environment, and the ability of equipment to decontaminate waste to these levels. This is not so.

It is now known that agencies (and private adjuncts) that performed well in the Cold War development and production of nuclear weapons, exposed citizens, soldiers and workers to undue risk of radiation exposure – without adequate provision for;

(1) disclosure so that citizens might choose to protect themselves; and

(2) recordkeeping and monitoring needed to vouchsafe public health at decades remove from initial exposure.

Moreover, the secretive, lawless, and/or incompetent exposure of citizens to radioactive hazards is, at least in regard to the recycling of radioactive waste, demonstrably not a thing of the past. The public record now shows that these features have hallmarked the recent promotion of the recycling of radioactive waste by DOE (and its contractors), and, indeed, underlay Secretary Richardson’s 2000 intervention to impose a moratorium on recycling.

The NRC, in the proceeding underlying this panel’s work, showed the public that it is determined to ignore that which is of public concern. It has:

In sum:

.* The NAS must address evidence that recycling is unsafe at any speed until DOE and NRC (and their contractors, delegatees, and licensees) demonstrate an ability to act lawfully, competently, and openly in matters that expose the public to the unrestricted reuse of recycled radioactively contaminated metals;

– provision for 100% verification of the released metals;

– provision for labeling and recall of the released metals.

1. The NAS Must Address Evidence that Recycling is Unsafe at Any Speed until the DOE and DOE (and their contractors, licensees and delegatees) Show the Consistent Ability to Act Lawfully, Competently, and Openly in Matters that Expose the Public to the Unlabeled and Unrestricted Reuse of Radioactive Waste

In the proceedings before the NRC, PACE (and many others) laid out the evidence that the track record of the institutions entrusted with recycling radioactive waste does not permit a reasoned conclusion that any public protection standard(s) will be abided by. The NRC failed to address this evidence (much less contradict it). To the contrary, the NRC gave ample basis for further reasoned public concern.

1. We Now Know that the Government and its Contractors Knowingly Exposed Citizens, Soldiers, and Workers to Undue Radiation Risk Without Adequate Provision for Advance Disclosure, Recordkeeping and Post Hoc Monitoring

In its 1995 report to President Clinton, the Advisory Committee on Human

Radiation Experiments ("ACHRE") found that -- at its 1947 birth -- the Atomic Energy Commission ("AEC"), predecessor to the DOE and the NRC, embraced a (secret) policy of covering up health, safety, and environmental information that could embarrass, or be a source of liability to, the government or its contractors. ACHRE found that this policy where national security itself could not serve as grounds to keep information on risk secret. ACHRE did not find that this covert policy was ever countermanded.

By the late 1990's it became apparent that coverup continued for decades and that, by consequence, an unknown number of (the 600,000) nuclear weapons workers were placed at undue and increased risk of cancer and other ills. In January, 2000 Secretary of Energy Richardson acknowledged that the government’s evasions and lies had harmed workers. In October, 2000, the United States Congress provided for compensation for these workers. In enacting the Energy Employees Occupational Illness Compensation Act, Congress found that:

(2) Since the inception of the nuclear weapons program and for several

decades afterwards, large numbers of nuclear weapons workers at Department

of Energy and at vendor sites who supplied the Cold War effort were put at

risk without their knowledge and consent for reasons that, documents

reveal, were driven by fears of adverse publicity, liability, and employee

demands for hazardous duty pay.

(3) Numerous previous secret records documented unmonitored radiation,

beryllium, silica, heavy metals, and toxic substances' exposures and

continuing problems at the Department of Energy and vendor sites across the

country, where since World War II the Department of Energy and its

predecessors have been self-regulating with respect to nuclear safety and

occupational safety and health.

In short, we now know that the United States and its contractors systematically, and over the course of decades, failed to protect untold thousands of its workers -- who were putatively protected from the start by rules that provided for limitations on exposure, recordkeeping, and monitoring. Why should the public have confidence that its frying pans, braces, and knives and forks will – in the absence of labeling or monitoring -- be given any better protection?

