WASHINGTON — The Defense Nuclear Facilities Safety Board (DNFSB) is not convinced, despite statements from the deputy secretary of energy here this week, that the Department of Energy intends to preserve the independent federal nuclear-watchdog’s unfettered access to U.S. nuclear-weapon sites.
Energy Department officials testified Tuesday before the four-member board about an order published in May concerning the agency’s interactions with the DNFSB.
The order “does not hinder cooperation with the DNFSB or prevent the DNFSB from providing independent analysis, advice and recommendations to either the Secretary [of Energy] or others in the Department,” Dan Brouillette, deputy secretary of energy, said in prepared remarks at Tuesday’s hearing. The DOE No. 2 read from a prepared statement and departed DNFSB headquarters without taking questions from board members. He declined to speak with Nuclear Security & Deterrence Monitor.
The DNFSB has no formal regulatory power over DOE, but it may make formal recommendations to which the secretary of energy must publicly agree or disagree. The board has about 100 full-time employees, including eight resident inspectors posted at five DOE nuclear weapons and cleanup sites.
Not a single DNFSB member on Tuesday interpreted the new DOE order as Brouillette did. All board members worried it will greatly diminish their agency’s access to important facilities, documents, and staff, while defanging their primary lever for influencing DOE policy — formal safety recommendations.
Order 140.1 requires DOE contractors to obtain permission from the agency to interact with DNFSB personnel, while also barring DNFSB access to any official information the department dubs predecisional. The order also specifies that the Energy Department will not respond to formal safety recommendations about certain DOE buildings and personnel, leading DNFSB members to conclude the agency intends to block the board and its inspectors from vital weapons facilities.
Chris Roscetti, DNFSB technical director, said Order 140.1 could: reduce the number of DOE weapons facilities to which the board has access by about 70 percent; make important paperwork off-limits — for example, the widely used documented safety analyses that describe hazards associated with building, operating, and cleaning up nuclear facilities; and block resident inspectors at DOE weapons sites from attending meetings with departmental and contractor personnel.
A day after the hearing, New Mexico’s U.S. Senate delegation — allies of DOE’s Los Alamos and Sandia national laboratories in the state — picked up that thread in a letter to the heads of the Senate Appropriations energy subcommittee.
In the letter dated Aug. 30, Sens. Martin Heinrich (D) and Tom Udall (D) asked Sens. Lamar Alexander (R-Tenn.) and Dianne Feinstein (D-Calif.) to include language in the final 2019 energy appropriations bill “that suspends DOE order 140.1, which on its face appears to restrict the amount of information the board can access for its safety oversight at DOE sites.”
The Energy Department’s 2019 budget is part of a so-called minibus appropriations bill awaiting final bicameral conference negotiations when the House and Senate both return to Washington next week. The bill funds agencies besides DOE and was supposed to go to conference months ago. Negotiations were abruptly postponed in July by what Republicans called a scheduling conflict, but which Democrats said was the majority’s refusal to entertain changes to the legislation unrelated to DOE nuclear sites.
Meanwhile, apart from the perceived choking-off of access to DOE nuclear-weapon sites, DNSFB members worried Order 140.1 weakens their ability to protect public safety by prohibiting the board from making formal recommendations about worker safety at nuclear-weapon facilities.
“The Department took a position that it was outside of the board’s authority to speak on worker protection” in a formal recommendation, DNFSB member Jessie Hill Roberson said during the meeting.
Matthew Moury, DOE’s associate undersecretary for environment, health, safety, did not contest Roberson’s reading of the rule, but countered that the board has “other tools available to you to communicate issues” about health and worker safety at DOE nuclear sites.
Moury said responding to a formal DNFSB recommendation is more expensive and resource-draining than discussing safety issues through back channels. But discussing safety concerns outside a recommendation — to which DOE must openly reply — could prevent potential public health threats from coming to light, board members said.
“They won’t necessarily limit our access, but they will limit their response,” DNFSB member Joyce Connery, a former board chair, said of DOE. “And our effectiveness is only as good as the department response to our advice.”
The DNFSB has made just under 60 formal recommendations to DOE on topic such as emergency preparedness at the Pantex Plant, a nuclear-weapon assembly and disassembly site in Texas, and the safety culture at the Waste Treatment Plant being built at the Hanford Site in Washington state. The most recent recommendation was issued in 2015. The agency has yet to reply to four of those recommendations.
Connery also challenged DOE’s assumption that the agency’s own rules are sufficient to protect its own federal and contract workers.
“Low-level events … may impact only the workers prior to a series of failures which could ultimately lead to a release of [contaminants] off-site,” she said. “If I cannot evaluate all the layers of defense in-depth to understand where potential weaknesses exist, I cannot make a determination of adequate protection for the public.”
The board also raised alarm about another decision baked into Order 140.1: that DOE facilities the agency has deemed least likely to spread contamination off-site — those carrying the hazard category three designation — pose no threat to public health and should therefore not be the subject of formal DNFSB recommendations.
Among the agency’s hazard category three facilities is the Radiological Laboratory/Utility/Office Building at the Los Alamos National Laboratory: a key cog in the agency’s plans to begin building new nuclear weapon cores called plutonium pits by 2026. In early August, DOE affirmed it would carry out a plan unveiled earlier this year to increase the amount of plutonium-equivalent material allowed in the Los Alamos building by roughly tenfold: to 400 grams from just under 40 grams.
Both Moury and William “Ike” White, associate principal deputy administrator for DOE’s semiautonomous National Nuclear Security Administration, said they do not believe it is necessary to temporarily lift the new order so DNFSB and Congress can review it in detail.
