**\[DNFSB LETTERHEAD\]**

January 29, 2004

The Honorable Robert Gordon Card

Under Secretary of Energy, Science and Environment

U.S. Department of Energy

1000 Independence Avenue, SW

Washington, DC 20585-1000

Dear Mr. Card:

The Bob Stump National Defense Authorization Act, Public Law 107-314,
directed the Department of Energy (DOE) to promulgate regulations on
worker safety and health, rather than rely exclusively on a contractual
approach to establish safe and healthy workplaces. Specifically, Section
3173 (codified at 42 U.S.C. § 2282c), requires DOE to promulgate worker
safety and health regulations. On December 8, 2003, DOE provided
notification of a proposed Rule on worker protection, Title 10 Code of
Federal Regulations, Part 851, *Worker Safety and Health*, in the
Federal Register.

The Defense Nuclear Facilities Safety Board (Board) is required by law
(42 U.S.C.

§ 2286a(a)(1)) to review and evaluate the content of all applicable DOE
Orders, regulations, and requirements. The Board has conducted a
detailed review of the proposed Rule. The comments developed during that
review are provided as an enclosure to this letter.

DOE personnel have indicated that DOE Order 440.1A, *Worker Protection
Management for D0E Federal and Contractor Employees*, will be cancelled.
Currently, DOE Order 440.lA and its associated manuals and guidance
documents, provide specific safety requirements for several areas of
interest to the Board (e.g., explosives safety, pressure vessel safety,
and suspect/counterfeit items). They also serve as the implementing
directives for Integrated Safety Management at the activity level. The
Board is concerned that many requirements and guidance, painstakingly
developed during 50 years of experience across the complex, may be lost
unless these requirements and guidance are formally implemented in a new
set of directives to be issued concurrently with the new Rule.

Therefore, pursuant to 42 U.S.C. § 2286b(d), the Board requests that the
responsible DOE, personnel brief the Board within 30 days of receipt of
this letter detailing how DOE plans to address the Board's comments on
the proposed Rule.

Sincerely,

***John T. Conway***

***Chairman***

c: The Honorable Beverly Ann Cook

> Mr. Mark B. Whitaker, Jr.

Enclosure

**ENCLOSURE**

**Defense Nuclear Facilities Safety Board**

**Comments on Proposed**

**Title 10 Code of Federal Regulations, Part 851, *Worker Safety and
Health***

1.  The Department of Energy (DOE) has identified that DOE Order 440.1,
    *Worker Protection Management for DOE Federal and Contractor
    Employees*, will be cancelled. However, several requirements from
    this Order that affect nuclear safety are not retained as
    requirements in the proposed Rule. The preamble to the Rule must
    specify the directive in which the redacted requirements of DOE
    Order 440.1 will be retained (e.g., suspect/counterfeit items,
    boiler and pressure vessel safety, fire protection, and explosive
    safety). In addition, the appendix to the Rule is not referenced in
    the main body and does not contain the complete set of guidance
    necessary to implement Integrated Safety Management (ISM) at the
    activity level. Finally, that portion of DOE Order 440.1 that is to
    be relegated explicitly to guidance, as well as the current guidance
    documents to DOE Order 440.1, should be compiled in a comprehensive
    set of implementation guides for the Rule and used as a safe harbor
    similar to the safe harbor system used with Title 10 Code of Federal
    Regulations (CFR), Part 830, *Nuclear Safety Management*, (10 CFR
    830). These guides must be prepared and issued concurrently with the
    Rule.

2.  DOE Order 440.1 currently provides requirements for the protection
    of DOE personnel. If this Order is cancelled, it is not clear how
    these requirements will be maintained; DOE personnel are not
    addressed in the proposed Rule. DOE must maintain requirements for
    the DOE work force that incorporate Executive Order 12196,
    *Occupational Safety and Health Programs for Federal Employees*.

3.  Currently, DOE Order 440.1 is referenced in the DOE Standard
    1098-99, Radiological Control, and is the only mechanism available
    to allow the integration of radiological protection under a
    comprehensive ISM system. If this Order is cancelled, the guidance
    documents for either Title 10 CFR, Part 835, *Occupational Radiation
    Protection*, or the proposed Rule, Title 10 CFR, Part 851, *Worker
    Safety and Health*, (10 CFR 85 l), must be revised to indicate how
    the five core functions of ISM are to be implemented.

4.  The preamble to proposed 10 CFR 851 states that the requirements of
    the Rule are risk based. In contrast, the implementation of ISM at
    the activity level, as well as the standards of the Occupational
    Safety and Health Administration, focus on elimination or mitigation
    of hazards. Determining the consequences and calculating a frequency
    of occurrence for hazard scenarios at the activity level is
    discouraged in the guidance to 10 CFR 830. The requirements in 10
    CFR 851 should continue to be based on the elimination of or
    protection from hazards, not on risks.

5.  The proposed Rule dictates that the Program Secretarial Officer
    approve the site-specific worker safety and health programs.
    However, line management personnel do not typically have the
    technical experience necessary to conduct a detailed review of the
    programs. Therefore, the 10 CFR 851 guidance documents should
    include requirements similar to those in DOE Guide 421.1-2,
    *Implementation Guide For Use In Developing Documented Safety
    Analyses To Meet Subpart B of 10 CFR 830*, which states,
    "Alternative methods or significant deviations from the safe harbor
    methods, if proposed, must have the approval of the responsible DOE
    organization as defined in the DOE FRAM \[*Safety Management
    Functions, Responsibilities, and Authorities Manual*\] including
    where applicable NNSA \[National Nuclear Security Administration\],
    and the concurrence (or comment if an NNSA facility is involved) of
    the DOE Office of Environment, Safety and Health."

6.  The preamble to the proposed Rule describes Orders and manuals as
    guidance documents. In accordance with the DOE Directives System,
    Orders and manuals contain requirements, not just guidance. The
    preamble should be revised using appropriate terminology from DOE
    Policy 251.1, *Directives System*, and DOE Order 251.1, *Directives
    System*.

7.  Section 851.8 proposes restrictions on DOE inspections or
    investigations. Especially in light of the use of terminology
    inconsistent with the DOE Directives System, this section is unclear
    and should be modified to avoid placing undue restrictions on DOE's
    ability to enforce safety and health requirements.

8.  The term "standard," as used in the preamble to the proposed Rule,
    is not congruent with the term "standard" as defined in DOE Order
    251; it appears to mean "control" as described in the five core
    functions of ISM described in DOE Policy 450.4, *Safety Management
    System Policy*. This terminology in the Rule should be modified to
    be consistent with existing DOE terminology to avoid confusion when
    implementing the Rule.

9.  In Section 851.103.h, tasks may only be declined if they pose an
    imminent risk of death or serious bodily harm---uncontrolled
    exposures to carcinogens or radionuclides are excluded from this
    discussion. This is different than the description of stop work
    authority, Section 851.103.1, and the difference is not adequately
    described. The difference should be redressed or explained in the
    proposed preamble or Rule.