2. The DOE/BNFL Oak Ridge Recycling Project Is the Primary Real World Precedent for Recycling and Must Be Addressed by any Committee that Purports to Address Public Health Protections

In 1996 DOE announced what was proclaimed as a model and precedent setting project for the recycling of 100,000 tons of radioactive metallic waste from the Oak Ridge K-25 site. DOE boasted that its contractor – British Nuclear Fuels (BNFL) – would deploy innovative nickel recycling technology, guarantee performance at a fixed price ($238 million) and save taxpayers hundreds of millions of dollars in cleanup costs. The continuing revelations regarding the failure of this showcase recycling project must be understood and addressed by any Committee that purports to address the protection of the public from the potential hazards of recycled radioactive waste.

1. A Federal Court Has Found that, Through use of the NRC’s Offices and Otherwise, DOE and BNFL Placed the Public at Unlawful and Unexamined Risk

Prior to the August, 1997 contract award to BNFL, OCAW and environmental groups called on DOE to conduct a public review of the proposed recycling, as required by the National Environmental Policy Act (NEPA). This request was ignored. OCAW, joined by environmental interveners, sought a court order that NEPA be complied with.

In June, 1999 a Federal District court confirmed that DOE awarded its quarter billion dollar recycling contract to BNFL without regard for the basic requirements of environmental law and openness (See, Oil, Chemical & Atomic Workers, et al. v. Pena, et al. 62 F.Supp. 2d 1 (D.D.C. 1999). Judge Kessler found that the Superfund law barred citizens from obtaining court ordered relief, but, nonetheless, found that the concerns raised by the union and environmental groups were valid (emphasis added)

The court acknowledges and shares the many concerns raised by [PACE and

environmental intervenors]. The potential for environmental harm is great,

especially given the unprecedented amount of hazardous materials which [DOE

and BNFL] seek to release.

The court found "ample evidence that the proposed recycling significantly

affects the quality of the human environment." The court found that "plaintiffs allege and [DOE and BNFL] have not disputed, that there is no data regarding the process efficacy or the track record with respect to safety."

Finally, the court pointedly noted that BNFL had availed itself of a license under the Nuclear Regulatory Commission’s Tennessee state program. "TDEC," noted the court, "which has neither the resources nor the extensive expertise of a national regulatory agency, is the only body with any supervisory power." In short, as the court found, it was the Nuclear Regulatory Commission – and not the Department of Energy – that ultimately opened the door for the unprecedented, unrestricted and unlabeled reuse of nuclear weapons complex nickel.

1. Testimony in the Court Proceeding Revealed that the BNFL Contract was Forwarded in Defiance of Secretary Pena’s Directive that DOE Protect the Public Against Unrestricted Use

Discovery in the court proceeding revealed that high DOE officials ignored or defied Secretary Pena’s directive that the DOE/BNFL contract reserve DOE’s right to protect the public against unrestricted uses.

Discovery revealed that Secretary Pena instructed high DOE officials to assure that the contract provide DOE authority over end uses. Jim Hall, DOE head of Oak Ridge Operations who signed the August, 1997 contract for DOE, testified that Secretary Pena – in recognition of the issues raised by the steel industry, labor, and environmentalists – directed DOE officials

to make sure the final contract provided for DOE control over the end use of metals to be released.

In fact – and to the claimed surprise of the Mr. Hall – the Secretary's directive was ignored. At his deposition, Mr. Hall initially testified that the Secretary's directive had been complied with. On review of the contract, (which he signed for the Department) he recognized that the Secretary's directive had been disobeyed. The contract placed no restrictions on BNFL sale of materials once they leave MSC's processing facility.

The question of how and why Secretary Pena's directive was countermanded remains a public mystery. The reasoning public might want to know the answer to this mystery before entrusting itself to the good graces of further federal protection from recycled waste.

