Nuclear Safety
Department of Energy Needs to Strengthen Its Independent Oversight of Nuclear Facilities and Operations Gao ID: GAO-09-61 October 23, 2008The Department of Energy (DOE) oversees contractors that operate more than 200 "high-hazard" nuclear facilities, where an accident could have serious consequences for workers and the public. DOE is charged with regulating the safety of these facilities. A key part of DOE's self-regulation is the Office of Health, Safety and Security (HSS), which develops, oversees, and helps enforce nuclear safety policies. This is the only DOE safety office intended to be independent of the program offices, which carry out mission responsibilities. This report examines (1) the extent to which HSS meets GAO's elements of effective independent nuclear safety oversight and (2) the factors contributing to any identified shortcomings with respect to these elements. GAO reviewed relevant DOE policies, interviewed officials and outside safety experts, and surveyed DOE sites to determine the number and status of nuclear facilities. GAO also assessed oversight practices against the criteria for independent oversight GAO developed based on a series of reports on DOE nuclear safety and discussions with nuclear safety experts.
HSS falls short of fully meeting GAO's elements of effective independent oversight of nuclear safety: independence, technical expertise, ability to perform reviews and have findings effectively addressed, enforcement, and public access to facility information. For example, HSS's ability to function independently is limited because it has no role in reviewing the "safety basis"--a technical analysis that helps ensure safe design and operation of these facilities--for new high-hazard nuclear facilities and because it has no personnel at DOE sites to provide independent safety observations. In addition, although HSS conducts periodic site inspections and identifies deficiencies that must be addressed, there are gaps in its inspection schedule and it lacks useful information on the status of the safety basis of all nuclear facilities. For example, HSS was not aware that 31 of the 205 facilities did not have a safety basis that meets requirements established in 2001. Finally, while HSS uses its authority to enforce nuclear safety requirements, its actions have not reduced the occurrence of over one-third of the most commonly reported violations in the last 3 years, although this is a priority for HSS. These shortcomings are largely attributable to DOE's decision that some responsibilities and resources of HSS and prior oversight offices more appropriately reside in the program offices. For example, DOE decided in 1999 to eliminate independent oversight personnel at its sites because they were deemed redundant and less effective than oversight by the program offices. DOE also decided in forming HSS in 2006 that its involvement in reviewing facility safety basis documents was not necessary because this is done by the program offices and adequately assessed by HSS during periodic site inspections. Moreover, DOE views HSS's role as secondary to the program offices in addressing recurring nuclear safety violations. Nearly all these shortcomings are in part caused by DOE's desire to strengthen oversight by the program offices, with HSS providing assistance to them in accomplishing their responsibilities. In the absence of external regulation, DOE needs HSS to be more involved in nuclear safety oversight because a key objective of independent oversight is to avoid the potential conflicts of interest that are inherent in program office oversight.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-09-61, Nuclear Safety: Department of Energy Needs to Strengthen Its Independent Oversight of Nuclear Facilities and Operations
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
October 2008:
Nuclear Safety:
Department of Energy Needs to Strengthen Its Independent Oversight of
Nuclear Facilities and Operations:
GAO-09-61:
GAO Highlights:
Highlights of GAO-09-61, a report to congressional requesters.
Why GAO Did This Study:
The Department of Energy (DOE) oversees contractors that operate more
than 200 ’high-hazard“ nuclear facilities, where an accident could have
serious consequences for workers and the public. DOE is charged with
regulating the safety of these facilities. A key part of DOE‘s self-
regulation is the Office of Health, Safety and Security (HSS), which
develops, oversees, and helps enforce nuclear safety policies. This is
the only DOE safety office intended to be independent of the program
offices, which carry out mission responsibilities.
This report examines (1) the extent to which HSS meets GAO‘s elements
of effective independent nuclear safety oversight and (2) the factors
contributing to any identified shortcomings with respect to these
elements. GAO reviewed relevant DOE policies, interviewed officials and
outside safety experts, and surveyed DOE sites to determine the number
and status of nuclear facilities. GAO also assessed oversight practices
against the criteria for independent oversight GAO developed based on a
series of reports on DOE nuclear safety and discussions with nuclear
safety experts.
What GAO Found:
HSS falls short of fully meeting GAO‘s elements of effective
independent oversight of nuclear safety: independence, technical
expertise, ability to perform reviews and have findings effectively
addressed, enforcement, and public access to facility information. For
example, HSS‘s ability to function independently is limited because it
has no role in reviewing the ’safety basis“”a technical analysis that
helps ensure safe design and operation of these facilities”for new high-
hazard nuclear facilities and because it has no personnel at DOE sites
to provide independent safety observations. In addition, although HSS
conducts periodic site inspections and identifies deficiencies that
must be addressed, there are gaps in its inspection schedule and it
lacks useful information on the status of the safety basis of all
nuclear facilities. For example, HSS was not aware that 31 of the 205
facilities did not have a safety basis that meets requirements
established in 2001. Finally, while HSS uses its authority to enforce
nuclear safety requirements, its actions have not reduced the
occurrence of over one-third of the most commonly reported violations
in the last 3 years, although this is a priority for HSS.
These shortcomings are largely attributable to DOE‘s decision that some
responsibilities and resources of HSS and prior oversight offices more
appropriately reside in the program offices. For example, DOE decided
in 1999 to eliminate independent oversight personnel at its sites
because they were deemed redundant and less effective than oversight by
the program offices. DOE also decided in forming HSS in 2006 that its
involvement in reviewing facility safety basis documents was not
necessary because this is done by the program offices and adequately
assessed by HSS during periodic site inspections. Moreover, DOE views
HSS‘s role as secondary to the program offices in addressing recurring
nuclear safety violations. Nearly all these shortcomings are in part
caused by DOE‘s desire to strengthen oversight by the program offices,
with HSS providing assistance to them in accomplishing their
responsibilities. In the absence of external regulation, DOE needs HSS
to be more involved in nuclear safety oversight because a key objective
of independent oversight is to avoid the potential conflicts of
interest that are inherent in program office oversight.
Figure: Photographs of DOE Nuclear Facilities at the Hanford Site and
Idaho National Laboratory:
[See PDF for image]
Source: DOE.
[End of figure]
What GAO Recommends:
GAO recommends the Secretary of Energy take actions to address HSS‘s
shortcomings in independent oversight of nuclear safety. DOE disagreed
with the report‘s conclusions, but generally agreed with three of GAO‘s
five recommended actions.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-09-61]. For more
information, contact Gene Aloise at (202) 512-3841 or aloisee@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
HSS Falls Short of Fully Meeting Our Five Elements of Effective
Independent Oversight of Nuclear Safety:
A Reduction of Responsibilities and Resources at HSS and Its
Predecessors Was the Main Factor Contributing to Shortcomings in
Effective Oversight of Nuclear Safety:
Conclusions:
Recommendations for Executive Action:
Matter for Congressional Consideration:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: DOE Nuclear Safety Regulations and Related Directives:
Appendix III: HSS Organizational Chart:
Appendix IV: Aggregate Results from Survey of DOE High-Hazard Nuclear
Facilities:
Appendix V: Options for External Regulation of DOE Nuclear Facilities:
Appendix VI: Comments from the Department of Energy:
Appendix VII: Comments from the Defense Nuclear Facilities Safety
Board:
Appendix VIII: Comments from the Nuclear Regulatory Commission:
Appendix IX: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Number of Environment, Safety, and Health Program Inspections
from 1995 to 2007 at DOE Sites with High-Hazard Nuclear Facilities:
Table 2: Reported Violations of the DOE Nuclear Safety Requirement to
Perform Work Consistent with Technical Standards at Selected DOE Sites
from 2005 to 2007,by Frequency:
Table 3: Notices of Violation, Enforcement Letters, and Program Reviews
at DOE Sites with High-Hazard Nuclear Facilities from 1995 to 2007:
Table 4: DOE Nuclear Safety Regulations and Related Directives:
Figures:
Figure 1: Advanced Test Reactor at Idaho National Laboratory, a Hazard
Category 1 Facility:
Figure 2: Workers Changing Out Equipment at the Tank Farms at the
Hanford Site, a Hazard Category 2 Facility:
Figure 3: U-Plant at the Hanford Site, a Hazard Category 3 Facility:
Figure 4: Nuclear Safety Roles, Responsibilities, and Authorities for
Nuclear Facilities:
Figure 5: Trends in the Number of Notices of Violations and Enforcement
Letters and Entries into the Noncompliance Tracking System from 1999 to
2007:
Abbreviations:
DOE: Department of Energy:
HSS: Office of Health, Safety and Security:
JCO: Justification for Continued Operation:
NNSA: National Nuclear Security Administration:
NRC: Nuclear Regulatory Commission:
PISA: Potential Inadequacies in the Safety Analysis:
SBIS: Safety Basis Information System:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
October 23, 2008:
The Honorable John D. Dingell:
Chairman:
Committee on Energy and Commerce:
House of Representatives:
The Honorable Bart Stupak:
Chairman:
Subcommittee on Oversight and Investigations:
Committee on Energy and Commerce:
House of Representatives:
The Honorable Sherrod Brown:
United States Senate:
The Department of Energy (DOE) is unusual among federal agencies in
that it regulates and inspects the safety of its own nuclear facilities
and operations, while the Nuclear Regulatory Commission (NRC) regulates
virtually all other federal nuclear facilities and all commercial,
industrial, academic, and medical users of nuclear materials.[Footnote
1] The Congress gave DOE and its predecessor organizations the
authority to regulate nuclear safety when they were formed. DOE self-
regulation, however, creates a potential conflict of interest between
meeting the mission objectives of the department while at the same time
ensuring the proper independent emphasis on safety. This potential
conflict was highlighted in a 2004 recommendation of the Defense
Nuclear Facilities Safety Board (Safety Board) to DOE on ways to
improve oversight of complex, high-hazard nuclear operations.[Footnote
2] The Safety Board noted that the possibility of a nuclear accident at
a DOE facility was growing, in part because there was increased
emphasis on productivity at the possible expense of safety, and that
there had been a reduction in central oversight of safety. The Safety
Board pointed out that despite a long and successful history of nuclear
operations at DOE--during which DOE developed a structure and
requirements to achieve nuclear safety--the Safety Board determined the
need to recommend changes, including increasing central oversight of
nuclear safety by the program offices at headquarters.[Footnote 3] In
addition, we reported in October 2007 on three DOE weapons laboratories
with records of recurring accidents and violations of nuclear safety
requirements.[Footnote 4] We found that these events stemmed largely
from lax implementation of safety procedures, weaknesses in identifying
and correcting safety problems and inadequate oversight. There are 15
other DOE sites that have high-hazard nuclear facilities,[Footnote 5]
including two nuclear research reactors and other nuclear facilities
for waste management, research, and weapons development.
DOE self-regulation of nuclear safety has three internal components.
The program offices, both at headquarters and at DOE sites, have
primary responsibility for nuclear safety, and also carry out the
department's environmental cleanup, research, and national security
missions. The program offices oversee the contractors that manage and
operate DOE sites. The contractors are responsible for the safe design,
construction, and operation of the nuclear facilities. To accomplish
these tasks, contractors, among other things, need to prepare a
technical analysis, known as the "safety basis," for each high-hazard
nuclear facility to provide reasonable assurance that the facility can
be constructed and operated safely. The safety basis is reviewed and
approved by the program office as part of its authorization process for
both the construction and operation of a nuclear facility. This
authorization addresses both the design for operability and production,
as well as safety. NRC found in its recent review of DOE regulatory
processes at the Hanford Waste Treatment Plant that the department's
approach to authorization, although similar in some respects to NRC
licensing, is substantially different from NRC's implementation of its
licensing activities.[Footnote 6] For example, NRC found that DOE's use
of a design-build approach for this plant leads to more significant
changes in the authorization basis during the construction period,
which makes the change-control process more important for ensuring
safety under DOE regulation than it would under NRC regulation. In
addition to program office oversight, DOE has an independent oversight
office, the Office of Health, Safety and Security (HSS). HSS is
responsible for policy development, independent oversight, enforcement,
and assistance in the areas of health, safety, environment, and
security. Among its functions are periodic appraisals of the
environment, safety, and health programs at DOE sites, including
evaluation of a sample of high-hazard nuclear facilities at these sites
to determine if the program offices and their contractors are complying
with DOE policies. The Secretary of Energy created HSS in October 2006,
incorporating most of the responsibilities from the former Office of
Environment, Safety and Health and the Office of Safety and Security
Performance Assurance. HSS is the only office within DOE that oversees
these programs without influence from the program offices, thus
avoiding the potential conflict of interest inherent with program
office oversight and helping to ensure public confidence in the
department's ability to self-regulate nuclear safety.
In addition to the internal components of DOE self-regulation of
nuclear safety, the department also considers assessments and
recommendations from external organizations, most prominently the
Safety Board. The Safety Board provides independent safety oversight of
DOE defense nuclear facilities. These facilities are located at six
Office of Environmental Management sites and seven National Nuclear
Security Administration (NNSA) sites. The Safety Board has broad
oversight responsibilities regarding these facilities and seeks to use
informal interactions with DOE to resolve safety issues at these sites
but also uses formal communications, such as recommendations, to
typically address broader safety issues across the DOE complex. The
Safety Board does not have the authority of a regulator but rather uses
these forms of communication with DOE to implement what the board
considers to be its statutory "action forcing" authorities. Other
external organizations that provide assessments to the Secretary of
Energy on the management of DOE sites include ad hoc review committees;
DOE's Office of Inspector General; the Institute of Nuclear Power
Operations, a nuclear industry evaluation and advisory organization;
the National Academy of Sciences; in some cases, NRC; and GAO.
We have reported on the need for effective independent oversight of
nuclear safety across the DOE complex, finding that a strong management
and oversight program is needed to assure that DOE's nuclear operations
are carried out in a safe and environmentally acceptable manner.
Starting in 1977,[Footnote 7] we argued for creating and strengthening
an independent oversight office within DOE and its predecessor
organization, the Energy Research and Development Administration.
Notwithstanding our support for this office, we found that internal
oversight alone was not sufficient to provide a fully independent
review process. In a 1986 report,[Footnote 8] we recommended that an
external organization also review the safety basis for each new DOE
nuclear facility, and we supported the establishment of the Safety
Board. Even with the advisory oversight provided by the Safety Board,
in the mid-1990s, the Congress considered legislation to externally
regulate nuclear safety at DOE facilities and held hearings on this
issue. Although no legislation was enacted, DOE responded by creating
advisory committees to help formulate its position and to assess the
benefits and costs of shifting away from self-regulation, if so
directed. A 1995 DOE advisory committee report recommended that all
aspects of nuclear safety should be externally regulated by an existing
agency, either a restructured and enlarged Safety Board or NRC.
[Footnote 9] Over the next 3 years, a diverse team of DOE senior
managers, NRC representatives, and interested stakeholders continued to
review the external regulation approach for the department. In 1999,
DOE decided not to pursue external regulation legislation based on its
conclusion that the safety benefits of this change would be minimal
when compared to the cost of external regulation. In contrast, we
testified in 1999 and 2000 that transitioning DOE's nondefense research
laboratories to regulation by NRC and the Occupational Safety and
Health Administration seemed workable, followed by a phasing in of the
defense nuclear facilities.[Footnote 10] In 2002 and 2003,[Footnote 11]
we reported that external regulators could potentially regulate DOE
more effectively and at less cost than the department. See appendix V
for a discussion of two options that have been identified to externally
regulate DOE nuclear facilities.
In considering legislation to establish the Safety Board in 1987, we
identified some key elements that should be possessed by any nuclear
safety oversight organization in order for it to provide effective
independent oversight.[Footnote 12] We developed these elements based
on a long history of reviewing nuclear safety at DOE and supporting
independent oversight. We have updated these elements for this report
primarily through the addition of enforcement authority. We also
discussed these elements with outside nuclear safety experts. The
elements are:
* Independence: The organization should be structurally distinct and
separate from DOE program offices to avoid management interference or
conflict between program office mission objectives and safety.
* Technical expertise: The organization should have sufficient staff
with the expertise to perform sound safety assessments.
* Ability to perform reviews and require that findings be addressed:
The organization should have the working knowledge necessary to review
a facility's compliance with nuclear safety requirements, developed
through periodic reviews and it should also have sufficient authority
to require the program offices to effectively address its review
findings and recommendations.
* Enforcement authority: The organization should have sufficient
authority to achieve compliance with DOE nuclear safety requirements.
* Public access: The organization should provide public access to its
reports so that those most affected by operations can get facility
information.
Given the importance of having a strong internal office to provide
independent oversight of nuclear safety at DOE sites, this report
examines (1) the extent to which HSS meets our elements of effective
independent nuclear safety oversight and (2) the factors contributing
to any identified shortcomings with respect to these elements. The
objectives of our review were focused on whether the structure and
functions of HSS allow it to provide effective independent oversight of
nuclear safety. Our review was not intended to be a comprehensive
assessment of safety management across the entire department.
To review the extent to which HSS meets our elements of effective
independent nuclear safety oversight, we examined HSS's structure and
functions with respect to nuclear safety. Because HSS was formed only
in late 2006, we also examined the structure and functions of the
offices that were combined to form this office, principally the former
Office of Environment, Safety and Health and the former Office of
Safety and Security Performance Assurance. Our elements of effective
independent nuclear safety oversight came from combining two of the
five elements from our 1987 report and adding enforcement authority as
an element. We added enforcement authority because it was given to DOE
at about the same time as the formation of the Safety Board but not
considered in the legislative proposal that we assessed in this report.
In some cases, we further defined these elements based on
recommendations from our past reports, HSS guidance, and discussions
with outside nuclear safety experts. We reviewed relevant DOE rules and
directives; met with HSS and other DOE officials to discuss current and
past oversight and enforcement practices; and obtained documents and
interviewed officials at the Oak Ridge National Laboratory and Y-12
National Security Complex, as well as the Office of River Protection
and the Richland Office at the Hanford Site. We also conducted a Web-
based survey to obtain information on the number of high-hazard nuclear
facilities owned by DOE and the status of the safety bases for these
facilities. We assessed the oversight and enforcement practices of HSS
and its predecessor offices against our elements of effective
oversight, supplemented with past GAO recommendations and HSS
guidelines. To determine the factors contributing to any identified
shortcomings with respect to the five elements, we analyzed documentary
and testimonial evidence regarding possible contributing factors. In
addition, we reviewed documents and conducted interviews to explore the
capabilities and willingness of the Safety Board and NRC to take on
additional responsibilities for regulating DOE nuclear facilities.
We conducted this performance audit from April 2007 through September
2008 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives. A more
detailed description of our scope and methodology appears in appendix
I.
Results in Brief:
DOE has structured its independent oversight office, HSS, in a way that
falls short of meeting our key elements of effective independent
oversight of nuclear safety. Specifically, HSS does not fully meet
these key elements:
* Independence: HSS operates separately within the department from the
program offices. However, HSS is not included in the safety basis
review process for new nuclear facilities or for significant
modifications to existing facilities, some of which may raise new
safety concerns. Instead, this review process is conducted by the
program offices at the DOE sites, which raises questions about the
independence of this process. HSS also lacks its own representatives at
DOE sites and the head of the office does not have a position
comparable to program office heads from which to independently advocate
for nuclear safety.
* Technical expertise: An HSS predecessor office, the Office of
Environment, Safety and Health, had more than 20 technical experts in
nuclear safety review positions--positions that do not exist in HSS.
Moreover, HSS has vacancies for four nuclear safety specialists in two
subordinate offices. For example, two of the five critical nuclear
safety specialist positions in HSS's Office of Enforcement remain
vacant. This HSS office and the Office of Independent Oversight have
had to rely on personnel from other HSS offices, the program offices,
and contractors to fulfill their responsibilities. In addition, with
about half of its overall staff eligible to retire in the next 5 years,
HSS plans to meet this challenge through special hiring authority and
continued use of other federal personnel and contractors to maintain an
adequate technical resource base.
* Ability to perform reviews and require that findings be addressed:
HSS has some limitations in its nuclear safety review functions. First,
we found that HSS lacks basic information about the high-hazard nuclear
facilities it is supposed to oversee. As of December 2007, HSS did not
have accurate information regarding the total number of these nuclear
facilities or the number of facilities that lacked an approved safety
basis meeting requirements set in 2001. We conducted a survey and
identified 205 high-hazard nuclear facilities--31 did not have updated
safety basis documentation. We also found that about one-third of the
205 facilities do not fully conform with DOE guidance to limit the time
that temporary control measures can be used to allow a high-hazard
nuclear facility to operate outside of its approved safety basis. Even
though HSS is the only independent office with oversight of nuclear
safety, it has no role in reviewing these operational decisions.
Second, although HSS periodically inspects DOE sites and identifies
program deficiencies, there are some gaps in meeting its internal
guidelines to inspect sites with nuclear facilities at least every 2 to
4 years or more frequently, depending on the risks. We determined that
HSS and a predecessor office did not inspect 8 of the 22 sites where
high-hazard nuclear facilities are located in the last 5 years. Third,
although the program offices are required to develop corrective actions
in response to HSS inspection findings, HSS generally does not review
the effectiveness of these actions until it returns to the same site
for another inspection, which occurred approximately every 3 years on
average since 2000 for the seven sites with the most high-hazard
nuclear facilities (13 to 38 facilities), and on average every 6 years
for the sites with two to seven high-hazard nuclear facilities.
* Enforcement authority: HSS has the authority to levy civil penalties
and take other enforcement actions against contractors that violate
nuclear safety requirements, but it has not been able to reduce some
recurring violations. This is despite HSS guidance that prioritizes
addressing long-standing and recurring violations with increased
enforcement actions. We found that 9 of the 25 most frequently cited
violations of DOE nuclear safety requirements occurred at the same or
higher average frequency in 2007 as in 2005. We determined that while
HSS had frequently conducted enforcement activities at the sites with
the most high-hazard nuclear facilities, they were also the sites where
the failure to perform work consistent with technical standards was the
most common recurring violation.
* Public access: The public generally does not have access to HSS
reports addressing environment, safety, and health deficiencies at
sites with high-hazard nuclear facilities.
The shortcomings we identified in HSS with respect to the elements of
effective independent oversight of nuclear safety are largely
attributable to DOE's decision that some responsibilities and resources
of HSS and its predecessor offices more appropriately reside in the
program offices. First, DOE reduced the role of HSS and its predecessor
offices to provide independent nuclear safety oversight largely to
avoid redundancy and to improve relations with the program offices. For
example, DOE eliminated the site representatives for an HSS predecessor
office in 1999 because they were considered duplicative and less
effective than program office personnel. Second, DOE reduced the
technical expertise in nuclear safety reviews that might have been
available to HSS by transferring in 2006 many of these technical
positions from an HSS predecessor office to the program offices to
strengthen their oversight capabilities. Third, the limitations in
HSS's nuclear safety review functions substantially stem from the
program offices having primary responsibility for most aspects of the
review process. For example, HSS officials informed us that routine
monitoring of the safety basis of all high-hazard nuclear facilities
was not necessary because this was a program office function and
adequately monitored on a periodic basis through HSS site inspections
and other mechanisms. Likewise, HSS officials told us that the
frequency of these site inspections is influenced by the scheduled
assessments of the program offices and contractors and that the office
is less involved in monitoring the effectiveness of actions to correct
deficiencies identified in its site appraisals because this is
primarily a program office responsibility. Fourth, HSS has not taken
primary responsibility for preventing recurring nuclear safety
violations because DOE views its role as secondary to the program
offices. Finally, the lack of public access to some HSS nuclear safety
information is due not to the formation of the office, but to
heightened concerns over the possibility of attacks on nuclear
facilities and to avoid alerting contractors and the program offices to
potential enforcement actions.
We recommend that the Secretary of Energy take actions to strengthen
HSS's independent oversight of nuclear safety by giving it the
appropriate responsibilities, technical resources, and policy guidance.
If DOE does not take appropriate actions, we are also including a
matter for congressional consideration to strengthen independent
oversight.
DOE, the Safety Board, and NRC provided written comments on a draft of
this report, which are reprinted in appendixes VI, VII, and VIII,
respectively. Each agency also provided detailed comments that we
incorporated into the report, as appropriate.
DOE stated that the draft report was fundamentally flawed and disagreed
with many of the report's conclusions, while in its detailed comments
DOE generally agreed with three of our five recommended actions.
According to DOE, the report was flawed because it evaluated HSS
against GAO's preconceived opinion of functions that should be assigned
to HSS. As the report noted, the objectives of our review were focused
on whether the structure and functions of HSS allow it to provide
effective independent oversight of nuclear safety with respect to our
elements of effectiveness. Our review was not intended to be a
comprehensive assessment of safety management across the entire
department.
DOE rejected two of our recommendations as being expensive, redundant,
and counterproductive to continuous improvement in nuclear safety.
These two recommendations were to strengthen independent oversight by
giving HSS responsibilities and sufficient technical resources to (1)
review and concur on the safety basis for new nuclear facilities and
significant modifications to existing facilities that might raise new
safety concerns and (2) maintain a presence at DOE sites with nuclear
facilities. We have revised these two recommendations to provide DOE
with increased flexibility to implement them. DOE could implement them
in a variety of ways that could be economical and efficient. For
example, regarding the review of nuclear facility safety bases, DOE
could rely on the existing expertise within HSS to conduct these
reviews or it could shift technical staff from the nuclear safety
oversight units within the program offices at headquarters (Central
Technical Authority) into HSS. As for a site presence, HSS could
perform more frequent and efficient site inspections or assign a
minimal number of staff to sites with higher numbers of high-hazard
nuclear facilities in order to promote greater awareness of site
operations and to follow up on oversight findings and enforcement
actions. The Safety Board did not comment on our recommendations but
stated that the basic structure and authorities of the existing safety
oversight organizations, including the board, provide a satisfactory
framework for this function at those facilities under the board's
jurisdiction. NRC did not comment on our recommendations but did
explain that the current Commission has not expressed a view on
expanding its oversight role beyond the DOE facilities already subject
to NRC regulation. We made other changes to the report, where
appropriate, to address detailed comments from these agencies.
Background:
DOE has hundreds of nuclear facilities that are managed and operated
for its program offices by contractors. DOE nuclear safety requirements
define four categories of nuclear facilities based on the significance
of their radiological consequences in the event of a nuclear accident.
[Footnote 13] Hazard category 1 nuclear facilities, such as the
Advanced Test Reactor at Idaho National Laboratory, have the potential
for significant off-site radiological consequences. Hazard category 2
nuclear facilities, such as the Tank Farms at the Hanford Site, have
the potential for significant on-site radiological consequences beyond
the facility but would be contained within the DOE site. Hazard
category 3 nuclear facilities, such as the U-Plant at the Hanford Site,
have the potential for radiological consequences at only the immediate
area of the facility. The final category is below hazard category 3
nuclear facilities, which are not considered to be high-hazard. The
following figures show photographs of each type of high-hazard nuclear
facility.
Figure 1: Photograph of Advanced Test Reactor at Idaho National
Laboratory, a Hazard Category 1 Facility:
[See PDF for image]
Source: DOE.
[End of figure]
Figure 2: Photograph of Workers Changing Out Equipment at the Tank
Farms at the Hanford Site, a Hazard Category 2 Facility:
[See PDF for image]
Source: DOE.
[End of figure]
Figure 3: Photograph of U-Plant at the Hanford Site, a Hazard Category
3 Facility:
[See PDF for image]
Source: DOE.
[End of figure]
DOE nuclear safety requirements stipulate that high-hazard nuclear
facilities require special attention by the program offices and their
contractors. There are at least 29 DOE rules and directives related to
and specifically developed for nuclear safety (see app. II). DOE's
contractors must perform work in accordance with the department's
nuclear safety requirements to ensure adequate protection of workers,
the public, and the environment. DOE program offices are responsible
for reviewing and approving the safety basis for the design,
construction, and operation of high-hazard nuclear facilities and any
changes to the safety basis proposed by a contractor. The documentation
of the safety basis (1) describes the work to be performed; (2)
evaluates all potential hazards and accident conditions; (3) contains
appropriate controls, including technical safety requirements; and (4)
delineates procedures and practices for operating the facility safely.
When a contractor discovers an unexpected situation that is not covered
by the approved safety basis, DOE policy allows the program offices to
grant the contractor the ability to temporarily depart from safety
basis requirements to avoid shutting down a facility. In such cases,
contractors may submit to DOE a Justification for Continued Operation
(JCO) to amend the safety basis and address the unexpected situation.
JCOs may include compensatory measures that must be employed until the
situation is fully analyzed and addressed. DOE guidance suggests that
JCOs should have a predetermined, limited life only as may be necessary
to perform the safety analysis of the unexpected situation, to identify
and implement corrective actions, and to update the safety basis
documentations on a permanent basis. For example, a contractor recently
discovered that a fire door leading to a room that stored nuclear
material at Los Alamos National Laboratory was not safe. A JCO was
employed, and all material was removed from the room until a new fire
door was installed.
In DOE self-regulation of nuclear safety, HSS, the program offices at
headquarters and the sites, and the contractors have overlapping roles,
responsibilities, and authorities. This structure has existed for some
time, but DOE clarified and institutionalized the responsibilities and
requirements in a 2005 Order.[Footnote 14] This order addresses the
policy for quality assurance systems and processes to be followed by
its contractors--including integrated safety management, which is an
effort to ensure hazardous activities are carried out safely--and the
oversight programs of the program offices and the independent oversight
office, currently HSS. An important addition to the oversight of high-
hazard nuclear facilities by the program offices at headquarters is the
establishment of the Central Technical Authority in response to a 2004
recommendation of the Safety Board. DOE established a Central Technical
Authority for NNSA, the Office of Science, and one for both the Office
of Environmental Management and Office of Nuclear Energy to
independently review the safety bases for nuclear facilities, provide
guidance on implementing nuclear safety requirements promulgated by
HSS, and maintain oversight of operations at the high-hazard nuclear
facilities. Figure 4 depicts the roles, responsibilities, and
authorities of these four organizations with respect to nuclear
facilities.
Figure 4: Nuclear Safety Roles, Responsibilities, and Authorities for
Nuclear Facilities:
[See PDF for image]
This figure is an illustration of nuclear safety roles,
responsibilities, and authorities for nuclear facilities, using
interlocking circles to represent the roles of each group and areas of
overlapping responsibilities. The following information is depicted:
Organization: HSS;
Roles, responsibilities, and authorities:
* Develop Regulations and Requirements (Directives);
* Independent Oversight;
* Rule Enforcement;
* Exemptions to Rules;
* Accident Investigations;
* Nuclear Safety Research;
* Integrated Safety Management and Quality Assurance.
Organization: Program Offices at DOE Headquarters;
Roles, responsibilities, and authorities:
* Accident Investigations;
* Nuclear Safety Research;
* Integrated Safety Management and Quality Assurance;
* Action Forcing Safety Improvements;
* Approve Safety Delegations;
* Waivers to Requirements;
* Safety Directives;
* Assure Technical Competence;
* Oversight and Assessment;
* Design Reviews;
* Confirm Readiness.
Organization: Program Offices at DOE Sites;
Roles, responsibilities, and authorities:
* Oversight and Assessment;
* Design Reviews;
* Confirm Readiness;
* Integrated Safety Management and Quality Assurance;
* Review and Approve Nuclear Operations, including Hazard
Categorization;
* Risk Analysis;
* Approve Contract;
* Authorization Agreements;
* Oversight;
* Assessments;
* Emergency Response.
Organization: Contractors:
Roles, responsibilities, and authorities:
* Oversight;
* Assessments;
* Emergency Response;
* Integrated Safety Management and Quality Assurance;
* Risk Analysis;
* Safety System Operational Reviews;
* Operate Facilities;
* Work Planning and Controls;
* Safety Analysis;
* Operational Readiness.
Source: DOE information edited by GAO.
