Nuclear Safety: Department of Energy Needs to Strengthen Its Independent Oversight of Nuclear Facilities and Operations
Released: 2008-11-18T00:00:00

Letter

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. 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.

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 unexpect 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 as may be necessary to perform the safety analysis of the unexpected situation, to identify and implement corrective actions, and to update t safety basis documentations on a permanent basis. For example, a contractor recently discovered that a fire door leading to a room tha t stored nuclear material at Los Alamos National Laboratory was not sa JCO was employed, and all material was removed from the room until a new fire door was installed.

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, 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, 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, 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. 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. 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. 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. 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. 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.

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. 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. 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. 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, 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.

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.

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.

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. 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, 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.

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.

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.

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. 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. 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. 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. 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. 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 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.

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.

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 http://www.directives.doe.gov.

Appendix III: HSS Organizational Chart

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 ?

Hazard category 1 Hazard category 2 Hazard category 3 Below hazard category 3 Other Don't know Q3. What is the operational status of ?

Q4. What is the current safety basis approval status of ?

Safety basis is under development Q5. If the safety basis is under development, does have an approved preliminary safety basis under 10 CFR 830?

Q7. Since January 2007, were there any Potential Inadequacies in the Safety Analysis (PISAs) identified for ?

Q8. If yes, how many PISAs were identified?

Q9. How many of these PISAs resulted in a positive USQ?

Q10. Of the positive USQs that resulted from PISAs, how many resulted in Justifications for Continuing Operation (JCOs)? 28 Q11 and Q12. Of the positive USQs that resulted from PISAs, how many are: Q11a. Number that are currently unresolved Q12a. Number resolved through revisions to the safety basis Q12b. Number resolved through amendments to the safety basis Q12c. Number resolved through permanent exemptions . . .

Q12d. Number resolved through temporary exemptions Q12e. Number resolved through other actions Q12g. Number resolved through JCO Q13. Is currently operating under a JCO?

Q14. If yes, how many JCOs are currently in place?

67 Q15a. Difference between JCO approval date and JCO expected end date - in months Q15b. Length of time JCO has been in place from end of survey field period - in months Q16. Does currently have any approved exemptions under 10 CFR 830?

Q17a. If yes, how many of these exemptions are temporary exemptions?

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.

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?

Q2. Has your site office issued any guidance on safety basis requirements that is supplemental to the guidance issued by HSS?

Q3. Does your site office have the authority to approve initial safety basis requirements at hazard category 2 and 3 facilities?

Yes, for both category 2 and 3 facilities 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?

Q5. Does your site office have the authority to downgrade facilities or activities to lower hazard categories?

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. 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. 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, 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. 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.

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, 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. In a July 1999 report, 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, 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. 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. 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. 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.

Appendix VI: Comments from the Department of Energy

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. 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.

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

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.