DOE awarded the $238 million contract to BNFL based on a statutorily required determination that BNFL was the sole "responsible source." DOE's "Justification for Less than Full and Open Competition" relied on the qualifications of "MSC," which operates a metals recycling facility in Oak Ridge. Federal procurement rules provide that where the prime contractor's affiliate – here BNFL's wholly-owned subsidiary MSC – may affect performance under the contract, the "responsibility" of the affiliate is also of the essence.

BNFL, however, failed to disclose information to DOE that bore directly on the responsibility and integrity of MSC – and the DOE never asked for it.

In advance of BNFL's purchase of 100% ownership of MSC, BNFL official James McAnally performed a management audit of MSC. Mr. McAnally testified under oath that his analysis led to his conclusion – in May 1997, during the midst of negotiations with DOE regarding the contract (which was signed on August 25, 1997) – that MSC suffered fundamental management weaknesses. BNFL evidently failed to disclose its findings (and the 200 page audit

itself) to DOE.

In January of 1998, moreover – months following the August, 1997 contract award -- DOE belatedly performed an audit of the MSC Oak Ridge facility. DOE auditors found, among other deficiencies, that: (a) "[a] training program has not been implemented. . . [t]he training program has been identified as a recurring deficiency by MSC"; (b) "[t]he records and document system at MSC has not been formally implemented"; (c) the procurement system "does not ensure that procured materials or services meet the established requirements and perform as specified"; (d) there were many repeat problems in operations and laboratory quality control; and (e) the respiratory protection and lock-out/tag-out programs were in violation of OSHA.

4. DOE Awarded the BNFL Contract Based on BNFL Possession of Unique Recycling Technology Which BNFL did not Possess

On behalf of the noncompetitive contract award to BNFL, DOE claimed that BNFL (through its affiliate MSC) had "developed" a unique technology to recycle nickel.

But court discovery revealed that BNFL did not even possess the right

to utilize the technology. Judge Kessler found that, "even as of March 18, 1999 when parties appeared before the court for a status conference, it was not fully clear when BNFL would be granted the legal rights to use the recycling process." 62 F. Supp 2d. at 12

DOE's contract justification also cited the experience of BNFL's parent company in decommissioning a gaseous diffusion plant in Capenhurst, England. The contract award was accompanied by a DOE press release which declared the K-25 approach would be based on "BNFL's successful experience in the Capenhurst facility in Great Britain." In 1998 deposition testimony, however, DOE's Jim Hall, who signed the DOE/BNFL contract, testified that BNFL did not recycle nickel at Capenhurst. As of 1998, the radioactive nickel was still sitting in drums in a warehouse in England.

5. BNFL Sought to Launder its Proposal Through NRC/TDEC Closed Door Processes

No federal rule provided (or provides) for recycling of the volumetrically contaminated nickel that was to provide the lion’s share of BNFL’s profits. With knowledge of the public controversy surrounding the nickel recycling, BNFL secretly planned to launder the recycling through the NRC’s delegatee – the Tennessee Department of Environment and Conservation. A secret BNFL strategy memo explained (emphasis added):

Issuance of radioactive materials licenses within the State of Tennessee

has not previously involved a public consultation process. It is unlikely

that this will continue to be the case for the long term...Therefore,

amendment to the existing MSC license for release of a small quantity of

decontaminated nickel is being pursued to establish the precedent for

nickel release.

6. NRC/TDEC Rubberstamped BNFL’s License in Secret, with Minimal Regard for Worker and Public Health and Safety

As BNFL hoped, TDEC proceeded to amend the existing BNFL/MSC license to provide for nickel recycling. It did so without any opportunity for meaningful public comment; indeed, public comment would have been impossible because virtually all the risk analyses and further documents under review by TDEC were allegedly secret. Moreover, it did so in the absence of any evident analysis of the risks to workers performing the recycling.

Furthermore, deposition testimony of the TDEC radiation protection chief confirmed that TDEC was blissfully unaware that DOE auditors had found that MSC was in noncompliance with quality control, environment, and worker health and safety protocol. There is no indication that the audit, or further evidence of MSC’s noncompliance, was taken into account by TDEC in its approval of BNFL’s nickel recycling license.