Notes: Integrated Safety Management was launched in 1996 to respond to
concerns raised by the Safety Board about the lack of formal,
standardized procedures throughout DOE for ensuring that hazardous
activities are carried out safely. The effort was intended to raise
safety awareness and provide a formal process for employees to
integrate safety into work activities. DOE defines quality assurance
systems as encompassing all aspects of the processes and activities
designed to identify deficiencies and opportunities for improvement,
report deficiencies to all responsible managers, complete corrective
actions, and share lessons learned effectively across all aspects of
the operation.
[End of figure]
In forming HSS, DOE decided that it needed to clarify the roles of its
safety and security offices to provide a more focused and integrated
approach. While emphasizing that primary responsibility for
environment, safety, health, and security programs continue to reside
with the program offices, the newly formed HSS was to provide these
offices with more effective and consistent policy, oversight,
enforcement, and assistance. This is not the first time that DOE has
attempted to clarify the role of its independent oversight office. For
example, in 1999, DOE took actions to address the dual role of the
Office of Environment, Safety and Health, as the department's
regulator--through its oversight and enforcement functions--and as a
provider of technical assistance to the program offices. In the lead-up
to the formation of HSS, DOE reported that the proposed office would be
designed to help the program offices solve problems and improve
environment, safety, health, and security programs and performance, so
that DOE sites could better accomplish the department's mission and
strategic goals.[Footnote 15] Moreover, DOE stated that these changes
would result in a "corporate safety office" that is focused on the most
important headquarters safety functions and is organized to perform
them more efficiently and effectively. In its final report establishing
HSS, DOE stated that this office is intended to provide the corporate-
level leadership and strategic vision necessary to better coordinate
and integrate worker health and safety, the environment, and national
security functions, working in partnership with the program offices.
[Footnote 16]
HSS has four key offices involved in nuclear safety policy, oversight,
enforcement, and assistance: the Office of Nuclear Safety, Quality
Assurance and Environment; Office of Independent Oversight; Office of
Enforcement; and Office of Corporate Safety Analysis (see app. III for
organization chart). The Office of Nuclear Safety, Quality Assurance
and Environment is responsible for maintaining and improving nuclear
safety and environmental policies and assisting the program offices in
interpreting those policies and implementing safety programs. This
office is to help the program offices solve problems and improve
nuclear safety and environmental programs and performance, working with
other HSS offices to do so.
HSS's Office of Independent Oversight is responsible for the majority
of independent oversight activities within DOE, as dictated through DOE
orders.[Footnote 17] To accomplish this responsibility, this office
performs appraisals to verify, among other things, that the
department's employees, contractors, the public, and the environment
are protected from hazardous operations and materials. However, these
appraisals are designed to complement, not duplicate, program office
oversight and self-assessments. The appraisal program of the Office of
Independent Oversight comprises inspections, follow-up reviews, special
studies, and special reviews. Periodic inspections are the primary tool
for assessing program performance at a specific site or location.
Follow-up reviews are conducted to determine the status and progress of
corrective actions and other activities being taken in response to
deficiencies previously identified in an appraisal. Special studies are
conducted to address concerns that transcend performance at a specific
site or location, and special reviews are conducted at the request of
the Secretary or other senior DOE managers, often on a rapid response
basis, such as an accident investigation. In general, the inspections
are a concentrated effort over a relatively short period of time, and
the special studies take more time to complete.
In regard to nuclear safety, the Office of Environment, Safety and
Health Evaluations, within the Office of Independent Oversight, is
responsible for periodic inspection of DOE sites for compliance with
environment, safety, and health requirements according to a priority-
based schedule of site inspections.[Footnote 18] Policy dictates that
the inspection schedule take into consideration the number of
facilities, diversity of site missions, and potential for off-and on-
site radiological risks. The schedule also should consider other
factors, such as current operations and facility conditions. According
to the Independent Oversight Appraisal Process Protocols, the
appraisals are to take a sampling approach designed to evaluate the
performance of environment, safety, and health programs at the sites.
The findings contained in the appraisal reports are used to indicate
significant deficiencies or safety issues that warrant focused
attention by the program offices and contractors to correct the
problems. According to DOE requirements, the program offices and their
contractors must prepare corrective action plans to address these
findings. The appraisal report can, when appropriate, also identify
enhancements (opportunities for improvement) that can assist the
program offices improve performance or implementation of the results of
the appraisal, but they are only advisory. The program offices are also
required to respond to comments from the Office of Independent
Oversight on their proposed corrective action plans to address the
appraisal findings. In cases where the Office of Independent Oversight
and a program office cannot agree on the necessary corrective actions,
the issue can be elevated to the Secretary or Deputy Secretary of
Energy for resolution.
HSS's Office of Enforcement is responsible for worker safety and
security, documentation of nuclear safety violations, on-site
investigations, training for the enforcement coordinators who work for
program offices at sites with nuclear facilities, and analyses of
contractor-reported violations that are submitted to DOE's
Noncompliance Tracking System.[Footnote 19] The Office of Enforcement
operates under the philosophy that the use of incentives and, when
necessary, enforcement actions, such as civil penalties, will improve
contractor performance, compliance, and fulfillment of mission
objectives. This office has the authority to issue a notice of
violation, enforcement letter, and compliance order to compel DOE
contractors to operate in accordance with nuclear safety requirements.
[Footnote 20] Notices of violations, which can carry civil penalties
(fines), are used to enforce the nuclear safety rules and requirements.
[Footnote 21] Enforcement letters are used to notify contractors of
significant concerns that, if not addressed, could lead to a notice of
violation. Compliance orders may be issued by the Secretary of Energy
requiring actions to correct noncompliance conditions. The Office of
Enforcement also has authority to conduct program reviews of contractor
processes for identification and assessment, screening, reporting, and
correction of issues. This office publishes an Enforcement Process
Overview that describes the process but does not specify when and how
often the enforcement tools will be employed. The approach is to
generally investigate only those noncompliance conditions with greater
safety significance than the general population of reported
noncompliance conditions. The Office of Enforcement also shares lessons
learned with the program offices to promote improvements within DOE and
its contractor community.
A separate Office of Corporate Safety Analysis performs required
reporting and regulatory coordination, manages certain DOE-wide
programs, and analyzes data and trends for the department. For example,
it maintains the Corrective Actions Tracking System and prepares
quarterly reports for the program offices on implementation of the
corrective actions.
HSS Falls Short of Fully Meeting Our Five Elements of Effective
Independent Oversight of Nuclear Safety:
HSS falls short of fully meeting our five key elements of effective
oversight of nuclear safety: independence, technical expertise, ability
to perform reviews and require that its findings are addressed,
enforcement authority, and public access. First, we found that HSS has
no role in reviewing the safety basis for new high-hazard nuclear
facilities, no routine site presence, and its head is not comparable in
rank to the program office heads. Second, HSS does not have some
technical expertise in nuclear safety review and has vacancies in
critical nuclear safety positions. Third, HSS lacks basic information
about nuclear facilities, has gaps in its site inspection schedule, and
does not routinely ensure that its findings are effectively addressed.
Fourth, HSS enforcement actions have not prevented some recurring
nuclear safety violations. Finally, HSS restricts public access to
nuclear safety information.
HSS Has No Role in Reviewing the Safety Basis for New Nuclear
Facilities, No Routine Site Presence, and Its Head Lacks a Rank
Comparable to Program Office Heads:
To be independent, an oversight organization should be structurally
distinct and separate from the DOE program offices to avoid management
interference or conflict between program office mission objectives and
safety. While HSS is structurally distinct from the program offices,
there are other components of independence that this office should
possess--identified in past GAO reports--which are essential for HSS to
function independently with respect to nuclear safety. These include
(1) an independent role in reviewing the safety basis for new nuclear
facilities or major modifications of existing facilities that may raise
new safety concerns, (2) opportunities for independently observation of
site operations on a routine basis, and (3) a head at the same rank as
the program heads to independently advocate for nuclear safety. We
found limitations in the structure and functions of HSS in each of
these areas.
HSS has no responsibility for routine review of the safety basis for
new high-hazard nuclear facilities or for significant modifications of
existing facilities that may raise new safety concerns; necessary to
provide reasonable assurance--independent of the program offices--that
the facility can be operated safely in a manner that adequately
protects workers, the public, and the environment. As far back as
1981,[Footnote 22] we reported that the most practical reorganization
option for nuclear safety oversight, in lieu of the preferred option of
external regulation, was for DOE to establish a strong independent
oversight office to mandate adherence to nuclear safety policies and
standards. Such an office would guarantee program independence,
uniformity, and public confidence in DOE self-regulation. In our 1986
report,[Footnote 23] we noted that safety basis approval process was
conducted by the program offices at the sites and that this did not
represent an independent review process. In our 1988 report,[Footnote
24] we not only recommended that the Congress establish an independent
oversight organization for DOE's nuclear defense facilities (that
became the Safety Board) but also that the safety and health functions
of HSS's predecessor office, the Office of Environment, Safety and
Health, be set in law to firmly establish its nuclear safety oversight
responsibilities. In 1995, when DOE was assessing a shift away from
self-regulation of nuclear safety, an advisory committee report
recommended that in the preferred transition to external regulation,
the Office of Environment, Safety and Health should, among other
things, have this approval authority and exercise full authority and
responsibility to inspect these facilities.[Footnote 25] Instead, HSS
relies on periodic site inspections that assess a sample of the
environment, safety, and health programs of a site, including a sample
of the documentation supporting the safe operation of any high-hazard
nuclear facilities.[Footnote 26] The Safety Board also performs reviews
on defense nuclear facilities, including the design of new facilities,
but it does not have a regulatory function.
HSS has no staff permanently assigned to DOE sites and thus cannot make
routine, independent observations of nuclear safety at them. We found
in our 1981 report that having field safety and health personnel solely
within the program offices at DOE nuclear facilities did not allow for
independent oversight, particularly with respect to overseeing the
implementation of nuclear safety policies by the program offices. We
recommended that these staff report to an independent oversight office
to ensure the proper emphasis on safety and to increase public
confidence in the credibility of the department's oversight. We noted
that an on-site presence would permit frequent inspections and offer
greater opportunities for day-to-day oversight, advice, and detailed
knowledge of facility operations than would periodic site reviews by an
independent oversight office. HSS primarily relies on periodic site
inspections and the monitoring of information provided by program
office facility representatives and enforcement coordinators, among
other sources of information, to carry out its oversight
responsibilities.
The head of HSS, as a career professional, does not have the same
position or rank as the program office heads from which to
independently advocate for nuclear safety. In reporting in 1977 on
options to restructure federal nuclear oversight responsibilities,
prior to the formation of the DOE, we stressed the need to insulate an
independent oversight office from developmental functions of the
organization to ensure an independent voice for nuclear safety.
[Footnote 27] Such action would include giving the head of the
independent oversight office--appointed by the President and confirmed
by the Senate--a specified term in office that would exceed the typical
tenure of the head of the organization. In addition, this head should
not be removed from office unless incapacitated or guilty of neglect of
duty or malfeasance in office. Moreover, this head should have a
professional background appropriate for the position, particularly with
respect to nuclear safety. We continued to report on the need for such
a position description in the 1980s. We found that absent a law
establishing the position to head the independent oversight office, in
the past, DOE was able to move this position to a lower level within
the department--an action that could be considered a reduction in the
visibility and attention given to environment, safety, and health
issues by senior management, especially when compared with nuclear
facility operations. In the 1988 report, we recommended that the
Department of Energy Organization Act be amended to specifically
establish the position of Assistant Secretary for the Office of
Environment, Safety and Health in order to institutionalize this key
component of DOE self-regulation of nuclear safety; however, this
recommendation was never acted upon. Notwithstanding our past
recommendations regarding this position, DOE officials have emphasized
that the head of HSS has excellent access to the Secretary of Energy
and other DOE decision makers and that the authorities of this position
are at least equivalent to, and sometimes greater than, those of the
head of HSS's predecessor offices. While this may be the situation in
the current Administration, we point out that a future head of HSS may
not retain the same level of access to the Secretary of Energy in
another Administration.
HSS Does Not Have Some Technical Expertise in Nuclear Safety Review and
Has Vacancies in Critical Nuclear Safety Positions:
HSS does not have some technical expertise to help the program offices
review the safety basis for high-hazard nuclear facilities that existed
in a predecessor office. The predecessor Office of Environment, Safety
and Health had more than 20 technical experts in nuclear safety fields
that provided this service, but they were not transferred to HSS at its
formation. Besides this lack of previous technical expertise in nuclear
safety review, HSS still needs some expertise to fulfill its oversight
and enforcement responsibilities. HSS currently has 4 vacancies for
nuclear safety specialists to aid in making sound safety assessments.
The Office of Independent Oversight is short 2 nuclear safety
specialists to fulfill its staffing level of 14 technical experts, and
the Office of Enforcement is short 2 such specialists to fulfill its
staffing level of 5 technical experts after one vacancy was recently
filled. However, HSS officials told us that these two offices can and
do rely on other internal HSS resources, well-qualified and experienced
contractors, and program office personnel to help fulfill their
responsibilities.
HSS has been challenged to fill these vacancies in technical expertise
and may be further challenged to address future vacancies with pending
retirements from the workforce. HSS officials informed us about some
difficulty in filling positions in nuclear safety related fields, in
part because of competition for these specialists from other
organizations, such as NRC. In addition, a senior HSS official informed
us that about 56 percent of their workforce will be eligible for the
early retirement program by the end of fiscal year 2009, but she
anticipates that only 5 to 6 percent of the workforce will leave each
year for the next several years. HSS plans to use recruitment,
realignment, and training mechanisms to fill skills gaps within its
approved budget and staffing authorization, and officials from this
office told us they are confident they can address their technical
staffing needs. Moreover, DOE officials explained that the department
has supported HSS's efforts to designate certain nuclear safety
specialist positions as critical hires and to maintain an adequate
technical resource base, including a judicious balance of federal
personnel and contractor support. Nevertheless, concerns about
technical capabilities within DOE are long-standing. For example, the
Safety Board identified deficiencies in technical expertise as an issue
facing all of DOE in its first report to the Congress in 1991, and
remains concerned today, despite the efforts made by the department
over the years in this area. Moreover, the DOE Inspector General
recently escalated DOE human capital management from its "watch list"
to its "challenge list," given the department's aging and smaller
workforce.[Footnote 28] In commenting on a draft of this report, NRC
also noted the well established human capital challenges associated
with constructing, operating, and regulating nuclear facilities.
HSS Lacks Basic Information about Nuclear Facilities, Has Gaps in Its
Site Inspection Schedule, and Does Not Routinely Ensure That Its
Findings Are Effectively Addressed:
HSS has the authority to and does conduct periodic environment, safety,
and health program inspections of DOE sites with high-hazard nuclear
facilities, but there are several limitations in its review functions.
Our survey found that HSS lacks a comprehensive accounting of high-
hazard nuclear facilities and the status of the safety bases for these
facilities, which could provide additional information from which to
direct its oversight activities. Moreover, we found that there have
been extended periods of time between inspections of some sites with
high-hazard nuclear facilities. Finally, while the program offices must
address HSS site appraisal findings and respond to its comments on
proposed correction actions, HSS primarily determines the effectiveness
of the actions taken at the time of the next site inspection, which can
take years.
HSS lacks a comprehensive accounting of nuclear facilities and the
status of their safety bases. DOE has extensive safety basis
requirements for designing, constructing, and operating high-hazard
nuclear facilities, including requirements for how contractors should
create and update safety documentation and procedures, and for program
office reviews and approvals of the safety bases for the nuclear
facilities. While HSS maintains a database that tracks some information
on the safety basis status of high-hazard nuclear facilities--the
Safety Basis Information System--it relies on the program offices to
update facility information. In addition, HSS officials told us that
their office is developing procedures for updating the system but has
decided not to expend resources on validating information in the
database. We raised concerns in our 1987 report, however, that the
independent oversight organization should not be too dependent on
program office information for developing its own findings and
recommendations. In conducting our own survey of high-hazard nuclear
facilities across the DOE complex, we found that the HSS database was
out of date, listing more of these facilities than were indicated to us
by the program offices at the sites.[Footnote 29] We determined that
DOE had 205 high-hazard nuclear facilities--2 category 1 facilities,
152 category 2 facilities, 45 category 3 facilities, and 6 that do not
fit into one of the hazard categories.[Footnote 30]
We also found that, as of December 2007, 31 of the 205 high-hazard
nuclear facilities (about 15 percent) did not have an approved safety
basis that meets current nuclear safety requirements. These
requirements have been in place since 2001, when DOE required that
contractors submit a safety basis for operating each high-hazard
nuclear facility to the program offices for approval by April 10, 2003.
We found that for 21 high-hazard nuclear facilities, old safety basis
documentation had not been updated to current requirements, and for the
10 other facilities, initial safety basis documentation was still under
development. HSS is currently not responsible for routinely monitoring
the safety bases status of high-hazard nuclear facilities, ensuring
that contractors update them to current requirements or that this be
done in a timely fashion.
The Idaho National Laboratory has about half of the high-hazard nuclear
facilities that lack an approved safety basis that meets current
requirements, and Los Alamos and Argonne national laboratories have
several more. The safety bases for the Idaho National Laboratory
nuclear facilities were approved under the previous program office and
contractor in 2001, but the new program office and new contractor--
which replaced previous management in 2004 and 2005, respectively--
found inadequacies in the analyses supporting the previously approved
safety bases documentation. The current program office, the Office of
Nuclear Energy, is working with the contractor at this laboratory to
upgrade the safety bases for these facilities but does not anticipate
finishing all upgrades until 2012. In responding to a draft of this
report, DOE explained that 2 of the 14 nuclear facilities at this site
now have approved, upgraded safety bases, and that the Office of
Nuclear Energy has put in place JCOs to address weaknesses in the
previous safety bases of the other nuclear facilities until they can be
upgraded, along with additional oversight. Also among the high-hazard
nuclear facilities in this similar condition are three at the Los
Alamos National Laboratory. For example, the Chemistry and Metallurgy
Research Facility at this laboratory is operating under a safety basis
established in 1998, although according to DOE, this facility has been
subject to almost continuous safety review by both the contractor and
the department. According to an October 2007 letter from the Safety
Board, operating this facility in its current condition poses
significant risk to workers and the public due to a number of serious
vulnerabilities, such as the lack of a robust building confinement to
prevent the release of radioactivity during an accident.[Footnote 31]
Moreover, an August 31, 2007, staff report to the Safety Board on the
design, functionality, and maintenance of safety systems at Los Alamos
National Laboratory stated that many of the deficiencies at the
Chemistry and Metallurgy Research Facility and other nuclear facilities
at this laboratory resulted in part from the lack of modern and
compliant safety bases. Likewise, we found that seven nuclear
facilities at Argonne National Laboratory lacked approved safety bases
meeting current requirements. According to an official from this
laboratory, while there are no obvious risks at these nuclear
facilities, several have uncharacterized nuclear waste that has been in
storage containers for many years and may pose a risk of explosion or
fire.
HSS also does not routinely monitor changes to the safety bases of high-
hazard nuclear facilities, such as use of JCOs, which allow facilities
to temporarily depart from their safety basis to avoid shutting down
operations. The Safety Board and DOE recently raised concerns about JCO
usage at defense nuclear facilities. For example, the Safety Board
noted in its April 19, 2007, recommendation to DOE that there were a
number of weaknesses and deficiencies in the current JCO process,
including JCOs that appear to have excessive durations. Moreover, the
Safety Board found that the JCO approval process is site-specific and
that none of the processes reviewed required the degree of analysis or
rigor that would be expected for an important change or revision to the
approved safety basis. Our survey found that, as of December 2007,
nearly one-third (67 of 205) of the high-hazard nuclear facilities had
at least one JCO in place with an average age of 340 days and an
average total expected duration of 930 days.[Footnote 32] Our survey
results found that one JCO has been in effect since March 2003, the
expected end dates for many other JCOs extended out several years into
the future, and DOE officials did not report an expected end date for
27 other JCOs. This does not fully conform to DOE guidance that calls
for JCOs to be temporary amendments to the safety basis with a
predefined, limited life. In response to the Safety Board's concerns
about JCOs, NNSA and the Office of Environmental Management issued
informal guidance to the site offices to emphasize that JCOs are not to
be used for planned activities. HSS's Office of Nuclear Safety, Quality
Assurance and Environment has been working with the program offices to
review the current guidance on JCOs. DOE officials explained that its
internal review found that some aspects of the guidance were sufficient
but new guidance on the content and approval of JCOs was warranted. DOE
further explained that it is pursuing these improvements. Nevertheless,
HSS officials told us that the office is not responsible for routine
monitoring of JCO use and instead, reviews the use of JCOs only during
periodic inspections of DOE sites.
HSS conducts inspections of DOE sites, but there are extended periods
of time between inspections at some sites with high-hazard nuclear
facilities. The Office of Independent Oversight and its predecessors
have conducted periodic inspections at DOE sites that resulted in
appraisal reports containing deficiencies requiring program office
corrective actions, but there have been lengthy periods of time between
inspections of some sites with high-hazard nuclear facilities. We found
that the Office of Environment, Safety and Health Evaluations within
the Office of Independent Oversight largely met its own internal
guidelines to periodically visit sites every 2 to 4 years that are
judged to pose relatively high risk of exposure to radiation. However,
we found that of the 22 sites that had at least one high-hazard nuclear
facility over the last 5 years, 8 were not inspected during this time
period.[Footnote 33] We observed that one of these sites, the Office of
River Protection, would be expected to have a site inspection at least
every 2 to 2.5 years, according to HSS guidelines. However, in
commenting on a draft of this report, DOE indicated that while HSS has
not conducted a site inspection at the Office of River Protection since
2001, it did conduct a Type B accident investigation at this site after
a 2007 tank farm accident. The other four sites are generally supposed
to be inspected at least every 3 to 4 years,[Footnote 34] which was not
the case. We suggested in our 1987 report on key elements of effective
independent oversight of nuclear facilities that in the absence of day-
to-day oversight, such reviews should be done annually. We found that
these periodic reviews are important to maintain a working knowledge of
DOE safety issues and to assess program office response to review
findings and recommendations. Moreover, we stated that more frequent
reporting would allow review staff to develop a better understanding of
the program operations, rather than on a one-time or sporadic basis.
The following table shows the number of environment, safety, and health
program inspections from 1995 to 2007 at each DOE site with high-hazard
nuclear facilities, although such inspections include just a sample of
the nuclear facilities at a site.
Table 1: Number of Environment, Safety, and Health Program Inspections
from 1995 to 2007 at DOE Sites with High-Hazard Nuclear Facilities:
DOE site: Idaho;
Current nuclear facilities[A]: 38;
No. of reviews[B]: 5;
2007: [Check];
2006: [Empty];
2005: [Check];
2004: [Empty];
2003: [Check];
2002: [Empty];
2001: [Check];
2000: [Empty];
1999: [Empty];
1998: [Empty];
1997: [Empty];
1996: [Empty];
1995: [Check].
DOE site: Oak Ridge;
Current nuclear facilities[A]: 29;
No. of reviews[B]: 8;
2007: [Empty];
2006: [Check];
2005: [Empty];
2004: [Check];
2003: [Check];
2002: [Empty];
2001: [Check];
2000: [Check];
1999: [Empty];
1998: [Check];
1997: [Check];
1996: [Empty];
1995: [Check].
DOE site: Hanford;
Current nuclear facilities[A]: 23;
No. of reviews[B]: 5;
2007: [Empty];
2006: [Check];
2005: [Check];
2004: [Check];
2003: [Empty];
2002: [Check];
2001: [Empty];
2000: [Empty];
1999: [Empty];
1998: [Empty];
1997: [Empty];
1996: [Check];
1995: [Empty].
DOE site: Savannah River;
Current nuclear facilities[A]: 23;
No. of reviews[B]: 4;
2007: [Empty];
2006: [Check];
2005: [Empty];
2004: [Check];
2003: [Empty];
2002: [Empty];
2001: [Empty];
2000: [Empty];
1999: [Check];
1998: [Empty];
1997: [Empty];
1996: [Check];
1995: [Empty].
DOE site: Los Alamos;
Current nuclear facilities[A]: 19;
No. of reviews[B]: 4;
2007: [Empty];
2006: [Empty];
2005: [Check];
2004: [Empty];
2003: [Empty];
2002: [Check];
2001: [Empty];
2000: [Empty];
1999: [Check];
1998: [Empty];
1997: [Empty];
1996: [Check];
1995: [Empty].
DOE site: Pantex;
Current nuclear facilities[A]: 18;
No. of reviews[B]: 5;
2007: [Empty];
2006: [Empty];
2005: [Check];
2004: [Empty];
2003: [Empty];
2002: [Check];
2001: [Empty];
2000: [Check];
1999: [Check];
1998: [Empty];
1997: [Empty];
1996: [Check];
1995: [Empty].
DOE site: Y-12;
Current nuclear facilities[A]: 13;
No. of reviews[B]: 4;
2007: [Empty];
2006: [Empty];
2005: [Check];
2004: [Empty];
2003: [Check];
2002: [Empty];
2001: [Empty];
2000: [Empty];
1999: [Check];
1998: [Check];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site: Argonne;
Current nuclear facilities[A]: 7;
No. of reviews[B]: 3;
2007: [Empty];
2006: [Empty];
2005: [Check];
2004: [Empty];
2003: [Empty];
2002: [Check];
2001: [Empty];
2000: [Empty];
1999: [Empty];
1998: [Check];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site: Lawrence Livermore;
Current nuclear facilities[A]: 7;
No. of reviews[B]: 5;
2007: [Check];
2006: [Empty];
2005: [Empty];
2004: [Check];
2003: [Empty];
2002: [Check];
2001: [Check];
2000: [Empty];
1999: [Empty];
1998: [Empty];
1997: [Check];
1996: [Empty];
1995: [Empty].
DOE site: Sandia;
Current nuclear facilities[A]: 6;
No. of reviews[B]: 4;
2007: [Empty];
2006: [Empty];
2005: [Check];
2004: [Empty];
2003: [Check];
2002: [Empty];
2001: [Empty];
2000: [Empty];
1999: [Check];
1998: [Empty];
1997: [Check];
1996: [Empty];
1995: [Empty].
DOE site: Nevada Test Site;
Current nuclear facilities[A]: 5;
No. of reviews[B]: 4;
2007: [Check];
2006: [Empty];
2005: [Empty];
2004: [Empty];
2003: [Empty];
2002: [Check];
2001: [Empty];
2000: [Empty];
1999: [Check];
1998: [Check];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site: Paducah;
Current nuclear facilities[A]: 5;
No. of reviews[B]: 2;
2007: [Empty];
2006: [Empty];
2005: [Empty];
2004: [Empty];
2003: [Empty];
2002: [Empty];
2001: [Empty];
2000: [Check];
1999: [Check];
1998: [Empty];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site: Hanford ORP;
Current nuclear facilities[A]: 4;
No. of reviews[B]: 1;
2007: [Empty];
2006: [Empty];
2005: [Empty];
2004: [Empty];
2003: [Empty];
2002: [Empty];
2001: [Check];
2000: [Empty];
1999: [Empty];
1998: [Empty];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site: Portsmouth;
Current nuclear facilities[A]: 3;
No. of reviews[B]: 1;
2007: [Empty];
2006: [Empty];
2005: [Empty];
2004: [Empty];
2003: [Empty];
2002: [Empty];
2001: [Empty];
2000: [Check];
1999: [Empty];
1998: [Empty];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site: WIPP;
Current nuclear facilities[A]: 2;
No. of reviews[B]: 1;
2007: [Empty];
2006: [Empty];
2005: [Empty];
2004: [Empty];
2003: [Empty];
2002: [Check];
2001: [Empty];
2000: [Empty];
1999: [Empty];
1998: [Empty];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site: New Brunswick;
Current nuclear facilities[A]: 1;
No. of reviews[B]: 0;
2007: [Empty];
2006: [Check];
2005: [Empty];
2004: [Empty];
2003: [Empty];
2002: [Empty];
2001: [Empty];
2000: [Empty];
1999: [Empty];
1998: [Empty];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site: Pacific Northwest;
Current nuclear facilities[A]: 1;
No. of reviews[B]: 2;
2007: [Empty];
2006: [Empty];
2005: [Empty];
2004: [Empty];
2003: [Check];
2002: [Empty];
2001: [Empty];
2000: [Empty];
1999: [Empty];
1998: [Check];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site: West Valley;
Current nuclear facilities[A]: 1;
No. of reviews[B]: 0;
2007: [Empty];
2006: [Empty];
2005: [Empty];
2004: [Empty];
2003: [Empty];
2002: [Empty];
2001: [Empty];
2000: [Empty];
1999: [Empty];
1998: [Empty];
1997: [Check];
1996: [Empty];
1995: [Empty].
DOE site: Brookhaven;
Current nuclear facilities[A]: [C];
No. of reviews[B]: 4;
2007: [Check];
2006: [Empty];
2005: [Empty];
2004: [Empty];
2003: [Empty];
2002: [Empty];
2001: [Empty];
2000: [Empty];
1999: [Check];
1998: [Check];
1997: [Check];
1996: [Empty];
1995: [Empty].
DOE site: Fernald;
Current nuclear facilities[A]: [C];
No. of reviews[B]: 2;
2007: [Empty];
2006: [Empty];
2005: [Empty];
2004: [Empty];
2003: [Empty];
2002: [Empty];
2001: [Empty];
2000: [Empty];
1999: [Empty];
1998: [Check];
1997: [Empty];
1996: [Check];
1995: [Empty].
DOE site: Miamisburg/Mound;
Current nuclear facilities[A]: [C];
No. of reviews[B]: 1;
2007: [Empty];
2006: [Empty];
2005: [Empty];
2004: [Empty];
2003: [Empty];
2002: [Empty];
2001: [Empty];
2000: [Empty];
1999: [Empty];
1998: [Check];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site: Rocky Flats;
Current nuclear facilities[A]: [C];
No. of reviews[B]: 3;
2007: [Empty];
2006: [Empty];
2005: [Empty];
2004: [Empty];
2003: [Empty];
2002: [Empty];
2001: [Check];
2000: [Empty];
1999: [Check];
1998: [Empty];
1997: [Empty];
1996: [Empty];
1995: [Check].
DOE site: Total;
Current nuclear facilities[A]: 205;
No. of reviews[B]: 68;
2007: 4;
2006: 3;
2005: 7;
2004: 4;
2003: 5;
2002: 7;
2001: 5;
2000: 4;
1999: 9;
1998: 8;
1997: 4;
1996: 5;
1995: 3.
Source: Reports listed on the HSS Office of Independent Oversight
Limited Access Web site.
Notes: In some years, the HSS Office of Independent Oversight conducted
additional environment, safety, and health performance reviews that
were not specific to a site office or were follow-up reviews, which are
not reflected in this table.
[A] The number of nuclear facilities listed for each DOE site is the
number of hazard category 1, 2, and 3 nuclear facilities at each site,
as of December 2007. The number of these facilities is dynamic, as new
facilities are constructed or existing nuclear facilities are
downgraded to below hazard category 3.
[B] In some cases, reviews of a site office in a given year may have
resulted in more than one report.
[C] These sites did not have any high-hazard nuclear facilities as of
December 2007, with the exception of Brookhaven, which officially
downgraded its hazard category 3 nuclear facility to below category 3
in April 2008.
