Morning Briefing - February 21, 2019
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February 21, 2019

DNFSB Chair Won’t Endorse Legal Opinion Endorsing Board Oversight of DOE Workers

By ExchangeMonitor

Three of four members of the Defense Nuclear Facility Safety Board (DNFSB) concurred with a recently published in-house legal opinion that the small, independent federal nuclear watchdog has the right to make safety recommendations for Department of Energy workers. The sole holdout was board Chairman Bruce Hamilton.

The two agencies have disagreed on the point for nearly a year now as part of a 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. 

In 2018, the Energy Department said the DNFSB’s safety oversight does not extend to department contractors and employees working in areas that pose no threat to people outside the boundaries of a DOE site.

DNFSB member Joyce Connery requested Feb. 12 that her colleagues approve the release of Blaine’s opinion, and concur with it. Connery and fellow members Jessie Roberson and Daniel Santos approved the request. Hamilton disapproved.

The DNFSB chair 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.

The DNFSB can make recommendations on safety at DOE sites, but has no regulatory authority. In the Donald Trump administration, DOE has sought to limit the subjects on which the board may make recommendations. Notably, the agency in May issued the controversial Order 140.1, which limits employee and contractor interactions with the DNFSB. 

The DNFSB plans to discuss order 140.1 in a long public hearing scheduled for Thursday in Albuquerque, N.M. Officials from nearby DOE sites are slated to attend.