Hearing of the Energy and Water Development Subcommittee of the House Appropriations Committee - Scientific Research

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REP. MICHAEL K. SIMPSON (R-ID): Thank you, Mr. Chairman.

We're all sitting over here kind of giggling because I certainly have always wondered about two-electron transfers. (Laughter.) (Inaudible.)

Representative Emerson asked me about microfarad and I said, "It's a very small ferret." (Laughter.)

Here we are asking you about sciences, which at least I don't understand most of it. (Laughter.) I know what electron is -- (laughs) -- but let me ask you a couple --

REP. : (Off mike.)

REP. SIMPSON: I went to an accredited college. (Laughter.)

You said earlier when you were talking to Representative Calvert that you dealt with people from other countries that said you couldn't trust the Americans to stay with us. Do you find that a lot?

MR. ORBACH: To be honest, yes.

REP. SIMPSON: What do you think the genesis of that is?

MR. ORBACH: It's -- in the science area, it's been a history of projects where we have involved our foreign collaborators and then pulled out -- superconducting supercollider. We just did it again when we had to shut down BaBar at SLAC early. We've done it -- I would prefer not to go through all of them in open session. (Laughter.) It --

REP. SIMPSON: Well, what do you think the cause is of that phenomenon? Because we -- that's been a concern I think of members of this committee that within the Department of Energy, we start down a path, then we change paths, and we're always going in different directions. And it seems like we never see anything through to completion or whatever, and so consequently we get very reluctant to be funding big long-term projects because we're never sure that that project is going to see a completion date ever.

Is it the political process that we have here that changes directions? Is it the fact that, you know, we change administrations so rapidly that priorities change? Is it that we don't select our investments of what -- where we ought to be investing, put enough thought into it beforehand? What do you think the phenomenon is that causes that?

MR. ORBACH: That's a very difficult question to answer, and I'm not too sure I know the answer. I do know that we have been involved in projects where we have not thought through the cost of construction carefully enough. It's difficult sometimes because they're the first time they've been done.

I will say that in my five years we have stopped projects hopefully before they -- (laughs) -- began construction, but we did it because we felt that either the cost was too high or the timing was such that it made no sense to build it. There was something called BTeV, which was in our 20-year facilities outlook, and we decided to abandon it. And that was because by the time we would build it, there would be competition and we would not be a world leader.

We took RIA, the Rare Isotope Accelerator, and we cut that cost in half because we found the Germans were going to invest very strongly in this area, and we felt we could do what we needed to do with less money. So it's a complex of reasons.

The reason it's important to maintain commitments when you have foreign involvement is that involvement is not just a user involvement. At BaBar, for example, the Italian government had invested in the experiment itself. They were actually the spokesman of the experiment. We profit enormously when other countries invest in us, and that's what I'm worried about is that the lack of continuity and commitment will discourage that investment. It's not dissimilar from other investments in our country, but I'm focusing on the scientific side.

We have done everything we can within the Office of Science to maintain commitment, and, for example, for ITER we're going to keep that project office alive one way or the other, and I just -- it's just so important that we're going to do. We're going to use the resources we have to do it.

REP. SIMPSON: What about -- you talk about foreign country investment and so forth; what about private industry investment? We're trying to make more of our facilities user-friendly and hopefully recover costs from users of our facilities, is that right?

MR. ORBACH: Well, it depends on how the facilities are being used. If it's for open science, we don't charge. We treat industry the same way we treat the university researchers. For example, on our computers, we have 17 companies that are using our leadership class facility, and as long as they agree to publish their results in the open literature, there's no charge. It's the same as for anybody else.

On the other hand, they profit from that research. If they use it for proprietary purposes, then that's another matter. Then they pay for the cost of operations.

REP. SIMPSON: Do they pay the full cost of operations?

MR. ORBACH: They certainly do, and we have that audited.