[End of table]
HSS does not routinely determine the effectiveness of corrective
actions until it performs another site inspection, which can take
years. The Office of Independent Oversight has the authority to conduct
follow-up reviews to determine the status and progress of the
corrective actions to address deficiencies identified in its appraisal
reports, but in practice, HSS officials informed us that they generally
rely on the next site visit to check on the effectiveness of these
corrective actions. We identified five such site-specific follow-up
reviews listed in the Office of Environment, Safety and Health
Evaluations' database of all appraisal reports since 1995. The time
period between inspections of DOE sites, which in practice indicates
when the effectiveness of the corrective actions can be independently
assessed, is shown in table 1. We determined that the Office of
Independent Oversight returned on average about every 3 years, since
2000, to the 7 sites with 13 to 38 high-hazard nuclear facilities. For
sites with 2 to 7 high-hazard nuclear facilities, the office returned
for another site inspection on average about every 6 years. For
example, there was a 3-year period between a 2005 site inspection of
Los Alamos National Laboratory and the 2008 site inspection before the
Office of Independent Oversight reported that corrective actions taken
to address some of its findings were not fully effective, as many of
the same findings were cited again in the latest report. The Office of
Independent Oversight's appraisal program leaves DOE with no routine
independent assessment of corrective actions to determine if they are
effective and timely in addressing identified deficiencies.
HSS Has Authority to Enforce Nuclear Safety Requirements, but Its
Actions Have Not Prevented Some Recurring Nuclear Safety Violations:
The use of HSS enforcement authority has not prevented some recurring
nuclear safety violations, despite DOE requirements and Office of
Enforcement guidelines to address this problem. The enforcement process
under DOE procedural rules for nuclear activities dictates the
consideration of factors that can increase the severity of the penalty,
such as the duration of the violation, past contractor performance, and
multiple examples of similar violations during the same time
frame.[Footnote 35] The Office of Enforcement has put the contractor
community on notice that enforcement actions involving recurring issues
will generally result in significantly greater civil penalties than
would otherwise be the case. This office has indicated that recurring
violations are not acceptable and reflect insufficient management
commitment to safety.
Based on our analysis, we found that even though HSS has the authority
to enforce compliance with nuclear safety requirements, over one-third
of the most frequently reported violations of these requirements
continue to reoccur without abatement. We analyzed the number of
specific conditions of noncompliance with the nuclear safety
requirements that were contained in entries to the Noncompliance
Tracking System from 2005 to 2007. Our analysis found that there were
178 different noncompliance conditions reported, or separate violations
of the nuclear safety requirements,[Footnote 36] and that the 25 most
frequently cited conditions represented about 67 percent of this total.
We determined that 9 of these 25 conditions of noncompliance occurred
at the same or higher average frequency in 2007 as they did in 2005,
despite an overall decrease in the number of nuclear safety violations
over that time period. For example, contractors at some DOE sites
repeatedly reported violating the same nuclear safety requirement for
"performing the work consistent with technical standards," the most
frequently recurring violation across the complex from 2005 to 2007.
According to HSS officials, as this is a broad category that
encompasses all instances of procedural violations and inadequate
procedures, it is not surprising that this violation is cited in the
overwhelming majority of the reported violations. Yet, it is a
violation that meets DOE's reporting thresholds for safety significance
and does in part reflect on the safety culture at these sites. Table 2
shows the number of times this violation has been self-reported by
contractors at the DOE sites listed from 2005 to 2007.
Table 2: Reported Violations of the DOE Nuclear Safety Requirement to
Perform Work Consistent with Technical Standards at Selected DOE Sites
from 2005 to 2007,A by Frequency:
DOE site[B]: Idaho;
Nuclear facilities: 38;
2005: 12;
2006: 14;
2007: 17.
DOE site[B]: Oak Ridge;
Nuclear facilities: 29;
2005: 14;
2006: 10;
2007: 3.
DOE site[B]: Hanford;
Nuclear facilities: 23;
2005: 15;
2006: 14;
2007: 7.
DOE site[B]: Savannah River;
Nuclear facilities: 23;
2005: 1;
2006: 16;
2007: 11.
DOE site[B]: Los Alamos;
Nuclear facilities: 19;
2005: 9;
2006: 8;
2007: 5.
DOE site[B]: Pantex;
Nuclear facilities: 18;
2005: 1;
2006: 4;
2007: 2.
DOE site[B]: Argonne;
Nuclear facilities: 7;
2005: 4;
2006: 5;
2007: 4.
DOE site[B]: Lawrence Livermore;
Nuclear facilities: 7;
2005: 11;
2006: 9;
2007: 7.
Source: GAO analysis of the Noncompliance Tracking System database.
[A] Sites selected based on frequency of this violation. Data for 2007
is through October 15, 2007.
[B] In some cases, there may be more than one contractor operating at a
DOE site.
[End of table]
The Office of Enforcement has frequently taken actions at those sites
in table 2 that continue to violate this nuclear safety requirement and
some others. As shown in table 3, this office has been active at those
sites with the most high-hazard nuclear facilities through the use of
notices of violations, enforcement letters, and program reviews. For
the sites listed in table 2, the Office of Enforcement has had some
type of contact in at least 2 out of the 3 years since 2005.
Table 3: Notices of Violation, Enforcement Letters, and Program Reviews
at DOE Sites with High-Hazard Nuclear Facilities from 1995 to 2007:
DOE site[A]: Idaho;
Nuclear facilities[B]: 38;
Notices, letters, and reviews: 26;
2007: [Check];
2006: [Check];
2005: [Empty];
2004: [Check];
2003: [Check];
2002: [Check];
2001: [Empty];
2000: [Check];
1999: [Check];
1998: [Check];
1997: [Check];
1996: [Empty];
1995: [Empty].
DOE site[A]: Oak Ridge;
Nuclear facilities[B]: 29;
Notices, letters, and reviews: 19;
2007: [Empty];
2006: [Check];
2005: [Check];
2004: [Check];
2003: [Check];
2002: [Check];
2001: [Check];
2000: [Empty];
1999: [Empty];
1998: [Check];
1997: [Check];
1996: [Empty];
1995: [Empty].
DOE site[A]: Hanford;
Nuclear facilities[B]: 23;
Notices, letters, and reviews: 27;
2007: [Check];
2006: [Check];
2005: [Check];
2004: [Check];
2003: [Check];
2002: [Check];
2001: [Check];
2000: [Check];
1999: [Check];
1998: [Check];
1997: [Check];
1996: [Check];
1995: [Check].
DOE site[A]: Savannah River;
Nuclear facilities[B]: 23;
Notices, letters, and reviews: 16;
2007: [Empty];
2006: [Check];
2005: [Check];
2004: [Check];
2003: [Check];
2002: [Check];
2001: [Check];
2000: [Check];
1999: [Empty];
1998: [Check];
1997: [Check];
1996: [Check];
1995: [Empty].
DOE site[A]: Los Alamos;
Nuclear facilities[B]: 19;
Notices, letters, and reviews: 15;
2007: [Check];
2006: [Check];
2005: [Empty];
2004: [Check];
2003: [Check];
2002: [Check];
2001: [Check];
2000: [Empty];
1999: [Check];
1998: [Check];
1997: [Check];
1996: [Check];
1995: [Empty].
DOE site[A]: Pantex;
Nuclear facilities[B]: 18;
Notices, letters, and reviews: 7;
2007: [Empty];
2006: [Check];
2005: [Check];
2004: [Check];
2003: [Empty];
2002: [Empty];
2001: [Empty];
2000: [Check];
1999: [Check];
1998: [Empty];
1997: [Check];
1996: [Empty];
1995: [Empty].
DOE site[A]: Y-12;
Nuclear facilities[B]: 13;
Notices, letters, and reviews: 8;
2007: [Check];
2006: [Check];
2005: [Empty];
2004: [Check];
2003: [Check];
2002: [Check];
2001: [Empty];
2000: [Check];
1999: [Check];
1998: [Empty];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site[A]: Argonne;
Nuclear facilities[B]: 7;
Notices, letters, and reviews: 11;
2007: [Empty];
2006: [Check];
2005: [Check];
2004: [Empty];
2003: [Empty];
2002: [Empty];
2001: [Check];
2000: [Check];
1999: [Check];
1998: [Empty];
1997: [Check];
1996: [Check];
1995: [Empty].
DOE site[A]: Lawrence Livermore;
Nuclear facilities[B]: 7;
Notices, letters, and reviews: 11;
2007: [Empty];
2006: [Check];
2005: [Check];
2004: [Check];
2003: [Check];
2002: [Empty];
2001: [Empty];
2000: [Check];
1999: [Check];
1998: [Check];
1997: [Empty];
1996: [Check];
1995: [Empty].
DOE site[A]: Sandia;
Nuclear facilities[B]: 6;
Notices, letters, and reviews: 7;
2007: [Empty];
2006: [Empty];
2005: [Empty];
2004: [Check];
2003: [Empty];
2002: [Empty];
2001: [Empty];
2000: [Empty];
1999: [Check];
1998: [Check];
1997: [Check];
1996: [Check];
1995: [Empty].
DOE site[A]: Nevada Test Site;
Nuclear facilities[B]: 5;
Notices, letters, and reviews: 9;
2007: [Check];
2006: [Empty];
2005: [Empty];
2004: [Check];
2003: [Check];
2002: [Check];
2001: [Empty];
2000: [Check];
1999: [Check];
1998: [Empty];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site[A]: Paducah;
Nuclear facilities[B]: 5;
Notices, letters, and reviews: 0;
2007: [Empty];
2006: [Empty];
2005: [Empty];
2004: [Empty];
2003: [Empty];
2002: [Empty];
2001: [Empty];
2000: [Empty];
1999: [Empty];
1998: [Empty];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site[A]: Hanford ORP;
Nuclear facilities[B]: 4;
Notices, letters, and reviews: 3;
2007: [Check];
2006: [Check];
2005: [Empty];
2004: [Check];
2003: [Empty];
2002: [Empty];
2001: [Empty];
2000: [Empty];
1999: [Empty];
1998: [Empty];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site[A]: Portsmouth;
Nuclear facilities[B]: 3;
Notices, letters, and reviews: 1;
2007: [Empty];
2006: [Empty];
2005: [Check];
2004: [Empty];
2003: [Empty];
2002: [Empty];
2001: [Empty];
2000: [Empty];
1999: [Empty];
1998: [Empty];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site[A]: WIPP;
Nuclear facilities[B]: 2;
Notices, letters, and reviews: 5;
2007: [Empty];
2006: [Check];
2005: [Empty];
2004: [Check];
2003: [Empty];
2002: [Check];
2001: [Empty];
2000: [Check];
1999: [Check];
1998: [Empty];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site[A]: New Brunswick[D];
Nuclear facilities[B]: 1;
Notices, letters, and reviews: 0;
2007: [Empty];
2006: [Empty];
2005: [Empty];
2004: [Empty];
2003: [Empty];
2002: [Empty];
2001: [Empty];
2000: [Empty];
1999: [Empty];
1998: [Empty];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site[A]: Pacific Northwest;
Nuclear facilities[B]: 1;
Notices, letters, and reviews: 4;
2007: [Empty];
2006: [Empty];
2005: [Check];
2004: [Check];
2003: [Empty];
2002: [Check];
2001: [Empty];
2000: [Check];
1999: [Empty];
1998: [Empty];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site[A]: West Valley;
Nuclear facilities[B]: 1;
Notices, letters, and reviews: 2;
2007: [Empty];
2006: [Empty];
2005: [Empty];
2004: [Empty];
2003: [Empty];
2002: [Empty];
2001: [Empty];
2000: [Empty];
1999: [Check];
1998: [Check];
1997: [Empty];
1996: [Empty];
1995: [Empty].
DOE site[A]: Brookhaven;
Nuclear facilities[B]: [C];
Notices, letters, and reviews: 8;
2007: [Empty];
2006: [Empty];
2005: [Empty];
2004: [Check];
2003: [Empty];
2002: [Check];
2001: [Check];
2000: [Empty];
1999: [Check];
1998: [Empty];
1997: [Check];
1996: [Check];
1995: [Empty].
DOE site[A]: Fernald;
Nuclear facilities[B]: [C];
Notices, letters, and reviews: 8;
2007: [Empty];
2006: [Empty];
2005: [Check];
2004: [Check];
2003: [Check];
2002: [Check];
2001: [Empty];
2000: [Empty];
1999: [Check];
1998: [Empty];
1997: [Check];
1996: [Check];
1995: [Empty].
DOE site[A]: Miamisburg/Mound;
Nuclear facilities[B]: [C];
Notices, letters, and reviews: 7;
2007: [Empty];
2006: [Empty];
2005: [Empty];
2004: [Check];
2003: [Empty];
2002: [Empty];
2001: [Check];
2000: [Check];
1999: [Check];
1998: [Check];
1997: [Check];
1996: [Check];
1995: [Empty].
DOE site[A]: Rocky Flats;
Nuclear facilities[B]: [C];
Notices, letters, and reviews: 18;
2007: [Empty];
2006: [Empty];
2005: [Empty];
2004: [Check];
2003: [Empty];
2002: [Check];
2001: [Check];
2000: [Check];
1999: [Check];
1998: [Check];
1997: [Check];
1996: [Check];
1995: [Empty].
DOE site[A]: Total;
Nuclear facilities[B]: 205;
Notices, letters, and reviews: 212;
2007: 11;
2006: 12;
2005: 15;
2004: 25;
2003: 19;
2002: 16;
2001: 11;
2000: 27;
1999: 22;
1998: 20;
1997: 19;
1996: 13;
1995: 2.
Source: GAO analysis of HSS Office of Enforcement data.
[A] Notices of violation, enforcement letters, and program reviews are
issued to specific contractors, not DOE sites. In some cases, there may
be more than one contractor operating at a DOE site.
[B] The number of nuclear facilities listed for each DOE site is the
number of hazard category 1, 2, and 3 nuclear facilities at each site,
as of December 2007. The number of hazard category 1, 2, and 3 nuclear
facilities is dynamic as new facilities are constructed or existing
nuclear facilities are downgraded to below hazard category 3.
[C] These sites did not have any high-hazard nuclear facilities as of
December 2007, with the exception of Brookaven, which officially
downgraded its hazard category 3 nuclear facility to below hazard
category 3 in April 2008.
[D] New Brunswick Laboratory is operated by DOE, rather than a
contractor, and therefore is not subject to enforcement actions by HSS.
[End of table]
The actual number of notices of violations and enforcement letters
levied against contractors for violating DOE's nuclear safety
requirements has been relatively small compared to the number of self-
reported conditions of noncompliance that are entered into the
Noncompliance Tracking System. Our analysis shows that voluntary
entries into the tracking system have averaged around 220 per year
since 1999, and the combined number of notices of violations and
enforcement letters averaged about 12 per year during this time period.
There was a slight reduction in the number of entries for nuclear
safety violations between 2006 (235 entries) and 2007 (164 entries),
representing approximately a 30 percent decrease in comparison to the
previous 8-year average for nuclear safety violations. Figure 6 shows
trends in the combination of notices of violations and enforcement
letters with entries into the Noncompliance Tracking System from 1999
to 2007.
Figure 7: Trends in the Number of Notices of Violations and Enforcement
Letters and Entries into the Noncompliance Tracking System from 1999 to
2007:
[See PDF for image]
This figure is a combination line and vertical bar graph depicting the
following data:
Year: 1999;
Total entries into Noncompliance Tracking System: 15;
Total notices of violations and enforcement letters: 229.
Year: 2000;
Total entries into Noncompliance Tracking System: 22;
Total notices of violations and enforcement letters: 264.
Year: 2001;
Total entries into Noncompliance Tracking System: 8;
Total notices of violations and enforcement letters: 236.
Year: 2002;
Total entries into Noncompliance Tracking System: 10;
Total notices of violations and enforcement letters: 193.
Year: 2003;
Total entries into Noncompliance Tracking System: 14;
Total notices of violations and enforcement letters: 216.
Year: 2004;
Total entries into Noncompliance Tracking System: 15;
Total notices of violations and enforcement letters: 229.
Year: 2005;
Total entries into Noncompliance Tracking System: 11;
Total notices of violations and enforcement letters: 222.
Year: 2006;
Total entries into Noncompliance Tracking System: 9;
Total notices of violations and enforcement letters: 235.
Year: 2007;
Total entries into Noncompliance Tracking System: 9;
Total notices of violations and enforcement letters: 164.
Source: GAO analysis of DOE data.
Note: Under the new system for entering violations into the
Noncompliance Tracking System, the total for 2007 would indicate 292
entries. However, this number includes 128 reported violations of the
new worker safety and health requirements that HSS began to track in
2007. For comparison purposes, we are using only the number of nuclear
safety violations.
[End of figure]
One example of HSS enforcement actions is illustrated with events at
the Office of River Protection site. Several events at this site in
2003 and 2004 led to a March 2005 civil penalty from the Office of
Price-Anderson Enforcement of $316,250. In July 2007, another event, a
spill of about 85 gallons of highly radioactive material at a different
location at this site, was caused by the same contractor. This event
resulted in a stop-work order at the tank farms, over $5 million in
remediation and corrective action costs, $500,000 in fines from the
Washington State Department of Ecology, a $30,800 fine from the U.S.
Environmental Protection Agency, and a $500,000 contract fee reduction
from DOE. A subsequent HSS accident investigation identified five
issues related to the 2007 accident that were essentially the same as
deficiencies the Office of Price-Anderson Enforcement identified in the
2005 notice of violation to the contractor. In June 2008, the Office of
Enforcement fined the contractor $302,500 for the July 2007 accident.
HSS officials told us that the safety performance of this contractor
was a factor in DOE recently selecting a different contactor to manage
and operate this site.
In a recent NRC report on DOE regulatory processes at the Hanford Waste
Treatment Plant, NRC also pointed out recurring problems at the Office
of River Protection site but with a different contractor. NRC found
that recurring issues led to two enforcement actions and a 2008 notice
of investigation. NRC stated that this could be indicative of program
implementation issues in 2003 or 2004 that were not fully addressed and
resolved as of 2008. NRC concluded that actions by the Office of Price-
Anderson Enforcement and other underlying issues indicate that
significant safety program and quality assurance functions, such as
controls on noncompliance conditions and corrective actions, were not
effective over an extended period of time.
HSS Restricts Public Access to Nuclear Safety Information:
HSS currently restricts public access to some nuclear safety
information that might be important to surrounding communities and
other interested parties. We found that there were public access
restrictions on reviewing the Office of Independent Oversight appraisal
reports. Officials from this office informed us that access is
generally restricted to DOE, contractor, and federal officials who can
show a need to see this information. While the public can access
information on the activities of the Office of Enforcement, the public
does not have ready access to certain databases, such as the
Noncompliance Tracking System. HSS officials informed us that
interested members of the public can review pertinent entries into this
database through the congressionally mandated public reading room but
only after an investigation is closed. In addition to these
restrictions, both offices do not have fully transparent decision-
making processes for selecting sites to inspect, although they publish
procedures for undertaking their investigations. In contrast, the
public has access to Safety Board technical reports, letters,
recommendations, and DOE's actions in response to the board's findings.
Moreover, the weekly reports of the Safety Board site representatives,
covering their day-to-day observations of nuclear operations at
selected DOE sites, are also made available to the public. In addition,
the Safety Board publishes an annual performance plan that explains how
it chooses what to review and provides a detailed listing of planned
reviews.
A Reduction of Responsibilities and Resources at HSS and Its
Predecessors Was the Main Factor Contributing to Shortcomings in
Effective Oversight of Nuclear Safety:
The shortcomings we identified in HSS with respect to the elements of
effective independent oversight of nuclear safety are largely
attributable to reductions in its responsibilities and resources and in
those of its predecessors. DOE took these actions to support the
program offices, where it deemed these responsibilities and resources
more appropriately reside. More specifically, DOE reduced the role of
these offices in nuclear safety oversight largely to avoid redundancy
and to improve relations with the program offices. Similarly, technical
expertise has been transferred to the program offices to strengthen
their oversight capabilities. Moreover, limitations in HSS review
functions substantially stem from the program offices taking primary
responsibility for most aspects of the nuclear safety review process.
In addition, HSS has not taken primary responsibility for preventing
recurring nuclear safety violations because DOE views its role as
secondary to the program offices. Finally, HSS limits public access to
nuclear safety information because it is concerned about security and
possible counterproductive contractor and program office behavior.
DOE has reduced the role of HSS and its predecessors to provide
independent nuclear safety oversight largely to avoid redundancy and to
improve relations with the program offices. DOE began reducing the role
of its independent oversight office with respect to nuclear safety
after giving it significant responsibilities in the mid-1980s. In 1985,
DOE restructured the Office of Environment, Safety and Health to give
it more oversight tools and to integrate it into the operations of the
department at all levels. For example, the Secretary of Energy at the
time gave this office the authority to shut down any nuclear facility
that presented a clear and present danger and also the authority to
concurrently approve with the program offices the safety bases for new
nuclear facilities and modifications at existing nuclear facilities.
[Footnote 37] However, in the late 1980s, DOE created a separate office
reporting to the Secretary of Energy, the Office of Nuclear Safety, and
gave it the authority for routine review of the safety bases for
defense nuclear facilities. The Office of Environment, Safety and
Health was assigned the role of assisting the program offices in their
reviews but only had three staff members assigned to this task. When
the Office of Nuclear Safety was shifted into the Office of
Environment, Safety and Health in 1993, its responsibilities for
routine review of the safety bases for defense nuclear facilities did
not transfer. The transferred technical personnel, now in the Office of
Environment, Safety and Health, were given the responsibility for
providing assistance to the program offices if requested or as directed
by the Secretary of Energy.
DOE has also eliminated the on-site presence for its independent
oversight offices to in part reduce redundancies with program office
personnel at the sites. The site representative program for DOE's
independent oversight office began in 1988, when the Office of
Environment, Safety and Health decided to place its own representatives
at four DOE sites.[Footnote 38] According to the then Deputy Assistant
Secretary for this office, the site representatives provided valuable
day-to-day observations of nuclear operations at these sites. For
example, he told us that within months of their placement at the sites,
site representatives located at the Savannah River and Rocky Flats
sites documented safety problems that this official used to convince
the Secretary and Under Secretary of Energy, as well as the pertinent
program office, that a temporary shut down of some nuclear production
facilities at these sites was warranted. These facilities were shut
down, and at the time, he informed us that his office had the authority
to review and approve restarting them. In 1990, the next Secretary of
Energy moved the four site representative positions into the newly
created Office of Nuclear Safety, which was given authority to
routinely review the safety bases of defense nuclear facilities. The
first head of the Office of Nuclear Safety immediately doubled the
number of site representatives at the four sites. He informed us that
these representatives were very effective and well trained and that the
program offices and contractors did not like having them around. In
1993, the next Secretary of Energy merged the Office of Nuclear Safety
into the existing Office of Environment, Safety and Health. In 1994,
the site representative program peaked at 32 representatives at nine
sites, although not all of them focused on nuclear safety.[Footnote 39]
However, by 1999, DOE had reduced the program to 19 site
representatives at seven sites.
DOE shifted its position on the need for a site presence for its
independent oversight office in 1999. At this time, a senior DOE
official told us that the department began to view the independent site
representatives as redundant and less effective in their oversight than
the program office facility representatives, positions created in the
early 1990s to provide independent assessments of safety to the site
office managers. Moreover, HSS officials informed us that the unstated
reasons behind the decision to eliminate a site presence for the Office
of Environment, Safety and Health were that the site representatives no
longer provided substantial value, there were significant difficulties
in managing them from headquarters, the program offices began to
complain about variability in their technical qualifications, and the
contractors complained about getting conflicting directions. Following
a 1999 comprehensive organizational review of the authorities and
responsibilities of the Office of Environment, Safety and Health, DOE
determined that its dual role as regulator and a resource for technical
assistance was problematic. This finding led to the elimination of a
site presence for the Office of Environment, Safety and Health. DOE
decided instead to build up its facility representative and safety
system oversight programs within the program offices. For example, at
the Savannah River Site, DOE explained that there are now 30 facility
representatives and 15 safety system oversight engineers. In addition,
to compensate for the loss of this site presence, DOE decided that the
Office of Environment, Safety and Health should increase the frequency
of its periodic site inspections.
Finally, DOE put a career professional in charge of HSS, instead of a
Senate-confirmed appointee, for several reasons, including a desire to
improve relations with the program offices. In forming HSS, DOE
determined that the head of HSS needed to ensure that the office had a
clear mission and priorities, worked constructively with program
offices, was accountable for performance, and provided value to the
department. Moreover, HSS officials told us that this decision was
based on the belief that a career professional would be more effective
in maintaining corporate memory through the changes in administration,
particularly with respect to the time necessary to sustain nuclear
safety improvements. In addition, they told us that a career
professional is less beholden to a political appointee and less apt to
shade the oversight results to reflect well on the current
administration. We observe that some of this justification for a career
professional is in line with the position description we previously
suggested to head the independent oversight office, except that the
current position is not Senate-confirmed.
Technical expertise has been transferred to the program offices to
strengthen their oversight capabilities. In forming HSS, DOE decided in
large part to transfer more than 20 technical nuclear safety-related
positions from the Office of Environment, Safety and Health--which had
supported the safety bases reviews of the program offices--to these
program offices to strengthen their review capabilities. DOE determined
that while the program offices had gradually acquired more
responsibilities and accountability for the review of the safety bases
for high-hazard nuclear facilities, most of this resided at the site
offices and not headquarters. Responding to the 2004-1 Recommendation
of the Safety Board, DOE decided to establish the Central Technical
Authority within the program offices at headquarters in order to
provide additional awareness and assessment capabilities for monitoring
site operations with potential for high-consequence events, such as
nuclear facilities and operations. The Safety Board letter noted, among
other things, that there had been a reduction in central oversight of
safety. DOE officials explained that the positions that were
established to provide the review capabilities of the Office of
Environment, Safety and Health were transferred to support the
technical expertise needed by the Chief, Defense Nuclear Safety for
NNSA and Chief, Nuclear Safety for the program offices at headquarters.
These chiefs head small groups of technical experts that provide the
operational awareness needed by the Central Technical Authority--the
three Under Secretaries of Energy--to oversee implementation of nuclear
safety by the program offices at the sites. This operational awareness
is gained by having these technical staff monitor reports and
performance metrics, review site-specific and DOE complex-wide
technical and safety documents, and conduct site visits. The Safety
Board has accepted DOE's approach to increasing central oversight of
nuclear safety through this authority.
Limitations in HSS review functions substantially stem from the program
offices taking primary responsibility for most aspects of the nuclear
safety review process. HSS officials acknowledge some limitations in
their review functions against our elements of independent oversight
but generally point to them as being program office responsibilities.
For example, they acknowledge that the information in the Safety Basis
Information System is not current and may have some inaccuracies, but
they do not take responsibility for monitoring this system or
validating the information on the safety basis status of nuclear
facilities entered by the program offices. The number of high-hazard
nuclear facilities without a safety basis meeting requirements set
forth in 2001, which our survey found, is similar to a situation we
identified in the early 1980s. We reported in 1981 and 1983 that some
nuclear facilities were operating without approved safety basis
documentation, despite a 1976 agencywide requirement.[Footnote 40]
Moreover, we found that although the contractors had completed draft
safety basis documentation for their high-hazard nuclear facilities 4
to 5 years earlier, DOE had yet to approve them because it did not give
this effort enough priority. In 1985, the Office of Environment, Safety
and Health was given the responsibility for updating the status of
major nuclear facilities across the DOE complex. Currently, HSS
officials explained that they and the program offices do not use the
Safety Basis Information System, as it was only put in place to allow
the public to monitor DOE progress in upgrading high-hazard nuclear
facilities to meet current safety basis requirements. Instead, they use
other mechanisms, including accident reports, noncompliance tracking,
Safety Board reports, program office reviews, and the periodic site
inspections. In addition, HSS has not been given responsibility for
ensuring the program offices bring the safety basis for high-hazard
nuclear facilities into compliance with current requirements. Moreover,
in commenting on a draft of our report, DOE stated that the new safety
basis requirements envisioned a transition period for upgrading high-
hazard nuclear facilities, so some delay is acceptable. Further, DOE
stated that for some facilities that are scheduled for decommissioning,
upgrading the safety basis may be an unwarranted expenditure of
resources that provide little additional safety. However, updating the
safety bases of these nuclear facilities is now 5 years past the 2003
deadline, and the process of decommissioning facilities can heighten
safety risks.
HSS officials acknowledge that while there are gaps in meeting
inspection frequency goals as defined in the appraisal process
protocols, many of them are justifiable delays or otherwise allowed
under the protocols. Office of Independent Oversight officials told us
that staff have sometimes been shifted away from scheduled inspections
when higher priority, unanticipated concerns arise, such as an accident
investigation. In other situations, they told us that some sites are
not inspected on schedule because these sites were in shut-down
condition and a visit at the scheduled time interval would not have
been useful. In addition, the site inspection protocols allow for less
frequent visits to those sites that are determined to have effective
self-assessment programs and acceptable ratings from past inspections.
Finally, these officials told us that the Office of Independent
Oversight does not want to return to a site too frequently because the
program offices and contractors have complained about being
overburdened with inspections, primarily their own. In addition, DOE
officials told us that the technical staff to each Central Technical
Authority is also expected to conduct comprehensive reviews of each
site on a nominal 2-year cycle.
Finally, HSS officials also acknowledge that they are not routinely
involved in assessing the effectiveness of the corrective actions taken
by the program offices and their contractors to the appraisal findings
because this is considered primarily a program office responsibility.
According to an Office of Independent Oversight official, staff
resources are better used to conduct new site inspections than to
conduct separate follow-up reviews to determine if the corrective
actions effectively addressed findings from prior inspections.
Nevertheless, we observe that in this area and other aspects of safety
basis reviews, reliance on program offices to primarily conduct these
activities can raise questions of conflict of interest.
NRC raised some concerns about reliance on program office oversight in
its recent report of DOE regulatory processes at the Hanford Waste
Treatment Plant. NRC found that DOE focuses its oversight program on
ownership responsibilities rather than on nuclear safety requirements.
Moreover, NRC found that because of dual roles and responsibilities and
lack of independence of the oversight organization and staff--that is,
in the Office of River Protection--oversight by this program office
would not be considered equivalent to NRC's inspection program. For
example, NRC stated that DOE's audit and assessment program was not
effective in identifying issues with the safety program and quality
assurance functions, determining the extent of conditions, and
resolving issues. In addition, NRC determined that because the program
office staff had both regulator and owner responsibilities, effective
staff review time on ensuring nuclear safety was less than NRC would
apply in regulating a similar facility. Despite the issues identified
by NRC with DOE's regulatory processes at this high-hazard nuclear
facility, NRC concluded that the DOE program, if properly implemented,
is adequate to ensure protection of public health and safety at this
DOE site. Nevertheless, NRC followed this conclusion with suggestions
that DOE evaluate how to improve implementation of its requirements and
the transparency of its decisions, and also explore ways to gain and
maintain more independence between its regulatory oversight and project
management functions.
HSS has not taken primary responsibility for preventing recurring
nuclear safety violations because DOE views its role as secondary to
the program offices. HSS officials acknowledge that there is clearly
room for improvement across the DOE complex with respect to recurring
safety events and nuclear safety deficiencies. Officials from the
Office of Enforcement told us that while addressing recurring
violations is an office priority, the responsibility for preventing the
recurrence of nuclear safety events extends to a number of
organizations within the contractor and program offices. According to
these officials, the inability to eliminate recurring violations is not
solely attributable to the enforcement program, as this is primarily a
program office responsibility.
The program offices can and do use contractual mechanisms to penalize
contractors for poor nuclear safety performance, as well as to
encourage improved performance. These mechanisms include assessment
reports that dictate that a problem needs correction, showing cause
letters, stopping work direction, conditional payment for fee actions,
and contract termination. For example, HSS officials told us that since
2005, the Office of Environmental Management has exercised conditional
payment of fee actions 10 times to penalize contractors for poor safety
performance. While an evaluation of these mechanisms is outside the
scope of this review, we pointed out in a 1999 report that shortcomings
in the implementation of performance-based contracting by the program
offices--as an important mechanism to encourage compliance with nuclear
safety requirements--have limited the department's ability to hold
contractors accountable for safe nuclear practices.[Footnote 41] We
therefore recommended approaches to strengthen the enforcement program
at that time.
