GAO: Concerns persist on DOE Order 140.1

November 3, 2020, 12:00PMNuclear News

The Government Accountability Office (GAO) released a report on October 29 outlining potential issues regarding a 2018 Department of Energy order on how the department, the National Nuclear Security Administration, and their contractors interact with the Defense Nuclear Facilities Safety Board (DNFSB) and its staff. DNFSB is the independent agency responsible for ensuring that DOE facilities are protective of public health and safety.

According to the 81-page GAO report, provisions of DOE Order 140.1, issued in May 2018, restricted DNFSB’s access to information essential to its mission, and a subsequent revision of that order has not eliminated concerns that it would hinder DNFSB in carrying out its oversight responsibilities.

The Pantex Plant in Texas. Photo: DOE

Background: DNFSB was established by statute in 1988 as an independent authority under the executive branch to oversee safety at DOE defense nuclear facilities. As of July 2020, DNFSB and its staff oversee more than 150 such facilities located at 10 active DOE sites across the country, with resident inspectors located at the Hanford Site, Los Alamos National Laboratory, the Pantex Plant, Oak Ridge National Laboratory, and the Savannah River Site.

The DOE has long used an established set of guidelines, called DOE Manual 140.1-1B, for directing its staff and contractors on how they may interact with DNFSB. In 2018, the DOE replaced the manual with Order 140.1, arguing that the manual was outdated and that there was a need to define how the department and DNFSB engaged in their separate roles.

DNFSB objected to the 2018 order, noting that it claimed to exempt on-site workers from the board’s oversight and included provisions improperly limiting its access to information, personnel, and facilities. Subsequent to the DOE’s and DNFSB’s disagreements over Order 140.1, the National Defense Authorization Act (NDAA) of fiscal year 2020, passed in December 2019, amended DNFSB’s original enabling statute, reasserting the board’s oversight role and clarifying when the Secretary of Energy may deny access to information.

Order 140.1A: In response to the FY2020 NDAA, the DOE replaced its 2018 order with Order 140.1A in June of this year. While the DOE did not collaborate with DNFSB on the revised order, the board said that the revisions resolved its previous concerns. Likewise, the GAO found that Order 140.1A “does not include the provisions we identified as inconsistent with DNFSB’s enabling statute.”

In interviews with DOE and DNFSB officials and contractor representatives, however, the GAO found that there was a number of outstanding concerns not addressed in Order 140.1A that could continue to affect how the agencies cooperate and the board’s ability to conduct oversight. Particularly, the GAO noted that the DOE and DNFSB do not have a common understanding of a provision of the board’s enabling statute—section 2286c(b)—that authorizes the Secretary of Energy to deny access to information in certain situations.

The GAO also found the DOE order does not provide clear guidance on how the department should interact with the DOE, creating uncertainties for DOE and contractor staff about how and when they can interact with DNFSB inspectors and staff.

Recommendations: The GAO recommended that the DOE and DNFSB should develop a formal written agreement, such as a memorandum of understanding, to establish a common knowledge of how the DOE will implement section 2286c(b) and clarify procedures for interactions between the two agencies.

The GAO also recommended that the DOE provide more robust training on Order 140.1A and develop better guidance on how to respond to DNFSB document requests.

The DOE agreed with the GAO’s recommendations of developing a written agreement with the board and with updating its guidance. The DOE, however, did not concur with the recommendation on training, arguing that the department already maintains adequate communication and training for the small number of employees responsible for interacting with DNFSB.

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