Three Department of Energy field managers in New Mexico said Thursday that an agency order issued last year will bring little change in a good relationship with an independent federal watchdog, the Defense Nuclear Facilities Safety Board (DNFSB).
The officials offered the commitment at a DNFSB public hearing in Albuquerque, N.M. The four board members and about 20 representatives of the public who spoke at the event appeared unconvinced.
It seems DOE officials “really didn’t mean what they wrote, or they really won’t follow what they wrote,” DNFSB Chairman Bruce Hamilton said near the end of the hearing, which lasted more than three hours. This is curious coming from a nuclear culture that typically stresses the letter of the law, he added.
At issue is Order 140.1, which DOE published in May 2018. The document seemingly limits the number of specific facilities at federal complexes where the DNFSB has oversight; stipulates the board should focus on off-site health and safety, rather than worker issues; and makes it easier for the agency and its contractors to refuse some board information requests.
The Energy Department says the order, which is already in effect, will allow it to speak with one voice to the DNFSB and reduce the emphasis on review of DOE’s pre-decisional thinking.
The manager for the Office of Environmental Management Field Office at the Los Alamos National Laboratory, Doug Hintze, said his staff continues to have an excellent relationship with the DNFSB. While he did not identify any weaknesses with the old systems, he said the new order does not create any problems either.
Similar opinions were expressed by two other DOE officials at the hearing: Steve Goodrum, manager of the Los Alamos Field Office for the semiautonomous National Nuclear Security Administration; and Jeffrey Harrell, who holds the same position at the Sandia National Laboratories.
The board’s mission is to provide independent safety analysis, advice, and recommendations to the secretary of energy. It has resident inspectors assigned to the Hanford Site in Washington state, Los Alamos, the Pantex Plant in Texas, the Savannah River Site in South Carolina, and the Y-12 National Security Complex and Oak Ridge National Laboratory in Tennessee. The board also monitors safety at Sandia and a handful of other DOE properties.
The DOE field managers said they expect few if any situations where a DNFSB inspector would be denied access to a facility, or that the department would reject an information request from the board.
Line managers want to draw upon information from all experts available – including state and federal agencies, as well as the DNFSB, according to Hintze. Agency managers are responsible for safety and they benefit from reports and recommendations from entities such as the DNFSB, he said.
Board member Joyce Connery drew a distinction, saying the DNFSB is not just an advisory panel of experts or a think tank, but a provider of congressionally mandated oversight. Connery and DNFSB member Jessie Hill Roberson also questioned Hintze’s assessment that “personalities” are probably as important to a working relationship as the language of the order.
While Connery said she admires the devotion to safety of the current corps of DOE field managers, what they said at the hearing doesn’t align with the order. She would like the order suspended while revisions are made to clarify that the Energy Department is not trying to declaw the board.
Roberson said a formal relationship cannot be fully defined by personalities, because current managers at DOE will eventually retire or move on. Their replacements are likely to be guided by the specific language of the order.
Roberson also praised Sandia, which has provided the DNFSB with its implementation procedures for Order 140.1. That is helpful because the order was intended to provide clarity, she said. Sandia is the only laboratory in New Mexico to have done this, Roberson suggested.
Hintze said he has not called for written procedures implementing the new order, in part because he sees no major change from the status quo.
Energy Department witnesses indicated their staffs have been briefed on implementation of Order 140.1. The contractors at the Los Alamos National Laboratory, Triad National Security for management and operations and Newport News Nuclear BWXT Los Alamos (N3B) for environmental remediation, will soon receive contract modifications that incorporate compliance with the new order.
Parade of Speakers Blast Order
This was the latest in a series of DNFSB hearings on the DOE order.
“We wish to state for the record that this order is illegal,” Trish Williams-Mello, operations director for the nongovernmental Los Alamos Study Group, said during the public session.
The order to curb the DNFSB’s authority is happening at the same time the Trump administration is trying to ramp up production of fissile nuclear-warhead cores at Los Alamos and the Savannah River Site, Williams-Mello said.
Nuclear Waste New Mexico Executive Director Jay Coghlan agreed with both points. Deeming the measure illegal is a blunt way of expressing the DNFSB position that the order is at odds with the board’s congressional mandate, he said. Also, “If the order is not going to really change things, then why have it? Withdraw it.”
Coghlan highlighted testimony Thursday from DNFSB Technical Director Chris Roscetti, who indicated while DOE has taken longer to respond to some information requests since last May, negative impact to the board’s safety mission has been minimal so far.
“I think DOE is currently soft-peddling the order,” Coghlan said, adding he expects the denial of information requests to increase over time as the order becomes embedded in the culture. “Don’t let DOE or NNSA mess with you,” he added.
John Heaton, who chairs the Mayor’s Nuclear Task Force in Carlsbad, said the DNFSB and the U.S. Mine Safety and Health Administration are two “truly independent” regulators at DOE’s nearby Waste Isolation Pilot Plant. Heaton expressed concern about the board’s reduced access to documents under the order, as well as its reduced ability to protect workers at the transuranic waste disposal facility.
Board member Daniel Santos said after the conclusion of the hearing that the order does nothing to increase public trust in the Energy Department. The agency can do its job “without challenging the rule of law.”
Santos also said he will seek more public DNFSB hearings on the matter.
Last week, during a presentation at the ExchangeMonitor’s Nuclear Deterrence Summit in Arlington, Va., Hamilton said the board had not ruled out legal action against the DOE order.
On Thursday, Hamilton concluded by saying his key consideration remains: Is the order “consistent with the Atomic Energy Act? In my opinion it is not.” The order shrinks board oversight and hurts its ability to be an outside watchdog on safety and health, Hamilton said.
Despite his broad feelings about Order 140.1 not confirming to the Atomic Energy Act, Hamilton was recently the only board member not to endorse an in-house legal opinion that DNFSB has the right to make safety recommendations for Department of Energy workers
Board Chair Dissents on Legal Opinion Endorsing Board Oversight of DOE Workers
The DNFSB chairman was recently the sole holdout from board concurrence with an in-house legal opinion that the board has the right to make safety recommendations for Department of Energy workers.
The two agencies have disagreed on the point for nearly a year now as part of their broader debate over the roughly $30-million-a-year DNFSB’s congressional authority the protect the public from hazards at the roughly $30-billion-a-year DOE’s current and former nuclear-weapon sites.
Congress created the DNFSB in 1988 with amendments to the Atomic Energy Act. Those amendments gave the board a mandate to protect public health and safety, and the public includes DOE workers, Casey Blaine, DNFSB acting general counsel, wrote in a Feb. 6 opinion.
“The meaning of ‘public health and safety’ in the [Atomic Energy Act], consistent with the plain meaning of the word ‘public,’ includes workers at DOE facilities,” Blaine wrote.
Connery requested Feb. 12 that her colleagues approve the release of Blaine’s opinion, and concur with it. She joined Roberson and Santos to approve the request. Hamilton disapproved.
Hamilton said he did not oppose making the legal opinion public, but that he would not publicly concur with its contents to avoid micromanaging the board’s roughly 80 technical staffers.
“Whether, how and when the technical staff should be trained on this subject, as with most topics, are decisions better delegated to the Technical Director,” Hamilton wrote in a statement appended to Blaine’s opinion.
