New Mexico’s entire congressional delegation this month called on the Department of Energy to suspend a controversial order that the federal Defense Nuclear Facilities Safety Board (DNFSB) says has curtailed its access to nuclear-weapon sites.
The Energy Department should lift the almost 2-year-old Order 140.1 to comply with recent changes to federal law that require the agency and its contractors to grant the board “prompt and unfettered access” to nuclear weapons facilities and the people who work there, the five Democrats representing New Mexico wrote in a Jan. 17 letter to Energy Secretary Dan Brouillette.
The requirement for “prompt and unfettered access” is included in the 2020 National Defense Authorization Act. The annual defense policy bill, which also theoretically sets funding limits for DOE and the DNFSB, became law in December, only days after Brouillette was sworn in as the 15th secretary of energy.
“We will follow closely the Department’s strict adherence to the clear intent of these important legislative provisions,” the lawmakers wrote in the letter, which Nuclear Security & Deterrence Monitor obtained.
In 2018, Brouillette, then deputy secretary of energy to Secretary Rick Perry, signed Order 140.1, which blocked DNFSB access to nuclear facilities that DOE said posed no hazard to the public. The order also forbade agency and contractor personnel from speaking with DNFSB inspectors without first getting approval from senior DOE management.
The DNFSB complained immediately that the order was illegal, and that the Atomic Energy Act gives the board sole discretion to determine whether a nuclear-weapon site poses a hazard to the public. The DNFSB said specifically in 2019 that DOE had blocked inspectors from observing nuclear explosive safety meetings at the Pantex Plant in Amarillo, Texas.
The DNFSB does not regulate the Energy Department, but it may make safety recommendations about nuclear-weapon facilities — except naval nuclear reactor sites — with which the secretary of energy must publicly agree or disagree.
A spokesperson for DOE did not reply to a request for comment.
Sen. Martin Heinrich (D), set to become New Mexico’s senior senator after Sen. Tom Udall (D) retires following the 2020 election, has lately led the delegation’s advocacy for the state’s two Energy Department nuclear-weapon laboratories, along with the Waste Isolation Pilot Plant transuranic waste disposal site.
Heinrich is the ranking member on the Senate Armed Services strategic forces subcommittee that writes the nuclear-weapon parts of the National Defense Authorization Act, as well as a member of the Senate Energy and Natural Resources Committee that presided over Brouillette’s secretarial confirmation hearing in November.
During the vetting process, Heinrich asked Brouillette whether he would, if confirmed, meet with the DNFSB “to resolve the continuing conflict over Order 140.1.”
Brouillette replied in writing that “The Order does not diminish the DNFSB’s legal authority,” nor “prevent the DNFSB from conducting its independent safety oversight mission.” This is essentially the same position DOE took when it wrote Order 140.1: a stance founded on the department’s legal interpretation of the Atomic Energy Act.