More recently, officials from the Office of Enforcement told us the
office has escalated enforcement actions, where appropriate, including
the penalty level, and has strongly encouraged contractors to perform
more thorough root cause analyses of recurring violations. These
officials also informed us that HSS plans to continue to help the
program offices identify causes of recurrent violations through various
means on both specific enforcement actions, such as through corrective
actions, and on a program-wide basis, such as sharing lessons learned
with enforcement coordinators, through conferences, and through other
venues.
While there are few enforcement actions taken against DOE contractors
each year compared to the number of reported nuclear safety violations,
Office of Enforcement officials told us that they take every action
required against contractors that have significant nuclear safety
violations and that they have the technical resources to do so.
Significant violations would include those with potential nuclear
safety impact, a history of similar violations by the contractor, or
the presence of negligent or malevolent intent, among other factors. In
addition, these officials told us that the decrease in notices of
violations and enforcement letters over the last 2 years is not
unusually low and that variation from year to year is normal. They
attributed the recent decline in the number of entries into its
Noncompliance Tracking System to the hesitancy of some contractors to
report violations and also to new responsibilities for reporting worker
safety and health noncompliance conditions. These officials indicated
to us that they have notified the contractors and program offices of
this trend and that they plan to initiate two program reviews in 2008
of contractors that could be underreporting violations.
NRC found in its review of DOE regulatory processes at the Hanford
Waste Treatment Plant that there were some similarities and differences
between the enforcement programs. NRC reported that DOE's enforcement
requirements, guidance, and procedures contain many features that
appear similar to the NRC enforcement process. For example, NRC also
emphasizes the importance of its licensees identifying issues and
implementing effective and complete corrective actions. However, NRC's
enforcement process is usually initiated by its inspectors during
routine inspections, when potential violations are normally noted and
discussed with the licensee at the time or shortly thereafter, thus
beginning the enforcement process. In contrast, HSS's Office of
Enforcement has no presence at DOE sites to conduct independent routine
inspections of specific facilities or programs for violations of the
nuclear safety requirements, and its enforcement process takes a long
time in comparison to NRC. NRC also noted differences in the threshold
for taking an enforcement action--NRC has a low threshold for the
significance of an event warranting an enforcement action compared to
the consistently high threshold used by HSS.
HSS limits public access to nuclear safety information because it is
concerned about security and possible counterproductive contractor and
program office behavior. HSS officials acknowledge that they have
restricted public access to Office of Independent Oversight appraisal
reports but that this was done for national security reasons after the
terrorist attacks on September 11, 2001. However, HSS officials told us
in May 2008 that the office is considering allowing public access to
the Office of Independent Oversight's Web site for unclassified
appraisal reports. HSS has also restricted access to the data and
processes it uses for various reasons. For example, Office of
Enforcement officials informed us that information contained in the
Noncompliance Tracking System is considered predecisional information
that has the potential to lead to a federal investigation, and on that
basis, it is inappropriate to make it publicly available. In addition,
they informed us that the forms and specific written description of the
Office of Enforcement's screening process have not been made publicly
available but that they have discussed this process with the program
offices and contractor community. They have not disclosed more because
they are concerned that this might limit enforcement flexibility and
provide an opportunity for contractors to slant reported noncompliance
conditions in a way that affects the outcome of the screen, without
providing a commensurate benefit. We were also told that this screening
process is not shared with the program offices, including the program
office enforcement coordinators at the sites.
Conclusions:
DOE's ability to effectively self-regulate its high-hazard nuclear
facilities not only depends on vigorous oversight of contractors by the
program offices, but also on active oversight of the contractors and
program offices by an internal independent oversight office with no
program responsibilities. Nearly all of the shortcomings in HSS with
respect to our elements of effective independent oversight of nuclear
safety are primarily attributable to DOE's desire to strengthen the
oversight of the program offices by concentrating the necessary
responsibilities and technical resources within them. In part, this has
been accomplished by removing some important nuclear safety oversight
responsibilities and technical resources from HSS and its predecessors.
Essentially, DOE's approach to self-regulation rests on the assumption
that personnel within the program offices can overcome any conflicts of
interest in achieving program objectives while ensuring safety and that
the current level of independent oversight and enforcement of nuclear
safety by HSS is appropriate. In forming HSS, DOE decided to focus this
office on providing the program offices, with the assistance and the
tools necessary to solve problems and to improve performance, so that
DOE sites can better accomplish the department's missions and strategic
goals. This is not the first time that DOE has altered the role of its
independent oversight office with respect to nuclear safety. Over the
years, DOE has been able to change this role because the
responsibilities and authorities of this office with respect to nuclear
safety are not set in law.
In our view, DOE needs to strengthen HSS as an independent regulator of
nuclear safety within its self-regulation approach. Using our elements
of effective independent oversight, along with supporting criteria from
our past work and current HSS guidance, we have concluded that HSS
needs more direct awareness of site operations, greater involvement in
facility safety basis reviews and monitoring, and stronger enforcement
actions to address recurring violations of nuclear safety requirements.
We believe that increasing HSS's involvement in nuclear safety could
increase public confidence that DOE can continue to self-regulate its
high-hazard nuclear facilities and decrease the likelihood of a low-
probability but high-consequence nuclear accident. In the August 2008
NRC report on DOE's regulatory processes for the Hanford Waste
Treatment Plant, NRC concluded that DOE's program, if properly
implemented, is adequate to ensure protection of public health and
safety at this DOE site. However, NRC also suggested that DOE evaluate
how to improve implementation of its requirements and the transparency
of its decisions and explore ways to gain and maintain more
independence between its regulatory oversight and project management
functions. We believe that strengthening HSS's role in overseeing
nuclear facilities and operations and establishing HSS responsibilities
in law if necessary, would do more to gain and maintain independence
between these functions than would any procedural changes within the
program offices.
Recommendations for Executive Action:
We recommend that the Secretary of Energy take actions to strengthen
HSS's independent oversight of nuclear safety. Such actions would
include giving HSS the responsibilities, technical resources, and
policy guidance necessary to:
1. review the safety basis for new nuclear facilities and significant
modifications to existing facilities to ensure there are no safety
concerns;
2. monitor the safety basis status of high-hazard nuclear facilities
and ensure that all such facilities operate under current nuclear
safety requirements, including the appropriate use of Justifications
for Continued Operations;
3. increase a presence at DOE sites with nuclear facilities to provide
more frequent observations of nuclear safety, provide more independent
information to facilitate any necessary enforcement actions, and more
routine monitoring of the effectiveness of corrective actions taken in
response to HSS findings of deficiency;
4. ensure that enforcement actions are strengthened to prevent
recurring violations of the nuclear safety requirements; and:
5. establish public access to unclassified appraisal reports.
Matter for Congressional Consideration:
If the Secretary of Energy does not take appropriate actions on our
recommendations, the Congress should consider permanently establishing
in law the responsibilities of HSS as noted above with respect to
nuclear safety or shifting DOE to external regulation by:
1. providing the resources and authority to the Safety Board to oversee
all DOE nuclear facilities and to enforce DOE nuclear safety rules and
directives.
2. providing the resources and authority to NRC to externally regulate
all or just the newly constructed DOE nuclear facilities.
Agency Comments and Our Evaluation:
DOE, the Safety Board, and NRC provided written comments on a draft of
this report, which are reprinted in appendixes VI, VII, and VIII,
respectively. Each agency also provided detailed comments that we
incorporated, as appropriate. More detailed comments on DOE's letter
appear in appendix VI.
DOE stated that the draft report was fundamentally flawed and disagreed
with many of the report's conclusions, while in its detailed comments
DOE generally agreed with three of our five recommendations. According
to DOE the report was flawed because it evaluated HSS against GAO's
preconceived opinion of functions that should be assigned to HSS. As
the report noted, the objectives of our review were focused on whether
the structure and functions of HSS allow it to provide effective
independent oversight of nuclear safety with respect to our elements of
effectiveness. Our review was not intended to be a comprehensive
assessment of safety management across the entire department.
DOE rejected two of our recommendations. Specifically, DOE disagreed
with our recommendations to strengthen independent oversight by giving
HSS responsibilities and sufficient technical resources to (1) review
and concur on the safety basis for new nuclear facilities and
significant modifications to existing facilities that might raise new
safety concerns and (2) maintain a presence at DOE sites with nuclear
facilities to provide day-to-day observations on nuclear safety,
provide information to facilitate any necessary enforcement actions,
and to monitor the effectiveness of corrective actions taken in
response to HSS findings of deficiency.
Regarding the first recommendation concerning review and concurrence by
HSS on the safety basis for high-hazard nuclear facilities, we believe
that this is an appropriate function for an independent oversight
office within DOE's approach to self-regulation. Even DOE's advisory
committee on external regulation reported in 1995 that the independent
oversight office should be granted this responsibility and authority in
the transition to external regulation by NRC. The Safety Board also has
independent review responsibilities for the safety bases for nuclear
facilities and authority to force DOE to respond to its assessments. An
HSS predecessor office had the technical expertise to perform these
reviews--now transferred to the program offices at headquarters--and,
as DOE explains, HSS still retains significant expertise to conduct
such reviews, which it currently uses on a periodic basis through its
site inspection program. We did, however, alter this recommendation to
remove the need for HSS to concur with the safety basis in order to
provide DOE with increased flexibility in using HSS in this review
process.
Regarding the second recommendation that HSS maintain a presence at DOE
sites with high-hazard nuclear facilities, we believe that this is
consistent with our previous recommendations and it is an essential
component of a nuclear safety oversight organization that is supposed
to function independently from the program offices, which have both
safety and mission responsibilities. We did, however, alter this
recommendation to state that HSS should increase its presence at DOE
sites, rather than stipulate that it maintain a day-to-day presence.
DOE stated that implementing these two recommendations would be
expensive, redundant, and counterproductive to continuous improvement
in nuclear safety, citing past experiences but offering no supporting
analysis of impacts. DOE could implement these two recommendations in a
variety of ways that could be economical and efficient. For example,
regarding review of nuclear facility safety bases, DOE could rely on
the existing expertise within HSS to conduct these reviews or it could
shift technical staff from the nuclear safety oversight units within
the program offices at headquarters (Central Technical Authority) into
HSS. As for an HSS site presence, DOE could have this office perform
more frequent and efficient site inspections or assign a minimal number
of staff to sites with higher numbers of high-hazard nuclear facilities
in order to promote greater awareness of site operations and to follow
up on oversight findings and enforcement actions.
In addition, DOE raised questions about the credibility of our
evaluation that centered on three primary areas. First, DOE commented
that by focusing on HSS's responsibilities in isolation rather than as
one element of DOE's approach to nuclear safety, the draft report
appeared to be based on the incorrect premise that DOE program and site
offices are inherently ineffective and that all DOE oversight must be
performed by HSS. Second, DOE states that the draft report lacked
balance and selectively quoted information out of context. Third, DOE
stated that the draft report drew erroneous conclusions based on an
incomplete understanding of HSS's mission and was oversimplified
because it was developed by individuals with limited expertise in
nuclear safety and with DOE's approach to nuclear safety. We disagree
with these contentions.
First, the objectives of our review were focused on whether the
structure and functions of HSS allow it to provide effective
independent oversight of nuclear safety. Our review was not intended to
be a comprehensive assessment of safety management across the entire
department. HSS is a critical component of DOE's self-regulation
approach because it is the only DOE safety office intended to be
independent of the program offices, which carry out the department's
mission responsibilities. Contrary to DOE's assertion, we do not
believe, nor did our draft report state, that DOE program offices are
inherently ineffective or that all DOE oversight must be performed by
HSS. Our draft report clearly noted that DOE's ability to effectively
self-regulate its high-hazard nuclear facilities depends on vigorous
oversight of contractors by the program offices. However, we do believe
that the program offices inherently lack independence and require
oversight by an independent office with no program responsibilities.
The concept of independent oversight is at the heart of our report. In
any program subject to safety regulation, the regulated entity is
ultimately responsible to ensure safety. This fact does not diminish
the need for independent oversight. DOE program offices face competing
and often conflicting goals of maximizing project performance and
minimizing cost. The steps necessary to ensure safety and to
independently validate these steps can run counter to achieving mission
objectives. For example, in its comments, DOE cites the Facility
Representative Program, which is managed by the program offices and
provides an on-site presence at DOE nuclear facilities as a more
extensive and more effective program than existed with HSS predecessor
offices. However, the facility representatives have other
responsibilities beyond safety, namely helping to ensure that program
goals are achieved in a cost-effective manner. While the program
offices will always have a critical role in ensuring safety and the
usefulness of the Facility Representative Program is not in dispute,
these activities are not a substitute for oversight by an office that
is focused solely on safety and is independent from other mission
responsibilities.
Second, we also disagree with DOE's comment that the draft report
lacked balance and selectively quoted information out of context. For
example, contrary to DOE's claim, we detailed why DOE eliminated the
independent site representative program, both in the Results in Brief
section and in the body of the report. Moreover, in our discussion of
NRC's review of DOE regulatory processes at its Hanford Waste Treatment
Plant, which DOE cites as an example of selective quotation, we
provided examples of both positive and negative findings by NRC.
Specifically, we noted that NRC reported that DOE's enforcement
requirements, guidance, and procedures contain many features that
appear similar to the NRC enforcement process. To address DOE's
concerns, we have added NRC's conclusion that, if properly implemented,
DOE's program is adequate to ensure protection of public health and
safety. However, this does not negate NRC's suggestion following its
conclusions that DOE should explore ways to ensure its regulatory
oversight is independent from its project management functions.
Third, we disagree with DOE's comments that the draft report draws
erroneous conclusions based upon an incomplete understanding of HSS's
mission and that the report was oversimplified because of limited
expertise with DOE's approach to nuclear safety. Our draft report
discussed HSS's different functions and had extensive detail on the
nuclear safety related functions of HSS's Office of Enforcement; Office
of Independent Oversight; Office of Environment, Safety, and Health
Evaluations; and Office of Corporate Safety Analysis. DOE illustrates
what it calls our lack of complete understanding of HSS's mission by
stating that we did not address the attention HSS has given to problems
at the Office of River Protection. We specifically discussed the number
of inspections at this site relative to other sites. We also discussed
the number of enforcement actions and gave several examples. The point
of our assessment was that this site has not received the inspections
it should have based on HSS guidance and that the enforcement actions
by HSS have not reduced the incidence of certain recurring violations
of the nuclear safety requirements by contractors at this site.
DOE also asserts that the draft report fails to acknowledge the wide
variation in the type and status of DOE's nuclear facilities and
therefore incorrectly reports that there are significant gaps in HSS
inspections of DOE nuclear sites. DOE further states that nuclear
safety professionals would recognize that there are valid reasons why
little value would be gained from inspecting certain sites, including
sites where cleanup is essentially complete. Our draft report clearly
noted in several places that there are a number of sites, including
DOE's Fernald, Miamisburg/Mound, and Rocky Flats sites that have
largely completed cleanup activities and have no remaining high-hazard
nuclear facilities. Our discussion of inspection gaps was focused on
those sites that have or had high-hazard nuclear facilities. While we
agree that there may be valid reasons for concluding that inspecting
certain sites would result in little value, it is important to note
that HSS's own policy requires inspections every 2 to 4 years at high-
hazard facilities. Of the 22 sites that had at least one high-hazard
nuclear facility over the last 5 years, 8 were not inspected in the
required time frame. One site, Hanford's Office of River Protection,
has received a site inspection only once since 1995, despite having
four operating nuclear facilities. Even DOE's Rocky Flats site--which
was undergoing cleanup activities at the time of the inspections--
received three times as many reviews. If little value is gained from
inspecting sites where cleanup is under way, we question why HSS
reviewed that site three times as often as a site with operational
nuclear facilities.
Finally, we disagree with DOE's comment that the draft report was
developed by individuals with limited expertise in nuclear safety and
with DOE's approach to nuclear safety. As our draft report noted, GAO
began reporting on independent oversight within DOE in 1977. Over the
ensuing years, we have produced dozens of reports examining nuclear
safety and security issues at both DOE and NRC. Collectively, the GAO
staff responsible for the draft report possess decades of experience
examining DOE and NRC management of its programs, nuclear safety and
security, and regulatory issues. The criteria we used to evaluate HSS
are based on a long history of reviewing nuclear safety at DOE and
supporting independent oversight and on discussions with outside
nuclear safety experts.
The Safety Board did not comment on our recommendations but wrote that
the basic structure and authorities of the existing safety oversight
organizations, including the board, provide a satisfactory framework
for this function at those facilities under the board's jurisdiction.
The Safety Board urged that the draft report be amended to emphasize
that its statutory powers constitute action-forcing authority that is,
in part, reflected by DOE accepting and acting upon all of the 50
recommendations that it has issued. However, as noted in appendix V,
there has been a decline in the number of Safety Board recommendations
over the years, some past deficiencies addressed by recommendations
still remain unresolved, and the pace of closing out many other
recommendations has been slow. This raises questions about DOE's
responsiveness to the board's recommendations. Nevertheless, we revised
the report to address the board's concerns and made other changes, as
appropriate.
NRC did not comment on our recommendations but instead provided one
general comment and other suggested changes to clarify the text related
to our citing information from various reports, particularly the most
recent report on its review of DOE regulatory processes at the Hanford
Waste Treatment Plant. As a general comment, NRC wrote that the current
commission has not expressed a view on expanding its oversight role
beyond the DOE facilities already subject to NRC regulation. We
incorporated other suggested changes where appropriate.
As agreed with your offices, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the report date. At that time, we will send copies to the
Secretary of Energy, the Chairman of the Defense Nuclear Facilities
Safety Board, and the Chairman of NRC. We will make copies available to
others upon request. In addition, the report will be available at no
charge on the GAO Web site at [hyperlink, http://www.gao.gov].
If you or your staffs have any questions about this report, please
contact me at (202) 512-3841 or aloisee@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. GAO staff members who made contributions
to this report are listed in appendix IX.
Signed by:
Gene Aloise:
Director, Natural Resources and Environment:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
In our review, we examined 1) the extent to which the Office of Health,
Safety and Security (HSS) meets the elements of effective independent
nuclear safety oversight and (2) the factors contributing to any
identified shortcomings with respect to these five elements.
To conduct our review, we examined HSS's structure and functions and
that of its predecessor offices--principally the former Office of
Environment, Safety and Health and the Office of Safety and Security
Performance Assurance--with respect to only meeting our elements of
effective independent oversight of nuclear safety. We included in this
review two HSS predecessor offices because HSS began operation in
October 2006. We relied on criteria we developed in a 1987 report that
reviewed legislation to establish the Defense Nuclear Facilities Safety
Board (Safety Board), with the addition of enforcement authority, which
was given to the Department of Energy (DOE) around the same time as the
formation of the Safety Board. In some cases, we further defined these
elements with recommendations from our past reports, HSS guidance, and
through discussions with outside nuclear safety experts.
To examine the extent to which HSS, as currently structured, meets the
elements of effective independent nuclear safety oversight, we assessed
the oversight and enforcement practices of HSS and its predecessor
offices against our criteria for (1) independence; (2) technical
expertise; (3) ability to perform reviews and have findings effectively
addressed; (4) enforcement; and (5) public access to facility
information. To conduct this assessment, we reviewed relevant DOE rules
and directives; met with headquarters program office managers and HSS
officials to discuss current and past oversight practices; collected
and analyzed information obtained from documents and interviews with
these officials and at the Oak Ridge National Laboratory and Y-12
National Security Complex, as well as the Office of River Protection
and the Richland Office at the Hanford Site; and reviewed the database
of HSS environment, safety, and health program inspection reports and
enforcement activities. We assessed data on contractor self-reported
violations of the nuclear safety requirements entered into the
Noncompliance Tracking System, which we determined were sufficiently
reliable for the purposes of this report, and safety basis information
from a GAO-administered Web-based survey.
Although DOE has the Safety Basis Information System (SBIS) database
that tracks some information on the safety basis of nuclear facilities,
we determined that the information included in this database was not
sufficient for our analysis. To obtain reliable data, we developed a
Web-based survey instrument to administer to DOE officials who are
responsible for overseeing nuclear safety at hazard category 1, 2, and
3 nuclear facilities. The survey instrument included two parts. First,
program office officials at the site were asked to provide details on
the safety basis status for each nuclear facility for which they had
oversight responsibility. Second, these officials were asked to respond
to questions regarding guidance provided to them on safety basis
information and the line of authority for approving the safety bases
and any modifications to them.
To identify the current list of DOE's hazard category 1, 2, and 3
nuclear facilities for survey administration, we reviewed lists of
nuclear facilities from each of the program offices and the National
Nuclear Security Administration (NNSA) and e-mailed site officials to
verify that the lists of nuclear facilities were accurate. Prior to
administering the survey, we pretested the content and format of the
survey with program officials at four sites to determine whether (1)
the survey questions were clear, (2) the terms used were precise, (3)
respondents were able to provide the information we were seeking, and
(4) the questions were unbiased. We made changes to the content and
format of the survey based on pretest results. The survey was designed
as a Web-based survey with a unique username and passcode for each
survey respondent. The survey was sent to 34 program officials that
were collectively responsible for what we identified as the total
number (205) of high-hazard nuclear facilities across the DOE complex.
The survey field period was from mid-December 2007 to mid-February 2008
and the survey response rate was 100 percent.
To determine the factors contributing to any identified shortcomings
with respect to the five elements of effective independent oversight of
nuclear safety, we analyzed documentary and testimonial evidence on
current HSS practices and those of the former Office of Environment,
Safety and Health. In addition, we reviewed documents and interviewed
officials from the Safety Board and the Nuclear Regulatory Commission
(NRC) regarding past and current experiences in overseeing or planning
to oversee DOE nuclear facilities. We also discussed with them their
capability to accept an expanded role in overseeing DOE nuclear
facilities. Furthermore, we asked for perspectives on DOE oversight of
nuclear facilities from former DOE senior officials, academics, and
representatives from organizations who are knowledgeable about nuclear
safety and DOE operations, including the Health Physics Society, a
nonprofit professional organization whose mission is to promote the
practice of radiation safety; Conference on Radiation Control Program
Directors, a nonprofit organization of individuals that regulate and
control the use of radioactive material and radiation sources; and the
Government Accountability Project, a government watchdog organization.
We also spoke with a representative from the Institute of Nuclear Power
Operations about the functions of corporate safety offices in nuclear
utility companies.
We conducted this performance audit from April 2007 through September
2008 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives.
[End of section]
Appendix II: DOE Nuclear Safety Regulations and Related Directives:
The following table presents the DOE nuclear safety directives, which
include rules, guidance, and orders. We obtained this list from HSS,
which cautioned that it is not all inclusive. The list of directives
are most related to and developed specifically for DOE nuclear safety.
Other directives, such as those specifically related to worker
radiation protection, public and environmental radiation protection,
and DOE general management are important but are not listed in the
table. This list also does not include technical standards that DOE may
recommend or require for complying with nuclear safety requirements.
These and other DOE directives can be obtained from [hyperlink,
http://www.directives.doe.gov].
Table 4: DOE Nuclear Safety Regulations and Related Directives:
Number: 10 CFR;
Title: DOE nuclear safety related rules.
Number: 10 CFR; Part 708;
Title: DOE Contractor Employee Protection Program.
Number: 10 CFR; Part 820;
Title: Procedural Rules for DOE Nuclear Activities.
Number: 10 CFR; Part 830;
Title: Nuclear Safety Management.
Number: 10 CFR; Part 835;
Title: Occupational Radiation Protection.
Number: DOE[A];
Title: DOE directives supporting nuclear safety rules.
Number: DOE[A]; P 410.1;
Title: Promulgating Nuclear Safety Requirements.
Number: DOE[A]; O 410.1;
Title: Central Technical Authority Responsibilities Regarding Nuclear
Safety Requirements.
Number: DOE[A]; G 414.2A;
Title: Quality Assurance Management System Guide for Use with 10 CFR
830 Subpart A, Quality Assurance Requirements, and DOE O 414.1C,
Quality Assurance.
Number: DOE[A]; G 414.1-4;
Title: Safety Software Guide for Use with 10 CFR 830, Subpart A,
Quality Assurance Requirements, and DOE O 414.1C, Quality Assurance.
Number: DOE[A]; G 414.1-5;
Title: Corrective Action Program Guide.
Number: DOE[A]; O 414.1C;
Title: Quality Assurance.
Number: DOE[A]; O 420.1B;
Title: Facility Safety.
Number: DOE[A]; G 420.1-1;
Title: Nonreactor Nuclear Safety Design Criteria and Explosive Safety
Criteria Guide for Use with DOE O 420.1 Facility Safety.
Number: DOE[A]; G 420.1-2;
Title: Guide for the Mitigation of Natural Phenomena Hazards for DOE
Nuclear Facilities and Non-Nuclear Facilities.
Number: DOE[A]; G 420.1-3;
Title: Implementation Guide for Fire Protection and Emergency Services
Program for Use with DOE O 420.1B.
Number: DOE[A]; G 421.1-1;
Title: DOE Good Practices Guide Criticality Safety Good Practices
Program Guide for DOE Nonreactor Nuclear Facilities.
Number: DOE[A]; G 421.1-1; Appendices;
Title: DOE Good Practices Guide.
Number: DOE[A]; G 421.1-2;
Title: Implementation Guide for Use in Developing Documented Safety
Analysis to Meet Subpart B of 10 CFR 830.
Number: DOE[A]; G 423.1-1;
Title: Implementation Guide for Use in Developing Technical Safety
Requirements.
Number: DOE[A]; G 424.1-1A;
Title: Implementation Guide for Use in Addressing Unreviewed Safety
Questions Requirements.
Number: DOE[A]; O 425.1C;
Title: Startup and Restart of Nuclear Facilities.
Number: DOE[A]; O 433.1;
Title: Maintenance Management Program for DOE Nuclear Facilities.
Number: DOE[A]; G 433.1-1;
Title: Nuclear Facility Maintenance Management Program Guide for Use
with DOE O 433.1.
Number: DOE[A]; P 442.1;
Title: Differing Professional Opinions on Technical Issues Related to
Environment, Safety, and Health.
Number: DOE[A]; M 442.1-1;
Title: Differing Professional Opinions Manual for Technical Issues
Involving Environment, Safety, and Health.
Number: DOE[A]; O 470.2B;
Title: Independent Oversight and Performance Assurance Program.
Number: DOE[A]; O 5480.19;
Title: Conduct of Operations Requirements for DOE Facilities.
Number: DOE[A]; O 5480.20A;
Title: Personnel Selection, Qualification, and Training Requirements
for DOE Nuclear Facilities.
Number: DOE[A]; O 5480.30;
Title: Nuclear Reactor Safety Design Criteria.
Number: DOE[A]; SEN 35-91;
Title: Nuclear Safety Policy.
Source: DOE.
[A] In the directive numbers, G indicates DOE guidance, O indicates DOE
Order, M indicates DOE manual, and P indicates DOE policy, and SEN
indicates Secretary of Energy Notices. Policies contain DOE goals and
objectives, orders and manuals contain requirements, and guidance
documents provide nonmandatory means of meeting the requirements. DOE's
program and site offices sometimes provide additional guidance for
meeting the requirements.
[End of table]
[End of section]
Appendix III: HSS Organizational Chart:
[See PDF for image]
This figure is a complex organizational chart, as follows:
Top level:
Chief Health, Safety and Security Officer:
Second level:
* Departmental Representative;
* Office of Resource Management:
- Office of Business Operations;
- Office of Information Management;
- Office of Human Resources and Administration;
* Office of Departmental Personnel Security;
* Office of Security Operations:
- Office of Headquarters Security Operations;
- Office of HQ Personnel Security Operations;
- Office of Special Operations;
* Deputy Chief for Operations:
- Deputy Chief for Enforcement and Technical Matters.
Third level, all reporting to the Deputy Chief for Enforcement and
Technical Matters:
* Office of Health and Safety:
- Office of Worker Safety and Health Policy;
- Office of Worker Safety and Health Assistance;
- Office of Illness and Injury Prevention Program;
- Office of International Health Studies;
- Office of Former Worker Screening Programs.
* Office of Nuclear Safety, Quality Assurance and Environment:
- Office of Nuclear Safety Policy and Assistance;
- Office of Environmental Policy and Assistance;
- Office of Quality Assurance Policy and Assistance.
* Office of Corporate Safety Analysis:
- Office of Corporate Safety Programs;
- Office of Analysis.
* Office of Enforcement:
- Office of Worker Safety and Health Enforcement;
- Office of Price-Anderson Enforcement;
- Office of Security Enforcement.
* National Training Center:
- Office of Security Training Operations;
- Office of Safety Training Operations.
* Office of Independent Oversight:
- Office of Security Evaluations;
- Office of Cyber Security Evaluations;
- Office of Emergency Management Oversight;
- Office of Environment, Safety and Health Evaluations.
* Office of Security Policy:
- Office of Policy;
- Office of Foreign Visits and Assignments.
* Office of Security Technology and Assistance:
- Office of Security Assistance;
- Office of Technology.
* Office of Classification:
- Office of Quality Management;
- Office of Technical Guidance;
- Office of Document Reviews.
Source: Office of Health, Safety and Security.
[End of figure]
[End of section]
Appendix IV: Aggregate Results from Survey of DOE High-Hazard Nuclear
Facilities:
This appendix provides the aggregate results from our survey of DOE's
high-hazard nuclear facilities. The Web-based survey was comprised of
two parts. The first part asked questions about the safety basis for
each of the high-hazard nuclear facilities. Thirty-four respondents
were asked to provide responses to these questions concerning DOE's 205
high-hazard nuclear facilities. The second part asked questions about
the general review process undertaken by the program offices. Because
some questions were not answered by all respondents, the totals for
each question do not necessarily add to the total number of survey
respondents.
Safety Basis Information at Nuclear Facilities:
U.S. Government Accountability Office:
Welcome to the Survey on Safety Basis Information at Nuclear
Facilities. At the request of the Congress, the U.S. Government
Accountability Office (GAO) is examining the effectiveness of the
Department of Energy's (DOE) Office of Health, Safety and Security
(HSS) in its independent oversight of nuclear safety at DOE facilities.
As part of this review, we have prepared two surveys for DOE officials
who oversee nuclear safety at sites that contain these facilities.
Questions on this survey include information on the safety basis status
for hazard category 1, 2, or 3 nuclear facilities overseen by your site
office.
Q2. What is the hazard category of [facility]?
Hazard category 1: 2;
Hazard category 2: 152;
Hazard category 3: 45;
Below hazard category 3: 0;
Other: 6;
Don't know: 0;
Number of respondents: 205.
Q3. What is the operational status of [facility]?
Not under construction: 196;
Under construction: 7;
Other: 0;
Don't know: 0;
Number of respondents: 203.
Q4. What is the current safety basis approval status of [facility] ?
Safety basis is approved under 10 CFR 830: 170;
Safety basis is pending approval under 10 CFR 830: 0;
Safety basis has not been updated to meet 10 CFR 830: 21;
Safety basis is under development: 10;
Other: 3;
Don't know: 0;
Number of respondents: 204.
Q5. If the safety basis is under development, does [facility] have an
approved preliminary safety basis under 10 CFR 830?
Yes: 7;
No: 3;
Don't know: 0;
Number of respondents: 10.
Q7. Since January 2007, were there any Potential Inadequacies in the
Safety Analysis (PISAs) identified for [facility]?
Yes: 56;
No: 140;
Don't know: 9;
Number of respondents: 205.
Q8. If yes, how many PISAs were identified?
Mean: 2;
Minimum: 1;
Maximum: 10;
Number of respondents: 55.
Q9. How many of these PISAs resulted in a positive USQ?
Mean: 2;
Minimum: 1;
Maximum: 6;
Number of respondents: 40.
Q10. Of the positive USQs that resulted from PISAs, how many resulted
in Justifications for Continuing Operation (JCOs)?
Mean: 1;
Minimum: 1;
Maximum: 2;
Number of respondents: 28.
