Member Sullivan Voted Against Emergency Preparedness Recommendation

Mike Nartker and Todd Jacobson
WC Monitor
10/31/2014

Over the past two years, Defense Nuclear Facilities Safety Board members have clashed on a number of issues, from a recent recommendation on emergency preparedness to the scope of the Board’s jurisdiction and access to Board information, according to notational voting records obtained by WC Monitor. The voting records were obtained through a Freedom of Information Act request, and provide a unique window into the decision-making process of a sometimes divided Board, which, while having no regulatory control over the Department of Energy, can have a significant impact on Department policies and progress on major DOE projects.

The release of the voting records comes as the Board is preparing for a major leadership change while facing low employee morale and an ongoing Inspector General investigation into conduct by Chairman Peter Winokur. Winokur announced earlier this month that he would not seek renomination as chairman, and the notational voting records provide a window into how the Board could potentially change in the coming months.

Sullivan Often on Losing End of 2-1 Votes

Winokur was often opposed by Board member Sean Sullivan, with Vice Chairman Jessie Roberson often siding with the chairman as Sullivan sought to change the way the Board does business. “I’ve looked at the history of some of the issues that the Board has addressed over the last 10 years and I’m not sure in some areas the Board has been successful,” Sullivan told WC Monitor this week, adding: “There are some patterns to the way that the Board has done business that I think has served the Board in the past that some members are used to. I’m questioning in some respects are these patterns really getting us where we want to go. If they’re not paying any dividends and all we’re doing is creating staff work and generating letters, well that that’s not very helpful. So are we really getting somewhere? Are there other things we could be doing?”

WC Monitor obtained 608 pages of notational voting records, which cover the period from Jan. 1, 2013, to Sept. 5, 2014. In response to language in the Fiscal Year 2013 Defense Authorization Act, the Board began the notational voting process in early 2013, taking up almost all Board matters through the process. Previously, the Board had only voted on recommendations, with little room for comment from members, but the 2013 bill required that each Board member have an equal say in all of the Board’s decisions.

The Board has been short-handed over the last two years because of the deaths of members Joseph Bader and Kenneth Mossman. Awaiting Senate confirmation to serve on the Board is Daniel Santos, a Senior Technical Advisor at the Nuclear Regulatory Commission who was nominated by the White House earlier this year. “I’m not sure it should surprise anyone that when you get a group of people together you’re going to have some disagreements,” Sullivan said. “I would say it is accurate, generally speaking, when there is some disagreement, the chairman is on one side I’m on the other and the vice chair seems to be what I would call our Justice Kennedy. She’s the one that kind of sits in the middle and sometimes goes the way I would want her to go and sometimes doesn’t.”

Sullivan emphasized that he has no animosity toward Winokur. “I’ve had my disagreements with Chairman Peter Winokur but I highly respect his opinion and I highly respect the service he’s given to his country in this position,” Sullivan told WC Monitor. “Just because we disagree doesn’t mean he’s done anything wrong in taking the opinions and positions that he has.” Winokur did not respond to a request to comment for this article.

Sullivan Questions Broad Complex-Wide Recommendations

Most notably, Sullivan opposed the Board’s formal recommendation to DOE earlier this year calling for improvements in emergency preparedness and response capabilities, basing his opposition to Recommendation 2014-1 in large part on concerns that it was too broad to be effective, the records reveal. DNFSB Recommendation 2014-1, the first formal recommendation the Board has issued in approximately two years, calls on DOE to implement by the end of 2016 a number of actions to strengthen its emergency response capabilities, such as  creating a “robust” emergency response infrastructure at all of its defense nuclear facilities that is “survivable, habitable, and maintained to function during emergencies, including severe events that can impact multiple facilities and potentially overwhelm emergency response resources.” The recommendation also calls on DOE to ensure that sites have training and drill programs staffed with fully competent emergency response personnel, are conducting exercises that challenge existing capabilities, and are constantly identifying deficiencies with emergency preparedness and response plans, preparing corrective actions and evaluating the actions.

In addition, the recommendation calls on DOE to update its emergency management directives to address severe events, including “ ‘beyond design basis’ operational and natural phenomena events,” the reliability and habitability of emergency response facilities and support equipment, criteria for training and drills, standards for ensuring emergency response exercises adequately demonstrate proficiency, and vulnerabilities identified during independent assessments.

In his vote rejecting a draft version of the recommendation, though, Sullivan questioned the effectiveness of developing broad complex-wide proposals. “I predict that over the next several years, our staff and DOE staff will spend countless hours debating specific proposed revisions to emergency management directives. Meanwhile, I expect little progress will be made toward protecting the public from emergencies,” Sullivan wrote. He went on to write that the draft recommendation resulted “in the broad identification of problems with few (if any) specific proposals for solutions” and that such an approach “is consistent with the Board’s historic approach to recommendations—identify the problems and leave the solutions to the Secretary [of Energy]—but that approach has not worked very well over the past decade with issues affecting the entire complex.”

Instead, Sullivan wrote that he proposed the Board should have compared DOE’s emergency management requirements to Nuclear Regulatory Commission regulations and recommended “specific measures to bring the DOE complex in line with the emergency management practices in the nuclear industry.” He added, “We should also assess the unique situations at the various sites and make specific recommendations as necessary, tailored to the protection of the local population.” Sullivan also voted against a final version of the recommendation, noting on his vote sheet that he remained opposed due to his concerns over the draft.