REP. SIMPSON: Well, let me ask you a series of questions here. Your laboratories aggressively pursue and perform millions of dollars of work for other agencies other year, a practice known as, not surprisingly, work for others. (Laughs.) We're all rightly proud of the expertise that our science facilities have developed and want to make sure that expertise is available to the rest of the community when it doesn't detract from our core science mission. We're concerned about whether DOE bears a fair share of the cost for the expansion of lab capacities needed to perform work for other customers.

Are any of the funds that we appropriated to the labs to support DOE missions being used by the labs to market their services to other agencies or to lobby Congress for increased funding?

MR. ORBACH: I hope not. The funds that you provide to the laboratories are for the purposes that you have indicated and that we are pursuing. The work for others is supposed to pay its own way.

There is an issue of investment in the laboratory infrastructure, and there we use the overhead charge for work for others for laboratory renewal. We call that the LDRD funding. Whether that's sufficient or not is an interesting question, and I don't know the answer, but we do try to develop our laboratory capabilities that others then use in work for others through that overhead charge.

REP. SIMPSON: When the laboratory accepts work for others, does it only do so when it has spare space and work force? If not, do you ask the committee for additional up-front funding for additional facilities and hire new workers?

MR. ORBACH: No, we do not. And yes, it must be something that the laboratory can do and not interfere with its core mission.

REP. SIMPSON: Do the laboratory contracts impose any sort of ceiling on how many personnel each lab may employ?

MR. ORBACH: Not that I know of.

REP. SIMPSON: Well, I can understand why an individual laboratory may want to grow in the future. Is it in the best interest of the department or the taxpayers to see these labs grow?

MR. ORBACH: My belief is yes, that the work for others -- first of all, many of the others are -- they're federal agencies. And in addition, I think they provide a service for our country. They are very, very sophisticated, and I think there is work that can only be done at the laboratories. But as you said at the very beginning, the sine qua non is that their purpose fulfills the Department of Energy's mission.

REP. SIMPSON: If the laboratory increases its staff to support work for other customers and then those staff are no longer needed, is DOE responsible for all of the severance costs associated with those employees?

MR. ORBACH: I'm sorry. I do not know the answer to that. If I could respond for the record, I would appreciate it.

REP. SIMPSON: I appreciate it. Thank you.

Thanks, Mr. Chairman.

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REP. SIMPSON: I just sit and listen to this, and it's just kind of, you know, you -- I get kind of lost. You know why it's more important to brush your teeth before you eat rather than after? I have something I know about. I'm a dentist. I'm going to -- (laughs) -- no, I'm just kidding. (Laughter.)

Let me ask you a question. If ITER is so important, which you seem to make a good case for it and everything, why didn't the president request funding for it in the supplemental? Have you had a problem convincing the administration, the White House of its --

MR. ORBACH: We simply don't know. I do not know as of this moment whether the administration will ask for a supplemental funding for ITER.

REP. SIMPSON: Have you asked them to?

MR. ORBACH: We have certainly made it clear through the administration that we would welcome that, but it's really a presidential decision and we do not have information.

REP. SIMPSON: Let me ask another couple. We talked about competition just a minute ago. Could you explain why your office recently cancelled the competition for the contract at PNNL?

MR. ORBACH: Yes. The -- we had sent out a draft RFP, and in that draft, we said that we would not accept as part of a proposal a bid, the -- issue of a use permit. We would not allow a use permit to be part of the contract.

REP. SIMPSON: Explain that, if you would, please.

MR. ORBACH: The current contract at PNNL, and it's only at PNNL, allows the contractor to use federal facilities for private ventures. They pay full costs, full cost recovery, but it means that they can work with private sector -- also with the government sector -- through the contractor to make use of federal facilities. And when we looked closely at it, we felt, first of all, that it was not necessary and in some funny way it may even have been negative for tech transfer that other laboratories that did not have a use permit were doing beautifully working with the private sector. We just felt there were too many problems with it.

In the event, Congress, as part of the omnibus bill, passed a law that said we had to continue the use permit unless both parties, the contractor and the department, agreed to end it; under those circumstances, you couldn't get the competition anymore so -- to work, so we cancelled the competition. And we have been in conversation with the contractor. We can do that because there is no competition on the table, and we're still in the middle of that process.