Q11 and Q12. Of the positive USQs that resulted from PISAs, how many
are:
Q11a. Number that are currently unresolved;
Mean: 1;
Minimum: 1;
Maximum: 4;
Number of respondents: 14.
Q12a. Number resolved through revisions to the safety basis;
Mean: 2;
Minimum: 1;
Maximum: 4;
Number of respondents: 10.
Q12b. Number resolved through amendments to the safety basis;
Mean: 1;
Minimum: 1;
Maximum: 2;
Number of respondents: 4.
Q12c. Number resolved through permanent exemptions;
Mean: [Empty];
Minimum: [Empty];
Maximum: [Empty];
Number of respondents: 0.
Q12d. Number resolved through temporary exemptions;
Mean: 1;
Minimum: 1;
Maximum: 1;
Number of respondents: 1.
Q12e. Number resolved through other actions;
Mean: 4;
Minimum: 2;
Maximum: 5;
Number of respondents: 2.
Q12g. Number resolved through JCO;
Mean: 1;
Minimum: 1;
Maximum: 2;
Number of respondents: 19.
Q13. Is [facility] currently operating under a JCO?
Yes: 67;
No: 136;
Don't know: 2;
Number of respondents: 205.
Q14. If yes, how many JCOs are currently in place?
Mean: 1;
Minimum: 1;
Maximum: 3;
Number of respondents: 67.
Q15a. Difference between JCO approval date and JCO expected end date -
in months:
Mean: 30;
Minimum: 3;
Maximum: 113;
Number of respondents: 50.
Q15b. Length of time JCO has been in place from end of survey field
period - in months:
Mean: 11;
Minimum: 1;
Maximum: 58;
Number of respondents: 75.
Q16. Does [facility] currently have any approved exemptions under 10
CFR 830?
Yes: 3;
No: 200;
Don't know: 1;
Number of respondents: 204.
Q17a. If yes, how many of these exemptions are temporary exemptions?
Mean: 1;
Minimum: 1;
Maximum: 1;
Number of respondents: 1.
Q17b. If yes, how many of these exemptions are permanent exemptions:
Mean: 1;
Minimum: 1;
Maximum: 1;
Number of respondents: 2.
For the general survey, more than one respondent from a site office
responded to our survey. In some cases, not all respondents from the
same site office necessarily provided the same response to the
questions. As a result, if at least one site office respondent
responded yes to a question, we coded the response from that site
office as yes. Aggregate results from the 16 site offices are presented
below.[Footnote 42]
Review of DOE's Office of Health, Safety and Security (HSS):
U.S. Government Accountability Office:
At the request of the Congress, the U.S. Government Accountability
Office (GAO) is examining the effectiveness of the Department of
Energy's (DOE) Office of Health, Safety and Security (HSS) in its
independent oversight of nuclear safety at DOE facilities. As part of
this review, we have prepared two surveys for DOE officials who oversee
nuclear safety at sites that contain these facilities.
This survey includes a short set of general questions regarding safety
basis guidance and approval authority.
Q1. Has your headquarters line management issued any guidance on safety
basis requirements that is supplemental to the guidance issued by HSS?
Yes: 12;
No: 4;
Don't know: 0;
Number of respondents: 16.
Q2. Has your site office issued any guidance on safety basis
requirements that is supplemental to the guidance issued by HSS?
Yes: 7;
No: 9;
Don't know: 0;
Number of respondents: 16.
Q3. Does your site office have the authority to approve initial safety
basis requirements at hazard category 2 and 3 facilities?
Yes, for category 2 facilities only: 1;
Yes, for category 3 facilities only: 2;
Yes, for both category 2 and 3 facilities: 8;
No approval authority: 5;
Don't know: 0;
Number of respondents: 16.
Q4. Does your site office have the authority to approve changes to the
safety basis (such as amendments, revisions, and JCOs) at hazard
category 2 and 3 facilities?
Yes, for category 2 facilities only: 1;
Yes, for category 3 facilities only: 0;
Yes, for both category 2 and 3 facilities: 10;
No approval authority: 5;
Don't know: 0;
Number of respondents: 16.
Q5. Does your site office have the authority to downgrade facilities or
activities to lower hazard categories?
Yes, can downgrade a category 2 facility to 3: 2;
Yes, can downgrade a category 3 facility to below 3: 0;
Yes, can downgrade both category 2 and 3 facilities: 8;
No approval authority: 6;
Don't know: 0;
Number of respondents: 16.
Q6. Have any nuclear facilities at your site office been downgraded
from hazard category 3 to below 3 since January 2007?
Yes: 6;
No: 10;
Don't know: 0;
Number of respondents: 16.
[End of section]
Appendix V: Options for External Regulation of DOE Nuclear Facilities:
Two prominent options for external regulation of DOE nuclear facilities
have been put forward to improve the effective independent oversight of
nuclear safety. Most DOE high-hazard nuclear facilities are already
subject to external scrutiny by the Safety Board, and a few are
currently externally regulated by NRC. One option would be to
restructure and expand the role of the Safety Board. This option
appears practical but has not been advocated for by the Safety Board.
The second option is to shift all or some additional DOE nuclear
facilities to external regulation by NRC. This option also appears
practical and acceptable in the past if given the necessary authority
and resources, but the current commission has not expressed a view on
expanding its oversight role beyond the DOE facilities already subject
to NRC regulation. DOE and the Safety Board have taken issue with this
option because of concerns about the transition costs versus the likely
safety benefits of doing so.
Most DOE High-Hazard Nuclear Facilities Subject to External Review, but
Few Are Externally Regulated:
Most DOE high-hazard nuclear facilities are already externally
reviewed, but not regulated for nuclear safety, by the Safety Board,
and a few are already externally regulated by NRC. The Safety Board was
established in 1988 to provide independent safety oversight of DOE
defense nuclear facilities. The Safety Board was given responsibilities
to (1) review and evaluate the content and implementation of the
standards relating to the design, construction, operation, and
decommissioning of defense nuclear facilities; (2) investigate any
event or practice at these facilities that it determines has adversely
affected or may adversely affect public health and safety; (3) analyze
design and operational data, including safety analysis reports; (4)
review new facility design and monitor construction, recommending any
changes within a reasonable time period; and (5) make such
recommendations to the Secretary of Energy, considering the technical
and economic feasibility of implementing them. By statute, the
Secretary must respond in writing to the Safety Board to accept or
reject the recommendation and make this public. If the Safety Board
transmits a recommendation relating to an imminent or severe threat,
the Board shall also transmits it to the President and for information
the Secretary of Defense. The President shall review DOE's response and
accept or reject the Safety Board's recommendation. The Safety Board
does not have the authority of a regulator but rather uses both
informal interactions and formal communications with DOE to implement
its statutory "action forcing" authorities.
The defense nuclear facilities overseen by the Safety Board constitute
74 or 76 high-hazard nuclear facilities within NNSA and 80 of 90 high-
hazard nuclear facilities within the Office of Environmental
Management. The Safety Board does not have a role in overseeing
nondefense nuclear facilities comprising 2 NNSA, 10 Office of
Environmental Management, and 39 Office of Science and Office of
Nuclear Energy high-hazard nuclear facilities. The 51 nondefense high-
hazard nuclear facilities represent about 25 percent of the 205 such
facilities across the DOE complex as of December 2007.
The Safety Board, technical staff, and site representatives informally
interact with DOE officials at the sites and headquarters and with the
contractors during this process. The 10 site representatives at five
DOE sites provide day-to-day observations of nuclear operations at the
sites and, among other responsibilities, record these observations in
weekly reports to the Safety Board. The site representatives have no
role in enforcing DOE's nuclear requirements, as this authority was
never given to the Safety Board.
Outside of informal interactions, the Safety Board uses its authority
to issue letters and recommendations to and impose reporting
requirements on DOE, publish technical reports, and hold public
hearings on safety issues. The Safety Board noted in its 2007 annual
report to the Congress that since 1989, it has issued 48 formal
recommendations--comprising 221 individual subrecommendations--184
reporting requirement letters, and held 94 public hearings.[Footnote
43] The current number of recommendations is now 50. Starting around
1995, however, the number of Safety Board recommendations has declined
from a range of five to seven per year since 1990 a range of zero to
three per year through 2007. In September 2006, the Congress urged the
Safety Board to evaluate whether more frequent use of recommendation
letters would speed up resolution of issues with DOE.[Footnote 44] The
Congress was concerned about delays primarily resulting from the
untimely resolution by DOE of technical issues raised by the Safety
Board during the design of the waste treatment plant at the Hanford
Site. The Safety Board subsequently responded that it could provide
timely resolution of most health and safety concerns regarding the
design and construction of new DOE nuclear facilities without the need
for it to resort to formal recommendations.
While DOE has been responsive to the Safety Board's recommendations, a
number of past deficiencies remain unresolved, and the pace of closure
for many other recommendations has been slow. According to the Safety
Board, DOE has accepted all of its recommendations. However, some
concerns raised by the Safety Board in its first annual report to the
Congress, in February 1991, have not been fully resolved. These include
shortcomings in nuclear safety analysis; lack of valid justifications
for continued operations, possibly causing temporary or permanent
curtailment of operations; and deficiencies in technical capabilities
to effectively manage, direct, and guide nuclear operations. While this
report pointed out the formidable problem of ensuring that DOE
effectively applies its own rules at the time, the Safety Board noted
the intentions of the Secretary of Energy to establish within DOE a new
safety culture for nuclear activities. The pace of closure for many
recommendations has also been slow. It has taken DOE up to 11 years to
obtain closure from the Safety Board for some of its recommendations.
Some systemwide recommendations, such as the one addressing safety
management, have remained open for a decade or more. Of the 19
recommendations since 1995, 10 remain open, along with 1 more from
previous years going back to 1992.
DOE has sometimes struggled with the action-forcing nature of the
recommendations from the Safety Board. Concerns about the authority of
the Safety Board surfaced in a 1995 DOE Advisory Committee report,
[Footnote 45] which found that the board was not subject to the same
checks and balances as NRC is with respect to regulating NRC's
licensees. More recently, the chief of the technical staff to one of
DOE's Central Technical Authorities told us that in addressing seismic
safety issues, the Safety Board has essentially tried to regulate from
what he characterized as its advisory role. In May 2006, the Secretary
of Energy sent a memorandum to the department heads to clarify the
distinction between program office responsibilities and the role of the
Safety Board. The Secretary wrote that DOE views the Safety Board as a
"valuable asset" in meeting its obligation to ensure the highest
standard of nuclear safety through its advice and observations but that
the program offices have the authority and accountability for nuclear
safety. This memorandum did not mention the role of the independent
oversight office, now HSS.
NRC is also involved in regulating some DOE nuclear facilities and has
examined the possibility of regulating other facilities that had
commercial application:
* In 1978, the Congress enacted the Uranium Mill Tailings Radiation
Control Act, which established two programs to protect the public and
the environment from uranium processing waste. This legislation
required DOE's cleanup and remediation of these abandoned sites to be
performed with the concurrence of NRC.
* NRC granted DOE's Idaho Operations Office a license in 1999 for the
operation of an Independent Spent Fuel Storage Installation to store
the spent fuel from Three Mile Island Unit 2 at the Idaho National
Engineering and Environmental Laboratory.
* In 2003, NRC approved a license amendment to allow Nuclear Fuels
Services, Inc., to possess and use Special Nuclear Material at its
newly constructed uranyl nitrate building at its Tennessee complex.
This facility and another one in Virginia, operated by another
contractor, are not owned by DOE but work almost exclusively for DOE
and the Department of Defense. These facilities are part of DOE's
program to reduce stockpiles of surplus highly-enriched uranium through
reuse or disposal as radioactive waste. The contractor has agreed to
implement enhanced security measures recommended by NRC.
* The Congress gave NRC an important role in licensing the construction
and overseeing the eventual operation of two new DOE nuclear
facilities; the geologic repository for high-level waste at the Yucca
Mountain Site in Nevada for which DOE is the licensee and the Mixed
Oxide Fuel Fabrication Facility at DOE's Savannah River Site in South
Carolina for which the contractor would be the licensee, if the
application is approved.
NRC has also been involved in reviewing the development of some DOE
nuclear facilities that had potential commercial application. In the
late 1970s, NRC got involved in reviewing DOE's Fast Flux Test Reactor
at the Hanford Site, which was to test advanced nuclear fuels,
materials, components, systems, nuclear power plant operating and
maintenance procedures, and active and passive reactor safety
technologies that could have commercial application. Later, NRC got
involved in evaluating more advanced design concepts, conducting
preliminary licensing reviews, and preparing safety evaluation reports.
However, DOE decided to deactivate this reactor in 2001 without going
to commercialization. Starting in 1997, NRC also worked with DOE on the
planned Hanford Waste Treatment Plant, then known as the Tank Waste
Remediation System-Privatization Program. NRC provided assistance to
DOE for over 3.5 years under a Memorandum of Understanding. The
memorandum gave NRC the opportunity to acquire an understanding of the
wastes and potential treatment processes, and allowed DOE to see how
NRC would perform reviews and develop an effective regulatory program
for the potential transition to its regulatory oversight. In the course
of its work with DOE, NRC staff reported that they gained an
understanding of the waste and treatment issues and found that, for the
most part, standard nuclear industry methods could be used for risk
reduction.[Footnote 46] However, NRC reported that it had identified
over two dozen significant issues and over 50 specific topic areas in
the design and approval approach DOE was considering that would require
further efforts and analysis under the NRC approach. For example, NRC
identified the influence that cost, schedule, and capacity were having
on the review activities, as well as inconsistencies between the design
and updates to the authorization basis in which DOE grants the
contractor permission to perform certain operations. A senior DOE
official that had been with a regulatory unit that was reviewing the
design for the Waste Treatment Plant told us that this unit had also
identified similar issues with the process. DOE eventually decided in
May 2000 to abandon the privatization of this facility, citing, among
other reasons, the high cost of privatization and declared its intent
to pursue a more conventional DOE self-regulatory approach without any
schedule for transitioning to NRC regulatory oversight. Most recently,
NRC issued a report on its review of DOE regulatory processes for this
plant.[Footnote 47]
Option to Expand Role of Safety Board Appears Practical, but Not
Advocated:
While restructuring and expanding the responsibilities of the Safety
Board appears practical, the Safety Board has not advocated for this
change in the past. The board could be given authority to oversee all
DOE high-hazard nuclear facilities, approve the safety basis for
designing and constructing any new facility, approve significant
modifications to the safety basis of existing facilities, and enforce
DOE nuclear safety requirements. The Safety Board already has on-site
representatives at many DOE sites, and it is familiar with DOE's
nuclear safety requirements and oversight approach. Its safety reviews
of the design and construction of new nuclear facilities are extensive,
and it is equally accustomed to considering the requirements of nuclear
safety and national security, as well as the safety risks, mission
priorities, and costs in its recommendations. In addition, the Safety
Board has experienced scientific and technical personnel, and the power
to hire more such personnel without having to go through the civil
service system. Moreover, the Safety Board's legislation authorizes a
staff of up to 150 but, according to the board, the Congress has
limited the amount of authorized and appropriated funds such that the
board has about 100 full-time employees, of which less than 60 are
technical staff.
The Safety Board, however, has not advocated for changing its
authorities and responsibilities. For example, in a July 2007 report to
the Congress,[Footnote 48] the Safety Board and DOE concluded that
rigorous adherence to the existing responsibilities and powers set
forth in present law would foster the early identification and
resolution of safety issues without the need for legislative changes.
Their report pointed out that during the past 2 years, the Safety Board
and DOE had established several new expectations and requirements and
were committed to continuous improvement of DOE's project management
directives. More recently, the Safety Board told us that it currently
lacks the resources to take on more responsibilities, particularly for
enforcement activities. In commenting on draft of this report, the
Safety Board stated that even if it was directed to conduct a full
suite of compliance activities comparable to those of the NRC licensing
activities, significantly more resources than the summation of current
staff plus HSS enforcement staff would be required. In regard to
increasing site representation, we were informed that if the current
DOE facility representatives were transferred to the Safety Board as
independent inspectors, this would take away resources that the program
offices would need to replenish to continue their current level of
contractor oversight. The Safety Board also raised concerns in its
fiscal year 2008 budget request about its own ability to recruit
qualified engineers, in part because a renewed interest in commercial
nuclear power has created competition for these specialists.
Nevertheless, officials stated that the Safety Board would of course
accept more responsibilities for regulating DOE nuclear facilities, as
long as it has adequate funding, staffing, and legislative authority.
However, in responding to a draft of this report, the Safety Board
stated that the basic structure and authorities of the existing safety
oversight organizations, including the board, provide a satisfactory
framework for this function at those facilities under its jurisdiction.
Option to Shift Regulation to NRC Appears Practical and Acceptable, but
Costs and Benefits Have Been Challenged:
NRC's experiences regulating and examining how it would regulate many
DOE nuclear facilities indicate that shifting DOE nuclear facilities to
its regulatory oversight appears practical, even though the costs and
benefits have been questioned. As previously stated, NRC is currently
involved in regulating a number of DOE nuclear facilities in
construction or operation, as well as many uranium mill sites. NRC has
also evaluated its capabilities and the potential costs of regulating
additional DOE nuclear facilities. Beginning in October 1997, NRC
tested regulatory concepts through simulated regulation of three DOE
sites with nuclear facilities by evaluating each pilot facility against
the standards that NRC believed would be appropriate for this type of
facility.[Footnote 49] In a July 1999 report,[Footnote 50] NRC found
that most of the technical, policy, and regulatory issues involving NRC
oversight of these sites could be handled adequately within the
existing NRC regulatory structure. In February 2003, the conference
report accompanying the Consolidated Appropriations Resolution, 2003
directed that NRC carry out compliance audits of 10 DOE Office of
Science sites in order for DOE to develop estimates of the costs
necessary to bring the sites into compliance with NRC safety standards
should the Congress direct NRC to assume regulatory responsibilities
over these sites. In an April 2004 report,[Footnote 51] NRC again
concluded that activities involving radiation-producing materials and
machines at these DOE sites could be effectively regulated within the
existing NRC regulatory structure.
While NRC has not advocated for taking on regulation of DOE nuclear
sites, it has identified some benefits in doing so. For example, in its
1999 report on external regulation of DOE nuclear facilities, NRC
stated that its regulation would eliminate the inherent conflicts of
interest arising in DOE self-regulation, leading to a safety culture
comparable to the safety culture in the commercial industry, and allow
the department to focus on its primary missions. However, in this
report, NRC also stated that it would need adequate funding, staffing,
and legislative authorization, as well as the opportunity to update its
regulations as necessary. Other prominent stakeholder organizations
have recently come forward with recommendations that the Congress
consider shifting DOE to external regulation by NRC. These groups
include the Health Physics Society, a nonprofit professional
organization representing about 6,000 members whose mission is to
promote the practice of radiation safety; the Conference on Radiation
Control Program Directors, a nonprofit organization of individuals that
regulate and control the use of radioactive material and radiation
sources; the Government Accountability Project, a government watchdog
organization; and the American Federation of Labor and Congress of
Industrial Organizations. For example, the Health Physics Society
informed us in an August 21, 2007, correspondence that self-regulation
of nuclear safety by DOE is in contrast to the fundamental principle
that a single, independent agency should have the authority to
establish and enforce national standards for radiation safety.
Moreover, the letter pointed out that reliance on national security
concerns to justify continued self-regulation by DOE may no longer be
compelling in light of the increased security environment under which
NRC now operates. The Conference on Radiation Control Program Directors
also provided us with a Board of Directors Resolution, dated August 7,
2007, that the Atomic Energy Act be amended to provide for the
regulation of DOE by the NRC for materials authorized under the Act.
The principal concerns with shifting DOE to external regulation of
nuclear safety by NRC have been the transition costs versus the
potential safety benefits that would emanate from eliminating self-
regulation. DOE and NRC have differed on the cost and potential
benefits of shifting to external regulation. DOE expressed concerns
that transition costs would exceed any value in shifting to external
regulation because of facility-specific issues, potential uncertainties
and implications of NRC regulatory requirements, and the regulatory
difficulty of licensing a single facility on a large and complex
nuclear site.[Footnote 52] For example, DOE estimated the transition
cost for NRC regulations of the Receiving Basin for Offsite Fuels
Facility at the Savannah River Site to be between $6 million and $13.5
million, with annual costs thereafter estimated at $1.5 million to $3.2
million (in 1999 dollars). However, NRC countered that because few
changes to DOE facilities or procedures would be needed under NRC
regulation, the transition costs would be far less than estimated by
DOE. NRC noted that DOE costs could be minimized and that the change
might provide a net savings if DOE reduced the level of its oversight
to one commensurate with a corporate oversight model. Nevertheless, NRC
would have to increase its staffing levels to regulate DOE nuclear
facilities, but at an uncertain number. A DOE working group on external
regulation estimated in 1996 that NRC would need 1,000 to 1,600 new
employees at a cost of $15 million to $200 million.
The Safety Board has sided with DOE in questioning the cost and
benefits of external regulation by NRC, early on raising national
security concerns with external regulation. The National Defense
Authorization Act for Fiscal Year 1998 required the Safety Board to
make recommendations to the Congress on what role it should take in the
event that the Congress should consider legislation for externally
regulating DOE defense nuclear facilities. In its November 1998 report,
the Safety Board rejected a shift to external regulation of DOE defense
nuclear facilities for several reasons, including the potential adverse
effects on national security and the likelihood that costs would
outweigh any benefits that might accrue.[Footnote 53] Based on its
review of factors that would attend to external regulation of these
nuclear facilities, the Safety Board stated that it does not believe
that additional external regulation of them is in the best interest of
our nation. The board further stated that the Congress made the right
decision in setting it up as an independent advisory agency, not a
regulator, and that the contributions of the Safety Board since its
inception attests to the efficiency of its structure.
More recently, HSS officials told us that NRC's regulatory structure
and approach may not fit DOE's operational model because of important
differences from the commercial nuclear industry, such as having one-
of-a-kind facilities. HSS contends that it has coordinated with and
evaluated DOE's initiative to strengthen program office oversight and
that integrating these procedures into the fabric of the department's
way of doing business offers a viable alternative model to external
regulation by an agency that is not familiar with the intricacies of
the unique operations found at DOE facilities. In addition, HSS points
out that external regulation is not a panacea solution and that there
are oversight failures, such as NRC's experience with the Davis Besse
nuclear power plant.[Footnote 54] HSS also points out the steady
improvement in measurable safety areas across the DOE complex and
contends that an objective assessment of DOE's safety performance
contradicts the assertion that the department's safety is lax or that
it has pervasive problems and needs to be externally regulated.
[End of section]
Appendix VI: Comments from the Department of Energy:
Note: GAO comments supplementing those in the report text appear at the
end of this appendix.
The Deputy Secretary of Energy:
Washington, DC 20585:
September 10, 2008:
Mr. Gene L. Dodaro:
Acting Comptroller General of the United States:
Government Accountability Office:
441 G Street, N.W.
Washington, DC 20548:
Dear Mr. Dodaro:
The U.S. Department of Energy (DOE) has reviewed the Government
Accountability Office (GAO) draft report entitled Nuclear Safety:
Department of Energy Needs to Strengthen Its Independent Oversight of
Nuclear Facilities and Operations, GAO-08-894, which was provided to
the Secretary of Energy on August 22, 2008. I am responding on behalf
of the Secretary. We have made enhanced safety a top priority at the
Department and take this matter very seriously. In fact, it is one of
the reasons the Department created the Office of Health, Safety and
Security (HSS) two years ago.
We believe that the GAO draft report is fundamentally flawed; we
disagree with many of the conclusions and feel that some of the
recommendations are counterproductive to our common goal of continuing
to improve nuclear safety at DOE sites. This letter summarizes our key
points. Detailed comments are attached.
We have strong concerns about the scope and premise of the GAO
evaluation. For example, GAO evaluated HSS's responsibilities in
isolation rather than as one element of DOE's approach to nuclear
safety. In so doing, GAO failed to address the critical role of DOE
program and site offices in ensuring nuclear safety at DOE. The GAO
draft report appears to be predicated on the erroneous premise that DOE
program management is inherently ineffective and that all DOE oversight
must be performed by HSS. This premise is contrary to one of the
fundamental principles of integrated safety management: that line
management must be responsible and accountable for safety. By focusing
solely on HSS, GAO is not properly considering the important fact that
DOE has established more extensive and more effective programs to
oversee nuclear safety, including the Facility Representative and
Safety System Oversight programs, which are managed by DOE program and
site offices and that provide DOE with a continuous onsite presence
with nuclear safety responsibilities. The HSS independent oversight
program effectively complements the DOE line management programs and
provides assurance that the DOE line management programs are effective.
We believe that two of the GAO recommendations are counterproductive to
continued improvements in nuclear safety. In one case, GAO recommends
that HSS reestablish an onsite presence similar to the former Site
Representative program. This approach has been tried in the past and,
based on actual operating experience and lessons learned, was replaced
by the more extensive Facility Representative and Safety System
Oversight programs, which more effectively fulfill the DOE need for
onsite nuclear safety oversight.
In the other case, GAO recommends that HSS be given a significant role
in the approval of the safety basis for DOE sites. Based on our
experience, we believe that the current DOE approach (which utilizes
line management in DOE programs and sites) has proven to be much more
effective and has resulted in major improvements in safety. For
example, over the past 15 years, DOE has dramatically improved safety
through a multi-pronged approach that includes issuance of nuclear
safety regulations, establishment of an enforcement program,
establishment of systems engineer and safety system oversight programs,
strengthening the Facility Representative program, and increased
independent oversight of nuclear safety systems. As a result, all sites
now have an approved safety basis and most have already been upgraded
to the more rigorous standards defined in current regulations.
There are a number of aspects of the GAO draft report that raise
questions about the credibility of the evaluation, and whether GAO
staff approached this report with an open mind.
First, the GAO report appears to reflect a preconceived conclusion that
HSS is not effective, and it seeks to validate that conclusion through
flawed recommendations such as that HSS should have a Site
Representative program, should review and approve safety basis
documents, and should be led by a political appointee approved by the
Senate. Throughout the report, we believe that GAO has selectively
presented isolated information to support preconceived views and has
ignored a substantial body of evidence to the contrary. The leadership
provided by the Director of HSS, who is a career professional, is an
important factor in the sustained improvement that DOE has experienced.
Second, in a number of critical areas in the draft report, GAO
selectively quotes information from U.S. Nuclear Regulatory Commission
(NRC) reports and Defense Nuclear Facilities Safety Board (DNFSB)
letters out of context. For example, GAO cites an NRC report that
identifies a specific concern with the effectiveness of DOE line
management oversight as "evidence" of an HSS shortcoming. However, GAO
then omits the overall conclusion of the NRC report which states that
"NRC believes that the DOE program, if properly implemented, is
adequate to ensure protection of public health and safety. Therefore,
the NRC makes no specific recommendations within the scope of this
review."
Third, the summary information provided on the cover sheet and in the
"results in brief' section does not provide a balanced summary of the
report and thus presents a misleading picture of DOE performance. As
one example, the "results in brief' section indicates that DOE has made
management decisions, such as eliminating the Site Representative
program and revising the role of HSS in the approval of safety bases
that result in "shortcomings" in HSS oversight. However, the "results
in brief" section does not mention that these decisions were made at
least ten years ago, well before the HSS office was created, and that
these decisions were made in the context of other DOE actions that
dramatically strengthened the overall DOE governance model (e.g., the
multi-pronged approach described above).
Fourth, GAO draws erroneous conclusions based on an incomplete
understanding of HSS's mission. GAO does not acknowledge that HSS has
an array of safety missions to include independent oversight,
enforcement, accident investigations and special reviews which are
employed at the DOE sites. For example, recently at the Office of River
Protection (ORP) and the Hanford Site tank farms, HSS devoted resources
in performing a number of enforcement actions, accident investigations,
safety inspections, and special reviews. Consequently GAO incorrectly
concludes that HSS has not focused attention on instances of poor
safety performance at this site.
Finally, the report appears to have been developed by individuals who
have limited expertise in nuclear safety and minimal experience with
DOE's approach to nuclear safety. The quality of the GAO draft report
suffers because GAO oversimplified or did not demonstrate a full and
accurate understanding of complex and often unique nuclear safety
issues that exist at DOE sites. For example, GAO's report fails to
acknowledge an understanding of the wide variation in the type and
status of DOE's nuclear facilities and therefore incorrectly reports
that there are significant gaps in HSS inspections of DOE nuclear
sites. Nuclear safety professionals would recognize that there are good
and valid reasons why little value would be gained from inspecting
certain sites (such as the Mound site in Ohio where cleanup is
essentially complete) that GAO incorrectly characterizes as "gaps" in
the HSS inspection schedule.
Although DOE disagrees with many aspects of the GAO draft report, we
recognize that there are aspects of nuclear safety that need
improvement. We understand that HSS, as well as DOE as a whole, must
continue to focus on maintaining our technical expertise in nuclear
safety and on filling vacancies in certain areas. We also agree that
improvements are needed in the use of justifications for continued
operations, and we are working to make these changes. Further, we agree
that increased public availability of Independent Oversight reports is
beneficial and have recently completed actions to make many safety
oversight reports available on the Internet.
The Department of Energy has a strong nuclear safety record. But we are
always looking for ways to strengthen our nuclear safety program. We
are continuing to make improvements and believe that we are taking the
right actions to achieve them. It is disappointing that the draft
report, relying on faulty premises, fails to recognize the nuclear
safety advancements that DOE has made.
Thank you for the opportunity to provide our views on the draft GAO
report.
Sincerely,
Signed by:
Jeffrey F. Kupfer:
cc: Mr. Gene Aloise:
Enclosure:
DOE Response to:
GAO-08-894, GAO Draft Report Entitled: Nuclear Safety: Department of
Energy Needs to Strengthen Its Independent Oversight of Nuclear
Facilities and Operations.
Purpose:
This document provides U.S. Department of Energy (DOE) comments on the
subject draft report. These comments were developed largely by the
Office of Health, Safety and Security (HSS) but include input from DOE
program offices and represent the position of DOE senior management.
Overview:
DOE comments are provided in the following areas:
* General Comments;
* Comments on DOE Independent Oversight Inspections;
* Comments on Safety Basis;
* Comments on Enforcement;
* Comments on the Government Accountability Office (GAO)
Recommendations to DOE;
* Miscellaneous Factual Accuracy Comments.
General Comments:
1.GAO's evaluation is fundamentally flawed because it evaluates HSS in
isolation rather than as one element of the overall DOE governance
model.