Following the issuance of the license, OCAW and the Natural Resources Defense Council ("NRDC") repeatedly called on TDEC to provide the public with explanations of the basis for its license approval. TDEC never responded to these inquiries.

7. DOE's Inspector General Has Now Confirmed That the Public Cannot Rely on the Integrity of Verification Procedures

a. The IG Found, and DOE concurs, that DOE Cannot Ensure that Recycling Will not Increase Public Risk

In September, 2000 the Department's own Inspector General ("IG") reported on its

audit of the BNFL recycling contract. The IG concluded (DOE/IG-0481, at 2) (emphasis added):

BNFL did not perform accurate surveys of contaminated metals before the

contractor released the metals for recycling on the open market. We found

that employees who performed the surveys were not adequately supervised.

As a result, there was increased risk to the public that contaminated

metals were released from the site, a condition that, obviously, was contrary to the Department's objectives when it established this program.

The IG report records that DOE management concurred with "the findings and

recommendations." (Id.).

BNFL's disregard for public health took place under a showcase contract, which was ultimately put under the light of court and Congressional and press scrutiny. If BNFL/DOE

did not feel constrained to follow minimally requisite management practices in such a setting, why would the public be wrong in doubting that public protection standards will be honored in any other circumstances?

b. The IG Confirmed that Independent Verification Does not Ensure Public Protection

DOE's BNFL project proclaimed that the public would be protected because the surveys of BNFL would be reviewed by an "independent verification" team. The presence of such a team, the IG found, did not "ensure" that the public was protected. To the contrary, as the IG report explained, the "independent verification" team only reviews a sample of the contractor's work; "Since the verification team does not verify every item in each lot, additional surveying errors would not be detected, and in some cases, lots exceeding the release criteria may have been released."

C. The NRC Proceeding Shows an Agency Bent on Reinforcing Public Perception that it Will not or Cannot Protect Against Recycling Risk

1. The NRC Bedrocked its Proceeding on Conflict of Interest – Regarding which it Still Refuses to Come Clean

In November, 1999 PACE pointed out to the NRC that its employment of SAIC to perform the technical analysis for its proceeding ("NUREG-1640") was unacceptable. SAIC had long been the teaming partner to BNFL in the quarter billion dollar DOE sponsored effort to promote nuclear waste recycling. Moreover, PACE pointed out, the conflict was particularly

egregious where:

(1) the terms of the SAIC contract called on a private contractor –

likely in violation of longstanding prohibitions against contracting out

inherently governmental functions – to do the Commission's basic thinking,

and even to provide the Commission with a summary of the views of other

stakeholders;

(2) the NRC relied on SAIC over a period that began in 1992; and

(3) the NRC was forced to award SAIC a second contract in August,

1999 because SAIC did not complete the required work under the first.

By letter to SAIC of December 16, 1999, NRC issued a stop work order to SAIC regarding the August, 1999 contract. In March, 2000 the NRC announced the termination of the August, 1999 contract. The NRC, however, conspicuously refuses to make public facts which might explain to the curious public how it contrived to rely on a contractor with such obvious conflicting interests. To boot, the NRC now asks the public to suspend disbelief and assume that the tainted study is acceptable as is.

2. The NRC Prejudged the Result which it Now Asks NAS to Rubberstamp

In the November, 1999 public sessions, many public commenters noted that

the NRC’s June, 1998 Staff requirements memorandum (SRM) revealed that the NRC had prejudged the outcome of the recycling proceeding. Commission staff vigorously protested this conclusion, and professed to openmindedness. (See, November 1-2, 1999 NRC transcripts.) No sooner was the proceeding adjourned, then PACE learned that, evidently unknown to these staff, the Commission's 1998 prejudgment had, indeed, been reiterated with emphasis in August, 1999.

