Reading Room

New DOE Order and a Reorganization Plan Threatened the Effectiveness of the Safety Board – And We Responded

Wednesday, October 3, 2018
Posted by Kathy Crandall Robinson

The federal Defense Nuclear Facilities Safety Board (DNFSB) plays a crucial role in providing safety investigation and oversight for activities at Livermore Lab and at many other facilities throughout the nuclear weapons complex. Recently, the role and effectiveness of DNFSB has been put at risk by two challenges.

Tri-Valley CAREs led efforts to counter both challenges, and we have some good news to report.

Challenge # 1: DOE Order 140.1

The first challenge to DNFSB effectiveness is Department of Energy (DOE) Order 140.1 Interface with the Defense Nuclear Facilities Safety Board issued in May 2018. Order 140.1 governs the relationship between DOE (including the National Nuclear Security Administration, NNSA) and DNFSB. This Order limits access to information, people, and operations at key facilities and it significantly curtails the Safety Board’s oversight authority, thus endangering nuclear site workers and the public. The Order was issued by DOE with very little input from DNFSB, no input from the key stakeholders at sites or other members of the public, and virtually no input from Congress. Many analysts, including lawmakers and government officials, believe that Order 140.1 is at odds with the Atomic Energy Act enabling legislation that first created DNFSB. See the letter sent from DNFSB to the Energy Secretary outlining key concerns that include hindering or thwarting DNFSB access to key facilities, key people (including site contractors), and pre-decisional documents and deliberative processes. DOE Order 140.1 also redefines the public health and safety that DNFSB is charged with protecting as only including the health and safety of individuals located beyond the site boundaries of DOE sites.

What Tri-Valley CAREs Did to Address DOE Order 140.1

In August, Tri-Valley CAREs worked with the Alliance for Nuclear Accountability (ANA) in developing a fact sheet and press release critiquing DOE Order 140.1. ANA also sent a letter to Secretary of Energy requesting that order 140.1 be rescinded, or at a minimum, that hearings about the Order be held at each site where DNFSB conducts oversight. See ANA materials related to Order 140.1

Additionally, Kathy Crandall Robinson, a senior policy consultant to Tri-Valley CAREs, offered testimony on the Order at DNFSB Headquarters in Washington, DC on Tuesday, August 28. See the full record of hearing proceedings and public comments received.

Tri-Valley CAREs also raised concerns about Order 140.1 on Capitol Hill. We met with key congressional offices, particularly offices of members of Congress who serve on committees that provide oversight and funding for the DNFSB.

Good News and Next Steps to Change DOE Order 140.1

We were pleased that every DNFSB Board Member raised concerns about DOE Order 140.1 at the August 28 hearing, and that, following the hearing, Safety Board Members unanimously voted to send a letter raising key concerns and asking DOE to suspend the Order so that DNFSB could “collaborate with [DOE] on what revisions would be appropriate.”

The Safety Board is currently working on internal “Red Line Strike Out” editing advice on Order 140.1 to provide DOE. Additionally, DNFSB plans to hold two more public hearings on the Order, with one hearing in Washington, DC and one in New Mexico near the Los Alamos National Lab. While the dates and times of the hearings have not been finalized, they are anticipated to take place in late fall and winter. (Stay tuned.)

The final Energy and Water appropriation for Fiscal Year (FY) 2019 included language that requires DOE to provide a briefing for the House and Senate Appropriations Committees to explain the Order including how DOE is responding to concerns from DNFSB and the public, and how DOE is carrying out implementation of the Order. We also expect, and will encourage, the House and Senate Armed Services Committees to raise issues regarding Order 140.1 as part of their consideration of the FY 2020 National Defense Authorization Act.

Challenge # 2: Reorganization of DNFSB

A second challenge to DNFSB came on August 15, 2018 when DNFSB announced that it had made an internal decision to reorganize and restructure the Safety Board, including by making significant cuts to the number of full-time employees working at DNFSB. The announcement was a surprise to DNFSB staff and Congress as well as the public and site stakeholders. The reorganization was strongly opposed by one Safety Board Member, Joyce Connery, who criticized the internal DNFSB process of developing the plan and also stated, “Any significant attempt at diminution of the Agency, its mission, or function should be considered in full public view with stakeholders able to make their views known.”

Tri-Valley CAREs’ Response to DNFSB Reorganization

Tri-Valley CAREs, along with others, was deeply concerned that the proposed dramatic restructuring and employee cuts would compound the diminished role and effectiveness of DNFSB resulting from Order 140.1 implementation. Indeed, these dual challenges could create a death spiral leading to the demise of the Defense Board playing any meaningful role. Thus, as Tri-Valley CAREs met with key congressional staff about Order 140.1, we also raised key concerns about the proposed reorganization.

Congressional offices were especially disturbed that reorganization plan was announced very late in the annual congressional budget process. This is significant because the plan drastically altered the budget and workplan for the DNFSB that Congress had reviewed for the FY 2019 budget approval. Although the DNFSB reorganization was announced after the National Defense Authorization Act was completed, the Energy and Water Appropriations measure had not yet been completed.

Good News and Next Steps on DNFSB Reorganization

The final Energy and Water Appropriation for FY 2019 effectively blocks this DNFSB reorganization plan. The Appropriation language bars appropriated funds from being used to implement the announced DNFSB reorganization plan, or any other reorganization plan unless it is specifically authorized by law. Internally DNFSB officially notified staff that it would not move forward with the plan. (In fact, it is now hard to find evidence of the proposed reorganization on the DNFSB website.)

However, further discussion about the overall structure and organization of DNFSB is expected from a different source this year. In March 2018, the National Academy of Public Administration (NAPA) undertook an assessment of DNFSB aiming to develop findings and recommendations for improved efficiency and effectiveness. The assessment is expected to be completed later this month. (Stay tuned.)

Tri Valley CARE’s will continue to follow developments of both DNFSB reorganization issues and efforts to modify Order 140.1. Our goal is to strengthen the Safety Board’s effective oversight of nuclear weapons facilities to protect public and worker health and safety. An effective DNFSB is particularly vital given plans outlined in the Trump Administration’s Nuclear Posture Review and related policy and budget documents to expand nuclear weapons production with all of its attendant dangers.

CLICK HERE to read Kathy Crandall Robinson’s full testimony at the DNFSB’s August 28th hearing on DOE Order 140.1

See also our August 27, 2018 press release, Tri-Valley CAREs, National Alliance to Testify at DC Hearing on Nuclear Safety