The GAO results are not valid because GAO evaluated the HSS role in
isolation rather than as one element of the overall DOE governance
model, which also includes the critical role of DOE line management
(i.e., program offices and site offices). Essentially, the entire GAO
draft report is predicated on the unsupported and invalid premise that
DOE line management (program office and site office) oversight is
inherently ineffective and that all DOE oversight must be performed by
HSS. We strongly dispute this GAO premise and believe that the GAO
premise is contrary to one of the fundamental integrated safety
management (ISM) principles (i.e., that line management must be
responsible and accountable for safety). Further, the GAO report
virtually ignores the establishment anew capabilities within DOE line
management, such as establishing the Central Technical Authority (CTA)
functions and the Chief, Defense Nuclear Safety (CDNS) position within
the National Nuclear Security Administration (NNSA); and Chief, Nuclear
Safety (CNS) position for other DOE sites. These new functions and
positions are an essential element of the DOE nuclear safety governance
model and have been established in response to a Defense Nuclear
Facilities Safety Board (DNFSB) recommendation. The CNS and CDNS
provide nuclear safety oversight and advice to DOE sites and to the
CTAs who oversee the line managers under their purview. The CNS and
CDNS have been established to ensure the availability of technical
expertise and provide operational awareness necessary for the proper
implementation of nuclear safety by line management. For example, the
CNS and its staff support the Under Secretary of Energy and the Under
Secretary for Science in carrying out their functions as CTAs,
including maintaining awareness of complex, high-hazard nuclear
operations of sites. CNS and CDNS staffs monitor reports and
performance metrics, review site-specific and DOE complex-wide
technical and safety documents, and conduct site visits. They also
maintain an operational awareness that includes safety basis
implementation, nuclear facility startups, personnel training and
qualifications, maintenance programs, criticality safety, conduct of
operations, and radiation protection. For example, within NNSA, the
CDNS performs a comprehensive review of the implementation of nuclear
safety requirements at each of its sites on a nominal two year cycle;
these reviews complement those of HSS and have resulted in numerous
improvements in nuclear safety. [See comment 1]
This fundamental flaw in the GAO evaluation approach leads to a number
of invalid conclusions in the GAO draft report:
* Looking solely at HSS, GAO notes that HSS does not have a continuous
onsite presence (such as the Site Representative program, which was
discontinued around 1999), concludes that HSS cannot perform day-to-day
oversight of nuclear safety, and recommends that DOE establish a new
and expensive program to maintain an HSS site presence. As the primary
basis for this recommendation, GAO notes that, at one point, an HSS
predecessor office had 32 onsite representatives (although not all of
these focused on nuclear safety). For reasons that are not stated in
the report, GAO appears to discount DOE and HSS perspectives that this
program did not work very well and resulted in conflicting direction to
DOE contractors that degraded the principle of line management
responsibility for safety and the essential element of contractor
accountability for nuclear safety. By focusing solely on HSS, GAO does
not properly consider the important fact that DOE line management has
established more extensive and more effective DOE-wide Facility
Representative programs that provide DOE with a continuous onsite
presence. These safety subject matter experts report directly to the
DOE Site Manager and are dedicated to safety oversight, and HSS
oversees the program. There are currently over 180 Facility
Representatives, which is over five times as many onsite personnel as
DOE had at the peak of the Site Representative program. DOE also
established an extensive Safety System Oversight program at DOE site
offices to specifically focus on nuclear safety systems. This program
also has more resources devoted specifically to providing an onsite
review of nuclear safety systems than the Site Representative program
ever had. As one example, the Savannah River Site has about 30 Facility
Representatives and 15 Safety System Oversight Engineers, which
provides a far greater onsite presence for DOE than DOE had during
period where it had, a few Site Representatives at each site. The
assessment oversight program mandated by DOE Order 226.1A,
Implementation of Department of Energy Oversight Policy, provide
opportunities to use the greater number of staff, such as Facility
Representatives and Safety System Oversight engineers, to perform more
in-depth reviews of functional areas than would be possible by more
infrequent assessments by an independent organization such as HSS.
Also, DOE site offices have increased their focus on and resources
devoted to the review of safety basis submittals, as part of an overall
DOE initiative to address the severe problems with safety bases that
were evident in the 1990s. In the enforcement arena, DOE has
established site office enforcement coordinators, which provides DOE
line management and HSS with another source of continuous onsite
presence supporting nuclear safety. DOE has clearly taken actions to
substantially strengthen its onsite presence at nuclear facilities and
its ability to provide day-to-day oversight of nuclear safety. However,
because of its fundamentally flawed approach, GAO arrives at an
opposite and invalid conclusion. [See comment 2]
* Looking solely at HSS, GAO concludes that "HSS's ability to
independently review nuclear facilities is limited because it has no
role in approving the "safety basis"-a technical analysis that helps
ensure safe design and operation of these facilities." While MISS does
not approve safety bases, this is an intentional part of the DOE
governance model and is not a valid example of a shortcoming in HSS's
implementation of its mission. The GAO conclusion is based on the
incorrect premise that DOE line management cannot perform an adequate
review of a contractor submittal of safety basis documents. In fact,
experience has shown that DOE line management personnel at DOE site
offices, overall, perform a more effective review of safety basis
documents than Headquarters personnel, in part because of the diversity
of nuclear facilities. Unlike other organizations that have similar
numbers of nuclear facilities (e.g., naval reactors), each of the
Department's nuclear facilities is unique. Thus, it is more effective
to have site office personnel, who have a detailed understanding of the
facilities and technical issues, performing the reviews than
Headquarters personnel who do not. In addition, a credible process for
approval of a safety basis requires is not simply a paperwork exercise;
it requires the reviewer to know details about the facility and its
hazards and hazard controls; such information is best obtained from
numerous walkdowns of the facility and its safety systems, which is
most readily performed by field personnel. Having HSS perform a safety
basis review, in addition to the one performed by the site office,
would require a substantial increase in resources without a
commensurate increase in nuclear safety. Further, there is a concern
that HSS would not be fully independent in its independent oversight
role of reviewing site safety bases if it were involved in the approval
process because HSS would then be reviewing its own work. Past
involvement in the approval of safety basis documents by Headquarters
personnel often resulted in conflicting and ill-conceived direction.
The current DOE approach (where the most knowledgeable personnel have
primary responsibility for safety basis approval) is demonstrably much
more effective than the approach that GAO is advocating, which has been
tried in the past and was replaced by more effective and extensive
approaches. [See comment 3]
2. GAO's evaluation is fundamentally flawed because it is predicated on
an invalid assumption about an inherent DOE line management conflict of
interest.
GAO's rationale for its results and conclusions is its premise that
current DOE approaches in critical areas (e.g., review and approval of
safety basis and onsite presence) are not valid because DOE line
management has an inherent conflict of interest and is not "fully
insulated from potential conflicts of interest." DOE fully agrees that
strong independent oversight is important and believes that the HSS
program provides strong independent oversight that is well focused and
appropriately reviews nuclear safety using a risk-based approach. DOE
also agrees that program offices have multiple roles and thus can face
potentially competing priorities. However, the principle of line
management responsibility and accountability for safety are equally
important to consider. The DOE governance model is carefully
constructed to address the potential for conflicts of interest by
ensuring that DOE line management at all levels (from the program
offices to the subject matter expert at the site office) is subject to
independent oversight reviews. Essentially, the entire GAO report is
predicated on the unsupported and invalid assertion that program office
oversight is inherently ineffective and that all oversight must be
performed by HSS. DOE strongly disputes GAO's premise and believes that
the GAO premise is not consistent with the fundamental principles of
safety management, which include line management responsibility and
accountability for safety. The first "Guiding Principle" in DOE's
Integrated Safety Management Manual {DOE Manual 450.4) establishes
"line management responsibility for safety." [See comment 4]
Further, the potential for conflicts of interest between mission
objectives and safety will always exist in DOE and other industries
that deal with hazardous materials. The key is to manage the potential
conflict properly, which includes an appropriate system of checks and
balances. DOE has an appropriate system where DOE line management
oversees the contractor's priorities to ensure they are balanced, in
accordance with ISM principles. Within line management, the CTA
functions and CDNS and CNS positions were established specifically so
that DOE line management has an element at the highest levels of the
organization, reporting separately and independently to the CTA (and
not lower tiers of line management) that has a sole focus on being the
advocate for nuclear safety. HSS also provides an independent check on
both DOE line management and the contractor to ensure that safety is
provided appropriate priority and is effective in meeting regulations
and DOE requirements. [See comment 5]
In several areas, GAO misrepresents the DOE position with respect to
nuclear safety in a misleading manner. For example, on page 40 in the
overall conclusion of the GAO report, GAO states "The current Secretary
of Energy has decided to make HSS an office that provides the program
offices with the assistance and tools necessary to solve problems and
to improve performance so that DOE sites can better accomplish the
department's missions and strategic goals. However, in our opinion, DOE
needs a stronger independent oversight office to be the internal
regulator of nuclear safety in order to offset the conflicts of
interest that are inherent with routine oversight by the program
offices." This statement is a misrepresentation of the Secretary of
Energy's decision and incorrectly implies that DOE made a choice
between assistance/problem solving/performance improvement and strong
independent oversight. DOE made decisions that accomplish both
performance improvement and oversight/enforcement and were specifically
designed to strengthen HSS independent oversight and enforcement in
several ways. For example, the safety organization no longer has to
perform non-safety functions (e.g., managing facilities) that were
distracting management attention from the more critical functions of
oversight and enforcement. DOE strongly disputes any GAO inference that
DOE made decisions that reduce the effectiveness of oversight or
enforcement functions at the DOE Headquarters level, as implemented by
HSS. [See comment 6]
3. GAO's evaluation is fundamentally flawed because it is evaluating
HSS against GAO's preconceived opinion of functions that should be
assigned to HSS rather than HSS's actual role in the DOE governance
model.
GAO either does not understand or does not accept that there can be
more than one effective governance model for nuclear safety. Throughout
the report, GAO is advocating for and evaluating HSS against GAO's
preconceived management model (i.e., an independent safety organization
with certain corporate responsibilities, such as approval of safety
bases). However, other management models can also be effective, such as
the model that DOE uses which is premised on ensuring that line
management has primary responsibility and accountability for safety,
complemented by selective and prioritized independent oversight and
enforcement. In essence, GAO is evaluating HSS and DOE against GAO's
perspective of how GAO believes that DOE should be managed rather than
evaluating the effectiveness of DOE's current management approach. As a
result of its unjustified bias toward a particular management model,
GAO is incorrectly characterizing DOE's conscious management decisions
as "shortcomings" in the HSS mission and is drawing conclusions and
making recommendations without a sound technical basis in the areas of
onsite presence and safety basis reviews. As discussed above, GAO's
unjustified premise that the onsite presence should report to HSS has
caused GAO to discount DOE's ongoing and generally effective Facility
Representative program and recommend creation of a largely duplicative
Site Representative program. In the area of safety basis, GAO's
unjustified bias toward a Headquarters corporate role in approval of
safety bases has resulted in an ill-conceived recommendation for DOE to
return to practices that have failed in the past. Rather than
attempting to evaluate how well DOE manages its nuclear safety
functions, GAO chose to evaluate HSS against its preconceived notion of
how GAO believes DOE should have assigned nuclear safety
responsibilities. As a result, the GAO report did not ask the right
questions (e.g., Is the management model that DOE has chosen an
effective approach to achieving and maintaining nuclear safety? Is it
being effectively implemented? Has it resulted in improvements?), and,
therefore, did not develop valid and useful data, conclusions, and
recommendations. [See comment 7]
4. GAO's evaluation is fundamentally flawed because it does not
evaluate HSS performance with sufficient depth and breadth to support
the report's conclusions.
The GAO evaluation methods are too narrow in scope to provide a valid
evaluation of HSS performance. GAO did not review a sufficient scope of
activities or gather sufficient data to perform a valid evaluation of
HSS performance in the areas of independent oversight appraisals and
enforcement. In the area of independent oversight, HSS's Office of
Environment, Safety and Health Evaluations (HS-64) performs appraisals
that examine important elements of nuclear safety and that have
resulted in numerous improvements in nuclear safety programs across the
complex. This is one of HSSs most important programs, and we believe
that a credible review of HSS effectiveness should include a thorough
review of the HSS appraisals. However, the GAO review of this critical
program was very narrow and was limited to a review of the frequency of
inspections (and, as discussed elsewhere in this response, GAO's
conclusions about the inspection frequencies are not fully valid). GAO
did not evaluate the more important aspects of the environment, safety,
and health (ES&H) appraisal process, such as the scope of HSS
appraisals, the quality of the inspections, the depth of the reviews,
the technical expertise of the inspectors, the validity of the
findings, and other such factors. In the area of enforcement, GAO's
scope is similarly too narrow to provide for a valid assessment. It
consists of a questionable review of reporting trends in a narrowly
defined area that is not sufficient to provide valid perspectives on
the effectiveness of the HSS enforcement program. In the area of
technical expertise, GAO only looked at the number of vacancies and
provided no perspectives on the actual technical expertise of HSS in
the area of nuclear safety. The GAO report indicates that it provides
an evaluation of HSS performance relative to HSS's five criteria that
is sufficient to meet government audit standards and to provide a
reasonable basis for findings and conclusions. For the most part, we
disagree. As indicated here and elsewhere in this response, GAO fails
to make its case that HSS lacks the independence, technical expertise,
ability to perform reviews and require that findings be addressed, and
the enforcement authority to do its job in a credible manner. However,
with respect to access to independent oversight reports, as noted
elsewhere in this response, improvements can and are being made. [See
comment 8]
5. GAO's evaluation misrepresents the results of the U.S. Nuclear
Regulatory Commission (NRC) and DNFSB reports.
In several critical areas in the draft report, GAO selectively quotes
information from NRC reports and DNFSB letters out of context and uses
those quotes as "evidence" to support a perceived HSS shortcoming. Some
of these include:
* On page 2, GAO selectively cites an NRC report that identifies a
specific concern with the effectiveness of DOE line management
oversight as "evidence" of an HSS shortcoming. However, GAO omits the
overall conclusion of the NRC report which states "NRC believes that
the DOE program, if properly implemented, is adequate to ensure
protection of public health and safety. Therefore, the NRC makes no
specific recommendations within the scope of this review." NRC has,
therefore, reached a far different conclusion than GAO about the need
for changes in the DOE approach to safety management. For GAO to
selectively cite the NRC report as evidence of a shortcoming while
omitting the critical fact that the NRC conclusion directly contradicts
the GAO conclusion is misleading and discredits the GAO report. [See
comment 9]
* On page 1 and pages 34-35, GAO cites a 2004 letter from the DNFSB to
DOE. GAO misquotes the DNFSB in stating "that the possibility of a
nuclear accident had grown in part because there was increased emphasis
on productivity at the possible expense of safety as well as reduced
central oversight of the management of safety by the DOE program
offices at the sites with nuclear facilities." GAO is mischaracterizing
the DNFSB recommendation and presenting only part of the picture.
Unlike the GAO report, the DNFSB provided a balanced assessment by
identifying some factors that raise a potential concern about a
possible increase in the risk of an accident while also identifying
some factors that could decrease such risk (including DOE's ISM
program). More importantly, the DNFSB recommendation identified actions
to address the potential concerns involving mission and safety
priorities and the role of DOE line management. For example, the DNFSB
recommended establishment of the CTAs. Since the 2004 recommendation,
DOE has established and is implementing actions to meet the DNFSB
Recommendation, and the DNFSB has accepted the DOE implementation plan.
GAO is using a very specific and narrow quote, from a DNFSB
recommendation, completely out of context in an invalid effort to
support its point about conflicting priorities. GAO then uses this
mischaracterization of the DNFSB report to support its invalid
contention that DOE line management cannot perform its safety oversight
role and that DOE needs to restructure the entire oversight structure
to put different functions (e.g., safety basis review and approval)
within HSS. GAO ignores the fact that the DNFSB recommendations for
managing the potential for conflicting priorities are very different
from those of GAO and, in fact, conflict with those of GAO. GAO also
neglects to mention that DOE has developed an implementation plan for
this recommendation that was accepted by the DNFSB to address the
underlying concern involving DOE line management responsibility for
safety. To misuse the DNFSB recommendation in this manner and to
neglect to mention the fact that the GAO recommendations are not
consistent with those of the DNFSB is misleading and discredits the GAO
report. [See comment 10]
* On page 40, GAO again cites NRC as supporting the GAO conclusion
about the inherent conflict of interest with program management
oversight. Specifically, GAO cites the NRC suggestion that DOE explore
methods to maintain more independence between regulatory oversight and
project management functions. However, the NRC suggestion is made in
the context of the Office of River Protection line management
functions, and GAO is taking it out of context in citing it as support
of the GAO position. GAO also omits the overall conclusion of the NRC
report which states "NRC believes that the DOE program, if properly
implemented, is adequate to ensure protection of public health and
safety. Therefore, the NRC makes no specific recommendations within the
scope of this review." NRC has therefore reached a far different
conclusion than GAO about the need for changes in the DOE approach to
safety management with respect to the HSS functions. For GAO to
selectively cite the NRC report as evidence of a shortcoming while
omitting the critical fact that the NRC conclusion directly contradicts
the GAO conclusion is misleading and discredits the GAO report. [See
comment 11]
6. GAO's conclusions about the structure and independence of HSS are
not valid.
On page 6, GAO concludes that "DOE has structured its independent
oversight office, the Office of Health, Safety, and Security (HSS), in
a way that falls short of meeting our key elements of effective
independent oversight of nuclear safety." On pages 6-7, GAO concludes
that "While HSS operates separately within the department from the
program offices, it no longer is included in the safety review process
for new nuclear facilities or significant modifications to existing
facilities, it has no representatives at DOE sites, and the head of the
office does not have a position comparable to program office heads from
which to independently advocate for nuclear safety." These same
conclusions are reiterated and expanded on pages 17-19.
DOE disagrees that carefully considered management decisions on its
governance model can be characterized as "shortcomings." As discussed
previously and in remainder of this comment, the GAO evidence
supporting this statement is flawed and inaccurate, and the GAO report
uses a flawed methodology (i.e., evaluates HSS in a vacuum rather than
one part of the overall DOE governance model) and thus draws invalid
conclusions. [See comment 12]
DOE disagrees with the assertions and the premises of the GAO statement
about HSS's independence. The HSS program meets the criteria for
independence (as established by GAO on page 5 of the draft report) -
HSS is structurally distinct and separate from DOE program offices and
avoids management interference or conflict between program office
mission objectives and safety. GAO, however, ignores its criteria and
demonstrates that it has a preconceived perspective on specific
functions that it believes HSS should perform. DOE has chosen to manage
in a different way that we believe is more effective. The factors cited
by GAO as shortcomings (an approval role in safety basis, onsite
representatives, and a Senate-confirmed organizational head) in
independence of HSS are not essential elements of an independent
oversight program. In many agencies, the independent oversight
functions operate with similar approaches to independence. The
Occupational Health and Safety Administration (OSHA) and U.S.
Environmental Protection Agency (EPA), for example, do not normally
have a regular role in reviewing and approving site ES&H programs
(which arc analogous to a safety basis) and do not normally have
ongoing onsite presence. These agencies are clearly independent of the
organizations that they regulate, contradicting the GAO assertion that
onsite presence and safety basis approval are essential to an
independent oversight program. In addition, the NRC administrator is
appointed by the NRC Commissioners and is not Senate confirmed. In this
area, GAO has established some artificial and invalid parameters for
defining "independence" that are based on its preconceived notion of
how DOE should assign particular safety functions. GAO presents no
performance data that indicates DOE's alternative approaches are any
less effective than the GAO preconceived notions of the management
model. DOE believes that the improving performance trends confirm that
DOE's management decisions are sound and defensible. [See comment 13]
7. GAO's conclusions about technical expertise are not valid and/or are
not sufficient to provide a complete and accurate picture.
On page 7, GAO concludes that DOE's technical expertise is shortcoming
because "An HSS predecessor office, the Office of Environment, Safety
and Health, had more than 20 technical experts in nuclear safety review
positions-positions that do not exist in HSS. Moreover, HSS has
vacancies for five technical experts in nuclear safety related fields
in two subordinate offices. For example, only 2 of the 5 nuclear safety
positions in HSS's Office of Enforcement are occupied. In addition,
with about half of its overall staff eligible to retire in the next 5
years, HSS will be challenged to maintain its expertise." These same
conclusions are reiterated and expanded on pages 20-21.
With respect to the transfer of 20 positions, DOE disagrees that
carefully considered management decisions on its governance model and
best use of technical resources can be characterized as "shortcomings."
The GAO evidence supporting this statement is flawed and inaccurate,
and the GAO report uses a flawed methodology (i.e., evaluates HSS in a
vacuum rather than one part of the overall DOE governance model) to
draw invalid conclusions. These positions were not eliminated but were
transferred to DOE line management where they can be more effective in
the overall DOE effort to manage safety. As noted by the GAO, DOE has
experienced challenges in getting some sites upgraded to the new
standards. Because DOE line management has responsibility for
completing the needed upgrades, reassignment of the 20 positions was is
in the best interest of DOE. The establishment of the CTAs and the
transfer of these positions to the DOE line represent safety
improvements and not shortcomings. The individuals were transferred to
the line organizations to continue their previous function of
supporting line management in implementing their responsibility to
review and approve nuclear facility safety basis. [See comment 14]
With respect to the vacancies, the GAO statement was correct when
written but does not provide a complete and accurate picture. Most
government organizations have vacancies from time to time, and such
vacancies are not uncommon for expertise that is in high demand, such
as nuclear engineers. GAO fails to present a complete picture of the
situation by mentioning the mitigating measures (which are mentioned in
subsequent portions of the GAO report), such as the effective use of
contractor expertise to complement Federal expertise. By making this
statement without the complete context in the Results in Brief section,
GAO is presenting an unbalanced picture of the current situation. Also,
since the previous discussions with GAO, HSS has recently filled at
least one of the open positions in the Office of Enforcement (the text
should now read "3 of 5") and is working to fill the others. More
importantly, GAO provides no performance data that indicates that HSS
has been unable to fulfill its mission because of the vacancies. For
example, GAO points to no instances where HSS missed an inspection or
an enforcement action because of a few vacancies in the current
staffing. [See comment 15]
The statement about potential staffing challenges is correct but would
also apply to many DOE organizational elements and many Federal
agencies. GAO fails to note that, although DOE is under overall
spending constraints, DOE has supported HSS efforts to designate
certain nuclear safety positions as critical hires and to maintain an
adequate technical resource base, including a judicious balance of
Federal personnel and contractor support.
8. GAO's assertions about the Head of HSS are not accurate and are not
supported.
In the cover page summary and other places (i.e., page 7 and page 20),
GAO makes incorrect statements about the rank of the Head of HSS (i.e.,
the Chief Health, Safety and Security Officer for DOE). GAO asserts
that the Head of HSS is not at the same rank as the program office
heads and that DOE moved the position to a lower level in the
department. These statements are not factually correct; the Head of HSS
reports directly to the office of the Secretary of Energy (the same
rank as the heads of program offices). The only difference is that the
Head of HSS is not a presidential appointee or Senate confirmed. GAO
presents no evidence that the Head of HSS has any less authority or
less access to the Secretary or Deputy Secretary because of this
difference. In actuality, the Head of HSS has excellent access to the
Secretary and other DOE decision makers, and the authorities of the
Head of HSS are at least equivalent to, and sometimes greater than,
those of the Head of HHS's predecessor safety organization. [See
comment 16]
The GAO report is also misleading to the casual reader in the
description of its previous recommendation about the characteristics of
the head of the DOE safety organization (i.e., GAO recommends a
position that has a long tenure and cannot be removed except for
cause). As written, the GAO report implies that DOE has such a position
and then degraded it to the current situation. Although it is not clear
in the GAO report, Congress has never approved a position with such
characteristics in DOE; there was no degradation of authority of the
Head of HSS when DOE chose to appoint a career professional to the
position. [See comment 17]
Comments on DOE Independent Oversight Inspections:
9. GAO's conclusions about gaps in the HSS inspection schedule are not
completely valid and/or are not sufficient to provide a complete and
accurate picture.
In the cover page summary and other places (i.e., pages 7 and 25), GAO
refers to gaps in the inspection schedule as evidence of a shortcoming
in the HSS Independent Oversight program. Page 7 states "although HSS
periodically inspects DOE sites and identifies program deficiencies,
there are some gaps in meeting its policy to inspect sites with nuclear
facilities at least every 2 to 4 years or more frequently depending on
the risks. We determined that HSS, and a predecessor office, did not
inspect 8 of the 22 sites where high-hazard nuclear facilities are
located in the last 5 years."
The GAO conclusions in this area are invalid because they are not based
on correct facts. The statement that HSS has not inspected eight of 22
sites with high-hazard facilities in the last five years is misleading
at best. The sites that GAO misinterprets as gaps are not sites that
would warrant a regular inspection because of various factors. For
example, most aspects of Portsmouth and Paducah operations are now
regulated by NRC and the remaining DOE interests are not high
priorities for inspection, and sites such as Mound, Fernald, and Rocky
Flats no longer have nuclear facilities (e.g., in the final stages of
cleanup with no significant ongoing work that warrants a nuclear safety
inspection). As noted in Table 1 of the GAO report, four of the 22
sites that the GAO claims to be high hazard nuclear facilities do not
currently have nuclear facilities. Also, the table listing ES&H program
inspections is incorrect and misleading. As provided to the GAO
auditors, there was an inspection at the Los Alamos National Laboratory
during the fall of 2007. In addition, as provided on the web site
referenced, Independent Oversight performed an investigation that
included nuclear safety basis elements (engineering, design,
configuration management, and safety basis) at the Office of River
Protection during 2004 and has performed other oversight activities
that examine safety basis elements as part of special reviews and
accident investigations. It is worth noting that, following the spill
event in 2007, the Office of Environmental Management (EM) proactively
requested HSS conduct a rigorous and independent Type B accident
investigation. The Type B investigation is another example of
Independent Oversight review of Hanford tank farms. Contrary to the GAO
assertions, an objective evaluation would conclude that the Hanford
Tank Farms and Office of River Protection have received higher levels
of attention from both Independent Oversight and enforcement. When all
of the correct information is considered, GAO's conclusion that there
are gaps in the inspection program is not based on accurate
information. [See comment 18]
10. GAO's conclusions about the DOE approach to corrective actions for
HSS inspections are not valid and/or are not sufficient to provide a
complete and accurate picture.
On pages 7-8 and other places (pages 26-27), GAO indicates that
"although the program offices are required to develop corrective
actions in response to HSS inspection findings, HSS generally does not
review the effectiveness of these actions until it returns to the same
site for another inspection, which occurred on average approximately
every 3 years since 2000 for the 7 sites with the most high-hazard
nuclear facilities (from 13 to 38 facilities)."
The GAO report does not provide a complete and accurate picture of the
HSS role in corrective actions. DOE line management has primary
responsibility for verifying the effectiveness of corrective actions,
which is consistent with ISM principles and good safety management. DOE
program offices are required to develop a specific corrective action
plan for each HSS finding. HSS often reviews corrective actions on
subsequent inspections, which are typically conducted at two to four
year intervals. [See comment 19]
The GAO report incorrectly assumes that the scheduled oversight
inspections are the only mechanism for reviewing corrective actions.
GAO fails to recognize that HSS routinely reviews the DOE line
management corrective action plans for HSS findings. HSS specifically
looks at the adequacy and timeliness of the plans. HSS also examines
compensatory measures, when appropriate. GAO fails to mention that HSS
has the option of performing re-inspections or more frequent
inspections if circumstances warrant. Such re-inspections are typically
performed after about one year and are targeted on the corrective
actions. While this option is used rarely (e.g., for situations where
significant ES&H issues warrant a near-term re-evaluation), HSS has
performed such re-inspections in the past (e.g., a review of the
Hanford Tank Farms). GAO also fails to mention that for certain
deficiencies, such as HSS findings that identify potential inadequacies
in the safety basis, DOE requirements establish a structured process
for prompt conduct of reviews and implementation of compensatory
measures. GAO also does not consider the frequency of other DOE
reviews, such as regular reviews of NNSA sites by the CONS, in
evaluating corrective actions. [See comment 20]
Comments on Safety Basis:
11. GAO's conclusions about HSS's role in overseeing the safety bases
are not valid and/or are not sufficient to provide a complete and
accurate picture.
On page 7 (and later on pages 18 and 22-25), GAO concludes that "HSS
lacks basic information about the high-hazard nuclear facilities it is
supposed to oversee. As of December 2007, HSS did not have accurate
information regarding the total number of these nuclear facilities or
the number of facilities that lacked an approved safety basis meeting
requirements set in 2001. We conducted a survey and identified 205 high-
hazard nuclear facilities-31 did not have the proper safety basis
documentation."
DOE disagrees with this conclusion and the underlying premises. First,
HSS is not the DOE organization with primary responsibility for
maintaining information about the status of nuclear facilities. DOE
line management has this function and reviews and approves the safety
basis. The GAO draft report presents no information to indicate that
DOE line management is not performing its role in monitoring the status
of safety bases for its facilities. The fact that GAO was able to
collect its survey results underscores that line management is fully
aware of the status of its sites with respect to safety basis
documentation. Line management has primary responsibility for ensuring
that schedules for upgrading safety bases are appropriately prioritized
and met, and must seek schedule exemptions if they go beyond the period
outlined in 10 CFR 830. HSS provides independent oversight, on a
sampling (but in-depth) manner, to ensure that line management and the
contractor are performing their duty to ensure the adequacy of safety
bases. HSS fulfills its role by reviewing the status of safety bases
during Independent Oversight inspections. These reviews include an
evaluation of the fundamental elements of nuclear safety, including
design and engineering, safety basis, operations, surveillance and
testing, maintenance, configuration management, and quality assurance.
The GAO report fails to address the quality of these inspection
activities and seems to indicate that safety basis approval is the only
element of nuclear safety oversight. Further, HSS, as well as DOE site
line management, is well aware that some safety bases need to be
upgraded. However, the primary issue of concern to HSS (and DOE line
management) is whether the safety basis (whether upgraded or not)
accurately reflects the facility conditions and hazards and identifies
appropriate controls that have been adequately implemented. [See
comment 21]
Second, GAO draws some conclusions based primarily on its review of
data on DOE's safety basis information system (SBIS), which is not a
valid basis for a conclusion about information available to HSS or the
state of HSS knowledge. GAO is correct that the SBIS was not up to date
in some areas because it has not always been updated by line
management. SBIS was established following the issuance of the 10 CFR
830 rule in 2001. The purpose of the SBIS was to make information
easily available to the public regarding progress made in upgrading the
facility safety basis. This system was not meant to be a real-time
reflection of the status of each safety basis, but rather to be
periodically updated to show the progress that was being made in the
upgrade of safety bases to meet the 10 CFR 830 rule. SBIS is not a
database that DOE or HSS relies on for managing nuclear safety. Rather,
as discussed previously, line management reviews and approves all
safety bases and performs day-to-day oversight of maintenance and
implementation. HSS performs oversight of line management effectiveness
in performing these activities. [See comment 22]
On the cover page summary (and later on pages 31-38), GAO reports "DOE
also decided that HSS involvement in reviewing facility safety basis
documents was not necessary because this is done by the program offices
and adequately assessed by HSS during periodic site inspections." This
statement is not complete. GAO fails to mention that an approval
process that involves the corporate safety office as an approval
authority, which GAO recommends, has been tried and was determined to
be ineffective. Also, the GAO report does not identify the time frames
for past decisions and provides a misleading impression that DOE has
changed practices recently; DOE line management has had responsibility
for approving safety bases for more than 15 years. [See comment 23]
In short, GAO's conclusions about HSS knowledge of the status of
nuclear safety basis is not valid because it is not based on an
adequate assessment of HSS roles and responsibilities and is based only
on a very narrowly scoped review of one non-essential database that is
not used for the purpose that GAO is evaluating. HSS regularly reviews
the status of safety bases during Independent Oversight inspections,
and it is well aware that some facility safety bases have not been
upgraded to meet new 10 CFR 830 requirements and that upgrade actions
are continuing. HSS oversight inspections of safety basis focus on the
capability of contractors and program and field offices to ensure the
quality of safety basis (and their implementation) on a sampling basis
using a vertical slice approach for the highest hazard facilities.
These reviews are very detailed and are designed to reveal quality
issues. We believe that this type of review is more important than
simply counting the number of facilities that have been reported as not
being upgraded and provides HSS with very good insights to the safety
of our nuclear facilities. Contrary to GAO's assertion that HSS does
not have the ability to perform reviews and require that the findings
be addressed, sites are responsible for looking for and correcting the
root cause of identified problems found by HSS inspectors. Issues
common to multiple sites are identified and shared with all program
offices through HSS's lessons learned program. [See comment 24]
Also, GAO is not using terminology correctly and thus is presenting a
misleading, inaccurate, and inflammatory perspective. The GAO report
statement that some DOE sites "did not have the proper (emphasis added)
safety basis documentation" is not accurate. All DOE sites have an
approved safety basis. Most of these sites have been upgraded to the
new and more rigorous standards defined in 10 CFR 830. Some safety
bases have not yet been upgraded for various reasons, but these sites
are still in compliance with 10 CFR 830 (the regulation recognizes the
need for a transition period to upgrade to the new standards in some
cases and allows for the use of the existing safety basis until the
upgrades are made). In most cases, there are valid reasons why DOE
sites have not yet upgraded their safety basis to the new standards.
