WASHINGTON — The head of the Defense Nuclear Facilities Safety Board (DNFSB) told members of Congress here Tuesday he hopes the Department of Energy will “fix” a controversial rule that could limit board access to nuclear weapons facilities during the agency’s upcoming one-year review of the directive.
In May 2018, the department issued the controversial Order 140.1, which the DNFSB said would stop its independent federal health-and-safety inspectors from accessing parts of some DOE nuclear weapon sites, and from writing safety recommendations to protect federal civil servants and contractors.
Now, DNFSB Chairman Bruce Hamilton told members of the House Armed Services strategic forces subcommittee in a hearing, DOE has a chance to amend Order 140.1 by removing language “allowing the department to determine where we look.”
All three current DNFSB members agree that the Order 140.1 as written runs afoul of the Atomic Energy Act by restricting DNFSB oversight of certain parts of DOE nuclear-weapon sites, including so-called Category 3 facilities and radiological facilities.
The Energy Department says those facilities could not release enough harmful material in the event of an accident to harm people outside a DOE site, meaning DNFSB’s mandate to protect the public does not apply to either the facilities or the people who work there.
Hamilton disagreed, telling lawmakers that DOE’s internal categorization of facilities does not override the Atomic Energy Act, which gives DNFSB the power to decide which facilities might or might not pose a hazard to the public.
Order 140.1 also calls on DOE to speak with “one voice” to DNFSB, including by requiring agency contractors to filter questions from board inspectors through DOE.
Even if DOE does not alter Order 140.1, Hamilton said, federal law gives the DNFSB subpoena power over the agency and the “statutory right to ask for reports” about active and former nuclear-weapon sites.
If Order 140.1 stands, “the concern is not that I can’t get access to information. The concern is that I may have to use some of those more tough tools that slow down the process,” Hamilton told lawmakers.
Congress created the DNFSB is 1988. The roughly $30-million-a-year federal agency does not regulate DOE, which is its own regulator at its nuclear-weapon facilities, but it can make safety recommendations with which the secretary of energy must publicly agree or disagree.
Both subcommittee Chairman Jim Cooper (D-Tenn.) and Rep. John Garamendi (D-Calif.) said they remained concerned about what they perceived as DOE’s moves to muzzle the DNFSB.
In Tuesday’s hearing, NNSA Administrator Lisa Gordon-Hagerty reasserted DOE’s position that Order 140.1 does not prevent DNFSB oversight.
“What we’re trying to do is ensure that we articulate our roles and responsibilities and authorities and accountability within the Department of Energy,” Gordon-Hagerty said during the hearing, convened to discuss the agency’s 2020 budget request. “If there is an accident or significant incident, we will be the ones held responsible.”
“But you don’t want anyone looking over your shoulder,” Garamendi told the NNSA boss.
Gordon-Hagerty said that was “not the case whatsoever,” but Garamendi insisted it was.
“That’s exactly what you’re doing by limiting their authority and their opportunity to inspect the various facilities,” Garamendi said. “You’re limiting their authority and their ability to oversee your work.”
“I would respectfully disagree,” Gordon-Hagerty said. “We continue to work with the board closely on every single opportunity where it’s appropriate.”
The Energy Department has said Order 140.1 helps the agency “speak with one voice” to the DNFSB, and that the defense board’s mandate from Congress does not allow the smaller agency to write safety recommendations for facilities that cannot affect people outside the boundaries of a DOE nuclear site.