6. The NRC Refused to Engage in Reasoned Public Exchange or Inquiry Regarding The Abuse and Breakdown of NRC Recycling Regulation

In the face of a court scepticism of the adequacy of NRC/TDEC licensing, and PACE/ NRDC showing that the TDEC review was, on its (barely visible) public face, deficient, reasonable citizens might have expected the NRC to assure the public that it would thoroughly review the facts of the TDEC licensing. To the contrary, the NRC treated calls for due diligence (on the part of Congressmen as well as citizens) as if it were TDEC, and not the NRC, that were the superior body.

Pursuant to the NRC’s invitation, in 1999-2000 PACE, and others, identified

basic factual questions regarding real world experiences that must be addressed and answered before any steps are taken to proceed with a rulemaking that might result in the release of materials for public use.

For example, PACE's November 1, 1999 comments to the NRC called on the NRC to engage in discussion and fact finding regarding:

* Federal court confirmation that precedent setting Oak Ridge recycling was proceeding in violation of environmental law;

* government/ contractor historic practices of keeping information on radioactive releases secret from the exposed public;

* evidence that those entrusted with the public release of radioactive materials do not have requisite competence to protect the public;

* the failure of DOE and recycling contractors to provide credible analysis of the worker exposures stemming from recycling, and the real world difficulties of assessing such effects; and

* evidence that the NRC’s predecessor may have historically sanctioned the commercial release of radioactively contaminated materials without any public notice.

The NRC provided assurances to PACE and other public participants that information sought by PACE and others would be diligently pursued. No responses were forthcoming, and the NRC made plain that it had little interest in fact finding on these matters.

It is axiomatic that any risk analysis must contemplate the real world in which risk is experienced. To its credit, NUREG-1640 acknowledges the importance of considering

real world "scenarios." However, the document shows that SAIC/NRC ruled out consideration of the "scenarios" that, if past is prologue, pose the greatest danger to the public and workers. NUREG-1640 states, at xvii (emphasis in original):

The purpose of this report is to calculate realistic estimates of the

• "Realistic" estimates are estimate using scenarios and models whose

Thus, as just quoted, the NUREG document purports to address the nuclear utility industry, but does not purport to address the "general practices" of the DOE (and DOE contractors).

In days past, the Advisory Committee on Human Radiation Experiments found, AEC insiders understood the NAS to be a tool to sell the public on positions that would not be credited if they emerged directly from the AEC’s mouth. The Advisory Committee reported: (Id., at 406)(emphasis added; fn. omitted)

AEC insiders recognized that credibility was a problem. In a December,

There is also the fact that Los Alamos may be regarded as a rather

The reasoning public might suspect that, at least in regard to the recycling of radioactive waste, plus ca change plus ca reste meme.

This panel has the ability to demonstrate that such suspicion is unwarranted. Whatever its basis for accepting the crabbed NRC assignment, this panel’s present obligations are clear:

It appears that this panel, following the course of the NRC, may be taking the head in the sand approach that the radioactive waste at issue here is essentially that produced by nuclear utilities. The facts, as briefly summarized above, and presented at great length before the NRC, render such position incredible and, indeed, unbecoming for an expert panel.

To briefly recap:

(1) the NRC’s public proceedings confirmed that the lion's share of the metallic

waste at issue is that created by the Department of Energy (and its contractors);

(2) the NRC proceedings confirmed that DOE officials and contractors are the prime -- perhaps the sole -- active promoters of the unrestricted release of contaminated metals (at least for purposes of commercial profit);

(3) DOE's project to recycle 100,000 tons of radioactive metals from the Oak Ridge K-25 facilities is far and away the most ambitious recycling project undertaken;

(4) DOE contractors calculate that they can avoid Federal standard setting and public review by laundering their recycling behind the cozy closed door confines of the NRC’s state delegatees;

(5) DOE’s recycling contractors managed to taint the NRC proceeding through the performance of the NUREG-1640;

(6) DOE has repeatedly stated that DOE's recycling policy will necessarily follow NRC’s action.

In sum, this panel cannot excuse itself from doing the hard work of examining the facts of public record regarding nuclear weapons complex waste.