For example, some sites have a limited lifetime because they are
scheduled for decommissioning; an upgrade of the facility safety basis
for such facilities may be an unwarranted expenditure of resources that
provides little additional safety. While it is correct to say that some
facility safety bases have not been upgraded, it is not correct to
characterize them as noncompliant or inadequate or not "proper" as GAO
has improperly done on several occasions in the draft (more often in
the summaries in the front of the report). [See comment 25]
In some cases, GAO is presenting incomplete information about DOE
actions related to safety basis. GAO notes that DOE facilities do not
always have a safety basis that meets current standards. With some
justification, GAO is critical of the DOE efforts in this area and uses
the state of safety basis as support for a DOE shortcoming. However,
GAO also notes that about half of the facilities that do not have
safety bases that meet current requirements are from the Idaho National
Laboratory (INL) and that the current status is the direct result of
DOE line management making a conservative safety decision that the
previous submittals needed to be improved. We regard this as an example
of DOE line management making a proactive decision in the interests of
safety. In addition, GAO fails to mention that the responsible DOE line
management (Nuclear Energy and Idaho Operations Office) developed a
Management Control Plan to ensure safety while the additional upgrades
to the safety basis are made. DOE is making progress on implementing
this plan, and upgraded safety bases for two of the 14 INL facilities
have now been approved. Further, GAO fails to mention that interim
measures are being taken by the Office of Nuclear Energy to ensure
adequate safety at these facilities until the fully rule-compliant
safety basis documents are completed, approved, and implemented. The
interim measures include the implementation of interim but robust
justifications for continued operations (JCOs) that address the
weaknesses identified in the previous safety bases and use focused self-
assessments, specific audits, relevant inspections, corrective actions,
and reanalysis efforts. [See comment 26]
12. GAO's comments about HSS's role in overseeing the JCOs are not
sufficient to provide a complete and accurate picture.
On page 7 (and later on pages 22-23), GAO reports that it "found that
about one-third of the 205 facilities were in conflict with DOE policy
to limit the time that temporary control measures can be used to allow
a high-hazard nuclear facility to operate outside of its approved
safety basis. Even though HSS is the only independent office with
oversight of nuclear safety, it has no role in reviewing these
operational decisions."
DOE agrees that DOE's utilization of JCOs, which allow facilities to
temporarily depart from their safety basis to avoid shutting down
operations, need improvement. As acknowledged by GAO later in the
report, DOE is taking action to clarify DOE's JCO guidance. The GAO
report correctly indicates that, in 2007, the DNFSB identified concerns
with the use of JCOs. However, the GAO report does not fully evaluate
the actions that DOE has taken to address the use of JCOs and only
reports that NNSA and EM have issued informal guidance. GAO does not
acknowledge that, in 2005, HSS's predecessor organization (EH)
recognized similar concerns with the use of JCOs and, with the support
of the Energy Facilities Contractors Group (EFCOG) and DOE program and
field offices, developed and issued guidance (DOE Guide 424.1-1A,
Implementation Guide for Use in Addressing Unreviewed Safety Question
Requirements) in mid 2006 on the proper use of JCOs. This guidance
addressed the length of time that JCOs should remain in place and
reinforced a prohibition on their use for planned activities. The main
reason the concerns with JCOs still existed in early 2007 (when DNFSB
identified its concern) was that the new guide had only been in place
for about six months, and sufficient time had not passed to fully
incorporate the changes into site procedures and practices. Following
the receipt of the DNFSB's April 2007 letter on JCOs, HSS has worked
with EM and NNSA to determine what additional actions were needed to
improve on the use of JCOs. As the GAO report indicates, in early 2007,
EM and NNSA reinforced to the field organization that JCOs are not to
be utilized for planned activities. In addition, HSS has worked with EM
and NNSA to further clarify the guidance on JCOs. This work has
concluded that, in most aspects, the current guidance needed for
limiting the lifetime of JCOs and prohibiting the use of JCOs for
planned activities is sufficient; however, revision of the guidance
document to consolidate all the guidance on the use of JCOs and to add
new guidance regarding the content and approval of JCOs is warranted.
These improvements are being pursued in coordination with the program
and site offices and EFCOG. [See comment 27]
Although the issue with JCOs is valid and is being addressed, DOE does
not agree that HSS should routinely evaluate "operational decisions."
Such decisions are more properly performed by line management. HSS
reviews selected aspects of safety basis, including JCOS, during
inspections and has identified deficiencies for corrective actions on a
number of occasions. [See comment 28]
The GAO report also states that HSS does not routinely monitor changes
to the safety bases of high-hazard nuclear facilities, such as use of
JCOs, which allow facilities to temporarily depart from its safety
basis to avoid shutting down operations. This statement is misleading
since it implies that DOE is not monitoring changes to the safety bases
of high-hazard nuclear facilities. DOE line management not only
monitors changes to safety bases but also approves them, including any
JCOs (which are considered a part of the safety basis). The DOE
unreviewed safety question process is much like the NRC's process for
review and approval of changes to safety basis. As an independent
check, HSS evaluates safety bases and associated JCOs during its ES&H
evaluations. For example, in its February 2006 evaluation at the
Savannah Review Site, HSS identified a concern that JCOs were
inappropriately being utilized for planned activities. DOE does not
agree that HSS should routinely evaluate "operational decisions." Such
decisions are more properly performed by line management. [See comment
29]
The problems identified by the Safety Board are primarily related to
the insufficient guidance on the use of JCOs that existed prior to 2006
and was, for the most part, corrected with the revision of DOE Guide
424.1-1, Implementation Guide for Use in Addressing Unreviewed Safety
Question Requirements, in July 2006. Line management has taken
appropriate actions to ensure the new guidance on JCO use is being
implemented, but this will take time. In addition, HSS and line
management are making further revisions to the guidance to enhance its
usefulness. DNFSB did not attribute the JCO issues to the structure of
DOE oversight and indicated its encouragement with DOE's proactive
response. [See comment 30]
Comments on Enforcement:
13. GAO's evaluation of HSS's role in enforcement is misleading and not
sufficient to provide a complete and accurate picture of the
effectiveness of the enforcement program.
On the cover page summary, GAO concludes that "while HSS uses its
authority to enforce nuclear safety requirements, its actions have not
reduced the occurrence of over one-third of the most commonly reported
violations in the last 3 years, although this is a priority for HSS."
Later on page 8 and page 27, GAO concludes that "HSS has the authority
to levy civil penalties and take other enforcement actions against
contractors that violate nuclear safety requirements, but it has not
been able to reduce some recurring violations. This is despite an HSS
policy to give priority to addressing longstanding and recurring
violations with increased enforcement actions. We found that 9 of the
25 most frequently cited violations of DOE nuclear safety requirements
occurred at the same or higher average frequency in 2007 as in 2005. We
determined that while HSS had frequently conducted enforcement
activities at the sites with the most high-hazard nuclear facilities,
they were also the sites where the failure to perform work consistent
with technical standards was the most common recurring violation."
Later in the report, GAO states that "HSS has not taken primary
responsibility for preventing recurring nuclear safety violations
because DOE views its role as secondary to the program offices."
DOE believes that these statements are misleading and that the GAO
evaluation is too narrowly focused to provide valid feedback on the
effectiveness of the HSS enforcement program.
The GAO does not properly reflect the role of HSS in the overall
governance model, and the GAO characterization of the HSS role as
secondary in addressing recurring safety violations is inaccurate and
misleading. Line management (including the DOE program offices) has
primary responsibility for safety and, therefore, for striving to
prevent safety violations. GAO appears to be setting the unrealistic
and counterproductive expectation that HSS should take over line
management's role and affect improvements in DOE contractor
performance. This path would be inconsistent with the ISM principle of
line management responsibility for safety and inconsistent with the
proper role of an independent oversight/enforcement organization. The
contractor line management must ultimately take the actions needed to
prevent recurrences of events, and line management responsibility and
accountability are essential to making this process work. Further, the
GAO report is worded in a manner that implies that HSS has made some
conscious decision not to act to prevent recurring nuclear safety
violations because it is not the organization with primary
responsibility. A more accurate characterization would be that HSS has
taken deliberate steps to focus on and escalate penalties for recurrent
issues, and is continuously evaluating the reported violations to
better set its enforcement priorities and better focus its enforcement
actions to drive improvements. [See comment 31]
GAO concludes that there are shortcomings in HSS enforcement based
primarily on its analysis of Noncompliance Tracking System (NTS)
reports and the referenced violations. This evaluation approach (page
28 and Table 2) is too narrow to be meaningful. GAO did not evaluate
the more important aspects of the enforcement process, such as the
adequacy of the screening process, the quality of the enforcement
action, the depth of the enforcement investigations, the technical
expertise of the personnel, the validity of the violations, and other
such factors. Further, there are a number of problems with the GAO data
analysis methods that raise question about any GAO conclusions. One
significant conceptual problem is that the GAO analysis attempts to
draw conclusions based on the number of violations reported to NTS;
experience has shown that the number of reported violations is not
necessarily an accurate measure of actual performance or the impact of
the enforcement program. For example, HSS often notes that reported
violations often rise after an event and an HSS enforcement action,
which is counter to the expectation that enforcement action will drive
the number of violations downward. A closer investigation of the
phenomena, however, shows that reported violations often rise for a
time period because sites are more sensitized to potential violations
and more active in looking for other noncompliant conditions. An
increase in the reported violations may also indicate that the
contractor's program is improving, and that the site office and
contractor are doing a better job of self-identifying potential
noncompliances for corrective action. The bottom line is that any use
of the NTS to draw conclusions about actual trends needs to be viewed
with caution. A second conceptual problem is that the violation that
GAO has chosen to track (performing work consistent with technical
standards) is so broad in scope (it encompasses all instances of
procedure violations and inadequate procedures) that it is cited in the
overwhelming majority of NTS reports and is not an effective parameter
for identifying trends. A few other problems include: GAO looks at
sites, combining multiple contractors, rather than at individual
contractors (possibly masking important trends); the short time frame
(less than 3 years) is not sufficient to ascertain meaningful trends;
the analysis focuses on sites with an increase in reporting but does
not recognize sites showing a decrease in reporting. Overall, the GAO's
conclusions are based on an incomplete analysis of NTS data, and the
specific methods chosen by GAO raise questions about GAO's technical
expertise and level of understanding of complex nuclear safety issues.
The broad conclusions that GAO draws are simply not supported or
supportable. [See comment 32]
Notwithstanding our concerns with the GAO analysis, DOE agrees that
recurrence of violations is a concern. GAO cites examples of recurring
violations at the tank farms and waste treatment plant as examples of
sites with recurring violations and uses this information to support
its contention of shortcoming in HSS performance. GAO also cites an NRC
report (although not in the correct context) as supporting a conclusion
that some DOE sites have had problems with recurrence controls. We
agree that certain DOE contractors have not adequately addressed root
causes and thus have experienced recurrences of events. DOE has taken
various actions through various methods to promote performance
improvements by such contractors. An objective evaluation shows that
HSS has been actively involved in pursing enforcement actions against
the responsible contractors, when warranted, and that the amount of the
penalties was consistent with the nature of the violations. In fact,
the portion of the NRC report that GAO cites, is largely based on the
results of HSS enforcement activities that identified the problems and
subsequent recurrences and took strong enforcement action in both
cases. Also, HSS has been devoting higher levels of oversight and
enforcement attention to contractors with a record of recurring
deficiencies. It is worth noting that a new contractor was recently
selected to run the tank farm in the bid process; past contractor
safety performance was a factor that would be evaluated in any DOE
procurement decision. [See comment 33]
Comments on the GAO Recommendations to DOE:
14. DOE accepts some of the GAO recommendations but rejects two
recommendations as expensive, redundant, and counterproductive to
continuous improvement in nuclear safety.
GAO provided five recommendations for DOE. DOE accepts three in whole
or in part, and rejects two. DOE also notes that the one-year time
frame for action suggested by GAO may not be reasonable for some of the
recommendations because they would be expensive and would require a
large number of new hires within HSS; such actions would entail
substantial planning and budget increases that would need to be
addressed through the DOE budget process. [See comment 34]
* Recommendation #1 calls for HSS approval of safety basis. DOE rejects
this recommendation categorically. As discussed in this response, DOE's
current approach (e.g., issuance of the 10 CFR 830 regulation,
enforcement of noncompliance, establishment of safety system oversight,
establishment of the CTAs and CDNS and CNSs, etc.) is more effective
and appropriately uses the best qualified personnel to perform the
important safety basis reviews. Coupled with strong HSS independent
oversight, the current approach provides DOE with sufficient objective
information to make informed decisions and to ensure that the safety
bases are adequately reviewed. [See comment 35]
* Recommendation #2 calls for monitoring of safety basis. Although the
basis for this recommendation is largely flawed, DOE generally accepts
the recommendation. While DOE line management has and will retain
primary responsibility for maintaining and monitoring the safety bases,
HSS can do more to monitor the overall status of DOE line management
progress on finishing current efforts to upgrade safety bases, in
addition to continuing to perform detailed reviews of nuclear safety
including the quality of safety bases and the effectiveness of DOE line
management in implementing their responsibilities. DOE is striving to
ensure that all facilities meet the newer standards for safety bases
upgrades in a timely manner. As noted in this response, actions are
already underway by program offices and HSS to make the needed
improvements. [See comment 36]
* Recommendation #3 calls for onsite HSS presence. DOE rejects this
recommendation categorically. As discussed in this response, DOE has
implemented programs (including Facility Representative and Safety
System Oversight programs) that are more effective and more extensive
than the GAO recommendation and that meet the same goal. Coupled with
strong HSS independent oversight, these programs provide DOE with
sufficient objective information to make informed decisions and to
evaluate contractor performance and identify deficient conditions for
corrective action. [See comment 37]
* Recommendation #4 calls for strengthening enforcement. Although the
basis for the recommendation is largely flawed, HSS agrees with the
essence of the GAO recommendation and will continue to strive to
strengthen enforcement actions to prevent recurring violations. While
recurring violations can never be entirely eliminated in any regulated
environment - externally regulated or self-regulated - we will continue
our efforts to strengthen the enforcement actions through ongoing
efforts, such as escalated penalties, where warranted, and continued
emphasis on improved causal analysis, use of extent of condition and
corrective actions. However, we do not agree that enforcement actions
should be governed by measurable goals as GAO suggests (although there
is nothing in the report that supports or explains the GAO intent for
this part of their recommendation) because the nature of the
enforcement program is such that enforcement actions are taken in
response to events and noncompliant conditions that must be evaluated
on a case-by-case basis and are not suitable to predefined goals. [See
comment 38]
* Recommendation #5 calls for public access to unclassified reports.
DOE agrees that public access is desirable, as long as security
requirements are met. HSS actions were in progress to allow public
access to unclassified appraisals before the GAO recommendation was
issued. The requisite security reviews were recently completed, and the
HSS web site now allows access to recent HSS reports. Also, as a matter
of course, HSS regularly briefs relevant members of Congressional
staffs on our oversight and enforcement efforts. [See comment 39]
Miscellaneous Factual Accuracy Comments:
15. There are a number of instances of factually inaccurate information
in the GAO report that warrant correction or clarification.
Specific items that are factually inaccurate include:
* Page 4. The GAO statement "However, in 1999, after further
assessment, DOE decided not to pursue such legislation" does not
provide a complete picture. A more complete perspective would indicate
that, from 1996-1999, a diverse team of DOE senior managers, NRC
representatives and interested stakeholders participated in a 3 year
review of External Regulation of the Department. Consistent with the
more recent NRC Report on the Waste Treatment Plant, the 1996-1999
review concluded that the 3 facilities it reviewed as pilots for
external regulation were in compliance with NRC regulations and that
the safety benefit gained from external regulation would be minimal
when compared to the costs of external regulation. [See comment 40]
* Page 7. GAO is not using terminology correctly and thus is presenting
information in a misleading and inaccurate way. The GAO report
statement that "there arc some gaps in meeting its policy to inspect
sites with nuclear facilities at least every 2 to 4 years" is not
accurate. It is not accurate to characterize the situation as HSS not
meeting a policy. There is an important distinction between not meeting
a policy (which is a violation of a requirement and did not occur) and
not meeting an internal guideline (the guidance specifically gives
management the discretion to evaluate priorities and use resources most
effectively, even if the internal guidelines for inspection frequency
are not met). While it is correct to say that HSS did not always meet
its internal guidelines, it is not correct to characterize this as a
failure to meet a policy. [See comment 41]
* Page 7. GAO is not using terminology correctly and thus is presenting
information in a misleading and inaccurate way. The GAO report
statement that some DOE sites "were in conflict with DOE policy" is not
accurate. To be accurate, the phrase "were in conflict with DOE policy"
should be changed to "do not fully conform to DOE guidance." It is not
accurate to characterize the situation as a conflict with policy. [See
comment 42]
* Page 13, Figure 4. Authorization agreements are approved typically by
contracting officers/approval authorities at the site office level, not
program office levels at Headquarters (HQ) except for Hazard Category I
nuclear facilities. Review and approval of Nuclear Operations including
hazard categorization are approved at the DOE-HQ level for Hazard
Category 1 facilities (reactors), not at the site office level, as
shown. [See comment 43]
* Page 17. This text discusses the HSS Office of Enforcement role and
activities in enforcing compliance with requirements. The report does
not address the equally important contractual mechanisms that the
program offices may utilize to penalize contractors for poor nuclear
safety performance, as well as to engender improved performance. These
mechanisms include: assessment reports that direct an identified issue
be addressed, show cause letters, stop work direction, conditional
payment of fee actions, and contract termination. The Conditional
Payment of Fee (CPOF) mechanism has been used fairly extensively within
the Office of Environmental Management. For example, since 2005 EM has
exercised this mechanism over 10 times for concerns about contractor
safety performance. A large number of these actions dealt with failure
to rigorously implement integrated safety management system processes,
but they also include transportation safety and operational readiness
deficiencies. The specific CPOF actions ranged from a warning letter to
a reduction in fee for a single instance of $1 million. The cumulative
fee lost to all the contractors is almost $4 million. [See comment 44]
* Page 23. The GAO draft report discusses the continued operation of
the Chemistry and Metallurgy Research (CMR) facility, referring to a
DNFSB report that said it posed a significant risk to workers and the
public due to a number of serious vulnerabilities. The report states
that the last time the contractor assessed the safety of the facility
was 1998. This is factually incorrect. The safety of the CMR facility
has been the subject of almost continuous safety review by both the
contractor and the DOE. It was also subject to a HSS independent
oversight inspection during April of 2002. There has been a conscious
and dedicated program of risk reduction in this facility, achieved
largely by reducing and minimizing the amount of material that could be
released in an accident. Several of the wings of the facility have been
shut down, and the amount of material at risk in the remaining wings
has been reduced to the minimum needed to support program requirements.
Where feasible, new activities are not being allowed to start up in
this facility, and existing programmatic activities are being
consolidated or relocated out of the facility. Although the full safety
basis for this facility has not been updated, an update is in process
and the technical safety requirements for the facility have been
updated. Finally, the report gives the impression that this facility is
unsafe. No unsafe situation has been identified by the GAO and, if the
DNFSB identifies an unsafe condition, its legislation provides an
avenue for obtaining immediate actions to rectify the situation; no
such action has been taken or is in process. [See comment 45]
* Page 24. The last sentence of the first paragraph maybe inaccurate.
For many years, there has been uncharacterized nuclear waste in storage
containers at Argonne National Laboratory (ANL), but those materials do
not "pose a risk of explosion or fire." There are other types of
materials that pose a risk of explosion or fire at ANL, but these are
characterized and controlled. [See comment 46]
* Page 25. The GAO report incorrectly states that the INL, safety bases
will not be upgraded until 2017. The actual plans call for the safety
bases upgrades to be complete in 2012. The 2017, in the current draft,
may be a typo as the DOE schedules have not changed. [See comment 47]
* Page 26, Table 1, Footnote c, and page 29, Table 3, Footnote c.
Brookhaven did not downgrade their Hazard Category 3 nuclear facility
to radiological until April 2008 (the GAO report indicates December
2007). [See comment 48]
* Page 29, Table 3. New Brunswick Laboratory is government owned and
government operated. Because it is not operated by a contractor, this
laboratory would not receive a notice of violation, enforcement letter,
or program review. A comparison of this laboratory to contractor-
operated laboratories is not valid. [See comment 49]
* Page 30, Figure 6. The data, as shown in the table, is misleading
because the graph appears to show an upward trend when the actual trend
of nuclear safety violations is downward. While a footnote, for 2007,
explains this situation, the graphic presents the incorrect message and
could be modified. [See comment 50]
* Page 30-31. The discussion of the enforcement actions at the Office
of River Protection seem to infer that the same contractor was involved
in all the issues discussed. This text should clarify that the first
instance is for the Tank S-102 spill and the enforcement action was for
CH2M-Hill Hanford Group, and that the NRC's review of the Waste
Treatment Plant regulatory processes would have covered only the Waste
Treatment Plant contractor, Bechtel National, Inc. The statement on
page 31 that "NRC's review found that the issues leading to two
enforcement actions and the 2008 notice of violation had similarities
and could he indicative of program implementation issues in 2003 or
2004 that were not fully addressed and resolved as of 2008" implies
that the contractors were the same. They are not. [See comment 51]
* Page 31 of the report mentions a "2008 notice of violation" for the
waste treatment plant. The correct terminology would be a "2008 notice
of investigation." There is a distinction between these terms, in that
they are different phases of the enforcement action decision process.
[See comment 52]
* On pages 37-38, the GAO report states that HSS told GAO that HSS
plans to establish "a dedicated group within the Office of Enforcement
to help the program offices identify and address the causes behind the
failure to prevent recurring nuclear safety incidents." This is an
apparent miscommunication. HSS plans to continue to help program
offices identify causes of recurrences through various means on both
specific enforcement actions (i.e., through focus on corrective
actions) and on a program-wide basis (sharing lessons learned with
enforcement coordinators, conferences. and other venues. However, there
are no plans to establish a separate dedicated group for such an
effort. [See comment 53]
* Page 46, Table 4. DOE Policy 410.1, DOE Order 410.1, and SEN 35-91
are not listed. The Department recognizes the orders and manuals in DOE
Order 410.1, Attachment 1 (except explosives) as directly related to
nuclear safety (e.g., 0 413.3A, M 435.1-1 CH1, O 452.1C, O 452.2C, O
460.1B, M 461.1-1 CH1, O 461.1), while Attachment 2 is an additional
set. [See comment 54]
* Page 51, Appendix IV, Q12a and Q1 2b. These questions are redundant
amendments to the safety basis are the same as revisions to the safety
basis. [See comment 55]
* Page 60. GAO states that DOE holds an NRC license, transferred from a
utility in 1998, for the operation of an Independent Spent Fuel Storage
Installation to store the spent fuel from Three Mile Island, Unit 2, at
the Idaho National Engineering and Environmental Laboratory. This is
not correct. NRC granted DOE's Idaho Operation Office an original
license for this facility in 1999. [See comment 56]
[End of DOE comment letter]
The following are GAO's comments on the Department of Energy's letter
dated September 10, 2008.
GAO Comments:
Our response to DOE's letter is on pages 45 to 49. The following
responses are to the detailed comments provided by DOE that were
attached to the letter.
1. DOE is incorrect in stating that we did not recognize the primary
role of the program offices in nuclear safety. We addressed DOE's self-
regulation approach on page 2 of the report and also on pages 13 to 14,
as well as through a general discussion of responsibilities on page
36.[Footnote 55] For example, we provided a figure on page 16, obtained
from DOE, of the roles, responsibilities, and authorities within DOE
for nuclear safety. We clearly stated our research questions, criteria
for evaluation, and the focus on nuclear safety on page 6. In addition,
since we did not review the effectiveness of the program offices'
nuclear safety oversight programs, there is no basis for DOE to claim
that we found this oversight to be ineffective or that we contend that
all oversight must be performed by HSS. Moreover, DOE is incorrect in
stating that we did not address the functions of the Central Technical
Authority. We discussed these functions on page 39. While an evaluation
of the role of the Central Technical Authority was not the subject of
this review, we added more detail about it on pages 15 and 39.
2. We disagree with DOE's comment that we discounted DOE and HSS
perspectives that the former site representative program under a
predecessor office did not work very well and resulted in giving
conflicting directions to DOE contractors, which degraded the principle
of line management responsibilities. We considered these perspectives,
which we discussed on pages 37 to 38. We still believe that HSS needs
to increase its site presence, but we did not prescribe how this should
be accomplished. For example, HSS might increase the frequency of its
site inspections or establish a minimal presence at sites with the most
high-hazard nuclear facilities. We provided additional detail on page
37 regarding the role of the site representatives and DOE's statement
that site representatives from the independent oversight office were
providing conflicting directions to the contractors.
3. We agree with DOE that the lack of HSS involvement in approving the
safety basis is intentional, but we continue to believe that this is a
valid example of a shortcoming in HSS's functioning as an effective
independent oversight office with respect to nuclear safety. DOE
further stated that our conclusion is based on an incorrect premise
that the program offices cannot perform an adequate review of the
safety basis documentation. In addition, DOE stated that the unique
nature of the facilities requires that the program office officials at
the sites perform the reviews, not headquarters. First, our assessment
of HSS's current mission is based on GAO's elements of effective
independent oversight, along with supplemental criteria from our past
work and HSS guidance. Second, we did not state that the program
offices could not adequately review the safety basis documentation on
high-hazard nuclear facilities. Third, we disagree that the site
offices are the only ones that know enough about the facilities to
conduct a safety basis review. For example, DOE acknowledged in its
comments that technical staff for the Central Technical Authorities' at
headquarters, as well as HSS also get involved in safety basis reviews.
According to DOE, the headquarters-based technical staff for the three
Central Technical Authorities provide nuclear safety oversight and
advice to DOE sites and these authorities. They maintain awareness of
complex high-hazard nuclear operations at the sites, including safety
basis implementation, nuclear facility startup, and personnel training
and qualifications, among other things. In addition, DOE stated that
HSS performs periodic site inspections that include nuclear safety
basis elements, such as engineering design, configuration management,
and safety basis.
4. DOE is incorrect in stating that we found the program office
oversight to be ineffective and that all oversight should be performed
by HSS. Our point is that HSS--as the only independent oversight
office--needs to also participate in the safety basis review process as
an important component of DOE's self-regulation approach.
5. We disagree with DOE that potential conflicts of interest between
mission objectives and safety will always exist in DOE and other
industries that deal with hazardous materials. Our focus in this review
was nuclear safety oversight and, as we stated on page 1, virtually all
other federal nuclear facilities and all commercial, industrial,
academic, and medical users of nuclear materials are regulated by NRC.
Because these other entities are regulated by NRC, we also disagree
with DOE that its system of checks and balances--with HSS providing an
independent check of the program offices and the contractors--is
similar to these other industries. The shortcomings we found in HSS as
an effective independent overseer of nuclear safety indicates to us
that this system of checks and balances is not in proper balance as it
relates to nuclear safety.
6. We disagree with DOE that we misrepresented its position in forming
HSS and that we inferred that these actions reduced the effectiveness
of HSS's oversight and enforcement functions. The statement about the
mission of HSS came directly from a 2006 DOE report that set forth the
rationale for establishing this office. According to this report, HSS
was established as a corporate safety office similar to corporate
safety offices in the commercial nuclear utility industry. However,
unlike DOE, corporate safety offices of nuclear utilities operate under
NRC regulation. In addition, DOE stated that it made these changes to
strengthen HSS independent oversight and enforcement responsibilities
by, for example, removing some management responsibilities. This may
have been one objective in forming HSS, but we found that reducing some
nuclear safety responsibilities and technical resources in HSS that
once resided in its predecessor offices contributed to our findings
that it does not fully meet our elements of effective independent
oversight of nuclear safety.
7. We disagree with DOE that we do not understand its governance model
for nuclear safety; as discussed above, we have described this approach
in our report. We agree with DOE that we did not attempt to evaluate
the effectiveness of DOE's governance model and instead evaluated HSS
against our elements for effective independent oversight of nuclear
safety to develop our findings, conclusions, and recommendations.
8. We disagree with DOE that our evaluation methods were too narrow in
scope to provide a valid assessment of HSS's performance with respect
to oversight, enforcement, and technical expertise. Our evaluation
methods were appropriate to assess HSS against our elements of
effective independent oversight of nuclear safety. An assessment of HSS
against these elements and their criteria did not require us to review
the quality of the appraisal reports, enforcement actions, or technical
staff. Instead, HSS's ability to perform reviews and have its findings
addressed relied on criteria to assess the independence of the
information available for these reviews, the frequency of the reviews,
and the opportunities to independently determine the effectiveness of
the actions taken to correct the identified deficiencies. In regard to
enforcement, we evaluated the level of recurring violations rather than
the quality of the paperwork used to document enforcement actions.
Finally, in terms of technical expertise, our criteria required a
review of the sufficiency of the staff rather than their technical
qualifications. We found shortcomings in each of these areas, which
lead to our conclusions and recommendations.
9. We disagree with DOE's statement that we selectively cited an NRC
report only to support our findings of HSS shortcomings. We quoted
directly from the NRC report, and in several places, we discussed
similarities between DOE's and NRC's approach. For example, we
discussed how DOE's enforcement program is similar to NRC's program on
page 43. However, we have added on page 41 of this report, and in our
Conclusions on page 44 that NRC stated that it believes the DOE
program, if properly implemented, is adequate to ensure protection of
public health and safety. Nevertheless, we also pointed out in our
report on page 41 that NRC suggested that DOE evaluate how to improve
implementation of its requirements and the transparency of its
decisions, and also explore ways to gain and maintain more independence
between its regulatory oversight and project management functions.
10. We disagree with DOE that we mischaracterized information contained
in the Safety Board's Recommendation 2004-1; we quoted directly from
the Safety Board's recommendation. However, we revised the report on
page 1 to add the Safety Board's statement that DOE has a long and
successful history of nuclear safety during which DOE developed a
structure and requirements to achieve safety. Nevertheless, we noted on
page 2 that our 2007 report found a record of recurring accidents and
violations of the nuclear safety requirements at three DOE weapons
laboratories. DOE also stated that we did not mention that its
implementation plan to create the Central Technical Authority to
fulfill one aspect of Recommendation 2004-1 was accepted by the Safety
Board. We added this text to the report on page 39.
11. We disagree with DOE that NRC's recent report, which concluded that
DOE needs to increase the independence between its regulatory oversight
and project management functions, only relates to the program offices
and has no bearing on HSS. As our report states on page 41, NRC found
that DOE focuses its oversight program on owner responsibilities rather
than on nuclear safety requirements and suggested that DOE explore ways
to increase independence between regulatory oversight and project
management functions. We believe that it is reasonable to conclude from
NRC's report that DOE should consider opportunities to strengthen
independent oversight both within the program offices and HSS.
12. We disagree with DOE that our identified shortcomings with the
structure and functions of HSS are not supportable because we looked at
HSS in a vacuum rather than in the context of DOE's governance model.
We evaluated HSS against our elements of effective independent
oversight of nuclear safety, supplemented with recommendations from
past GAO reports and HSS guidance. In our opinion, this is the role
that HSS needs to play in DOE's self-regulation approach.
13. We disagree with DOE's claim that our independence criteria are not
essential components for an independent oversight office. We added on
page 21 that while HSS is structurally distinct from the program
offices, there are also other components of independence that this
office should possess, identified in past GAO reports, which are
essential for HSS to function in this independent role with respect to
nuclear safety. DOE also stated that HSS is similar to Occupational
Safety and Health Administration and Environmental Protection Agency as
independent oversight agencies without a site presence. However,
nuclear safety has always been a special case for intense oversight.