REP. SIMPSON: Do any of the other labs have the use permit issue?

MR. ORBACH: No.

REP. SIMPSON: What's the status of the contract competitions for the remaining nine science labs?

MR. ORBACH: I don't know if I can remember all of them. We have under way -- can I answer that for the record?

REP. SIMPSON: Sure.

MR. ORBACH: Because I'm worried that I -- my memory may not be correct. We've made a commitment to this committee that we would compete our laboratory contracts. There may be an exception for specific reasons that will develop, but I'd prefer not to talk about it here. But I will provide that information for the record.

REP. SIMPSON: We -- what is the length of contract we're looking at when we --

MR. ORBACH: Well, typically a contract is for five years.

REP. SIMPSON: Right.

MR. ORBACH: And our new contract structure, because of our appraisal process which we instituted about two years ago, allows a contractor under the new contracts to earn an extra year if they score above a certain plateau that we set for performance. And so we in principle, assuming that the laboratory satisfies that grading system -- and it is a grading system -- they could have the contract for 20 years. So it's a five-year contract, but if the performance is above this threshold level -- it's quite a high threshold -- then we would give them an extra year, and that extra year would accumulate out to a maximum total of 20.

REP. SIMPSON: When we redid the INL contract, one of the parts -- one of the things we wanted to do, and ultimately successfully did with the laboratory part of the contract, was to have a 10-year contract because we felt like five-year contract wasn't sufficient, but have a 10-year contract with appropriate off-ramps for nonperformance. You're kind of taking a different approach with five- year contracts with on-ramps for successful work that's done there. Do you have any idea -- which direction do you think is the best way to go?

And our feeling was, quite frankly, that having seen it for years and seeing the different contractors come into the INL that really what you got is three years of work with a five-year contract. First year that they were coming in, they were new to the contract, they were getting their feet on the ground, getting things running; then they worked for three years, and then the last year it was to recompete for the lab, and so consequently you didn't really get five years of work out of them. I don't want to make that sound like they didn't do anything those other two years, but it made it really difficult, and we felt like a 10 year contract was more appropriate.

MR. ORBACH: That's why we went to that year by year. It's proactive rather than reactive. Part of this depends on the appraisal process, and we believe our appraisal process is quite robust and gives us a very good handle -- it's actually public. We put the report cards on the Web and you can compare one lab with another.

And so if we didn't have the appraisal process, we'd have this issue, but with the appraisal process and this rather high threshold for extension, we felt that we would be better off that way. And you're quite right; if you just have a five-year window it's very difficult. But this way a contractor that is really performing at a very high level would not have that problem because there would always be three or more years out in front.

REP. SIMPSON: Do -- does the issue of third-party financing of buildings and so forth at some of these laboratories, do they come into the contract negotiation and extensions?

MR. ORBACH: I don't know about the contract negotiation itself, but we have participated in third-party financing -- for example, at PNNL as part of the 300 area. I don't know if that's in the contract or not. Again, I can find out and respond back. But it is -- we are allowed under our current contracts to develop third-party financing arrangements.

REP. SIMPSON: Are you having trouble with OMB in doing that?

MR. ORBACH: (Laughs.) We have to --

REP. SIMPSON: We had a problem at the site that was trying to do third-party financing, and OMB was a -- was a difficult customer.

MR. ORBACH: I have spent -- yeah, they are a difficult customer but for good reasons. (Laughs.) They are trying to make sure that this in the government interest, and that's not so simple to prove. And in fact, on the PNNL situation, as I indicated, there are two of the three buildings that will enable us to exit the 300 area that will be third-party financed. And they were very difficult, but I think for the right reason. They wanted us to show that it was in the government's interest to do this rather than just build them. And they made us jump through hoops. Ultimately, they approved it, and I think that we were able to show that we -- that it was the right way to go. But I welcome that kind of supervision. I mean, it's the right thing.