How Broad Should Board’s Jurisdiction Be?

The vote sheets also show an apparent dispute between Sullivan and the other members of the Board as to the appropriate scope of the Board’s jurisdiction. In a vote this summer Sullivan opposed issuing a letter and staff report on safety concerns at Hanford’s 242-A Evaporator, writing, “The letter and staff issue report contain references to ‘chemical and toxicological hazards’ that I hold to be outside the scope of the Board’s jurisdiction.” In a heavily redacted vote sheet concerning an amendment he proposed to the Board’s safety basis review for the evaporator, Sullivan wrote, “The actual chemical issue addressed in the report (bottled ammonia used to calibrate equipment) presents only a minor hazard and, therefore, should not form the basis of an exercise of the Board’s power to require a report of corrective action unless and until the Board’s jurisdiction over the matter is affirmatively determined.”

Voting against Sullivan’s amendment (which was defeated 2-1), Winokur wrote, “I believe it important that the safety basis of the 242-A Evaporator facility consider chemical and toxicological hazards in the development of an adequate nuclear safety basis.”

Sullivan Pushed for Greater Access to Vote Records

The obtained voting records also show that Sullivan pushed for greater access to such documents for the public. In a vote dated May 29, Sullivan proposed that the Board develop an operating procedure for the posting of notional vote results on its website. “Publishing these notational vote sheets would provide individual Board Members an opportunity to publically express individual views on important matters before the Board. The very purpose of the political affiliation restriction in our enabling statute is to provide for a minority viewpoint. However, there is no current means for public expression of that viewpoint on individual actions the Board may take,” Sullivan wrote. “Since the Board does not hold public meetings to deliberate on its correspondence, the comment section of notational vote sheets is the only avenue for such expression. The vote sheets should be made available to the public without the need for a FOIA request. The NRC does this, and so should we.”

Sullivan’s initial attempt to have the voting records published failed, but in a June 13 vote two weeks later, Roberson changed her vote to support a scaled-back version of the proposal that would only allow the votes and comments by Board members to be published—and not comments by technical staff. Voting against Sullivan’s request, Winokur wrote, “The development of this procedure will require significant staff resources that I believe can be better spent on supporting the board’s technical and administrative functions. The Office of the General Manager is understaffed at this time and is facing significant manpower constraints dealing with the Board’s new Inspector General, as well as the need to improve directives in performance management, awards, and life/work balance.”

Sullivan was on the winning side of a 2-1 vote (along with Roberson) in April for the Board to have a public meeting on the development of its Fiscal Year 2015 work plans, which was held this week. “Presenting internal staff plans in a business meeting open to the public would spur the timely creation of those plans for FY15 and provide transparency,” Sullivan wrote, adding, “Over halfway through FY14, the Board still does not have an approved annual work plan or staffing plan.” In his vote against Sullivan’s request, Winokur wrote, “I believe that how the Board conducts its business and allocates valuable taxpayer resources must be transparent. However, I do not support this Public DNFSB Meeting because it will use significant Board resources that can be more effectively spent executing the Board’s mission, which is protecting public and worker safety at DOE’s defense nuclear facilities.”

Sullivan Concerned About Access to Board Info

In addition, the vote records show that Sullivan has appeared frustrated, at times, over his own access to the Board information. In June, Sullivan voted to direct the Board Chairman to provide all members full access to staff performance appraisals. “The law is clear. The law directs full access be afforded all Board Members to information regarding the performance of Board functions; employee supervision is expressly named as a Board function; and the provision directing the Chairman to execute employee supervision is expressly subjected to the ‘full access to information’ requirement,” Sullivan wrote in his vote sheet, which was partially redacted. He went on to note, “I have a right under the law to full access of information, and the Chairman has so far denied that right.” Winokur voted against Sullivan’s request, while Roberson chose to abstain, and the motion failed. The issue of whether the Board’s statute requires all Board members have access to performance appraisals has since been referred to the Office of Special Counsel.

Sullivan also sought in July for the DNFSB staff to develop a draft policy on what records or documents are excluded from the statutory mandate requiring each Board member to “have full access to all information relating to the performance of the Board’s functions, powers and mission.” In his vote sheet, Sullivan wrote, “The proposed policy is necessary. Without it, there is no guidance on what information I am prohibited from obtaining. Absent direction from the Board, the Chairman is free to deny access, notwithstanding the clear words in the statue.”

Sullivan’s request was opposed by both Winokur and Roberson. “The information, i.e., records and documents, which is available to Board members, is clearly denied in the Board’s statue,” Winokur wrote in his vote sheet. “Information that deals with ‘policy’ or safety oversight is made available to all Board Members. Information that deals with the administrative functions of the Board rests with the Chairman. Administrative functions include the appointment and supervision of employees of the Board; the organization of any administrative units established by the Board; and the use of expenditure of funds.” Winokur added, “If there is a disagreement over what constitutes ‘policy’ versus ‘administrative functions,’ then the Board Members will vote on the matter as directed under … its Operating Procedures.”