The NRC and the Safety Board are very involved in reviewing the safety
basis for nuclear facilities, and these two organizations rely heavily
on having a site presence at high-hazard nuclear facilities. DOE also
said that we did not present any safety performance criteria. While
this was not the subject of our review, we did note on page 2 that our
2007 report found a record of recurring accidents and violations of the
nuclear safety requirements at three DOE weapons laboratories.
14. We question DOE's justification for shifting the 20 nuclear safety
review positions to the program offices from the former Office of
Environment, Safety and Health to support oversight by the Central
Technical Authority. For example, DOE stated that they placed these
technical experts in the authority to help the program offices review
and approve their nuclear facility safety basis, in part because of the
challenge to get some sites to upgrade the safety basis of these
nuclear facilities. DOE fails to acknowledge that it has increased the
potential for conflict of interest in the review and approval of the
safety basis for nuclear facilities by removing any semblance of
remaining independent input to this process that once resided in an HSS
predecessor office.
15. We agree with DOE that our assessment of its staffing situation did
not provide a complete and accurate picture, such as the use of
contractors, in the Results in Brief section of our report. We have
added this to our Results in Brief section and also changed the number
of current vacancies from three to two in the Office of Enforcement. We
did address the use of contractors and other federal resources in the
body of the report.
16. We disagree with DOE that the head of HSS has the same rank as a
Senate-confirmed head of the program offices, even though they both may
have direct access to the Secretary of Energy at this time. At the
suggestion of DOE, we have added to the text on page 23 that DOE
officials have emphasized that the head of HSS has excellent access to
the Secretary of Energy and other DOE decision makers and that the
authorities of this position are at least equivalent to, and sometimes
greater than, those of the head of HSS's predecessor offices.
Importantly, we note that while the current head of HSS contends that
he has access to the Secretary of Energy, there is no guarantee that a
future head of HSS will enjoy the same level of access.
17. We clarified in our report on page 23 that our recommendation that
the head of the independent oversight office be a Senate-confirmed
individual at the same rank as the program office heads was not acted
upon.
18. We disagree with DOE that the sites that were not visited by HSS in
the last 5 years did not warrant a visit because they no longer have
nuclear facilities. The sites with high-hazard nuclear facilities, by
DOE's definition, can pose serious consequences from an accident, and
all sites that we included in our analysis had nuclear facilities
operating within the last 5 years. DOE is also incorrect in stating
that we chose not to include a 2007 site investigation of Los Alamos
National Laboratory and a 2004 review of the Office of River
Protection. We did not include the site investigation of Los Alamos
National Laboratory because it was issued outside of the time frame of
our analysis. Finally, we noted that the Office of River Protection was
included in a lessons learned report but that it was not subject to a
separate environment, safety, and health site inspection, and thus, is
not reflected in table 1 on page 29 of this report. We added the 2007
accident investigation to the report on page 28, but not in table 1.
19. DOE is incorrect in stating that we did not provide a complete and
accurate picture of HSS's role in corrective actions. We stated on
pages 19 and 30 that the program offices are responsible for preparing
corrective action plans and that HSS has a role in reviewing these
plans. While HSS inspection protocols indicate that most sites with
high-hazard nuclear facilities should receive a site inspection every 2
to 4 years, we found that HSS had not inspected 8 of the 22 sites that
had these nuclear facilities in the last 5 years. We also provided
information on pages 40, regarding additional reasons HSS provided for
not inspecting some sites on schedule.
20. DOE is incorrect in stating that we assumed that the scheduled
oversight inspections are the only mechanism for reviewing corrective
actions and that HSS should routinely review these corrective action
plans. DOE is also incorrect in stating that we did not mention HSS's
option to perform reinspections or more frequent inspections if
warranted and that we did not mention the frequency of other reviews.
First, on pages 19 and 30, we addressed HSS's involvement in reviewing
the corrective action plans formulated by the program offices. Second,
on page 30, we discussed the option to conduct follow-up reviews and
found that they were done only five times since 1995. Third, on page
30, we accurately recorded how often HSS returns to sites for
subsequent inspections. For example, we found that sites with two and
seven high-hazard nuclear facilities, excluding those that no longer
have such facilities, were only inspected on average once every 6
years. Finally, we did mention the other site reviews by the program
offices, contractors, and now the Central Technical Authority on page
40.
21. We disagree with DOE that HSS is not the organization responsible
for maintaining information on the status of nuclear facilities, that
upgrading the safety basis of nuclear facilities is not and should not
be a primary concern of HSS, and that HSS only needs to be concerned
with whether the safety basis accurately reflects facility conditions
and that appropriate controls have been implemented. First, HSS is
responsible for maintaining the Safety Basis Information System (SBIS)
that includes information on the safety basis status of high-hazard
nuclear facilities and thus should be more accountable for the
reliability of the information in this database because, according to
DOE, the database is intended to allow the public to track upgrades of
the facility safety basis. Second, we believe that HSS is the most
appropriate office to hold the program offices accountable for
upgrading the safety bases of their nuclear facilities to meet current
requirements because, as our report noted, the program offices have
been slow to accomplish this task. Third, as our report states, we
believe that HSS needs greater responsibilities in the up front review
of the safety basis of new nuclear facilities as well as major
modifications of existing facilities because such an independent review
reduces potential conflicts of interest inherent in reviews conducted
by the program offices.
22. We disagree with DOE that we drew invalid conclusions from the SBIS
database regarding the information available to HSS or the state of HSS
knowledge. We do not dispute that the SBIS database is not used by HSS
or the program offices; however, more effort needs to be made to ensure
that the information in this database is updated because it is supposed
to be available to the public to check progress made in upgrading
facility safety bases. More importantly, this is the only database that
attempts to provide information on the number and status of high-hazard
nuclear facilities; information that we found was not fully known by
the program offices at headquarters, as well as HSS. It seems
reasonable to us that HSS should independently assess the accuracy of
the information in the database and use it to monitor the safety basis
status of nuclear facilities, particularly the use of JCO.
23. DOE is incorrect in stating that we did not discuss the time frame
for the involvement of HSS's predecessor offices in the review of
safety basis. We clearly do this on page 36. An evaluation of why the
safety bases approval process that existed in HSS predecessor offices
may have been ineffective was not the subject of our review.
24. We disagree with DOE that our conclusions about HSS's knowledge of
the status of the nuclear safety bases are not valid because they are
based on an inadequate assessment of HSS's roles and responsibilities.
We based our assessment on the structure and functions of HSS with
respect to our elements of effective independent oversight of nuclear
safety. We addressed HSS's review process on pages 21 and 25. Starting
on page 39 and continuing through page 41, we discuss the factors
contributing to the three shortcomings that we believe affect HSS's
ability to perform reviews and have its findings addressed.
25. We disagree with DOE that we incorrectly used terminology and,
thus, presented a misleading, inaccurate, and inflammatory perspective.
DOE said that while it agreed that some facilities do not have an
updated safety basis, we characterized this situation as noncompliant,
inadequate, or not proper. This is incorrect. We clearly stated on page
26 that 31 nuclear facilities do not have safety bases that meet
current requirements. We obtained this information directly from site
office officials who we surveyed and who are the most knowledgeable
about current conditions. DOE also stated that 10 CFR 830 envisioned a
transition period to upgrade the facility safety bases. However, DOE
did not mention that this transition period ended 5 years ago. We added
language on page 40, as DOE suggested, that some DOE sites have yet to
upgrade their safety basis to new standards and that some sites have a
limited lifetime because they are scheduled for decommissioning,
therefore, upgrading the facility safety basis for these sites may be
an unwarranted expenditure of resources to provide little additional
safety.
26. DOE agrees that we are justified in pointing out that some nuclear
facilities do not have approved safety bases. However, DOE suggested
that we failed to mention the interim measures that are being taken by
the Office of Nuclear Energy at the Idaho National Laboratory to ensure
adequate safety while additional upgrades are made. We have added on
page 26 that 2 of the 14 facilities now have approved, upgraded safety
bases, and that the Office of Nuclear Energy has put in place JCOs, as
well as additional oversight, to address weaknesses in the previous
safety bases for the other facilities until they can be upgraded.
27. DOE generally agreed with our analysis of the JCO issue. However,
DOE provided additional information on other actions it has taken since
the end of our audit time frame, namely that preparing further guidance
regarding the content and approval of JCOs is warranted. We added this
text to the report on page 28.
28. We disagree with DOE that HSS should not have a role in monitoring
JCO use outside of periodic site inspections because, as our report
notes, there have been inappropriate and excessive uses of JCOs that
went undetected, in part because there was no central monitoring of
their use.
29. DOE is incorrect in stating that we implied that it does not
monitor changes to the safety bases of high-hazard nuclear facilities.
We only stated on page 27 that HSS does not routinely review changes in
the safety bases, such as use of JCOs. However, we did add on page 28
that HSS reviews the use of JCOs during its periodic site inspections.
30. We disagree with DOE that the problems identified by the Safety
Board were primarily due to insufficient guidance that existed prior to
issuance of DOE Guide 424.1, in July 2006, and that this situation has
been corrected with new guidance. Our survey found additional use of
JCOs 16 months after the issuance of this guidance. While our survey
found that the average days of the JCOs was less than found by the
Safety Board in its sample of defense nuclear facilities, we noted on
page 27 that the expected duration of these JCOs was almost twice what
the Safety Board reported. DOE incorrectly stated that we stated that
the Safety Board attributed the prevalent use of JCOs to the structure
of DOE oversight.
31. We disagree with DOE that we mischaracterized the role of HSS as
secondary to the program offices in addressing nuclear safety
violations. We took this characterization directly from information
provided to us by HSS. In addition, DOE incorrectly stated that we
stated that HSS should take over program office responsibilities. DOE
also suggested that we implied that HSS has made some conscious
decisions not to act to prevent recurring nuclear safety violations. On
the contrary, we stated that HSS has made this a key issue to address
with increasing enforcement actions. We only indicated that these
actions alone have not impeded the recurrence of 9 of the top 25
violations of the nuclear safety requirements.
32. We disagree with DOE that our use of data in its Noncompliance
Tracking System, from which we drew conclusions, is too narrow and
meaningless. DOE also stated that we should be cautious in drawing
conclusions from this database. This is the only database that DOE has
to track violations despite the limitation DOE mentions for using it in
our analysis. We determined that this database was sufficiently
reliable for the purposes of our report. Moreover, an HSS official in
the Office of Enforcement told us that this database was the main
source of information used by this office, even though other databases
are also reviewed, and that this office conducts program reviews to
ensure that the contractors are entering data correctly. Another Office
of Enforcement official told us that this database, the program
reviews, and an occurrence reporting database are used to assess
recurring and long-standing problems, but that this is assessment is
informal and with the current staffing level there are limited
resources to conduct the program reviews. In addition, as a check on
the reliability of the data, this office also relies on enforcement
coordinators at the sites, but this official told us that they work for
the program offices and thus have some conflict of interest. In regard
to recurring violations, we looked at these violations over a 3 year
period across all sites, thereby ruling out outliers that DOE has
offered as reasons for ups and downs in the number of reported
violations. We also noted on page 32 that entries into this system have
averaged around 220 per year since 1999. This suggests to us that our
findings would not change if we added more years of violations to our
analysis. Finally, we disagree with DOE that our conclusions are simply
not supportable. DOE provided no evidence to show that what we found is
inaccurate and also agreed with our recommendation that enforcement
actions need strengthening. However, we added language on page 31, as
DOE suggested to explain that the category of violations for
"performing work consistent with technical standards" is broad in scope
and includes all instances of procedural violations and inadequate
procedures. Nonetheless, our report notes that these violations meet
DOE's reporting thresholds for safety significance and reflects on the
safety culture at the sites.
33. To eliminate any confusion between the recurring violations at the
Hanford Tank Farm and those at the Waste Treatment Plant, we modified
the text on page 35 to clarify this distinction.
34. DOE stated that the 1-year time frame to take action for some
recommendations may not be reasonable for a variety of reasons. The
intent of this 1-year deadline was to encourage DOE to take quick
action on what we believe is a critical issue independent oversight at
DOE nuclear facilities. While we do not believe that DOE has
convincingly argued that our recommendations are necessarily expensive,
redundant, and counterproductive, we agree that careful planning is
necessary. We have therefore modified the recommendation to remove the
1-year deadline to address DOE's concerns. However, we note that 31
U.S.C. 720 requires the head of a federal agency to submit a written
statement of the actions taken on our recommendations to the Senate
Committee on Homeland Security and Governmental Affairs and to the
House Committee on Oversight and Government Reform not later than 60
days from the date of our report and to the House and Senate Committees
on Appropriations with the agency's first request for appropriations
made more than 60 days after the date of this report. In this written
statement, we believe DOE should take the opportunity to detail not
only the actions, if any, it intends to take, but also to specify the
time required to take these actions in as economical and efficient a
way as possible. DOE's statement should also specify what
recommendations or parts of recommendations the department does not
intend to implement and its reasons. This information could serve as a
basis for any additional congressional action, if appropriate, as
envisioned by our Matters for Congressional Consideration.
35. We stand by our recommendation that HSS needs to be involved in the
review of the safety basis for new nuclear facilities and significant
modifications of existing facilities that may raise new safety
concerns. We believe that this is a fundamental responsibility of an
independent oversight office with respect to nuclear safety.
36. DOE generally accepted our recommendation on the need to increase
its involvement in monitoring the safety basis status of nuclear
facilities.
37. DOE is incorrect in stating that our recommendation to maintain a
site presence for HSS includes an implicit recommendation to eliminate
the existing oversight programs of the program offices. We also did not
prescribe how HSS would maintain a site presence. However, we have
modified this recommendation to replace "maintain" with "increase" a
site presence in order to give DOE more flexibility in deciding how to
obtain more routine awareness of site operations.
38. DOE agreed with our recommendation to strengthen the enforcement
program but did not agree with the need for measurable goals. We
modified our recommendation to exclude the requirement for measurable
goals for enforcement because it now appears to us that it would be
difficult to attribute any decline in recurring violations to only the
enforcement actions by HSS because other factors could be attributable
to a change, such as actions taken by the program offices.
39. DOE agreed with our recommendation that public access to HSS
reports is desirable, as long as security requirements are met.
40. We revised the text on page 4 to more accurately reflect the DOE
review of the external regulation option starting in the mid-1990s.
41. We revised the text on page 8 to replace the term "policy" with
"internal guidelines."
42. We revised the text on page 8 to state "do not fully conform to DOE
guidelines."
43. We made the suggested changes in figure 4 on page 16 to place
"authorization agreements," within site office responsibilities.
44. We revised the text on pages 41 to 42 that the program offices can
and do use contractual mechanisms to penalize contractors for poor
nuclear safety performance, as well as to encourage improved
performance. These mechanisms include assessment reports that dictate
that a problem needs correction, showing cause letters, stopping work
direction, conditional payment for fee actions, and contract
termination. For example, HSS officials informed us that since 2005,
the Office of Environmental Management has exercised conditional
payment of fee action 10 times over concerns about contractor safety
performance.
45. We changed the text to clarify that the Chemistry and Metallurgy
Research facility is operating under the safety basis established in
1998, although according to DOE this facility has been subject to
almost continuous safety review by both the contractor and the
department.
46. We are not making this recommended change because we believe that
the cognizant program office official at the site has the most accurate
information on the facility.
47. We changed the year to 2012 on page 26.
48. We added a note about Brookhaven to table 1 and table 3 on pages 29
and 33, respectively.
49. We added a note about New Brunswick to table 3 on page 33.
50. We changed the data for 2007 to adjust the line in figure 5 on page
34.
51. We revised the text on page 34.
52. We revised the text to include "notice of investigation" on page
35.
53. We revised the text regarding HSS plans to help the program offices
identify causes of recurring violations on page 42.
54. We revised the text to add "other nuclear safety guidance" to table
4 on page 54, and changed the number from 26 to 29 rules and directives
on page 14.
55. We cannot change the language of the survey instrument because we
have already conducted the survey of DOE's high-hazard nuclear
facilities.
56. We revised the text to replace 1998 with 1999 on page 67.
[End of section]
Appendix VII: Comments from the Defense Nuclear Facilities Safety
Board:
Defense Nuclear Facilities Safety Board:
A.J. Eggenberger, Chairman:
John E. Mansfield, Vice Chairman:
Joseph E. Bader:
Larry W. Brown:
Peter S. Winokur:
625 Indiana Avenue, NW, Suite 700:
Washington. D.C. 20004-2901:
(202) 694-7000:
September 8, 2008:
Mr. Gene L. Dodaro:
Acting Comptroller General:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, DC 20458:
Dear Mr. Dodaro:
The Defense Nuclear Facilities Safety Board (Board) appreciates the
opportunity to comment on major items with regard to draft report GAO-
08-894, Nuclear Safety- Department of Energy (DOE) Needs to Strengthen
Its Independent Oversight of Nuclear Facilities and Operations. A
separate document offering detailed corrections to the draft will be
provided directly to your staff.
It is paramount, in the Board's view, that the report not stale that
the Board's role is purely "advisory," as this is not correct with
regard to statute or practice. While Congress chose not to make the
Board a regulatory agency with enforcement authority, in part to avoid
potential adverse effects on national security, the Board's statutory
powers constitute action-forcing authority. This goes far beyond the
offering of "advice" that DOE is free to ignore. In fact, the Secretary
of Energy is required by statute to notify Congress and the public if
he does not accept a Board Recommendation. The Board has issued 50
Recommendations during its existence, all of which have been accepted
and acted upon by the Secretary.
The Board urges that the draft report be amended to fully describe the
Board's mission, and the tools given to the Board by Congress to carry
out that mission. For the reader of the report to fully appreciate the
intent of Congress in establishing the Board's oversight program in
1988, it is essential that the Board's organic statute be fully
explained, and the history of its use during the past 19 years be set
forth in some detail. This can easily be accomplished by drawing
material from the Board's annual reports to Congress and from its
current Strategic Plan, which are available on the Board's public
website.
Examination of the Board's activities since 1989 will reveal that the
Board has never ceased its efforts to strengthen DOE's internal
oversight program. Every annual report to Congress, including the first
one, issued in 1990, describes the Board's efforts to achieve this
mandate. The Board's safety oversight, which includes on-site
representatives at DOE sites containing defense nuclear facilities, has
been instrumental in protecting the public, the workers, and the
environment from hazards associated with defense nuclear facilities.
The Board's most recent major initiative in this area is Recommendation
2004-1, Oversight of Complex, High-Hazard Nuclear Operations, which is
based upon the record of a series of public hearings held by the Board.
While the actions delineated in the Implementation Plan for this
Recommendation have not yet been completed in all respects, important
results have been achieved. Those results are described in the Board's
most recent annual report to Congress (p. 51-52).
The safety oversight mechanisms established by Congress have proven to
constitute an effective and economical approach to safety oversight of
DOE's defense nuclear facilities. GAO has observed that weaknesses in
DOE's oversight remain to be corrected. However, the basic structure
and authorities of the existing safety oversight organizations,
including the Board, provide a satisfactory framework for this function
at those facilities under the Board's jurisdiction.
The Board has always, and will continue to execute fully the statutory
authorities assigned by Congress, providing independent safety
oversight of DOE's defense nuclear facilities.
Sincerely,
Signed by:
A.J. Eggenberger:
Chairman:
c: Mr. Eugene E. Aloise:
Mr. Daniel Feehan:
[End of section]
Appendix VIII: Comments from the Nuclear Regulatory Commission:
United States Nuclear Regulatory Commission:
Washington, D.C. 20555-0001:
September 18, 2008:
Mr. Gene L. Dodaro:
Acting Comptroller General of the United States:
U.S. Government Accountability Office:
441 G Street NW:
Washington, DC 20548:
Dear Mr. Dodaro:
The U.S. Nuclear Regulatory Commission (NRC) appreciates the
opportunity to review the Government Accountability Office draft
report, `Nuclear Safety - Department of Energy Needs to Strengthen Its
Independent Oversight of Nuclear Facilities and Operations," This
report references and comments on a number of NRC documents including
the most recent report on the review of the U.S. Department of Energy's
Hanford Waste Treatment Plant regulatory process.
NRC's comments on the report are enclosed. If you have any questions,
please contact Patricia Silva, at 301-492-3114, or
patricia.silvaŠnrc.gov.
Sincerely,
Signed by:
Michael F. Weber, Director:
Office of Nuclear Material Safety and Safeguards:
Enclosure: As Stated:
[End of section]
Appendix IX: GAO Contact and Staff Acknowledgments:
GAO Contact:
Gene Aloise, (202) 512-3841 or at aloisee@gao.gov:
Staff Acknowledgments:
In addition to the individuals named above, Daniel Feehan (Assistant
Director), Jeffrey Barron, Thomas Laetz, Omari Norman, Lesley Rinner,
Benjamin Shouse, and Elizabeth Wood made key contributions to this
report.
[End of section]
Footnotes:
[1] Section 274 of the Atomic Energy Act of 1954, as amended, provides
a statutory basis under which NRC relinquishes to Agreement States
portions of its regulatory authority to license and regulate particular
classes of nuclear material. There are presently 34 Agreement States.
[2] Defense Nuclear Facilities Safety Board, Recommendation 2004-1,
Oversight of Complex, High-Hazard Nuclear Operations, May 21, 2004. The
board was established by the National Defense Authorization Act, Fiscal
Year 1989 (Pub. L. No. 100-456, September 29, 1988).
[3] The program offices with nuclear facilities at the sites that they
oversee are the Office of Environmental Management, Office of Nuclear
Energy, Office of Science, and the National Nuclear Security
Administration (a semiautonomous agency within DOE).
[4] GAO, Nuclear and Worker Safety: Actions Needed to Determine the
Effectiveness of Safety Improvement Efforts at NNSA's Weapons
Laboratories, [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-73]
(Washington, D.C.: Oct. 31, 2007).
[5] DOE regulations (10 CFR part 830, appendix A to subpart B) define
three categories of high-hazard nuclear facilities according to their
potential to produce significant radiological consequences from an
event that could either extend beyond the boundaries of a DOE site,
remain within the boundaries of a site, or remain within the immediate
vicinity of a nuclear facility.
[6] Nuclear Regulatory Commission, Review of the U.S. Department of
Energy's Regulatory Processes for the Hanford Waste Treatment Plant
(Washington, D.C., Aug. 12, 2008). NRC listed five important
differences between the licensing and authorization processes, as
indicated on page 82 of its report.
[7] GAO, An Unclassified Digest of a Classified Report Entitled
"Commercial Nuclear Fuel Facilities Need Better Security," [hyperlink,
http://www.gao.gov/cgi-bin/getrpt?GAO-EMD-77-40a] (Washington, D.C.:
May 2, 1977).
[8] GAO, Nuclear Safety: Safety Analysis Reviews for DOE's Defense
Facilities Can Be Improved, [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO-RCED-86-175] (Washington, D.C.: June 16, 1986).
[9] DOE, Improving the Regulation of Safety at DOE Nuclear Facilities,
Final Report of the Advisory Committee on External Regulation of
Department of Energy Nuclear Facilities (Washington, D.C., December
1995).
[10] GAO, Department of Energy: Uncertain Future for External
Regulation of Worker and Nuclear Facility Safety, [hyperlink,
http://www.gao.gov/cgi-bin/getrpt?GAO/T-RCED-99-269] (Washington, D.C.:
July 22, 1999) and Department of Energy: Views on Proposed Civil
Penalties, Security Oversight, and External Safety Regulation
Legislation, [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO/T-RCED-
00-135] (Washington, D.C.: Mar. 22, 2000).
[11] GAO, Department of Energy: Observations on Using External Agencies
to Regulate Nuclear and Worker Safety in DOE's Science Laboratories,
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-02-868R] (Washington,
D.C.: June 26, 2002) and Department of Energy: External Regulation
Savings in Safety and Health Activities at DOE Science Laboratories,
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-03-633R] (Washington,
D.C.: May 14, 2003).
[12] GAO, Key Elements of Effective Independent Oversight of DOE's
Nuclear Facilities, [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO/T-
RCED-88-6] (Washington, D.C.: Oct. 22, 1987).
[13] Appendix A to subpart B of 10 CFR 830.
[14] DOE, Implementation of Department of Energy Oversight Policy,
Order 226.1 (Washington, D.C., Sept. 15, 2005).
[15] DOE, Office of Safety and Security Performance Assurance, Proposed
Approach for an SSA-EH Merger, (Washington, D.C., May 19, 2006).
[16] DOE, Strengthening the Department of Energy Worker Health, Safety
and Security Functions: Creation of the Office of Health, Safety and
Security (Washington, D.C., August 2006).
[17] DOE Order 470.2B, Independent Oversight and Performance Assurance
Program, provides the basis for the independent appraisal function
performed by HSS personnel, and DOE Order 226.1, Implementation of
Department of Energy Oversight Policies, provides the overall framework
of oversight for the department and its contractors.
[18] The Office of Independent Oversight comprises the Office of
Environment, Safety and Health Evaluations; Office of Security
Evaluations; Office of Cyber Security Evaluations; and Office of
Emergency Management Oversight.
[19] The Noncompliance Tracking System is a centralized, Web-based
system that allows contractors to promptly report any noncompliance
conditions that meet DOE's established reporting thresholds. These are
conditions that are potentially more significant and thus are judged to
need closer scrutiny by the Office of Enforcement.
[20] The Office of Enforcement comprises the Office of Price-Anderson
Enforcement, the Office of Worker Safety and Health Enforcement, and
the Office of Security Enforcement.
[21] Under section 234A of the Atomic Energy Act of 1954, as amended,
42 U.S.C. 2282a, DOE has the authority to impose civil penalties on
contractors for violations of nuclear safety requirements. However,
under section 234A(d), certain nonprofit contractors (including the
University of California, which currently operates Lawrence Livermore
National Laboratory) were specifically exempted from paying such
penalties. In 2005, the Congress passed the Energy Policy Act of 2005,
which removed this exemption.
[22] GAO, Better Oversight Needed For Safety and Health Activities At
DOE Nuclear Facilities, [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO/EMD-81-108] (Washington, D.C.: Aug. 4, 1981).
[23] [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO/RCED-86-175].
[24] GAO, Nuclear Health and Safety: Oversight at DOE's Nuclear
Facilities Can Be Strengthened, [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO/RCED-88-137] (Washington, D.C.: July 8, 1988).
[25] DOE, Improving the Regulation of Safety at DOE Nuclear Facilities.
[26] HSS refers to this as a vertical slice of nuclear safety at a
visited site, which includes a sample of the nuclear facility safety
basis, engineering design, operations, maintenance, surveillance,
testing, configuration management, and oversight processes.
[27] At the time of our 1977 report, the organization we referred to
was the Energy Research and Development Administration, a predecessor
organization to the Department of Energy.
[28] DOE Inspector General, Special Report: Management Challenges at
the Department of Energy, DOE/IG-0782 (Washington, D.C., December
2007). In this report, the Inspector General reported that DOE will be
challenged to ensure that its workforce has the knowledge and skills
that are necessary to fulfill its various missions.
[29] The number of high-hazard nuclear facilities across the DOE
complex is not static because nuclear facilities are sometimes
downgraded from a higher hazard category to a lower category.
[30] Six facilities fell into the "other" category on our survey. For
example, one facility covered both hazard category 2 and 3
transportation activities.
[31] Defense Nuclear Facilities Safety Board, Reporting Requirements
Letter to the Administrator, NNSA regarding safety concerns at the Los
Alamos National Laboratory Chemistry and Metallurgy Research facility
(Washington, D.C., October 23, 2007).
[32] The Safety Board review of defense facilities found that there
were nearly 50 JCOs in effect as of January 10, 2007. The age of these
JCOs ranged from a low of about 2 months to a high of more than 4
years, with an average age of 434 days.
[33] Three of these sites--Fernald, Miamisburg/Mound, and Rocky Flats-
-largely completed environmental cleanup between 2005 and 2006 and have
no remaining high-hazard nuclear facilities.
[34] HSS officials informed us that the office had conducted a special
study, not a specific site inspection, which included the Office of
River Protection site, among other sites, during this time period.
[35] 10 CFR part 820 Appendix A, subpart VI: Severity of Violations.
[36] Each entry into the Noncompliance Tracking System may contain more
than one condition that violates DOE's nuclear and worker safety
requirements.
[37] DOE, DOE Strengthens Authority of Assistant Secretary for
Environment, Safety and Health, DOE News (Washington, D.C., Nov. 18,
1986). While this authority was established by the Secretary of Energy,
implementing actions were delayed and the next Secretary of Energy
decided not to allow through with this approach.
[38] The four locations were the Hanford Site, Idaho National
Laboratory, the Savannah River Site, and the former Rocky Flats Site.
[39] The additional sites included Los Alamos National Laboratory, the
Nevada Operations Office, Oak Ridge National Laboratory, the Pantex
Site, and the San Francisco Operations Office.
[40] [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO/RCED-86-175].
[41] GAO, Department of Energy: DOE's Nuclear Safety Enforcement
Program Should Be Strengthened, [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO/RCED-99-146] (Washington, D.C.: June 10, 1999).
[42] Results are provided for 16 site offices, rather than the 18 site
offices that currently have high-hazard nuclear facilities, because one
respondent filled out one survey for both Portsmouth and Paducah and
the responses from the Hanford Site and the Hanford Office of River
Protection are combined.
[43] Defense Nuclear Facility Safety Board, Seventeenth Annual Report
to Congress (Washington, D.C.: February 2007).
[44] Conference Report accompanying the John Warner National Defense
Authorization Act for Fiscal Year 2007, H.R. Rep. No. 109-702, at 976
(2006).
[45] DOE, Improving the Regulation of Safety at DOE Nuclear Facilities.
[46] Nuclear Regulatory Commission, Overview and Summary of NRC
Involvement with DOE in the Tank Waste Remediation System-Privatization
Program, NUREG-1747 (Washington, D.C., August 2001).
[47] Nuclear Regulatory Commission, Review of the U.S. Department of
Energy's Regulatory Processes for the Hanford Waste Treatment Plant
(Washington, D.C., August 2008).
[48] Defense Nuclear Facilities Safety Board and Department of Energy,
Improving the Identification and Resolution of Safety Issues during the
Design and Construction of DOE Defense Nuclear Facilities (Washington,
D.C., July 2007).
[49] The DOE sites were Lawrence Berkeley National Laboratory, the Oak
Ridge National Laboratory Radiochemical Engineering Development Center,
and the Savannah River Site Receiving Basis for Offsite Fuels.
[50] Nuclear Regulatory Commission, External Regulation of Department
of Energy Nuclear Facilities: A Pilot Program, NUREG 1708 (Washington,
D.C., July 1999).
[51] Nuclear Regulatory Commission, Findings of the Compliance Audits
of Department of Energy Science Laboratories by the United States
Nuclear Regulatory Commission, SECY-04-0062 (Washington, D.C., Apr. 13,
2004).
[52] DOE, Report on the Pilot Project on External Regulation of DOE
Facilities at Receiving Basin for Offsite Fuels Facility, Savannah
River Site (Washington, D.C., April 1999).
[53] Defense Nuclear Facilities Safety Board, Report to Congress on the
Role of the Defense Nuclear Facilities Safety Board Regarding
Regulation of DOE's Defense Nuclear Facilities (Washington, D.C.,
November 1998).
[54] On April 21, 2005, NRC issued a Notice of Violation and Proposed
Imposition of Civil Penalties in the amount of over $5 million to the
Davis Besse nuclear power plant licensee for multiple violations
related to the significant degradation of the reactor pressure vessel
head. A portion of the fine was levied because the licensee failed to
provide complete and accurate information to NRC.
[55] The numbers cited in our responses correspond to the page numbers
in the report. The numbers cited in the DOE letter correspond to the
page numbers in our draft report.
[End of section]
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