REP. SIMPSON: And I don't disagree with the supervision. Sometimes I wonder about the extent of their oversight and how restrictive they're getting, because, as you know, in most of our laboratories and stuff we have aging facilities. We don't have the infrastructure budget to rebuild a lot of these facilities, and consequently we try to turn to other sources of trying to finance some of these things. I mean, we've got scientists at the INL in old garage doors and old grocery stores and stuff, you know. These are not top-notch scientific laboratories that they should be. And if we can't get the infrastructure needs through appropriations through Congress, other sources of financing through third parties is to me a viable alternative to do.

MR. ORBACH: I concur, and actually I visited INL and saw those facilities. They have to nevertheless be in the government's interest to do that financing as opposed to direct appropriation. And it is -- it has worked. I mean, two years ago or a year ago, I guess, we got the green light and we've gone forward at PNNL.

REP. SIMPSON: Let me ask just one other series of questions. The LANSCE facility at Los Alamos is in a unique position. This is a major science asset, yet it resides physically in the middle of a weapons lab. What's the reporting -- the chain of command for reporting for this facility?

MR. ORBACH: This is CINT are you referring to?

REP. SIMPSON: LANSCE.

MR. ORBACH: Oh, LANSCE, I'm sorry. I misunderstood. LANSCE is a facility for not only our work on neutron diffraction through the Lujan Center but also for weapons studies, and that's supported by NNSA and they put part of the stored beam and LANSCE is used by us for open science at the Lujan Center for Neutron Diffraction, which is a pulse neutron source.

REP. SIMPSON: So what's the chain of command for reporting for that?

MR. ORBACH: That's right up through NNSA -- for LANSCE is right up through NNSA.

REP. SIMPSON: Given the limitation of your authority over in Los Alamos imposed by the NNSA Act, how do you ensure that this asset remains responsive to the science programs?

MR. ORBACH: I think it's been just the other way around. I think that our relationships with NNSA have been such that they want to see the Lujan Center succeed, and so they have been very, very supportive of the center and trying to refurbish LANSCE to provide beam to the center. We've not had any difficulty.

REP. SIMPSON: How does the user community access facilities that are at weapons labs? And are there restrictions on university personnel and foreign-born nationals and other people from using it as a user facility?

MR. ORBACH: The answer is that we require all of our user facilities to be open. We do have restrictions --

REP. SIMPSON: How does that work in a weapons lab?

MR. ORBACH: The people enter a database and get access to the facility.

REP. SIMPSON: So you don't see any restrictions? There's no problems with them --

MR. ORBACH: There is a problem for weapons supporting -- sorry, not weapons supporting -- for countries that are determined to be terrorist-supporting. Citizens of those countries or individuals born in those countries need special access, and we have a process within the department where I and the other relevant agencies in the department review their role and make sure that it is not in conflict with government policy and then they can also gain access.

REP. SIMPSON: So you don't see any problem that's been imposed by having this at a weapons lab?

MR. ORBACH: No, I think that --

REP. SIMPSON: Do you think that should we in the future be looking at --

MR. ORBACH: I think there is --

REP. SIMPSON: -- type of arrangement.

MR. ORBACH: Yeah, I -- that's a hard one for me to answer. I think for a graduate student having to go through the process of gaining access, it can't be very comfortable, but on the other hand, they do it. And so it seems to work pretty well.

CINT -- that's what I asked you about -- CINT is the nano facility which is jointly at Los Alamos and at Sandia, and there it's outside the fence. And what it is, it's a vehicle for reaching in, but there's no security. It's outside.

On the other hand, our combustion research facility, which is at Sandia in California, is behind a fence, but it's not a very tall fence. (Laughs.) You have to get permission to go through, but once you're through, even though you're in between Sandia and Livermore, it's fine, it's open, and it's a completely open laboratory.

So there are probably a certain amount of frustration for people, but we try to keep that to a minimum.

REP. SIMPSON: Thank you.

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